Faulty reasoning signals

• Confirmation Bias - 8.6% (136 hits)
• Anchoring Bias - 0%
• Availability Heuristic - 2.8% (44 hits)
• Representativeness Heuristic - 2.3% (36 hits)
• Hindsight Bias - 1.5% (24 hits)
• Overconfidence Bias - 0%
• Framing Effect - 5.7% (90 hits)
• Loss Aversion - 4.3% (67 hits)
• Status Quo Bias - 1.2% (19 hits)
• Sunk Cost Effect - 0%
• Optimism Bias - 10.6% (167 hits)
• Pessimism Bias - 3% (48 hits)

Article text

What Congress could actually do about the Supreme Court.

The Supreme Court had a field day this term mangling Congress’ laws.

For a court that repeatedly claims to be deferential to the will of the legislature, it took nearly every opportunity to narrow, rewrite, or make ineffective a wide range of federal statutes.

Slate has been covering this phenomenon all year, from the dangerous decision preventing lawsuits against the U.S.

Postal Service for intentionally misdelivering mail, to its later disastrous opinions upending voting rights.

And while there are dozens of topics on which the Supreme Court’s constitutional rulings are confounding and will take years to resolve, there are a few areas in which a future Congress—with the help of a willing president—can try to overturn the court’s statutory decisions as soon as it’s assembled.

Here are the five statutes that most need saving.

1.

The Voting Rights Act

The Supreme Court gutted the Voting Rights Act’s deterrents to racial gerrymandering in Louisiana v.

Callais.

Justice Samuel Alito’s opinion flips the VRA’s burden of proof upside down.

The 6–3 ruling requires voters challenging a state’s maps to prove that its gerrymandering was based on race rather than politics, creating a new, impossible-to-meet standard in the American South.

The reason for the court’s self-proclaimed “update” to the act was the laughable insistence that civil rights had improved so much that Southern minorities no longer needed the protection of the past.

That assertion was immediately revealed to be incorrect, as Louisiana, Alabama, and Florida all gerrymandered their maps to remove majority-minority districts before the midterms.

Congress should reaffirm that the VRA was designed to preserve multiracial democracy, not undermine it.

More specifically, a future Congress must amend Section 2 of the act to explicitly protect racial and racial-political-hybrid gerrymandering claims.

These amendments would place the burden on state governments to justify that their maps do not discriminate against minority voters.

In addition, the law should clarify that Southern states are not entitled to a “presumption of good faith,” a made-up judicial gloss conservative judges have placed over the VRA doctrine to whitewash the congressional motives of states like Texas and Alabama.

The amendments have the side benefit of getting ahead of Justices Clarence Thomas and Neil Gorsuch’s view that Section 2 does not allow gerrymandering challenges.

On that note, Congress should also make clear that both private parties and the Department of Justice can bring lawsuits under the act to align the legislation with its longtime understanding and with similarly structured statutes, like the Americans With Disabilities Act.

Justice Ketanji Brown Jackson has issued a warning that stripping private enforcement is on the table for this court.

2.

The Immigration and Nationality Act

At nearly every opportunity, the Supreme Court bent immigration law in Donald Trump’s favor (with the exception, of course, of the nearly dodged bullet that was birthright citizenship).

The only upside for a future Congress is that much of immigration law is a creature of federal statute, most notably the Immigration and Nationality Act.

A future Congress must overturn Blanche v.

Lau and require border officers interviewing green-card holders to have clear and convincing evidence of a crime before putting their legal permanent resident status in jeopardy.

Similarly, U.S. officials should not be permitted to flout international law by physically preventing asylum-seekers from crossing the border, only then to state that they have never legally “entered the country” as they try to obtain asylum protection.

The temporary protected status system will also need revival, as Alito’s opinion mistakenly bars all parties from ever bringing nonconstitutional claims challenging their removal.

Mullin v.

Doe’s butchered reading of the INA will greenlight a Trump administration effort toward hundreds of thousands of deportations.

Congress would be smart to also preempt a case the court has already decided that it will hear next term, about whether lawful permanent residents have a due process right to ever have a bond hearing while their immigration proceedings are pending.

They do, and Congress should say so.

3.

The First Step Act

In a rare bipartisan victory, Congress in 2018 passed a criminal justice reform law called the First Step Act.

