# Congress Makes a Supreme Court Exception... **URL:** \ **Category:** Great Debates\ **Created:** [May 25, 2017, 3:51pm UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418 "2017-05-25T15:51:23Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 25, 2017, 3:51pm UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/1 "2017-05-25T15:51:23Z")
A spin off from [this thread](http://boards.straightdope.com/sdmb/showthread.php?p=20231410&posted=1#post20231410). Article III, Section 2 of the US Constitution - > [@](#): > > 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. > \*\* > In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. 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.\*\* Bolding added, since Jefferson didn’t have much by way of fonts to choose from. So here’s the scenario - GOP Reggie Rightwing has just been elected President, and the GOP has a clear majority in the House and Senate. Reggie is firmly of the opinion that the several states ought to be able to decide for themselves about abortion. He is backed in that opinion by his fellow Republicans in Congress. Accordingly, the House and Senate pass a bill making an exception - abortion is no longer subject to the appellate jurisdiction of the Supreme Court. Reggie signs it into law. Almost at once, Utah passes a bill outlawing abortion except in the case of rape, incest, or to save the life (not the health, the life) of the mother. Mormons for Choice immediately sue in state court, and get rebuffed - the Utah State Supreme Court says “nope, perfectly in accord with the Utah state constitution.” MfC then sues in federal court. A local federal judge rules against them, they appeal, the district rules against them. Mormons for Choice then appeals to the Supreme Court, saying that they are denied their right to privacy or due process or something - essentially “Congress can’t do that”. Topic for debate: How does the Supreme Court rule, and what would be their justification? Talk amongst yourselves. Regards, Shodan PS - I don’t particularly care if this would be good for one party or the other, or even if it is a good idea in general, although if you all want to unburden your bosoms on the topic, go ahead. I am more interested in what basis the Supremes would use to rule one way or the other. PPS - Being a textualist, ISTM that the Constitution says what it says, and no amount of emanations and penumbrae and living document stuff can make the Constitution say “they can’t do that” if it says they can. IANAL. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [May 25, 2017, 4:19pm UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/2 "2017-05-25T16:19:43Z")
I know virtually nothing about this topic, but I’ll just chime in with some general thoughts. If Congress were to exercise this power to dictate appellate jurisdiction as an administrative matter, rather than a substantive matter on a particular controversy, I have no problem with that. So for example, if Congress wants to establish the Court of Appeals for the Armed Forces which shall be the court of last resort on particular types of controversies, then sure, why not? That just means that the burden on the Supreme Court is relieved for a particular class of cases. But if the idea is that certain issues should not be adjudicated by the Supreme Court, such as the extent to which states may regulate abortion, in a clear effort to “lock in” a particular policy position on a matter, I think such a move is unfair. Yes, I said unfair. I don’t know if it illegal. Let’s just remind ourselves that the Constitution is a product of compromise, not written by God, and sometimes it has stupid provisions, like blacks counting as 3/5ths of a person. Provisions of the Constitution can be both legal and unfair. In this case, I feel totally fine weighing in on the fairness of the principle, and leaving the legality of it for others to consider. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 25, 2017, 5:24pm UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/3 "2017-05-25T17:24:25Z")
The limits of Jurisdiction stripping are [discussed here](https://en.wikipedia.org/wiki/Jurisdiction_stripping#Limits). AFAIK. The only SCOTUS case which deals with the limits of jurisdiction stripping from knowledge is the opinion of Story J in _[Martin v Hunter;s Lessee](https://en.wikipedia.org/wiki/Martin_v._Hunter%27s_Lessee)_ 14 US 304 (1816). Story J suggests that Congresses jurisdiction-stripping power was not unlimited. ---
