# Can congress pass a bill disallowing the SCOTUS to hear cases on SSM? **URL:** \ **Category:** Factual Questions\ **Created:** [April 23, 2015, 10:20am UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347 "2015-04-23T10:20:58Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 23, 2015, 7:16pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/21 "2015-04-23T19:16:46Z")
nm ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 23, 2015, 7:28pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/22 "2015-04-23T19:28:28Z")
> [@Saint\_Cad](#): > > 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? Are you saying anyone is going to support throwing out two hundred years of legal precedents? ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 23, 2015, 8:37pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/23 "2015-04-23T20:37:50Z")
> [@Little\_Nemo](#): > > Are you saying anyone is going to support throwing out two hundred years of legal precedents? I’m saying it would be a worse precedent to say “Congress has this explicit power given in the Constitution but we are going to ignore it because it infringes on our implied power.” ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 23, 2015, 8:45pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/24 "2015-04-23T20:45:18Z")
> [@Tom\_Tildrum](#): > > 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…” So > [@](#): > > In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, _with such exceptions_, and under such regulations as the Congress shall make. means that Congress can’t make exceptions? And to further answer Little Nemo, to be pedantic judicial review is a function of the judiciary branch and not exclusive as to SCOTUS. Judicial review is not eliminated if only left up to District and Appellate and Circuit courts. It mearly means that in those cases that SCOTUS would not have appellate jurisdiction. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [April 23, 2015, 8:52pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/25 "2015-04-23T20:52:59Z")
> [@Saint\_Cad](#): > > 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? Not disregard, but realize that this was not the intent of the power given to Congress and would fundamentally break the country if it were allowed. If Congress could override the judicial, then declaring anything to be unconstitutional would be impossible. You’d have a Congress that could write that the courts have no jurisdiction on anything they do, which now means Congress can pass whatever laws they want, constitutional or not. Textualism is not the be-all-end-all interpretation, and this sort of thing is exactly why. Having laws that can effectively destroy the whole government is not something any government branch is going to do. Not even Scalia is a 100% textualist, because he knows that allowing textualism to break everything is bad. A system where perverse entities can find loopholes based on language and undermine the entire system is a horrible way in which to live. We are a common law system, where precedent can create new law. If we didn’t want that, then we wouldn’t be common law. Precedent has made that clause of the Constitution obsolete, and for good reason. You don’t want to live in a country where Congress can pass a law declaring themselves themselves to be the supreme law of the land. ---
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [April 23, 2015, 8:59pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/26 "2015-04-23T20:59:12Z")
> [@Saint\_Cad](#): > > I’m saying it would be a worse precedent to say “Congress has this explicit power given in the Constitution but we are going to ignore it because it infringes on our implied power.” This goes back to an argument that was made in The Federalist Papers. Arguing in favor of a three-branch government with checks and balances, it was suggested that each branch (“faction” they called it) would jealously work to preserve its own powers and prerogatives, thus preventing any one “faction” from running amok and engaging in the evil T-word, Tyranny. So yeah, we might expect the Supreme Court to resist any infringement on their own perceived powers (implied or otherwise), as long as they can get away with. It was all foreseen. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [April 23, 2015, 10:03pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/27 "2015-04-23T22:03:15Z")
Please note that any federal SSM cases will concern the validity of _state_ laws and constitutional provisions, not federal. The power of the federal courts to invalidate state enactments does not rest on _Marbury v. Madison_ nor on John Marshall’s theory of judicial review. It dervies from Article VI: > [@](#): > > This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. This clause was used to strike down state laws even before _Marbury v. Madison_. > [@Northern\_Piper](#): > > 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. Peter King is way ahead of you. The text of the proposed bill (linked above) reads in part, > [@](#): > > ‘‘§ 1632. Limitation on jurisdiction and funding: > ‘‘(a) JURISDICTION.—No court created by an Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, any type of marriage, section 1738C, or this section." This requires us to consider not merely the jurisdictional arrangements within the Constitution, but the definition of the power of the federal judiciary: (Article III, Section 2): > [@](#): > > The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. Now, to be sure, this would not be the first time Congress has removed categories of cases within Article III from the federal judiciary. For example, Congress has eliminated suits with less than $75,000 at stake from federal diversity (“citizens of different states”) jurisdiction. The federal courts have never had a problem with this–indeed, they probably welcomed it. The proposed King legislation, however, which would effectively bar a class of litigants from asserting a constitutional right in any court anywhere, strikes me as considerably more problematic. I doubt that it would be upheld. Of course we will never find out since it will never pass. ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [April 23, 2015, 10:17pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/28 "2015-04-23T22:17:47Z")
