Court Reform and the Promise of Justice: Lessons from Reconstruction

48 Pages Posted: 17 Oct 2022 Last revised: 1 Nov 2023

See all articles by David Gans

David Gans

Constitutional Accountability Center

Date Written: September 9, 2022

Abstract

The Supreme Court is broken. How should we fix it? This Article argues that Reconstruction, a period in American history when the role of the Supreme Court in American life was hotly debated and Congress repeatedly took steps to reform the federal courts, provides important and underappreciated lessons.

Reconstruction’s model makes clear that when the Supreme Court runs roughshod over constitutional rights, Congress need not sit on the sidelines. Rather, the Constitution gives it powerful tools of reform. Congress can (1) change the composition of the Court, (2) alter its jurisdiction and regulate its proceedings, and (3) use its express enforcement powers to protect basic rights and equal citizenship. During Reconstruction, Congress employed all three of these strategies. It enacted structural reforms to expand the size of the Court, disempowering reforms to strip the Court of its jurisdiction over highly charged cases, and justice reforms that sought to make the federal courts partners in Reconstruction’s project of ensuring true freedom and equal justice, opening the federal courthouse doors wide open to rein in state abuse of power.

Of these, Reconstruction’s justice reforms have proved to be the most enduring, and they provide a model for court reform today. When the Court’s conservative supermajority eviscerates fundamental rights, Congress can pass statutes to do what the Supreme Court will not: uphold our core constitutional commitments.

Keywords: court reform, Reconstruction, Supreme Court, court packing, court expansion, jurisdiction-stripping, congressional regulation of Supreme Court jurisdiction, congressional enforcement power, Fourteenth Amendment, access to justice, Section 1983, federal habeas, arbitration

Suggested Citation

Gans, David, Court Reform and the Promise of Justice: Lessons from Reconstruction (September 9, 2022). 27 Lewis & Clark Law Review 825 (2023)., Available at SSRN: https://ssrn.com/abstract=4244924 or http://dx.doi.org/10.2139/ssrn.4244924

David Gans (Contact Author)

Constitutional Accountability Center ( email )

1200 18th Street
Suite 501
Washington, DC 20036
United States

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