# Congress vs SCOTUS
**URL:** https://boards.straightdope.com/t/congress-vs-scotus/265731
**Category:** Great Debates
**Created:** [September 23, 2004, 7:25pm UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731 "2004-09-23T19:25:16Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@Zoe](https://boards.straightdope.com/u/Zoe)
#### Post date: [September 23, 2004, 7:25pm UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/1 "2004-09-23T19:25:16Z")
The United States House of Representatives voted today to block the Supreme Court’s ability to rule on whether or not the words _under God_ should be excluded from the Pledge of Allegiance.
According to this temporary link: [http://start.earthlink.net/newsarticle?cat=0&aid=D859HC880\_story](http://start.earthlink.net/newsarticle?cat=0&aid=D859HC880_story)
> [@](#):
>
> Supporters insisted that Congress has always had authority to limit federal court jurisdiction, and the legislation is needed to protect an affirmation of religion that is part of the national heritage.
>
> The bill, which was passed 247-173, would prohibit federal courts, including the Supreme Court, from hearing cases involving the pledge and its recitation and would prevent federal courts from striking the words “under God” from the pledge.
1. Has Congress ever had the authority to limit federal court jurisdiction?
2. Is an “affirmation of religion” part of our national heritage? If so, what does that mean exactly and why does it need protecting?
3. What are the chances of this bill ever coming to a vote in the Senate?
4. Would the Supreme Court strike this law down as unConstitutional? Would the vote be unanimous? How long would it take? Could Congress then pass a law with slightly different wording that does essentially the same thing?
5. Do you consider this an election year ploy to put strict Constitutionalists and non-fundamentalists in a bad light?
6. What is the value of such a bill?
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### Author:  [@Zoe](https://boards.straightdope.com/u/Zoe)
#### Post date: [September 23, 2004, 7:32pm UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/2 "2004-09-23T19:32:36Z")
My OP is in need of coding repair by a Mod. Sorry.
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### Author:  [@Polycarp](https://boards.straightdope.com/u/Polycarp)
#### Post date: [September 23, 2004, 7:35pm UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/3 "2004-09-23T19:35:21Z")
**1. Has Congress ever had the authority to limit federal court jurisdiction?**
Yep – always, with the exclusion of the original jurisdiction of the Supreme Court, a relatively minor constituent of the system. See Article III, Section 2, second paragraph, of the original, unamended Constitution.
**2. Is an “affirmation of religion” part of our national heritage? If so, what does that mean exactly and why does it need protecting?**
It means that some Congressmen actually believe, and others see it as a political plus to be seen to believe, that the U.S. was founded on the Christian faith (with some token acknowledgement of Judaism thrown in as a courtesy and to avoid looking **too** sectarian. And in the sense that they mean it, no, it is not. To argue that the FF, men of the Enlightenment, held the particular sectarian views of those who so advocate today, is extremely disingenuous.
**3. What are the chances of this bill ever coming to a vote in the Senate?**
Probably somewhere between slim and none. It’s one of those election-year look-good measures.
**4. Would the Supreme Court strike this law down as unConstitutional? Would the vote be unanimous? How long would it take? Could Congress then pass a law with slightly different wording that does essentially the same thing?**
Nope. Whatever you may say about SCOTUS, it’s very much inclined to play by the rules as regards precedent and the sourcing of authority. The Constitution says that Congress can do this; so if they choose to do so, SCOTUS will deny any case, and overturn any case accepted by a lower court, which goes against it.
**5. Do you consider this an election year ploy to put strict Constitutionalists and non-fundamentalists in a bad light?**
Nope, I see it as an election year ploy to buy the votes of politically uninformed Christians in areas where they constitute a majority or major vote bloc.
**6. What is the value of such a bill?**
I decline to answer, since this is GD, not the Pit. 🙂
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### Author:  [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)
#### Post date: [September 23, 2004, 7:55pm UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/4 "2004-09-23T19:55:13Z")
> [@Polycarp](#):
>
> **1. Has Congress ever had the authority to limit federal court jurisdiction?**
>
> Yep – always, with the exclusion of the original jurisdiction of the Supreme Court, a relatively minor constituent of the system. See Article III, Section 2, second paragraph, of the original, unamended Constitution.
