Harvard and Michigan Law School professors discuss the idea of taking away the Supreme Court's power and giving it to Congress. They explore jurisdiction stripping and its constitutional basis, as well as the erosion of the court's legitimacy. They also address discriminatory laws against gay people in restaurants and advocate for court reform and measures like court expansion, DC/Puerto Rico statehood, and filibuster reform to restore trust in democratic institutions.
Taking away the Supreme Court's power through jurisdiction stripping can help balance the Court's authority with elected representatives.
The Court's power of judicial review, which allows it to overturn acts of Congress or the president, is self-imposed and not explicitly granted by the Constitution.
Jurisdiction stripping can be achieved by empowering Congress to determine constitutionality, limiting the Supreme Court's ability to overrule elected branches of government.
Deep dives
The need for court reform and jurisdiction stripping
The podcast episode explores the idea of court reform and the need for jurisdiction stripping. It emphasizes that the Supreme Court's power has become excessive and disproportionate to its original intent. The podcast argues that instead of focusing on reforming how the Supreme Court uses its power, the solution lies in taking away its power. It discusses the concept of jurisdiction stripping, which involves Congress limiting the Supreme Court's authority to overrule or invalidate federal statutes. This approach aims to shift power back to Congress and other democratic institutions, allowing elected representatives to make decisions on behalf of the people.
The flawed premise of judicial review
The episode highlights the historical context of judicial review and its implications on the power of the Supreme Court. It points out that the power of judicial review, allowing the Court to overturn acts of Congress or the president, is a power the Court gave itself in the 1803 case of Marbury v. Madison. The podcast argues that this power is not explicitly granted by the Constitution and that the Court has imposed it on itself. It suggests that the Court's ability to veto the actions of other branches of government contradicts the intentions of the framers of the Constitution.
Ryan Dorfler's advocacy for jurisdiction stripping
The episode features Ryan Dorfler, a Harvard Law School professor who advocates for jurisdiction stripping as a solution to balance the power of the Supreme Court. Dorfler proposes that Congress, rather than the Court, should have the authority to determine what is and isn't constitutional. He argues that Congress can strip the Supreme Court's power of judicial review through ordinary statutes, specifying that courts have no jurisdiction over certain types of disputes. This approach would limit the unelected justices' ability to overrule decision-making by elected branches of government.
Potential challenges and alternatives
The podcast acknowledges potential challenges and concerns regarding jurisdiction stripping and court reform. It raises questions about what happens when the Court refuses to adhere to jurisdiction stripping legislation or invalidates such laws as unconstitutional. The episode points out that jurisdiction stripping may necessitate reinforcing the democratic legitimacy of other institutions, such as Congress and state legislatures, to strike a balance of power. It also suggests alternative approaches, such as distinguishing between judicial review of federal and state-level legislation or reforming institutions to address malapportionment and gerrymandering.
Changing perceptions and the future of court reform
The episode discusses the evolving perception of court reform and the increasing recognition of its importance. It mentions a shift in the discourse around court reform, particularly among younger politicians who understand the need to reduce the power of the Supreme Court. However, it highlights the need for continued advocacy and engagement with grassroots movements and organizations to build support for court reform and empower democratic institutions. The podcast concludes by highlighting the potential for court reform to address democratic deficits and ultimately serve the interests of a diverse and inclusive society.
Instead of reforming how the Supreme Court uses its power, what if we took its power away?
Harvard Law School professor, Ryan Doerfler, and Michigan Law School Professor Leah Litman join the podcast to discuss their perspectives on jurisdiction stripping.
