Roberts’ Nuclear Option to Get Around the Supreme Court
The year 1981 was a big one for court-stripping—or, as it’s sometimes called, jurisdiction-stripping. No fewer than
30 pieces of legislation were introduced into the U.S. House of Representatives by Republican congressmen that included court-stripping provisions. It was a huge topic of discussion and legal activity among Republicans.
And a young lawyer working in Ronald Reagan’s Justice Department, an up-and-comer named John Roberts, was hot on the trail.
Court-stripping is based on the idea that Congress has the power, under the Constitution, to pass laws that include provisions that specifically prevent (or strip the jurisdiction of) the Supreme Court (or any other federal court, if stipulated) from ruling on that particular law or issue’s constitutionality.
It’s based on
Article III, Section 2, of the Constitution, which says, “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.”
In 1954, the Supreme Court ruled, in
Brown v. Board, that states had to racially integrate their schools. Southern states promised “
massive resistance” in defiance, and entire school districts were shut down; many Southern states opened private all-white “segregation academies” such as the one Mississippi Senator Cindy Hyde-Smith
famously went to and sent her daughter to.
Brown provoked a mini-industry among right-wing white racists: Fred Koch’s beloved John Birch Society was putting up “Impeach Earl Warren” billboards across the nation and publishing articles and pamphlets tying civil rights activists to communism; hundreds of all-white private schools opened; and conservative scholars of the Supreme Court and the Constitution searched through old books and debates from the founding era to that day looking for rationales to overturn the decision.
Other than years of disruption to public education and a redoubled effort by conservatives to keep public schools funded with local property taxes (so that poor and/or Black schools would continue to turn out poorly educated students), not a great deal came of the opposition to
Brown v. Board.
But defying the Court became a much bigger business in 1973, when the court in
Roe v. Wade ruled that women have the right, at least in the first trimester of a pregnancy, to choose to have an abortion pretty much anywhere in the country, for any reason.
Reagan kicked off his 1980 presidential campaign with a speech about education and states’ rights to a predominantly white crowd near Philadelphia, Mississippi, where three civil rights activists had been murdered in 1964. Willing to say and do whatever it took to take the White House, Reagan was the perfect vessel for a white supremacy message opposing forced integration, welfare for Black people, and abortion for white women.
Reagan’s administration brought together a constellation of conservative white men to change the face of America. Ted Olson, who later argued
Bush v. Gore before the U.S. Supreme Court, led the Justice Department’s Office of Legal Counsel. As an assistant attorney general, Olson worked with counselor to the attorney general Ken Starr (appointed to that job in 1981), who was later (1989-1993) George H.W. Bush’s solicitor general. Other new faces Reagan hired included Samuel Alito and John Roberts.
Starr tasked Roberts, a staunchly antiabortion Catholic, with reviewing the entire history of the U.S. Supreme Court for cases that suggested a legislative or administrative way to overturn
Roe v. Wade and
Brown v. Board.
Roberts wrote an
extraordinary 27-page document that’s largely unknown, in the form of a memo on the letterhead of the Office of the Attorney General, to Ken Starr, signed by Roberts as special assistant to the attorney general. It is titled, “Proposals to Divest the Supreme Court of Appellate Jurisdiction: An Analysis in Light of Recent Developments.”
Roberts wrote that he had found “over twenty bills [pending in Congress] which would divest the Supreme Court (and, in most instances, lower federal courts as well) of jurisdiction to hear certain types of controversies, ranging from school prayer and desegregation cases to abortion cases.”
What Roberts and his researchers had discovered was substantial.
Court-stripping is based on the exceptions clause of Article III, Section 2, of the Constitution, which
stipulates that the courts exist “with such Exceptions, and under such Regulations as the Congress shall make.”
Roberts noted in his memo that “[t]he exceptions clause by its terms contains no limit… This clear and unequivocal language is the strongest argument in favor of congressional power and the inevitable stumbling block for those would read the clause in a more restricted fashion.”
Roberts was looking at the nuclear option. If he could build a strong case for Congress passing a law against abortion or desegregation, and persuade Congress to use the exceptions clause to render the courts moot, then this could be the magic bullet to restore segregation and recriminalize abortion.
Roberts concluded with a 1968 comment from Sam Ervin of North Carolina, one of the Senate’s most outspoken opponents of racial integration and abortion.
