“Deeply ingrained in the Constitution genius are checks and balances. The president can veto legislation; Congress can override a veto. The Courts can invalidate an act of Congress or the president. And the executive and legislative branches enjoy checks against the judiciary.
The Constitution called for the establishment of a Supreme Court and lower federal courts. It left it to Congress and the president to decide just what shape the judiciary would take. They did so in the Judiciary Act of 1789, which created district courts, circuit (or appellate) courts, and a six-member Supreme Court. Over the years, Congress, with the president’s approval, has increased and decreased the number of justices on the Supreme Court, created and changed the jurisdiction of district and circuit courts, and adjusted the number of federal judges.
By now, it’s well-known that Congress can change the size, and thus the composition, of the Supreme Court by simple legislation. Court-packing, as it’s been called since 1937, when President Franklin Roosevelt unsuccessfully attempted to circumvent a hostile court by expanding its membership, is a deeply controversial practice.
Critically, but less widely understood, the Constitution also grants Congress the power to strip the Supreme Court of its jurisdiction over specific matters. Article III, Section 2 reads: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
At least one founder was clear about the intent of Section 2. Hamilton wrote, “From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.”
Defenders of judicial review appropriately point to Federalist 78 as evidence that Hamilton believed the Constitution contained an implicit power of judicial review. But he also believed that Congress could adjust the court’s jurisdiction.
In practice, so few instances exist of jurisdictional stripping that its meaning and scope are open to debate. But it has happened. In the late 1860s, federal authorities jailed William McCardle, a newspaper editor, under provisions of the 1867 Military Reconstruction Act. McCardle sued for his freedom, citing the Habeas Corpus Act of 1867. Congress denied the justices jurisdiction in the matter, and the court conceded that it was powerless to act.
Writing several decades later, Justice Felix Frankfurter, an FDR appointee, noted that “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.” Chief Justice Warren Burger, whom President Richard Nixon placed on the bench, agreed, writing that Congress could pass simple legislation “limiting or prohibiting judicial review of its directives.”
No less than the executive and legislative branches, the judiciary — particularly, the Supreme Court — is limited in just how much power it can exert. But only if Congress and the president exercise their right to check its power.”
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“A world in which a highly partisan and increasingly unpopular Supreme Court found its jurisdiction routinely boxed out by Congress is hardly a recipe for political stability. With every change of control, a new Congress and president could overturn precedent and lock the court out of its intended role as a constitutional arbiter. Moreover, there would likely be widespread confusion over just what might happen, were Congress to strip the court of its jurisdiction over, say, the state legislative doctrine. Would it then be left to lower courts to adjudicate cases? And what if they disagreed?
John Marshall, the chief justice who first asserted the power of judicial review, was “notably cautious in dealing with cases that might excite Republican or popular sensibilities,” noted historian Charles Sellers. He sought consensus among the associate justices, Federalists and Republicans alike, operated with “restraint” (Sellers) and led with “lax, lounging manners” (Thomas Jefferson) rather than cutting partisanship. He did so because he understood that the court was a new institution, and were it to lose popular support, the powers it claimed for itself would become either unenforceable, or subject to congressional restraint.
Ultimately, it is the responsibility and prerogative of the executive and legislative branches to encourage greater restraint and humility on the part of the judiciary.
Judicial review is well-rooted in American political tradition. But so are checks and balances. To save the Supreme Court from itself, Congress might first have to shrink it.”
“The specific program at issue in Carson is unusual to Maine. About 5,000 students in Maine’s most rural areas, where it is not cost-efficient for the state to operate a public school, receive tuition vouchers that can be used to pay for private education. Maine law provides that these vouchers may only be used at “nonsectarian” schools, not religious ones.
Carson struck down this law excluding religious schools from the Maine voucher program, and that decision could have broad implications far beyond the few thousand students in Maine who benefit from these tuition subsidies.
