The bill, as such, is meaningless, even if enacted into law.
The Constitution of the United States creates the U.S. Supreme Court and gives that Court appellate jurisdiction over cases involving federal law. The Constitution is "the supreme law of the land," which means that nothing short of Constitutional amendment can abolish the Court or take away its jurisdiction. So Congress can't keep the cases out of the Supreme Court in the first place.
Once the case reaches the Court, the Court must decide the case based on the law before it. Again, the Constitution is the supreme law of the land. Any Act of Congress that contravenes the Constitution is therefore invalid, as is any such state law. The bill you mention can't change that: a two-thirds vote of Congress is legally meaningless under the Constitution, an unconstitutional law is still unconstitutional, and I'm sure that this new bill would be struck down immediately on any challenge. So much for the legal question.
The political question is more complicated and more troubling. The executive branch has "the power of the sword"—the various law enforcement agencies and the military. Congress has "the power of the purse"—it controls how federal money is allocated. For its part, the Supreme Court has about a hundred guys in its security office, and these guys don't go out to enforce the Court's judgments.
The Supreme Court's only real power lies in others' respect for its moral authority and for the rule of law. It falls to the executive to carry out the Court's judgments. If the executive willfully refuses to do that in some case, we have to hope that Congress will at least have enough respect for the principle of legality to cut off the money, or even to impeach the President. If Congress refuses to do so, the people may be able to vote all the bastards out of office. If they can't even do that, well, it's meaningless to talk about law or constitutional government, and we're left with dictatorship and maybe civil war.
(As an aside, passage of this bill would be deeply troubling, as a sign of Congressional abandonment of the rule of law.)
When the executive, Congress, and strong popular opinion converge against the Supreme Court, it's possible that the Court's decision will simply be ignore. Andrew Jackson did it when the Court held that the resettlement of the Cherokees (I think) was illegal; Jackson told the court more or less explicitly to fuck off, and Congress and the people decided that the rule of law could be dispensed with since they weren't themselves Cherokees. Brown v. Board of Education didn't really do much to desegregate the nation's schools: it took an Act of Congress to do that.
Our government, like any other, is not a thing apart from the people. The American people are the government, and that government will exist so long as enough people are willing to comprise it. They'll do that so long as they think they're basically doing the right thing, even if sometimes they have to tell themselves that "maybe it's not the best thing, but everyone's doing it." We're fortunate to have a nation where people believe as strongly as they do in the rule of law. But if enough people believe that the law is wrong or destructive, the government as a whole will ignore it, despite anything the Supreme Court does.
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Date: 2004-03-15 05:04 pm (UTC)The Constitution of the United States creates the U.S. Supreme Court and gives that Court appellate jurisdiction over cases involving federal law. The Constitution is "the supreme law of the land," which means that nothing short of Constitutional amendment can abolish the Court or take away its jurisdiction. So Congress can't keep the cases out of the Supreme Court in the first place.
Once the case reaches the Court, the Court must decide the case based on the law before it. Again, the Constitution is the supreme law of the land. Any Act of Congress that contravenes the Constitution is therefore invalid, as is any such state law. The bill you mention can't change that: a two-thirds vote of Congress is legally meaningless under the Constitution, an unconstitutional law is still unconstitutional, and I'm sure that this new bill would be struck down immediately on any challenge. So much for the legal question.
The political question is more complicated and more troubling. The executive branch has "the power of the sword"—the various law enforcement agencies and the military. Congress has "the power of the purse"—it controls how federal money is allocated. For its part, the Supreme Court has about a hundred guys in its security office, and these guys don't go out to enforce the Court's judgments.
The Supreme Court's only real power lies in others' respect for its moral authority and for the rule of law. It falls to the executive to carry out the Court's judgments. If the executive willfully refuses to do that in some case, we have to hope that Congress will at least have enough respect for the principle of legality to cut off the money, or even to impeach the President. If Congress refuses to do so, the people may be able to vote all the bastards out of office. If they can't even do that, well, it's meaningless to talk about law or constitutional government, and we're left with dictatorship and maybe civil war.
(As an aside, passage of this bill would be deeply troubling, as a sign of Congressional abandonment of the rule of law.)
When the executive, Congress, and strong popular opinion converge against the Supreme Court, it's possible that the Court's decision will simply be ignore. Andrew Jackson did it when the Court held that the resettlement of the Cherokees (I think) was illegal; Jackson told the court more or less explicitly to fuck off, and Congress and the people decided that the rule of law could be dispensed with since they weren't themselves Cherokees. Brown v. Board of Education didn't really do much to desegregate the nation's schools: it took an Act of Congress to do that.
Our government, like any other, is not a thing apart from the people. The American people are the government, and that government will exist so long as enough people are willing to comprise it. They'll do that so long as they think they're basically doing the right thing, even if sometimes they have to tell themselves that "maybe it's not the best thing, but everyone's doing it." We're fortunate to have a nation where people believe as strongly as they do in the rule of law. But if enough people believe that the law is wrong or destructive, the government as a whole will ignore it, despite anything the Supreme Court does.