Ted Cruz Dusts Off the Old Court-Stripping Strategy

Ted Cruz Dusts Off the Old Court-Stripping Strategy April 7, 2015

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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