Yet Congress has a more innovative and less radical option at its disposal, one that takes into account the very doctrines that conservative justices are inclined to use to invalidate progressive legislation. Call it the “poison pill” — borrowing the name for a shareholder provision designed in the 1980s to prevent hostile corporate takeovers.
A financial poison pill is a contractual mechanism that kicks in to make a takeover unattractive. Likewise, Congress can add provisions to statutes that might lead to distasteful results for justices otherwise inclined to strike them down through ideologically driven judicial review.
Congressional poison pills could come in two flavors: The first would hitch constitutionally vulnerable plans to provisions that a conservative court would be loath to invalidate. The second would trigger a fallback measure — if one part of the legislation is struck down — that would be highly obnoxious to an ideological bench but beyond its power to invalidate.
The first of these options draws on a legal doctrine called “inseverability.” If a provision of a law is inseverable from the rest of that law, when the court strikes down the inseverable portion, the entire law fails. The concept is playing an important role in the current attempt to overturn the Affordable Care Act: The Trump administration argues that the individual mandate (which no longer includes a tax penalty) is unconstitutional and inseverable, and so the entire ACA must fall.
But inseverability can also be used to insulate a measure. Some statutes — like the ACA — require the courts to guess what parts of the law are joined, because Congress hasn’t explicitly spoken to the question. But lawmakers can expressly state that two parts of a policy must stand or fall together. Imagine a health-care law in which a Democratic Congress yoked together, say, a mask mandate with a nationwide cap on medical malpractice damages. This not only makes sense as a legislative compromise, it also means justices who adhere to inseverability would have to strike down both a mandate they might oppose and the tort reform they probably support.
A second type of poison pill ties a constitutionally vulnerable provision to a fallback measure that is plainly constitutional but politically unappetizing, at least for conservative justices. Congress could, for instance, require states to adopt a nonpartisan mechanism for drawing House districts, perhaps involving a bipartisan body of experts (such as Arizona’s) or a citizen commission (such as California’s). But if such a nonpartisan system were found unconstitutional, the automatic fallback, written into the law, would be a highly gerrymandered national map of House districts favoring Democrats. The most informed scholarship on the topic finds that Congress has the power to control districting pursuant to its Article I, Section 4 authority over elections. The Supreme Court has already held that partisan gerrymandering cannot be challenged in the courts. So the justices could stymie the modest anti-gerrymandering proposal only at the price of installing a hyper-Democratic (and constitutionally insulated) map.
Such a strategy could even be applied to policies affecting the court itself. The Constitution expressly grants Congress control over the appellate jurisdiction of the Supreme Court, including the amount and types of cases it hears, and Congress exercised that power from the founding to the early 20th century. Wanting more discretion over the pace and agenda of their work, the justices lobbied Congress for control over this docket and secured it in 1925. But lawmakers can revoke this power. Congress could pass a measure requiring term limits for justices (18 years, perhaps) and couple it with a fallback provision that would eliminate the justices’ discretion over which cases to hear. Hence, if the justices rejected term limits, which they may dislike, they would find themselves no longer masters of their caseload — a power they value but have no constitutional right to keep.
At this point, many lawyers will raise an objection: What if the court doesn’t out-and-out invalidate the first option but simply narrows its application into uselessness by reading the statute tendentiously? (In cases involving some civil rights statutes, the court has narrowed anti-discrimination provisions without overruling them.) Where that’s a possibility, however, Congress has the option of making the poison pill kick in for instances of narrowing as well as invalidation.
Granted, Republicans could use this tool, too. But because of the different agendas of the two parties, it’s far less likely to work well for the GOP. The Democratic legislative agenda is chock full of new policies and programs — a public option in health care, a more robust approach to climate change, an expansion of voting rights, better workplace protections and so on — while the Republican agenda largely involves deregulation, tax cuts and judges. Because Democrats want to regulate more, they have more reason to be concerned about a conservative court reading statutes with gimlet-eyed hostility. So Democrats have far more to gain from poison pill measures than Republicans do.
Congress has previously faced a dilemma similar to today’s: The 1930s saw prolonged conflict between legislators who favored the regulation of business and an antediluvian bench that viewed all such interventions as a violation of fundamental economic rights. That conflict was resolved with the threat of court-packing — a threat, we should not forget, that worked. The justices relented and began to approve popular New Deal economic legislation, saving a nine-member court. Given its success in the past, it’s understandable that people are proposing the same remedy today.
Court-packing, though, may lead to escalating politicization of the judicial branch. Our approach is less confrontational, works within the constitutional framework the justices themselves have set, and encourages a more tempered and consensual approach to public policy. Most important, that policy would originate (as it should) in the political branches, rather than in an ever more unrepresentative judiciary.