Setting boundaries

After Supreme Court Justice Anthony Kennedy read his decision in Obergefell v. Hodges forcing states to recognize same-sex marriage in 2015, the late Justice Antonin Scalia piped in with a dissent calling the court a “threat to American democracy.” Many others agreed and began proposing ways to constrain the court.

Now, with the surprising victory of Donald Trump and the appointment of a new, conservative justice, those proposals are on the back burner. And yet, just as the time to buy stocks is when their price is low, this may be the time—for those who think long-term—to push changes that conservatives could back on principle and liberals, thinking pragmatically, might not oppose so vigorously.

Members of Congress can most readily oppose the court by passing laws in response to court decisions they don’t like—but when the Supremes establish a new constitutional right as in Obergefell, laws aren’t sufficient. Congress also can impeach justices for “high crimes and misdemeanors,” so calls for impeachment of both liberal and conservative judges are common—but Congress has pulled the trigger only once.

A tougher option: Congress can deploy an attack on the scope of the court’s rule called “jurisdiction stripping.” Article III of the Constitution created the judiciary and defined its boundaries. Section 2 of the article reads in part, “The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” That “exceptions clause” is what gives Congress some degree of control over the court, where it can pass a statute removing the federal courts’ power to review statutes in the areas Congress specifies.

Back in 1869, the Supreme Court recognized Congress’ jurisdiction-stripping power in the case Ex parte McCardle. Federal officials had arrested Mississippi newspaperman William McCardle over his editorials criticizing Reconstruction. McCardle went before the military courts that ruled the Confederate states at the time, and officials charged him with inciting insurrection. He appealed his case to the Supreme Court, arguing he had federal habeas corpus rights. Before the justices could issue a decision, Congress stripped the court of jurisdiction in the case. Acknowledging Congress’ power to limit its jurisdiction, the court said it could not rule in McCardle’s case.

Since then Congress has made fleeting attempts to remove the Supreme Court’s jurisdiction on controversial issues. In 1981, U.S. Sens. Jesse Helms, R-N.C., Orrin Hatch, R-Utah, and a few other lawmakers attempted to remove the court’s jurisdiction from cases involving school prayer, abortion, and a few other issues such as the male-only draft. The measures flopped, though the one stripping the court of jurisdiction over school prayer got the furthest, passing the Senate before failing in the House.

In 2009 Cornell Law professor Dawn Chutkow comprehensively studied jurisdiction stripping and found that since 1943, Congress has passed 248 laws with 378 provisions stripping jurisdiction from federal courts. Most of the stripping had to do with administrative details, such as the Agriculture Department reselling timber from a certain forest. But Michael Paulsen of the University of St. Thomas School of Law, an expert on judicial stripping, says Congress within certain boundaries can make the court’s jurisdiction “as broad or narrow as it chooses. … Congress by all accounts has a substantial degree of control over the Supreme Court’s ‘jurisdiction.’”

The president has to sign jurisdiction-stripping bills, so the president and Congress would have to agree on a potential Supreme Court overstep on a major issue to remove it from the court’s purview. But with both the executive and legislative branches of the federal government now in Republican hands, jurisdiction stripping is no longer an impossible dream.