Eagle Forum Legislative Alerts

Monday, October 24, 2011

Republicans criticize judiciary

The NY Times reports:
WASHINGTON — Republican presidential candidates are issuing biting and sustained attacks on the federal courts and the role they play in American life, reflecting and stoking skepticism among conservatives about the judiciary.

Michele Bachmann wants some types of cases to be off limits to the federal judiciary.
Gov. Rick Perry of Texas favors term limits for Supreme Court justices. Representatives Michele Bachmann of Minnesota and Ron Paul of Texas say they would forbid the court from deciding cases concerning same-sex marriage. Newt Gingrich, the former House speaker, and former Senator Rick Santorum of Pennsylvania want to abolish the United States Court of Appeals for the Ninth Circuit, calling it a “rogue” court that is “consistently radical.”

Criticism of “activist judges” and of particular Supreme Court decisions has long been a staple of political campaigns. But the new attacks, coming from most of the Republican candidates, are raising broader questions about how the legal system might be reshaped if one of them is elected to the White House next year.
Yes, Republicans should be in favor of limiting courts to their constitutional authority.
In his book, Mr. Perry also discussed allowing Congress to override Supreme Court decisions by a two-thirds vote. This too would require a constitutional amendment, assuming that the power of judicial review established in Marbury v. Madison in 1803 continues to be accepted.

But the Marbury decision, which gave the Supreme Court the last word in interpreting the Constitution, has its critics. Mr. Gingrich, for instance, told the Values Voter Summit in October that “judicial supremacy is factually wrong, it is morally wrong and it is an affront to the American system of self-government.”
No, Gingrich did not attack the 1803 Marbury decision. As noted below, he attacked the 1958 decision where the US Supreme Court first announced its judicial supremacy opinion.
Mr. Gingrich, joined by Mrs. Bachmann and Mr. Paul, has called for limiting the federal courts’ ability to hear certain kinds of cases. Whether that would be constitutional is hard to assess.

“The question of the extent of Congress’s power to control the jurisdiction of the federal courts is one of the most contested and unsettled in constitutional law,” said Vicki C. Jackson, a law professor at Harvard.
Unsettled? Congress has done it many times, and the Supreme Court has respected those limits.

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