Ex Parte McCardle

Progressives are unhappy with the Roberts Court's turn to originalism. Recently, many progressive law professors are suggesting jurisdiction stripping as a means of limiting Supreme Court review of cases such as Dobbs, 303 Creative, and the Second Amendment. Suppose, after 303 Creative has been decided, Congress enacts a statute that provides as follows:

1. The Supreme Court shall not have jurisdiction to review any case concerning free speech in places of public accommodations [or abortion or the right to keep and bear arms]; and

2. No inferior federal court shall have jurisdiction over any case concerning free speech in places of public accommodations [or abortion or the right to keep and bear arms].

Notice this statute would have the effect of removing cases concerning free speech in places of public accommodations from the federal courts. Is this statute Constitutional?

Perhaps one way to think about "jurisdiction stripping" legislation is that it is a check on the vast power of the judiciary that gives the People, acting through their democratically-elected representatives in Congress, the ability to enact a vote of no confidence in the federal courts on certain issues. In effect, this kind of legislation announces that the People would prefer that their Constitution (it is their Constitution, is it not?) be interpreted and safeguarded by state courts, rather than federal courts, concerning certain issues.

Is there any reason to think that federal judges are more intelligent or more ethical or less prone to judicial imperialism than are the men and women who serve on state courts? In a diverse nation that still reflects a great deal of regional difference, is there room for diverse interpretations of the Constitution? Or is there only one "correct" view (the one that has the votes of at least 5 Justices on the U.S. Supreme Court)?

On the other hand, some argue that legislation stripping the Court of jurisdiction is problematic because it undercuts the Supremacy Clause (Art. VI, paragraph 2) and undermines the uniformity of decisions throughout the United States on constitutional law (citizens of Mississippi have one free speech clause rule, citizens of New York have another). Do you understand these arguments for adopting a restrictive reading of McCardle and the exceptions clause?