Most of the above posters would be helped by learning some true constitutional law and history before posting on a subject such as this. I am certain the original poster has no clue now exactly what would happen.
- “Judicial Review” existed prior to Marbury v. Madison
One of the common errors in this thread is the assertion that “judicial review” is a creation of Chief Justice Marshall in the case Marbury v. Madison, 5 U.S. (1 Cranch) 37 (1803). This misconception supports the assertion that it can or should be done away with, because it is only a creation of the Supreme Court. However, the concept of “judicial review,” including the idea of “judicial supremacy” (not only can a court review for constitutionality, but the judicial system’s opinion prevails over either of the other branches), existed in American jurisprudence before Justice Marshall stated unambiguously that the federal judiciary had the power. English courts at times exercised “judicial review,” or at least asserted the right (see Dr. Bonham’s Case, 8 Coke Rep. 107 (C.P. 1610)). And the Privy Council reviewed and declared acts of colonial legislatures that were in conflict with English law void. Finally, there were not only many examples of state courts using the power to test state laws against state constitutions, but the Supreme Court itself had not only used the power without saying so in so many words (as for instance in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), where the constitutionality of a federal law was argued and upheld on the merits, and *Ware v. Hylton[/i, 3 U.S. (3 Dall.) 199 (1797), wherein a state law was overturned which conflicted with a federal treaty). There are other examples. Indeed, the federal Judiciary Act of 1789 grants the power to the Supreme Court when it is reviewing the actions of state courts regarding issues of constitutionality of federal laws. The concept was not Marshall’s brain child.
It is not certain that the framers of the Constitution assumed “judicial review” would be exercised. While all comments at the Convention indicate an acceptance of the concept in some form, it isn’t clear that this was intended to include the concept of “judicial supremacy;” in the lact of reported statements we just don’t know. Predictably, there was argument during the ratification process between the Federalists and the Anti-Federalists (see, for example, Federalist Nos. 78 and 81). However, it must be clearly stated that Justice Marshall was not articulating some new concept, nor was he abrogating to the Court a power that no one intended it to have. Indeed, given the swiftness with which the decision in Chisolm v. Georgia resulted in the Eleventh Amendment, it should be understood that the decision in Marbury must have been considered relatively unsurprising.
- Congress decides which federal court gets to decide an issue
Article III states unambiguously that the judicial power of the United States is vested in the Supreme Court, and such inferior courts as Congress shall establish. That power is defined in Section 2 of the Article. Section 2 also makes clear that the Supreme Court exercises original jurisdiction over only a few limited issues; the Court’s appellate jurisdiction extends to all other cases “with such Exceptions, and under such Regulations as the Congress shall make.” This has been held to mean that Congress can withhold from the Supreme Court appellate jurisdiction over selected issues for which federal jurisdiction exists; in such cases, the judicial power may and or may not include the right of an appeal. For over 100 years, federal criminals did not have a right to appeal from decisions at the trial level, unless the court in which they were tried certified to the Supreme Court that it was divided on some question relating to their conviction.
In short, Congress can’t limit federal jurisdiction, but it can preclude an appeal from whatever trial decision is made in whatever inferior court is created to handle the issue (presumably subject to the provisions of the Fifth Amendment’s requirement of “due process”).
However, it isn’t clear what would happen if Congress attempted to regulate the inner workings of the Supreme Court in the way proposed by {b]Little Nemo**. Congress sets the number of Justices through legislation; it establishes the remuneration of the Justices and appropriates the budget of the Court. It has the power to “regulate” the way in which appeals are taken. But certain aspects of how the Court functions are “judicial power,” and, as such, cannot be regulated by Congress. As an example, the Court considers the power to admit attorneys or disbar attorneys to be a “judicial power” which Congress has limited ability to regulate (see Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867)). It is a good guess that the Court would look with disfavor upon a proposal that attempted to establish the mechanics of how it issued decisions. It cannot be dismissed as something that the Constitution doesn’t give the power to Congress to do quite so out of hand as another poster has postulated.
- As to the OP, the proposed language is unconstitutional, whatever that means
We have examined the underpinnings of the concept of “judicial review.” To the extent that the proposed language in the OP attempts to avoid the exercise of such power, it is not constitutionally permissible. Remember, “judicial review” is based upon an implication that the Constitution is the highest law of the land, that laws passed in conflict with it are, thus, not valid, and that the federal courts, charged by the Constitution with the jurisdiction of all cases arising under the Constitution, are required to determine the question of whether any federal law is so in conflict. Thus, the attempt to criminalize what is a constitutionally vested power of the federal judiciary would be unconstitutional. Congress can’t take away what the Constitution provides.
However, Bricker put his finger on the potential fly in the ointment: that the people of the United States ignore the Supreme Court. Let us say, as an example, that the Supreme Court decides in the case of Mr. Padilla that the President doesn’t have the power constitutionally to hold American citizens as “enemy combattants” without access to judicial processes to which they would normally be entitled. The President, acting on the recommendation of his advisers, refuses to order Mr. Padilla be set free; instead, Mr. Padilla is transported off U.S. soil to an undisclosed location. In short, Mr. Bush steals a page from that very anti-Republican president Andrew Jackson and tells the Supreme Court to go sit on some sharp implement. What happens?
The Court has no mechanism for enforcing its decrees. Courts don’t have policemen; the administrative branch provides officers to the courts for their use, e.g. as bailiff. Courts themselves can’t sue people; they need the administrative branch to act on their behalf, such as when they need to collect a debt. Outside the walls of the courtroom, they only have such power as we, the people, through our elected and appointed representatives and officers, give them.
Fortunately, during our history, we as a nation have rarely ignored or frustrated the will of our judiciary by refusing to carry out their dictates. We understand the potential pitfalls should we begin to pick and choose when to accord the judiciary deference. And, in turn, usually the courts have been aware that too great a stretch, too out of sync an opinion will potentially result in irrelevancy for them. This can be highly frustrating at times to those whose rights get trampled because society isn’t quite ready to go where it might eventually find itself anyway. There was, for instance, absolutely no way that the Supreme Court in the 1870s could have ruled that laws banning polygamy were unconstitutional without creating a firestorm of criticism. Someday in the future, such a law might well be deemed an unconstitutional classification in violation of a fundamental right. Other, worse examples can be cited.
Indeed, if anyone wants to understand just how bad the situation can get, read about FDR’s famous attempt to “pack” the Supreme Court in 1937. At that time, the Court was consistently refusing to allow Congress and state legislatures to pass laws which addressed social conditions in the country, but which the Court felt improvidently interfered with the concept that the ability of business to work without legislative interference was a “liberty” upon which the whole country’s greatness had been based. As the Court grew increasingly out of step with the political will of the nation, battered as it was by the effects of laissez-faire economics, it almost ended up being manipulated in the most cynical fashion into becoming nothing more than a mouthpiece for the then current administration. Fortunately, not only did Congress ultimately decide that such a step would be more obnoxious than even the continued intransigence of the Court, at least one Justice came to the conclusion that continued refusal to accept the new concepts gaining acceptance with the people would result in the Court becoming a largely irrelevant institution. Disaster was only narrowly avoided; imagine if you will how the ability to address political disputes through cynical manipulation of Court membership would play out in today’s highly charged political atmosphere!
Even Mr. Nixon understood this. The Court decided, the tapes were provided, and the President resigned. Imagine if he had told Justice Burger to “come and get them, you fink!”