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babylonsister

(170,960 posts)
Tue Jul 5, 2022, 08:17 AM Jul 2022

Did You Know Congress Has The Ability To Limit The Supreme Court?



Did You Know Congress Has The Ability To Limit The Supreme Court?
Neither did I until I read this!
By Susie Madrak — July 5, 2022


Well! This certainly cheered me up, and you should go read the whole thing. Via Politico Magazine:

Critically, but less widely understood, the Constitution also grants Congress the power to strip the Supreme Court of its jurisdiction over specific matters. Article III, Section 2 reads: “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.”

At least one founder was clear about the intent of Section 2. Hamilton wrote, “From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.”

Defenders of judicial review appropriately point to Federalist 78 as evidence that Hamilton believed the Constitution contained an implicit power of judicial review. But he also believed that Congress could adjust the court’s jurisdiction.

In practice, so few instances exist of jurisdictional stripping that its meaning and scope are open to debate. But it has happened. In the late 1860s, federal authorities jailed William McCardle, a newspaper editor, under provisions of the 1867 Military Reconstruction Act. McCardle sued for his freedom, citing the Habeas Corpus Act of 1867. Congress denied the justices jurisdiction in the matter, and the court conceded that it was powerless to act.

Writing several decades later, Justice Felix Frankfurter, an FDR appointee, noted that “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.” Chief Justice Warren Burger, whom President Richard Nixon placed on the bench, agreed, writing that Congress could pass simple legislation “limiting or prohibiting judicial review of its directives.”

No less than the executive and legislative branches, the judiciary — particularly, the Supreme Court — is limited in just how much power it can exert. But only if Congress and the president exercise their right to check its power
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more...

https://crooksandliars.com/2022/07/did-you-know-congress-has-ability-limit
35 replies = new reply since forum marked as read
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Did You Know Congress Has The Ability To Limit The Supreme Court? (Original Post) babylonsister Jul 2022 OP
K&R spanone Jul 2022 #1
The KEY phrase. Ferrets are Cool Jul 2022 #2
Biden already ruled it out Miguelito Loveless Jul 2022 #16
Why Did He Rule It Out? WiVoter Jul 2022 #18
Expansion of the court was not the topic. Hermit-The-Prog Jul 2022 #19
Yes . ... Lovie777 Jul 2022 #3
It also has the power of the purse, gab13by13 Jul 2022 #4
Lol, Clarence would have to actually do some work?! JudyM Jul 2022 #35
I posted about this last week Bayard Jul 2022 #5
can their states start a recall..if they so choose? samnsara Jul 2022 #8
No. MarineCombatEngineer Jul 2022 #11
Been calling for that for a long time now in just about every Court post on DU and in real life In It to Win It Jul 2022 #6
But we have Manchin and Sinama and a president that doc03 Jul 2022 #7
President Biden would absolutely do whatever it takes. Beakybird Jul 2022 #9
I believe Rebl2 Jul 2022 #24
we need to elect more Senators and more in Congress. I believe Biden samsingh Jul 2022 #28
Supreme? Don't think so duckworth969 Jul 2022 #10
Article III, Sections 1 and 2 explained: sop Jul 2022 #12
Congress would need to pass new law In It to Win It Jul 2022 #13
It's a very interesting idea. sop Jul 2022 #17
There's a simple solution PJMcK Jul 2022 #14
Don't have Rebl2 Jul 2022 #25
Thom Hartmann has explained this on his show for years. House of Roberts Jul 2022 #15
thumbs up. Hartmann is such a great resource ProfessorPlum Jul 2022 #32
Well, that was a Founding Fathers screw up! jaxexpat Jul 2022 #20
I've been preaching this to no avail Novara Jul 2022 #21
Yes ramapo Jul 2022 #22
Court shouldn't preside over health/medical issues. blm Jul 2022 #23
Exactly Rebl2 Jul 2022 #26
Need the votes DownriverDem Jul 2022 #27
You forgot to bold an important part: Fiendish Thingy Jul 2022 #29
If we go that route, expect a HUGE fight over it... Wednesdays Jul 2022 #30
Do you honestly think they wouldn't anyways in that case? LiberalLovinLug Jul 2022 #33
Problem is congress can regulate jurisdiction, but not a decision unblock Jul 2022 #31
Soooo can Congress ELIMINATE the SCOTUS from issuing any law that denies voter's rights? TigressDem Jul 2022 #34

