With the leak of a draft opinion in Dobbs v. Jackson Women’s Health Organization formally overruling Roe v. Wade, progressives’ worst fears about an ever more reactionary Supreme Court appear set to come true.
After decades of chipping away at abortion rights, the court’s conservatives—now a rock-solid majority—seem ready to complete that ideological project openly and even triumphantly.
In itself, such a decision would be catastrophic, especially for those who don’t have the resources or the personal freedom to travel vast distances to receive basic health care. The draft opinion’s unapologetic tone also presages similarly harmful outcomes on issues ranging from contraception to same-sex marriage to immigration to climate change. Indeed, some of these outcomes are already here.
With this parade of horribles about to be realized, progressives are returning with even greater urgency to the question of what to do about the conservative leviathan that is the Supreme Court. As in earlier moments, the temptation is merely to replace that leviathan with a progressive one, packing the court with benevolent justices who will wield the institution’s power for good. Real progress, though, requires the beast to be slayed, stripping the court of its authority and returning our society’s most pressing and important questions to the democratic arena—where progressive causes, backed by popular movements, stand the best chance.
Considering the history of the federal right to abortion helps to reveal the severe limitations of relying on a juricentric approach to securing fundamental rights. Just four years after the court recognized that right in Roe, a nearly identical court declared in Maher v. Roe that the state was under no obligation to make abortion economically feasible. Even at the height of its support for reproductive health care, in other words, the court ensured that the right to abortion would be one in name only for millions of women without the financial means.
The Supreme Court’s refusal to guarantee meaningful, positive rights to US citizens (let alone noncitizens) goes far beyond abortion. Even during the Warren Court era, the historical anomaly to which so many defenders of juristocracy cling, liberal justices failed to extend constitutional protections to America’s economic underclass, thereby abandoning an ideal of substantive equality in favor of formal equality.
In addition to failing to provide positive rights, the Supreme Court has, throughout its history, actively impeded Congress from providing such rights through ordinary legislation. Most famously, the court struck down the Civil Rights Act of 1875 in the Civil Rights Cases, undercutting Congress’s primary effort to guarantee the rights of Black Americans in the aftermath of the Civil War. Much more recently, in a decision hailed by liberal media as “upholding” the Affordable Care Act, the Supreme Court invalidated Congress’s expansion of Medicaid, once again depriving poor people of the affirmative right to health care they are so desperately owed.
What this history suggests is that the most plausible path to a meaningful right not only to abortion but also to education or racial equality or climate justice is through federal legislation rather than judicial edict. As history also suggests, such progressive legislation would face eventual judicial resistance—unless Congress were to strip the Supreme Court (and other courts) of its authority to decide on the constitutionality of that law.
By invoking its power under Article III to make “exceptions” to the Supreme Court’s jurisdiction over most cases and its total discretion over the existence of “inferior” federal courts, Congress could—and should—insulate legislation like the Women’s Health Protection Act from judicial invalidation by including a provision withdrawing from any court the right to consider challenges to the constitutionality of that law. Deploying such jurisdiction-stripping provisions broadly would ensure that the meaning of our Constitution and, more fundamentally, what rights exist within our constitutional order would be determined by (at least somewhat) democratically responsive officials in Congress and the White House, as opposed to democratically insulated philosopher kings.
Removing issues like health care or climate from the courts would have the further advantage of placing responsibility at the feet of elected officials. Rather than speculating about whether some judicial nominee would respect stare decisis, “moderates” in the Senate would have to explain why they do or do not support a right to choose. Similarly, rather than promising, as President Biden has since his election, to enact federal abortion legislation if the Supreme Court overrules Roe, he and his party would have to explain why they are not protecting women’s reproductive freedom right now.
Finally, although jurisdiction stripping is often characterized as an alternative to court expansion, the two are not mutually exclusive. Given its history, though, merely adding progressive justices to the Supreme Court would yield limited benefits in the short term and leave in place an undemocratic behemoth that would wreak further havoc in the end.
