"Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." Missouri, K. & T. R. Co. v. May , 194 U.S. 267, 270 (1904) (Holmes, J.).
There may be an unelected law professor who will disagree with Justice Holmes; but there are others who will say that Art III is unqualified in granting precisely the authority that Congress needs to serve as ultimate guardians of liberty and democracy from tyranny. A professor might propagate the judicial supremacy ideology transmitted to most law students. The slippery slope argument would contend that if Congress uses its unquestioned powers to rescue democracy from plutocracy by overturning the judicial legislation of the Roberts 5, it might also use the Exceptions Clause to overturn good judicial decisions. Rather than attempt to use Art III to distinguish between legislative and judicial powers, better to leave change to the election of politicians who will appoint better judges, the argument goes.
This argument ignores that the Supreme Court's elections decisions, unlike its other bad decisions, removes the very possibility for leaving reform to political processes. It has fundamentally corrupted those very processes. No President can be elected without the support of the 1% who pays the campaign expenses. No Congress will have a majority not beholden to the same paymasters. So no judge will be appointed to the Supreme Court who is not subject to these same influences.
By corrupting the elected branches that appoint federal judges, the Supreme Court since 1976 has effectively packed itself by creating a corrupt politics that assures appointment of increasingly plutocratic judges on the Supreme Court. As pointed out by Justice Stevens, "with the exception of Justice [Ruth Bader] Ginsburg -- I think every judge who's been appointed to the court since ...[Nixon appointee] Lewis Powell, has been more conservative than his [or her] predecessor." However, Justice Ginsburg's opposition to money in politics has been no stronger, and less vocal, than her predecessor Justice White, who vigorously dissented from both Buckley and Bellotti holdings that money in politics is speech, and corporations can spend freely on issues. On the issue of money in politics the judges without exception get uniformly worse, and it is now unclear if any judge on the Court would vote to overrule Buckley.
The judicial supremacy ideology ignores that Congress does not normally gain politically by opposing the Court. It is often in the politicians' own interest, as it is now, to pretend that the Supreme Court gets the last word on political issues. This permits the lucrative corruption to continue while Congress passes anemic reforms at best, and deflects criticism from itself onto the Constitution. Even where Congress does not profit as it does from continuing the corrupt electoral system established by the Court, as now, it is rarely more popular than the Court. It will require a movement well informed of the Court's role in causing the extreme and increasing inequality to force Congress to strip the Court of its illegitimate power.
Contrary to the slippery-slope arguments of their judicial-supremacist colleagues, some scholars criticize the "new mythology in which judicial supremacy is treated as the logical and inexorable endpoint of a beneficent progress." They urge that Congress should exercise its power precisely when the Court itself has placed Justice Holmes's "liberties and welfare of the people" at risk by abandoning the established teachings of previous Court rulings. The contemporary crisis created by a judicially-installed plutocracy is thus the very occasion for which the Exceptions Clause was designed.
A group of constitutional scholars who support "popular constitutionalism" would emphasize that it is the people themselves who must rescue democracy from 5 anti-democratic "kings," as Thom Hartmann has labeled the Roberts 5. See e.g. Stanford Law School Dean Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press; 2004); Mark Tushnet, Taking the Constitution Away from the Courts, (2000); Mark Tushnet, Popular Constitutionalism As Political Law, 81 Chi.-Kent L. Rev. 991-1006 (2006), in A Symposium on The People Themselves: Popular Constitutionalism and Judicial Review, by Larry Kramer, id. No. 3, (2006). Others challenge judicial review itself on the ground that "[i]n a society that takes democracy seriously, there is no privileged place for judicial proconsuls or their scholarly cohorts." Allan C. Hutchinson, A 'Hard Core' Case Against Judicial Review, 121 Harv. L. Rev. 57, 64 (2008)
One of the great constitutional scholars of a previous generation explained:
Except for the original jurisdiction of the Supreme Court [Art. III, Sec. 2, Cl. 2, Sentence 1] , every assumption of jurisdiction by every federal court since 1789 has been on the basis of an Act of Congress giving jurisdiction to that court. This ... is the rock on which rests the legitimacy of the judicial work in a democracy. "
Charles Black, The Presidency and Congress, 32 Wash. & Lee L. Rev. 841, 846 (1975) (emphasis added). Black recognized that it was essential in a democracy for the Supreme Court to derive its power, with very minor exceptions, from the people through their representatives in Congress, not from the Court's own interpretation of its powers under the Constitution.
In preparing to advocate use of Congress's express Art III authority to legislate money out of politics as the necessary first step toward rescuing democracy from plutocracy, the first questions to ask are:
A) Who must an aroused public persuade about Congress' Art. III authority, and,
B) What is their historical view of this question.
The answers are: A) quite clearly the people need to persuade elected members of Congress, not unelected law professors, and
B) this should be easy since both houses of Congress have separately taken a clear position on this question. They used their Article III power in the very same First Amendment context when they voted to strip the federal courts of jurisdiction:
1) over cases relating to 1st Amendment restrictions on voluntary school prayer, a bill which passed in the Senate, but not the House.( Prayer in Public Schools and Buildings Federal Court Jurisdiction: Hearings on S. 450 Before the H. Comm. on the Judiciary, Subcomm. on Courts, Civil Liberties, and the Admin. of Justice, 96th Cong. (1980)); and