I’m not interested in debating the pro’s and con’s of the particular cases. My question relates to what power (if any) Congress and the President have to rein in an activist Supreme Court.
The SC’s power to change laws is not explict in the Constitution. Nor does the Constitution include any explicit limitations on their power to change laws. Congress assumed the power to change laws many years ago. Maybe Congress can assume the power to limit the SC’s law-changing capability today.
The SC is presumably interpreting the Constitution as written by the founders. Therefore, it would seem that the President and Congress have no way to thwart them. OTOH the SC depends on the good will of the President, Congress and the public to enforce and follow their rulings.
Suppose Congress passsed and the President signed a law explicitly removing a certain case from Court review. Regardless of legal theory, that law might cow the SC into soft-pedaling their ruling. Nobody wants a state of uncertainty over whether SC rulings will be enforced. Maybe that’s what Schlafly is thinking of.
Does anyone know better than I what she was referring to? Is there any means for Congress to rein in an activist SC? Should there be such a means? What should it be?
I don’t understand. The SC has never asserted a “law-changing capability”. The SC can strike down laws as unconstitutional, and can construe them in ways which confound their authors, but both of those are a far cry from a “law changing capability.”
Per Article III, Section 2:
Congress cannot withdraw cases in any of these categories from federal jurisdiction. If they could, Congress could unilaterally amend the Constitution by, for example, withdrawing all cases involving the Fourth Amendment from all federal courts.
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Personally, I get annoyed more often by Congress overstepping its powers than by the federal judiciary. For those who feel otherwise, Congress has the power to constitute new federal courts and transfer jurisdiction over particular classes of cases to them. For example, Congress could create a new Court of Pledge of Allegiance and Ten Commandments Cases, provide that its rulings could not be appealed, and staff it with like-minded judges. This would be about the level of farce that this nonsense deserves.
The constitution says that the number of justices on the Supreme Court will be determined by an act of congress. A sufficiently pissed off Congress and President could 3 or 4 new Supreme Court positions and fill them with justices that won’t strike their laws down.
Franklin Roosevelt tried to do this when the Supreme Court kept striking down his “New Deal” plans, but he withdrew those plans after there was sufficient outcry against “packing the court”
Or, with a 2/3ds vote, they could impeach the justices that issue unpopular rulings. It is ENTIRELY up to Congress to define what “high crimes and misdeamenors” means, impeachment is non-justiciable.
I do not believe that Congress can remove a single particular case that has reached the Supreme Court from its jurisdiction – this would be an unconstitutional attempt by one branch of government to usurp the powers of another, and SCOTUS would justifiably ignore such a law. (I’d bet even Scalia, Rehnquist, and Thomas would join in decrying such a step.)
Congress can and has removed categories of cases from Federal jurisdiction – most recently in “diversity of citizenship” cases. Formerly, a lawsuit for an amount in excess of $10,000 between citizens of different states could be pursued in Federal courts; today the minimum is $50,000, and any suit for an amount below that must be conducted in state court, regardless of the state citizenship of the plaintiff or defendant being different.
Article III specifies what the Supreme Court’s original jurisdiction is, was, and forevermore shall be (with the exception of what was removed from its purview by Amendment XI. However, 99% of the court’s cases reach it under appellate jurisdiction, as a review under certiorari (or three other rarely-used modes) of the decisions of another court. And the court’s appellate jurisdiction is whatever Congress says it is.
A law removing a given category of cases from appeal to the Supreme Court would be entirely legal and in accord with practice and precedent. The only problem is that Congress would in doing so put itself at risk by appearing to sanction unconstitutional practice, that being the only practicable and political reason why such a law might be passed, other than the court itself asking for a limitation (as when mandatory appeals were effectively eliminated and when the change in diversity jurisdiction monetary limits was adopted).
Polycarp–1. Has the exclusion of certain diversity cases from federal jurisdiction ever been challenged, and, if so, how did the Courts square it with the language of Article III, Section 2?
The “Pledge Protection Act”, referenced in the Schlafly article, likewise proposes withdrawing Pledge of Allegiance First Amendment cases from federal jurisdiction, not just from SCOTUS appellate review. Do you believe that this would pass muster under the diversity precedent?
Polycarp, the best example of Congress withdrawing apellate jurisdiction from the Supreme Court is Ex parte McCardle, 74 U.S. 506 (1868), a Reconstruction era case. McCardle had been imprisoned by a military authority and sought habeas. The Circuit Court dismissed the application for the writ; McCardle appealed to the Supreme Court. The Court heard argument and reserved.
Congress, fearing that the Supreme Court might strike down the Reconstruction Act authorising the imprisonment, passed an Act extinguishing the Court’s appellate jurisdiction in habeas cases. President Johnson vetoed it. Congress overrode the veto. And the Supreme Court accordingly quashed the appeal for want of jurisdiction.
With regard to jklann’s question, the traditional interpretation of Article III is that it defines the limits of the federal judicial power, but it does not require Congress to confer all of that judicial power on the federal courts. Article III defines the original jurisdiction of the Supreme Court, which it confers directly on the Court, but the other jurisdictions are subject to “exceptions” and “regulations” that Congress may make. The definition of the diversity jurisdiction is an example of such “exception” and “regulation”.
In fact, it’s arguable that the Constitution does not mandate the creation of lower federal courts, inferior to the Supreme Court. Unlike the Supreme Court, the Constitution does not create the system of lower courts. Article I, s. 8 gives the Congress the power “To constitute tribunals inferior to the Supreme Court”, and the opening words of Article III suggest that this power is discretionary. The judicial power is vested in the Supreme Court “…and in such inferior Courts as the Congress may from time to time ordain and establish”.
So the argument goes that if Congress has the discretionary power to decide whether or not to create lower courts, then it also has the power to determine their jurisdiction. It can’t exceed the federal jurisdiction set out in Article III, but it’s not required to confer the full range of that jurisdiction on the federal courts.
That doesn’t mean that if Congress withdraws something from the jurisdiction of the federal courts, the matter is no longer litigable. Rather, it means that the litigant would have to bring his federal claim in the state courts, which are required to apply the federal Constitution under Article VI.