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.
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.
No, they would never do that. They would just say they’re Originalists instead.
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:
- Wyoming shall only be entitled to select one Senator.
- 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.
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 It got repealed first.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.
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.
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?
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.
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.
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.
To the extent that Congressional intention is to flout the language of Art. III, they don’t get to make their intent operative.
I don’t think Congress can add to SCOTUS’s original jurisdiction either directly or indirectly otherwise it violates Marbury v. Madison