Ted Cruz Dusts Off the Old Court-Stripping Strategy

Ted Cruz is so upset that the Supreme Court might invalidate state laws banning same-sex marriage in June that he’s dusting off a hoary old idea that the Republicans have been kicking around for decades, which is to have Congress strip the Supreme Court of its authority to hear any cases involving the issue.

In the likely event that the Supreme Court brings marriage equality to all 50 states this summer, Sen. Ted Cruz (R-TX) wants to strip the entire federal judiciary of its power to hear cases brought by same-sex couples seeking the right to marry, according to the Dallas Morning News.

Cruz’s remarks came during a speech in Sioux City, Iowa, where the tea party senator also praised the original, more discrimination-friendly version of Indiana’s new “religious liberty” law, and claimed that a cabal of liberals and big business endorsed a “radical gay marriage agenda” which says that “any person of faith is subject to persecution if they dare” disagree with marriage equality.

Jurisdiction stripping is a controversial idea that has occasionally been proposed by social conservatives seeking to neuter court decisions that they disapprove of. In 1981, for example, lawmakers introduced a total of 22 bills seeking to remove the Supreme Court’s power to hear cases involving “prayer in the schools, abortion, school busing, a males-only draft and state court rulings.” Reacting to Sen. Jesse Helms’s (R-NC) proposal to eliminate the Court’s authority to hear school prayer cases, Sen. Barry Goldwater (R-AZ) claimed that the bill was akin to “outlawing the Supreme Court.”

Most people don’t know that Congress actually does have such authority, but they do. Article III of the Constitution says that the Supreme Court “shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” But while Republicans have rattled their sabers over it from time to time — school prayer, flag burning and a few more — it’s only ever actually been done once, during the Civil War. And it isn’t going to happen this time either. Cruz is just posturing to his far right base.

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  • colnago80

    Suppose such a statute was passed and the SCOTUS declared it unconstitutional?

  • D. C. Sessions

    I can understand why it’s never going to happen. They wear those robes for a reason!

  • dmcclean

    “it’s only ever actually been done once, during the Civil War.”

    Really? Wikipedia lists three other times since 1996, and a fourth that was deemed to go too far. http://en.wikipedia.org/wiki/Jurisdiction_stripping#Further_federal_statutes

  • abb3w

    The notion seems even stupider than Ed suggests. The SCOTUS might well have reason to address such a court-stripping statute, as subsequent challenges to gay marriage seem likely suits “in which a state shall be party” — which is one of the Article III conditions for original jurisdiction — which cannot be altered (neither to increase nor diminish) by Congress, save through the Amendment process.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    We in the Tea Party are focused on economic issues. From this it follows that We the People are for Small Government. Small enough, in this case, that Government is too Small to protect Unpopular Minorities (but is still plenty Big enough to deny them their so-called “rights”).

    As I said, economic issues.

  • Chiroptera

    Congress may well have broad latitude to strip the judiciary of the ability to hear cases involving interpretations of ordinary statutory law, but I’d be surprised if Congress were allowed to deny the Supreme Court the ability to review the constitutionality of anything.

    I dunno, though. This is getting too meta for me to wrap my head around.

  • peterh

    Cruz doesn’t understand the Constitution, does he?

  • yoav

    Now that BabyDoc Paul is officially in the race maybe he can try to out crazy Cruz by reintroducing his daddy’s We the people act.

  • Paul Neubauer

    I’ve read Ed’s OP and the wiki article dmcclean linked in #3 (thanks!) and I think I may have learned something. A couple of points strike me though and maybe someone more knowledgeable can help.

    First, if Congress were to “make regulations” according to Article III, wouldn’t that be accomplished by means of legislation? That is, why would it not require either a signature by the President or an overridden veto? Would anyone in their right mind or even in any mind at all ever imagine that this President would sign this legislation? Of course, that has never stopped any of the 4,758,297 bills to repeal “Obamacare”. (Hyperbole? What’s that?)

    Second, although it does appear that several SC justices, over many decades, have acknowledged that Congress does have significant authority to limit the jurisdiction of the federal courts, Wouldn’t SCOTUS be able to rule on the constitutionality of such limitations as they did in Boumediene v. Bush, where they ruled that the Military Commissions Act of 2006 was an unconstitutional suspension of the constitutionally protected right of Habeus Corpus. Since the whole premise of the current cases before the court this session is that the state restrictions on SSM are violations of the protections in the 14th Amendment, Cruz’s suggestions look to me to be basically similar in that any legislation to restrict access to the courts on this subject could also be interpreted as an attempt to restrict the right to “equal protection of the laws.”

    Of course, my questions do presume that rationality does or at least should play some role here and Ted Cruz is not necessarily presuming anything of the sort.