John Marshall is spinning in his grave

[khaosworks]

Spin, John Marshall, Spin! By Mr. Terence Chua, Shyeah, Right.

Everett co-sponsors bill to limit courts' power
03/17/04
MARY ORNDORFF
News Washington correspondent

WASHINGTON - The balance of power within the federal government would be dramatically rearranged by a proposal to make Congress - not the Supreme Court - the final arbiter on which laws are constitutional.

U.S. Rep. Terry Everett, R-Rehobeth, is an original co-sponsor of the legislation.

Under the proposal, if the high court decided that a particular law passed by Congress violated the U.S. Constitution, Congress would be able to overturn the court's decision by a two-thirds vote.

Proponents say it is necessary for elected members of Congress to be able to assert authority over the appointed justices; legal scholars say the bill obliterates 200 years worth of legal precedent defining the powers of the separate branches of government, and is itself probably unconstitutional.

It was introduced last week by U.S. Rep. Ron Lewis, R-Kentucky, and does not mention any particular ruling or issue.

"I feel that elected officials ought to have the ability to review decisions by activist judges," Everett said Tuesday through a spokesman. He is one of 11 original co-sponsors of the legislation, which has not been scheduled for a hearing.

Lewis said in a statement that the law is needed to counter a judicial system that is "increasingly overreaching and disconnected from the values of everyday Americans." He said "activist courts" could, for example, decide to allow same-sex marriages.

But legal scholars say it is an affront to the principle of judicial review, established in the landmark 1803 decision in Marbury v. Madison.

"This is jaw-dropping," said Mary Cheh, a professor of constitutional law at the George Washington University Law School. "It would overrule what our constitutional scheme has been for over 200 years."

Nngh.

Nngh, I say.

It'll never pass. But you got to admire their chutzpah.

Comments

[fleetfootmike.livejournal.com]

"It'll never pass..."

Are you sure about that? Because I'm not.

[khaosworks.livejournal.com]

I'm pretty sure. Crap bills like this get proposed all the time - by the time it survives Committee hearings - if it does - the elections will be over and the composition of Congress will change. Even if it doesn't, the legal profession will be up in arms, and lawyers are a very rich and very big lobby. Not to mention scary.

Even if it does pass, it's unconstitutional. Article III of the Constitution states pretty much that the Supreme Court is given jurisdiction in all cases affecting the state as a party.

It cannot be, therefore, that if the Supreme Court can be given jurisdiction over litigation over legislation - i.e., where the law, a product of Congress, is called into question - and the ability to make judgments on those laws, and yet be subordinate to an act of Congress itself. It would be like a defendant in a court case being able to change the verdict of his own trial, and would be an absurdity.

Where the law and the Constitution clash, the winner is the Constitution. To change this, it would require much more than a mere Act. It would need a fundamental alteration to the Constitution and the separation of powers.

This is another red herring, like the constitutional amendment to protect marriage.

Nnngh.

say it with me, mister congressman: SEPARATION OF POWERS. Yes.

[lawgeekgurl.livejournal.com]

I love how certain republicans are all up in arms about "activist judges" unless they are being activist in their favor. (Like say, inserting federal oversight into state election law matters, having the de facto effect handing a presidential election to one party, which is the one that most of the judges belong to in the first place.)

[mrlogic.livejournal.com]

The disgusting thing about it (as vixyish pointed out in her own journal) is the following hypothetical scenario:

(1) Somehow the bill passes and becomes law.
(2) Since it's obviously unconstitutional, the Supreme Court rules it so.
(3) Under the terms of the new law, Congress overrules this ruling. Presto! A do-it-yourself Constitutional Amendment!

That such a by-its-bootstraps scenario is being attempted is really revolting. It's ethically putrid.

BTW, in case anyone was wondering: all 12 cosponsors of the bill are Republicans. I checked. Was I surprised? Not in the least.

[khaosworks.livejournal.com]

Actually, the scenario would work somewhat differently. There would be no challenge directly to the Act in the first instance because there would be no initial decision by the Court to challenge. It would have to be something else that the Court would have to make a decision on first that Congress disagrees with.

So the hypothetical scenario would go like this.

a) Congress passes random stupid law.
b) Someone challenges random stupid law.
c) Supreme Court rules random stupid law is, indeed, stupid.
d) Congress invokes Act, overrules Supreme Court.
e) Random stupid law takes effect again.
f) Someone then appeals to Supreme Court on grounds that Act is unconstitutional.
g) Supreme Court rules Act unconstitutional.

It's at this point, however, that the cycle breaks down. Congress can't invoke the Act again to overrule the Supreme Court because the Supreme Court, in doing step (g), has rendered the Act void. The power no longer exists.

You can't backdoor a constitutional amendment by means of mere legislation because the Constitution is higher on the hierarchy of laws - that is, the Court has to prefer the Constitution over a mere law. The only way to change the Constitution is to do it the old fashioned way - by means of the due process envisioned by the framers and codified in the Constitution itself.

[mrlogic.livejournal.com]

Hm... looking at your steps, that is somewhat reassuring.

[cellio]

That's frightening. Not that they could do it, because I agree that it's extremely unlikely to see the light of day, but that they could gather any support for it at all. Sounds like it's time for mandatory remedial education of congresscritters in Civics 101!

[lawgeekgurl.livejournal.com]

love the icon! I have a Dilbert T-shirt with the St Dogbert 'demons of stupidty' panel on it.

[cellio]

Thanks. They offer this as free wallpaper on their web site, so I didn't feel too guilty about turning it into an icon. :-) (I should get the t-shirt.)

[bedlamhouse]

Congress already has the power to overturn Supreme Court opinions. They can propose Constitutional Amendments and have them approved by the states.

And while people like to choke when this is threatened, they should remember that there isn't a heirarchy of powers here - the idea isn't that any of the branches is subservient to any of the others, much as the true political power of each branch seems to ebb and flow against the others over the years.

I think most of the "activist judiciary 'problem'" is that Congress doesn't bother to write good legislation any more, preferring to let it be interpreted by the Court and then blaming the Court for its decisions.

Whether I like the specific outcome of specific cases or not, I find that the Supreme Court seems to be the only branch of the government functioning properly nowadays. All too often the problem is that the other two branches are f**king around instead of doing their jobs.

[bedlamhouse]

And another thought that came just after I hit the submit button ... isn't it interesting that the most damage seems to be done by the branches that are politically responsible to an uneducated and often single-issue electorate?

[khaosworks.livejournal.com]

To paraphrase "It's A Wonderful Life", "Democracy is wasted on the masses." :-)

That's why most "democracies" are really republics, I suppose. Sometimes I feel it's a perverse symbiosis - the politicians are single-issue and uneducated because their constituencies are, and vice versa.