Liberals Weigh Jurisdiction Stripping to Rein in Supreme Court

(Bloomberg Businessweek) -- In 1982 a young lawyer at the U.S. Department of Justice wrote a series of memos defending an unorthodox proposal to limit the power of the U.S. Supreme Court. It was nine years after the court’s landmark Roe v. Wade decision, which granted women a constitutional right to abortion, and Republicans in Congress had recently introduced more than 20 bills seeking to divest the court of its authority over abortion and other contentious social issues such as desegregation and school prayer. Academics have a term for this kind of legislation: jurisdiction stripping.

None of those bills passed. But the DOJ memos offered a sophisticated legal defense of jurisdiction stripping, arguing that “clear and unequivocal language” in Article 3 of the Constitution gives Congress the authority to shield certain laws from Supreme Court review. “The Framers were not inartful draftsmen,” one of the memos said. “We are not considering a constitutional clause that is by its nature indeterminate.”

The author of the memos was John Roberts. Forty years later, Roberts is the Supreme Court’s chief justice and the leading defender of its institutional legitimacy, and the push for judicial reform has migrated from the right to the left, with an array of reform ideas under discussion, including jurisdiction stripping.

Facing the prospect of a 6-3 conservative majority on the high court following the death of Justice Ruth Bader Ginsburg, progressive lawmakers and left-wing activists are calling for the Democrats to impose term limits or expand the size of the Supreme Court and pack it with liberal justices. On Sept. 29, House Democrats introduced a bill proposing 18-year term limits for new members of the Supreme Court. And although President Franklin D. Roosevelt famously failed in his effort to pack the court in 1937, scholars generally consider court expansion to be legal because the Constitution doesn’t specify the number of justices.

But those aren’t the only reforms under consideration. A handful of academics and liberal thinkers are arguing for drastic structural changes that would strip away power from the judiciary, embracing the approach that conservatives championed in the 1980s. In recent weeks professors at top-tier law schools have published articles advocating for jurisdiction stripping or other reforms that would chip away at the court’s power rather than simply alter its ideological makeup.

“If we got to the point where Congress was really seriously thinking about” Supreme Court reform, says Daniel Epps, a law professor at Washington University in St. Louis who’s studied it, “you’d see a lot of stuff be considered. You could end up with something that looks different from all of the proposals we’ve gotten so far or some new option that no one has ever thought of.”

Some liberal proponents believe jurisdiction stripping could help Democrats shield bold future legislation from damaging court battles. In theory a Democratic Congress could pass a health-care plan or a Green New Deal with a provision stipulating that the legislation lies outside the bounds of Supreme Court review.

Under variations of the jurisdiction-stripping proposal, Democratic lawmakers could also limit the ability of lower courts to review legislation or could confine legal challenges to geographic regions where courts are generally sympathetic. As Roberts noted in his memo, Article 3 gives the Supreme Court jurisdiction over constitutional issues with “such Exceptions, and under such Regulations as the Congress shall make.”

Still, the chances of jurisdiction stripping becoming enshrined in law anytime soon are slim. First, Democrats would have to win the presidency and gain control of both chambers of Congress. Even if they do so in November, potential reforms such as court expansion and term limits have attracted much more support.

Not to mention that any proposal limiting the court’s power would itself face constitutional challenges. If Congress passed one, lawsuits and a court battle would be inevitable. “It’s almost a certainty of any Supreme Court reform that we would be inviting the Supreme Court to push back at that limitation of its own powers,” says Samuel Moyn, a law professor at Yale. “That’s part of the ballgame.”

In July, Moyn and University of Chicago law professor Ryan Doerfler published a paper arguing that liberals should explore “disempowering reforms” that dilute the power of the judicial branch, as well as more mainstream “personnel reforms” such as court expansion. They argued that taking power away from the Supreme Court would be less nakedly political than court packing and less likely to devolve into a tit-for-tat cycle of partisan fighting.

They’re under no illusions about the likelihood that any of this will happen imminently. (“We’re academics,” Moyn says. “Most of what we do is profoundly ineffectual.”) But this month, Moyn is hosting a conference at Yale with the judicial advocacy group Take Back the Court to raise awareness about the broad menu of reform options. And Christopher Sprigman, a law professor at New York University who recently published his own paper endorsing jurisdiction stripping, says he’s discussed the proposal with Democratic congressional staffers.

Carrie Severino, president of the conservative Judicial Crisis Network, says Democrats are threatening to politicize the court through legally dubious means. “They’re willing to float any kind of extreme idea that comes up,” Severino says. “And if they were given the actual opportunity to pass any of these kinds of laws, I don’t think they’d hesitate.”

If Democratic legislators were to include a jurisdiction-stripping provision in a Green New Deal, it would be a remarkable reversal of recent history. When Republican lawmakers tried to use the measure in the 1980s, it was for socially conservative aims. In 2005, when Roberts was nominated to the Supreme Court, the Center for American Progress, a liberal think tank, criticized him for defending such “radical legislative proposals.”

For now, though, the reform idea with the most momentum appears to be court expansion, which Massachusetts Senator Ed Markey and former Attorney General Eric Holder have said they support. In the two and a half weeks since Ginsburg’s death, Take Back the Court, which advocates for court expansion, has received about $650,000 in donations, compared with $1.5 million over the previous two years.

“We have been fighting with one hand tied behind our back because funding has been so difficult to obtain,” says Aaron Belkin, the group’s director. “Now we can plan a little more for the future and not worry about organizational survival day to day.”

Belkin says he’s concerned that jurisdiction stripping would leave in place the court’s conservative majority for cases remaining within its purview. And liberal critics have pointed out that Republicans could use the same tactic to protect restrictions on abortion or on gay and transgender rights. But Sprigman says such anxiety is misplaced. Given long-term demographic trends in the U.S., he says, Democrats are well positioned to establish congressional majorities over the coming decades.

“Part of the reason the Republicans are packing the courts is they realize that democracy is slipping away from their control,” he says. “If you’re a liberal, you should put your chips on democracy, not on courts.”

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