Reader Jim Price emailed and pointed me to an article on WorldNetDaily about an pair of bills in Congress designed to limit the jurisdiction of the federal judiciary by preventing them from ruling on cases "involving government officials who acknowledge God 'as the sovereign source of law, liberty or government.'" The text of the bills reads, in part:
The Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element's or officer's acknowledgement of God as the sovereign source of law, liberty, or government.If these bills pass each house of Congress the resulting law would be one of the first high-profile steps of public backlash against what many perceive to be a judiciary that is far out of step with mainstream America. By removing this issue from the purview of the judiciary it might also be possible to lessen the level of partisanship involved with federal judicial nominations -- judges with less power over controversial issues won't be as controversial themselves.
I tentatively support such a law, but I suggest that it be designed to expire after a limited amount of time, say 10 years. If it works well I can see the floodgates opening and an imminent era of vastly reduced judicial power as issues that split the "elite" from the "common man" are removed from the judicial sphere one by one.
A second part of the proposed law would attempt to prohibit judges from basing rulings on so-called "international law" and norms.
In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than the constitutional law and English common law.Federal judges would still have to enforce treaties that America agreed to, but the interpretation of our Constitution wouldn't be determined by international organizations (like the UN) or "evolving international law", whatever that means.
I don't know how effective such a law would be because I'm not confident that judges' rulings are always honestly tied to the explanations they give. Judges could still rule based on these un-American factors but simply stop saying so and cloak their reasoning behind more acceptable justifications. Still, it might make their jobs more difficult.
Many Americans may be surprised that Congress has the power to limit the scope of the judiciary -- it's an authority that has rarely been used, like the impeachment authority -- but Article III only grants some limited power to the Supreme Court and leaves the rest to Congress' discretion.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. ...It will be fascinating to see how this plays out. If the Democrats had control of Congress and the White House, what restrictions would they put on the judiciary? Would any judicial restrictions be possible without a unified government?
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
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.
Justin Katz comments and makes a good point I hadn't considered: if any branch of government is going to be over-powered, it should be the legislative. Congress is closer to the people than either of the other two branches, and tends to be the most responsive.