Unfortunately, Justice Amy Coney Barrett wrote two opinions for the court that significantly narrowed the act’s ability to provide a pathway to equal treatment and release for incarcerated people.

Congress should amend the law passed during Trump’s first term and expand the list of factors that allow inmates to seek compassionate release.

For example, if a person is serving a long mandatory minimum sentence but the crime they were charged with has since had its sentence reduced, the inmate should be able to seek compassionate release given the years or decades already served.

And if a lower-court ruling locking someone away was inaccurate or unfair, so too should the First Step Act allow appeal and a new sentencing.

4.

Habeas Corpus

It’s important for incarcerated people to be able to seek compassionate release largely because of the many ways conservative justices have narrowed the ability to bring habeas petitions under the Antiterrorism and Effective Death Penalty Act of 1996.

Put simply, a habeas corpus petition is a written request from an inmate to a court challenging the lawfulness of their government detention.

Both criminal defendants and civil immigration detainees rely on habeas, despite the best efforts of the Supreme Court to narrow the circumstances in which habeas is available.

Habeas is also the constitutional right that Stephen Miller has urged the Trump administration to revoke as part of his mass-deportation plan.

In a lesser-known case from this term, the Supreme Court ruled that a federal court could not allow an inmate to challenge their detention after a state court had given the jury improper instructions about an illegally obtained confession.

Congress should expand the ability of federal courts to grant habeas relief for legal errors in the court below, including by codifying Justice Sonia Sotomayor’s opinion in Bowe v.

United States that allows additional habeas motions to challenge convictions that inmates allege were unconstitutional.

5.

Title IX and the Civil Rights Act of 1964

On the last day of the term, the court issued two decisions upholding state bans on transgender athletes in West Virginia v.

B.P.J.

The court did this despite Title IX’s statutory bar on discrimination on the basis of sex.

Congress would be wise to incorporate the court’s 2020 ruling in Bostock v.

Clayton County, which held that Title VII of the Civil Rights Act protects against employment discrimination on the basis of sexual orientation and gender identity.

Bostock should be expanded into the Title IX context.

But a thoughtful and courageous Congress could go further than just pushing for equality in school sports.

Throughout the constitutional section of Brett Kavanaugh’s go-sports-go opinion, he waters down the 14th Amendment’s standard for sex-discrimination claims.

If the court isn’t going to protect queer Americans under the Constitution, Congress must codify a statute doing the same.

As Jackson points out in her separate concurrence, Congress already wrote the definition of sex in Title IX to protect discrimination on the basis of gender identity.

But a 2027 Congress should make that even more clear.

Those are just five possible places to start.

Maybe you think other statutes, like the Religious Land Use and Institutionalized Persons Act, or removal protections for the Federal Reserve, are just as important to amend.

Fair enough.

Those should be on the table too.

But the most important point is to recognize that there is a long tradition of Congress invalidating SCOTUS opinions.

One study found that Congress used to overturn several opinions practically every term, including a particularly effective 1991 Congress that overrode eight Supreme Court decisions.

The Lilly Ledbetter Fair Pay Act of 2009, for example, was a direct overruling of a Supreme Court decision that had tried to limit the time that women had to bring sex-discrimination cases for unequal wages.

But according to the research of professor Richard Hasen, the rate of congressional overrides has steadily decreased over the years as Congress becomes slower and less productive with each passing term.

Would this be a futile effort, given that Trump could veto the legislation a 2027 Congress tries to pass?

Additionally, without serious court reform first, all these attempts could be doomed to fail, since the court could find a way to declare each of the amended statutes unconstitutional.

These are fair points—but refusing to even try to pass laws restoring rights the court has taken away fails to meet today’s political moment.

It would be a mistake for Democrats to tweet about the wrongness of the court’s decisions in 2026, and then, if they get into power in 2027, just sit on their hands and delay passing bills they doubt could get past a Trump veto.

Congress must instead force congressional Republicans, the president, and the courts to bear the political consequences of blocking its proposals.

At worst, Congress could be putting down a marker for the right president to sign later.

Many of these statutory issues may seem under the radar compared to the constitutional monstrosities on gun rights and presidential power the court also released this term.

But that’s exactly why they’re so important—because these are the areas a Congress is most likely to forget to address.

In the words of one former judge, “Most Supreme Court decisions never come to the attention of Congress.”

Starting in 2027, that needs to change.