Supreme Court to be overruled by Act of Congress?
March 16, 2004 3:51 AM   Subscribe

Supreme Court to be overruled by Act of Congress? H.R.3920 Title: To allow Congress to reverse the judgments of the United States Supreme Court. There's a bad moon risin', folks. I want to move to Canada.
posted by Dome-O-Rama (59 comments total)
Umm...sooo...whatever happened to checks and balances? Hopefully this won't make it past the President...thus showing how the system is supposed to work...
posted by stew560 at 3:57 AM on March 16, 2004

So if the law passes, and is unconstitutional, which it is, then the Supreme Court will knock it down, to which Congress will then override their ruling, to which the Supreme Court will revoke, to which Congress will......

And so the empire begins to crumble. Can we say Rome, anyone?
posted by benjh at 4:01 AM on March 16, 2004


What is going on back home? Has everyone lost their mind? This is really the last straw for me. I am glad I am not there to see it first hand. If I was I might be tempted to start stockpiling weapons at this point.
posted by bashos_frog at 4:01 AM on March 16, 2004

Is there an address where I can just mail my cock and balls to GWB now, and be done with it?
posted by scarabic at 4:04 AM on March 16, 2004

Take a look at the sponsors list:
Rep Lewis, Ron [KY-2]
Rep Coble, Howard [NC-6]
Rep Collins, Mac [GA-8]
Rep DeMint, Jim [SC-4]
Rep Doolittle, John T. [CA-4]
Rep Everett, Terry [AL-2]
Rep Franks, Trent [AZ-2]
Rep Goode, Virgil H., Jr. [VA-5]
Rep Hefley, Joel [CO-5]
Rep Kingston, Jack [GA-1]
Rep Pitts, Joseph R. [PA-16]
Rep Pombo, Richard W. [CA-11]

What, they couldn't get a Rep from Michigan for this?
posted by Ryvar at 4:05 AM on March 16, 2004

This sounds like the Congress is arrogating authority to itself above and beyond what the Constitution allows it to do. For this kind of high-handedness to be instituted, shouldn't there be a Constitutional amendment instead?
posted by alumshubby at 4:10 AM on March 16, 2004

benjh points out an interesting conundrum. This should be called the Constitutional Paradox Act.
posted by Outlawyr at 4:13 AM on March 16, 2004

Alumshubby: from any strictly constitutionalist point of view yes, this HAS to be done as an amendment because it completely destroys the system of checks and balances.

However, if the bill passes and the executive and legislative branch both ignore the Supreme Courts immediately striking it down, things could get VERY ugly in America very, very quickly.
posted by Ryvar at 4:14 AM on March 16, 2004

Smells like a Snopes candidate to me.
posted by davidmsc at 4:28 AM on March 16, 2004

This Act is enacted pursuant to the power of Congress under article III, section 2, of the Constitution of the United States.

Article III, section 2 provides that "[i]n 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."

Even a very broad reading of that section suggests that Congress only has the power to alter the jurisdiction of the Supreme Court, not to change the substantive outcome of cases. Eugene and Sasha Volokh discuss jurisdiction-stripping here and here in another context, here is a scholarly paper on it by James Pfander, and here is some background reading from the Brennan Center.

Even the jurisdiction-stripping arguments are somewhat inapposite, however. This seems to be a basic application of judicial review. Hello, Marbury v. Madison, anyone?
posted by monju_bosatsu at 4:33 AM on March 16, 2004

I'm particularly fond of the word schadenfreude, "a malicious satisfaction in the misfortunes of others." Do the Germans have a similarly juxtaposed word for "am I supposed to fucking laugh at this or cry?"

Oh wait, it's almost April.
posted by DaShiv at 4:47 AM on March 16, 2004

As utterly appalling as it is, this will never pass the Senate. If it did, Dumbya would sign it into law, assuredly. But on the appellate court level, it would most certainly be shot down as unconstitutional and thereby unenforceable. The Supremes are very guarded of their power, and if it ever got to that level, I'd bet my booty they would shoot it down as well. When that happens, Congress would be unable to act against it because it would by then be null and void.

I'm not going to worry too much about this one- it's a purely idiotic attempt at law, likely won't become law, but nevertheless it's a rather potent incendiary in an already smoldering Rome.
posted by moonbird at 4:47 AM on March 16, 2004

Stupid bills get introduced all the time, folks, this one isn't likely to get anywhere even in the house. It bears watching, yes, but let's hold off on the panic for now.
posted by Zonker at 4:54 AM on March 16, 2004

Not to mock your ignorance, but the Canadian Constitution includes a "not-withstanding" clause that allows the Federal or Provincial gov't to override a good portion of the civil rights in the constitution. (and the provinces do use it)
posted by tiamat at 5:05 AM on March 16, 2004

NOPE, not a urban legend, I hoped it was too which is why I went and looked it up myself. That link and the text is directly off the congressional page for the proposal. I was shocked it was actually true.

