Proponents of such legislation, moreover, would likely defend it as enhancing political democracy and accountability by enabling Congress, as a democratically accountable institution, to authoritatively resolve a constitutional issue about which reasonable minds could be expected to differ.[48]
However, the ability of issue-specific jurisdiction-stripping legislation to promote political democracy seems by definition limited, since legislation of this kind would still leave responsibility for the overwhelming bulk of constitutional interpretation in the courts, despite stripping it from discrete contexts. Similarly, general jurisdiction-stripping bills that affect a smaller subset of courts rather than the full set of federal and state courts would have limited effect in enhancing democratic accountability in the domain of constitutional interpretation.
Measures that would restrict the appellate jurisdiction of the Supreme Court alone, for example, would not straightforwardly transfer interpretive authority from the judiciary to Congress or to any other democratically accountable institution. They would instead reallocate power from the Supreme Court to the lower courts. There seems to be little reason to preclude Supreme Court jurisdiction over specific constitutional questions that remain subject to decision by the lower courts. Precluding Supreme Court review alone would do little or nothing to enhance political democracy. Nor would it advance interests in justice or accuracy to permit different courts to issue incompatible rulings on the same substantive constitutional issue with no possibility of Supreme Court review.
Proposals that would withdraw jurisdiction from all federal courts but allow continued adjudication of a constitutional issue in the state courts might more plausibly aspire to promote a democracy-enhancing goal. They would leave responsibility for constitutional decisions in the hands of state judges who are, in many instances, democratically elected or otherwise amenable to the influence of public opinion. By contrast, Article III of the federal Constitution seeks to insulate federal judges from political influence through guarantees of life tenure and protection against salary reduction.
We are uncertain, however, about the precise extent to which a transfer of adjudicative power from federal to state courts would enhance the influence of political majorities over the resolution of constitutional issues. To reach such a conclusion would require resolution of myriad empirical and normative issues. State court judges would remain bound by the Supremacy Clause, which provides that the Constitution is the “supreme Law of the Land” and that “the Judges in every State shall be bound thereby,”[49] but it is not clear whether state court judges would be bound by preexisting Supreme Court precedents speaking to the
