The shocking leak of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization opinion revealed that the Court is poised to overturn Roe v. Wade. Some commentators say the leak creates a window of opportunity that Congress can exploit by taking away the Court’s power to hear abortion cases. It’s a strategy that several progressive academics have touted in recent years as a surgical strike against an increasingly conservative Supreme Court. The theory is that if the Court doesn’t have jurisdiction to hear abortion cases, including Dobbs, then it can’t overrule Roe. If the idea sounds too good to be true, though, that’s because it is. It underscores that there’s no easy way to reverse or forestall the looming demise of Roe. Democrats failed earlier this month to codify Roe by statute. They’ve vowed to try again this year, but given the composition of the Senate, and the determination of Republicans to use the filibuster, they’re unlikely to fare better. The jurisdictional fix has a theoretical appeal, but as a practical matter, it’s unlikely to pass. Even worse, it could backfire.
Begin with how the jurisdictional strategy works in theory. Under the U.S. Constitution, federal courts, including the Supreme Court, hear cases only if Congress has given them the power to do so. And what Congress gives, it can take away. That’s the logic behind “jurisdiction stripping”—taking away courts’ power over certain classes of cases. So, Congress could undertake a preemptive strike against the Supreme Court by withdrawing its jurisdiction over abortion cases, thereby freezing Roe in place.
There is precedent for a jurisdiction strip under eerily similar circumstances. During Reconstruction, federal authorities in Mississippi detained William McCardle, an unreconstructed white newspaper editor, for trying to undermine Reconstruction efforts. In a cruelly ironic twist, McCardle challenged his detention by relying on a new habeas corpus law giving recently liberated Black Americans the right to sue for their freedom if they were illegally imprisoned. But McCardle didn’t just seek his freedom. He challenged the constitutionality of the entire Reconstruction project in the South.
Fearing that the Supreme Court might agree with McCardle, Congress scrambled to repeal the new habeas law and stripped the Court of jurisdiction to adjudicate it. This gambit came at the 11th hour. The Court had already heard arguments and seemed poised to render its decision, just as today the Court is close to announcing its decision in Dobbs. But in McCardle, the Court backed down. It dismissed the case, and Reconstruction continued.
Could Congress exploit the Dobbs leak and pull a modern-day McCardle? In a technical sense, yes, but not in terms of actually accomplishing anything.
Suppose Congress somehow finds the votes to strip the Supreme Court of jurisdiction to hear abortion cases. And suppose that, as in McCardle, the Court dismisses Dobbs. That means that the Court wouldn’t issue the leaked draft opinion, and Roe would seem to survive as a precedent.
But let’s game out what happens next. Beyond the Mississippi law at issue in Dobbs, many states are poised to enact strict abortion bans (and some have already done so). If the Supreme Court can’t hear any abortion cases, perhaps the lower federal courts would continue to follow Roe and strike down those laws. But perhaps not. Free from the threat of reversal by the Supreme Court, federal appellate courts, stacked as they are with right-wing appointees, could ignore Roe and uphold new restrictions.
What if Congress stripped all federal courts of jurisdiction over abortion? Things would be no better. States would be left to their own devices. If a state legislature passed a draconian abortion law and state prosecutors indicted a woman who received an abortion for murder (a move that Louisiana seriously considered), her only recourse would be state courts. Even if Roe technically remained on the books, state judges would have free rein to ignore it. In Texas, Roe would come to mean whatever the Texas legislature and Texas courts say it means. If they ignored Roe, that would be the final word for a woman being prosecuted in Texas.
Couldn’t Congress pair jurisdiction stripping with federal legislation guaranteeing reproductive freedom? Sure. But such a law would need courts to enforce it. That means depending on the same federal courts whose jurisdiction Congress sought to strip or state courts that could simply ignore the law. This is just a different route to the same dead end.
All of this suggests that jurisdiction stripping, even if it could pass Congress, wouldn’t preserve Roe. And it might make matters worse. Free from Supreme Court review, states could go beyond what the Court might have countenanced. Even if a couple of justices in the Court’s conservative majority had qualms about prohibiting abortion in cases of rape and incest, states would have a free hand. Jurisdiction stripping, in short, isn’t a magic wand.
There’s a broader lesson for progressives worried about an aggressively right-wing judiciary: Quick fixes don’t exist. The conservative legal movement played a long and broad game for decades. It built up the famed Federalist Society. It convinced Republican voters to treat the Supreme Court as an important litmus test. And it leaned heavily on Republican presidents to appoint conservative judges. The result is a federal judiciary filled from top to bottom with agenda-driven conservatives.
Those committed to a different vision of American law and an equitable and just society have hard work before them. This includes grassroots popular organizing and winning elections at all levels of government. Those efforts will be made even harder by obstacles to free and fair elections erected by conservative judges, such as the Supreme Court’s dramatic curtailment of the Voting Rights Act in 2013. But there is no other path forward.
The times demand a mass popular movement to protect fundamental liberties. Constitutional magic tricks can’t save us.
