Main | Tuesday, April 07, 2015

Ted Cruz Vows To Strip Supreme Court's Power To Rule On Same-Sex Marriage

Via the Dallas Morning News:
“Every one of us is concerned about the Supreme Court’s gay marriage decision likely coming in June,” he said. “The first thing and I think the most important thing every one of us can do, is pray. Lift up in prayer.” He reiterated his vow to press for a constitutional amendment that would clarify the power of state legislatures to define marriage as the union of one man and one woman. If the high court does legalize gay marriage nationwide, he added, he would prod Congress to strip federal courts of jurisdiction over the issue, a rarely invoked legislative tool. “If the court tries to do this it will be rampant judicial activism. It will be lawlessness, it will be fundamentally illegitimate,” he said.
Think Progress provides some history on such attempts:
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.”

Yet, while successful court-stripping proposals are extraordinarily rare, and legal scholars disagree on whether stripping the Supreme Court of its full authority to hear an issue is even constitutional, there is a plausible legal argument supporting such proposals. The Constitution provides that “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Thus, because lower federal courts are creations of Congress, federal lawmakers have the power to define the scope of these courts’ power, and a bill stripping lower federal courts of their authority to decide a question would most likely be constitutional.

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