Court Stripping

Members of Congress have periodically sought to remove jurisdiction and discretion from the federal courts after unpopular rulings on issues such as school desegregation, the draft, Miranda warnings, school prayer, and abortion.  This trend towards attempting to strip the federal courts of jurisdiction has continued with the introduction of legislations that would deny the federal judiciary the right to rule on the constitutionality of certain laws.


Passage of these “court stripping” measures would establish a dangerous precedent by circumventing judicial review, thereby avoiding the vital checks and balances created by the US Constitution. In addition, denying access to federal courts would force plaintiffs to raise federal claims in state courts, which often lack expertise and the independent safeguards afforded to federal judges under Article III of the Constitution.


The Constitution gives Congress limited jurisdiction over the Supreme Court and federal courts. Article III grants the Supreme Court original jurisdiction over the cases in which a state or a foreign official is a party, and appellate jurisdiction in all other cases “with such Exceptions, and under such Regulations as the Congress shall make.” It is widely held that the power to make “exceptions” that limit federal court jurisdiction is constrained under the Constitution; otherwise, the amendment process would be superfluous. Congress could, by a simple majority, enact laws that would rewrite the Constitution and exempt the new laws from judicial review.


Very often it is minority groups that rely on federal courts to protect their rights to free speech, freedom of religion, and the guarantee of equal protection. These groups would be most disadvantaged by court stripping measures.


The JCPA believes that: 

  • Court stripping proposals, if enacted, would create dangerous precedents in the areas of equal protection, separation of powers, and due process. The principle of judicial review has been fundamental to the separation of powers since Marbury v. Madison, which recognized the necessity for judicial protection of citizens from legislative and executive overreaching. Our system of government, with its checks and balances, depends upon an independent judiciary to ensure that all legislation complies with the values in the Constitution.


The community relations field should:                                         

  • Educate the public on the negative effects of court stripping proposals; and,
  • Oppose legislation to diminish the separation of powers through court-stripping measures.