crazyfingers

DeLay threatens to curb courts' jurisdiction

cjack

Wow. That is some truly scary shit.

I realize he's probably just grandstanding for votes, but the implications of that statement are chilling.

Apparently, some of our elected officials aren't content with shredding the Bill of Rights...they want to put the whole Constitution in the Enronner!

hezekiah jones

Unfortunately, he's right. Congress could also abolish the entire 9th Circuit, if it so desired.

Psycho Economist

While I agree that abolishing the 9th circuit would "solve their problems" with it, maybe even creating an umpteenth circuit on top of it so W can stack the courts in that part of the country... from the way the Wash-Times worded it, I think DeLay wants to, by statute or ammendment, declare the class of suits challenging the constitutionality of state endorsement of "God" off-limits from the courts.

Stephen Maturin

Yes, the idea of splitting the Ninth Circuit into two circuits has been around for quite awhile, and it's gathered quite a bit of steam ever since the first Newdow decision back in June.

Yep, that's the idea! A constitutional amendment is pretty much the only way DeLay can get where he wants to go, though; a jurisdiction-stripping statute won't quite cut it. Although Congress has pretty much unlimited control of the jurisdiction of lower federal courts, it has no say-so at all when it comes to the jurisdiction of state courts. A statute like the one DeLay's proposing would create a cluster fuck of Biblical proportions. Actually, fifty separate cluster fucks. People would be stuck litigating their Establishment Clause claims in state court, with appeal to SCOTUS being the only chance of federal review.

Federal jurisdiction-stripping bills usually die quietly in committee. A couple were introduced in Congress last June, but nothing's ever come of them (at least not yet).

Philosoft

If I was a Supreme Court Justice, the idea that my case load could increase exponentially wouldn't make me too happy.

kempe

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.

They could remove appellate jurisdiction with a statute. No amendment needed. Scary huh?

Now, state courts would still be free to enforce state constitutional protections -the Feds have no say in that- but that'd be ...spotty.

SLD

Congress has threatened this crap before. The difference now is that Republicans are in charge and they could make it happen. Damn you Ralph Nader.

SLDER

pug846

Their case load wouldn’t increase much; they would just deny cert more often.

pug846

Ah…truth is stranger than fiction (or at least just as strange).

I’m in a constitutional law class and we spent a day or two discussing what power Congress might have to restrict the federal courts. A hypo we specifically talked about in length dealt with a potential Congressional response to the US Supreme Court’s holding that the 1st Amendment protected citizens who burned the American Flag. The hypo was slightly different, but we did discuss the constitutionality of Congress’ ability to restrict jurisdiction.

While it’s clear that Congress can limit federal jurisdiction, it doesn’t follow that there would be no constitutional limitations on that power. If Congress were to say that only white, Christian, republicans had access to the federal courts, no one for a second would say that was constitutional and that the 14th amendment could be ignored. In the same way, you could argue that this restriction is tantamount to a violation of the 1st Amendment itself. Further, it seems hard to swallow that Congress can select a right that is controversial and simply take it out of the federal courts because they might disagree with the way the federal courts have interpreted that right.

As far as Congress being able to remove all appellate review on an issue, several arguments were given, but I’m too lazy to synthesis my notes from the state of incoherent mess they are in right now. Needless to say, it’s not clear at all that Congress could take an issue and remove all federal appellate review. And conservative doctrines like framer’s intent and textualism definitely are rather damning to that viewpoint.

And like Stephen mentioned, the end result of this would simply be state courts all coming down with various interpretations of the 1st amendment, which would make a mess of everything.


Edited to add: for those of you who were interested, here were three arguments that were given that cut against allowing congress to strip all of the federal appellate authority. It's a straight cut and paste from my notes, so it isn't entirely clear: