We Need To Talk About Jurisdiction Stripping

Strict Scrutiny

In this episode of Strict Scrutiny, Leah sits down with law professors Lev Menand and Lina Khan to discuss structural reforms for the Suprem

Key takeaways

• Lev Menand proposes stripping the Supreme Court of jurisdiction over administrative law challenges to create a specialized court for expertise-based decisions.
• Lina Khan highlights how corporate lobbies use 'venue shopping' in Texas courts to challenge nationwide agency rules like those from the FTC.

Main topics

• Supreme Court Reform
• Jurisdiction Stripping

Notable quotes

I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Conclusion

The episode serves as a technical deep-dive into the legal levers avai

Transcript preview

Speaker 5 (0:00) Strict scrutiny is brought to you by Americans United for separation of church and state. It's back to school season. And this year, 5 million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for separation of church and state, are taking the fight to the Supreme Court. And they need you to amplify their voices before the Supreme Court gets its hands on this case. And we all know what the Fifth Circuit did. Obviously, they let Texas get away with all of this. Speaker 1 (0:40) They're going to go up, but... We're going to fight to get him taken down. Speaker 5 (0:45) That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian. And their kids are in Texas public schools. The story they tell in this video is moving, and we hope everyone hears and shares it. Look, there is a human cost of Christian nationalist policies, like these Ten Commandments laws and the decisions the Supreme Court hands down. Every child deserves access to public education where they aren't subject to state-imposed religion or religious instruction or coercion. Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion. Visit au.org. 10C to learn more about this case and how you can help join the fight to protect church-state separation. We talked a little bit about this case on our regular episode last week, but there's so much more to be said and to learn about the people who are fighting back. Speaker 6 (1:54) She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Speaker 5 (2:25) Hi, everyone. Welcome back to your Strict Scrutiny bonus series, Hot SCOTUS Reform September. I am here with two guests to discuss kind of two SCOTUS reforms. Had to sneak in some extras. They are both first-time Strict Scrutiny guests. One is Lev Menand. Lev is an associate professor of law at Columbia Law School. He is also the expert on the uniquely structured quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States. Yes, I'm talking about the Federal Reserve Board. Welcome to Strict Scrutiny, Lev. Thank Speaker 4 (2:57) you. Speaker 5 (2:58) The other guest today is Lina Khan. Lina is an associate professor of law at Columbia Law School and the former chair of the Federal Trade Commission from June 2021 to January 2025. Welcome to Strict Scrutiny, Lina. Thanks for having me. So consistent with the conceit of hot SCOTUS reform September, we're going to be talking about some specific SCOTUS reforms on this episode and go through the standard questions we cover on all of these episodes, what the reform is, what it addresses, what are possible legal issues, possible variations on it, and whatnot. But this time, because we have two guests, we might be talking about two kind of distinct sets of SCOTUS-related forms, some that will touch on addressing the Supreme Court's authority to use statutory interpretation to mess with federal agencies, and the others reforming the dockets of the lower federal courts to minimize their ability and, by extension, the Supreme Court's ability to mess with federal agencies. Ready, Lev and Lena? Great. Speaker 4 (3:52) Yes. Speaker 5 (3:52) Okay. So let's start with some of the more general questions. The first... And, Lev, I'll call on you for this one first, is what is one of your least favorite things about the Supreme Court? I Speaker 4 (4:05) think, Speaker 5 (4:05) you Speaker 4 (4:06) know, the hagiography of the justice, which is related to the size of the court. The court is too small. One or two justices are too often determining outcomes of enormous consequence. And I think this really undermines legal legitimacy. Speaker 4 (4:26) interferes with the ability of the legal system to sort of promote social cohesion because we're like associating particular legal decisions with personalities. Justice Kennedy got us X. Justice Ginsburg got us Y. Justice Roberts saved Z. And this is sort of inconsistent with rule of law ideas. And it's inconsistent with, I think, founding principles of the country that we have a sort of government of laws. and not of men, of individuals. We should Speaker 5 (4:57) all know less about the justices, and we should not be even aware that there are photographs of Brett Kavanaugh running a 5K. We aspire to that. Speaker 4 (5:07) Yeah, and if you look at other countries, they seem to have figured this out, you know? In a lot of other peer countries, nobody knows who the justices are. And they certainly aren't wearing T-shirts with their faces on them. Speaker 5 (5:20) Indeed. Lena, how about you? What's one of your least favorite things about... One of Speaker 2 (5:25) my least favorite things about SCOTUS is the perpetual self-aggrandizement that we've seen by the court now over several years, coming up on several decades. The courts, the federal courts, play an incredibly important but limited role in our constitutional system. And what we have