He wrote, “As Senator Ervin noted during hearings on the exceptions clause, ‘I don’t believe that the Founding Fathers could have found any simpler words or plainer words in the English language to say what they said, which was that the appellate jurisdiction of the Supreme Court is dependent entirely upon the will of Congress.’”
Roberts agreed: “[W]e are not considering a constitutional clause that is by its nature indeterminate and incapable of precise or fixed meaning, such as the due process clause or the prohibition on unreasonable searches and seizures.”
This was clearly the original intent, Roberts argued, because “the exceptions clause ‘was not debated’ by the Committee of Detail which drafted it or the whole Convention.”
Citing Federalist, no. 81, Roberts wrote, “Hamilton noted that the clause would enable ‘the government to modify [appellate jurisdiction] in such a manner as will best answer the ends of public justice and security,’ and that appellate jurisdiction was ‘subject to any exceptions and regulations which may be thought advisable.’”
Section III of Roberts’ screed on court-stripping dives deep into Supreme Court decisions to find rulings explicitly saying that Congress can regulate the Supreme Court and block the court from ruling on particular issues.
Beginning with the 1869 decision
Ex parte McCardle, Roberts wrote, “A unanimous Court upheld the power of Congress to divest the Supreme Court of jurisdiction. The Court clearly based its decision on Congress’ power under the exceptions clause. Chief Justice Chase began the opinion by recognizing that the appellate jurisdiction of the Court ‘is conferred “with such exceptions and under such regulations as Congress shall make.”’”
Quoting Chase again, Roberts added his own emphasis: “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this Court is given by express words [underline Roberts’].”
He continued his historical exposé of court-stripping with another 1869 decision,
Ex parte Yerger, and then
United States v. Klein (1872),
Wiscart v. Dauchy (1796),
Durousseau v. United States (1810),
Daniels v. Railroad (1865), and
The Francis Wright (1881).
In
The Francis Wright, Roberts found that Chief Justice Morrison R. Waite (whose court oversaw the infamous 1886 “corporate personhood”
Santa Clara County v. Southern Pacific Railroad case) wrote for a unanimous court,
quoting him as follows: “Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to re-examination and review, while others are not.”
Each case strengthened the idea that Congress could simply pass a law, without even needing a supermajority, that barred the Supreme Court from ruling on a set of issues—like Reagan’s hot-button issues of school desegregation and abortion.
Moving toward late-19th-century decisions, Roberts quoted the court in
Colorado Central Consolidated Mining Co. v. Turck (1893): “It has been held in an uninterrupted series of decisions that this Court exercises appellate jurisdiction only in accordance with the acts of Congress upon the subject.”
Roberts, in his own voice, added, “Again, it bears emphasis that the basis for this theory is the implicit exercise by Congress of its exceptions power when it makes a limited grant of jurisdiction.”
Still building his case, Roberts jumped into 20th-century rulings, starting with
National Mutual Insurance Co. v. Tidewater Transfer Co. (1948). Writing for the majority, Justice Felix Frankfurter noted in the decision, “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.”
About the 1944
Yakus v. United States case, Roberts wrote, “Justice Rutledge noted… that ‘Congress has plenary power to confer or withhold appellate jurisdiction.’”
Regarding
Flast v. Cohen (1968), Roberts quoted from Justice William O. Douglas, who wrote, “[A]s respects our appellate jurisdiction, Congress may largely fashion it as Congress desires by reason of the express provisions of Section 2, Article III. See Ex parte McCardle.”
In Section IV of his memo, Roberts again covered the span from the framing of the Constitution to the time of his writing the memo, quoting another dozen or so cases that referenced, less directly, the power of Congress to exempt the Court from certain issues or decisions.
Roberts also noted that the original
Judiciary Act of 1789 (which created the federal court system) also refers to Congress’ power of exception.
Time to Play Hardball
Both demographics and popular political opinion are moving against the Republican Party, and Republican politicians know it. Democrats should use this moment—if we can succeed in fighting back the GOP fascist tide—to use historical precedent to reconfigure our government so it represents the will of a majority of Americans.
No more Mx. Nice Guy.
Thom Hartmann is a talk-show host and the author of The Hidden History of American Oligarchy and more than 30 other books in print. His most recent project is a science podcast called The Science Revolution. He is a writing fellow at the Independent Media Institute.
This article was produced by Economy for All, a project of the Independent Media Institute.
LONG READ BUT WORTH IT 
I aint mad at that.
