July 28, 2022

Whitehouse, Cortez Masto Propose Congressional Check on Supreme Court Decisions

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

Washington, DC – U.S. Senators Sheldon Whitehouse (D-RI) and Catherine Cortez Masto (D-NV) today unveiled the Supreme Court Review Act, a new bill to revitalize Congress’s ability to legislate in response to Supreme Court decisions that interpret federal statutes or roll back constitutional rights.  The Senators’ bill would help ensure that the constitutionally delegated power to make policy remains with Congress, not the Court, by creating streamlined procedures through which Congress can exercise its existing power to amend statutes or create federal statutory rights.

“Six radical justices enacted a bonanza of right-wing policies during the last term, reshaping American life in wildly unpopular ways over just a matter of days.  The American people are fed up with policymaking by unaccountable Supreme Court justices, and we have a solution,” said Whitehouse, Chairman of the Senate Judiciary Courts Subcommittee.  “This important good-government reform would check the activist Court’s rogue decisions by ensuring policymaking stays where the Constitution delegated it: in the hands of the American people and their elected representatives.”

“I’ve always said that the most important quality in a Supreme Court Justice is their ability to understand the impact their decisions will have on everyday Americans.  In the face of an increasingly extreme Supreme Court, the American people deserve accountability and responsiveness from all three branches of government,” said Cortez Masto.  “This bill would allow Congress to more efficiently exercise its existing power to respond when the Court misinterprets Congressional intent or strips Americans of fundamental rights.”

The legislation is cosponsored by Senators Elizabeth Warren (D-MA), Mazie Hirono (D-HI), Richard Blumenthal (D-CT), Ron Wyden (D-OR), Alex Padilla (D-CA), and Kirsten Gillibrand (D-NY).  Congressman Hank Johnson (D-GA), Chairman of the House Judiciary Courts Subcommittee, is leading the introduction of the bill in the House.  The bill is supported by People for the American Way, Public Citizen, the Project on Government Oversight, the Niskanen Center, Common Cause, Fix the Court, the Center for Biological Diversity, and Evergreen Action.

Congress has similar processes for expeditiously considering other important matters, including by responding to “major” agency rules under the Congressional Review Act.  The bill would apply that same framework to Supreme Court decisions.  This bill:

  • Mirrors the Congressional Review Act by codifying a process for passing new laws in response to Supreme Court decisions that interpret federal statutes or roll back constitutional rights;
  • Includes expedited procedures for the Senate to pass these laws by a simple majority;
  • Prevents abuse of the process by excluding any “extraneous” changes to federal law, similar to the “Byrd Rule” during the reconciliation process; and
  • Ensures that members of the minority party in the Senate have an opportunity to propose alternative updates to the law.

“People For the American Way strongly supports the Supreme Court Review Act of 2022,” said Ben Jealous, president of People For the American Way.  “When fundamental constitutional or statutory rights are erroneously or deliberately stripped away by Supreme Court rulings, Congress has the authority and the responsibility to legislate to protect those rights.  And right now, we have a Supreme Court driven by a partisan political agenda that has set its sights on overturning numerous longstanding rights and freedoms.  The Court has already overturned the right to abortion, and we know that contraception, marriage equality and same-sex intimate relationships are on the chopping block next.  This legislation meets the urgency of this moment by providing a clear path for Congress to act quickly when the law, the Constitution and the people’s rights must be upheld.”

“The Supreme Court Review Act of 2022 is an important step towards limiting damage from Supreme Court rulings revoking constitutional rights and curtailing federal authority to protect health and safety, such as we have seen recently in Dobbs and West Virginia,” said Jenn Danis, senior attorney at the Niskanen Center.

“Without serious reforms, the Supreme Court’s disastrous decision in West Virginia v. EPA will be just the first smash of the wrecking ball to all of our environmental laws,” said Brett Hartl, government affairs director at the Center for Biological Diversity.  “The conservatives on the court have stacked the deck completely on the side of powerful corporations and polluters.  It is critical that these ideologues are reined in and Senator Whitehouse’s legislation would do just that.”

Gabe Roth, executive director of nonpartisan judicial watchdog group Fix the Court, said: “There’s no question that in recent years the Supreme Court has become the nation’s most powerful, least accountable institution — one that our founders would barely recognize.  So it’s critical that the people, through our representatives in Congress, find creative, constitutional ways to reclaim that power.  That’s why I support Sens. Whitehouse and Cortez Masto’s Supreme Court Review Act, which would eliminate a host of unwieldy and redundant legislative processes to help lawmakers respond promptly when nine lawyers on First Street unduly set national policy.”

“The Supreme Court Review Act would provide an important procedural path for Congress to fulfill its responsibilities as a co-equal branch of government.  It would allow Congress to respond in a timely way to Supreme Court decisions that affect our constitutional rights and statutory law.  This most recent Supreme Court term demonstrated just how much is at stake, including its decisions to overturn Roe v. Wade and limit the EPA’s authority to respond to the existential threat of climate change.  We commend Senators Whitehouse, Cortez Masto, and Representative Hank Johnson for proposing this legislation, because if enacted, it will mark an important step toward responsive government,” said Karen Hobert Flynn, president of Common Cause.

Revitalizing our system of check and balances is essential to restoring Americans’ faith in government.  A Gallup poll taken in late June – before the Court overturned Roe v. Wade, curtailed the EPA’s ability to fight climate change, and threw out centuries-old gun safety regulations – found that only 25 percent of Americans had a “great deal of confidence” in the Supreme Court.  The Supreme Court Review Act would help restore the American people’s trust in government by improving Congress’s ability to check harmful and unpopular Supreme Court decisions.

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.  The Senator’s DISCLOSE Act, which received a hearing before the Senate Rules Committee last week, 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.  His Supreme Court Ethics, Recusal, and Transparency Act would promote accountability and increases transparency in the federal judiciary by addressing lax recusal standards for judges, weak disclosure rules for special interests filing documents with the courts, poor reporting of travel and hospitality for judges, and the absence of a code of ethics for the Supreme Court.

Full text of the bill is available here and a summary of the bill is here

Meaghan McCabe (Whitehouse), (401) 453-5294

Lauren Wodarski (Cortez Masto), (202) 821-6169

Press Contact

Meaghan McCabe, (202) 224-2921