Letter to Nancy Pelosi, Speaker of the House, Chuck Schumer, Senate Majority Leader - Reps. Jones, Ocasio-cortez Lead Push to Strip Supreme Court's Jurisdiction Over Abortion

Letter

Dear Speaker Pelosi and Leader Schumer:

We write to urge your support for restricting the Supreme Court's appellate jurisdiction in the areas of abortion, marriage equality, non-procreative intimacy, and contraception. In doing so, we can ensure that, as Congress takes legislative action to codify each of these fundamental rights, a radical, restless, and newly constituted majority on the Court cannot further undermine the protections we would enact.

The Supreme Court's devastating decision in Dobbs v. Jackson Women's Health Organization (2022) is unprecedented. For the first time in our nation's history, the Court rescinded an individual right recognized by our Constitution. In Planned Parenthood v. Casey (1992), the Supreme Court recognized that "overruling Roe's central holding would not only reach an unjustifiable result under stare decisis principles but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law."

Justices Breyer, Sotomayor, and Kagan echoed these sentiments in their dissenting opinion in Dobbs, noting that the legitimacy of the Court is "earned over time" but "can be destroyed much more quickly." The justices noted that it is impossible for the public not to conclude that their "constitutional protections h[a]ng by a thread--that a new majority, adhering to a new "doctrinal school,' could by "dint of numbers' alone expunge their rights."

As a result of the Supreme Court's actions, millions of people will no longer have access to abortion care, a crisis disproportionately impacting women, people of color, LGBTQIA+ people, and the undocumented. Moreover, Justice Thomas' concurrence in Dobbs laid out a clear plan for the Supreme Court to overturn Obergefell v. Hodges (2015), Lawrence v. Texas (2003), and Griswold v. Connecticut (1965) in the near future, placing the rights to marriage equality, non-procreative intimacy, and contraception in jeopardy. The irresponsible and harmful decision in Dobbs demands swift action to fully codify these rights at the national level and prevent the Supreme Court from further dismantling them.

The House of Representatives already passed the Women's Health Protection Act ("WHPA") last fall to codify the constitutional right to abortion, and if this bill becomes law, we can expect that legal challenges will eventually come before the Supreme Court again. Once more, the constitutional right to abortion would be put at risk. We are concerned by the Court's dismantling of other statutes duly enacted by Congress, including the Voting Rights Act and the Clean Air Act.

The solution is to prevent the Supreme Court from reviewing the constitutionality or legality of the WHPA, which can be done in the next version of the WHPA that we pass this term. Congress' authority to limit the Court's jurisdiction is clear. Article III, Section 2 of the Constitution establishes that 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." Alongside the WHPA, similar provisions must be included in our bills that seek to codify Americans' fundamental rights to marriage equality, non-procreative intimacy, and contraception.

The Supreme Court itself has repeatedly and consistently affirmed Congress' Article III powers. In Durousseau v. United States (1810), the Supreme Court held that "the appellate powers of the Supreme Court of the United States, are given by the Constitution, but they are limited and regulated by the Judicial Act and other acts passed by Congress on the subject." Most recently, in Patchak v. Zinke (2018), Justice Thomas held for the Court that, "When Congress strips federal courts of jurisdiction, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it. Indeed, this Court has held that Congress generally does not violate Article III when it strips federal jurisdiction over a class of cases."

As we Democrats plan for further legislative action to protect and enshrine abortion rights, as well as the three other fundamental rights called into question in Justice Thomas' concurring opinion in Dobbs, we urge the exercise of Congress' constitutional powers under Article III to include language that removes the Supreme Court's appellate jurisdiction over such legislation. Congress can instead assign exclusive appellate jurisdiction to another federal court, such as the D.C. Circuit. For instance, doing so in the WHPA would direct all appeals involving the WHPA to the D.C. Circuit, avoiding appellate review by other far-right circuits and the Supreme Court. This term, we included a similar provision in H.R. 1, the For the People Act, which directed appellate review of that legislation to the D.C. Circuit.

The American people want to see Congress protect their fundamental rights, and the Constitution grants us the powers to do so. Congress, as the branch of government that is closest to the people, has a duty to exercise its powers For the People. Thank you for your consideration and leadership in defense of fundamental rights and the Constitution.

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