the “jurisdictional” statute violated the Due Process Clause or otherwise intruded on the courts’ exercise of an irreducibly judicial function.
d. Conclusion on Constitutionality
Given the Exceptions Clause, Congress undoubtedly has some capacity to disempower the Supreme Court by restricting its jurisdiction if Congress should choose to do so. But the precise scope of congressional power is uncertain. Moreover, even if we were prepared to make conclusions about the proper resolution of disputed issues, the requisite judgments would depend on the fine-grained details of particular proposals.
That said, we offer three general conclusions: First, congressional legislation aimed at disempowering the Supreme Court by limiting its jurisdiction to resolve particular constitutional issues would likely trigger constitutional challenges. Second, depending on the precise form that jurisdiction-limiting legislation might take, the Supreme Court could plausibly find some of the possible challenges to be meritorious. Third, the more that jurisdiction-limiting legislation leaves open alternative avenues for judicial enforcement—such as through state courts and lower federal courts—the more likely it is to survive constitutional challenges. However, leaving open alternative avenues for judicial enforcement might also hinder jurisdiction-stripping legislation from achieving the ends that its proponents would wish to realize.
II. Proposals for Supermajority Rules or Deference Rules at the Supreme Court
A second way to reduce the Supreme Court’s power would be to impose a supermajority voting requirement for decisions finding actions of the political branches unconstitutional, or alternatively, to require the Court to apply a deferential standard of review in constitutional cases. These proposals would make it more difficult than it is today for the Supreme Court to invalidate legislation and other acts of the elected branches on constitutional grounds. Like other proposals discussed in this Chapter, they therefore would shift some power away from the Court, although they would still leave the Court as the ultimate authority over constitutional matters.
This Part provides an overview of supermajority voting requirements and deferential standards of review as potential reforms. It begins with a historical and comparative look at proposals for supermajority voting requirements advanced at earlier times in U.S. history and