Put in on your browser, (you'll get the same domain... search for "reversal of supreme court" and you'll find it on the site just as I did. I had to find a link that would work for linkage from the linked bar above the listing, the original one that came up does not work from incoming hits.
posted by Dome-O-Rama at 5:18 AM on March 16, 2004

This link leads to the text of Rep. Lewis's remarks on the House floor upon the introduction of the bill. It's worth reading. Turns out the bill is an anti-gay-marriage thing:
I am a strong supporter of numerous legislative measures currently being considered by this Congress, aiming to define marriage as an exclusive union between one man and one woman. However, I believe a more comprehensive solution is necessary to address the broader, troubling trend toward judicial activism, a development with definitive implications beyond just the issue of marriage.
posted by Vidiot at 5:26 AM on March 16, 2004

judicial activism...the new "political correctness?"
posted by mcsweetie at 5:41 AM on March 16, 2004

They change the laws to suit their cause...
posted by LowDog at 5:45 AM on March 16, 2004

benjh points out an interesting conundrum. This should be called the Constitutional Paradox Act.

Andrew Jackson didn't worry about no stinkin' paradoxes.
posted by IshmaelGraves at 5:48 AM on March 16, 2004

Not to mock your ignorance, but the Canadian Constitution includes a "not-withstanding" clause that allows the Federal or Provincial gov't to override a good portion of the civil rights in the constitution. (and the provinces do use it)

Uh...yeah, sort of different. Quebec uses the notwithstanding clause to keep Quebec French, but if you use the notwithstanding clause for whatever reason the issue has to be revisited every five years until you give up and drop it. The clause is an acknowledgement that what you're doing is problematic, which is very different from this bill in the US.
posted by Hildegarde at 6:07 AM on March 16, 2004

I wonder if a democracy can last so long, and if people are doomed to war and suffering.
posted by the fire you left me at 6:24 AM on March 16, 2004

two words: tom delay
posted by specialk420 at 6:32 AM on March 16, 2004

Those sponsors should be immediately impeached, tarred and feathered, and run out of the country on a rail, cuz they obviously just don't get it.
posted by rushmc at 6:41 AM on March 16, 2004

Now is the time to get out the vote on a grass-roots level. We've got to get this administration out of office, and we've got to get these crazy-assed representatives out of Congress.

Let's campaign for our chosen candidate, contact our representatives in office and let them know how we feel about this bill, and do everything we can to stop these attempts to abuse power.

We need to use our voices and our voting power...before it becomes illegal to do so.
posted by Beansidhe at 6:51 AM on March 16, 2004

Would introducing a bill which would destroy the constitution be considered treasonous? Certainly doesn't seem very patriotic to suggest destroying your own government.
posted by Fantt at 6:52 AM on March 16, 2004

This is a good time to write your congresscritter.
posted by Vidiot at 6:57 AM on March 16, 2004

Interesting question, Fantt. The congressional oath of office (all offices in the federal government as well as in the armed forces) includes a pludge to protect and defend the Constitution of the USA. Presumably they were talking about the document and not the old wooden ship. So, a very liberal interpretation of the oath would rule out trying to dismantle the the Consitution. I am sure, however, that the champions of the bill would argue that they are trying to strengthen it.
posted by psmealey at 7:12 AM on March 16, 2004

One thing that bothers me a little bit about this is that usually congress doesn't try to pass legislation which gives one party too much control because they know that when the other party is in control, they'll use the hammer right back at them.

In this case, the Republicans obviously want this power to stop the evil liberal judges from allowing gay people to marry, or other such horrible liberal things. Aren't they worried that when the democrats are in power, they can similarly block any evil decisions by horrible conservative justices? In 12 years, if W and his ilk has loaded the Supremes with more Scalias and Thomases and if the Democrats happen to be in power, won't this legislation pretty much void that conservative victory?

Or, are the Republicans pretty sure the Demcrats won't ever be back in power, and if so, why? Unless they're pretty sure that's the case, it seems like they haven't thought this through very well.

What happens if this legislation passes and the Supreme Court rules against it? Will the Executive branch call out the military to shut down the Judicial branch? Why even have a Supreme Court at all, since this Bill will make it mostly obsolete.

