Reining in the Court: The Constitution Offers Congress Powerful Means to Deal with an Increasingly Lawless Judiciary

Article excerpt

How should we deal with a renegade federal court? This question has been asked by constitutionalists with increasing frequency in recent years, as outrageous judicial rulings accumulate.

Last year, the Ninth Circuit Court of Appeals ruled that reciting the Pledge of Allegiance in public schools is unconstitutional on account of the phrase "under God." On July 1st of this year, the 11th Circuit Court of Appeals upheld a District Court ruling that displaying a granite sculpture of the Ten Commandments in the Alabama Judicial Building is an unconstitutional establishment of religion. The Supreme Court's late-June decisions upholding affirmative action and striking down state anti-sodomy laws leaves the impression that practically the entire judicial branch is united in a campaign to undermine our culture and destroy any embattled remnants of true federalism.

But there are remedies available for judicial usurpation of the powers reserved to the states and the Congress. First, all courts inferior to the Supreme Court (which is a creation of Article III of the U.S. Constitution) were created by Congress, and can be dissolved by Congress if necessary. Second, under Article III, Section 2, clause 2 of the Constitution, Congress has the power to define exceptions to the appellate jurisdiction the Supreme Court and, by extension, all other federal courts. Third, Congress has the power, when necessary, to impeach any federal judge, including Supreme Court justices.

In the 1868 case Ex Parte McCardle, the Supreme Court recognized the congressional power to limit its appellate jurisdiction. The case arose from a Civil War incident involving a civilian accused of publishing "incendiary and libelous" antiwar propaganda. Arrested and held by the U.S. Army, McCardle faced a trial by a military commission. Protesting that he was illegally imprisoned, he applied for a writ of habeas corpus. The military commissioner responded with the claim that Congress had authorized McCardle's detention and prospective trial by military commission. After McCardle's appeal, Congress passed an act removing the matter from the appellate jurisdiction of the Supreme Court.

It's clear that the military imprisonment of McCardle violated the due process guarantees contained in the Bill of Rights. But the Supreme Court recognized that Congress, whatever its motives, had the power to act as it did in removing the issue from the Supreme Court's appellate jurisdiction. "We are not at liberty to inquire into the motives of the legislature," noted the ruling. "We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words."

The opinion took note of an earlier case, Durousseau v. The United States, in which the Court held that "while 'the appellate powers of this court are not given by the judicial act, but are given by the Constitution,' they are, nevertheless, 'limited and regulated by that act, and by such other acts as have been passed on the subject.'"

By simple majority vote, Congress could pass an act denying federal jurisdiction over social issues of any kind, such as abortion, pornography, and homosexuality. …