Let’s start here: Article 3 of the Constitution gives the Supreme Court “original jurisdiction” in all cases affecting “Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” That part is obviously in effect, although most cases between states occur in the lower federal courts established by Congress. The Constitution then states that in all other cases, “the Supreme Court shall have appellate jurisdiction.” This, too, is in full effect.
But then the Constitution tells us that the court’s appellate jurisdiction is
subject to “such Exceptions” and “under such Regulations” as “the Congress shall make.”
This is where it gets interesting. The court’s appellate jurisdiction accounts for virtually everything it touches. And the Constitution says that
Congress can regulate the nature of that jurisdiction. Congress can strip the court of its ability to hear certain cases, or it can mandate new rules for how the court decides cases where it has appellate jurisdiction. And as I recently mentioned, it can even tell the court that it needs a supermajority of justices to declare a federal law or previous decision unconstitutional.
It, too, can be checked and balanced.
www.nytimes.com
Stay tuned. There are other remedies other than adding seats to reign in an out of control activist court. All of them Constitutional.
This is a classic example of an ounce of knowledge and a pound of stupidity.
Congress has the power to legislate certain limitations to the Supreme Court's jurisdiction. But that does not mean that Congress can wholly control the court, setting its rules, etc. The constitution vests the
judicial power of the United States in the Supreme Court, and whatever inferior courts may be created.
Judicial power is not created by Congress, and it is not vested to Congress.
While Congress has jurisdiction stripping powers, in that it can (for example) declare that bankruptcy courts only have power to decide bankruptcy cases (this became a big deal in the Anna Nicole Smith case where the Supreme Court held that the bankruptcy court exceeded its limits when granting Smith a part of her dead husband's estate), it does not have the power to dictate
how judicial power is exercised. Standards for decision making are an exercise of
judicial power which cannot be legislated.
The federal judiciary has jurisdiction over a variety of cases that, by and large, logically fall under
federal jurisdiction as opposed to state jurisdiction. These basically come down to cases that based on
federal law, cases that involve interstate disputes, and cases that involve international disputes. The Supreme Court has original jurisdiction in certain cases, and appellate jurisdiction in others. Congress can indeed strip the Supreme Court of jurisdiction to hear a variety of appeals. It could even redirect appellate review to different venues, such as state courts. But Congress cannot dictate to the court how to conduct reviews. Because the
how is a matter of judicial activity; it is an exercise of
judicial power.
The clause cited by the article is tragically misrepresented by the article. At best, it's a desperate attempt to reach a pre-ordained conclusion. Most likely, it's sensationalist garbage designed to do nothing more than generate clicks that lead to revenue despite the fact that the author knows full well that the ideas presented are hot garbage. It's intellectually irresponsible on its face.
Moreover, even if we were to agree with the article's premise, the proposal made by the article is both sloppy and dangerous. If the article's theory were accepted, what we would have would be a bug, not a feature, of the constitutional prescribed form of government in our country. It would be an imperfection to be corrected, not exploited for political convenience. To exploit imperfections for political convenience will only cause further harm to our country.
Just imagine if Democrats gained more solid control over Congress and legislatively stripped the Supreme Court of appellate power to hear cases involving gun regulations. That might work out well to prevent the Supreme Court from overturning gun regulations in New York City. It might leave the California Supreme Court the final arbiter of whether California state laws regulating guns is constitutional. But what happens when a district judge finds the law unconstitutional during a motion to supress evidence hearing? All of a sudden, state and federal courts will be applying different standards for the same United States constitution. What's worse is that federal courts in
different districts and circuits will eventually have divergent approaches to interpreting the constitution, and there will be no way to establish uniformity because the Supreme Court will lack jurisdiction to hear the cases. And naturally, when Congress changes hands, a Republican controlled Congress will be able to strip the Supreme Court of jurisdiction to here challenges to state laws that restrict abortion.
All of this tit-for-tat will accomplish nothing, ultimately, except to leave each state free to violate the constitution in its own preferred ways, without avenue for review. It will, in short, create a mechanism for state nullification of the constitution.
