HOW DO WE FIX IT?
Strip Its Power
With the leak of a draft opinion in Dobbs v. Jackson Women’s Health Organization formally overruling Roe v. Wade, progressives’ worst fears about an ever more reactionary Supreme Court appear set to come true.
After decades of chipping away at abortion rights, the court’s conservatives—now a rock-solid majority—seem ready to complete that ideological project openly and even triumphantly.
In itself, such a decision would be catastrophic, especially for those who don’t have the resources or the personal freedom to travel vast distances to receive basic health care. The draft opinion’s unapologetic tone also presages similarly harmful outcomes on issues ranging from contraception to same-sex marriage to immigration to climate change. Indeed, some of these outcomes are already here.
An Argument For Fixed Terms And Expanding The Court
Let’s start with the obvious: I’m in favor of jurisdiction stripping, weather stripping, or stripping while dancing on a pole if that’s what it takes to stop the Supreme Court from turning the clock back to 1859. I’m in favor of using any and all nonviolent means available to stop the court’s current embrace of bigotry and misogyny. If jurisdiction stripping reminds the court that it is a coequal branch of government and not a judicial clergy, superior to the elected branches, then I’m all for it.
The legal theory behind what has come to be known as jurisdiction stripping is sound. The Supreme Court gave itself the power to declare unconstitutional both laws passed by Congress and orders signed by the president in the 1803 case Marbury v. Madison. This power of judicial review was not written into the Constitution nor contemplated during its ratification battle. The Supreme Court invented it, and that means Congress can, in theory, take it away. Congress can pass a law and then exclude that law from judicial review. Congress can, on its own authority, determine what is constitutional and what is not.