McCardle Question From a Student

Here is the question:

Suppose the Court decides a case Congress believes is wrongly decided, and Congress thereafter  decides to strip SCOTUS and lower federal courts of jurisdiction over cases on that subject. Does this overrule the already decided case? Does Congress have the power to overrule a SCOTUS decision it thinks is wrong?

And here is my answer:

No, Congress does not have power to overrule SCOTUS decisions. It has an express power to make exceptions to the Court's appellate jurisdiction, and lower federal courts exist at the pleasure of Congress, but no power to overrule judicial decisions.

So, suppose after Roe v. Wade created a right to abortion Congress decided to strip the federal courts of jurisdiction over abortion cases.

Roe v. Wade and the abortion liberty created by Roe would still be the law of the land. But all future abortion cases would be litigated in state courts and state Supreme Courts would have the final say.

So, suppose Alabama enacted a law prohibiting abortion after a detectable fetal heartbeat (6 to 8 weeks). All honest lawyers would have to agree that this law was unconstitutional under Roe v. Wade. But suppose the Alabama Supreme Court upheld the law (perhaps by unpersuasively distinguishing Roe v Wade). The case is over. No review by SCOTUS. The Alabama Supreme Court decision is final and controls in Alabama.

This is what leads some critics of jurisdiction stripping to argue against it. Roe is the law of the land, but not in Alabama and there is no federal jurisdiction to rein in the Alabama courts.

The only way Congress can overrule a SCOTUS decision interpreting the Constitution is by proposing an amendment to the Constitution. If the Amendment is ratified by the states, the Supreme Court decision would be overruled by the amendment. Not by Congress, but by we the people ratifying a constitutional amendment.