Jurisdiction Stripping

Sounds kinda dirty, but Adam Freedman over at National Review claims it's the answer to the USSC overstepping itself on the same sex marriage issue, and federal courts, too, for that matter. What is it?

... it involves nothing more than Congress’s exercising its constitutional authority to define the limits of federal judicial power. The idea of using Congress to rein in activist judges is not new; in fact, it was once advocated by a young lawyer in the Reagan administration named John Roberts. ... 
Congress should listen to the young John Roberts and abolish the jurisdiction of the Supreme Court — and all federal courts — over cases involving state laws defining marriage. At the moment, such legislation would require a two-thirds majority to overcome President Obama’s inevitable veto. But come January 20, 2017, if there is a Republican in the White House, jurisdiction-stripping legislation could become a reality. Every GOP presidential candidate should commit to signing such a bill the moment it crosses his or her desk. The jurisdiction of federal courts is almost entirely a matter of congressional discretion. The Constitution creates only one court — the Supreme Court — and then gives Congress the power to “ordain and establish” lower federal courts as it sees fit. Since Congress has no obligation to create lower federal courts in the first place, it has every right to limit the jurisdiction of those courts it chooses to create.
As for the Supreme Court, its appellate jurisdiction — that is, its ability to review lower-court decisions — is subject to “such Exceptions, and . . . such Regulations as Congress shall make.” ...
Historically, Supreme Court jurisdiction was far more limited than it is today. Until 1889, the Supreme Court could not hear appeals in federal criminal cases. Until 1914, the Court had no right to review state-court decisions striking down state laws or upholding federal law. Essentially, state courts had the last word unless they struck down a federal law or denied the applicability of a federal right.

In the end, it only throws the ball back into the states' court, but it's an interesting idea. Is it a realistic one?


Dad29 said...

Of course it's realistic.

Note well the "sudden decline" in approval of queer "marriage" following SCOTUS' dance with insanity. This gives us VERY good reason to believe that the approval numbers *before* the decision were fabricated.

Frankly, SCOTUS' equally-inane decision on ObozoCare (the "it's a tax/not a tax") fan-dance makes one wonder if the Fed Courts shouldn't be shut down entirely for a couple of years. Sort of a 'time-out' for bad behavior.

Should I mention Roe, too?

E Hines said...

It sets a dangerous precedent. The present case may well be worth the risk, but it's a step to be taken with great care. A simple majority vote with a suitably inclined Republican President, done in the heat of the moment, might not rise to sufficiency of care.

Eric Hines

E Hines said...

Regarding the two decisions on Obamacare, they strike me more as grounds for impeaching the Justices than for limiting the Supremes' jurisdiction. Those two rulings were violations of the oaths of office of the Justices writing and concurring. They're sworn to uphold and defend the Constitution, and part of that is the separation of powers--which several Justices violated when they presumed to legislate from the bench by amending the law before them to suit their own ends.

Eric Hines

Tom said...

I don't know whether it sets a dangerous precedent or not. Congress has expanded the jurisdiction of the federal courts several times, so the power is there and the precedent is there already. What dangers do you see?

Also, let me point out that impeachment and removal haven't turned out to be much of a restraint on judicial or executive power. No president or USSC justice has ever been removed, and it doesn't seem to depend on whether an oath of office has been broken or high crimes and misdemeanors have been committed. All that seems to matter is the ratio of Ds to Rs in Congress. So, it doesn't seem to be a realistic option, regardless of whether it is justified.

E Hines said...

Routinely expanding jurisdiction is not at all the same as restricting jurisdiction.

"You can't adjudicate on whether corporations have political speech."

"You can't adjudicate on whether corporations are persons."

"You can't adjudicate on whether corporations can bring suit in court."

"You can't adjudicate on whether corporations can exercise Free Exercise rights."

"You can't adjudicate on whether corporate officers can exercise Free Exercise rights for their companies."

"You can't adjudicate whether corporate officers have Free Exercise or Free Speech rights in their capacities as corporate officers."

And so on.

As to the viability of impeachment of Justices, that's not my argument. Only that their rulings, as violations of their oaths of office, are impeachable offenses.

Eric Hines

E Hines said...

And an immediate one: you can't adjudicate the legitimacy of laws passed by the elected representatives of our common boss, the People.

Eric Hines

Tom said...

First off, I think you are right to advise caution. We shouldn't jump into things like this without careful thought and research.

However, all this would do is throw things back to state courts. In a sense, it would be an extension of judicial federalism. I think the federal government is far too powerful now, so in general I welcome any change that moves something from federal control to state control.

We would still have the state constitutions and state courts in all those cases, and those we are more likely to have an affect on as individual citizens.