Dobbs has shown the consequences of making the federal judiciary a political weapon (I would say many prior cases have shown this as well perhaps Dobbs is simply what shattered the last semblance of trust the SCOTUS requires to maintain legitimacy).
Consequently, it is becoming clear that Judicial Reform is necessary to protect democracy and the RIGHTS of American people from ideological zealots. However, the central proposals to Judicial Reform would take time — years even to restore what we are losing and fix what has been broken.
I have not yet seen an article on the CONSTITUTIONAL power granted to the legislature to limit the Jurisdiction of the Judiciary NOR Christopher Jon Sprigman’s Public (written) Testimony from 2021 “JURISDICTION STRIPPING AS A TOOL FOR DEMOCRATIC REFORM OF THE SUPREME COURT” Written Testimony for The Presidential Commission On The Supreme Court of the United States August 15, 2021.
A power already exists within the Constitution though rarely used.
U.S. CONST. art. III, § 1 “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”); see also U.S. CONST. art. I, § 8, cl. 9 (“The Congress shall have Power. . . [t]o constitute Tribunals inferior to the supreme Court
U.S. Constitution Article III, Section 2, Clause 2:
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.
In sum, Congress has, and has always had, the power to exert a democratic check on judicial review. Sprigman written testimony.
Congress may define the jurisdiction of the judiciary through the simultaneous use of two powers.[1] First, Congress holds the power to create (and, implicitly, to define the jurisdiction of) federal courts inferior to the Supreme Court (i.e. Courts of Appeals, District Courts, and various other Article I and Article III tribunals). This court-creating power is granted both in the congressional powers clause (Art. I, § 8, Cl. 9) and in the judicial vesting clause (Art. III, § 1). Second, Congress has the power to make exceptions to and regulations of the appellate jurisdiction of the Supreme Court. This court-limiting power is granted in the Exceptions Clause (Art. III, § 2). By exercising these powers in concert, Congress may effectively eliminate any judicial review of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by "knocking [federal courts] ... out of the game."[1] en.wikipedia.org/...
“These parts of Article III, taken together, add up to something potentially profound: they give Congress the power to take back from the courts, and in particular from the Supreme Court, final authority to determine the Constitution’s meaning. That is, Article III establishes alegislative power to qualify judicial supremacy.” Sprigman.
“If we want to put an end to the politicization of the judiciary, we need to get unelected judges out of the business of deciding so many of our country’s most difficult political, social, and cultural issues. The way to do that is through structural reform that will allow the democratic process to push back against judicial overreach.”
. . .
Congress’s virtually plenary power to determine courts’ jurisdiction is, if used with discretion and determination, a power to enforce Congress’s interpretations of the Constitution’s meaning, and to deprive courts of jurisdiction to review those interpretations. It is, in effect, a power to limit, or to qualify, judicial supremacy. www.whitehouse.gov/…
Sprigman Written Testimony
Sprigman gives an example. The passage by Congress of a Wealth tax (something that the Court has never ruled upon). Congress could create a wealth tax and legislate to strip the Court of its jurisdiction to consider the Constitutionality of the issue.
What is important to consider is that Congress’ action IS REVIEWABLE and certainly in our world not by a bought and politicized, and ideological such as this illegitimate SCOTUS. It is reviewable by the VOTERS. They can vote for representatives who would choose to repeal the bill or repeal the limited jurisdiction to the SCOTUS and allow SCOTUS to rule upon it. In reality this is clearly a more democratic interpretation of the Constitution than by Judicial ruling by life time appointees. See Sprigman.
The second example
unlike the first, involves a part of the Constitution on which the Supreme Court has already ruled. Imagine that Congress passes and the President signs a law establishing a set of campaign finance restrictions—including limits on corporate contributions—that is significantly more far-reaching than the Supreme Court’s recent First Amendment decisions would permit.7 Congress can use its Article III power to remove courts’ jurisdiction to hear challenges to its campaign finance rules. Again, if either the campaign restrictions themselves or Congress’s use of its Article III power to shield them from hostile courts proves unpopular, Congress will face discipline from voters, not judges.
