Jurisdiction Stripping Doesn't Work

It's tempting, it's in the Constitution, but you can't overturn constitutional decisions you don't like by stripping the courts of jurisdiction

Back in the day, when conservatives were sure they would never get a Supreme Court majority to actually overturn Roe v. Wade, when they assumed everyone they appointed might turn out to support compromises to preserve abortion rights, the notion of “jurisdiction stripping” was a popular right wing meme. The Constitution provides that Congress can create whatever federal courts with whatever jurisdiction it wishes to, and can also strip the Supreme Court of the jurisdiction to hear particular cases or classes of cases.

The key point, as is often the case in this kind of situation, is that it only took a congressional majority to do it. So if the Republicans controlled Congress and the White House, they could pass a law prohibiting the Supreme Court (or even the federal courts generally) from deciding any abortion cases. And then state court decisions flouting Roe could not be appealed and would become the law of the land.

Republicans never passed such a law even when they had control of the government. And while I am not totally sure what the thinking was, I suspect that their lawyers told them it wouldn’t work. All jurisdiction stripping does is exactly what the name implies- it prevents a court from hearing a case. It doesn’t do anything else. So, in the abortion context, it wouldn’t overturn Roe, and in fact, lower court judges might decide that they had to follow Roe no matter what they thought of it because it was Supreme Court precedent. Or you might get different abortion standards in different states, but no real way to unify the precedent. You could even see one state court refusing to recognize another state’s courts’ interpretation of the Constitution on abortion, saying it was inconsistent with Roe. And, of course, if Republicans later got control of the Supreme Court, it would have no jurisdiction to overturn Roe, which is what they really wanted.

This is the problem with jurisdiction stripping. It doesn’t work when you are trying to overturn a Supreme Court ruling. It wasn’t intended to. The purpose of the constitutional provision allowing Congress to state the jurisdiction of the Supreme Court was to allow Congress to insulate particular cases or classes of cases from judicial review, not to allow Congress to overturn Supreme Court decisions. And that is how the power works: for instance, in a very distressing trend, Congress has stripped the courts of jurisdiction to hear various forms of immigration appeals from deportees. That is very offensive, but it works as intended- a migrant brings an appeal to the Supreme Court, which dismisses it because it cannot hear appeals in that kind of case.

The key point to understand, however, is that Congress can’t use that power to change the law. If the lower courts or the immigration courts decide on a particularly migrant-friendly construction of immigration law, the stripping of Supreme Court jurisdiction won’t change that; indeed, the only way to change it would be to invoke Supreme Court jurisdiction and have that Court reject the rule.

Now that the Supreme Court is controlled by conservatives, periodically, it is liberals who now call for jurisdiction stripping. For instance, some liberals claim that we should strip the Court of jurisdiction to review voting rights legislation. Again, this would not prevent state courts or lower federal courts from striking down voting rights laws; it would simply preclude the Court from reviewing any adverse decision. Indeed, it could be even worse than the world created by the Supreme Court’s voting rights rulings, because you might have a situation where vote suppression and geerrymandering is legalized by state Supreme Courts in conservative states while being prohibited in the liberal states, unilaterally disarming the Democrats and giving Republicans a huge structural advantage in elections.

The bottom line is you can’t fix constitutional law with jurisdiction stripping. It seems attractive to people who don’t think a lot about the issue, but disintegrates upon closer inspection.