Did you know that to end
slavery in the United States,
Abraham Lincoln
had to take on the Supreme Court?
When he issued
the Emancipation Proclamation,
Lincoln went against the Supreme
Court's Dred Scott decision,
which said that the federal government
didn't have the authority
to free slaves.
So it turns out that the Supreme Court
doesn't have the final say
on laws in the U.S.,
at least when elected leaders
find the political will
to challenge its rulings.
And like other branches of government,
the judiciary is subject
to checks and balances.
So with the public's confidence
in the Supreme Court
dropping to all-time lows,
let's look at five ways
the institution can be checked -
and ask, does it even need to exist?
There are currently nine
Supreme Court justices,
but you might be surprised to hear
that this number
isn't in the Constitution.
In fact,
the number of justices on the court
has actually fluctuated
throughout the history
of the United States.
Today, Congress could easily
increase the number of justices
on the court
to outnumber the court's
unpopular conservative majority.
This actually happened a lot during
and after the Civil War
to bring the court in line
with Reconstruction
and ending slavery.
A few decades later,
President Franklin D. Roosevelt
tried to do the same thing
after the Supreme Court struck down
popular New Deal programs.
At the time, polls showed that most Americans
thought the court
should be more liberal
on New Deal cases.
In one of his fireside chats,
FDR accused the court
of using its power
to veto progressive laws.
The court has been acting
not as a judicial body,
but as a policymaking body.
In the end, FDR didn't get Congress
to add more seats to the court,
but his threat seemed to work.
The court began ruling
more in favor of the New Deal,
and at least part of the reason
was to get FDR
and the public off its back.
If court packing
seems like a tough sell
in the current moment -
and it might be, considering
that even FDR couldn't
pull it off -
another more popular fix
could be term limits.
Two-thirds of Americans
across the political spectrum
would support such a move.
See, right now, justices
can serve for life,
but term limits
would put that to an end
and kick justices off the court
after a certain number of years.
That would likely make it easier
to ensure
that the Supreme Court reflects
the current political climate.
The only thing is, it's unclear
if Congress can impose
term limits on justices
who already sit on the court.
And the constitutionality of that law
would have to be decided by,
you guessed it, the current court.
And they might not give up
power that willingly.
But that brings up the next point:
The first two solutions
we looked at solved
the problem of who sits on the court.
But Congress can also control
what cases the court rules on.
Congress can write laws
that take away the court's ability
to rule on particular issues
or particular types of cases.
This is called jurisdiction stripping.
For example,
some progressives in Congress
want to strip
the court of its authority
over abortion cases.
Even the Constitution itself states
that the Supreme Court
isn't so supreme after all.
Article III, Section 2 states:
"The Supreme Court
shall have appellate jurisdiction
under such regulations
as the Congress shall make."
That means Congress
can place regulations
on the unelected court's power.
But something else
seems to be getting lost
in the court's approach to law:
Like FDR said earlier, it's
not the judicial branch's job
to set policy and make laws.
Congress is the legislative branch.
They're the branch that makes the law.
So Congress
can actually pass laws
to counter Supreme Court rulings.
For example, in the late '80s,
the Supreme Court weakened
the Civil Rights Act of 1964,
saying the act
didn't protect against discrimination
in the workplace.
In response, Congress passed
the Civil Rights Act of 1991
to explicitly add those protections.
Today, Congress can do the same
by codifying Roe v. Wade.
If it happens,
the right to an abortion
would be made into an explicit law,
which has never existed
at the federal level.
Then abortion
rights would be more protected
from the Supreme Court's interpretations.
Congress used to do this way
more often, before
perpetual gridlock was the norm.
But even if Congress fails
to act, the other elected
branch of government,
the executive branch, has a last-ditch
option to check the court:
Now, this might seem like
the craziest move of all,
but if push came to shove,
the president could straight-up
ignore Supreme Court rulings.
And that's particularly important
when those rulings are unpopular
or immoral.
For example,
like we mentioned
at the start of this video,
Lincoln openly
defied the Supreme Court.
In fact, while running for president,
Lincoln campaigned
against the Supreme
Court's interpretation
of the Constitution itself.
At his first inauguration, Lincoln even said
that if the Supreme Court had final
say on government policy, quote,
"the people will have ceased
to be their own rulers."
Lincoln regularly
used his office to check the court.
His administration did
things like, in one case,
issue a passport to a free black man,
even though the court's Dred Scott ruling
had declared that Black Americans
were not U.S. citizens.
Each time Lincoln made one
of these moves,
he justified it
with his own interpretation
of the Constitution,
saying that the Supreme Court's
interpretation was wrong
and not the final word.
So today,
the elected branches of government,
the executive and legislative,
have all these options
at their disposal
to rein in the court.
But it's important to ask yourself
why a bunch of unelected judges
have so much political power
in the first place,
and why the system has
kept it that way for so long.