This is scary. All this effort to destroy our government just because some moralists don't like homosexuality.
posted by Fantt at 7:25 AM on March 16, 2004

About two weeks ago I saw a talk on this subject given by Margaret Marshall, the Chief Justice of the Massachusetts Supreme Judicial Court and the person who wrote the recent gay marriage decision.

Her talk was on the subject of Constitutional Democracy, which she defined in part as a form government that includes Judicial Supremacy.

I will probably get some of the details wrong, but as I remember, The Massachusetts State Constitution, written by John Adams, was the first constitution in the world to assert judicial supremacy. The basic idea here is that there are basic rights that are so fundamental that even the rulers can't contravene them. These basic rights are embodied in the constitution.

The test case of this new constitutional structure was brought by a negro slave in Massachusetts who sued for his freedom. He won his case, and as a side effect slavery was outlawed (ruled unconstitutional) in Massachusetts. This was the first time slavery had been outlawed in the country.

The idea of judicial supremacy was a novel innovation at the time, and it has worked out well. The Mass State Constitution is the oldest still-operative constitution in the world. Its model of Constitutional Democracy was adopted by the US Constitution. There weren't many others to follow suit until this century, when CDs have become all the rage.

It's also important to note than many countries we think of as democracies are not constitutional democracies. For example, Great Brittain has no constitution, and there is no way for a court in Great Brittain to over rule an act of parliament. This may be in the process of changing as part of the adoption of a European constitution. But needless to say, it's something the Brittish MPs are a bit skittish about.

As for judicial supremacy in the USA, I wouldn't be too worried about this bill. I think things like this get floated all the time. It's red meat for people who don't like the rule of law and human rights. But it won't make it through congress, and if it did the courts wouldn't let it go anywhere.
posted by alms at 8:00 AM on March 16, 2004

your congresscritter doesn't give a flying fuck about you unless:

a. your name is on a list of very large contributors
b. cameras are not present.
posted by quonsar at 8:00 AM on March 16, 2004

This is scary. All this effort to destroy our government just because some moralists don't like homosexuality.

talk about a self-fulfilling prophecy!
posted by mcsweetie at 8:01 AM on March 16, 2004


b. cameras ARE present.
posted by quonsar at 8:02 AM on March 16, 2004

I'm not in Howard Coble's district (although if I moved a block in either direction I might be) but boy did he get a letter from me, which won't do any good, but definitely made me feel better for having vented some of this boiling anger I'm feeling. What a bunch of dopes, the lot of them.

judicial activism...the new "political correctness?"

If the raging debates I got into with my ultra-conservative father over the last week are any indication, I would say that yes. The talk radio circuit is definitely hollering out charges of "judicial activism" at any SC decision that doesn't fall in line with conservative ideologies.
posted by jennyb at 8:08 AM on March 16, 2004

Read the act before you think it a constitutional crisis...

It says that any laws passed AFTER this one can be undone by the Congress. If this one is slapped down, Congress must say "But, we said, in this"

That's it.

The SCOTUS won't take the challenge to their authority lying down. If it isn't an amendment, it ain't happening.
posted by dwivian at 8:13 AM on March 16, 2004

I'm sick of hearing the following euphamisms from the Republicans:

Court invented separation of church and state

Judicial activisism

Judicial Diktat

the so-called right to privacy

There's probably an equal number of stupid things like that that the Democrats say, but today I'm pissed at the Republicans.

Why can't we have a fiscally conservative, socially liberal political party in this country?
posted by Fantt at 8:31 AM on March 16, 2004

Why can't we have a fiscally conservative, socially liberal political party in this country?

Umm, wouldn't the Democrats under Clinton qualify? And current national Dems are pretty much following that same path.
posted by alms at 8:36 AM on March 16, 2004

Has the "exceptions and regulations" clause ever been used? It seems like a very dangerous phrase in such an important constitutional article, a legacy from the days before John Marshall in which the role of the Court was pretty much up in the air. As monju hints, judicial review is the law of the land: Marbury v. Madison was the pouring of the concrete that established judicial supremacy over the acts of Congress; McCullough v. Maryland was the steel rebar that established national supremacy over the states. You simply can't decide a constitutional issue without acknowledging the Marshall framework in some capacity.

An interesting historical note: The substance of this bill, as stupid as it is, was actually pondered by Marshall during the impeachment crises in the years following the Marbury decision. Congress had threatened to simply impeach and convict any federal judge with whom it did not agree, and Marshall needed a carrot in the form of congressional appellate jurisdiction. Fortunately, the crisis subsided and this was moot.

