Senate Majority Leader Mitch McConnell (R-KY) has helped President Donald Trump put dozens of young, ideological right-wing judges on the district and circuit courts, as well as two on the Supreme Court. The goal is to ensure Trumpism outlasts Trump, and that Democrats cannot pass their agenda even if voters elect them to do so.
But on Thursday, writing for The New Republic, Christopher Sprigman detailed one method that a Democratic Congress could employ to prevent Trump's judges from overturning Joe Biden's agenda.
"Article III of the Constitution gives Congress substantial power to strip federal courts’ jurisdiction: a power that can be employed to rein in politicized courts and even to override judicial decisions, at least when courts are standing in the way of change that a substantial and enduring political coalition wants," wrote Sprigman.
"How would jurisdiction-stripping work? Start with the source of Congress’s authority," wrote Sprigman. "Article III, section 1 gives Congress complete discretion on whether to create the lower federal courts, a power that Congress has used from the founding to limit lower courts’ jurisdiction. And Article III, section 2, clause 2 explicitly empowers Congress to make 'exceptions' to the Supreme Court’s appellate jurisdiction — that is, to pick and choose for approximately 99% of the Supreme Court’s total docket what cases the Court has the power to hear. As I explain in this article, to be published in December in the New York University Law Review, under its Article III authority, Congress can remove the Supreme Court’s appellate jurisdiction over particular cases, or particular issues, largely without constraint."
For instance, Sprigman wrote, Congress could strip the Supreme Court of authority to hear cases on tax apportionment — thus ensuring it could pass a wealth tax without being struck down. Or it could strip the Supreme Court of authority to hear cases on campaign finance, effectively overturning Citizens United by legislative fiat.
There are risks to this strategy, Sprigman acknowledged — "once established, Congress’s power to rein in the courts through jurisdiction-stripping will be used — and misused — by Republicans as well as by Democrats." However, he argued, this is a risk worth taking, because "Reining in the role of courts is the best way to kill the incentive that drives both parties to appoint activists to the federal bench."
You can read more here.