Available Armament for Judicial Restraint

By Beichman, Arnold | The Washington Times (Washington, DC), May 14, 1996 | Go to article overview

Available Armament for Judicial Restraint


Beichman, Arnold, The Washington Times (Washington, DC)


Why don't conservatives, and especially the Republican leadership in Congress, examine a historically unused constitutional weapon which could be used to curb the mestasizing and malignant influence of judicial activism?

I am referring to the sweeping power expressed in the most unambiguous language which the U.S. Constitution - Article III, Section 2 - grants Congress as to what cases the U.S. Supreme Court can hear on appeal. In other words, Congress, by a majority vote in both houses, can limit the issues the Supreme Court can deal with.

This is what the Constitution says:

"In all cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all 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." (Italics added.)

The phrase, original jurisdiction, simply means the right of the Supreme Court to hear and decide cases in the first instance. Appellate jurisdiction is the power granted the court to hear and decide appeals from the decisions of lower courts.

The "original jurisdiction" power of the court isn't particularly significant but its "appellate jurisdiction" power is. In the last half-century the Supreme Court has decided appeals on any and all subjects and, as some experts say, frequently in disregard of the Constitution itself.

In this the era of judicial supremacy it is forgotten that the Founding Fathers made Congress - not the president, not the Supreme Court - the ultimate power. Congress can impeach and remove a president, as it can federal judges. Neither the president nor the Supreme Court can do anything to Congress in any ultimate sense.

Congress also has power over the lower federal courts because the Constitution grants Congress the right "to ordain and establish such courts." Nowhere in the Constitution, directly or implicitly, do federal judges have the right to manage schools, hospitals, prisons and other institutions. But they do so with the tacit approval by a "do-nothing" Congress.

For some constitutional scholars, like Professor Ralph Rossum of Claremont McKenna College, the Supreme Court was deliberately made subordinate by the Framers of the Constitution to congressional will. In a monograph titled, "Congressional Control of the Judiciary: The Article III Option," Professor Rossum enumerates the powers of Congress and the president granted by the Constitution "to check judicial encroachments":

Congress decides on the appropriation for the judicial branch. …

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