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Rep. Alexandria Ocasio-Cortez (D-N.Y.) speaks to abortion rights activists in front of the U.S. Supreme Court after the court's reactionary majority overturned Roe v. Wade on June 24, 2022 in Washington, D.C.

Rep. Alexandria Ocasio-Cortez (D-N.Y.) speaks to abortion rights activists in front of the U.S. Supreme Court after the court's reactionary majority overturned Roe v. Wade on June 24, 2022 in Washington, D.C. (Photo: Nathan Howard/Getty Images)

House Progressives Cite Clarence Thomas to Argue SCOTUS Should Lose Jurisdiction Over Abortion

In a new letter, lawmakers cited Thomas' argument that Congress has the constitutional authority to limit the high court's jurisdiction.

Kenny Stancil

Reps. Alexandria Ocasio-Cortez and Mondaire Jones on Thursday led a group of progressive lawmakers in sending a letter to Democratic leaders urging them to support restricting the Supreme Court's appellate jurisdiction over statutes codifying abortion and other civil rights imperiled by the court's reactionary majority.

"Congress must use its powers to restrain the court and protect our fundamental rights—once and for all."

"With our basic rights under threat from a rogue Supreme Court, Congress needs to exercise our legal authority to the fullest extent," Ocasio-Cortez (D-N.Y.) tweeted Thursday. "That's why today we called on Senate Majority Leader Chuck Schumer (D-N.Y.) and House Speaker Nancy Pelosi (D-Calif.) to support stripping the Supreme Court's jurisdiction over abortion."

"Congress is granted the authority to remove the Supreme Court's jurisdiction under Article III" of the Constitution, she continued. "To protect marriage equality, contraception, and more, we need to limit the power of the far-right court that's already overturned Roe v. Wade."

Jones (D-N.Y.) argued that "this far-right Supreme Court is on a rampage against the freedoms of the American people."

Prior to last month's 6-3 ruling in Dobbs v. Jackson Women's Health Organization—a decision that experts say will have deadly consequences and violates international law—access to legal abortion care had since 1973 been protected by the 14th Amendment's substantive due process clause.

Fears that additional constitutional rights could soon be eliminated have intensified since Justice Clarence Thomas wrote in his concurring opinion that "in future cases," the nation's chief judicial body "should reconsider all of the court's substantive due process precedents."

Thomas specifically named the watershed cases of Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges, which enshrined rights to contraception, same-sex intimacy, and marriage equality in 1965, 2003, and 2015, respectively.

"Congress must use its powers to restrain the court and protect our fundamental rights—once and for all," said Jones.

The letter calls on Congress to not only codify the right to abortion by passing the Women's Health Protection Act (WHPA), but to also exercise its authority to preempt the high court's right-wing majority from nullifying it and other legislation that Democrats may enact to protect access to contraception, same-sex intimacy, and marriage equality, all of which are now in jeopardy.

If the WHPA—passed multiple times by the House but twice-defeated in the Senate when Joe Manchin (D-W.Va.) joined Republicans to filibuster it—is enacted, "we can expect that legal challenges will eventually come before the Supreme Court again," says the letter, co-signed by Democratic Reps. Bonnie Watson Coleman (N.J.), Marie Newman (Ill.), Rashida Tlaib (Mich.), Jamaal Bowman (N.Y.), Ilhan Omar (Minn.), Mark Takano (Calif.), Kai Kahele (Hawaii), and Cori Bush (Mo.).

"History will record this as the moment when we decided what we would do to defeat the threat of fascism."

"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," wrote the lawmakers. "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."

"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," they continued. "The American people want to see Congress protect their fundamental rights, and the Constitution grants us the powers to do so."

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."

As the lawmakers noted, the Supreme Court "has repeatedly and consistently affirmed Congress' Article III powers," including Justice Thomas himself:

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."

According to the lawmakers, "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."

During Thursday's House Judiciary Committee hearing, Jones stressed that "we are not powerless to stop this court's rampage against our freedoms."

Congress has "a breathtaking number of options to rein in the power of this rogue Supreme Court," said Jones. "In the past, Congress has deprived the court of appellate jurisdiction to issue certain decisions. It has expanded and contracted the number of justices. It has granted and withheld the court's power to issue injunctions and other writs."

In their letter, lawmakers expressed additional concerns about the high court's "dismantling of other statutes duly enacted by Congress," including the Voting Rights Act and the Clean Air Act.

Jones, for his part, argued that "we are at an inflection point, and years from now history will record this as the moment when we decided what we would do to defeat the threat of fascism in this country posed by the modern-day Republican Party, with the Supreme Court as an accomplice."

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