Judiciary Archives - Columbia Law Review

Introduction If Congress seeks to check the judiciary, jurisdiction stripping is supposedly one of the most potent weapons in its legislative arsenal.[footnote]See, e.g., Stephen B. Burbank, The Architecture of Judicial Independence, 72 S. Cal. L. Rev. 315, 333–34 (1999) (describing jurisdiction stripping as a “powerful method[] of control” of judicial decisions); Barry Friedman, Reconstruction’s Political Court: The History of the Countermajoritarian Difficulty (pt. 2), 91 Geo. L.J. 1, 16 (2002) (describing jurisdiction stripping as one of the “weapons in Congress’s arsenal . . . to control the Court”); Christopher J. Sprigman, A Constitutional Weapon for Biden to Vanquish Trump’s Army of Judges, New Republic (Aug. 20, 2020), https://newrepublic.com/article/158992/biden-trump-supreme-court-2020-jurisdiction-stripping [https://perma.cc/3URM-NG8G] [hereinafter Sprigman, A Constitutional Weapon] (describing jurisdiction stripping as “a power that can be employed to rein in politicized courts and even to override judicial decisions”).[/footnote] 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.[footnote]See, e.g., Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy 431 (2022) (calling jurisdiction stripping a “tactical move[]” Congress might deploy against a hostile Supreme Court); Charles L. Black, Jr., The Presidency and Congress, 32 Wash. & Lee L. Rev. 841, 846 (1975) (arguing that congressional control of federal court jurisdiction is “the rock on which rests the legitimacy of the judicial work in a democracy”); Ryan D. Doerfler & Samuel Moyn, Democratizing the Supreme Court, 109 Calif. L. Rev. 1703, 1744 (2021) (“If properly calibrated, jurisdiction stripping statutes . . . could insulate precisely the attempted expansion of legislative rights from judicial limitation . . . while leaving judges power to protect other rights from unsuspected majoritarian excess.”); Christopher Jon Sprigman, Congress’s Article III Power and the Process of Constitutional Change, 95 N.Y.U. L. Rev. 1778, 1799–800 (2020) [hereinafter Sprigman, Congress’s Article III Power] (describing jurisdiction stripping as “a means by which substantial, durable democratic majorities can push back against constitutional entrenchment and the counter-majoritarian force of judicial supremacy”).[/footnote] To its critics, it poses a grave threat to the separation of powers—even “the moral equivalent of nuclear war.”[footnote]Laura N. Fellow, Note, Congressional Striptease: How the Failures of the 108th Congress’s Jurisdiction-Stripping Bills Were Used for Political Success, 14 Wm. & Mary Bill Rts. J. 1121, 1141 (2006) (internal quotation marks omitted) (quoting Limiting Federal Court Jurisdiction to Protect Marriage for the States: Hearing Before the Subcomm. on the Const. of the H. Comm. on the Judiciary, 108th Cong. 21 (2004) (statement of Martin H. Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern Law School)); see also Janet Cooper Alexander, Jurisdiction-Stripping in a Time of Terror, 95 Calif. L. Rev. 1193, 1198 (2007) (describing jurisdiction stripping as “the nuclear option”); Paul Stancil, Congressional Silence and the Statutory Interpretation Game, 54 Wm. & Mary L. Rev. 1251, 1271 (2013) (describing jurisdiction stripping as one of “the political branches’ few nuclear options”).[/footnote] 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.[footnote]See infra section I.D (describing jurisdiction-stripping measures proposed throughout American history).[/footnote] Activists and pundits, too, see jurisdiction stripping as a useful policy tool.[footnote]See, e.g., Adam Freedman, Congress Can and Should Return Jurisdiction Over Marriage to the States, Nat’l Rev. ( July 17, 2015), https://www.nationalreview.com/2015/07/obergefell-congress-same-sex-marriage-states/ [ https://perma.cc/99Q2-H283 ] (arguing that Congress should abolish federal courts’ jurisdiction over state laws concerning marriage); Phyllis Schlafly, Can Congress Limit Federal Court Jurisdiction?, Eagle F. ( Jan. 25, 2006), https://eagleforum.org/column/2006/jan06/06-01-25.html [https://perma.cc/5Z7B-GRPG] (describing jurisdiction stripping as effective and calling for Congress to use it to protect conservative priorities).[/footnote] Most recently, progressives have embraced it as a way to rein in an aggressively conservative Supreme Court.