Not that long ago, the Court required the government to remain neutral on questions of religion — a requirement that flowed from the First Amendment’s command that the government “shall make no law respecting an establishment of religion.” In practice, that meant that the government could neither impose burdens on religious institutions that it didn’t impose on others, nor could it actively subsidize religion.
Carson turns this neutrality rule on its head, holding that government benefit programs that exclude religious institutions engage in “discrimination against religion” that violates the Constitution.
At the same time, however, Carson also contains significant language confining the scope of this new rule. If the government cannot create benefit programs that exclude religion, then under the most extreme version of this argument, it is unclear why traditional public schools — which provide secular but not religious education — are constitutional. Secular public schools, after all, are government institutions that maintain neutrality toward religion. And, under the new rule announced in Carson, neutrality is unconstitutional discrimination.
But Chief Justice John Roberts’s opinion in Carson states explicitly that “Maine may provide a strictly secular education in its public schools.” And it reaffirms the Court’s holding in a 2020 decision that “a State need not subsidize private education.” That means that most students who receive a state-subsidized education will not be indoctrinated into a faith.
Nevertheless, one upshot of the Carson decision is that Maine’s taxpayers will be forced to pay for education that many of them will view as offensive. As the state explained in its brief, the plaintiff families in this case want the state to pay at least part of the tuition at private schools that discriminate against LGBTQ teachers and students. One of these schools allegedly requires teachers to agree that “the Bible says that ‘God recognize[s] homosexuals and other deviants as perverted’” and that “[s]uch deviation from Scriptural standards is grounds for termination.’”
After Tuesday’s decision, these families are all but certain to get their wish — Maine would have to significantly rework its education policies to avoid such an outcome — and Maine’s taxpayers will soon have to fund education at schools with outlandish or even bigoted worldviews.”
“The preliminary results of St. Paul, Minnesota’s, strictest-in-the-nation rent control law have not been good. Developers have fled, while applications for new building permits and property values have both collapsed. Now, a pair of landlords are suing the city, claiming the law is unconstitutional.”
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“The ordinance, written by local activists and passed by voters in November 2021, capped rent increases in the city at 3 percent per year, with none of the typical allowances or exemptions for inflation, vacant units, and new construction.
The policy is far stricter than basically every other rent control law in the country. Oregon’s 2019 state rent control law, for instance, allows for property owners to raise rents by 7 percent plus inflation and exempts buildings less than 15 years old from these price caps.
While the St. Paul ordinance did allow landlords to obtain exemptions to that 3 percent cap if it threatens their ability to earn a “reasonable return” on their investment, what would count as a reasonable return and how to secure an exemption were left up to the city to hash out. St. Paul came out with proposed rules for implementing the ordinance, including the exemption process, in early April 2022. These were finalized later that month, and everything went into effect on May 1. The final rules allow landlords to “self-certify” exemptions if they’re trying to raise the rent by no more than 8 percent, which involves filling out a short form and submitting it to the city.
Landlords are also permitted to raise the rent up to 15 percent. Doing so requires vetting from city staff and the completion of a 22-page worksheet that asks the applicant to provide exhaustive detail about changes in their expenses that might justify a rent increase. Because all exemptions can be appealed and subjected to a city audit, even landlords who can self-certify increases of up to 8 percent are encouraged (but not required) to fill out that 22-page worksheet as well.
It’s a daunting prospect for many of St. Paul’s smaller landlords.”
“Noting that “the Constitution makes no reference to abortion,” Alito argues that “no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” Although “that provision has been held to guarantee some rights that are not mentioned in the Constitution,” he says, “any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.'” Alito concludes that “the right to an abortion does not fall within this category.”
That analysis falls short in at least two crucial ways.
First, Alito fails to grapple with the argument that the right to terminate a pregnancy can be understood as a subset of the right to bodily integrity. As the legal scholar Sheldon Gelman detailed in a 1994 Minnesota Law Review article, the right to bodily integrity can be traced back to the Magna Carta. That makes it one of the many rights “retained by the people” (in the words of the Ninth Amendment) that were imported into the Constitution from English law. That right, in other words, is “deeply rooted” in American history and tradition.
