The Supreme Court might have determined that a constitutional right to abortion doesn’t exist, but that could turn out to be only the beginning of a bigger constitutional struggle. An effort has begun in the House to reshape the high court via legislative fiat. Its leftist faction is aiming at the number of judges, their length of service, and jurisdiction. That is, the branch that makes the laws is taking aim at those who rule on their constitutionality.This, in our view, is a disgraceful and unconstitutional campaign. It goes beyond a substantive reply to Dobbs v. Jackson Women’s Health, such as the Court itself invited when it returned the question of abortion to the state legislatures and Congress. They have responded by proposing or passing legislation guaranteeing right to — or, alternatively, denying the right to — abortion and same-sex marriage. And maybe, someday, contraception.Measures recently introduced, though, touch on the court’s structure. The constitution vests the “judicial power of the United States” in “one Supreme Court” and in “such inferior courts” as Congress “from time to time” might “ordain and establish.” The appellate jurisdiction of all these courts is subject to “such exceptions, and under such regulations as the Congress shall make.” Except that all federal judges get life tenure.Within this frame, House Democrats have skated to the edge of the constitutionally permissible. One bill aims to add four justices to pack the court (probably permissible), another to compromise life tenure by creating 18-year terms (probably not permissible). Representative Alexandria Ocasio-Cortez is angling to strip the court of its appellate jurisdiction over “abortion, marriage equality, non-procreative intimacy, and contraception” (depends).There is nothing in these Democratic proposals that can be dismissed as prima facie unconstitutional, though the business about 18-year terms comes close. All the proposals are motivated by the realization that vast realms of possibility lie outside the corners of the Constitution that have so far been mapped. Then again, too, this push does not strike us as loyal to the spirit, and in some instances the letter, of the national parchment. One sage to turn to here is James Madison, who in 1791 warned that an “interpretation that destroys the very characteristic of the government cannot be just. Where a meaning is clear, the consequences, whatever they may be, are to be admitted — where doubtful, it is fairly triable by its consequences.” Here is a lesson in hermeneutics from the man who, it is fair to say, fathered the Constitution. It suggests that the House is just beginning to acquaint itself with the power it was given. Could it be that the body tasked with so much has gotten too used to doing too little? Meantime, Justice Kagan popped up at a parley at Big Sky, Montana, to warn that “if the court loses all connection with the public and the public sentiment, that’s a dangerous thing for democracy.” If it has too intimate a connection, we ask, is that any better?
