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.

In order to fix this, it's more important than ever that Democrats control the House.

Can you help us out?

For nearly 20 years we have been exposing Washington lies and untangling media deceit, but now Facebook is drowning us in an ocean of right wing lies. Please give a one-time or recurring donation, or buy a year's subscription for an ad-free experience. Thank you.

Discussion

We welcome relevant, respectful comments. Any comments that are sexist or in any other way deemed hateful by our staff will be deleted and constitute grounds for a ban from posting on the site. Please refer to our Terms of Service for information on our posting policy.
Mastodon