**Author:** ![ganthet](https://avatars.discourse-cdn.com/v4/letter/g/9de0a6/32.png) [@ganthet](https://boards.straightdope.com/u/ganthet)\ **Post date:** [May 25, 2017, 7:18pm UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/4 "2017-05-25T19:18:35Z")
> [@Shodan](#): > > Accordingly, the House and Senate pass a bill making an exception - abortion is no longer subject to the appellate jurisdiction of the Supreme Court. Reggie signs it into law. Almost at once, Utah passes a bill outlawing abortion except in the case of rape, incest, or to save the life (not the health, the life) of the mother. > … > Topic for debate: How does the Supreme Court rule, and what would be their justification? > … > > PPS - Being a textualist, ISTM that the Constitution says what it says, and no amount of emanations and penumbrae and living document stuff can make the Constitution say “they can’t do that” if it says they can. IANAL. Taking the quoted portion of the Constitution in context (particularly with the preceding sentence), it is apparent that the framing of the “exceptions” to appellate jurisdiction that could be regulated by Congress is referring to Congress being able to control whether the Supreme Court has original jurisdiction over some matters versus appellate jurisdiction over others. There is nothing in the text that appears to grant to Congress the ability to completely remove both original and appellate jurisdiction from the Supreme Court whatsoever. Such an interpretation would essentially remove any check and balancing function the Supreme Court could provide as it pertains to Congress. Congress can, as it has, create courts beneath the Supreme Court and fashion an appellate process from there so that appellants may have to first go through intermediate appeals courts, following set rules and timelines, before the Supreme Court can exercise jurisdiction. These actions would be and have been reasonably consistent with the kinds of regulations that the cited passage allow. Further, there is no constitutional right to abortion, it’s just that federal and state abortion-related laws have judged to potentially impugn on a (controversially inferred) constitutional right to privacy. So, drafting and signing a law that says that the Supreme Court (or federal courts in general) have no jurisdiction over abortion-related suits isn’t a magical end-run around the fact that challenges to an abortion-related law are based on the constitutional right to privacy usually along with constitutional due process rights. Such due process rights would be doubly affected if a law was passed that suddenly prevented citizens from being able to either sue to challenge laws in federal court or would curtail their appellate rights by preventing federal appellate courts from being able to hear their appeals. Since the constitution trumps (pardon the pun) mere statutes, a person’s constitutional rights will prevail. ---
**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:** [May 25, 2017, 8:05pm UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/5 "2017-05-25T20:05:08Z")
Bottom line: we don’t know. There’s not enough case law. But these kind of hypotheticals are the standard fare for federal courts law school exams. The conventional wisdom is that efforts to strip the Supreme Court of jurisdiction will fail because of other requirements of the Constitution and the way the Supreme Court is likely to interpret Article III in such a circumstance. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 25, 2017, 8:15pm UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/6 "2017-05-25T20:15:29Z")
I suggest that before answering, people read [_Ex parte McCardle_](https://en.wikipedia.org/wiki/Ex_parte_McCardle). Then you might reference the famous quote from Justice Felix Frankfurter in _National Insurance Co. v. Tidewater Co._, 337 U.S. 582, 655 (1949): “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred.” There is ZERO constitutional authority for the proposition that the Supreme Court of the United States must be the ultimate appellate authority in this country. ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [May 26, 2017, 1:05am UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/7 "2017-05-26T01:05:50Z")
Huh, so could the hypothetical President in the OP also pass a law saying, “The Super Ultra Supreme Court is now the ultimate authority on law in the nation, which the President is solely responsible for picking”? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 26, 2017, 2:38am UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/8 "2017-05-26T02:38:20Z")
> [@Leaper](#): > > Huh, so could the hypothetical President in the OP also pass a law saying, “The Super Ultra Supreme Court is now the ultimate authority on law in the nation, which the President is solely responsible for picking”? The hypothetical President can’t pass laws. Assuming that you mean, could the hypothetical Congress pass such a law and the President sign it, then the answer is, “yes, the Congress can constitute the Courts any way they want, with the sole exception being that the Supreme Court by Constitution has original jurisdiction in certain limited cases.” The system of federal courts in the U.S. has undergone much evolution over the years. One of the early sticking points, as I recall, was that Congress originally required the Supreme Court justices to ride circuits. The justices originally balked at this, claiming Congress lacked the power to compel them to do so. However, when in a later case the issue was litigated before the Court, the Court went ahead and determined that Congress could constitutionally require that they do so. ---
