Introduction
If Congress seeks to check the judiciary, jurisdiction stripping is supposedly one of the most potent weapons in its legislative arsenal.
The underlying logic is simple enough: Depriving a court of power to hear a case entirely prevents the court from producing a bad decision. Jurisdiction stripping would seemingly let Congress legislate and the President act without fear of judicial second-guessing and would prevent federal courts from intruding on states’ prerogatives. To its proponents, jurisdiction stripping offers the ultimate democratic check on unelected and unaccountable judges.
To its critics, it poses a grave threat to the separation of powers—even “the moral equivalent of nuclear war.”
Both sides agree, though, that jurisdiction stripping is a powerful armament.
Working on this assumption, members of Congress have, at various points in American history, proposed bills to deprive federal courts of jurisdiction over hot-button issues such as school desegregation, abortion, school prayer, and same-sex marriage.
Activists and pundits, too, see jurisdiction stripping as a useful policy tool.
Most recently, progressives have embraced it as a way to rein in an aggressively conservative Supreme Court.
And while scholars have extensively debated jurisdiction stripping, that conversation has focused almost exclusively on questions about its constitutionality and taken for granted that jurisdiction stripping, if permissible, is a mighty power.
Yet these debates almost entirely gloss over a fundamental question: Would jurisdiction stripping actually work? That is, even if the Constitution gives Congress broad power over federal courts’ jurisdiction, could Congress successfully wield that power to compel its desired policy outcomes?
This Essay argues that—contrary to what nearly everyone has assumed
—the short answer is “no.” As a strategy for directly circumventing hostile courts, jurisdiction stripping will in practice often prove pointless or even backfire. To the extent that jurisdiction stripping can prove beneficial in some contexts, it does so only in subtle, indirect, and unreliable ways. It is thus a far weaker tool for policy reform than conventional wisdom suggests.
To prove this thesis, we work through various scenarios in which Congress might try to circumvent or countermand judicial precedents. It might, for example, strip courts of jurisdiction over a particular set of legal issues in the wake of an objectionable decision. Alternatively, it might attempt a preemptive strike—trying to protect certain precedents by stripping the Supreme Court of jurisdiction before it has the chance to overrule them. We also explore differences between jurisdiction stripping over issues that primarily emerge with respect to state law versus those that pertain to federal statutes and programs. Across all these contexts, we show that direct attempts to combat undesirable precedents (or prevent courts from issuing unfavorable decisions in the first place) will fail in most circumstances—at least beyond the very short term. Sometimes, juris-diction stripping might even exacerbate the problem that it purports to solve.
In parsing these various scenarios, we largely ignore whether and to what extent Congress should possess unfettered power over jurisdiction.
Instead, we ask only whether—assuming Congress has some power to regulate jurisdiction—Congress could accomplish its goals. In asking that question, the Essay operates within current jurisprudence and mainstream scholarly views about Congress’s power. Under this view, Article III itself imposes few (if any) limitations on Congress’s power, although other constitutional provisions (such as the Due Process Clause) might curb that power.
Even under this fairly broad conception of Congress’s authority, and regardless of the context or how Congress manipulates the levers at its disposal, jurisdiction stripping simply is not the power that its proponents hope or its critics fear.
This is true for various reasons that depend on the particular context in which Congress seeks to strip jurisdiction. Sometimes, jurisdiction stripping will prove pointless because it will simply empower other actors (such as state courts) who will not share Congress’s policy preferences. Sometimes, jurisdiction stripping will prove ineffective because the Court itself will refuse to go along. Whatever the “right” answer about the meaning of Article III, the Court in practice has sufficient doctrinal tools at its disposal to overcome the strip if it sees Congress as subverting judicial authority. Indeed, case law stretching over more than a century strongly suggests that the Court would find a way around a jurisdiction strip that sought to eliminate any possibility of Supreme Court review. And in other situations, jurisdiction stripping will fail because Congress cannot accomplish its goals without the active participation of the judiciary—for example, in implementing a comprehensive regulatory program. We explore all these scenarios in detail below, but the overarching point is that myriad practical difficulties mean that Congress cannot achieve its goals by getting courts out of the way.