But opponents would say that there is a case where SCOTUS indicated that this was not allowed. This was not in a ruling but in “dicta” ie the filler that is not considered in an opinion to be the law being created in a ruling in Patchak v.Zinke,22 a plurality of the Court stated, again in dicta, that Congress could not eliminate judicial review of a statute that would violate the Constitution (“So long as Congress does not violate other constitutional provisions, its‘control over the jurisdiction of the federal courts’ is ‘plenary.’” (quoting Trainmen v.Toledo, P. & W.R. Co., 321 U.S. 50, 63–64 (1944))).
In answering this Sprigman makes clear though that this moreso is simply leaning on our historical tacit acceptance of SCOTUS rulings being respected AND ignoring that Congress explicitly has this power.
The Constitution’s text gives Congress a more-than-plausible claim to this power, and neither history nor precedent refute the claim. A Congress committed to its own understanding of Article III would simply insist on it, and the Supreme Court would have little power to resist. The federal courts are utterly dependent on the political branches, in the very practical sense that they control neither their own budgets nor even their own facilities.. . . It is also worth remembering that there is not a word in the Constitution that provides explicitly for judicial review, and the Constitution certainly does not mandate unqualified judicial supremacy. Sprigman
For non Con-Law Students there is no Constitutional basis for Judicial Review. It was made up in Marbury v. Madison. The Court actually was very clever in how they did this, they established the idea of Judicial Review at length and then stated that in the Case they were considering it was not applicable — essentially establishing the right but then saying but we can’t do anything in this case (rather than create judicial review rule as they wish then be ignored). Since Marbury as I frequently state there is an understanding embodied in CJ Roberts that SCOTUS cannot go too far or they will lose their trust and the powers they have created for themselves as it is not really based on the Constitution. That has held the Court in bounds historically (except see the so called switch in time that saved the nine — regarding the Court Packing Plan and FDR when another SCOTUS was happily striking down popular legislation).
See also Van Alstyne:
Finally, there is the purpose the Constitution would serve in providing a political check upon Congress by the people, even assuming that all acts of Congress were given the full effect of positive law by the courts as well as by the executive. Indeed, consistent with Marshall’s own observation that the people themselves established these written limitations, the democratic approach is to leave the judgment and remedy for alleged legislative usurpation with the people. If they conclude the Constitution has been violated, they can exert political pressure to effect the repeal of the offending act or to replace their congressmen at times of election with representatives who will effectuate that repeal. The document thus provides the people with a firm, written normative standard to which to repair in making political decisions (my emphasis) 3 William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 WM. & MARYL. REV. 1, 19 (1969).
I hope that this will be considered a possible tool to a Majority Democratic Court in considering codifying the personal rights we have been given by the SCOTUS more recently to protect against Judicial Extremism — also in consideration of awful Rulings such as Citizens United as well as Dobbs. To get it into acceptable public consideration the discussion should begin as the advantage is no Amendment needs to be passed this is a power that Congress HAS — albeit used little and publicly unacknowledged but it seems a perfect remedy for protecting a democracy which should be attempting to mature towards equality.
Very Briefly — a consideration of a similar law in Canada noted by the Written Testimony. The notwithstanding Clause.
The notwithstanding clause — or Section 33 of the Charter of Rights and Freedoms — gives provincial legislatures or Parliament the ability, through the passage of a law, to override certain portions of the charter for a five-year term.www.cbc.ca/…
“The Ontario government has used the notwithstanding clause to restore parts of the Election Finances Act that had been declared unconstitutional. A bill invoking the clause passed Monday and means third parties can only spend $600,000 in the 12 months before an election is called.” see above.
I am very hesitant to post this as I hope it is important an hour before the J6 committee but this is when I had time.
I wanted to get more into Marbury v Madison to explain why we say “judicial review was made up” I will see if I have more time.
Apologies for writing this kind of like a law review — this is mostly based on the Public Testimony and looking at law articles so that’s just easier for me to produce rather than re-write everything.
Tuesday, Jun 28, 2022 · 4:58:30 PM +00:00
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ClevelandAttorney
I am so thrilled that we are engaging in discussion about how the Constitution and Democracy does and or should work. I would really love to get into why Scholars discuss Marbury v. Madison and why/how judicial review was “made up”. I’ll see if I have time.
Please continue to ask Questions, but note I am about to turn on the the J6 committee so it may be a moment before I can attempt to respond. I do refer you to Spigman’s written testimony.