been seeing now for some time is a huge power grab by the courts, often at the expense of Congress. Congress is Article 1 in our Constitution. Federal courts are all the way back at Article 3. And yet we have seen just a, you know, time and time again, an effort by the courts to effectively be a veto point in all sorts of what I see as illegitimate ways over Congress. I think this is part of a broader pathology in the elite legal establishment, where even how. courts are taught and conveyed to law students in law school is very different from how Congress is talked about. Congress is often talked about with some disdain as this messy institution that can't do anything. The courts and the justices are enormously revered. And I think that asymmetry kind of trickles all the way up to how the court itself treats Congress, which is with an enormous amount of disdain. And so I would say that is top of my list. Speaker 5 (6:42) Yeah, that is reminding me of Pam Carlin's Harvard Law Review foreword from a few years ago, Democracy and Disdain, where, you know, she very much talks about that. And on that Article 1, it's first, I remember vaguely from Say La La versus CFPB that the court told us one is somehow a more important or significant number than many. Okay, so I know we were thinking about talking about two different kinds of SCOTUS reforms. Speaker 5 (7:10) Lina, I'll put this question to you because I think this is the SCOTUS-related form that you are potentially interested in, and that is docket reform of the lower federal courts. So could you talk a little bit about how the existing jurisdictional authority of the lower federal courts leads to some dysfunction and so why docket reform of Speaker 2 (7:32) the lower federal courts might be important? So my entryway into this whole conversation is through my time in federal government, where most recently had the honor of being chair of the Federal Trade Commission, where we were pursuing a whole set of rules and policies to make sure that the economy was fair and competitive and honest, where working people were not, you know, being tricked and deceived. And it was just staggering to see how time and again big businesses and the Chamber of Commerce and other corporate trade lobbies were able to game the courts to challenge our rules, but also the rules of agencies across the federal government. This is a moment where there's a lot of conversation around reforming government. How do we make sure government is actually serving the needs of working people? definitely on the side of the economic agenda, there were countless policies that the last administration pursued, oftentimes as common sense as the airlines can't lie to you about how much a plane ticket costs that went to go die at the doorstep of some federal judge in Texas. And so just the endless tactics that corporate lobbies in particular use. And the ways that courts have become extraordinarily accommodating of all sorts of tricks with standing and venue, I think, is an area that we need serious reform if we are going to get to a government that can actually pursue economic policies that serve working people. Just as we should all Speaker 5 (9:02) know less about. Supreme Court justices and Brett Kavanaugh, we should also not even know who someone like Matthew Kazmierik or Reed O'Connor is, those district judges in Texas who were oftentimes overseeing some of the challenges to the last administration. So, Lena, I'll follow up with you in a second. But Lev, I know you were interested in talking about why, in addition to potentially limiting the Supreme Court's authority over constitutional questions, there are also major issues that arise. when the Supreme Court is interpreting statutes. So could you talk a little bit about why that is a potential area of Supreme Court reform as well? Speaker 4 (9:41) Yeah, so one of the problems we have right now is that the current court is composed of justices who are undermining the constitutional system in various ways. My colleague, Tom Merrill, has used the word deforming. They're kind of deforming the Constitution. And I think this is a crisis. But there's another problem that's unrelated to the composition of the current court. And that's just that the court has too much power in our system and too much responsibility. It's deciding too many important issues. And that undermines its ability to decide issues effectively and in ways that are socially legitimate. And it reduces the quality of decision making just, you know, for obvious reasons. Humans have cognitive limits and there's plenty of social science that shows that you spread people too thin and you just sort of start to see bad results. Speaker 5 (10:31) And Speaker 4 (10:31) I think that the history of the court over the last several decades is a great example of that. And so in some other countries, there is a separate court that is the highest court for administrative law that just specializes in evaluating challenges to agency actions, statutory interpretation questions arising in those challenges. and the whole panoply of challenges under, you know, APA-style statutes. Andrew Hammond has a great paper about the Conseil d'Etat in France, which is one example of this. And there's a lot of reason to think that something like this, not a copy-and-paste job, something like this might make sense here. And so, you know, the Supreme Court would still be the highest. court for constitutional challenges, but there would be another court. We would strip jurisdiction from the Supreme Court to hear administrative law challenges. It would