Congressional action to limit the jurisdiction of the federal courts used to be a right-wing cause: I have written in favor it myself several times over the years, with extremely limited success in spurring action. Now, the idea is enjoying a vogue on the left.
Several left-wingers in the House are urging Congress to use its jurisdiction-limiting power to protect progressive legislation from judicial review. They want, for example, to pass a version of the Women’s Health Protection Act (supposedly codifying Roe v. Wade but actually going beyond it) that insulates it from Supreme Court review. They would have the D.C. Circuit be the last word about the bill.
The fear appears to be that the conservative majority on the Supreme Court may deny that the federal government has the power to dictate abortion policy to the states, while the D.C. Circuit will allow it.
Maybe there’s some long game where the congressional letter makes sense, but what’s strange about it is that the Senate does not appear to have the votes to pass the WHPA now. Adding a bold, arguably radical shift in the separation of powers seems unlikely to help gain it those votes. It’s not going to make Senators Collins and Murkowski budge in their opposition to the current version of the bill; if it were added to it, they would probably just see it as an additional reason to say no.
I think some on the Left may also be exaggerating how much can be done to defeat judicial review. Ryan Cooper, writing in The American Prospect, says that Biden or some future president should say that the Supreme Court got Marbury v. Madison wrong and then act accordingly. “From now on, if Congress, for example, directs the president to regulate air pollution, then they will do as instructed, rather than obeying the Court’s wishes.”
Cooper reads Marbury in the conventional way, as establishing a judicial power to strike down laws. It can, however, be read to establish merely that the courts have a duty not to exercise powers inconsistent with the Constitution. Marbury said that Congress had purported to give the Supreme Court a power the Constitution does not allow it to have, that deciding the case required it to choose between the law Congress passed and the Constitution, and that it was obliged to follow the Constitution.
I don’t see how jurisdiction-stripping, or presidential flouting of the Supreme Court, can defeat this type of judicial review (even if defeating it were a good idea). If regulations require air polluters to be tried and sentenced in federal courts, those polluters have to be able to raise the defense that the regulations do not conform to the Constitution. If the federal courts agree, how could a law, or a presidential statement, force them to cooperate in giving those regulations effect?