Ummm…what?
Congress can ordain and establish inferior courts (and by implication de-establish them), but “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.”
Nothing in there that I can see about Congress being able to limit the judicial power.
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### Author:  [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)
#### Post date: [September 23, 2004, 7:58pm UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/5 "2004-09-23T19:58:51Z")
Jesus. I can’t believe I missed this:
"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. " Sorry about that. But as long as you also sue a state, the SC get original jurisdiction and Congress can’t do anything about it.
Now, this leaves a question for you Con Law scholars. Who **does** have original jurisdiction and if Congress denies the USSC appelate jurisdiction, does the original jurisdiction court simply have final say?
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### Author:  [@Zoe](https://boards.straightdope.com/u/Zoe)
#### Post date: [September 24, 2004, 5:15am UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/6 "2004-09-24T05:15:02Z")
> [@](#):
>
> **Zakalwe** : Now, this leaves a question for you Con Law scholars. Who does have original jurisdiction and if Congress denies the USSC appelate jurisdiction, does the original jurisdiction court simply have final say?
I’m bumping this with the hope of a response to your question.
> [@](#):
>
> **Polycarp** : The Constitution says that Congress can do this; so if they choose to do so, SCOTUS will deny any case, and overturn any case accepted by a lower court, which goes against it.
That particular response just boggles my mind! I had no idea that it was legal for Congress to limit the powers of the Supreme Court to rule on a specific issue – especially a religious issue.
Thanks for the responses.
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### Author:  [@athelas](https://boards.straightdope.com/u/athelas)
#### Post date: [September 24, 2004, 12:21pm UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/7 "2004-09-24T12:21:58Z")
Congress is elected. SCotUS judges aren’t. Frankly, I’m pleased that they’ve finally done something, rather than complaining about “judicial activism”.
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### Author:  [@jshore](https://boards.straightdope.com/u/jshore)
#### Post date: [September 24, 2004, 2:22pm UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/8 "2004-09-24T14:22:43Z")
So, “elected” means that they can overrule the Bill of Rights?
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### Author:  [@jshore](https://boards.straightdope.com/u/jshore)
#### Post date: [September 24, 2004, 3:25pm UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/9 "2004-09-24T15:25:06Z")
> [@Polycarp](#):
>
> **1. Has Congress ever had the authority to limit federal court jurisdiction?**
>
> Yep – always, with the exclusion of the original jurisdiction of the Supreme Court, a relatively minor constituent of the system. See Article III, Section 2, second paragraph, of the original, unamended Constitution.
Not so fast. There is considerable debate on this point, as [this](http://www.nytimes.com/aponline/national/AP-Pledge-Under-God.html) New York Times article on it shows:
> [@](#):
>
> The legislation drew strong protests from Democrats who said they want ``under God’’ to remain but viewed the measure as an unconstitutional attack on the judicial branch.
>
> …
>
> But Democrats said the bill would damage a system of judicial review that has been fundamental to government for 200 years. ``We’re playing with fire here, we are playing with the national unity of this country,’’ by letting each state make its own interpretation of constitutional law, said Rep. Jerrold Nadler, D-N.Y.
>
> …
>
> On the other side, House Judiciary Committee Chairman James Sensenbrenner, R-Wis., argued that ``the Constitution clearly provides that the lower federal courts are entirely creatures of Congress, as is the appellate jurisdiction of the Supreme Court.’’
>
> Democrats cited an 1803 Supreme Court decision in which the court asserted its role as the arbiter of what the Constitution says. But Sensenbrenner said the Constitution gives the high court original jurisdiction only in cases affecting foreign officials or when a state is involved. In other appellate cases, he contended, the court is subject to congressional regulations.
>
> …
>
> Rep. Mel Watt, D-N.C., offered an amendment that would have returned the legislation to its original form, under which lower federal courts were barred from ruling on the pledge but the Supreme Court retained its authority. It was defeated, 217-202.
