Bench Memos

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Federalism, Roe, and Jurisdiction Stripping


The brilliant writer and thinker David Gelernter has an elegant essay in the current issue of the Weekly Standard extolling the virtues of federalism and examining in particular how Roe v. Wade’s trampling of federalism has led to a “poisonous polarization” in national politics.

I’m surprised, though, by Gelernter’s proposed mechanism for restoring federalism: congressional legislation abolishing federal-court jurisdiction over cases involving abortion. I have no objections in principle to jurisdiction-stripping legislation, and the relevant text of the Constitution appears suitably expansive: Article III, section 2, clause 2 provides that “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make” (and that provision, together with Congress’s plenary power under Article III, section 1, to establish the lower federal courts, would seem to provide at least as much power over the jurisdiction of those courts).

My concern is that such legislation would likely be ineffective or even counterproductive. First, the Supreme Court and the federal courts, eager to enhance their own power, might well rule that Gelernter’s proposed legislation is unconstitutional. What, then, would Congress do? Second, even if the legislation were to apply fully, it’s highly doubtful that the legislation would have the effect of overruling Roe. Instead, it seems far more likely that state judges would (properly, I fear) continue to regard Roe as binding and that the proposed legislation would serve merely to prevent the possibility of the Supreme Court’s ever overturning Roe.

Others, I’m sure, have given much more careful attention than I have to these issues. I’d be pleased to learn that my concerns are misplaced, so I’d welcome any references from law professors (or other readers) familiar with the scholarship on this matter.


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