Jurisdiction Stripping: History and Potential Impact

Whenever the Supreme Court takes on a more overtly ideological orientation, there are calls to restrict its authority. In the 1960s and 70s, the Court’s liberal opinions on abortion, school prayer, busing, and other controversial issues led to a massive conservative backlash that fueled the rise of the Christian right[1]. Efforts to invalidate these decisions via constitutional amendment proliferated throughout the mid to late twentieth century[2][3]. When these measures failed due to a lack of support in Congress and the general public, conservative ideologues resorted to an alternative method with a comparatively higher chance of enactment: jurisdiction stripping. 

Article III of the U.S. Constitution outlines the Supreme Court’s powers and jurisdiction. It also clarifies areas of authority that Congress has to modulate the Court’s behavior. The Exception Clause within Article III designates one such area, allowing Congress to provide “exceptions” and “regulations” to the Court’s appellate review[4]. This authority, under the broadest possible interpretation, directly clashes with the power of judicial review enshrined under Marbury v. Madison, a power the Court has utilized more and more in the past century[5].

In United States v. Klein, the competing prerogatives of Congress and the Supreme Court clashed in remarkable fashion[6]. The case centered on a Reconstruction-era dispute over property confiscated during the Civil War[7]. The estate of a deceased soldier in the Confederate Army wanted compensation for cotton that was confiscated while the war was ongoing. The same law that allowed the government to confiscate property also allowed plaintiffs to seek redress, as long as the owner hadn’t given “any aid or comfort to the [Confederate] rebellion”[8]. Interestingly, the case also engendered a clash between Congress and the Presidency. Multiple presidential decrees insisted that plaintiffs who took an oath of loyalty to the United States and received a presidential pardon would be eligible for redress. Congress claimed that a presidential pardon amounted to proof of guilt, and removed the jurisdiction of the U.S. Court of Claims and the Supreme Court to hear disputes[9]. The Supreme Court rejected Congress’ assertion, deciding that the fact pattern raised separation-of-powers concerns for the judicial and executive branches. The Court ruled that Congress had “inadvertently passed the limit which separates the legislative from the judicial power” and “infring[ed] on the constitutional power of the Executive”[10]. Though scholars disagree on the scope of the Court’s decision in Klein, the outcome represents a key assertion of the judiciary’s power and a fairly conclusive denunciation of jurisdiction-stripping at its most extreme.

One hundred years after the outcome of Klein, opponents of the Supreme Court re-evaluated their goals. Sen. Jesse Helms, an ardent conservative, introduced bills designed to curb the courts’ power to enforce decisions like Engel v. Vitale[11] and Roe v. Wade[12]. While these initiatives also failed to garner support in Congress, they raised key questions that had mostly lied dormant in the wake of Klein. What was the extent of Congress’s power to restrict the jurisdiction of lower courts? Could laws attempting to remove the Court’s jurisdiction apply retroactively? Most importantly, how could the fragile line separating the authority of the legislative and judicial branches be preserved if the Court’s appellate jurisdiction could be dismantled at Congress’ leisure?

In the current day, the ideological persuasion of the Supreme Court couldn’t be further from the Warren or Burger Courts[13]. The Roberts Court has taken arch-conservative positions on campaign finance, abortion, regulation, and other issues[14][15][16]. This shift has forced another re-evaluation of jurisdiction-stripping, this time from the left. The Supreme Court’s extensive power and comparatively few checks have encouraged several reform efforts, with term limits and a code of ethics being the most significant[17]. While these proposals may have merit, they offer little solace to those dismayed at the Court’s ideological turn. Senate Majority Leader Chuck Schumer, among others, has embraced jurisdiction-stripping as a more immediate solution to the flaws within this Court’s jurisprudence[18].

While America today is nothing like the America of 1871 or 1970, the flaws of jurisdiction-stripping remain. There are separation-of-powers concerns from academics of all ideological leanings concerned that a successful attempt at jurisdiction stripping might mean the slow death of judicial review. There are also those who believe that jurisdiction stripping is a chaotic and unreliable tool, incapable of delivering the outcomes its proponents want[19]. Regardless of jurisdiction-stripping’s merit as a legislative tool, as long as the Supreme Court continues to amass power relative to the other branches, it will maintain its role in our national discourse.

Sources:

1.  Bullock, Charles S., and others, 'The Rise of the Christian Right in the South and Its Impact on National Politics', The South and the Transformation of U.S. Politics (New York, 2019; online edn, Oxford Academic, 22 Aug. 2019), https://doi.org/10.1093/oso/9780190065911.003.0005, accessed 19 Oct. 2024.
2. Message to the Congress Transmitting the Proposed Constitutional Amendment on Prayer in Schools, Ronald Reagan Library, https://www.reaganlibrary.gov/archives/speech/message-congress-transmitting-proposed-constitutional-amendment-prayer-schools (last visited Oct 19, 2024).
3. S.158 - 97th Congress (1981-1982): A bill to provide that human life shall be deemed to exist from conception., Congress.gov (2024), https://www.congress.gov/bill/97th-congress/senate-bill/158 (last visited Oct 19, 2024).
4.  U.S. Const. art. 1, § 2, cl. 2.
5. Marbury v. Madison, 5 U.S. 137 (1803)
6. United States v. Klein, 80 U.S. 128 (1871)
7. Joanna Lampe, Congress’s Power over Court Decisions: Jurisdiction Stripping and the Rule of Klein, CRS Reports (2024), https://crsreports.congress.gov/product/pdf/R/R44967 (last visited Oct 19, 2024).
8.  Id
9. Id
10. Klein, 80 U.S. 128 (1871)
11. The New York Times. "Senate Rejects Bill on School Prayer." September 11, 1985, sec. D, 26. Accessed October 19, 2024. https://www.nytimes.com/1985/09/11/us/senate-rejects-bill-on-school-prayer.html.
12. Tom Wicker, Opinion | IN THE NATION; COURT-STRIPPING, The New York Times, Apr. 24, 1981, https://www.nytimes.com/1981/04/24/opinion/in-the-nation-court-stripping.html (last visited Oct 21, 2024).
13. Linda Greenhouse, Tracing The “Rise Of The Judicial Right” To Warren Burger’s Supreme Court, NPR (2016), https://www.npr.org/2016/07/06/484939647/tracing-the-rise-of-the-judicial-right-to-warren-burgers-supreme-court (last visited Oct 20, 2024).
14. Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022)
15. Citizens United v. FEC, 558 U.S. 310 (2010)
16. West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022)
17. FACT SHEET: President Biden Announces Bold Plan to Reform the Supreme Court and Ensure No President Is Above the Law, The White House (2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/07/29/fact-sheet-president-biden-announces-bold-plan-to-reform-the-supreme-court-and-ensure-no-president-is-above-the-law/.
18. Michael Sainato, Democrats pitch No Kings Act to override supreme court’s Trump immunity ruling, The Guardian (2024), https://www.theguardian.com/us-news/article/2024/aug/01/no-kings-act-trump-immunity-supreme-court (last visited Oct 21, 2024).
19. Epps, Daniel, and Alan M. Trammell. “THE FALSE PROMISE OF JURISDICTION STRIPPING.” Columbia Law Review 123, no. 7 (2023): 2077–2083. https://www.jstor.org/stable/27264957.