> [@Saint\_Cad](#): > > The law would be as constitutional and about as politically smart as the FDR court-packing scheme. I’m not sure how politically smart it was though two justices did change their minds and vote with FDR after he proposed this so it might have been savvy. But why wouldn’t it have been Constitutional. Congress sets the size of the Supreme court so they could have added new justices. There have not always been nine. It started with 6 and has been as high as 10. The plan did single out justices aged 70 or over, but at the time there was no restriction on age discrimination that I know of. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [April 23, 2015, 11:11pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/29 "2015-04-23T23:11:59Z")
> [@Saint\_Cad](#): > > 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? Marshall didn’t pull it out of his ass. A pretty sizable quantity of things included in the Constitution were not explicitly pointed out in the text. For example, the President gains some powers by virtue of being the “Executive”, which were not explicitly enumerated, but which are implicit in the role. For example, if I told you to judge a game of tennis, since you know what the word “judge” means and I know what the word means and all the people playing tennis know what the word means, you don’t need an explicit list of goals and powers to fulfill the job. If written down, that’s nice to have, but the one word, “judge”, is sufficient to tell us everything we need to know, because it’s not a newly minted word with a foreign meaning. I’ll grant that it’s unfortunate that the Constitution partially relies on this sort of logic. (Though I think it’s preferable to the 150 page EU Constitution.) But if you look at, for example, the Federalist Papers, this sort of power is explicitly mentioned: > [@Hamilton](#): > > The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, **whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void**. Without this, all the reservations of particular rights or privileges would amount to nothing. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [April 23, 2015, 11:42pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/30 "2015-04-23T23:42:57Z")
> [@Freddy\_the\_Pig](#): > > Peter King is way ahead of you. Nitpick, but Steve King. Peter King is the congressman from Long Island who’s always freaking out about terrorism ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [April 23, 2015, 11:53pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/31 "2015-04-23T23:53:13Z")
I always get my Kings mixed up–I’m always confusing George and Edward, too! ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 24, 2015, 12:18am UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/32 "2015-04-24T00:18:04Z")
> [@Saint\_Cad](#): > > And to further answer Little Nemo, to be pedantic judicial review is a function of the judiciary branch and not exclusive as to SCOTUS. Judicial review is not eliminated if only left up to District and Appellate and Circuit courts. It mearly means that in those cases that SCOTUS would not have appellate jurisdiction. I understand that. There are also systems where reviews like this take place outside of the court system. I noted that one could have argued with Marshall’s decision in 1803. (Although I have to question how a system like you described would work. Lower courts would have the power of judicial review but the Supreme Court wouldn’t?) But the precedent was established in 1803. Trying to overturn it now would essentially invalidate every Supreme Court decision made since then. [It would be bad.](https://www.youtube.com/watch?v=O3ZOKDmorj0) I also noted the alternative that would accomplish the same goal without the massive side-effects: a Constitutional amendment that restricted the Supreme Court on this issue. Or for that matter, a Constitutional amendment that prohibits same-sex marriage. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 24, 2015, 3:04pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/33 "2015-04-24T15:04:16Z")
I actually like this law (it isn’t perfect) and let me explain why even though I support SSM. First of all, I think we can all agree that under our (theoretical) federalist system there are certain issues that the Feds have no jurisdiction like marriage or education. The Feds do have jurisdiction however if the marriage or education issue involves a constitutional issue such as discrimination against a protected class (e.g. _Loving v. Virginia_ or _Mills v. Board of Educ_) then yes it is a Federal issue. So what is the Federal issue involved with SSM? Homosexuals are not a protected class. “Full faith and credit” does not apply. In other words, this law says that the Federal courts need to stay out of a case that does not involve a Federal issue. And I support THAT aspect of the law. The law would need to be perfected to say that the Federal government must accept the state’s determination of a couple’s marital status i.e. do away with DOMA and it must allow some way for federal residents (DC, territories, etc.) access to Federal courts for SSM issues but other than that, although I disagree with the intention that this will be used by some states to ban SSM, as a person that favors more state autonomy under the Constitution, I feel I must favor this bill. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 24, 2015, 3:08pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/34 "2015-04-24T15:08:11Z")
