Holy attempting to swallow a co-equal branch of government, Batman!

Allan from DemSEC has written about a bill introduced by Congressman Ron Lewis in the U.S. House of Representatives which would allow Congress to ignore certain rulings of the Supreme Court.

The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court--

(1) if that judgment is handed down after the date of the enactment of this Act; and

(2) to the extent that judgment concerns the constitutionality of an Act of Congress.

The bill is called the "Congressional Accountability for Judicial Activism Act of 2004" and, though lacking a teeth-gnashingly obnoxious name like some other recent legislative emanations, is still worthy of criticism.  If this bill passes, I recommend the quick issuance of an Executive Order declaring that the President can dismiss both Congress and the Supreme Court, but only if he really, really wants to.

Actually Congress already has the power to overturn unpopular Supreme Court decisions – it’s called a Constitutional amendment – although I hear there’s more paperwork involved and someone has to phone the states.  Anyway, a Constitutional amendment is the only way this act could stick, since the Supreme Court would presumably strike it down the very first time the bill was invoked.  Of course, such a slap-down would itself satisfy both of CAJAA’s triggering conditions.  The resulting attempt at recursive self-defense would be fun to watch but unlikely to succeed.  It’d be like using a magic lamp to wish for more wishes.  Everybody knows you can’t do that; the precedent goes all the way back to “Aladdin v. Genie.”

Besides the ability to amend the constitution, Congress has already been dealt another valuable card in the Checks & Balances game:  If Congress is really concerned about “activist judges” getting on the court, all it has to do is not approve any.  Make those nominees squirm!  It takes a lot less than two-thirds majority in both houses to scuttle a judicial appointment.  Makes for good C-SPAN as well.

Congress could also try not passing blatantly unconstitutional laws in the first place. 

As an added bonus, the preceding three methods work just as well against the lower federal and state courts – something completely unaddressed in Congressman Lewis’ effort. 

I’m not making any judgments on the broader “activist judges” issue because, (1) I can kind of see both sides of the argument, and (2) it’s irrelevant to the merits of this bill.  All I’m saying is that looking for an end-run (is that a valid sports analogy? I’m never sure.) around the past 200 years of the foundations of American democratic governance is a curious way to show your respect for tradition.  Mr. Lewis may have legitimate concerns about the modern role of the judicial branch.  Certainly the press release explaining the bill taps into a serious and ongoing debate.  Still, Congress already has ways to balance the influence of the courts.  Congress should use them.

[Dahlia Lithwick criticizes the bill, as does Eugene Volokh.  Stephen Bainbridge offers a defense.]