[footnote]See Kia Rahnama, The Other Tool Democrats Have to Rein in the Supreme Court, Politico (Oct. 26, 2020), https://www.politico.com/news/magazine/2020/10/26/amy-coney-barrett-confirmation-court-packing-jursidiction-stripping-432566 [https://perma.cc/QG4A-NKQP] (advocating jurisdiction stripping as a way to prevent the Supreme Court from ruling on abortion-related issues); Caroline Vakil, Ocasio-Cortez, Progressives Call on Schumer, Pelosi to Strip SCOTUS of Abortion Jurisdiction, The Hill ( July 15, 2022), https://thehill.com/homenews/house/3561533-ocasio-cortez-progressives-call-on-schumer-pelosi-to-strip-scotus-of-abortion-jurisdiction/ [https://perma.cc/S5QK-Z5L4] (“As we Democrats plan for further legislative action to protect and enshrine abortion rights . . . we urge the exercise of Congress’ constitutional powers under Article III to include language that removes the Supreme Court’s appellate jurisdiction over such legislation.” (internal quotation marks omitted) (quoting Letter from Jamaal Bowman, Cori Bush, Mondaire Jones, Kaialiʻi Kahele, Marie Newman, Alexandria Ocasio-Cortez, Ilhan Omar, Mark Takano, Rashida Tlaib & Bonnie Watson Coleman, U.S. Reps., to Nancy Pelosi, Speaker, U.S. House of Reps. & Chuck Schumer, Majority Leader, U.S. Sen. ( July 13, 2022) (on file with the Columbia Law Review ))); David Yaffe-Bellany, Liberals Weigh Jurisdiction Stripping to Rein in Supreme Court, Bloomberg (Oct. 6, 2020), https://www.bloomberg.com/news/articles/2020-10-06/to-rein-in-supreme-court-some-democrats-consider-jurisdiction-stripping (on file with the Columbia Law Review ) (noting that “[a] handful of academics and liberal thinkers” are “advocating jurisdiction stripping or other reforms that would chip away at the court’s power”); Joshua Zeitz, How the Founders Intended to Check the Supreme Court’s Power, Politico ( July 3, 2022), https://www.politico.com/news/magazine/2022/07/03/dont-expand-the-supreme-court-shrink-it-00043863 [https://perma.cc/85XU-HBFU] (arguing that jurisdiction stripping, while risky, might be necessary to tame the Supreme Court’s assertion of “largely unchecked power”).[/footnote] 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.[footnote]See infra section I.D (describing jurisdiction-stripping measures proposed throughout American history).[/footnote] 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?[footnote]Several scholars have alluded to some of the practical problems with jurisdiction stripping, but none have done so in a comprehensive or systematic way. See Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895, 910–11 (1984) (arguing that “jurisdiction-stripping laws are not truly effective means for implementing congressional dissatisfaction with Court rulings”); Michael Stokes Paulsen, Checking the Court, 10 N.Y.U. J.L. & Liberty 18, 59–62 (2016) [hereinafter Paulsen, Checking the Court] (questioning the efficacy of jurisdiction stripping); Martin H. Redish, Congressional Power to Regulate Supreme Court Appellate Jurisdiction Under the Exceptions Clause: An Internal and External Examination, 27 Vill. L. Rev. 900, 925 (1982) (noting the problem that jurisdiction stripping would “lock[] in” objectionable precedents); Herbert Wechsler, The Courts and the Constitution, 65 Colum. L. Rev. 1001, 1006 (1965) (noting that jurisdiction stripping might “freeze the very doctrines that had prompted its enactment”). The most thorough treatment was recently laid out in the Final Report of President Biden’s commission charged with studying Supreme Court reform. See Presidential Comm’n on the Sup. Ct. of the U.S., Final Report 159–69 (2021), https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.pdf [https://perma.cc/3DA4-CMBK] [hereinafter Final Report].[/footnote] This Essay argues that—contrary to what nearly everyone has assumed[footnote]See infra section I.D.[/footnote]—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.[footnote]See infra section II.A.1.[/footnote] In parsing these various scenarios, we largely ignore whether and to what extent Congress should possess unfettered power over jurisdiction.[footnote]These questions have dominated the immense literature in this area. See infra section I.B.[/footnote] 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.[footnote]See infra sections I.B–.C.[/footnote] 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.[footnote]See infra section III.A .[/footnote] 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.[footnote]See infra section III.B .[/footnote] And Congress can put the judiciary on notice that it may be overstepping its bounds.[footnote]See infra section III.B .[/footnote] 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.