**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:** [May 26, 2017, 3:39am UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/9 "2017-05-26T03:39:56Z")
> [@](#): > > In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. 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. I think there are two ways to read this. 1. The Supreme Court has original jurisdiction in cases involving ambassadors and states. The Supreme Court also has appellate jurisdiction in all other cases - with the exception of those additional situations in which Congress gives it original jurisdiction. 2. The Supreme Court has original jurisdiction in cases involving ambassadors and states. The Supreme Court also has appellate jurisdiction in all other cases - with the exception of those situations in which Congress takes away its appellate jurisdiction. Personally, I’ve have interpreted it the first way. But I’m aware that that interpretation is at odds not only with _National Insurance v Tidewater_ but also with _Marbury v Madison_. So I’m out of the mainstream on this one. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [May 26, 2017, 4:27am UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/10 "2017-05-26T04:27:11Z")
> [@DSYoungEsq](#): > > I suggest that before answering, people read [_Ex parte McCardle_](https://en.wikipedia.org/wiki/Ex_parte_McCardle). Then you might reference the famous quote from Justice Felix Frankfurter in _National Insurance Co. v. Tidewater Co._, 337 U.S. 582, 655 (1949): “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred.” > > There is ZERO constitutional authority for the proposition that the Supreme Court of the United States must be the ultimate appellate authority in this country. Even Homer nods, I see. 😉 Frankfurter was perhaps the Justice most deferential to elected authority in modern history, and his opinion in _Tidewater_ was joined by only one other Justice. Whereas eight years later, in _Cooper v. Aaron_, a unanimous Court said of _Marbury_ that it “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” Even Frankfurter signed on to that pronouncement. The meaning is clear – the Supreme Court always gets the final say on what the Constitution means. I do think that Congress can make exceptions to strip the federal courts of jurisdiction to construe and enforce federal statutes. But anyone suggesting that the Court can be stripped of the ability to adjudicate constitutional claims ought to explain why the Court would abandon _Cooper_ and cede constitutional supremacy to Congress. ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [May 26, 2017, 4:33am UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/11 "2017-05-26T04:33:02Z")
It seems to me that the Supreme Court could take the case and declare the original law that Congress passed unconstitutional. Then what do Congress and the President do? We’re only talking hypotheticals here. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 26, 2017, 4:56am UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/12 "2017-05-26T04:56:59Z")
> [@DSYoungEsq](#): > > I suggest that before answering, people read [_Ex parte McCardle_](https://en.wikipedia.org/wiki/Ex_parte_McCardle). Is that still good law after _Boumediene v Bush_ 55 US 723 (2008) ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 26, 2017, 5:34am UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/13 "2017-05-26T05:34:37Z")
Seems to me the three branches of government were created as separate but equal. None has primacy over the others. Checks and balances thing. As such not seeing how one branch can limit the power of the other branches without their capitulation. And it seems to me it is the courts who would decide a question like this. If the premise is to just ignore the courts then the US government has stopped functioning and we have bigger problems. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [May 26, 2017, 7:52am UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/14 "2017-05-26T07:52:04Z")
I think the OP makes sense if we believe that the Constitution is merely an agreement between gentlemen, and that somehow the judiciary are of a lower class. And the sort of politician who uses phrases like “so-called judge” might like that idea. But I think the courts, and indeed the legal profession generally, would find that an offensive restraint on their power. Of course, it could happen, and may well happen soon. But it would be revolutionary, in the sense that it would be a political revolution, literally, and more so than the so-called “Reagan Revolution.” Indeed, more like Berlusconi, or that other Italian guy Charlie Chaplin parodied once… ---
**Author:** ![madsircool](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/madsircool/32/3432_2.png) [@madsircool](https://boards.straightdope.com/u/madsircool)\ **Post date:** [May 26, 2017, 8:02am UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/15 "2017-05-26T08:02:54Z")
> [@Ravenman](#): > > I know virtually nothing about this topic, but I’ll just chime in with some general thoughts. > > If Congress were to exercise this power to dictate appellate jurisdiction as an administrative matter, rather than a substantive matter on a particular controversy, I have no problem with that. So for example, if Congress wants to establish the Court of Appeals for the Armed Forces which shall be the court of last resort on particular types of controversies, then sure, why not? That