constitutional question over which Congress had precluded formal Supreme Court review. If state courts found that prior Supreme Court precedents tied their hands, then this sort of jurisdiction stripping would be limited as a means of promoting democratization of authority over constitutional interpretation. An unintended effect might even be to freeze in place the Supreme Court doctrine on the books at the time of the jurisdiction stripping.
Proposals that would strip the jurisdiction of all courts to rule on the constitutionality of federal (and possibly also state) legislation would undoubtedly have a major effect in allowing Congress and state legislatures to insulate their preferences and judgments of constitutional validity from judicial review. Whether congressional preclusion of all judicial review of specific legislation or policies could fairly be described as injecting political accountability into the process of constitutional interpretation would depend on (a) whether Congress actually purported to conclude that the legislation or policies that it shielded from judicial review were constitutionally valid and (b), if so, whether it took its responsibilities to apply and interpret the Constitution seriously. Some commentators believe that legislatures in countries that do not have judicial review discharge their responsibilities to protect individual rights with impressive conscientiousness.[50] It is also imaginable, however, that legislation precluding all judicial challenges to particular statutes or programs could have the purpose and effect of undermining constitutional rights, because Congress and state legislatures might not feel bound to protect them.
2. Consequences for the Functioning of the Federal System
The systemic consequences of jurisdiction-stripping legislation would similarly depend on the details of any particular measure that Congress might adopt. Legislation that withdrew appellate jurisdiction from the Supreme Court but retained jurisdiction in the lower federal courts and in state courts would obviously diminish the capacity of the Supreme Court to ensure uniformity in constitutional interpretation (and consistency in constitutional outcomes) across federal courts of appeals and state supreme courts. The courts of appeals and state supreme courts could become the courts of last resort with respect to the constitutional status of federal legislation. Thus, a federal statute could be held constitutional by one circuit and unconstitutional by another, with no apex court to resolve the circuit split. We would regard this resulting lack of uniformity on matters of great political or constitutional salience as a significant cost.
In some cases, moreover, the absence of opportunity for appeal to the Supreme Court could result in a single lower court having the capacity to utter the last, controlling word on
