The Congress is not so helpless against adverse Supreme Court decisions as many here seem to think. To the contrary I would suggest reading Garry Wills, A Necessary Evil, for an argument rejecting the concept of coequal branches and placing the sovereignty of the United States in its legislature precisely because the Congress holds the final say in arguments against the executive and judicial branches via impeachment and statutory authority.
One congressional option that wasn’t discussed by Wills which I have heard conservative commentators lobby for: removing jurisdiction. The purposely vague 3rd article of the Constitution leaves the creation ( and thus the regulation ) of lesser courts to the Congress. It does expressly define the original jurisdiction of the Supreme Court ( that is: those cases only the SC can hear ) but leaves appellate jurisdiction “under such Regulations as the Congress shall make.” Which means that if the Congress doesn’t want the courts to rule on a certain issue it can, by simple majority in both Houses, pass a law removing the courts’ jurisdiction over that question. This isn’t hypothetical either. It has already happened at least once though I have lost all of my bookmarks and no longer have a cite.
Legal arguments are all well and good: in court. Out in the real world if the other government officials don’t go along then there isn’t much the judges can do about it. Jacksa Chula Harjo can thumb his nose at the Supreme Court so long as he is safe from impeachment. Marbury v Madison isn’t the text of the Constitution itself nor even if it were would it be safe from congressional interpretation. Congress could dismiss judical review merely by passing a law to the contrary. The question is, would the law be enforced? And the answer is political rather than legal.
Well, I would only add that Article III judges hold their offices during “good behaviour” so presumably within the impeachment power is the ability to remove someone for bad behaviour, though that may just mean criminal conduct.
I know what Nixon was arguing. My point was to disagree with December’s point that you can’t impeach a federal judge for doing their jobs. Look at the impeachment of President Johnson, arguably just for doing his job. The point of my raising Nixon was to show that SCOTUS would not intervene in an impeachment. From Nixon,
I know the concurring opinioins seem to suggest that judicial review of impeachment might be possible, but I don’t see it in the majority opinion.
This is exactly what Rehnquist says in Nixon, the impeachment power is divided and difficult enough to use that it doesn’t need the extra check of judicial review. I agree it is unlikely that a judge will ever be removed for just doing his job. Unlikely does not mean impossible though, and that was really my only point.
You’re talking about Ex Parte McCardle, where Congress passed a law under the Exceptions and Regulations clause to withdraw the Supreme Court’s jurisdiction in habeas corpus cases under the Judiciary Act of 1867. That is subject to the important proviso of U.S. v. Klein that Congress can’t attempt to circumvent the Court’s earlier holdings by limiting appellate jurisdiction over those sorts of cases. That would be allowing Congress to get around what it can’t do substantively by couching a statute in jurisdictional terms, and would violate separation of powers. The jurisdictional limitation can’t usurp the essential function of the court to resolve conflicting questions of law and must be content neutral.
BTW, december, weren’t you the one arguing that Gephardt should be run out of town on a rail because he proposed using executive orders to overcome “bad” Supreme Court decisions? Why did that outrage you and this doesn’t?
Could it be that your view of the propriety of political conduct is dependent upon the ideology of the actors? Nah, couldn’t be.
Thanks for the cite, Sua. Losing one’s memory is a sad part of growing old. As Woody Allen said in Sleeper, “My brain is my second favorite organ.”
Anyhow I didn’t run Gephardt out on a rail in that thread. I sort-of defended him. I said that his comment was no big deal – just normal political pandering.