just means that the burden on the Supreme Court is relieved for a particular class of cases. > > But if the idea is that certain issues should not be adjudicated by the Supreme Court, such as the extent to which states may regulate abortion, in a clear effort to “lock in” a particular policy position on a matter, I think such a move is unfair. > > Yes, I said unfair. I don’t know if it illegal. Let’s just remind ourselves that the Constitution is a product of compromise, not written by God, and sometimes it has stupid provisions, like blacks counting as 3/5ths of a person. Provisions of the Constitution can be both legal and unfair. In this case, I feel totally fine weighing in on the fairness of the principle, and leaving the legality of it for others to consider. The 3/5 clause was a good thing at the time the Constitution was written because 1)It reduced the number of Congressmen from slaveholding states and 2)Blacks werent allowed to vote. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 26, 2017, 10:33pm UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/16 "2017-05-26T22:33:24Z")
> [@AK84](#): > > Is that still good law after _Boumediene v Bush_ 55 US 723 (2008) Yes. All that the Court said in _Boumediene_ is that the detainees had constitutionally guaranteed rights, including the right of _habeas corpus_, and that Congress could not take that away without replacing it with something substantially similar. This is not an appellate right, which is what _McCardle_ discussed. ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [May 26, 2017, 11:01pm UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/17 "2017-05-26T23:01:07Z")
> [@madsircool](#): > > The 3/5 clause was a good thing at the time the Constitution was written because 1)It reduced the number of Congressmen from slaveholding states and 2)Blacks werent allowed to vote. This is wrong. 1. An alternative was not to count slaves at all so by that standard the 3/5 clause increased the number of Congressmen from slaveholding states. The 3/5 clause was a compromise. 2. Women weren’t allowed to vote nor were children. (I suspect in some states those not owning land weren’t allowed to either.) They weren’t counted as 3/5 so your logic doesn’t follow. ---
**Author:** ![madsircool](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/madsircool/32/3432_2.png) [@madsircool](https://boards.straightdope.com/u/madsircool)\ **Post date:** [May 26, 2017, 11:24pm UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/18 "2017-05-26T23:24:32Z")
> [@OldGuy](#): > > This is wrong. > > 1. An alternative was not to count slaves at all so by that standard the 3/5 clause increased the number of Congressmen from slaveholding states. The 3/5 clause was a compromise. > > 2. Women weren’t allowed to vote nor were children. (I suspect in some states those not owning land weren’t allowed to either.) They weren’t counted as 3/5 so your logic doesn’t follow. You would be wrong. Northern States didnt want to count slaves at all; the slave states wanted them to be counted fully. The 3/5 clause reduced the number of Congressmen and Electoral votes in the South thus reducing their political influence. > **[Three-Fifths Compromise - Facts, Cases](https://constitution.laws.com/three-fifths-compromise)** > > Three-Fifths Compromise - Facts, Cases - Understand Three-Fifths Compromise - Facts, Cases, LAWS.COM - American Constitution 1789, its processes, and crucial LAWS.COM - American Constitution 1789 information needed. ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [May 27, 2017, 1:17am UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/19 "2017-05-27T01:17:32Z")
> [@madsircool](#): > > You would be wrong. Northern States didnt want to count slaves at all; the slave states wanted them to be counted fully. The 3/5 clause reduced the number of Congressmen and Electoral votes in the South thus reducing their political influence. > > [Three-Fifths Compromise - Facts, Cases - US Constitution - LAWS.com](http://constitution.laws.com/three-fifths-compromise) No, I was simply disputing your claim. You can say the 3/5 compromise either increased or decreased the voting power of the South. It depends what you think would have been the result otherwise, fully counting the slaves or not counting them at all (or perhaps the more logical 1/2). You can’t claim it decreased the South’s power unless we know for sure the South was otherwise going to win the debate. As James Madison of Virginia was the proposer of the compromise, one might think things were leaning in favor of the North’s position of not counting them at all just as Native Americans, also not considered citizens, were not counted. ---
**Author:** ![madsircool](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/madsircool/32/3432_2.png) [@madsircool](https://boards.straightdope.com/u/madsircool)\ **Post date:** [May 27, 2017, 2:31am UTC](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418/20 "2017-05-27T02:31:16Z")
If the south had more congressmen and electoral college votes, wouldnt you agree that that would have made them more powerful? [Next page](https://boards.straightdope.com/t/congress-makes-a-supreme-court-exception/787418.md?page=2)