Scheme to strip Supreme Court of jurisdiction would be an attack on our democracy
On Monday, I came across something in the Raleigh News & Observer that read like a letter to the editor from the angry uncle you try to avoid talking with at family reunions. But then I realized it was just Gene Nichol. Nichol, a law professor at UNC-Chapel Hill, was irate about last week’s U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization. The decision affirms that there is no constitutional right to an abortion and “returns the issue of abortion to the people and their elected representatives in the democratic process.”
Nichol jumped right into hyperbolic mode. Among the sentence fragments, he claimed that justices, “hideously ideological, unelected hacks,” have “announced the death of the Supreme Court” with the Dobbs ruling. He declared, “it may come in a month, or in a couple years, but it’s coming. Self-inflicted.”
Having declared the demise of a constitutional branch of the United States government, he dropped the idea to launch into another round of hyperbole: “The Supreme Court fired on Fort Sumter” (no, I did not make that up). The Dobbs decision, he said, kicked off the “battle for the American democracy.”
What Nichol seems to have forgotten, if he ever realized it in the first place, was that the Supreme Court did not make abortion illegal, nor did it say that the right to life extends to before we are born. It simply stated that there is no right to an abortion in the U.S. Constitution. In doing so, the court returned the question of what restrictions there should be on abortion to the people. It is strange that Nichol would see returning power to the people as an attack on democracy.
In response, Nichol proposed that Congress pass a national law granting women the right to get an abortion, presumably under authority granted under the Commerce Clause of the Constitution. Again, that kind of expansion of democracy on abortion law is just what Dobbs provided.
He then took things further by proposing that Congress postpone the next term of the Supreme Court (preventing the first black woman justice from hearing a case) and then “remove the jurisdiction of the U.S. Supreme Court to hear abortion cases.” If the Supreme Court resists, Nichol said Democrats should pack it with additional justices.
Nichol’s proposed scheme would, if narrowly structured, not be unconstitutional. Article III, Section 2 of the Constitution states, in part, “[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” For example, Congress limited judicial review of immigration removal orders in the Immigration and Nationality Act (section 1252).
Of course, just because Congress can do something does not mean that it should do it. Congress has generally only exercised power to limit judicial jurisdiction in response to a national cataclysm (the Civil War) or in establishing jurisdiction for other judicial bodies (immigration and tax courts), not in a fit of rage over a policy loss. In the current context, Nichol’s proposal would be an extreme attack on the separation of powers in response to an expansion of democracy, which would upset our constitutional order.
It would also open the door to blowback.
Remember how in 2013, Senate majority leader Harry Reid (D-Nevada) pushed through the “nuclear option,” eliminating the 60-vote threshold to end debate for an up-and-down vote for all presidential nominations except Supreme Court justices? Minority leader Mitch McConnel (R-Kentucky) warned his Democratic colleagues, “You will regret this, and you may regret it a lot sooner than you think.”
The Democrat’s regret came four years later when Republicans extended the nuclear option to Supreme Court nominations. All three of President Trump’s Supreme Court nominees were confirmed in the Senate by fewer than 60 votes.
Abortion will be on the ballot this November, but there is no guarantee that Democrats will win. Just as the Democrats reaped the whirlwind on the nuclear option, they — and President Biden in particular — would likely suffer blowback if they heeded any of Nichol’s rage-fueled advice should Republicans retake Congress in November.
The Supreme Court expanded democracy with the Dobbs decision. Attacking the constitutional order protecting that democracy, as Nichol proposed, is a dangerous game.