Can the Supreme Court rule on laws restricting their powers?

Do you wonder if the Supreme Court can rule on the constitutionality of a law restricting its own powers? hmm, interesting question if they can.

Here's a link to what the New York Times had to say about it.

http://www.nytimes.com/2004/07/24/opinion/24sat2.html

For those disinclined to click the link here's the full text of the article:

Majorities that are frustrated when courts stand up for minority rights have occasionally tried to strip them of the power to do so. This week, the House voted to deny the federal courts the ability to decide a key constitutional issue involving gay marriage. Such a law would upset the system of checks and balances and threaten all minority groups. It is critical that the Senate reject it.

The Marriage Protection Act, which was passed by the House, 233-to-194, would bar federal courts from hearing challenges to parts of the 1996 Defense of Marriage Act. That law says states do not need to recognize same-sex marriages conducted in other states. Gay marriage opponents fear that the courts will hold that this violates the constitutional requirement that states recognize the legal actions of other states.

The House's solution, stripping the federal courts of power, is one that opponents of civil rights and civil liberties have been drawn to in the past. Opponents of court-ordered busing and supporters of school prayer tried it. But even at the height of the backlash against the civil rights movement, Congress never passed a law that completely insulated a federal law from Supreme Court review.

This radical approach would allow Congress to revoke the courts' ability to guard constitutional freedoms of all kinds. And although gays are the subject of this bill, other minority groups could easily find themselves the target of future ones.

The House vote could be dismissed as election-year politics. It's highly unlikely the Senate will go along, and even if it did, there is good reason to believe the law would itself be declared unconstitutional. Still, even one house of Congress backing this sort of assault on the federal judiciary is an outrage.

The New York Times, 24 July 2004

Six short sweet paragraphs that are succinct, to the point, and right dead on target. If Congress did have such a right, we would not have any rights. None of us, on anything. Hopefully, the Senate will have far better sense.

What a lot of conservatives fail to realize is that one of the courts principle jobs is to protect us from each other. This occasionally requires "legislating from the bench" and "interpreting the constitution" instead of "strict enforcement". Of course there is my special favorite, "denying the will of the people". Sometimes the will must be denied or none of us would have any civil rights. Just the way it is.

One other thing this sort of thing is called is "preventing the tyrany of the majority." One should always rejoice that John Marshall was such a sensible upright and straightforward fellow and decided in that case, in 1803, that the courts do indeed have the power to declare this and that unconstitutional.

Some of you may think that decision by the Marshall court was wrong. Some of you may feel that the court declaring this silliness by the House to be unconstitutional would be wrong.

Basically this was just another example of the republican party trying to create yet another "wedge issue" in the upcoming election. I don't trust them to protect my rights or yours either. They have proven to me that they can not be trusted with power.

What the linked New York Times article unsurprisingly fails to tell the reader is that far right members of Congress may be planning (not before November Ist) to deny federal courts the right to consider cases involving abortion, religion, flag desecration, privacy and even the legality of commonly used contraceptives.

If you want to read the text of the legislation on those subjects, which is very similar to the text of the Marriage Protection Act, go to http://thomas.loc.gov/ and type in the following bill numbers: H.R. 1546, H.R. 1547, H.R. 2162, H.R. 3799, H.R. 3893. You have to type them exactly like that (e.g., "H.R. 1546"), including the space. The bill number for the Marriage Protection Act is H.R. 3313.

Each of these issues involves questions under the federal Constitution. Normally, the procedure to amend the Constitution is to get the votes of 2/3 in both houses of Congress and 3/4 of the states. But with this maneuver, Congress can accomplish the same result with a simple majority vote in Congress and the signature of the President. Which Presidential candidate, I wonder, would sign such laws and remove the right to choose and the right of privacy?

Many legal scholars believe laws that completely deny the federal courts the right to consider matters of federal law are unconstitutional. You can read Article III of the Constitution and determine that for yourself. In my opinion, the answer is not entirely clear.