The False Promise of Jurisdiction Stripping

Abstract

Jurisdiction stripping is seen as a nuclear option. Its logic is simple: by depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. In theory, it frees up the political branches and the states to act without fear of judicial second-guessing. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction stripping measures as a way for Congress to reclaim policymaking authority from the courts.

The conventional understanding is wrong. Whatever the scope of Congress’s Article III power to limit the jurisdiction of the Supreme Court and other federal courts, jurisdiction stripping is unlikely to succeed as a practical strategy. At least beyond the very short term, Congress cannot use it to effectuate policy in the face of judicial opposition. Its consequences are chaotic and unpredictable, courts have tools they can use to push back on jurisdiction strips if they desire, and the active participation of the judiciary is ultimately necessary for Congress to achieve many of its goals. Jurisdiction stripping will often accomplish nothing and sometimes will even exacerbate the very problems it purports to solve.

Jurisdiction stripping can still prove beneficial, but only in subtle and indirect ways. Congress can regulate jurisdiction to manipulate the timing of judicial review—slowing things down or speeding them up—even if it cannot prevent review entirely. Jurisdiction stripping also provides a means for Congress to signal to the public and the judiciary the importance of an issue—and, possibly, to pressure courts to change course. But these effects are contingent, indeterminate, and unreliable. As a tool to influence policy directly, jurisdiction stripping simply is not the power that its proponents hope or its critics fear.

Keywords: jurisdiction stripping, federal courts, Supreme Court, Court reform

JEL Classification: K40