The Other Tool Democrats Have to Rein in the Supreme Court

By Kia Rahnama
·8 min read

After the fast-tracked confirmation process of Supreme Court Justice Amy Coney Barrett, Democrats have offered up a now-familiar solution to a court dominated by conservatives: packing the court if they win the White House and the Senate in 2020. The idea was famously endorsed by President Franklin D. Roosevelt, when his New Deal initiatives faced opposition from a conservative bench. In response, Roosevelt simply tried to add more liberal justices to the court, which would have paved the way for decisions more favorable to his administration. His court-packing bill ultimately failed in Congress, but today, the idea has resurfaced with new popularity among liberals—even if it remains unpopular among most Americans.

But there might be another way to block a hard, sudden swing to the right on the Supreme Court. Legal theorists largely agree that the Constitution actually allows Congress to restrict the Supreme Court’s authority to hear cases on a specific subject matter, such as abortion. Lawmakers have tried to use this power by passing legislation declaring certain topics off-limits for the court, but they have failed to rally the necessary majorities to pass those bills. Now, with what some see as a nakedly political play by Republicans to shape the ideology of the court, the American public and lawmakers might be more open to such a strategy, which might be a more palatable option to Americans for safeguarding precedent on issues like abortion.

The legislative maneuver could come in handy after the election. If Democrats keep control of the House and take over the Senate in November, they could be the first to put this little-known power of Congress to the test.

Article III of the U.S. Constitution lays out not only the structure of the Supreme Court but what cases the court has the authority to decide—in other words, the court’s “jurisdiction.” The Constitution also separates the court’s jurisdiction into two distinct categories. For some rare cases that are highly-sensitive to national interest, such as cases involving U.S. diplomats or disputes among the states, the parties involved can take the dispute directly to the Supreme Court, skipping all lower courts and benefiting from what is called the court’s “original jurisdiction.” For everything else, the Supreme Court is actually not given the power to decide the case on its own, but instead is granted only the power to review a lower’s court’s decision. This is what is referred to as the court’s “appellate review” jurisdiction.

Although the court’s original jurisdiction is clearly spelled out in this part of the Constitution, with a clear list of the limited types of cases the court can decide on its own, the text takes an indirect route to explain the court’s appellate jurisdiction. And this section also contains something known as the Exceptions Clause, which gives Congress the power to make exceptions to the court’s appellate jurisdiction. In the original text: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

Stripping the Supreme Court of jurisdiction over certain classes of cases, such as abortion cases, would not mean that Americans would not have access to a judicial tribune for resolving cases. In the absence of Supreme Court jurisdiction over such cases, the final say on these issues would rest with the highest state courts or any of the 13 federal courts of appeal, each of which have jurisdiction over certain parts of the U.S. territory.

It is perhaps the strongest tool in the legislative arsenal that has not yet been used in American history and is fodder for many disputes among giants of the legal academy. If the Constitution gives Congress the power to make exceptions to the court’s appellate jurisdiction, can Congress pass a law to prevent the highest court from reviewing lower courts’ decisions on certain subject matters?

Not only has the legal academy leaned towards an affirmative answer, but Congress itself on several occasions has attempted to exercise this power. During the antebellum period, those in favor of state interposition or nullification—the belief that federal laws could not be imposed on the states without their consent—raised the idea of stripping the Supreme Court of its jurisdiction over all state court decisions interpreting federal laws. The brash polemicist John C. Calhoun was a leading proponent of this argument. In 1827, Calhoun, then vice president, began lobbying congressional members to introduce legislation that would take away the Supreme Court’s power to review state courts’ decisions interpreting federal laws. Largely due to his efforts, the House Judiciary Committee in 1831 issued a report calling on Congress to do just that. Ultimately, those in favor of preserving the Supreme Court’s power over state courts were able to convince the House to not take up any such legislation.

In 1957, and at the height of the Second Red Scare, the Supreme Court was pitted against a staunchly anti-Communist Republican majority in Congress. The court, in a series of decisions, drastically limited the Republicans’ efforts to investigate and punish Communist sympathizers, e.g. by holding that government agencies could not discharge employees deemed to be disloyal, by preventing federal prosecutors from keeping relevant evidence hidden from the courts in criminal cases if such evidence implicated national security, and by greatly increasing the court’s purview over how congressional investigations were conducted.

In response, Senator William Jenner introduced legislation that would have stripped the Supreme Court’s appellate jurisdiction over such cases and others involving subversive activities. Despite the Senate’s serious consideration, the bill was ultimately defeated, to no small degree because then-President Dwight Eisenhower’s attorney general opposed its passage.

The next period of Court-Congress high drama arrived in 1964, when a congressional proposal aimed to remove the Supreme Court’s jurisdiction over cases involving apportionment of representation in state legislative bodies. This time, Congress was reacting to the Supreme Court decisions in Baker v. Carr and Reynolds v. Sims—two cases through which the court formally introduced the idea of “one person, one vote” and prevented states from apportioning seats in their state legislatures in a way that clearly discriminated against their Black population. The bill passed the House but was not taken up by the Senate.

The 1980s proved to be yet another highly contentious period in the court’s history, when a string of cases touching on sensitive social issues greatly increased public pressure on the court. As a result, up to 30 bills were introduced in Congress to strip the court of its jurisdiction on cases involving flag burning, school prayers, and abortion. But once again, legislative support for such bills faltered after Reagan’s attorney general at the time, William French Smith, wrote letters to the House and Senate Judiciary Committee communicating the DOJ’s hesitation on any legislation that would restrict Supreme Court review based on subject matter.

Although those letters played a big role in the bills’ ultimate demise, Reagan’s DOJ did not reach its final conclusion easily. In fact, in a bizarre twist, the current chief justice of the Supreme Court, John Roberts, who was serving as a special assistant to the Attorney General in 1981, was one of the main dissenters to the DOJ’s position. Roberts himself penned a memo for the department arguing in favor of Congress’ power to remove the court’s jurisdiction over certain subjects—reiterating the arguments advanced by many other conservative legal thinkers, including Antonin Scalia.

Even if such a law passes Congress, it could throw the U.S. system of checks and balances into chaos. It is still unclear what would happen if the Supreme Court itself is called upon to review the constitutionality of the law and finds it to be unconstitutional. Although many believe that Congress and the White House could simply ignore such a decision, the Supreme Court’s refusal to simply accede to a jurisdiction-stripping law would impose a tough test on the political branches.

Regardless of these residual ambiguities, jurisdiction-stripping has its advantages over court-packing. Packing the court would involve confirming new justices that upon confirmation would be subject to life tenure and protection against removal, subject only to impeachment for cause. This makes the court-packing decision rather difficult to reverse. Jurisdiction-stripping on, the other hand is achieved through normal legislative procedures, and can therefore be easily reversed should the voters decide to change the political makeup of Congress and the White House again. In this way, jurisdiction-stripping measures are far more responsive to the will of the electorate.

Despite these legal uncertainties, the main impediment to passing such laws has always been political and not legal. In all instances, the party in control of Congress ultimately faced a reluctant White House which, at the last minute, saw the political damage to the administration’s credibility as serious enough to dissuade them from working with their party in Congress to move jurisdiction-stripping legislation through. Today, though, many people could see the confirmation of Barrett and the sudden rightward shift of the court as an overtly political takeover, and thus might be more disposed to viewing jurisdiction-stripping legislation as an antidote to hostility rather than hostility itself.

If Democrats are in control of Congress after the 2020 election, it might all come down to whether the White House would stop them.