How to Save the Law Without Packing the Court

There is another, better, way to rein in partisan judges: by stripping the Supreme Court, and also the lower federal courts, of jurisdiction where Congress does not want partisan judges second-guessing particular decisions—especially where, as is so often true, the Constitution does not speak directly to an issue and courts are making political choices rather than legal judgments. That strategy, while perhaps a bit more difficult to reduce to a sound bite or a campaign slogan, gets directly at the problem of partisan judicial activism. It is also a more focused and less overtly politicized approach compared with court packing.

Perhaps the most powerful argument for jurisdiction stripping is that the Constitution clearly permits it. Article III, section 1 of the Constitution gives Congress complete discretion on whether to create the lower federal courts, a power that Congress has used from the founding to limit lower courts’ jurisdiction. And Article III, section 2, clause 2 explicitly empowers Congress to make “exceptions” to the Supreme Court’s appellate jurisdiction—that is, to pick and choose for approximately 99 percent of the Supreme Court’s total docket what cases the Court has the power to hear. As I explain in a law review article, to be published in December in the New York University Law Review, under its Article III authority, Congress can remove the Supreme Court’s appellate jurisdiction over particular cases, or particular issues, largely without constraint.

Congress also has the power to limit the jurisdiction of state courts to hear federal questions, including constitutional claims. But on a practical level, it would not matter much even if state courts still hear federal constitutional claims. State courts lack both the authority to enjoin federal officials and the practical institutional power to counter a determined federal government.

The implications of Congress’s Article III power are potentially profound. Congress’s power over courts’ jurisdiction means that it can claim for itself authority to interpret the Constitution in particular cases. In the short term, it is a strategy that Democrats can use to rein in the partisan federal courts that the four-decade-long GOP obsession with appointing right-wing partisans to the federal bench has created. But the ultimate promise of jurisdiction stripping isn’t as a short-term stratagem to restore the courts’ partisan balance. It is a deeper remedy that can help put an end to the unhealthy situation in which Americans look to federal courts to resolve every important political question.

What does that mean in practice? A couple of examples might help.