In a 1979 article in Public Interest, Senator Daniel Patrick Moynihan asked, “What do you do when the Supreme Court is wrong?” More than four decades later, Representative Alexandria Ocasio-Cortez, who has been in the van of Democratic efforts to lasso the high court, has taken it upon herself to answer this question. 

For Ms. Ocasio-Cortez, doing so has involved calls to expand the number of justices on the court — a tweet in 2020 that read simply “expand the court” was liked more than 450,000 times, even as President Biden has resisted such calls. She has also advocated impeachment against Justices Neil Gorsuch and Brett Kavanaugh for allegedly misrepresenting during confirmation hearings their intentions regarding the fate of Roe v. Wade. 

Ms. Ocasio-Cortez’s latest gambit is to call for congressional curtailment of the Nine’s jurisdiction over “abortion, marriage equality, non-procreative intimacy, and contraception,” which would neuter the court’s ability to hear any case touching these issues — the very cases that Justice Thomas suggests are built on unstable constitutional ground. 

The call, issued to Speaker Pelosi and the Senate majority leader, Charles “Chuck” Schumer, was joined by much of the Democratic caucus’s leftward flank. It aims to prevent “a radical, restless, and newly constituted majority on the Court” from further undermining “the protections we would enact.” 

This maneuver is of a piece with a larger Hail Mary constitutional tack by Democrats frustrated with the country and the high court’s direction, which has left many of their priorities in legal and political tatters. Many Democrats who have long been hostile to the parchment’s primordial preeminence are now scouring it to find a way to undo an increasingly unfavorable legal landscape.

This emerging line of argument is evident in recourse to the disqualification clause of the 14th Amendment to bar Republicans up to and including President Trump from office; in this call to curtail the Nine’s jurisdiction; in the hankering to add justices, and in exhortations by a New York Times columnist, Jamelle Bouie, to discipline the court. 

Ms. Ocasio-Cortez is likely motivated by Justice Samuel Alito’s majority opinion in Dobbs — she believes the court has gone “rogue” — but she has read her Constitution. The national parchment assigns “original Jurisdiction,” or the ability to hear a case of first impression, to “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.”

In contrast, the Constitution allocates appellate jurisdiction, or the power to review cases decided by lower courts, “with such Exceptions, and under such Regulations as the Congress shall make.” This clause means that the court’s power of review can be delineated by congressional act. Just as Congress can determine the number of justices, under this Exceptions Clause it can denote the kinds of cases they hear.

This order of things was confirmed by the court itself in Ex Parte McArdle, in which the justices upheld a law that stripped their own court of authority to hear appeals from Civil War prisoners who sought release from custody under a 1867 habeas corpus law. While many bills have been introduced to curate the court’s reach, this is the only time that such action succeeded. 

Writing for a unanimous majority, Chief Justice Chase explained: “Jurisdiction is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”

This understanding is reflected in 80 Federalist, in which  Alexander Hamilton writes that “the national legislature will have ample authority to make such exceptions and to prescribe such regulations” as necessary for the functioning of the Supreme Court. 

A future chief justice, John Marshall, in the debates surrounding ratification of the Constitution in the Old Dominion, went further in adding that “these exceptions certainly go as far as the legislature may think proper for the interest and liberty of the people.”

In Barry v. Mercein, from 1847, Chief Justice Taney affirmed, “By the Constitution of the United States, the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress; nor can it, when conferred, be exercised in any other form, or by any other mode of proceeding, than that which the law prescribes.”

The extent of congressional control over the court was succinctly stated by in 1949 by  Justice Felix Frankfurter: “Congress need not establish inferior courts; Congress need not grant the full scope of jurisdiction which it is empowered to vest in them; Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred,” and it may do so even while a case is under review. 

James Madison’s biographer, Irving Brant, labels this sweep of congressional authority “a dagger sharpened by social conflict and pointed at the heart of the Bill of Rights. Time and again Congress has raised this dagger. Only once has it descended, but the menace continues to mount.”