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Ryan D. Doerfler, Strip Its Power, The Nation, June 13, 2022, at 11.


Abstract: Doerfler discusses how to fix the US Supreme Court. With the leak of a draft opinion in Dobbs v. Jackson Women’s Health Organization formally overruling Roe v. Wade, progressives’ worst fears about an ever more reactionary Supreme Court appear set to come true. The Supreme Court’s refusal to guarantee meaningful, positive rights to US citizens (let alone noncitizens) goes far beyond abortion. In addition to failing to provide positive rights, the Supreme Court has, throughout its history, actively impeded Congress from providing such rights through ordinary legislation. By invoking its power under Article III to make "exceptions" to the Supreme Court’s jurisdiction over most cases and its total discretion over the existence of "inferior" federal courts, Congress could–and should–insulate legislation like the Women’s Health Protection Act from judicial invalidation by including a provision withdrawing from any court the right to consider challenges to the constitutionality of that law.