An emergency brake to stop a runaway Supreme Court

The U.S. Constitution is once again under attack. It has survived attacks in the past from war-time presidents, hard-line Congresses and confrontational states. But this time is different because the aggressor is the Supreme Court — the one institution whose sole task is to protect the Constitution. Will the Constitution withstand this latest threat, and what can be done to rein in the Court?

The Court’s new conservative supermajority appears poised not just to reinterpret the Constitution but to remake it altogether. It has telegraphed its intention to erode or, worse still,  to eviscerate hard-won precedents on fundamental rights and freedoms.

The right to abortion hangs in the balance. And if abortion falls, it might not be long before an emboldened Court sets its sights on marriage equality and privacy in intimate relations. The result will be to weaken the power of the federal government and to elevate states’ rights above all else. That is not the framers’ Constitution. It is the revival of a confederal subordination of the nation to the states.

The founders anticipated the possibility of a Supreme Court gone rogue. That’s why they gave everyday Americans the power to overrule the Court if ever it assaulted their most valued commitments. This power has sat unused for 30 years, but it is freely available when the people disagree with the Court: Americans can overrule the Court by amending the Constitution.

Prior generations of Americans made good use of this power. They mobilized time and again to defend American values of social justice against repulsive Court rulings.

When the Supreme Court ruled that African-Americans had no constitutional rights, the country fought a war and pushed through the 13th and 14th Amendments to overrule the Court’s racist judgments. When the Supreme Court ruled that women had no right to vote, the people of the United States passed the 19th Amendment to reverse the Court’s sexist decisions. And when the Supreme Court blocked Congress from reducing the voting age from 21 to 18, Americans passed the 26th Amendment to veto the Court’s ageist case law.

Amending the Constitution is extraordinarily difficult. Historically it has been possible only with the agreement of two-thirds of each house of Congress and three-quarters of the states. But these days Congress can barely agree by simple majority on an ordinary law, let alone by supermajority on a constitutional amendment. The present Congress is not a solution; it is an obstacle.

Fortunately, there is an emergency brake to stop the rise of conservative judicial supremacy. It is a lesser-known path to fight back against a Court that could tear down the major human rights victories won over the past 50 years. The people can rally support in the country’s state capitols for a national constitutional convention to overrule a Supreme Court ruling.

Calling a national constitutional convention is not easy, either. It has never before been tried in the country, and so it raises many questions. It requires coordinated action from two-thirds of the states. Each state must on its own petition Congress to call a convention. These petitions must be worded similarly, focused on the same subject and issued contemporaneously. Faced with these matching petitions, Congress will have little choice but to call the convention. 

The work toward a constitutional convention must start now. In less than a year, much of the country will head to the polls to elect new state-level representatives and senators. They are the ones who will have to be persuaded to petition Congress to call a convention to undo the retrograde decisions the conservative Supreme Court is likely to issue in the near term.

Americans across the country must campaign for and elect representatives and senators willing to stand up to the Court and defend the Constitution. This can be the litmus test for their vote. 

The Constitution is at risk of grave harm. Progressive Americans must prepare now to protect the country’s fundamental rights and freedoms from attack by the new conservative supermajority on the Supreme Court.

Richard Albert, a constitutional law professor at the University of Texas at Austin, is author of “Constitutional Amendments: Making, Breaking, and Changing Constitutions” (Oxford University Press). Follow him on Twitter @richardalbert.