Could congress prevent SCOTUS from invalidating laws?

Here is a clause in the constitution concerning SCOTUS. The previous sentence refers to cases where the court has original jurisdiction.

My question is could congress simply remove the court’s jurisdiction over acts of congress?

I point out that the court’s right to do so is somewhat watery. As far as I can tell it rests solely on the phrase “In Pursuance thereof” in thesupremacy clause:

Sure, they could pass a Constitutional amendment.

Otherwise, i think not.

However, note that quite a few laws are invalidated due to some part or wording and that a rewrite could make them kosher.

Yes, they can do so, and have done so in some cases. A Constitutional amendment is not necessarily required.

There are specifics (Congress can’t strip the courts of jurisdiction over things specifically mentioned in the Constitution, and some other tricky bits). But it’s been done, and the court accepted the limit.

Not only could this be done, but I’ve thought this has more viability than stacking the Courts–albeit with the same obvious backlash where the Republicans will do it back and thus invalidate the Supreme Court completely.

Well crafted progressive legislation won’t even reach the Supreme Court. For example, raising tax rates on corporations and high income earners.

There are limits to the “exceptions” Congress can make to the Court’s jurisdiction. Specifically, removing all appellate jurisdiction in cases of law and fact under the clause you mentioned still allows the Court to invalidate federal law under its original jurisdiction.

A state might, for example, bring suit against the United States, parens patriae or in its own right. The Court then has jurisdiction to hear the case, and it is possible that the Court would strike down the law.


Yes. My guess is that in the case of liberal legislation, the challenges would mostly be from the attorneys general of conservative states.

Right. Corporations and high income earners would never dream up a means to challenge a tax law in court. Right?

At the end of the day the Supreme Court has no enforcement mechanism.

If the rest of the government chooses to ignore a Supreme Court ruling there is nothing they can do about it. Famously (and almost certainly apocryphal) president Andrew Jackson said, “John Marshall has made his decision; now let him enforce it!”

So many “norms” have been broken by republicans what happens if they decide to not listen to the Supreme Court? What could they do about it?

Quoting a snip I posted in another thread:

If we have to go back 125 years to a time before income taxes were enacted, then I feel pretty confident that this court won’t risk it with a Dem admin holding the threat of adding new judges over their heads.

Other legislation the Dems could pass is lowering the age of Medicare to 60, an action that would be enormously popular with about 20 million voters. Good luck to an SC blocking that.

I would say no, because the function of judicial review is the core of the judicial power. The Congress can make particular exceptions by subject matter, as in McCardle’s case, but to take away the Court’s power of judicial review would gut the court of its core constitutional function.

The supremacy clause is important, but the starting point is the opening words of Article III:

It is that delineation of the judicial power which is the source of the Court’s power of judicial review, because a question whether a law is consistent with the Constitution is a case “arising under this Constitution, [and] the Laws of the United States”.

That is the core function of the judiciary, just like enacting laws is the core function of the Congress, and taking “care that the laws be faithfully executed” is one of the core duties of the President. One branch can’t take away the core functions of another branch.

The Supremacy clause (Article VI) is important to that analysis, because it clearly states that the Constitution itself is a law, and the supreme law, at that. That was the key foundational distinction between the Constitution and the Articles of Confederation: the Articles were a treaty alliance between sovereign states, but the Constitution was the result of the sovereign law-making function of the people of the United States. That was why Madison in particular insisted on ratification of the Constitution by individual state conventions (Article VII), rather than by the state governments. The Constitution drew its authority directly from the people, unlike the Articles, which drew their authority from the state governments. The Constitution is a law, not a political agreement.

And that leads to the core of Chief Justice Marshall’s statement in Marbury v Madison:

What he is saying is that between the different types of laws listed in Article III and in the supremacy clause, it is the core function of the courts to determine how those laws relate to each other, and in case of conflict, which one governs. He concluded that in case of a conflict between the Constitution itself, and a law “made in pursuance of” the Constitution, the Constitution had to govern. Otherwise, laws “made in pursuance” of the Constitution would be exceeding the authority granted by the people to the federal government in the Constitution.

It’s sometimes said that Marshall CJ just made judicial review up out of whole cloth, and there’s no basis for judicial review in the Constitution, but it is there, in those provisions. And, he didn’t make it up. It was foreseen by the drafters of the Constitution.

For example, in Federalist 78, Alexander Hamilton clearly states that judicial review is implicit in the judicial branch:

Since the it is the core function of the courts to determine the relationship between the Constitution and laws passed by the Congress, an attempt to strip the Supreme Court and the federal courts of all jurisdiction to do that would be unconstitutional, in my opinion.

Now, could the Congress strip the Supreme Court of that power by means of reducing its appellate authority, but leave the inferior courts the power of judicial review? After all, in that model, the “judicial power” under Article III would still be able to review the constitutionality of laws. Maybe. But my bet would be that the Supreme Court would rule that since the judicial power is vested in both the Supreme Court and inferior federal courts, there would be limitations on stripping the Supreme Court of judicial review in general.

You may well be right, but Marbury v. Madison was seen as a giant power by the court at the time. Hard to know what an (honest) originalist would make of all this.

Would an originalist deny Hamilton’s authority as to what the original intent was?

As well, before Marshall was even appointed to the Court, all six justices of the Court had individually held that a federal law was unconstitutional: the Invalid Pensions Act. They issued those decisions on circuit, not collectively as the Supreme Court, but that’s a a series of precedents from 1792, a decade before Marbury, and includes one decision from Chief Justice Jay.

I did not know that. So it wasn’t a real departure. Ignorance fought.

You might be interested in Professor Treanor’s article, “Judicial Review before Marbury and Madison”. Treanor did an extensive study of court deicisions in both state and federal courts prior to the Marbury case, and found that there were numerous examples of the courts asserting that they could hold statutes unconstitutional, under state and federal constitutions.

He deals with the particular case of the Invalid Pensions Act at pp. 533-538, where all six justices of the Supreme Court, prior to Marshall’s appointment, took the view that the Act was unconstitutional because it infringed the independence of the judiciary and its separation from the executive, protected by Article III.

Here’s Treanor’s lead-in to his discussion of Hayburn’s Case, which dealt with the Invalid Pensions Act:

That was before Marshall was appointed to the Court in 1801, and Marbury was decided in 1803.

This is all very interesting and I did not know any of it. When I took American history in HS, Marbury v. Madison was treated as a shot out of the blue.

My impression is that there’s been a lot more historical research being done, such as Treanor’s article, into the historical antecedents for the doctrine. Takes a while for that to filter into the high school curriculum.

And of course, judicial review wasn’t inevitable; could imagine an alternate reality where the Supreme Court judges decline to exercise judicial review, for the reasons given by opponents of the doctrine, such as Thomas Jefferson, who was very hostile to it.

Or, you might have had a situation where the federal courts would only use that power to strike down state laws that they thought intruded on the principles of the federal constitution, but were extremely deferential to a law passed by Congress.

But, I think it’s clear that there were strong precedents for it prior to Marbury. The key points about Marbury are that it established judicial review of federal statutes, and was a Supreme Court decision, deciding the point for the entire federal judiciary.

Note that it took until Dred Scott before the Supreme Court again held that a federal statute was unconstitutional, so they were in practice pretty deferential.