This may be correct concerning legislation, such as the Flag burning case. Congress passed a law to override it, then that law was struck down later, IIRC.
Common law that the SC itself established, that is, a Judicially created doctrine, can not, as we remember when Congress tried to override elements of Miranda.
(a) Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress…
The law is clear as to whether Congress has constitutional authority to do so. This Court has supervisory authority over the federal courts to prescribe binding rules of evidence and procedure. Carlisle v. United States, 517 U. S. 416, 426. While Congress has ultimate authority to modify or set aside any such rules that are not constitutionally required, e.g., Palermo v. United States, 360 U. S. 343, 345-348, it may not supersede this Court’s decisions interpreting and applying the Constitution, see, e.g., City of Boerne v. Flores, 521 U. S. 507, 517-521.
Article 3 also gives the SC Appellate jurisdiction, so Congress can NOT change that.
…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.
Why would it be unconstitutional? You seem to be thinking that since the Constitution allows strip searches for any reason that it thereby requires strip searches for any reason. This is incorrect. The court found that the Constitution did not prohibit strip searches for any reason. That does not preclude legislatures - from the city, state, or federal level, from writing laws that limit strip searches. The Constitution would not preclude the legislature making* tighter* restrictions on the government’s power.
Correct, this is settled law, right from the SC itself.
The Bill of Rights is negative in nature, meaning the govt. is prohibited from certain acts, ergo a state is free to make a positive out of them, meaning bypassing the Court.
That is the establishment of a constitutional right by interpretation of the constitution itself. It’s not really the same thing as the Supreme Court just making a common law ruling. There are plenty of cases that don’t involve the assertion of a constitutional right.
Do you understand that not all cases before the Supreme Court are based on the assertion of a constitutional right? While the broad meaning of the term “common law” might encompass many constitutional decisions, cases in which a fundamental right or other constitutional decision is in common parlance a matter of Constitutional Law. Common law cases, in the normal sense, do not start with the Constitution as the basic text that must be interpreted.
I answered before your edit was posted.
Reagardless, it is not improper to term Judicial law/ Precedential law/Case law/ as the Common law, at least as far as I am concerned, all are interchangeable. It denotes it is court handed down, not Statutory law.
I am at the library and found law dictionary to support my posts, although I have one at home, but could not quote from it.
Black’s Law Dictionary, 7th Edition;
Common law
The body of law derived from judicial decisions, rather than from statutes or constitutions; CASELAW <federal common law>. Cf. Statutory law.
Federal common law;
The Judge made law of federal courts, excluding the law in all cases governed by state law.
Another entry;
Caselaw
The collection of reported cases that form the body of law within a given jurisdiction- Also termed decisional law; adjudicative law; jurisprudence; organic law.
which relates to the civil rights part of the quotation from the OP. I was responding to the comment from the OP that the Court had changed its position on slavery.
As already been pointed out, Congress can enact a law excluding SCOTUS from any appellate jurisdiction: “under such regulations as the Congress shall make.” If Congress did, an action brought to interpret that phrase as excluding all appellate jurisdiction, would surely be brought, and SCOTUS most likely would say that Congress cannot exclude all appellate jurisdiction.
Read your Article III cite again, with careful attention to the words following “Fact.” Congress may limit SCOTUS’s appellate jurisdiction in any manner they see fit, including in extreme theory abolishing it altogether, though they have been loath to restrict it at all except at the court’s own request (e.g., placing a $75,000 floor in diversity of jurisdiction suits), and only the in guano dementis[sup]1[/sup] extreme of right wingers have proposed its total abolition as anything other than a thought exercise.
I bolded what I don’t really understand what you are trying to say, not being stubborn here.
If we are refering to SC cases now, since the thread is about the SC. When a Petition for Certiorari is granted, there must be on the Petition, the Question Presented.
Sure, I agree, this is NOT always a Constitutional one. If this is what you mean, I agree.
I understand that, but I was posting my thoughts from Cornell’s Annotations:
The Theory of Plenary Congressional Control
Unlike its original jurisdiction, the appellate jurisdiction of the Supreme Court is subject to “exceptions and regulations” prescribed by Congress, and the jurisdiction of the inferior federal courts is subject to congressional prescription. Additionally, Congress has power to regulate modes and practices of proceeding on the part of the inferior federal courts. Whether there are limitations to the exercise of these congressional powers, and what the limitations may be, are matters that have vexed scholarly and judicial interpretation over the years, inasmuch as congressional displeasure with judicial decisions has sometimes led to successful efforts to “curb” the courts and more frequently to proposed but unsuccessful curbs.1059 Supreme Court holdings establish clearly the[p.780]breadth of congressional power, and numerous dicta assert an even broader power, but that Congress may through the exercise of its powers vitiate and overturn constitutional decisions and restrain the exercise of constitutional rights is an assertion often made but not sustained by any decision of the Court.
Although they cite no specific case law on Clause 2, it has never been done since 1789. It seems to me after all the Judiciary Acts that have been enacted, Congress would think it has the unbridled power to do so, especially the JA of 1925.
Perhaps I should not have said NOT so forceful in my first post about it, sorry for the confusion.
As I understand it, Congress can remove appelate on cases - i.e. if INS says deport the bum, the bum can’t appeal the case to you. However, that in no way can invalidate the right of the bum to appeal the constitutionality of that law. Once the court rules the law is constitutional, then there’s not much left in the way of things to appeal - I suppose they can’t appeal that the court made an error in finding them deportable.
Another issue to consider - we can talk cynically about impeachment and voter pandering - but the real fact is that the majority of congress are well aware of the importance of their job. They may think “I have to pretend to be a good ‘Christian’ family values man for the sake of pandering to the elctorate” but they understand the strong and significant issues required to change over 200 years of tradition and fair play. They also recognize the danger of going nuclear - the moment impeaching the courts (or the administration, like President Johnson) becomes a standard political ploy, it also becomes a tit-for-tat game and the other side will do it. For this reason, for example, the Democrats have mnot messed with the fake filibuster rules in the senate.
Having said that, to get 67 senators to agree someone must go, they must have done something excessively egregious, or failed to heed earleir warnings to smarten up. (Clinton, for example, probably got the punishment he deserved; he was only the second president impeached to trial - 3rd subject to articles - but not removed because more than 1/3 felt lying / perjuring in a million-dollar lawsuit, not related to government business, was not grounds for removing the sitting president.)
Similarly, Harriet Meiers dropped her self-anointed bid for SCOTUS when even the Republican senate, bought and paid for as they might be like all politicians, recognized the importance of real substantial aptitude; she simply was not smart enough, and nobody wanted the court to become a collection of partisan lightweights.
Also, as far as stacking the court - also remember that if anyone takes the court seriously, it’s lawyers. The cream of the cream recognize the seriousness of the task and the need for extreme competence. Unless the current court were to behave in such a way that mass impeachment as well as stacking were considered valid options, I suspect anyone trying that tactic would face even more massive outrage from the legal community than from the opposite party. WHich brings the follow-on question, where would you find at least 4 sufficiently competent and acceptable, relatively impartial justices to agree to a vote-packing scheme? Or are we back to the “fill them with toadies” plan - sure to destroy the instution faster than anything.