In a recent article for NR, I wrote about how the confirmation of Justice Kavanaugh had progressive thinkers rethinking the role of the federal courts. They’re not quite so keen on their exercising vast power any more. This rethinking is, I suggested, largely to be welcomed, as is the new interest in such steps as limiting the jurisdiction of the federal courts.
I missed this example of the trend when I wrote. I disagree with some of what Samuel Moyn has to say, as when he suggests doing away with judicial review altogether and claims that the Right has been more likely than the Left to “routinely use[] constitutional law to enact its policy preferences.”
I also think that he is mistaken to imagine that limiting the courts’ jurisdiction over abortion would advance progressive policy objectives in that area. Limiting the courts’ jurisdiction might protect certain kinds of pro-abortion laws — such as mandatory abortion referrals by crisis pregnancy centers or restrictions on protest outside abortion clinics. But since jurisdiction-stripping would work by protecting laws from the courts, and courts have generally not been interested in blocking pro-choice laws in the first place, the main effect of taking the issue out of courtrooms would be to protect pro-life laws.
As I wrote in NR, reducing the power of the federal courts is a worthwhile project, but liberals who endorse it are going to have to make peace with the end of Roe.