The death of Ruth Bader Ginsburg on September 18 underlined a peculiar aspect of the American political system: The state of laws governing everything from abortion to environmental regulation to health care to national security depends, in part, on when exactly elderly judges happen to die.
That not only fosters a ghoulish preoccupation with the health of Supreme Court justices, and puts justices like Ginsburg in a position where they have to dictate their wishes for their seat from their deathbed — it also raises major questions about whether a group of nine unelected jurists, appointed for life, has too much power over law and policy in the United States.
This worry, that the courts have gotten too powerful relative to other branches, has a long history, among conservatives repulsed by decisions affirming rights to abortion and birth control, as well as among liberals and leftists who argue that courts capable of overruling Congress and state legislatures undermine democracy.
Two law professors, Ryan Doerfler of the University of Chicago and Samuel Moyn of Yale, recently released a paper laying out a way to “democratize” the Supreme Court by weakening its ability to strike down federal laws as unconstitutional (an ability usually referred to as “judicial review”). In order to pass transformative progressive legislation like Medicare-for-all or a Green New Deal and ensure the Court does not tamper with them, Doerfler and Moyn propose either stripping the Court of jurisdiction over certain legislation or imposing a supermajority requirement under which a 7-2 majority would be required for the Court to overturn acts of Congress.
Read more at Vox