◼ POLITICS Bloomberg Businessweek October 12, 2020
37THEBOTTOMLINE Someacademicsthinkjurisdictionstripping
wouldgivelegislationsuchasa GreenNewDeala patharoundthe
conservativeSupremeCourt,buttheideais farfrommainstream.schoolshavepublishedarticlesadvocatingfor
jurisdiction stripping or other reforms that would
chip away at the court’s power rather than simply
alter its ideological makeup.
“If we got to the point where Congress was really
seriously thinking about” Supreme Court reform,
says Daniel Epps, a law professor at Washington
University in St. Louis who’s studied it, “you’d see
a lot of stuff be considered. You could end up with
something that looks different from all of the pro-
posals we’ve gotten so far, or some new option that
no one has ever thought of.”
Some liberal proponents believe jurisdiction
stripping could help Democrats shield bold future
legislation from damaging court battles. In theory
a Democratic Congress could pass a health-care
plan or a Green New Deal with a provision stipu-
lating that the legislation lies outside the bounds of
Supreme Court review.
Under variations of the jurisdiction-stripping
proposal, Democratic lawmakers could also limit
the ability of lower courts to review legislation, or
they could confine legal challenges to geographic
regions where courts are generally sympathetic.
As Roberts noted in his memo, Article 3 gives the
Supreme Court jurisdiction over constitutional
issues with “such Exceptions, and under such
Regulations as the Congress shall make.”
Still, the chances of jurisdiction stripping
becoming enshrined in law anytime soon are slim.
First, Democrats would have to win the presidency
and gain control of both chambers of Congress.
Even if they do so in November, potential reforms
such as court expansion and term limits have
attracted much more support.
Not to mention that any proposal limiting the
court’s power would itself face constitutional chal-
lenges. If Congress passed one, lawsuits and a court
battle would be inevitable. “It’s almost a certainty
of any Supreme Court reform that we would be
inviting the Supreme Court to push back at that
limitation of its own powers,” says Samuel Moyn, a
law professor at Yale. “That’s part of the ballgame.”
In July, Moyn and University of Chicago law pro-
fessor Ryan Doerfler published a paper arguing that
liberals should explore “disempowering reforms”
that dilute the power of the judicial branch, as
well as more mainstream “personnel reforms”
such as court expansion. They argued that taking
power away from the Supreme Court would be less
nakedly political than court packing and less likely
to devolve into a tit-for-tat cycle of partisan fighting.
They’re under no illusions about the likelihood
that any of this will happen imminently. But this
month, Moyn is co-hosting a conference at Yale to
raise awareness about the broad menu of reform
options. And Christopher Sprigman, a law profes-
sor at New York University who recently published
his own paper endorsing jurisdiction stripping,
says he’s discussed the proposal with Democratic
congressional staffers.
Carrie Severino, president of the conservative
Judicial Crisis Network, says Democrats are threat-
ening to politicize the court through legally dubi-
ous means. “They’re willing to float any kind of
extreme idea that comes up,” Severino says. “And if
they were given the actual opportunity to pass any
of these kinds of laws, I don’t think they’d hesitate.”IfDemocraticlegislatorswere toincludea
jurisdiction-stripping provision in a Green New
Deal, that would be a remarkable reversal of recent
history. When Republican lawmakers tried to use
the measure in the 1980s, it was for socially conser-
vative aims. In 2005, when Roberts was nominated
to the Supreme Court, the Center for American
Progress, a liberal think tank, criticized him for
defending such “radical legislative proposals.”
Liberal critics have pointed out that
Republicans could use the same tactic to protect
restrictions on abortion or gay and transgender
rights. But Sprigman says such anxiety is mis-
placed, given long-term demographic trends that
favor Democratic majorities in Congress. “Part of
the reason the Republicans are packing the courts
is they realize that democracy is slipping away
from their control,” he says. “If you’re a liberal,
you should put your chips on democracy, not on
courts.” �David Yaffe-Bellany