# 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:** 12\ **Page:** 3
**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, 5:46pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/41 "2015-04-24T17:46:49Z")
> [@Saint\_Cad](#): > > 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? Why wouldn’t it be? Once you establish that Congress has the power to put laws beyond Supreme Court review, why do you think wouldn’t they use that power? Congress could, for example, enact a law saying the Supreme Court has no jurisdiction over abortion laws and throw out the Roe decision. ---
**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, 5:50pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/42 "2015-04-24T17:50:29Z")
> [@Saint\_Cad](#): > > 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. Private discrimination cases (such as employment and housing cases) arise under statutes, which SCOTUS has no authority to expand. It can only find protected status under the 14th Amendment itself. ---
**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, 5:53pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/43 "2015-04-24T17:53:24Z")
> [@Saint\_Cad](#): > > 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. No, they would never do that. They would just say they’re Originalists instead. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 25, 2015, 4:38am UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/44 "2015-04-25T04:38:03Z")
Jurisdiction stripping presents a unique constitutional question which simply does not have an answer which is consistent with the concept of judicial review. Suppose Congress passes the following law: 1. Wyoming shall only be entitled to select one Senator. 2. Federal Courts have no power to rule upon any matter related to Wyoming’s Senate representation. If Congress wins, the Constitution is violated by depriving Wyoming of its equal representation in the Senate. If the Supreme Court wins, the Constitution is violated because it has assumed a power that the Constitution prohibits (reviewing a case when a Congressional “exception” denied it the power of review). It would be a constitutional crisis which would be decided based upon who blinks first. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [April 25, 2015, 1:23pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/45 "2015-04-25T13:23:36Z")
> [@Richard\_Parker](#): > > 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. Another would be the infamous “don’t ask don’t tell”. I assume there are no end of ex-military who should have been allowed to stay and eventually collect a pension from the federal government, and I don’t recall hearing of a single case making it into court. Sorry, my understanding is that a protected class is specifically enumerated in the constitution. (The old “race creed colour” litany). Sex as I understand is protected by statute but not by constitution (ERA failed). Some states, but not the feds, protect orientation by statute making it a protected class in those states’ laws. Is this correct? ---
**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 25, 2015, 1:44pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/46 "2015-04-25T13:44:00Z")
> [@md2000](#): > > Another would be the infamous “don’t ask don’t tell”. I assume there are no end of ex-military who should have been allowed to stay and eventually collect a pension from the federal government, and I don’t recall hearing of a single case making it into court. > > Sorry, my understanding is that a protected class is specifically enumerated in the constitution. (The old “race creed colour” litany). Sex as I understand is protected by statute but not by constitution (ERA failed). Some states, but not the feds, protect orientation by statute making it a protected class in those states’ laws. Is this correct? DADT was a good example, and was challenged in court. It got repealed first. And no, those categories aren’t enumerated in the Constitution. They have been created in precedent, just like sexual orientation will be. Gender is a protected constitutional class. Statutes can also create protected classes, but here we are talking about the Fourteenth Amendment. ---
**Author:** ![Raguleader](https://avatars.discourse-cdn.com/v4/letter/r/258eb7/32.png) [@Raguleader](https://boards.straightdope.com/u/Raguleader)\ **Post date:** [April 27, 2015, 11:20am UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/47 "2015-04-27T11:20:41Z")
> [@md2000](#): > > Some states, but not the feds, protect orientation by statute making it a protected class in those states’ laws. Is this correct? As I understand it, this is the case in Oregon, which is why that bakery refusing to do a wedding cake for a gay wedding turned into such a hullabaloo, as they were in violation of [Oregon state law](http://www.oregonlaws.org/ors/659A.403). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 27, 2015, 1:53pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/48 "2015-04-27T13:53:14Z")
So… what does “… with such exceptions… as Congress may make…” mean, exactly? Nothing? This can’t be. But perhaps there’s a way for the Court to guard its power and not throw away the text. Congress may make an exception about marriage, and remove it from the Court’s appellate jurisdiction. That’s an exception to the whole scheme: both the limiting list of original jurisdiction and the catch-all list of appellate jurisdiction. In other words, it remains under Article III reach, and if Congress removes it from appellate jurisdiction, it becomes original jurisdiction. Doesn’t that harmonize both the written text and the principle of judicial review? ---
**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 27, 2015, 2:00pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/49 "2015-04-27T14:00:57Z")
Right. The written text merely provides that Congress can modify the type of jurisdiction that SCOTUS exercises in a given case. Reading Section 2 otherwise (as **Shodan** seems to have) makes the first paragraph of the section a nullity. > [@](#): > > 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. ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [April 27, 2015, 2:31pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/50 "2015-04-27T14:31:39Z")
> [@Bricker](#): > > So… what does “… with such exceptions… as Congress may make…” mean, exactly? > > Nothing? > > This can’t be. > > But perhaps there’s a way for the Court to guard its power and not throw away the text. > > Congress may make an exception about marriage, and remove it from the Court’s appellate jurisdiction. That’s an exception to the whole scheme: both the limiting list of original jurisdiction and the catch-all list of appellate jurisdiction. In other words, it remains under Article III reach, and if Congress removes it from appellate jurisdiction, it becomes original jurisdiction. > > Doesn’t that harmonize both the written text and the principle of judicial review? But ISTM that has the effect of rendering the exception inoperative which make the language you cited effectively nothing. Which you said wasn’t your intent. And more importantly wouldn’t be at all consistent with Congressional intent. Not that I think Congress \*ought \*to get away with this grab, but that’s a separate matter. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 27, 2015, 3:44pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/51 "2015-04-27T15:44:42Z")
> [@LSLGuy](#): > > But ISTM that has the effect of rendering the exception inoperative which make the language you cited effectively nothing. Which you said wasn’t your intent. Not at all. The exception power is fully operative: Congress gets to make an exception to the appellate jurisdiction of the Court. That leaves the Court’s original jurisdiction as the only option. > [@](#): > > And more importantly wouldn’t be at all consistent with Congressional intent. To the extent that Congressional intention is to flout the language of Art. III, they don’t get to make their intent operative. ---
**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 27, 2015, 4:05pm UTC](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347/52 "2015-04-27T16:05:07Z")
> [@Bricker](#): > > Not at all. The exception power is fully operative: Congress gets to make an exception to the appellate jurisdiction of the Court. That leaves the Court’s original jurisdiction as the only option. I don’t think Congress can add to SCOTUS’s original jurisdiction either directly or indirectly otherwise it violates _Marbury v. Madison_ [Previous page](https://boards.straightdope.com/t/can-congress-pass-a-bill-disallowing-the-scotus-to-hear-cases-on-ssm/718347.md?page=2)