Has the Supreme Court elevated itself to a super-legislature that makes policy rather than law? If so, should Congress strip the Supreme Court of jurisdiction to hear certain cases? As the eight justices tasked with interpreting the U.S. Constitution are enjoying their summer recess, we have a respite to consider these issues.
Perhaps the most damning indictment of the court’s recent conduct comes from Justice Clarence Thomas. In June, his dissenting opinion in Whole Woman’s Health v. Hellerstedt, in which the majority overturned a Texas abortion law rationally related to public health concerns, Justice Thomas rebuked his fellow jurists for making politicized decisions that “deliver neither predictability nor the promise of a judiciary bound by the rule of law.”
For the sake of honesty, Justice Thomas advised his colleagues, the high court should “abandon the pretense that anything other than policy preference underlies its balancing of constitutional rights and interests in a given case.”
It is hard to argue against the view that the court is engaged in making policy rather than serving as a neutral umpire. Also in June, in Fisher v. University of Texas, the court sanctioned the use of race-based criteria in college admissions even though race-neutral measures were shown to be just as effective in achieving diversity.
Another example of blatant political activism occurred last year, in Obergefell v. Hodges, when the Supreme Court nationalized marriage law by holding that the traditional definition of marriage is unconstitutional. Rejecting arguments that linked the right to marry with the need to channel potentially procreative activity into a stable social and legal relationship called marriage, the court found that the restriction of marriages only to male-female couples was irrational and served only to impose a “stigma and injury” on homosexuals.
In each of the cases above, the Supreme Court decided controversial policy issues that appropriately belong to legislatures.
So what recourse do the people have when an umpire goes from calling balls and strikes to participating in clashes over public policy?
Unbeknownst to many, the Constitution gives Congress the authority to prohibit the court from deciding numerous matters, including abortion and marriage. The germane passages appear in Article III, Section 2: “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction.” In all other cases, “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.”
Under a plain reading of the Exceptions Clause, so long as the matter does not fall within the court’s limited grant of original jurisdiction, Congress can alter or abolish the power of the court to hear a case.
At the Virginia Ratifying Convention in 1788, even John Marshall, later to become perhaps the most influential chief justice in U.S. history, touted the broad scope of this power. “Congress is empowered to make exceptions to the appellate jurisdiction, as to law and fact, of the Supreme Court,” he observed. “These exceptions certainly go as far as the legislature may think proper in the interest and liberty of the people.”
In 1868, the Supreme Court also gave a broad reading to the Exceptions Clause. In Ex Parte McCardle, a Mississippi newspaper editor imprisoned by federal authorities for criticizing Reconstruction policies sought to challenge his confinement. A lower court denied McCardle’s petition for habeas corpus, and he appealed to the Supreme Court. Before the high court could decide the case, however, Congress repealed the statute granting the court appellate jurisdiction to hear denials of habeas corpus petitions.
Chastened, the court recognized congressional power to make exceptions to its appellate jurisdiction and dismissed the appeal: “It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it no longer has jurisdiction of the appeal.”
Jurisdiction stripping is not ancient history or an off-the-wall remedy unknown to the national legislature. According to Dawn M. Chutkow, a law professor at Cornell University, between 1943 and 2004 Congress passed “248 public laws containing 378 provisions expressly denying the federal courts any power of review.” Congress, then, is well aware of its power to preclude judicial review and uses it in sundry instances.
If Justice Thomas is correct that the judiciary is no longer “bound by the rule of law” and that the court’s decisions are nothing more than “judicial fiat,” then it is time to call upon Congress to exercise its power under the Exceptions Clause. Policy decisions should be left with the elected branches of government. If the Supreme Court cannot refrain from deciding cases based on the majority’s policy preferences, then Congress should step in and strip the court of jurisdiction over issues such as affirmative action, abortion and marriage.