> [@Little\_Nemo](#): > > But the precedent was established in 1803. Trying to overturn it now would essentially invalidate every Supreme Court decision made since then. [It would be bad.](https://www.youtube.com/watch?v=O3ZOKDmorj0) Ummm… no. At worst, it would prevent judicial review _in the future_ but since Congress did not make the exception or restriction previously why do you think it could possibly be retroactive? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 24, 2015, 3:29pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/35 "2015-04-24T15:29:26Z")
> [@Saint\_Cad](#): > > Homosexuals are not a protected class. This is one of the critical questions being litigated. You cannot just assume it away. Several courts of appeals have found that homosexuality is, in fact, a protected characteristic. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 24, 2015, 3:50pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/36 "2015-04-24T15:50:11Z")
> [@Freddy\_the\_Pig](#): > > Please note that any federal SSM cases will concern the validity of _state_ laws and constitutional provisions, not federal. The power of the federal courts to invalidate state enactments does not rest on _Marbury v. Madison_ nor on John Marshall’s theory of judicial review. It dervies from Article VI: This clause was used to strike down state laws even before _Marbury v. Madison_. > Peter King is way ahead of you. It still rests on _Marbury_. The Supremacy Clause does not only apply to conflicts between federal and state law; it also applies to conflicts between federal law and the federal Constitution. Nothing in the Supremacy Clause explicitly grants SCOTUS the power to strike down state laws because they are inconsistent with federal law. Marshall found that the power to do so was implied in Article III, in the same way the power to strike down federal laws is. > [@Saint\_Cad](#): > > I actually like this law (it isn’t perfect) and let me explain why even though I support SSM. > > First of all, I think we can all agree that under our (theoretical) federalist system there are certain issues that the Feds have no jurisdiction like marriage or education. The Feds do have jurisdiction however if the marriage or education issue involves a constitutional issue such as discrimination against a protected class (e.g. _Loving v. Virginia_ or _Mills v. Board of Educ_) then yes it is a Federal issue. So what is the Federal issue involved with SSM? Homosexuals are not a protected class. “Full faith and credit” does not apply. In other words, this law says that the Federal courts need to stay out of a case that does not involve a Federal issue. And I support THAT aspect of the law. I’m sorry, but this is dumb. Really, _really_ dumb. All suspect classifications in equal protection analysis have been judicial creations. In other words, if SCOTUS had been told to “stay out of it” there would be no “protected classes” in the sense you are using the term. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [April 24, 2015, 5:00pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/37 "2015-04-24T17:00:13Z")
> [@Saint\_Cad](#): > > 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? I’m pretty sure the Supreme Court would have an elaborately worded justification for ruling that the Constitution did not allow Congress to make any exceptions to their appellate jurisdiction. Living document, penumbrae, emanations, etc. Regards, Shodan ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 24, 2015, 5:17pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/38 "2015-04-24T17:17:49Z")
> [@Shodan](#): > > I’m pretty sure the Supreme Court would have an elaborately worded justification for ruling that the Constitution did not allow Congress to make any exceptions to their appellate jurisdiction. > > Living document, penumbrae, emanations, etc. > > Regards, > Shodan So interpret the Constitution the way the JUSTICES would have written it rather than as actually written? I’m sure SCOTUS would never do that. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 24, 2015, 5:26pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/39 "2015-04-24T17:26:05Z")
> [@Richard\_Parker](#): > > This is one of the critical questions being litigated. You cannot just assume it away. Several courts of appeals have found that homosexuality is, in fact, a protected characteristic. > [@Really\_Not\_All\_That\_Bright](#): > > I’m sorry, but this is dumb. Really, _really_ dumb. All suspect classifications in equal protection analysis have been judicial creations. In other words, if SCOTUS had been told to “stay out of it” there would be no “protected classes” in the sense you are using the term. I allowed that if homosexuality were to be considered a protected class or “full faith and credit” applied then this law would be unconstitutional. And classifying homosexuality as a protected class does not necessitate a SSM case. It could come about as a medical or (as I suspect) an employment or housing case. If that happens, it would immediately make this law unconstitutional because NOW homosexuality IS a Federal (equal protection) issue. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 24, 2015, 5:35pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/40 "2015-04-24T17:35:19Z")
> [@Saint\_Cad](#): > > It could come about as a medical or (as I suspect) an employment or housing case. Not really. The issue of protected class status arises when one group is treated differently from another group under the law. There are very few laws that facially discriminate against homosexuals anymore, aside from marriage laws. It’s not that marriage is the only possible case. But your assertion that there are a great many possible cases is false. Unequal marriage law is one of the last remaining legal inequalities for homosexuals. Much of the rest of the work to be done concerns laws to battle private discrimination, which does not involve the Equal Protection Clause. [Previous page](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347.md?page=1) [Next page](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347.md?page=3)