No, this is absolutely unconstitutional, because as has been intimated above, the spirit of the document, checks-and-balances, overrides an absolutist reading of the "exceptions" clause.
posted by PrinceValium at 8:54 AM on March 16, 2004

Yeah, but Clinton lied about his sex life, alms. Good try, though. Close, but no cigar, as they say. Guess we have to stick with the neocons, warts and all.
posted by squirrel at 8:59 AM on March 16, 2004

Has the "exceptions and regulations" clause ever been used?

OK, Monju has answered my question with the link to the Volokh article in his comment. Seems the answer is "yes, but not substantially."
posted by PrinceValium at 9:00 AM on March 16, 2004

Have a look at the "timetraveler" thread from last September. This guy John Titor from the future predicted, if memory serves, a civil war in America starting this Fall. It begins to sound a lot less outrageous as this sort of news piles up.
posted by donfactor at 9:16 AM on March 16, 2004

This is a stupid bill. It should never pass. If it does, the Supremes will strike it down faster than... something really, really fast. The representatives behind it should all be beaten with an ice-cold wiffle bat until well tenderized.

That being said... the Chicken Little types always crack me up. This is not the end of our Republic. It's not even a constitutional crisis. It's yet another iteration of Stupid Legislator Tricks. It bears watching, but that's all, at this point.

And, at the risk of derailing, there couldn't be a civil war this fall. All the gun control that most of the people who would be tempted to wage one have supported has left them completely helpless. Ha-ha, only serious!
posted by jammer at 9:22 AM on March 16, 2004

Oh Jumpin' Jesus on a Pogo Stick.

Wait, are you trying to tell me this 12-representative POWERHOUSE has finally decided to tip its hand? I mean, it has been known for years in insider circles that this 2.7 % of the entire voting body of the House pulls the strings of our nation, but now they're REALLY going for the gold...


C'mon people. Dumb ass, never-has-a-chance-in-the-world-of-passing bills like this come up all the time.

This bill is DOA, even considering current events. Can we please STOP seeing this thing get bandied around online?
posted by tittergrrl at 9:27 AM on March 16, 2004

Hate to burst some bubbles, but the unconstitutionality of this isn't as clear cut as you'd think. The principle that SCOTUS can strike down federal and state laws wholesale originated not in any text of the constitution, but in the case Marbury v. Madison, which established "judicial review." Prior to that case, I'm told (by my conservative Con Law professor) that you'd have found plenty of founding fathers that believed that SCOTUS could render binding decisions in individual cases, but that their authority was limited to the case at hand. Marbury v. Madison was really a pretty impressive power grab, and if this bill gets anywhere, I'm sure you'll hear someone arguing that it just restores our government to the state dictated by the text of the constitution.
posted by gsteff at 9:32 AM on March 16, 2004

actually it's a good thing that's it's being brought up, tittergrrl, even though i agree it would never pass. it's an interestiing look into the mindset of some of elected officials.
posted by chaz at 9:36 AM on March 16, 2004

Is it just me or is the right wing, fundy power grab getting more and more desperate these days?

Don't get me wrong I'm getting more and more concerned about people trying to legislate my morals but I cannot remember a time in the past 20 years that is has been this blatant, and over the top.

I mean I've had people say to me with a straight face that there i
posted by aaronscool at 9:37 AM on March 16, 2004

Whoa my post got chopped! Anywho...

I mean I've had people say to me with a straight face that there is no separation of church and state and never was.

I would have thought that they might want to tone it down a bit during an election year but I would have been wrong. Kinda scares me to see what they might have in store for the next 4 years if they get it.
posted by aaronscool at 9:41 AM on March 16, 2004

Er... basically what Princevalium said.
posted by gsteff at 9:45 AM on March 16, 2004

C'mon people. Dumb ass, never-has-a-chance-in-the-world-of-passing bills like this come up all the time.

Indeedy. Commonly used to signal allegiance to your voters back home -- you don't need to worry about whether or not the bill is the dumbest thing since Og tripped over his feet and landed in mammoth poo, because the committees and other structures inside Congress will kill it for you.

Write back when the Judiciary and Rules committees have scheduled hearings on it, or when Rules delivers up a rule for it.