[footnote]For a sampling of the recent literature on Supreme Court reform, see William Baude, Reflections of a Supreme Court Commissioner, 106 Minn. L. Rev. 2631, 2631 (2022) (analyzing suggested court reform proposals, including term limits, court packing, and jurisdiction stripping); Joshua Braver, Court-Packing: An American Tradition?, 61 B.C. L. Rev. 2747, 2750–52 (2020); Adam Chilton, Daniel Epps, Kyle Rozema & Maya Sen, Designing Supreme Court Term Limits, 95 S. Cal. L. Rev. 1, 4–5 (2021); Doerfler & Moyn, supra note 2, at 1706 (comparing different statutory reforms, including partisan balancing and jurisdiction stripping); Daniel Epps & Ganesh Sitaraman, The Future of Supreme Court Reform, 134 Harv. L. Rev. Forum 398, 398 (2021), https://harvardlawreview.org/wp-content/uploads/2021/05/134-Harv.-L.-Rev.-F.-398.pdf [https://perma.cc/6NCA-GP77] (arguing that court reform is possible despite current political realities); Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. 148, 152 (2019) (proposing a “Balanced Bench” and “Supreme Court Lottery”); Daniel Epps, Nonpartisan Supreme Court Reform and the Biden Commission, 106 Minn. L. Rev. 2609, 2611 (2021); Daniel Epps & Ganesh Sitaraman, Supreme Court Reform and American Democracy, 130 Yale L.J. Forum 821, 824 (2021), https://www.yalelawjournal.org/pdf/EppsSitaramanEssay _uongtzmp.pdf [https://perma.cc/LL52-9H6V] [hereinafter Epps & Sitaraman, Supreme Court Reform and American Democracy] (identifying the Court’s legitimacy challenges and proposing structural reform); Daniel Hemel, Can Structural Changes Fix the Supreme Court?, 35 J. Econ. Persps. 119, 120 (2021); Michael J. Klarman, The Supreme Court, 2019 Term—Foreword: The Degradation of American Democracy—and the Court, 134 Harv. L. Rev. 1, 8 (2020) (examining the Court’s contribution to democratic decline); Stephen E. Sachs, Supreme Court as Superweapon: A Response to Epps & Sitaraman, 129 Yale L.J. Forum 93, 95–100 (2019), https://www.yalelawjournal.org/pdf/Sachs_SupremeCourtas Superweapon_gc7vgqfu.pdf [https://perma.cc/7ZE8-29CC] (assessing “Balanced Bench” and “Supreme Court Lottery” reform proposals); Eric J. Segall, Eight Justices Are Enough: A Proposal to Improve the United States Supreme Court, 45 Pepp. L. Rev. 547, 550 (2018); Sprigman, Congress’s Article III Power, supra note 2, at 1782–84 (arguing that Congress can strip courts of “most questions of federal law”).[/footnote] 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.[footnote]See, e.g., Tejas N. Narechania, Certiorari in the Roberts Court, 67 St. Louis U. L.J. 587, 604 (2023) (noting “the Roberts Court’s historically unique proclivity to grant review in cases to consider whether to overrule precedent”).[/footnote] 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.[footnote]See Final Report, supra note 8, at 1–4. Those options included jurisdiction stripping, and the Commission’s Final Report provides the most thorough treatment of the practical problems with jurisdiction stripping to date. See supra note 8.[/footnote] 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.[footnote]See, e.g., Gunther, supra note 8, at 898 (noting that “in this area as in others, it is useful—and often difficult—to bear in mind the distinction between constitutionality and wisdom”); Redish, supra note 8, at 927 (arguing against “confus[ing] issues of constitutionality with questions of propriety and wisdom”).[/footnote] 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.[footnote]See, e.g., Buffington v. McDonough, 143 S. Ct. 14, 18–22 (2022) (Gorsuch, J., dissenting from the denial of certiorari) (criticizing a “broad reconstruction” of Chevron ); Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Alito, J., concurring in the judgment) (expressing willingness to reconsider the nondelegation doctrine); Jarkesy v. Sec. & Exch. Comm’n, 34 F.4th 446, 449 (5th Cir. 2022) (finding an unconstitutional delegation of legislative power), cert. granted, 143 S. Ct. 2688 (June 30, 2023) (mem.) (No. 22-859); Philip Hamburger, Is Administrative Law Unlawful? 12 (2014); Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 919 (2017); Andrew S. Oldham, The Anti-Federalists: Past as Prologue, 12 N.Y.U. J.L. & Liberty 451, 456–57 (2019) (arguing that Anti-Federalist concerns about executive power foreshadowed modern debates about the administrative state).[/footnote] 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.[footnote]See Doerfler & Moyn, supra note 2, at 1721.[/footnote] 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.

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