Can congress reign in the Supreme Court as prescribed in article 3 section 2?

ivwshane

Lifer
May 15, 2000
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I came across an interesting idea today while reading some reactions to the overturning of roe. In it was a link to a White House paper by a law professor who claimed that congress can reign in the Supreme Court by using the power already vested in them by the constitution:

article III section2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

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.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
He goes on to explain that while this seems like more than a check on the courts and could have major repercussions, the ultimate arbiter of whether or not congresses actions where justified is the people themselves and their ability to vote them out.


Thoughts?
 

nickqt

Diamond Member
Jan 15, 2015
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I came across an interesting idea today while reading some reactions to the overturning of roe. In it was a link to a White House paper by a law professor who claimed that congress can reign in the Supreme Court by using the power already vested in them by the constitution:

article III section2


He goes on to explain that while this seems like more than a check on the courts and could have major repercussions, the ultimate arbiter of whether or not congresses actions where justified is the people themselves and their ability to vote them out.


Thoughts?
The Legislature is supposed to be the most powerful branch. It is the supposed to be the voice of the people.

The Federal Legislature can propose Amendments to the Constitution itself, and State Legislatures can ratify that Amendment.

And State Legislature can call for a Constitutional Convention, and to be sure, that is exactly what Red States will do when they control 2/3 of States...and you better believe they'll be coming out with a brand new Constitution...Constitutional Conventions always do, it's how we ended up with this one.
 
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ivwshane

Lifer
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The Legislature is supposed to be the most powerful branch. It is the supposed to be the voice of the people.

The Federal Legislature can propose Amendments to the Constitution itself, and State Legislatures can ratify that Amendment.

And State Legislature can call for a Constitutional Convention, and to be sure, that is exactly what Red States will do when they control 2/3 of States...and you better believe they'll be coming out with a brand new Constitution...Constitutional Conventions always do, it's how we ended up with this one.
I appreciate the response but what does that have to do with my post? Do you think it’s a viable option? Should congress use it?
 

nickqt

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Jan 15, 2015
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I appreciate the response but what does that have to do with my post? Do you think it’s a viable option? Should congress use it?
My response is that the Constitution provides the Legislature with the most power and it can do a lot. It can add Courts, add Justices to Courts, Remove Justices from Courts, etc. It can change the Jurisdiction of Courts, as your Article points out. It's right there, in the Constitution.

Is it a viable option?

When do you want it used? Right now? It'll be a no-go since the Democratic Party doesn't have 60 votes to do so. If the Democrats ever have 50 actual Senators who will get rid of the filibuster? Maybe, but who is in control of the House?

6 years from now when Republicans are in charge of both Branches of the Legislature? I mean, do you think they are interested in changing the Jurisdiction of the courts? The Republicans have been playing the long game for 50 years now and they aren't interested in decreasing the power of the Supreme Court. Republicans have been playing the Refs as their only real policy since the 1970s, just read the Powell Memo...they have successfully utilized corporate cash to get around needing popular policy to fundraise...and what you see all around you is a response to that. Zero policy besides cutting taxes for the rich, and appointing Judges.

So, Republicans aren't going to limit the Supreme Court's Jurisdiction, because it's a hell of a lot easier and cheaper to run the country with 6 unelected Fascists than having to win the House, Senate, and White House, although as we can see, they're currently using those 6 unelected Fascists pretty well, and might make the popular vote totally irrelevant to who wins the Electoral College votes from a lot of Purple and Red states. That's obviously where they're headed and any current Republican voter 100% supports that regardless of what they say, because words are meaningless and only actions matter...as always.

Can they, and should they, are two different ways of thinking about your question. Can they? Yes. Should they? Maybe, depends on "who" is doing it. Last thing I want are Republicans limiting the Supreme Court's jurisdiction if there are 5+ non-fascist Justices on the Supreme Court and Congress is controlled by Fascists. And the Senate will be fully owned and operated by the Republican Party in 10-20 years unless the Senate itself is changed to make it remotely democratic small-d, so don't forget about that.

I think there are a hundred ways to unfuck this country, and I've posted a link to one particularly solid idea many times and I'll do so again, here:


Do I think the Democratic Party is going to be able to use the Article in the Constitution to limit the Jurisdiction of the Supreme Court? No. I don't think that will happen, but I also don't think we're going to avoid a balkan-style civil war, so you can take that statement for whatever it's worth. I'm a doomer, everything is fine, etc.
 
