Whitehouse, Cortez Masto Reintroduce Congressional Check on Rogue Supreme Court Decisions

Supreme Court Review Act would allow Congress to respond quickly to Court decisions and restore policymaking power of the legislative branch

Americans' approval of the Supreme Court is nearing a historic low

Washington, D.C. - U.S. Senators Sheldon Whitehouse (D-RI) and Catherine Cortez Masto (D-NV) today reintroduced the Supreme Court Review Act, legislation that would bolster Congress's ability to check Supreme Court decisions that erroneously interpret federal law or roll back constitutional rights. Congress has already created a process for responding to agency rules under the Congressional Review Act, and the Supreme Court Review Act would do the same for Supreme Court decisions.

"The captured right-wing majority of the Supreme Court is openly delivering goods to deep-pocketed special interests. When the Court abuses its power in this way-especially by paving over factual records-it's up to Congress to protect the interests of the American people," said Senator Whitehouse, Ranking Member of the Senate Judiciary Courts Subcommittee. "The Supreme Court Review Act would put guardrails on these rogue decisions and return policymaking power back to where the Constitution delegated it: in the hands of the people and their elected representatives."

"Our country was founded on a system of checks and balances, and there is no reason we should let an extreme Supreme Court take away Nevadans' fundamental rights," said Senator Cortez Masto. "It's time to put some power back in the hands of the people's elected representatives and make it clear that Congress has the power to check the Court when it guts critical constitutional protections."

The legislation is cosponsored by Senators Mazie Hirono (D-HI), Richard Blumenthal (D-CT), Alex Padilla (D-CA), Ron Wyden (D-OR), and Elizabeth Warren (D-MA).

The Supreme Court continues to erode longstanding constitutional protections and interpret the law in ways that are out of step with congressional intent and will of the American people. Congress can respond to these cases by clarifying federal law or creating new statutory protections, but cumbersome Senate procedure has undermined Congress's ability to react quickly. Without congressional action, Supreme Court opinions eliminating constitutional protections and misreading federal statutes will continue to usurp policymaking by elected officials.

Whitehouse and Cortez Masto's Supreme Court Review Act would make clear that the constitutionally delegated power to make policy remains with Congress, not the Court. The bill would create streamlined procedures through which Congress can exercise its existing power to amend statutes or create federal statutory rights following a Supreme Court decision. Specifically, the bill would:

• Codify a process for passing new laws in response to Supreme Court decisions that interpret federal statutes or roll back constitutional rights;
• Expedite procedures for the Senate to pass these laws by a simple majority;
• Limit the process to recent Court rulings and exclude non-germane changes to federal law to prevent abuse; and
• Ensure that members of the minority party in the Senate have an opportunity to propose alternative updates to the law.

The Supreme Court Review Act is endorsed by Public Citizen, People for the American Way, Fix the Court, Project on Government Oversight, Common Cause, Citizens for Responsibility and Ethics in Washington (CREW), and the Center for Biological Diversity.

"The Supreme Court has grown increasingly out-of-touch with the norms and values of the American public. The Court today has its lowest public approval rating in history. The SCOTUS Review Act provides a sorely-needed expedited congressional review process of controversial Court decisions, giving Congress a chance to respond to rulings that fail to protect the public's interest. Public Citizen heartily endorses this reasonable oversight measure," said Craig Holman, Ph.D., of Public Citizen.

"We all learned in civics class that the branches of the government are meant to be in conversation with one another. But that give-and-take has largely come to a halt this past decade, as the once prevalent practice of congressional override has all but disappeared. With their legislation, Sens. Whitehouse and Cortez-Masto are reasserting Congress' role as the prime interpreter of the Constitution, able to fix statutory holdings that miss the mark with greater ease. I am grateful for their initiative and for their efforts to establish a new era of popular constitutionalism," said Gabe Roth, Executive Director of Fix the Court.

"In recent years, the Supreme Court has narrowed and eroded longstanding statutory and constitutional protections, defying the understanding and intent of democratically-elected leaders in Congress," said Debra Perlin, Vice President for Policy at CREW. "The Supreme Court Review Act would give Congress the tools to promptly respond to harmful or erroneous Supreme Court decisions that affect the lives of everyday Americans. CREW is proud to endorse this important legislation that would allow Congress to effectuate its intent and reassert its Article I powers."

"As we've seen with the Voting Rights Act, when a Supreme Court majority misinterprets a federal statute, they shatter long-held expectations and immediately threaten rights Congress had protected. This creates an urgent need for a swift response. The Supreme Court Review Act will help Congress protect the basic rights of the people while also restoring the balance of power among the branches of the federal government," said Svante Myrick, President at People for the American Way.

"With each passing decision, it is more and more evident that the conservative majority of the Supreme Court is more interested in making law than acting like neutral Justices. The Supreme Court has done more damage to the Clean Water Act, Clean Air Act and National Environmental Policy Act than any other institution in the nation, and this is all part of a larger ideological effort to give corporations and polluters the upper hand in every courtroom fight, while throwing ordinary people under the bus. Congress needs more tools to check the abuses of the Supreme Court and this legislation is a critical step," said Brett Hartl, Director of Government Affairs at the Center for Biological Diversity.

"Behind every Supreme Court decision are real people whose lives and liberties are on the line," said Jay Young, Senior Policy Director for Civil Rights & Civil Liberties, Common Cause. "Congress has a duty to stand up for the public, and this legislation gives lawmakers the immediate tools they need to step in and protect our freedom."

The Supreme Court Review Act would add to a growing number of good-government reform bills introduced by Whitehouse to restore Americans' trust in government, particularly the Supreme Court. The Senator's DISCLOSE Act would require organizations spending money in federal elections to disclose their donors, allowing the American people to see who is attempting to sway their elections and gain control over their government.

Whitehouse's Supreme Court Ethics, Recusal, and Transparency Act would require Supreme Court justices to adopt a binding and enforceable code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a justice has a connection to a party or amicus before the Court, end the practice of justices ruling on their own conflicts of interests, and require justices to explain their recusal decisions to the public.

The Senator's Supreme Court Biennial Appointments and Term Limits Act would establish effective 18-year term limits and regularized appointments for Supreme Court justices. Under the legislation, a new justice would take the bench every two years and spend 18 years participating in all Supreme Court cases, after which the justice would be limited to hearing a small number of constitutionally required cases.

Full text of the bill is available here.