# Could Congress Muzzle the Supreme Court? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [September 1, 2014, 2:16pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147 "2014-09-01T14:16:54Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![NeonMadman](https://avatars.discourse-cdn.com/v4/letter/n/58f4c7/32.png) [@NeonMadman](https://boards.straightdope.com/u/NeonMadman)\ **Post date:** [September 1, 2014, 2:16pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/1 "2014-09-01T14:16:54Z")
I’ve never started a thread on SMDB before, and I’m hoping I’ve put this into the correct forum. If not, feel free to move it where it should go. I should also say at the outset that this is a question about US law, so I’ll apologize to any non-US people who have no interest in US law and feel left out. Here’s what I’ve been thinking about: What would happen if Congress decided that the Supreme Court was out of control, ruling by judicial fiat and no longer applying the Constitution to cases that were brought before it, but simply ruling based on its own opinions? Could Congress pass a law restricting the power of the Supreme Court? And if they did, could the Supreme Court simply declare the law unconstitutional and continue on as before? Reading Article 3, Section 2 of the Constitution, I don’t get the impression that the Founders really intended that the SC should be the final court of approval of laws that were passed by Congress; that function seems to have been assumed later on. Additionally, the jurisdiction of the SC is said in Article 3, Section 2 to be “with such Exceptions, and under such Regulations as the Congress shall make.” So what really would (or could) happen if the Supreme Court went off the deep end? ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [September 1, 2014, 2:24pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/2 "2014-09-01T14:24:52Z")
In all practical senses, nothing, at least not in the short term. Waiting for the justices to die would do the trick, but that’s a slow process. You could amend the constitution to deny the court the right to declare a law unconstitutional (or by having a way for Congress to override such a declaration) but good luck getting that through Congress, let alone the state legislatures. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 1, 2014, 2:32pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/3 "2014-09-01T14:32:36Z")
All three branches have assumed powers for themselves not specifically laid out, or barely alluded to, yet grown into huge powers. The interstate commerce clause was not written to establish Congressional control of the entire economy and even non-commercial activity that could conceivably affect the economy. The executive branch has assumed all kinds of powers, most notably the ability to basically wage war without Congress’ involvement. So if the Supreme Court has taken on the power to declare laws unconstitutional, I’d say that’s a pretty minor thing by comparison. I’d worry about the other two branches first. But it does prove an argument that small government conservatives have made for decades: any authority will try to increase its reach and power. Generally, the only check on that is ANOTHER authority who feels that its toes are being stepped on. The founders must have realized this, thus the checks and balances built into the system. ---
**Author:** ![Johnny\_L.A](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_l.a/32/1084_2.png) [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)\ **Post date:** [September 1, 2014, 2:43pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/4 "2014-09-01T14:43:40Z")
> [@adaher](#): > > But it does prove an argument that small government conservatives have made for decades: any authority will try to increase its reach and power. ‘If this were a dictatorship it would be a heck of a lot easier… as long as I’m the dictator.’ ― George W. Bush ---
**Author:** ![Ranchoth](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ranchoth/32/1066_2.png) [@Ranchoth](https://boards.straightdope.com/u/Ranchoth)\ **Post date:** [September 1, 2014, 2:53pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/5 "2014-09-01T14:53:05Z")
> [@RealityChuck](#): > > In all practical senses, nothing, at least not in the short term. Waiting for the justices to die would do the trick, but that’s a slow process. There’s also [impeachment](http://boards.straightdope.com/sdmb/showthread.php?t=559604), or just [packing the court](http://en.wikipedia.org/wiki/Judicial_Procedures_Reform_Bill_of_1937). Depending on how bad the court’s behavior or how united congress was. ---
**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:** [September 1, 2014, 3:12pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/6 "2014-09-01T15:12:06Z")
It’s also important to know that in some cases, the Supreme Court issues it’s ruling based on laws, not necessarily the Constitution. For example, if the Hobby Lobby decision didn’t sit well with Congress, Congress could simply change the underlying law to produce a different result. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [September 1, 2014, 3:37pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/7 "2014-09-01T15:37:59Z")
> [@](#): > > 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. Thus Congress has this authority only over the appellate jurisdiction of the Court. I imagine it would run something like this[ul] [li]The Court makes some ridiculous ruling[/li][li]Congress passes a restriction that says the case is no longer under the appellate jurisdiction of the Court[/li][li]The Court rules that what Congress did was un-Constitutional[/li][li]Congress then impeaches the Court, removes them from office, and starts over[/li][/ul]It would take a lot longer, and there would be legal action such as the world has never seen, but that would be the upshot. Regards, Shodan ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 1, 2014, 3:44pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/8 "2014-09-01T15:44:47Z")
Given that the justices are appointed by Presidents and confirmed by Congress, it’s hard to envision a court going so off the rails as to require such steps. The political branches, being political, will posture over rulings they disagree with, like Citizens United, but such rulings are rare. And even in the Citizens United case, it was hardly a ridiculous decision. Lots of people disagree with it, but those who have actually read the decision, or even some key excerpts, would know that the arguments made by the majority were far from unreasonable. It was a result many people didn’t like, but it was defensible as a matter of constitutional law. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [September 1, 2014, 4:03pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/9 "2014-09-01T16:03:02Z")