Nevertheless, jurisdiction stripping might have some value as a policy tool. But its potential is limited and contingent. While direct efforts to undo or prevent disfavored rulings (or to entrench favorable precedent) will mostly prove fruitless, jurisdiction stripping could sometimes help Congress achieve its goals indirectly. It can allow Congress to sequence decisions—tweaking when and where cases are heard—and, relatedly, to buy time for a new federal program to become entrenched. Extra time can make all the difference. It created space for Military Reconstruction to take hold in the South after the Civil War, for the government to combat inflation during World War II, and even for a nascent labor movement to gain traction in the 1930s.
Congress also can deploy jurisdiction stripping to make a powerful statement to the public about an issue’s importance and thus raise its political salience.
And Congress can put the judiciary on notice that it may be overstepping its bounds.
We reinterpret several jurisdiction stripping success stories as resting on these subtle, indirect benefits rather than on any direct attempt to keep courts at bay forever. But even under specific and narrowly drawn circumstances, these indirect benefits are not inevitable, and Congress’s efforts could easily backfire.
By exploring a policy question that scholars and legislators overwhelmingly have neglected, this project sheds light on several important conversations. Perhaps most obviously, it contributes to the growing debate about court reform.
Supreme Court confirmation battles continue to grow more heated, and an increasingly conservative Supreme Court has begun to revisit wide swaths of legal questions that scholars, policymakers, and the general public have long considered settled.
The left has responded with a sudden surge of interest in reform proposals, and President Joseph Biden tasked a commission comprising a number of distinguished legal scholars with examining the various options.
Although major reform appears unlikely in the very near future, the reform debate will endure. Understanding what might work—and what would not—will be crucial if major reforms ever become a more tangible possibility.
This Essay also provides new perspective on longstanding debates about Congress’s power to regulate jurisdiction. Though it does not advance a particular theory about Congress’s power under the Constitution, its analysis has implications for those debates. Even among those who embrace a broad conception of Congress’s Article III power, most worry that jurisdiction stripping is unwise.
Recognizing jurisdiction stripping’s practical limitations shows that those concerns are overblown. Rather than a nuclear weapon capable of decimating the separation of powers, jurisdiction stripping is a more subtle tool that Congress can use to reclaim policymaking space in response to a power grab by the Court.
Finally, this project implicates enduring theoretical debates about the nature of precedent, the parity of state and federal courts, and the permissible scope of non–Article III adjudication. These debates also have gained new salience. They squarely address questions that scholars, judges, and some Supreme Court Justices have raised about the constitutionality of certain agencies and even the administrative state writ large.
The Essay proceeds in three parts. Part I offers a high-level overview of the voluminous scholarship on jurisdiction stripping as well as the current state of the jurisprudence. We also summarize arguments that tout jurisdiction stripping as a means for Congress to achieve policy outcomes. This all sets the stage for Part II, which begins by laying out the various ways that Congress might try to use jurisdiction stripping to effectuate substantive policy goals. It then considers the best-case scenario for when jurisdiction stripping might work as well as the situations in which it almost certainly will fail. Part III then synthesizes the findings to argue that juris-diction stripping for the most part will fail as an attempt to directly prevent or countermand judicial decisions. It can work as a policy tool but only indirectly. Congress can use jurisdictional levers to sequence decisions and raise the salience of issues, but those benefits remain highly contingent. In other words, jurisdiction stripping is weak, imprecise, and unpredictable—hardly the silver bullet that nearly everyone assumes.
The Essay concludes by discussing the larger lessons of its analysis. Recognizing jurisdiction stripping’s failures sheds new light on scholarly conversations by reframing jurisdiction stripping as a tool for dialogue between the branches instead of an assault on the constitutional order. Our conclusions also have practical implications for court reform debates, undermining arguments that reformers should prefer “disempowering” strategies over structural and institutional changes.
More broadly, our conclusions suggest that those who believe the Court has lost sight of fundamental constitutional values should not look for easy answers hidden in the constitutional text. Quite simply, there are no constitutional magic tricks.