Hermit-The-Prog

(33,021 posts)
19. Expansion of the court was not the topic.
Tue Jul 5, 2022, 09:30 AM
Jul 2022

President Biden has specifically called for making an exception to the Senate filibuster in order to reinstate the right taken from women by the overturning of Roe v. Wade. If the midterm elections make this possible, Joe ain't gonna veto the resulting bill.

The topic in the OP is relevant in that the current extreme court could promptly declare the bill unconstitutional unless Congress strips them of jurisdiction over it.

gab13by13

(20,857 posts)
4. It also has the power of the purse,
Tue Jul 5, 2022, 08:25 AM
Jul 2022

Congress can take away SC clerks, I believe. Congress can do other things involving money that restricts the function of the court.

Bayard

(21,801 posts)
5. I posted about this last week
Tue Jul 5, 2022, 08:26 AM
Jul 2022

But can't find at the moment. Had never heard it before.

Manchin's and Sinema's arms would have to be twisted until they break, if need be. No excuses, no quarter.

In It to Win It

(8,139 posts)
6. Been calling for that for a long time now in just about every Court post on DU and in real life
Tue Jul 5, 2022, 08:30 AM
Jul 2022

Congress has completely abdicated that responsibility. The reason that the Court is so powerful is because we have an absentee Congress.

If we do it, it’s risky. But I’m willing to take the risk.

doc03

(35,143 posts)
7. But we have Manchin and Sinama and a president that
Tue Jul 5, 2022, 08:31 AM
Jul 2022

probably wouldn't blow up the damn filibuster anyway.

Beakybird

(3,329 posts)
9. President Biden would absolutely do whatever it takes.
Tue Jul 5, 2022, 08:40 AM
Jul 2022

Manchin is someone who would switch parties if pressed against the wall. We have to make a lot of noise and keep the House, raise our margin in the Senate.

samsingh

(17,571 posts)
28. we need to elect more Senators and more in Congress. I believe Biden
Tue Jul 5, 2022, 10:21 AM
Jul 2022

will do what it takes if he has Congress behind him

duckworth969

(600 posts)
10. Supreme? Don't think so
Tue Jul 5, 2022, 08:51 AM
Jul 2022

Yeah, and if the Dems get control and muster up the courage, will they move to get that done, at least start that process?

One of the biggest problems with Congress is that they have ceded their will to act. They seem to be recalcitrant to exercise their power, unless you consider “not doing anything” as actually doing something of real consequence.

sop

(9,945 posts)
12. Article III, Sections 1 and 2 explained:
Tue Jul 5, 2022, 08:53 AM
Jul 2022
https://judiciallearningcenter.org/article-3-and-the-courts/

There are no detailed instruction for how Congress "shall" regulate the SC, beyond stating "with such Exceptions, and under such Regulations as the Congress shall make." The use of "shall" instead of "must” to impose a requirement is interesting; like many other things in the Constitution, “shall" is ambiguous. And it doesn't state that Congress would need more than a simple majority to do regulate the Court (unless it's been mentioned elsewhere in the Constitution). Congress should exert its authority over the SC.

In It to Win It

(8,139 posts)
13. Congress would need to pass new law
Tue Jul 5, 2022, 08:59 AM
Jul 2022

under whatever rules Congress has for passing law. The "Regulations" would come in the form of legislation from Congress, and signed by the President. Congress gets to define the Court's appellate jurisdiction, which is just about every case the Court takes.

