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Sunday, February 18, 2007

Court Stripping Q and A

In response to my interview with Congressman John Kline about his selective support for court stripping, commenters asked for more information about Court Stripping. I've bumped an earlier (7/24/04) post on Lloydletta to explain. This is from email correspondance I had with Dale Carpenter, Professor of Constitutional Law at the University of Minnesota Law School.

What is court stripping and why is it being proposed?

Jurisdiction-stripping has been proposed just about every time the Court has done something controversial.  It came closest, perhaps, in the 1950s in the aftermath of Brown v. Board when Southern congressmen proposed stripping the courts of power to hear school desegregation cases (isn't it funny that the civil rights era seems to come up so often in these discussions?).  It failed then, when the country was much more riled up than it is now.

The need for judicial review to keep Congress within its constitutional bounds, and the dangerous precedent that would be set by passing a jurisdiction-stripping measure, will probably cause Congress to exercise self-restraint, as it has in the past.  Even if it passed the House, it would not make it through the Senate.

As for the constitutionality of jurisdiction-stripping, there's no good precedent either way.  The one case where Congress stripped the federal courts of some habeas power is a case called Ex Parte McCardle.  It is not exactly on point because the courts were left with some reviewing power over criminal detentions and the Court's opinion upholding the measure is vague as to the extent of congressional power.  On the constitutional text, Congress has a solid argument. There are, however, good structural (e.g., separation of powers) reasons to doubt Congress should be understood to have plenary power in this area.  These structural arguments have been made by law professors like Michael Gerhardt (who, I'm happy to say, will be visiting at Minnesota in the fall), who testified against this jurisdiction-stripping proposal on June 24.  You can find his testimony online through a Google search.

Regarding "the need for judicial review to keep Congress within its constitutional
bounds..." This IS a legitimate concern.  The natural follow-up question, however, is how to keep the federal judiciary within ITS constitutional bounds?  THAT'S the question no one seems to be willing or able to answer...and THAT'S part of what is really driving this debate over gay marriage.

Courts sometimes go overboard.  The checks are these: (1) judicial appointments (2) multiple layers of review, including appellate and Supreme Court review of wild decisions (3) the limited power of judges, who can only decide cases and controversies before them, not simply any issue they want to address, and (4) constitutional amendment.  For all the talk of activist courts, the federal judiciary has rarely resisted a dominant national political alliance on any issue.  I can only think of 3 such instances in the Court's history, such as when the Court was striking down minimum wage and maximum hours laws in the early part of the 20th century.  For the most part, the court is not far off the national consensus for very long, even if some of those with strong but minority political viewpoints don't like the results.

Since there are several court stripping proposals before congress, I will continue to follow this issue in this blog.

Thanks to Dale Carpenter, Professor of Constitutional Law, University of Minnesota for the answers.