Jamelle Bouie lays it right out in the NY Times:
The link should allow passage through the Times pay wall. Bouie brings up an important point right at the start:
Let’s start here: Article 3 of the Constitution gives the Supreme Court “original jurisdiction” in all cases affecting “Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” That part is obviously in effect, although most cases between states occur in the lower federal courts established by Congress. The Constitution then states that in all other cases, “the Supreme Court shall have appellate jurisdiction.” This, too, is in full effect.
But then the Constitution tells us that the court’s appellate jurisdiction is subject to “such Exceptions” and “under such Regulations” as “the Congress shall make.”
This is where it gets interesting. The court’s appellate jurisdiction accounts for virtually everything it touches. And the Constitution says that Congress can regulate the nature of that jurisdiction. Congress can strip the court of its ability to hear certain cases, or it can mandate new rules for how the court decides cases where it has appellate jurisdiction. And as I recently mentioned, it can even tell the court that it needs a supermajority of justices to declare a federal law or previous decision unconstitutional.
There are real questions about the scope of congressional power to regulate the Supreme Court. If Congress has complete control over the court’s appellate jurisdiction, then there are no real limits as to what it could do to shape and structure the court, threatening the separation of powers. As James Madison said
with regard to the Bank Bill of 1791, “An interpretation that destroys the very characteristic of the government cannot be just.”
But this is nearly a moot point. The modern Congress has largely relinquished its power to regulate and structure the court. The final clause of Article 3, Section 2 is not quite a dead letter, but it is close.
Bouie goes on to list some other provisions in the constitution that have fallen into disuse or were never fully exercised. The tools are there — but are the hands willing to use them? Read the whole thing — and then ponder his closing question that gets right to the heart of the matter.
The ground has shifted. The game has changed. The only question left is whether our leaders have the strength, fortitude and audacity to forge a new path for American democracy — and if they don’t, whether it is finally time for us to find ones who do.
We are suffering from Yeats’ Paralysis: “The best lack all conviction, while the worst are full of passionate intensity.” It’s time to change that.
The world is made by the people who show up for the job. There are entry positions at all levels. There is no lack of places to start building forward momentum. The opportunity to start turning things around has been created for us IF we seize it. Republicans are no longer trying to hide what they are doing. It’s time to hold them accountable. The January 6 hearings are a good start, but not the only opportunity.
The midterms are usually a referendum on the party in power — which is not the Democratic Party. Republicans have politicized the Supreme Court. The Senate is where Grim Reaper McConnell can obstruct everything so long as the filibuster remains, not to mention Manchin and Sinema.
Bouie’s question is about holding our own leadership accountable. Democrats can do better — and we must demand it. Biden has shown he can act decisively — as with the decision to exit Afghanistan, and with his actions to resist Russian aggression in Ukraine. We need to see the same energy and focus on domestic politics because the challenge is even greater.
In the words of George Jacques Danton, “De l'audace, encore de l'audace, et toujours de l'audace.” That would be at the very least a partial answer to Yeats.