Court packaging is not the only option Congress could also limit the types of cases the court can hear
Kia Rahnama is a Washington, DC-based constitutional lawyer who writes frequently on law and politics and can be found at @Krahnama
After Supreme Court Justice Amy Coney Barrett’s expedited confirmation process, Democrats came up with a solution now familiar to a Tory-dominated court: to wrap the court if they win the White House and Senate in 2020 The idea was endorsed by President Franklin D Roosevelt, when his New Deal initiatives faced opposition from a conservative bench.In response, Roosevelt simply attempted to add more liberal judges to the court, which would have paved the way for decisions more favorable to his administration His bill ultimately failed in Congress, but today the idea has resurfaced with new popularity among liberals – though it remains unpopular among most Americans.
But there might be another way to block a sharp and sudden shift to the right by the Supreme Court Legal theorists widely agree that the Constitution in fact allows Congress to restrict the power of the Supreme Court to hear cases on a specific topic, such as abortion Lawmakers attempted to use this power by passing legislation declaring certain subjects prohibited in court, but failed to rally the majorities needed to pass these bills. Now, with what some see as an overtly political game by Republicans to shape court ideology, the American public and lawmakers might be more open to such a strategy, which might be a more acceptable option for Americans to save a precedent on issues like Abortion
Legislative maneuver could come in handy after election If Democrats retain control of the House and take power from the Senate in November, they could be the first to test this little-known power of Congress
Article III of the US The Constitution sets out not only the structure of the Supreme Court, but also the cases that the court has the power to decide – in other words, the « jurisdiction of the court » The Constitution also separates the jurisdiction of the court into two distinct categories.For some rare cases that are highly sensitive to the national interest, such as cases involving US diplomats or interstate disputes, the parties involved can bring the dispute directly to the Supreme Court, skipping all lower courts and benefiting from what is called the « original jurisdiction of the court. » For everything else, the Supreme Court does not in fact have the power to decide the case itself, but only the power to review the decision of a lower court This is called the « appellate review » jurisdiction of the court
Although the initial jurisdiction of the court is clearly spelled out in this part of the Constitution, with a clear list of the limited types of cases that the court can decide on its own, the text takes an indirect route to explain appellate jurisdiction. And this section also contains something known as the exception clause, which gives Congress the power to make exceptions to the court’s appellate jurisdiction. In the original text: « In all other cases mentioned above the Supreme Court will have appellate jurisdiction, both in law and in fact, with exceptions and by virtue of regulations which Congress shall establish. »
Removing the Supreme Court from its jurisdiction over certain categories of cases, such as abortion cases, would not mean that Americans would not have access to a judicial forum to resolve cases In the absence of the Supreme Court’s jurisdiction over such cases, the final say on such matters would rest with the highest courts of the state or one of the 13 federal courts of appeal, each with jurisdiction over parts of the state. readS territory
It is perhaps the most powerful tool in the legislative arsenal that has yet to be used in American history and which fuels many disputes between giants of the legal academy If the Constitution gives in Congress the power to override the appellate jurisdiction of the court, can Congress pass legislation to prevent the highest court from reviewing lower court rulings on certain matters?
Not only has the legal academy leaned toward an affirmative answer, but Congress itself made several attempts to wield this power During the pre-war period, supporters of the state intervention or annulment – the belief that federal laws could not be imposed on states without their consent – raised the idea of stripping the Supreme Court of its jurisdiction over all decisions of state courts interpreting federal laws Brash polemicist John C Calhoun was a major proponent of this argument.In 1827, then Vice President Calhoun began pressuring members of Congress to introduce legislation that would remove power from the court. supreme authority to review decisions of state courts interpreting federal laws Largely through his efforts, the House Judiciary Committee in 1831 issued a report calling on Congress to do just that.In the end, supporters of preserving the Supreme Court’s power over state courts have succeeded in convincing the House not to pass such legislation
In 1957, and at the height of the Second Red Scare, the Supreme Court was opposed to a staunchly anti-Communist Republican majority in Congress The court, in a series of rulings, significantly limited Republicans’ efforts to investigate and punish Communist sympathizers, eg by ruling that government agencies could not fire employees deemed disloyal, by preventing federal prosecutors from concealing relevant evidence. to courts in criminal cases if such evidence involved national security, and significantly increasing the court’s jurisdiction over how Congressional investigations were conducted
In response, Senator William Jenner introduced a bill that would have stripped the Supreme Court’s appellate jurisdiction over such and other cases involving subversive activity Despite serious consideration by the Senate, the draft law was ultimately rejected, in large part because then-President Dwight Eisenhower’s attorney general opposed its passage
The next period of the great Court-Congress drama came in 1964, when a proposal from Congress sought to remove the Supreme Court’s jurisdiction over matters involving the distribution of representation in state legislatures. Congress was reacting to Supreme Court rulings in Baker v Carr and Reynolds v Sims – two cases in which the court formally introduced the “one person, one vote” idea and prevented states from distributing seats in their legislatures d ‘in a way that clearly discriminated against their black population The bill passed in the House but was not taken up by the Senate
The 1980s proved to be another very controversial period in the history of the Court, when a series of cases touching on sensitive social issues dramatically increased public pressure on the Court As a result, up to 30 bills have been introduced in Congress to strip the court of its jurisdiction over cases involving flag burning, school prayers and abortion. But once again, legislative support for these bills fell through after Reagan’s then attorney general William French Smith wrote letters to the House and Senate Judiciary Committee communicating the reluctance. DOJ on any legislation that would restrict Supreme Court review based on topic
While these letters played a big part in making the Bills demise for good, Reagan’s DOJ did not easily reach its final conclusion.In fact, in a bizarre twist, the current Chief Justice of the Supreme Court, John Roberts, who was Special Assistant to the Attorney General in 1981, was one of the main dissidents of the DOJ position Roberts himself wrote a memo for the department arguing for the power of Congress to remove the tribunal’s jurisdiction over certain matters – reiterating arguments made by many other conservative legal thinkers, including Antonin Scalia
Even if such a law passes Congress, it could throw the US system of checks and balances into chaos It is still unclear what would happen if the Supreme Court itself were called to examine the constitutionality of the law and deemed it unconstitutional Although many believe Congress and the White House could simply ignore such a ruling, the Supreme Court’s refusal to simply adhere to a counting law would impose a difficult test on political branches
Regardless of these residual ambiguities, the recounting of jurisdiction has its advantages over putting in court. Wrapping up the tribunal would involve confirming the new judges who, after confirmation, would be subject to life tenure and protection from removal, subject only to arraignment for cause This makes the court decision rather difficult to overturn.The stripping of jurisdiction, on the other hand, is achieved through normal legislative procedures and can therefore be easily reversed if voters decide to change the political makeup of Congress and the White House again. In this way, the skills stripping measures respond much more to the will of the electorate
Despite these legal uncertainties, the main obstacle to the passage of such laws has always been political and not legal.In any case, the party that controlled Congress ultimately faced a reluctant White House which, at the last minute, considered the political damage to the administration’s credibility serious enough to deter them from working with their party in Congress to push forward legislation stripping jurisdiction Through Today, however, many people might see Barrett’s confirmation and the sudden shift to the right of the court as an overtly political takeover, and therefore might be more willing to consider the stripping legislation. as an antidote to hostility rather than hostility itself
If Democrats control Congress after the 2020 election, it all comes down to whether the White House will stop them
Supreme Court of the United States, Joe Biden, Democratic Party, Legal Proceedings Reform Bill of 1937, United States Senate, Amy Coney Barrett
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