House to pass bill denying federal courts review of the pledge of allegiance

[A18]

http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.2389:

I agree with Joseph Story: Congress can (of course) strip the Supreme Court of its appellate jurisdiction, but every aspect of the judicial power, as defined in Article III, Section 2, must be vested in some federal court. That has never been the actual practice, however.

Anyway, it will be interesting to see what happens if this bill becomes law. It has the neutrality element of Ex parte McCardle, but the blatant power grab stigma of United States v. Klein.

[Bacon King]

I'm not to well-versed on the Judicial branch- is this even legal?

[A18]

I'm not to well-versed on the Judicial branch- is this even legal?

It's very clear from the text of the Constitution that Congress can restrict the Supreme Court's appellate jurisdiction, and despite Story's wishes, the Constitution has never been interpreted to require that every aspect of the judicial power be vested in a federal court.

However, there are some limits to Congress's power. See United States v. Klein.

[Emsworth]

http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.2389:

I agree with Joseph Story: Congress can (of course) strip the Supreme Court of its appellate jurisdiction...

I would argue that, whenever the Congress reduces the Supreme Court of appellate jurisdiction, it supplements the Court's original jurisdiction. In other words, the Supreme Court must have some form of jurisdiction over every case.

[A18]

That reading is not only counterintuitive, but somewhat frightening. The highest court in the land transformed into an ordinary trial court?

[Emsworth]

That reading is not only counterintuitive, but somewhat frightening.

I would disagree. It seems to be the most appropriate reading of the clause allowing Congress to make exceptions to the Supreme Court's appellate jurisdiction. It should be remember that all courts and tribunals must be "inferior" to the supreme Court. The requirement of inferiority cannot be met unless an appeal lies from the lower court to the higher one.

[A18]

What you call the most appropriate reading was apparently unheard of during the founding era, to the extent that Marbury's lawyer in Marbury v. Madison did not even advance such a claim (and he had a great lawyer). Indeed, as far as I am aware, the notion that the Exceptions Clause merely allows Congress to add to the Supreme Court's original jurisdiction did not even receive any serious attention until the Ex parte Yerger case (from the late year of 1868). Even there, Chief Justice Chase mentioned it out of the blue (the reading was urged by neither party), and proceeded to reject it on the force of Marbury.

[Emsworth]

What you call the most appropriate reading was apparently unheard of during the founding era, to the extent that Marbury's lawyer in Marbury v. Madison did not even advance such a claim (and he had a great lawyer).

That point is hardly relevant. One could argue, for example, that outside of Congress, very few people believed that the Fourteenth Amendment's privileges or immunities clause incorporated the Bill of Rights in the 1860s. Does that mean that the Bill of Rights is not supposed to be incorporated?

The jurisdictional question attracted very little attention at the time; far more attention was focused on whether a court could issue a mandamus to an executive officer.

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Perhaps so, but the logic upon which Chief Justice Marshall dismisses the idea that Congress may extend the original jurisdiction of the Supreme Court leaves much to be desired. He does not even address the exceptions clause.

It is true that my reading of the exceptions clause is somewhat more awkward than the orthodox reading. However, the interpretation I propose would be far more consistent with the requirement of inferiority.

Alternatively, it could be argued that Congress may restrict appeals from state courts, but that it may not restrict appeals from inferior federal tribunals.

[A18]

I of course do not agree that it is "hardly relevant" that your novel (though admittedly plausible, when divorced from context) interpretation of the Exceptions Clause did not even make its way into the legal dialogue until the late 1860s, 80 years after the Constitution was ratified. Evidently the founding generation did not share your belief that the relationship between superior and inferior courts must be absolute.

[Bandit3 the Worker]

I'm not to well-versed on the Judicial branch- is this even legal?

No.

It's just that a bunch of wingnuts think it is.

[Metellus Nigidius]

I'm not to well-versed on the Judicial branch- is this even legal?

There truly is no clear answer to that question.  What is clear is that there is no constitutional requirement for the existence of lower federal courts or for jurisdiction in lower federal courts.  (The Constitutional Convention in fact rejected the idea of mandatory lower federal courts.)  Without getting into the arcane details of Testa, Dowd, and other cases, I would note that, even under this legislation, one could litigate his Pledge case in *state* court -- under federal and/or state constitutional law -- and he is thus not without all judicial review.  Of course, there would be no review in the U.S. Supreme Court.  While that is theoretically problematic, as a de facto matter such Supreme Court review is a reality in only a tiny number of cases.  Even so, I do not think I would support this bill any more than I would agree with the conclusion that public school recitation of the Pledge is unconstitutional.