> [@adaher](#): > > Given that the justices are appointed by Presidents and confirmed by Congress, it’s hard to envision a court going so off the rails as to require such steps. The political branches, being political, will posture over rulings they disagree with, like Citizens United, but such rulings are rare. And even in the Citizens United case, it was hardly a ridiculous decision. Lots of people disagree with it, but those who have actually read the decision, or even some key excerpts, would know that the arguments made by the majority were far from unreasonable. It was a result many people didn’t like, but it was defensible as a matter of constitutional law. I would think something like Kelo v. City of New London is a better example of a decision that is indefensible. Regards, Shodan ---
**Author:** ![whitetho](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whitetho/32/1059_2.png) [@whitetho](https://boards.straightdope.com/u/whitetho)\ **Post date:** [September 1, 2014, 4:31pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/10 "2014-09-01T16:31:42Z")
> [@](#): > > 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.** The bolded section in the above quote from the U.S. constitution is formally known as “jurisdiction stripping”. ([Link to Wikipedia article](http://en.wikipedia.org/wiki/Jurisdiction_stripping).) I’ve seen numerous calls over the last few years on conservative sites to invoke it to keep the Supreme Court from reviewing controversial cases where it is expected the court will overturn the law, but as far as I know the last time it was used was in 1869 in [_Ex Parte McCardle_](http://en.wikipedia.org/wiki/Ex_Parte_McCardle), where Congress blocked the Supreme Court from reviewing a _habeas corpus_ case. ---
**Author:** ![etv78](https://avatars.discourse-cdn.com/v4/letter/e/d78d45/32.png) [@etv78](https://boards.straightdope.com/u/etv78)\ **Post date:** [September 1, 2014, 4:44pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/11 "2014-09-01T16:44:10Z")
So much for separation of powers. ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [September 1, 2014, 4:51pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/12 "2014-09-01T16:51:01Z")
Bitch, bitch, whine, whine. Never gonna happen and even if it did, nobody would do anything about it. ---
**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:** [September 1, 2014, 5:17pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/13 "2014-09-01T17:17:47Z")
The bottom line is the people seem to like the idea of separation of powers. They might complain about some particular thing that one branch is doing but if another branch tries a blatant power grab, there’s generally a backlash against the grabber. It happened to Roosevelt in 1937 and Congress in 1998. ---
**Author:** ![jtur88](https://avatars.discourse-cdn.com/v4/letter/j/e9c0ed/32.png) [@jtur88](https://boards.straightdope.com/u/jtur88)\ **Post date:** [September 1, 2014, 5:51pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/14 "2014-09-01T17:51:17Z")
If the Supreme Court handed down an unpopular ruling, local courts, judges or prosecutors could just refuse to address it. Federal troops might be deployed, to try to compel enforcement. But Governor Faubus of Arkansas kept the schools closed for years. Prohibition was spottily enforced, except where federal agents got into the act. ---
**Author:** ![tim-n-va](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim-n-va/32/3001_2.png) [@tim-n-va](https://boards.straightdope.com/u/tim-n-va)\ **Post date:** [September 1, 2014, 9:52pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/15 "2014-09-01T21:52:47Z")
Could Congress defund the court, no salary for staff and the court would effectively cease to exist? ---
**Author:** ![jtur88](https://avatars.discourse-cdn.com/v4/letter/j/e9c0ed/32.png) [@jtur88](https://boards.straightdope.com/u/jtur88)\ **Post date:** [September 1, 2014, 10:08pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/16 "2014-09-01T22:08:52Z")
> [@tim-n-va](#): > > Could Congress defund the court, no salary for staff and the court would effectively cease to exist? I’d like to think that my Supreme Court would still show up for work Monday morning, even if there were no funds to pay them. If I didn’t think they would, I’d have no respect for them or their integrity. They are all independently wealthy enough. They have sworn an oath to serve. During the Second World War, thousands of Americans served in high ranking professional office for a dollar a year. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 1, 2014, 10:20pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/17 "2014-09-01T22:20:36Z")
Yeah, but without staff it might be hard. Defunding, like impeachment, is a an extreme act, but one well within Congress’ power, and they can do it to the executive branch, judicial branch, or even to themselves. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [September 1, 2014, 10:24pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/18 "2014-09-01T22:24:25Z")
> [@tim-n-va](#): > > Could Congress defund the court, no salary for staff and the court would effectively cease to exist? [QUOTE=US Constitution, Article III, Section 1] The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. [/QUOTE] At the very least, they couldn’t cut the pay of the justices themselves, though I don’t think there’s any constitutional protection of their staff’s pay. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [September 1, 2014, 10:25pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/19 "2014-09-01T22:25:13Z")
> [@jtur88](#): > > I’d like to think that my Supreme Court would still show up for work Monday morning, even if there were no funds to pay them. If I didn’t think they would, I’d have no respect for them or their integrity. They are all independently wealthy enough. They have sworn an oath to serve. > > During the Second World War, thousands of Americans served in high ranking professional office for a dollar a year. Perhaps the Justices would show up. But how about the clerks, assistants, secretaries, bailiffs, security staff, messengers, janitors, mechanics, groundskeepers? Would the power company keep the lights on if they weren’t being paid? Would the internet provider keep providing internet? Would the phone company keep the phones on? Would the copier rental company leave their machines in place so they could distribute copies of their opinions? ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 1, 2014, 10:25pm UTC](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147/20 "2014-09-01T22:25:47Z")
And of course SCOTUS has the power to “interpret” the law, so any defunding could be ruled unconstitutional as an abuse of the Congressional spending power. [Next page](https://boards.straightdope.com/t/could-congress-muzzle-the-supreme-court/697147.md?page=2)