disempowerment reforms could undermine the rule of law by eliminating the courts’ role in ensuring officials’ accountability. Some also question whether courts necessarily operate in ways that are antidemocratic.[11]
Our discussion is predominantly analytical. We do not purport to resolve the fundamental questions of democratic and political theory that any substantial disempowering of the courts would raise. Instead, we analyze the extent to which the various proposals to disempower the courts would in fact realize their stated goals. We also identify some of the potential costs of various proposals, including from the perspective of those who emphasize the importance of the courts in protecting individual rights, federalism, or other constitutional values and structures. Finally, we discuss the constitutional issues to which leading proposals would give rise and evaluate whether the proposals could be achieved without constitutional amendment. Given the importance of concerns about the Court’s power in relation to the elected branches—and given the relative lack of attention disempowering proposals have received compared to some of the other reforms discussed in this Report—a key aim of this Chapter is to inform future debate on these topics.[12]
I. Proposals to Restrict the Supreme Court’s Jurisdiction
One set of proposals to reduce the power of the Supreme Court involves limiting the Court’s jurisdiction to hear and decide certain types of cases. Over the last fifty years, various members of Congress have proposed bills that would strip the jurisdiction or authority of the Supreme Court—sometimes in conjunction with the jurisdiction of other courts—to rule on the constitutionality of anti-abortion legislation,[13] school prayer,[14] the Affordable Care Act,[15] prohibitions against pornography,[16] local mandates to recite the Pledge of Allegiance,[17] and the now-invalidated Defense of Marriage Act.[18] Proponents of such jurisdiction-stripping measures may hope that limiting the Court’s power in this way would shift control over affected public policies to the political and democratic processes. However, we note that jurisdiction stripping has no inherent partisan valence and could be utilized to serve the ideological goals of nearly any constituency with the political capacity to enact it.
Jurisdiction stripping has long been a topic of debate among legal academics as well, and it has drawn new attention in the last few years. For example, one commentator recently suggested that Congress might use jurisdiction stripping to protect specific legislation, such as a hypothetical federal wealth tax, from judicial invalidation.[19] Others have proposed jurisdiction stripping as a general means of disempowering the Court and shifting authority to
