Jamelle Bouie: The Supreme Court Is the Final Word on Nothing

[Nevilledog]

Link to tweet

https://www.nytimes.com/2022/07/01/opinion/dobbs-roe-supreme-court.html

No paywall
https://archive.ph/7ap1q

The U.S. Constitution contains several idle provisions: words, phrases and clauses that have little to no bearing on our constitutional order as it currently exists.

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 involving 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.

There are real questions about the scope of congressional power to regulate the Supreme Court. If Congress has complete control over the court’s appellate jurisdiction, then there are no real limits as to what it could do to shape and structure the court, threatening the separation of powers. As James Madison said with regard to the Bank Bill of 1791, “An interpretation that destroys the very characteristic of the government cannot be just.”

*snip*

[duckworth969]

1. If you're legal minded, this is a great read

Bouie can write, clear and concise presentation.

[Nevilledog]

2. Agreed. And I'm legal-minded.

Wonder how it lands with everyone else?

[The Magistrate]

3. That's A Great Piece, Ma'am

He is quite right, it's a question of will, not capability.

In the Constitution, like the Bible, you can find damned near anything you want to. Everybody knows Isaiah said to beat your swords into plowshares, Joel saying 'Beat your plowshares into swords, and your pruning hooks into spears' is there to be found on another page.



"I am Legion, I contain multitudes."

[Celerity]

4. Great piece. I hope the nation will not be found lacking in such leaders.

The ground has shifted. The game has changed. The only question left is whether our leaders have the strength, fortitude and audacity to forge a new path for American democracy — and if they don’t, whether it is finally time for us to find ones who do.

[Fiendish Thingy]

5. All it would take to check SCOTUS is enough votes and courage from congress to make it so

Unfortunately, we don’t have enough of either at the moment.

[Fiendish Thingy]

6. That's a pretty big loophole in article 3

Having original jurisdiction in all cases involving states is a loophole big enough to drive a truck through.

It would be easy for any group to sidestep congressional restrictions on judicial jurisdiction by simply getting a state to sign on to the civil action. SCOTUS would only need to find that the state has standing in the case (IANAL, but I’m assuming if the case involved a state law, the state would have standing), and then they could rule on it.

Am I wrong? If I am, please explain.

[PortTack]

7. Found this in the comment section of a WaPo article that agrees there checks to their power

Yes they are just “commenters” but are quoting fact and apply here

Article I, section 4 of the Constitution gives state legislators the power to determine the "Times, Places and Manner of holding Elections for Senators and Representatives," but it goes on to qualify that power with "but the Congress may at any time by Law make or alter such Regulations."

El Bobo
4 months ago

Wrong. The same clause gives Congress the power to override the state legislatures.

https://www.washingtonpost.com/politics/2022/03/08/could-supreme-court-give-republicans-more-control-over-how-run-elections/