Second, Alito’s draft opinion distorts the relevant legal history and thus misstates the historical pedigree of abortion rights. “When the United States was founded and for many subsequent decades, Americans relied on the English common law,” explains an amicus brief that the American Historical Association and the Organization of American Historians filed in Dobbs. “The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called ‘quickening,’ which could occur as late as the 25th week of pregnancy.”
A survey of founding-era legal authorities confirms this view. William Blackstone’s widely read Commentaries on the Laws of England, first published in 1765, noted that life “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” Under the common law, Blackstone explained, legal penalties for abortion applied only “if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb.” That means abortion was legal in the early stages of pregnancy under the common law.
Blackstone’s writings had an important influence on America’s founding generation. In his 1790 Of the Natural Rights of Individuals, for example, James Wilson, a driving force at the Constitutional Convention in Philadelphia and a leading voice for ratification at Pennsylvania’s convention, repeated Blackstone’s gloss. “In the contemplation of law,” Wilson wrote, “life begins when the infant is first able to stir in the womb.”
At the time of the founding, no American state had the lawful power to prohibit abortion before quickening because the states adhered to the common law as described by Blackstone and Wilson. We might call this the original understanding of the states’ regulatory powers. That original understanding contradicts Alito’s assertion that abortion rights—at least during the early stages of pregnancy—lack deep roots in American history.”
“If the U.S. Supreme Court reverses Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), a number of American states will immediately criminalize abortion. Some of those states may also attempt to ban women from traveling out of state for the purpose of obtaining a lawful abortion elsewhere. But any such anti-abortion interstate travel ban would be constitutionally defective for multiple reasons.
First, the Constitution protects the right to travel, which necessarily includes the right to interstate travel. This is a fundamental constitutional right that has been repeatedly recognized by the courts. During the debates over the ratification of the 14th Amendment, the right to travel was invoked as one of the privileges or immunities of citizenship that the amendment was designed to protect from state infringement. For a state to prohibit (or even penalize) the act of leaving that state and doing something perfectly lawful in another state would violate this constitutional safeguard.
Second, an anti-abortion interstate travel ban would run afoul of the Dormant Commerce Clause, a legal doctrine which holds that the Commerce Clause, in addition to authorizing congressional regulation of economic activity that occurs between the states, also forbids the states from enacting their own interstate economic barriers.”
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“Finally, there is relevant case law which cuts against the lawfulness of any anti-abortion interstate travel ban. In Planned Parenthood of Kansas v. Nixon (2007), the Missouri Supreme Court reviewed a state law which created a civil cause of action against any person who helped a minor obtain an abortion without parental consent either inside the state or in another state. “Of course, it is beyond Missouri’s authority to regulate conduct that occurs wholly outside of Missouri,” the Missouri Supreme Court observed, and the law at issue “cannot constitutionally be read to apply to such wholly out-of-state conduct. Missouri simply does not have the authority to make lawful out-of-state conduct actionable here, for its laws do not have extraterritorial effect.””
“Justice Samuel Alito’s draft opinion overruling Roe v. Wade, which was leaked to Politico and revealed to the public Monday night, is more than just an attack on abortion. It is a manifesto laying out a comprehensive theory of which rights are protected by the Constitution and which rights should not be enforced by the courts.
And Alito’s opinion is also a warning that, after Roe falls, the Court’s Republican majority may come for landmark LGBTQ rights decisions next, such as the marriage equality decision in Obergefell v. Hodges (2015) or the sexual autonomy decision in Lawrence v. Texas (2003).
To be clear, the leaked opinion is a draft. While Politico reports that five justices initially voted to overrule Roe, no justice’s vote is final until the Court officially hands down its decision. And even if Alito holds onto the five votes he needs to overrule Roe, one or more of his colleagues in the majority could insist that he make changes to the opinion.
