Pack the Supreme Court, Or Strip Its Powers?
Bloomberg Businessweek|October 12 - 19, 2020
A proposal to restrict the court’s authority over certain laws stirs interest on the left
David Yaffe-Bellany

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 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, 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 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 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 legitimacy, and the push for judicial reform has migrated from the Right to the Left, with an array of reforms under discussion, including jurisdiction stripping.

Facing the prospect of a 6-3 conservative majority on the high court following the death of Justice Ruth Bader Ginsburg, progressive lawmakers and left-wing activists are calling for Democrats to impose term limits or expand the size of the Supreme Court and pack it with liberal justices. On Sept. 29, House Democrats introduced a bill proposing 18-year term limits for new justices. 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 doesn’t specify the number of justices.

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