So Steve King got the bright idea to pass a bill that would bar the SCOTUS from hearing SSM cases. Here.
Of course this bill has no chance of making it through both houses, but even if it did, can congress do that? It seems like an over reach to me.
And if that law were brought to the SCOTUS, how are they supposed to hear a case that involves them?
I believe they could pass it, it would be up to the courts to decide the constitutionality of such a bill. If a SSM came up, they would first have to rule on the new law, negate it and move on, should take all of 30 seconds or so.
And we can expect a big pissing contest between congress and the justices to escalate.
Congress can pass any law they want, but as mentioned above, the Supreme Court could simply overturn it if it violated the Constitution (and a law trying to negate part of the Constitution itself would certainly fall in that category, unless it was an Amendment to the Constitution, as that document is the law that all other law in the United States derives from).
As I understand it, the Executive Branch can also elect to simply not enforce laws it disagrees with, but that sounds a lot dicier to me so I could just be misremembering the Civics class I took 15 years ago in high school.
I do believe this is true, but you cold get into a situation of citizen’s arrest which brings it back to the judicial.
Congress can pass a law restricting the jurisdiction of SCOTUS, but it is hard to see how a law that restricted a class of cases like that would go over. A much better way would be to elect a Republican congress and president, pass a law increasing the size of the court to 15 (that congress can do) and then appoint 6 Scalia clones. Best to have 60 senators too.
Yes, they could pass such a bill, and according to what the Constitution actually says it would be Constitutional -
Obviously the Supreme Court could rule that the Constitution doesn’t say what it says - they’ve done it before.
Regards,
Shodan
Jurisdiction stripping is what this would be called. It is a power given to the Congress by the Constitution but there is alot of controversy over the limits of this power and how much it can be used. I am not sure if it is appropriate in this particular case, but it is something Congress has done in the past.
Yes, but aren’t the states a “Party” in most of the SSM marriage cases? If so, then the Supreme Court has original jurisdiction.
There’s two things kinda wrong here. The first is that Congress can pass any law they want. While they can technically do it, since all it takes to pass a law is to vote on it, every member of Congress takes an oath to uphold the Constitution. Since passing a law that violates the Constitution is itself a violation of our nation’s laws, it’s equivalent to saying “Congress can take any bribes that they want”.
The other thing is that Congress does actually have power to decide the jurisdiction of federal courts. King’s bill is legal:
The RFRA is sort of an example of this. In the RFRA, Congress said that the Supreme Court has to use the strict scrutiny test when laws are challenged based on religious infringement. They changed the method by which courts have to hear 1st amendment challenges.
According to the wikipedia article, original jurisdiction only applies to disputes between states.
The whole area is murky. Yes, Congress has some power, not well-defined, to define the appellate jurisdiction of the Supreme Court. But, citizens have the constitutional right to equal protection of the law and due process. Those two constitutional principles could come into conflict in an attempt by Congress to strip the Court of appellate jurisdiction.
For instance, suppose Congress had responded to Brown v Board of Education by passing a bill which said the Court had no jurisdiction to hear an appeal by a black litigant. On its face that type of bill would be using the Congress’s power to define the Court’s appellate jurisdiction. But, would that bill stand in light of an equal protection of the law / due process challenge? Highly doubtful.
The same argument could be made in response to the proposed SSM bill. It may in form be an attempt to define the Court’s appellate jurisdiction, but its purpose is to prevent gays and lesbians from being able to litigate their rights under the Bill of Rights and the 14th amendment in the Supreme Court. That sounds like a violation of equal protection and due process to me.
One other thing is that even if the bill were to pass and to be upheld, it wouldn’t make same-sex marriage claims go away. Stripping the Supreme Court if jurisdiction doesn’t affect the jurisdiction of the lower federal courts to hear SSM claims. So the result of the stripping would be that the federal circuit courts would be the final courts to rule on the issue.
That in turn would mean that there would be no way to resolve a dispute between the circuits, such as currently exists, where several circuits have ruled in favour of same-sex marriage, but one has ruled against it. In other words, citizens’ rights under the federal Constitution would vary depending on where they live in the country. Some folks would have a constitutional right to same-sex marriage, while other folks would not. Is that the model of constitutional rights that Americans are comfortable with?
Short answer: No, Congress cannot enact a law telling the Supreme Court that it does not have the power of judicial review.
Long answer: The Supreme Court’s job is to interpret what laws, including the Constitution, say. And back in 1803, in Marbury v Madison, they interpreted the Constitution to say they have the power of judicial review. People might argue whether their decision was correct but it’s been established precedent for 212 years.
It’s also established that the Constitution is the primary law in the United States. Any other law which conflicts with the Constitution is invalid and the Supreme Court has the power to overturn it.
So being as the Constitution says the Supreme Court has the power of judicial review, any other law which says it doesn’t have that power would be ruled unconstitutional.
So it is possible to create an area of the law which the Supreme Court cannot review. But to do so, you would have to enact a Constitutional Amendment and not just a regular law.
I’d also say that Congressman King has made an ill-considered political move by trying to enact this law. While some conservatives on the Supreme Court might agree with his position against same-sex marriage, they are going to be strongly opposed to his attempt to assert Congressional power over the Supreme Court.
So while the justices might have voluntarily chosen to not rule on same-sex marriage, they may now rule on it just to demonstrate that they have the power to do so.
There has always been scholarly debate over the limits of Congress’ jurisdiction-stripping ability. It seems reasonably clear that Congress can bar courts from hearing cases arising purely out of the application of federal statutes (i.e., laws enacted by Congress).
Personally, however, I do not see how one can argue that Congress can strip the Supreme Court of the ability to hear claims alleging a constitutional violation. The principle that the Court defines the limits of the political branches’ authority is as old as Marbury and was expressly reiterated as recently as Boumediene.
This was literally a final exam question I had during law school. Wonder if I have a copy anywhere.
The short version is that it is unsettled as a matter of precedent (Compare Ex Parte McCardle and Ex Parte Yerger), and there is room for argument about Congress’s power under Article III to remove review from an entire category of constitutional argument as a means to achieve some substantive endgame.
But “the states” are a party in SSM cases. Not DOMA, but the ones up for review now.
I’d say that it’s more likely that they’d say that the part you quoted, while true, would invalidate the very existence of the Supreme Court and destroy the three branch framework that is described in the Constitution. So, fairly clearly, that particular snippet is not intended to reference the part of their job that includes determining the Constitutionality of laws passed by the other branches of the government.
As someone earlier in the thread, it would only take about 30 seconds to slap down. And most of that would presumably be spent drawing a big X through the law and a big, “Bwahahahah”, underneath.
The law would be as constitutional and about as politically smart as the FDR court-packing scheme.
So you’re saying that SCOTUS would completely disregard something explicitly written in the Constitution in favor for a legal theory John Marshall pulled out of his ass?
Presumably the jurisdiction-stripping provision of the Constitution would be read to impliedly mean “such Regulations as the Congress (when acting within the limits of its authority) shall make…”