The legislation that would rein in the Court would pass like any other legislation, needing 60 votes in the senate and a simple majority in the House, and signed by the President. That's all.

sop

(9,945 posts)
17. It's a very interesting idea.
Tue Jul 5, 2022, 09:20 AM
Jul 2022

Obviously, the Framers wanted Congress to be able to "regulate" the Supreme Court via a simple majority. The filibuster isn't even mentioned in the Constitution; it's an (unconstitutional) Senate rule created for political reasons in the 19th Century.

On the other hand, taken to its logical conclusion, Section 2 of Article III might give the Congress unequal power over the judicial branch; the (current) Court would almost certainly disagree with this interpretation of Article III. I wonder how this dispute between the Court and Congress would be settled?

PJMcK

(21,916 posts)
14. There's a simple solution
Tue Jul 5, 2022, 09:02 AM
Jul 2022

EXPAND THE COURT!

MAKE THE DISTRICT OF COLUMBIA AND PUERTO RICO STATES.

If we do those things, problems solved.

House of Roberts

(5,119 posts)
15. Thom Hartmann has explained this on his show for years.
Tue Jul 5, 2022, 09:04 AM
Jul 2022

It's funny that it seems like such a novel concept, but the court can't overrule Congress if Congress says it can't.

jaxexpat

(6,700 posts)
20. Well, that was a Founding Fathers screw up!
Tue Jul 5, 2022, 09:44 AM
Jul 2022

I mean, what if the Congress were controlled by Democrats who wanted to stop a runaway rogue USSC? Obviously we need to send this back to the 18th century for review. Oh, I forgot. Our current USSC is already working in the 18th century. How convenient.

ramapo

(4,585 posts)
22. Yes
Tue Jul 5, 2022, 09:51 AM
Jul 2022

Congress can also pass legislation that addresses/goes around SC decisions.

Take the EPA decision. Congress could pass an up-to-date, comprehensive and specific legislation giving EPA power.

The SC might be out of control but the real problem is a useless legislative branch.

Fiendish Thingy

(15,362 posts)
29. You forgot to bold an important part:
Tue Jul 5, 2022, 10:29 AM
Jul 2022
and those in which a State shall be Party, the supreme Court shall have original Jurisdiction


Any case in which a state is involved would automatically have SCOTUS jurisdiction.

Want to sue Texas for their vigilante law? That would ultimately go to SCOTUS.

Circuit court overturns Missouri’s abortion ban? That ultimately goes to SCOTUS.

Wednesdays

(17,245 posts)
30. If we go that route, expect a HUGE fight over it...
Tue Jul 5, 2022, 10:35 AM
Jul 2022

a fight we're hardly guaranteed to win.

And do we really want to open that Pandora's Box? Who believes the Repukes won't retaliate in kind if we have a friendly SCOTUS but a Republican Congress?


LiberalLovinLug

(14,153 posts)
33. Do you honestly think they wouldn't anyways in that case?
Tue Jul 5, 2022, 09:03 PM
Jul 2022

No matter if WE use it or not?

The “but but but what if they do it too” argument is paralyzing. Similar to the filibuster. Sometimes it’s just more important to do what you can when you can, and deal with the fallen chips later

unblock

(51,974 posts)
31. Problem is congress can regulate jurisdiction, but not a decision
Tue Jul 5, 2022, 10:44 AM
Jul 2022

Congress could say the Supreme Court has no jurisdiction in cases involved in, abortion, for example.

But that would mean a future Supreme Court couldn't ever protect abortion rights, either.

But yeah, congress could even create a whole separate court system for matters of individual rights, somewhat similar to the way there's a separate court system for tax matters. But that's a very big change and I have to think there would be many unintended consequences....

TigressDem

(5,121 posts)
34. Soooo can Congress ELIMINATE the SCOTUS from issuing any law that denies voter's rights?
Tue Jul 5, 2022, 09:23 PM
Jul 2022

At least FEDERAL elections.

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