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Thursday, July 20, 2006

Courts - Lawmakers seek to bar hot issues from federal courts

Maureen Groppe of the Indianapolis Star Washington Bureau writes today that "Conservatives' bills aim to block federal judges from hearing cases on controversial topics." Some quotes:

WASHINGTON -- What do you do when a judge makes a decision you don't agree with?

Take away judges' power to consider the issue.

That's what conservative lawmakers -- including two from Indiana -- have been trying to do on such hot-button issues as public displays of the Ten Commandments, gay marriage, the Pledge of Allegiance and invoking the Christian God in legislatures. * * *

"The way our system works is when a court makes a decision, we abide by the decision," said Ken Falk, legal director for the American Civil Liberties Union of Indiana * * * But lawmakers say their approach is easier than amending the Constitution or replacing the judges and is equally appropriate.

"If James Madison and Alexander Hamilton and George Washington didn't want Congress to have this authority, then they would have left it out of the Constitution," Hostettler said.

The Constitution gives Congress the authority to define the jurisdiction of lower federal courts and the appellate jurisdiction of the Supreme Court.
Congress is always adjusting federal jurisdiction, said Russell Wheeler, former deputy director of the Federal Judicial Center and a guest scholar at the Brookings Institution.

"What makes (the current bills) different," Wheeler said, "is that they are not just a normal regulation of jurisdiction, but they are an effort to eviscerate the third branch of government." * * *

[S]ome legal experts think chances a "court-stripping" bill could pass have increased, citing the increased political polarization in Congress, a particularly strong period of conflict between Congress and the courts, and the influence of interest groups.

"My sense is that the level of antagonism toward judges is pretty high right now," Geyh said. "And in some congressional districts, people running for Congress will be made to look good if they do something to yank the chains of judges."

[More] Here is an AP story today on one such bill. The report begins:
WASHINGTON (AP) -- Legislation to bar federal courts from ruling on constitutional issues arising from the Pledge of Allegiance, including the "one nation, under God" reference, passed the House after lawmakers argued that the pledge is linked to the nation's spiritual history.

Opponents countered that such a law, a priority of social conservatives, would undercut judicial independence and deny access to federal courts to religious minorities seeking to defend their rights. * * *

The pledge bill would deny jurisdiction to federal courts, and appellate jurisdiction to the Supreme Court, to decide questions pertaining to the interpretation or constitutionality of the pledge. State courts could still decide whether the pledge is valid within the state. * * *

Davison Douglas, a professor at the William and Mary School of Law, said constitutional scholars are divided over whether such congressional restrictions on judicial review would pass constitutional muster.

"If this bill is enacted, it would be a highly significant landmark in terms of congressional efforts to control the actions of federal courts," Douglas said.

Posted by Marcia Oddi on July 20, 2006 06:01 AM
Posted to Courts in general