Balkinization

Stupid Constitution Tricks

Here's the proposed Congressional Accountability for Judicial Activism Act of 2004 (H.R. 3920)(also available here):

SECTION 1. SHORT TITLE.
This Act may be cited as the `Congressional Accountability for Judicial Activism Act of 2004'.
SEC. 2. CONGRESSIONAL REVERSAL OF SUPREME COURT JUDGMENTS.
The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court--
(1) if that judgment is handed down after the date of the enactment of this Act; and
(2) to the extent that judgment concerns the constitutionality of an Act of Congress.
SEC. 3. PROCEDURE.
The procedure for reversing a judgment under section 2 shall be, as near as may be and consistent with the authority of each House of Congress to adopt its own rules of proceeding, the same as that used for considering whether or not to override a veto of legislation by the President.
SEC. 4. BASIS FOR ENACTMENT.
This Act is enacted pursuant to the power of Congress under article III, section 2, of the Constitution of the United States.

Don't worry, it's just showboating. If it was this easy for Congress to overturn Supreme Court decisions, don't you think they would have tried it before? Article III, section 2 gives Congress power to make exceptions or regulations to the Supreme Court's appellate jurisdiction (i.e., its power to hear particular types of cases), but not to overturn particular decisions after the Court has heard and decided them. Without an explicit constitutional amendment giving Congress the power to overturn particular Supreme Court decisions (which, by the way, has been proposed on a number of occasions), the proposed bill would most likely violate the separation of powers by attempting to encroach on the judicial power which is vested in the Supreme Court (as well as the lower federal courts.).

Note, by the way that the act does not give Congress the power to overturn decisions of the Supreme Court that strike down state laws, only acts of Congress. It also doesn't apply to decisions of the lower federal courts. So if the Supreme Court someday strikes down the federal ban on partial birth abortions, and Congress overturns that judgment, the Court's decision in Stenberg v. Cahart is still good law, because it struck down Nebraska's partial birth abortion law. Moreover, any subsequent lower federal court decisions that struck down the federal partial birth abortion bill on the basis of Stenberg would also presumably be good law in the federal circuit or district in which the lower court sits. That's because the law affects only the Supreme Court's *judgment* that the law is unconstitutional. Overturning that judgment does not, in and of itself, require that the lower courts follow Congress's reasoning or its preferences. The bill could correct this problem only by violating greater chunks of the separation of powers, which would make it even more clearly unconstitutional than it is now.

Still, you've got to hand it to these guys. They really know how to make fools of themselves at the public's expense.

Posted 5:09 PM by JB [link]