Alito’s first draft, however, suggests that the archconservative justice feels emboldened. Not only does he take a maximalist approach to tearing down Roe, but much of Alito’s reasoning in the draft opinion tracks arguments he’s made in the past in dissenting opinions disparaging LGBTQ rights.
The Constitution is a frustrating document. Among other things, it contains multiple provisions stating that Americans enjoy certain civil rights that are not mentioned anywhere in the document itself. The Ninth Amendment, for example, provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Over time, the Supreme Court has devised multiple different standards to determine which of those unenumerated rights are nonetheless protected by our founding document. Some of these standards are very much at odds with each other.
The central thrust of Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, the case seeking to overrule Roe, is that only rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” are protected. This method of weighing unenumerated rights is often referred to as the “Glucksberg” test, after the Court’s decision in Washington v. Glucksberg (1997).
Though Alito’s Dobbs opinion largely focuses on why he believes that the right to abortion fails the Glucksberg test, there is no doubt that he also believes that other important rights, such as same-sex couples’ right to marry, also fail Glucksberg and are thus unprotected by the Constitution. Alito said as much in his Obergefell dissent, which said that “it is beyond dispute that the right to same-sex marriage is not among those rights” that are sufficiently rooted in American history and tradition.”
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“For many years, Justice Anthony Kennedy was the pivotal figure in the legal struggle for gay equality. Obergefell and United States v. Windsor (2013), which held that the federal government must recognize same-sex marriages, were both 5-4 decisions authored by Kennedy. Kennedy also penned the Lawrence opinion and the Court’s decision in Romer v. Evans (1996), the first Supreme Court decision establishing that the Constitution places limits on the government’s ability to target gay or bisexual individuals.
Given his longtime role as the Court’s voice on gay rights, it’s tempting to think of Kennedy as a staunch supporter of these rights (I use the word “gay” and not “LGBTQ” because Kennedy’s four opinions concerned discrimination on the basis of sexual orientation and not gender identity). But the reality is almost certainly more nuanced. Decisions like Obergefell and Windsor were the products of an uneasy alliance between the conservative Kennedy and his four liberal colleagues. And, in closely divided cases, majority opinions are often assigned to the justice who is most on the fence — on the theory that this justice is unlikely to flip their vote if they can tailor the majority opinion to their own idiosyncratic views.
The result is that Kennedy’s great gay rights decisions were poorly argued. They ignore longstanding doctrines that could have provided a firm foundation for a rule barring discrimination on the basis of sexual orientation. Instead, they often substitute needlessly purple prose for the meat-and-potatoes work of legal argumentation.”
“The bill does not suggest that those whose assets are seized must be linked to—let alone convicted of—any crime. Rather, it states that the Biden administration shall “determine the constitutional mechanisms through which the President can take steps to seize and confiscate assets under the jurisdiction of the United States” of any foreign person on whom the president has imposed sanctions due to their links to Putin’s regime.
Nor does it require that sanctions and asset seizure be linked to corruption; political “support for” the Putin administration is enough.
Of course, in a country like Russia, where dissidence can be punished gravely, support may be a matter of (economic and sometimes literal) survival. Is it really fair for the U.S. to punish people for this?
Alas, a lot of legislators think so. The Asset Seizure for Ukraine Reconstruction Act passed the House by a vote of 417–8 on Thursday.
Rep. Alexandria Ocasio-Cortez (D–N.Y.) was one of just eight “no” votes on the measure.
“This vote asked President Biden to violate the 4th Amendment, seize private property, and determine where it would go – all without due process,” AOC said in a statement. “This sets a risky new precedent in the event of future Presidents who may seek to abuse that expansion of power, especially with so many of our communities already fighting civil asset forfeiture.”
It’s a very valid concern—and the kind all too rare among lawmakers and among political partisans more broadly.”