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?
