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Much of this week’s news cycle has been dominated by Supreme Court news including Judge Amy Coney Barrett’s confirmation hearing and possible attempts to expand the Supreme Court beyond the current nine members. I also came across an interesting article in Bloomberg BusinessWeek discussing Congress’s ability to strip the Supreme Court of its powers in order block judicial review of legislation.

I was taught that one of—if not the—bedrock of our democratic system is three equal branches of government asserting checks and balances on each other, so the Bloomberg story surprised me. How can Congress strip a co-equal branch of government of its powers? If that is the case, are they co-equal? Does that put the lie to what I learned in school?

The argument is based on Article III of the Constitution which states:

“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.”

This “exception” clause has been accepted as giving Congress the power to remove appellate review from the Supreme Court. But Congress can never remove the Court’s original jurisdiction over disputes between states, actions involving various public officials, disputes between the United States and a state, and proceedings by a state against the citizens or aliens of another state. The sanctity of original jurisdiction was enshrined in the famous Marbury v. Madison decision in 1803.

Jurisdiction stripping is not a new idea. Congress stripped the Supreme Court of the power to hear specific cases as early as 1869 in Ex parte McCardle, 74 U.S. 506 and continues to do so.

The McCardle case is surprising to me. During Reconstruction, newspaper publisher William McCardle printed articles opposing federal Reconstruction laws. After being jailed by the military, he requested habeas corpus review in the Southern District of Mississippi. The District Judge sent him back to jail. He appealed to the Supreme Court. After oral arguments, but before a decision was issued, Congress suspended the Court’s jurisdiction over the case under Article III. Chief Justice Chase, writing for a unanimous court, upheld Congress’s withdrawal of the Court’s jurisdiction. While I am not an expert on this complex area of the law, I am sure Mr. McCardle was shocked that Congress could block court review of his jail sentence. How is a citizen to be protected from Congressional retaliation?

So, jurisdiction stripping is real. A recent example is the Military Commissions Act of 2006 which attempted to strip federal courts of jurisdiction over appeals from Guantanamo Bay detainees. There is no reason why it could not be used to avoid court review of politically divisive issues ranging from health care to gun control to gay rights, giving enormous power to Congress to sidestep judicial review.

While the current focus is on its use to control a conservative Court if Democrats sweep the 2020 election, it could just as easily be used by Republicans. So why has it not been used more often? Likely because weakening another branch of government would be politically unpopular and hard to explain to an electorate who—like me—believes in the importance of co-equal branches of government.

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