pug846

StrictSeparationist said:


While I don’t think they would do that—I’ve never seen one of these proposals include something like that before—THAT provision would also be unconstitutional. They couldn’t simply pass unconstitutional legislation and pass jurisdiction stripping statues ad infinitum; each law would be unconstitutional for the same reasons.

EverLastingGodStopper said:

Well, to each his own I guess. I recited the pledge for x amount of years and I’m sure like most kids, never thought much of it. If the difference between some kid believing in theism came down to whether he or she had recited the pledge, then I’m not sure we’ve lost a lot by not having that kid in “our” camp. But for me, I just don’t see it as that big of a deal.

Stephen Maturin

I agree, though the last I checked the scope of Congress' authority under the Exceptions Clause was still a matter of some debate. So far as I remember, Ex parte McCardle is the most recent case in which the Court upheld a Congressional statute limiting its appellate jurisdiction, and that was decided in the 1860s. There was some other Reconstruction-era case (the name escapes me) in which the Court invalidated such a statute. I vaguely recall reading something to the effect that Congress can't divest the Court of appellate jurisdiction where the Court's "core functions" are at issue, but that was just scholarly commentary. Also, I think there's been a case or two within the last decade in which the Court manage to duck the issue entirely.

This stuff makes interesting discussion fodder, but that's probably as far as it goes. Congress could certainly have a go at eliminating the Court's appellate jurisdiction in Establishment Clause cases, but the current Court would never go for it. I suppose Congress could try to eliminate all federal jurisdiction over such cases, but that's more than a little risky since it would leave Establishment Clause jurisprudence solely in the hands of fifty separate state court systems. That'd be a big honking mess.

niggle

How can you be required to say the Pledge? You're an individual and if the SC has at leasat said that no one can make students say the Pledge, wouldn't that go for teachers as well? Or do you understandably fear the backlash that would go with not saying the Pledge as a teacher?

StrictSeparationist

The easy way to work it would be thus:

Evil Congressional Jurisdiction-Stripping Act
Section 1: No Article III court, including the United States Supreme Court, can hear or decide any case relating to religion.

Section 2: No Article III court, including the United States Supreme Court, can hear or decide any case relating to the Evil Congressional Jurisdiction-Stripping Act.

Seems reasonably airtight to me, although the Supreme Court has made its way through other seemingly insurmountable jurisdictional problems before. See e.g. Reynolds v. Sims, 377 U.S. 533 (1964).

Now, to be clear, since it is my belief that Congress is going to get exactly what it wants at the Supreme Court when Newdow comes up for review (a flat declaration that the 1954 statute and local school practices of recitation of the Pledge don't violate the Establishment Clause), or at least a reasonable substitute (case dismissed and Ninth Circuit judgement vacated on standing grounds), I don't think the jurisdiction-stripping issue will ever arise. I was just noting one very powerful but often overlooked weapon in the Congressional arsenal that could be used against the Supreme Court.

The use of this weapon would almost certainly cause a major confrontation between Congress and the Court and might possibly even lead to a "constitutional crisis" in which neither branch would back down. Hard to predict what would happen there, though I suppose that Congress might decide to eliminate the Supreme Court's budget or something. Anyway, it would certainly be interesting, but the whole scenario seems very unlikely.

Grumpy

I hadn't heard about that. Just how many extra balls does this man have?

StrictSeparationist

Around ten, I think. Did you hear he's going to ask Justice Scalia to recuse himself from the case because of the public remarks he's made concerning the case? Talk about bearding the lion in its den...

pug846

Like I mentioned in my last post, the second provision would be just as unconstitutional as the first.

If Congress were to restrict the federal courts' jurisdiction in cases involving “religion,” whatever that might mean, they would likely be violating the 14th and the 1st amendments. While Congress can restrict the federal courts' jurisdiction, no one would think for a second that they could, for instance, restrict the federal courts to only white, male, republican, Christians. The rest of the Constitution would place limitations on how Congress could use its discretion. Further, I think most state courts would have a problem not following Supreme Court precedent even if they knew their decision was not appealable to it.

The current Supreme Court has already had to deal with Congressional attempts to get around its rulings and simply shot them down. There wouldn’t be any constitutional crisis with something like a jurisdictional stripping statue any more than there was in the past when Congress has attempted to tell the Supreme Court what the substance of the Constitution says.

Bill

This is an interesting comment, but even if Congress got up the gumption to attempt to legislatively strip the Supreme Court from adjudicating cases of some particular kind, the Supreme Court (which is under a duty to examine its jurisdiction before it decides any given case) would simply declare that the phrase "with such Exceptions, and under such Regulations as the Congress shall make" cannot be construed to allow Congress, through a simple legislative enactment, to strip the Supreme Court of a power that is specifically granted to the Supreme Court, viz. to interpret the meaning of the Constitution. The Supreme Court would then declar that such a law limiting its jurisdiction was itself unconstitutional.

One other point: Congress by statute can only regulate the handling of "at law" cases. Cases "in equity" are settled according to an entirely judicial set of standards that is ultimately grounded in the Magna Carta (the Chancelor's Court is the separate court system in England that handles cases "in equity," but in the United States, no separate court system exists; instead, any "at law" court can simply decide any matter "in equity" by just stating that this is what it is doing). So, if the Supreme Court decides that somebody is being treated inequitibly by the statute passed by Congress, it can take the case "in equity" regardless of any laws enacted by Congress. The Supreme Court could then declare said law(s) to be unconstitutional.

Congress might then be tempted to attack the Supreme Court by failing to appropriate any money to run the Court, but I doubt that kind of a power grab would have any real long-term effect (but it would be a fun thing to watch ).

== Bill

Bill

This has nothing at all to do with balls. This is "standard operating procedure."

For those who did not know this, as part of the reconsideration for possible en banc reversal, the Ninth Circuit Court of Appeals did modify its original opinion, and it was the modified opinion for which rehearing en banc was denied. In the modified opinion, the original two judges adjusted the wording of the opinion so as to not find the 1954 act to be unconstitutional, but instead ruled on an "as applied" basis that it was unconstitutional "as applied" by the State of California to force school children to recite the words "under God."

Newdow is simply petitioning the Supreme Court to get back the great victory we all thought he had achieved a year ago. This is "standard operating procedure" when a Court of Appeals gives you a mixed victory, finding mostly in your favor, but a bit in favor of your opponants. When your opponants appeal to the next level, you simultaneously appeal for a full victory, thereby raising the stakes for said appeal. This is just what appellate lawyers are trained to do. (I know, because I worked as an appeals specialist as a paralegal in California.)

== Bill

Grumpy

My confusion stems from my understanding that the school district and state of California were the appellants to the SCOTUS. But if Newdow wants to appeal his half, more power to him.