>
> There is no direct precedent for making exceptions to the Supreme Court’s appellate jurisdiction, said Rep. Judy Biggert, R-Ill., who backed the original bill and the Watt amendment but voted against the final version.
By the way, just to show you how wacko the Republicans in Congress have become and what our Supreme Court is likely to look like if Bush is re-elected, consider this quote:
> [@](#):
>
> But Rep. Todd Akin, R-Mo., who wrote the legislation before the House Thursday, predicted that if the issue returned to the high court, only three justices would support retention of the `under God'' phrase. If the courts are allowed to strike the religious reference, `we will have emasculated the very heart of what America has always been about.’’
So, this is basically an admission that the two moderate conservative justices, Kennedy and O’Connor don’t even agree with them and they can only count on the arch-conservatives Scalia, Thomas, and Rehnquist.
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### Author:  [@Polycarp](https://boards.straightdope.com/u/Polycarp)
#### Post date: [September 24, 2004, 5:42pm UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/10 "2004-09-24T17:42:47Z")
Horse patoot, **jshore**. If you read your cite article, or even the selections you quoted, it’s clear that the objections are to the wisdom of acting in this manner, not to the clear Constitutional privilege of Congress to do so. And I want to go on record as agreeing wholeheartedly that it is an assholish thing for them to be doing.
As specified in Article V, Congress has the right to call a Constitutional Convention for the purpose of writing amendments, too. People have had strong objections to the idea and what such a convention might take it into its mind to do. But that doesn’t mean that anybody thinks that they **can’t** – just that they **shouldn’t**. The right of Congress to delimit the jurisdiction of the lower courts and the appellate jurisdiction of the Supreme Court is there – it’s just a truly stupid idea to make use of it.
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### Author:  [@jshore](https://boards.straightdope.com/u/jshore)
#### Post date: [September 24, 2004, 6:25pm UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/11 "2004-09-24T18:25:14Z")
Read what I quoted from again, my friend. Some of those in Congress were clearly questioning the Constitutionality of Congress’s move. You may think they’re wrong on this point, as Sensenbrenner does, but that does not mean that their opinion does not exist.
And, I would like to see some constitutional scholars weigh in on the point.
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### Author:  [@jshore](https://boards.straightdope.com/u/jshore)
#### Post date: [September 24, 2004, 6:30pm UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/12 "2004-09-24T18:30:29Z")
[Here](http://www.commondreams.org/news2004/0915-03.htm) is one article, admittedly from a progressive source, that weighs in on this:
> [@](#):
>
> Many constitutional scholars doubt that Congress has the right to strip the federal courts of their authority to hear cases concerning the core freedoms listed in the Bill of Rights. Giving Congress this power, they point out, would make it possible for lawmakers to take away free speech, free press or freedom of religion rights with a simple majority vote.
Actually, that is pretty much the same argument that I came up with why it didn’t make sense that Congress would have this trump card of the judiciary.
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### Author:  [@Julius\_Henry](https://boards.straightdope.com/u/Julius_Henry)
#### Post date: [September 26, 2004, 6:37am UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/13 "2004-09-26T06:37:05Z")
Somebody pointed out that if a state court rules “under God” unconstitutional, that SCOTUS would then be unable to overturn such a ruling if this bill ever becomes law.
By the way, Todd Akins, who wrote this bill, is my rep. I really need to move.
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### Author:  [@jayjay](https://boards.straightdope.com/u/jayjay)
#### Post date: [September 26, 2004, 7:16am UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/14 "2004-09-26T07:16:37Z")
> [@Polycarp](#):
>
> It’s one of those election-year look-good measures.
Unfortunately, like the retail sector’s Christmas season, “election-year look-good” season seems to be expanding time-wise in both directions.
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### Author:  [@Zoe](https://boards.straightdope.com/u/Zoe)
#### Post date: [September 26, 2004, 7:25am UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/15 "2004-09-26T07:25:00Z")
> [@](#):
>
> **Julius Henry** : Somebody pointed out that if a state court rules “under God” unconstitutional, that SCOTUS would then be unable to overturn such a ruling if this bill ever becomes law.