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gothuevos

Golden Member
Jul 28, 2010
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The Legislature is supposed to be the most powerful branch. It is the supposed to be the voice of the people.

The Federal Legislature can propose Amendments to the Constitution itself, and State Legislatures can ratify that Amendment.

And State Legislature can call for a Constitutional Convention, and to be sure, that is exactly what Red States will do when they control 2/3 of States...and you better believe they'll be coming out with a brand new Constitution...Constitutional Conventions always do, it's how we ended up with this one.
I wonder what will be in this new Constitution?
 

gothuevos

Golden Member
Jul 28, 2010
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Ask the 6 Conservative Supreme Court Justices, they're in the process of re-writing ours right now.
You got me thinking.

That Independent State Legislature case that SCOTUS will allow... clearly will pave the way for the GOP to gerrymander a few more state legislatures in their favor to be able to call a constitutional convention. They only need what, 3 more states? This is clearly going to happen in our lifetimes, if not in the next 10 years.

And you can only imagine what they will draft.
 

pmv

Lifer
May 30, 2008
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You got me thinking.

That Independent State Legislature case that SCOTUS will allow... clearly will pave the way for the GOP to gerrymander a few more state legislatures in their favor to be able to call a constitutional convention. They only need what, 3 more states? This is clearly going to happen in our lifetimes, if not in the next 10 years.

And you can only imagine what they will draft.
Surely they can't gerrymander state legislatures until they have gained control of them? Therefore they can't gain more states via gerrymandering, they can only ensure they can't be dislodged from those they already have. Am I missing something about how the system works?
I guess there's a "ratchet effect", such that states might slip into their control via random events, and then they'll make sure they hang on to them, so eventually they could get those 3 states. But set against that are national demographic changes, a tide that is running against them everywhere.
 

HomerJS

Lifer
Feb 6, 2002
30,776
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As a start Congress needs to start flexing its muscle on the SC.

Just for starters insist they live under the same ethics rules as other federal judges. If they don’t, defund them. Those selfish motherfuckers ain’t working for free
 

senseamp

Lifer
Feb 5, 2006
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Yes, can reign in and pack to its heart content. Can also ignore, since Constitution doesn't give court power to overrule Congress, except in the court's own opinion (Marbury).
 
Feb 4, 2009
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Yeah when it gets challenged in Court I can totally see the current SC putting limits on itself.
Totally believable.
 

pmv

Lifer
May 30, 2008
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Yeah when it gets challenged in Court I can totally see the current SC putting limits on itself.
Totally believable.
I presume it would need court-packing as a preceding step? Packing the court would be a necessary first-step towards reducing its powers.
Would it even be possible for a suitably-packed court to creatively-interpret the Constitution's provisions for passing amendments, so as to make doing so more achievable? This court seems to have demonstrated that with the right people on the Court you can make the Constitution mean whatever you want it to mean.
 
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senseamp

Lifer
Feb 5, 2006
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The reality is that if SCOTUS exceeds its Constitutional authority, Congress should be ready to ignore it.
 

Ken g6

Programming Moderator, Elite Member
Moderator
Dec 11, 1999
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I don't think this would have much net effect. Republicans would just get state AGs to file suits instead of individuals.
 

Sunburn74

Diamond Member
Oct 5, 2009
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At the OP,
Basically theoretically Congress can set the jurisdiction of courts including the supreme court. Historically the SCOTUS has had no limits on what cases it can review and historically the SCOTUS only was getting involved in cases where federal courts were disagreeing (ie the fifth circuit says one thing in 1 case, but the 10th circuit says another thing in a very similar case). However that seems to have changed of recent with now the SCOTUS picking pet fights and ideologies they want to promote as US law.

I for one would welcome a check on SCOTUS rulings at this time. There's a phrase that says absolute power corrupts absolutely. I'd favor having some jurisdiction that exists simply to check SCOTUS rulings. For example, you could have the ability to file an appeal above the SCOTUS to all federal courts of appeals and if it's a 2/3 ruling, the SCOTUS ruling gets overturned and the chief judges of all those courts write a new ruling. Something like that. You can't have a court that makes these sorts of rulings essentially run unchecked. And no changing the constitution via amendments is not a reasonable check on the SCOTUS either.
 

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