Structural reform fails – judicial strike down and nonenforcement

In any event, there are two closely related problems with this tactic — known as “jurisdiction stripping” — as a solution to a partisan Supreme Court. The first is that the question of whether Congress has the power to enact a particular jurisdiction-stripping law will be decided by the Court itself, so the justices may simply strike down an act of Congress that seeks to limit the Court’s jurisdiction.

The other problem is that most federal statutes do not enforce themselves; they need to be applied to individual parties through court orders. Congress might be able to prevent the Supreme Court from striking down the Voting Rights Act, for example, by stripping the Court of jurisdiction to hear voting rights cases. But if voting rights plaintiffs cannot obtain a court order enforcing the Voting Rights Act, then that law ceases to function.

Similarly, jurisdiction stripping would not allow Congress to restore a constitutional right to an abortion. Indeed, if Congress passed a law stripping federal courts of the power to hear abortion cases, that would strip them of their authority to hear a case seeking to reinstate Roe v. Wade.