Pack the Supreme Court or Strip Its Power

In 1982, a young Laywer at the U.S. Department of Justice (DOJ), wrote a Series of Memos Defending an Unorthodox Proposal to Limit the Power of the Supreme Court.

It was Nine years after the Court's Landmark Roe v. Wade Decision, which Granted Woman 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, including 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 Sripping, 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 Author of the Memos was John Roberts. Forty years later, Roberts is the Supreme Court's Chief Justice and the Leading Defender of its Institutional Legitmacy, and the Push for Judicial Reform has Migrated from the Right to the left, with an array of Reforms under Discussion, including Jurisdiction Stripping. As an example, recently, Roberts took away the Federal Courts ability to take State's Redistricting Cases, putting the Final Decision to State's Sumpreme Courts. I also believe there are many Cases should Stay in the States, when they Affect the Rules in a State, Not the Country.

Supreme Court Rules Partisan Gerrymandering Is Beyond The Reach Of Federal Courts. People rally in front of the Supreme Court on March 26th as the court hears arguments in redistricting cases. The court ruled that partisan redistricting is a political question, not one that federal courts can weigh in on.

Facing the Prospect of a 6-3 Conservative Majority on the High Court following the death of Justice, Ruth Bader Ginburg, Progressive Lawmakers and Left-Wing Activists are Calling for Democrats to Impose Term Limits or Expand the Size of the Supreme Court, from 9 to 11, and Pack it with Liberal Justices.

On Sept. 29th, House Democrats introduced a Bill proposing 18-year terms for New Justices, I would ask for 20-years. And though President Franklin D. Roosevelt famously Failed in his Effort to Pack the Court in 1937, Scholars generally consider Court Expansion to be Legal because the Constitution Dosen't specify the Number of Justices.

Some Liberal Proponents believe Jurisdiction Stripping could Help Democratic Shieled 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 stipulating that the Legislation lies Outside the Bounds of Supreme Court Review. Liberal Critics pointed out that Republicans could use the same Tactic to Protect Restrictions on Abortion or Gay and transgender Rights.

Under Variations of the Jurisdiction Stripping Proposals, 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, Arrticle 3 gives the Supreme Court Jurisdiction over Constitutional Issues with such Exceptions, and under such Regulstionsas the Congress shall make.










NYC Wins When Everyone Can Vote! Michael H. Drucker