Liberals Weigh Jurisdiction Stripping to Rein in Supreme Court

In 1982 a young lawyer at the U.S. Department of Justice wrote a series of memos defending an unorthodox proposal to limit the power of the U.S. Supreme Court. It was nine years after the court’s landmark Roe v. Wade decision, which granted women a constitutional right to abortion, and Republicans in Congress had recently introduced more than 20 bills seeking to divest the court of its authority over abortion and other contentious social issues such as desegregation and school prayer. Academics have a term for this kind of legislation: jurisdiction stripping.

None of those bills passed. But the DOJ memos offered a sophisticated legal defense of jurisdiction stripping, arguing that “clear and unequivocal language” in Article 3 of the Constitution gives Congress the authority to shield certain laws from Supreme Court review. “The Framers were not inartful draftsmen,” one of the memos said. “We are not considering a constitutional clause that is by its nature indeterminate.”