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.
Update:
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.
I like the second proposal better than the first. Stripping federal courts of jurisdiction to hear a certain class of cases will not prevent state courts from taking bad existing cases and running with them.
I'd also strip jurisdiction to hear cases challenging election methods & results unless the moving party can demonstrate conclusively upfront that a successful challenge would substantively change the final outcome of the vote. Though limiting Establishment Clause cases would be a good start.
As to Xlrq's comment - I suspect that Congress would be able to strip state courts from the ability to hear questions of federal law. Principles of federalism would seem to require it, but I admit that it is an interesting question that has never been directly addressed.
JL: I don't think courts will hear challenges of elections unless the results are close. Judges won't usually bother.
And yes, Congress could certainly limit the reach of state courts.
I'm not sure what Congress's basis would be for limiting state courts' jurisdiction to hear cases arising under the federal constitution. Federal courts are bound by Article III, but state courts are not.
Xrlq: Considering that state constitutions are entirely subject to federal legislation, Congress could do pretty much whatever it wanted. And if anyone they could go to the Supreme Court, which can't have its jurisdiction in this matter stripped because it's defined in the Constitution.
I don't think so. State constitutions are of course subject to constitutional federal laws, but a federal law purporting to define the jurisdictional boundaries of state courts strikes me as about as unconstitutional as things get. If Congress had that kind of power, why is everyone debating a Federal Marriage Amendment (to the U.S. Constitution) rather than an identically worded Federal Marriage Act?
I applaud the goal, but I don't see how jurisdiction stripping will work. If the US Supreme Court lacks jurisdiction to hear a case, doesn't that mean that the federal circuit courts have the final word? Would they be any less likely to give outrageous opinions than the US Supreme Court? It depends, but certainly not in the Ninth Circuit.
And if the circuit courts have the final say, then you could have wildly different law in different areas of the country. It would be bad.
Better to find a way to apply political pressure to the judges. If they are so keen to play in the political arena. If they're so eager to play mini-legislature, let them be recallable or have limited terms like any other legislators.
X: Because they can't find a way to justify it under the Commerce Clause yet? Read about preemption, federal statutes trump any state or local laws, including state constitutions.
BB: Congress can strip lower courts of jurisdiction, or even eliminate them entirely at will. Only the SCOTUS is actually constitutionally required.
Preemption is not the issue here. Of course a valid federal law will trump any relevant state laws, including state constitutions. An invalid one, however, can't "trump" anything. And for the federal government to regulate state courts strikes me as a fairly blatant constiutional violation, right up there with Congress "commandeering" state legislatures (Cf. Printz.).
The one situation I can think of in which Congress can properly limit the ability of state courts to hear a class of cases is where the action is brought under a federal statute rather than the Constitution, and the statute at issue contains a provision stating that only federal courts may hear cases under it. Theoretically, similar provisions could be added to the constitutional amendments at issue here; however, that would require a constitutional amendment.
X: I see what you're saying, but I don't think Congress is much limited by Constitutional authority anymore. That's certainly not a good thing, but do you honestly believe that, say, a general federal murder law would get tossed out as unconstitutional? Maybe I'm too cynical.
Actually, yes, I do think that. The Supreme Court struck down a general federal rape law in U.S. v. Morrison, and I can't see any reason why a general federal murder statute should fare any better. If anything, a jurisdiction stripping case should be easier, both because of inter-sovereign issues, and because federalism or no, most judges have a much harder time striking down unconstitutional rape laws than they do striking down equally unconstitutional laws that take power away from other judges.
None of this matters as far as the proposed bill is concerned, however. It does not purport to take jurisdiction away from state courts, only from the Supreme Court and the District Courts (though curiously enough, not from the intervening Court of Appeal). So if the bill passed in its current form, I don't think there could be any question that state courts have jurisdiction to hear cases in those areas. In fact, Section 301 appears to contemplate that they will do just that:
That provision is almost certainly an unconstitutional violation of the separation of powers. It's one thing for Congress to strip courts of jurisdiction on a prospective basis, and quite another to vacate past decisions that were made when jurisdiction was proper.
X: Nifty, I didn't know about Morrison.
As for the provision you quoted, isn't it necessary in order for the law to be effectual? If previous court rulings were left in force they could never be reviewed or changed by either judges or legislators.
Precisely. As a practical matter, it may not make too much of a difference, though, as the states inclined to take advantage of the new law are also the ones most likely to pass parallel jurisdiction-stripping laws of their own. Once neither the federal courts nor the relevant state courts have jurisdiction to hear an Establishment Clause case, violating an old precedent will still be technically illegal, but there won't be anything anyone can do about it (unless, of course, a plaintiff somehow manages to sue State X in a court of State Y).