Conflict between a Supreme Court hostile to progressive legislation and a Congress eager for reform appears very likely next year: Amy Coney Barrett will soon be on the court, creating an all-but-impregnable 6 to 3 conservative majority. Meanwhile, after the election, the Democratic Party may well control both chambers of Congress and the presidency. The prospect of years — maybe decades — of court rejection of significant legislation has caused some in the Democratic coalition to urge Congress to play hardball — perhaps by "packing" the court.

Yet Congress has a more innovative and less radical option at its disposal — one that takes into account the very doctrines that conservative justices are inclined to use to invalidate progressive legislation. Call it the "poison pill" — borrowing the name for a shareholder provision designed in the 1980s to prevent hostile corporate takeovers. A financial poison pill works this way: If one shareholder buys beyond a certain fraction of the company's stock, contractual mechanisms kick in to make the takeover unattractive.

Likewise, Congress can add provisions to statutes that might lead to distasteful results for justices otherwise inclined to strike them down through ideologically driven judicial review.

Congressional "poison pills" could come in one of two flavors: The first type would hitch constitutionally vulnerable items to provisions that a conservative court would be loathe to invalidate. The second would trigger a fallback measure — if one part of the legislation is struck down — that would be highly obnoxious to an ideological bench, but beyond its power to invalidate.

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