House Progressives quote Clarence Thomas to say SCOTUS should lose abortion jurisdiction

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

“Congress must use its powers to restrict the court and protect our basic rights, once and for all.”

“With our basic rights threatened by a rogue Supreme Court, Congress must fully exercise our legal authority,” Ocasio-Cortez (DN.Y.) tweeted Thursday. “That’s why today we called on Senate Majority Leader Chuck Schumer (DN.Y.) and House Speaker Nancy Pelosi (D-Calif.) to support removing the jurisdiction of the Court supreme in matters of abortion.”

“Congress has the power to remove the jurisdiction of the Supreme Court under Section III” of the Constitution, she continued. “To protect marriage equality, contraception, etc., we must limit the power of the far-right court that has already been overthrown Roe vs. Wade.”

Jones (DN.Y.) argued that “this far-right Supreme Court is raging against the freedoms of the American people”.

Prior to last month’s 6-3 decision in Dobbs v. Jackson Women’s Health Organization—a decision that the experts say will have deadly consequences and violates international law – access to legal abortion care has been since 1973 protected by the Due Process Clause of the 14th Amendment.

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 top judicial body “should reconsider all substantive precedents in due process”.

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

“Congress must use its powers to restrict the court and protect our basic rights, once and for all,” Jones said.

The letter calls on Congress not only to codify the right to abortion by passing the Women’s Health Protection Act (WHPA), but also to exercise its authority to prevent the right-wing High Court majority from rescind and other laws Democrats could enact to protect access to contraception, same-sex intimacy, and marriage equality, all of which are under threat today.

If the WHPA — passed several times by the House but defeated twice in the Senate when Joe Manchin (DW.Va.) joined Republicans in obstructing it — is signed into law, “we can expect legal challenges to end up return to the Supreme Court,” says the letter, co-signed by Democratic Reps. Bonnie Watson Coleman (NJ), Marie Newman (Illinois), Rashida Tlaib (Mich.), Jamaal Bowman (NY), Ilhan Omar (Minn.), Mark Takano (California), Kai Kahele (Hawaii) and Cori Bush (Mo.).

“History will record this as the moment 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 adopt that term,” the lawmakers wrote. “Along with the WHPA, similar provisions must be included in our bills to codify basic American rights to marriage equality, non-reproductive intimacy, and contraception.”

“As we Democrats plan new legislation to protect and enshrine abortion rights, along with the other three fundamental rights questioned in Justice Thomas’ concurring opinion in Dobbswe urge Congress’ exercise of 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 Congress to protect their basic rights, and the Constitution gives us the power to do so. »

Article III, Section 2 of the Constitution establishes that the Supreme Court has “appellate jurisdiction, both in law and in fact, with such exceptions and under such regulations as Congress shall enact”.

As the lawmakers noted, the Supreme Court “has repeatedly and consistently upheld the Article III powers of Congress,” including Justice Thomas himself:

In Durousseau c. 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 judicial law and other acts passed by Congress on the subject”. More recently, in Patchak versus Zinke (2018), Judge Thomas told the court that “when Congress strips the federal courts of their jurisdiction, it exercises valid legislative power at least when it raises taxes, mints money, declares war or invokes any other power the Constitution grants. Indeed, this court has ruled that Congress generally does not violate Article III when it strips federal jurisdiction over a class of cases.

According to lawmakers, “Congress may instead assign exclusive appellate jurisdiction to another federal court, such as the DC Circuit. For example, doing so in the WHPA would direct all appeals involving the WHPA to the DC Circuit, thus avoiding appellate review by other parties – the proper circuits and the Supreme Court.”

During Thursday’s House Judiciary Committee hearing, Jones stress that “we are not powerless to stop this court’s rampage against our liberties”.

Congress has “a mind-boggling array of options to limit the power of this rogue Supreme Court,” Jones said. “In the past, Congress has deprived the appellate court of jurisdiction to make certain decisions. It has increased and reduced the number of judges. It has granted and denied the power of the court to issue injunctions and other writs.”

In their letter, the lawmakers expressed additional concerns about the High Court’s “rolling down of other laws 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 republican”. Gone, with the Supreme Court as an accomplice.”

Thelma J. Longworth