(though if it really came up, they'd probably consider it under suspension-of-the-rules, so that republicans could vote for it but it would still not reach the 2/3 majority needed to pass under SotR -- and then both sides go home winners)
posted by ROU_Xenophobe at 10:44 AM on March 16, 2004

"the Chicken Little types always crack me up. This is not the end of our Republic. It's not even a constitutional crisis. It's yet another iteration of Stupid Legislator Tricks. It bears watching, but that's all, at this point"

To those who similarly say, hey it's no big deal:

1) It isn't for you to decide what's a big deal to me or others here
2) Just because people are talking about it doesn't make them Chicken Little types
3) I'm glad you're laughing. I think this is a canary in a coal mine. Even if it has no chance of passing, it is an actual bill that actual representatives took the time to draft. Why? Is it ok to discuss that without incurring your derision? Is it a possible sign of how far some people are willing to take things, how nutty the wingnuts are getting?

Yes, there are many wacky bills that never get passed. There are also many wacky ones that do get passed, especially in the last 4 years.
posted by Outlawyr at 11:25 AM on March 16, 2004

At this point, can't we all, Democrat and Republican, admit that these people are insane?
posted by Hildago at 11:42 AM on March 16, 2004

Oh, that ain't the half of it. Check out H.R. 3799, which has amended the U.S. Code to read, "Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against and element of Federal, State or local government, or against an officer of Federal, State or local government (whether or not acting in official personal capacity), by reason of that element's or officer's acknowledgment of God as the sovereign source of law, liberty, or government."

Yup, that's right. God as a way to get around Supreme Court review.
posted by ed at 11:52 AM on March 16, 2004

I think this is a canary in a coal mine. Even if it has no chance of passing, it is an actual bill that actual representatives took the time to draft. Why?

Because it takes very little effort, and none of your own (there are staffers who will draw it up for you). There's no real cost to doing it -- it's not going to pass, so you don't need to worry about consequences, and the local Democrats in your district probably already dislike you pretty thoroughly as it is, so it's not going to meaningfully lower your "support" among them. And there's some potential benefit to you -- you get to take it home and use it as a talking point to (naive) conservative groups, and energize them to get the vote out, and energize them to fund your and other conservative campaigns.

It's not hard to figure out why people engage in small-scale behavior that has no real cost and at least potential benefits to them.
posted by ROU_Xenophobe at 12:03 PM on March 16, 2004

I want to move to Canada.

"Plan your escape route," he has joked. "Think about Vancouver."
posted by homunculus at 12:43 PM on March 16, 2004

Scene: Rep. John Lewis' office. We see the congressman sitting behind a desk, holding a photograph of his beloved coon hunter, Badass. Badass is staring out the window of Lewis's Ford truck and looking for all the world as though he is driving. Lewis heaves a great sigh for home. His sigh is interrupting by an apoplectic white man in his 60's pushing his way into his office. The new man is King Turd-- the biggest used car salesman in the second district of Kentucky.

"John, goddam it! I am sick and tired of these jackasses on the supreme-almighty-court throwing their weight around. Shit fire! Next thing you know they'll be telling us it's OK for our sons to be marrying their teammates. Makes my blood boil. Howdju like that, if our football team was to go all queer on us? Do something about it!"

"Uh, King, I can't do anything about the Supreme Court. Those guys are appointed for life. There isn't any way to pressure them, and they don't even care if they are popular or not."

"Then figure out how to get around them, goddamn it! You know I put your lazy ass in this seat, and come voting time I can make sure you get your big butt kicked but good." Mr. Turd spits his chaw into the Styrofoam cup and stomps out again.

Rep. Lewis sighs again.
posted by Secret Life of Gravy at 2:39 PM on March 16, 2004

giving blacks the right to vote = judicial activism.

Clearly the majority would have rather they NOT be allowed to vote! How dare those activist judges enact sweeping social change without consulting the democratic process??
posted by Tryptophan-5ht at 3:11 PM on March 16, 2004

Scene: Rep. John Lewis' office

That's Ron Lewis. John Lewis would be highly unlikely to support a bill designed to overrule Brown vs. Board of Education and other defiances of the will of the people.
posted by Octaviuz at 4:36 PM on March 16, 2004

...and every sponsor a Republican.

This, IMHO, would make a great club to bash the Republicans with for the next several months. It could also help elect officials to take their place.
posted by insomnia_lj at 6:18 AM on March 17, 2004

It's all about showing allegiance. They know this has little chance of passing, but they also know that it looks good in the eyes of those who want to stop gay marriage.

It's political pandering at it's worst.
posted by destro at 7:53 PM on March 17, 2004

Robert Bork once called for a constitutional amendment to give Congress veto power over the Supreme Court. This idea has been floating around for a while, I guess.
posted by rschram at 10:23 AM on March 18, 2004

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