Could Congress create a court that could overrule SCOTUS decisions?

2 Answers 2



The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Any courts the Congress creates are, by definition, inferior.

Of course, Congress can overrule a SCOTUS decision by passing a law to that effect,unless the decision defines a right under the Constitution. So they couldn’t overturn Roe but they could overturn Dobbs. It’s largely the gutlessness of Congress in grappling with controversial issues that has put SCOTUS in the position of lawmaker.

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    It's no so much gutlessness as institutional paralysis stemming from polarization.
    – phoog
    Jun 27, 2022 at 8:02
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    Is there a typo in here somewhere? I can't parse this: "…Congress can overrule a SCOTUS decision by passing a law that effect unless the decision defines a right…"
    – erickson
    Jun 27, 2022 at 15:25
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    @erickson I think it's supposed to say "to that effect."
    – reirab
    Jun 27, 2022 at 15:31
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    @erickson: Many Supreme Court decisions serve to fill in gaps where a statute as written is ambiguous, essentially saying "since the Statute could be read as saying X, or it could be read as saying Y, we're going to say that it should be treated as saying X". Such decisions should not be viewed as the Court taking power away from Congress, but rather saying "If you want the statute to be interpreted as saying Y, you need to write it to actually say Y". If Congress does so, some people would viewsuch action as "overruling" the Court, but should merely be seen as Congress doing its job.
    – supercat
    Jun 27, 2022 at 17:47
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    @TigerGuy Our "Do nothing" system of government was created that way by design. Perhaps a design change is warranted - but the initial intention was to prevent 180 degree policy reversals every single time one party took power. Congress is an easy target, particularly when things don't seem to be going your way, but slow and deliberate is exactly how things are supposed to be.
    – SnakeDoc
    Jun 27, 2022 at 19:28

To the title question: sort of.

Congress has almost complete control over the appellate authority of both SCOTUS and other federal courts; indeed they control the very existence of federal courts other than SCOTUS. Only those matters specifically enumerated in the constitution are immune from control. They can remove anything else, even for cases that are currently under their consideration. SCOTUS has upheld this, asserting that it only has mandatory jurisdiction over those things expressly enumerated in the constitution, or on general matters of deciding constitutionality. So they could decide if a law that strips them or another court of jurisdiction is constitutional, but if they determine that it is then that jurisdiction is stripped and the relevant courts, potentially including themselves, cannot hear or rule on the case.

As such, Congress could, in principle, create a de facto "new" SCOTUS by stripping the SCOTUS of jurisdiction and granting it to some other court, or none at all. And they've tried the none at all option before! To my knowledge, those of any particular substance and extent have all been overturned as creating some other constitutional issue, though. The most recent example is the Military Commissions Act of 2006, which was a direct attempt by Congress to stop all federal courts from hearing cases from Guantanamo detainees. This was ruled unconstitutional in Boumediene v. Bush. The implication seems to be that stripping the entire federal judiciary of jurisdiction is likely to be a problem; but stripping just some of the federal judiciary can be okay. As such it is possible, though far from clear, that this proposed "new SCOTUS" would be upheld as constitutional. However, they still could not overrule SCOTUS on anything, including what is/isn't constitutional. Its place in the federal judiciary would just present a greater obstacle to the involvement of SCOTUS in cases going forward; as a side effect this would probably also make it harder for SCOTUS to overrule itself.

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