>
> By the way, Todd Akins, who wrote this bill, is my rep. I really need to move.
It might be worth hanging around just to see his face in the event that the scenario described in your first paragraph actually happens.
If there _is_ a debate about the Supreme Court’s right to rule on this, who would rule on it? The SCOTUS itself?
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### Author:  [@Spiny\_Norman](https://boards.straightdope.com/u/Spiny_Norman)
#### Post date: [September 26, 2004, 9:12am UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/16 "2004-09-26T09:12:09Z")
> [@athelas](#):
>
> Congress is elected. SCotUS judges aren’t. Frankly, I’m pleased that they’ve finally done something, rather than complaining about “judicial activism”.
That’s the effect they’re betting on. The congressmen know for a fact that this is a piece of legislation that’s going nowhere, it’s an empty gesture thought up to appeal to parts of the electorate. Why it would please anyone to have Congress do this sort of look-good reelection fluff instead of real legislative work is, frankly, a mystery to me.
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### Author:  [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)
#### Post date: [September 27, 2004, 4:38pm UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/17 "2004-09-27T16:38:26Z")
> [@Spiny Norman](#):
>
> That’s the effect they’re betting on. The congressmen know for a fact that this is a piece of legislation that’s going nowhere, it’s an empty gesture thought up to appeal to parts of the electorate. Why it would please anyone to have Congress do this sort of look-good reelection fluff instead of real legislative work is, frankly, a mystery to me.
Maybe because it’s safer that way? If they’re not doing anything substantive, the chances of them screwing something up go down dramatically…
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### Author:  [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)
#### Post date: [September 27, 2004, 6:36pm UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/18 "2004-09-27T18:36:11Z")
> [@Zakalwe](#):
>
> Maybe because it’s safer that way? If they’re not doing anything substantive, the chances of them screwing something up go down dramatically…
Not to hijack or anything, but “Use of Weapons” inspired your username, right?
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### Author:  [@Polerius](https://boards.straightdope.com/u/Polerius)
#### Post date: [September 27, 2004, 8:19pm UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/19 "2004-09-27T20:19:49Z")
> [@Polycarp](#):
>
> **1. Has Congress ever had the authority to limit federal court jurisdiction?**
>
> Yep – always, with the exclusion of the original jurisdiction of the Supreme Court, a relatively minor constituent of the system. See Article III, Section 2, second paragraph, of the original, unamended Constitution.
Doesn’t this violate the [separation of powers doctrine](http://www.wordiq.com/definition/Separation_of_powers_under_the_United_States_Constitution)?
> [@](#):
>
> Separation of powers is a doctrine whereby the legislative, executive and judicial branches of government are distinct to prevent abuse of power. The doctrine traces back to ancient Greece and was further developed by English and French philosophers. In the United States Constitution, the phrase separation of powers never appears, but is clearly implied by the structure of the Constitution.
Even though “separation of powers” is not a law explicitly, it is something people agree is a very good idea for how to organize a government.
The [Constitution](http://www.house.gov/Constitution/Constitution.html) says
> [@](#):
>
> 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
So, in theory, Congress can exclude \*everything \* from the Court’s appellate Jurisdiction. How whas that ever a good idea to put into the Constitution?
It’s a good thing today’s brand of scum in Congress weren’t around during the [“Brown v. Board of Education”](http://en.wikipedia.org/wiki/Brown_v._Board_of_Education) decision.
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### Author:  [@Duckster](https://boards.straightdope.com/u/Duckster)
#### Post date: [September 28, 2004, 3:10am UTC](https://boards.straightdope.com/t/congress-vs-scotus/265731/20 "2004-09-28T03:10:22Z")
> [@Julius Henry](#):
>
> By the way, Todd Akins, who wrote this bill, is my rep. I really need to move.
Why not help the country by staying where you are and doing your best to have him defeated?
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