Rep. Sean Casten’s proposal to strip Supreme Court of constitutional review authority is a ‘crackpot,’ universally ridiculed idea – Wirepoints

By: Mark Glennon*

“This is the first attempt by a sitting Member of Congress to enact this type of reform,” said Rep. Sean Casten in his Tuesday press release.

He should have considered why that’s so.

It’s because no member of Congress has ever been dumb enough to propose what Casten proposed — shredding essential parts of the constitutional system America has had for over 200 years.

And it’s because his own side justifiably savaged a Republican acting attorney general when he expressed essentially the same idea only a few years ago.

The most astonishing element of Casten’s proposal is to strip the United States Supreme Court of the power to void federal laws, regulations and executive orders that violate the Constitution. The proposal, comprised of two bills and a constitutional amendment, linked in his press release, would instead vest that authority in a new, multi-circuit panel of 13 judges randomly selected from each of the federal circuit courts of appeal.

But here’s the kicker: No law could be declared unconstitutional, as Casten’s proposal would have it, without the concurrence of 70% of the judges on that panel. That would all but eliminate meaningful judicial review. Very rarely do 70% of appellate judges agree on major decisions about constitutionality. Just as is true on the Supreme Court today, appellate judges now hold starkly divided philosophies. Only the most egregiously unconstitutional acts of Congress and a president would be invalidated by a 70% vote.

Casten’s proposal is therefore, in essence, an attempt to override what is universally regarded as the most important decision in American legal history, Marbury v. Madison in 1803, which established the Supreme Court’s authority to invalidate unconstitutional laws. It’s that principle that assures Congress, agencies and the president may not act in violation of the Bill of Rights and the rest of the Constitution.

That bedrock principle in turn led to countless decisions that few on the left or right would question. Some decisions, however, have been more controversial, and Casten seems unwittingly fine with judicial review when the results are to his liking. He applauded court decisions that struck down parts of Pres. Donald Trump’s initial Muslim travel ban, but then said the Supreme Court was wrong to uphold Trump’s revised, narrower ban.

Casten is apparently unaware of what happened four years ago to Matthew Whitaker who had expressed a similar sentiment about the Supreme Court and judicial review.

Whitaker became acting U.S. Attorney General in 2018 with Trump’s support. It became known that Whitaker had earlier criticized the Supreme Court’s review authority and had said Marbury v. Madison was wrongly decided.

For that, Whitaker was hammered mercilessly, especially by the left, of which Casten is part. Examples:

• “Matthew Whitaker is a crackpot” was the headline on a Washington Post column reprinted in the Chicago Tribune. “This is lunacy. For any lawyer — certainly for one now at the helm of the Justice Department — to disagree with Marbury is like a physicist denouncing the laws of gravity,” said the column.
• Liberal law professor Laurence Tribe said “the overall picture [Whitaker] presents would have virtually no scholarly support”, and that they would be “‘destabilizing’ to society if he used the power of the attorney general to advance them”.
• Whitaker was “manifestly unqualified” due chiefly to his views on judicial review, wrote a law professor in the Los Angeles Times.
• “I just can’t believe that we have an Acting Attorney General who repudiates that!” said a Daily Kos column.

Most conservatives were equally harsh. “Whitaker is Unfit to be Attorney General, Acting or Otherwise,” said a headline in the American Conservative, for example, in a column focused  on judicial review.

Casten’s proposal doesn’t stop there.

He wants to increase the size of the Senate with 12 at-large senators elected through a nationwide system of ranked choice voting and add about 138 additional members of the to the House. This would also change how the president is elected, establishing 12 at-large electors who would be required to cast their votes in the Electoral College for the winner of the national popular vote.

That’s designed to address a common complaint of the left, which is that the current system is anti-majoritarian. That is, big, Democratic states are underrepresented based on population in both the Senate, where each state has two senators, and the Electoral College, where each state gets electors based on the total number of its Senate and House seats.

But the current system is by the Founder’s deliberate design. Subverting it would be a historic blunder. It works precisely as the Founders intended by mitigating the risk of a nation run by a few large states. The Founders didn’t believe in simple majority rule. They created a republic, which subordinated majority rule to a range of other rights and considerations.

A Delaware delegate at the 1787 Constitutional Convention said this, which still applies to small states: “I do not, gentlemen, trust you. If you possess the power, the abuse of it could not be checked; and what then would prevent you from exercising it to our destruction?”

Combine all elements of Casten’s proposal and its purpose is apparent: It’s a naked power grab. Casten wants more power for the left in Congress, the executive branch and in presidential elections, and a Supreme Court stripped of any meaningful power to stop them from violating the Constitution.

Regarding Casten’s claim that this is the first time any member of Congress has proposed something like this, let’s hope it’s the last but it’s probably not. He told Roll Call that, while he doubts his proposal will get much support today, he thinks it will open the window of discussion wider making its passage more likely in the future.

Given the speed of radicalization of today’s left, Casten may be right about that.

*Mark Glennon is founder of Wirepoints.