Let’s start with the obvious: I’m in favor of jurisdiction stripping, weather stripping, or stripping while dancing on a pole if that’s what it takes to stop the Supreme Court from turning the clock back to 1859. I’m in favor of using any and all nonviolent means available to stop the court’s current embrace of bigotry and misogyny. If jurisdiction stripping reminds the court that it is a coequal branch of government and not a judicial clergy, superior to the elected branches, then I’m all for it.
The legal theory behind what has come to be known as jurisdiction stripping is sound. The Supreme Court gave itself the power to declare unconstitutional both laws passed by Congress and orders signed by the president in the 1803 case Marbury v. Madison. This power of judicial review was not written into the Constitution nor contemplated during its ratification battle. The Supreme Court invented it, and that means Congress can, in theory, take it away. Congress can pass a law and then exclude that law from judicial review. Congress can, on its own authority, determine what is constitutional and what is not.
This works in theory. My concern is that the Supreme Court will simply ignore attempts to limit its power, and all the time and effort spent convincing politicians that jurisdiction stripping is the answer will leave us exactly where we started: with a high court untroubled by the desires of the American people. Congress will pass a law and include a stipulation saying, “This law is not open for Supreme Court interpretation.” Then the Supreme Court will say, “No. In fact, this law passed by Congress is unconstitutional.” The Supreme Court can, and likely will, use judicial review to reject congressional attempts to get around judicial review.
What happens next depends a lot on what kind of law Congress attempts to shield from the Supreme Court’s interpretation of the Constitution. If it’s the kind of law that requires the states to do, or not do, something, the states that agree with Congress will go along with Congress, while the states that agree with the Supreme Court will refuse to follow the “unconstitutional” congressional mandate. Think about jurisdiction stripping in the abortion context: Congress can pass a law that protects a woman’s right to choose and prohibits the Supreme Court from reviewing it. The religious fundamentalists will ask the Supreme Court to review the law anyway. It’s likely the forced-birth caucus on the Supreme Court will decide that Congress cannot strip its power and then determine, again, that Congress doesn’t have the power to protect women’s rights. Texas will listen to the court and outlaw abortions; California will listen to Congress and allow them. Nothing will have been solved.
In contrast, the types of laws that are ripe for jurisdiction stripping are those whose implementation the president, as head of the executive branch, has full control over. An environmental regulation on power plants might work. The Supreme Court might say the regulation is unconstitutional, but when armed agents of the federal government come to shut down the delinquent power plant, there’s little a Supreme Court decision can do to stop them.
But think about what I’m saying and play the tape all the way to the end. Jurisdiction stripping works only if a president, in command of an army, is willing to defy the Supreme Court’s view of itself. That is a dangerous game to play, especially if the goal is to “restore” democracy.
Jurisdiction stripping—the kind that doesn’t lead to a military takeover—requires the Supreme Court to willingly relinquish some of its power but does not reform or incentivize the court to relinquish that power. That’s why I favor court expansion instead. The problem, to my mind, is not that the Supreme Court is powerful but that we’ve decided to let conservative extremists wield that power, unchecked, for life.
But imagine this: Instead of starting with jurisdiction stripping, add 20 justices to the court who believe that jurisdiction stripping is constitutional—and then pass legislation not subject to judicial review. Or add 20 justices who believe the Supreme Court should have a code of ethics—and then pass ethics reform. Or give me 20 justices who believe that term limits can be legislated without a constitutional amendment—and then pass term limits legislation. The court needs to be expanded with people who think the court can be restrained, before attempting to restrain the court. You shoot the bear with the tranquilizer dart and then put the tracking collar on it; doing it the wrong way around is how well-meaning folks end up as dinner.
Right now, the law is whatever five Supreme Court justices say it is. The way to fix this is not to pass new laws, as those five people will just ignore laws they don’t like anyway. The solution is to flood the court with people who will make better decisions about laws. The Supreme Court must be reformed before it can play well in the sandbox with the other two branches of government.
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