Shrinking Supreme Court’s jurisdiction may be easier, quicker route to reform
President Biden’s proposed reforms for the Supreme Court are unlikely to pass. But the Constitution already provides a simple solution that would help to restore the balance of power among the three branches — change the jurisdiction of the Supreme Court.
For many years now, the Court has been engaged in a political land grab that violates long-standing norms and customs. The examples of the Court’s overreach are legion — overturning well-established precedents, much more frequent of what has become known as the “shadow docket” (which allows them to shape the law while refusing to offer any kind of sustained legal reasoning), cherry-picking the questions they will address in a case, and taking cases that are moot to name only a few examples.
All of that leaves aside the recent ethical lapses, which have stained the Court’s reputation. This is a complete reversal of the role the founders envisioned. In Federalist #78, Alexander Hamilton famously called the Supreme Court “the least dangerous branch.”
It’s no wonder that public opinion of the Court is the lowest it has ever been.
The ability to change the jurisdiction of the Supreme Court is spelled out explicitly in Article III, Section 2: “The supreme Court should have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
There is also a valid precedent on the books. After the Civil War, a journalist was tried by a military tribunal for publishing “incendiary and libelous articles” urging resistance to the Reconstruction laws that had placed the South under military rule. He appealed for a writ of habeas corpus, and the Supreme Court heard his case in 1868. Their sympathies were clearly with the journalist, but before they could issue a ruling, Congress took away the Court’s authority to hear appeals from the tribunals. The Chief Justice at the time noted in his opinion that “the power to make exceptions to the appellate jurisdiction of this court is given by express words.”
The America CARES Act (more commonly known as Obamacare) illustrates how this might work. Originally passed in 2010, it barely survived its first trip in front of the Court in 2012, and it is still undergoing legal scrutiny by federal courts, despite the fact that the legislation is more than a decade old and relied on by tens millions of people. Removing the Act from the Court’s jurisdiction would put an end to years of litigation and uncertainty.
Why hasn’t Congress exercised this power more often? I believe there are two reasons.
The first is that, for most of its history, the Court was inclined to show much greater deference to Congress.
The other reason is that the nation used to address this sort of issue promptly through a constitutional amendment. When the Supreme Court ruled in 1793 that states did not enjoy sovereign immunity from lawsuits brought by citizens of other states, the states needed only two years to ratify the 11th Amendment overturning that decision. And when the Court invalidated income tax legislation as unconstitutional in 1895, the nation ratified the 16th Amendment in 1913, which gave Congress the right to collect taxes on income.
Of course, changing the jurisdiction of the Court is far from a perfect solution. And the current conservative majority might choose to ignore a change in their jurisdiction if they believed that the question touched on a major constitutional principle. But I think they would act with restraint in that sort of situation out of fear of producing a major constitutional crisis.
At the very least, Congress could begin to rein in the power of the Supreme Court. And shrinking the Court’s jurisdiction would restore power where it belongs — to the people.
After all, the U.S. Constitution begins with the words “We the People,” not “we the judges.”
• Dr. Andrew Trees, of Lake Forest, teaches constitutional law at Roosevelt University in Chicago and is the author of several books and articles on American history.