Trying to Trim the U.S. Courts

By Frank Trippett

"The Supreme Court," says James Bryce in The American Commonwealth, "feels the touch of public opinion." That is for sure, and there is a further truth: public opinion, or incensed parts of it, sometimes tries to reach the federal judiciary with a bit more than a touch--with a brisk left hook, say, or a fast right cross. One of those times is at hand: congressional leaders of the New Right are avidly mounting a serious assault on the power, authority and prestige of the federal courts.

Fully 20 bills now pending in Congress are designed to strip certain powers from the Supreme Court and lesser U.S. tribunals. The House is dealing with 16 of the measures, and four have been introduced in the Senate. Some of the measures, Senate Bill 158 among them, would prevent federal district and appellate courts from hearing cases involving any new state antiabortion statutes. Others, like Senate Bill 481 and House Bill 865, would limit the jurisdiction of the whole federal judiciary, the Supreme Court included, in school prayer cases.

Each of the bills proposes, in one way or another, to reduce or take away entirely the authority of the federal courts to act in cases involving desegregation, school prayers or abortion. Control of public policy in those areas would be left exclusively to state governments; individuals who believed that their rights were being violated in those areas could seek relief initially only in state courts. Given the multiplicity of states with diverse court systems, this procedure would raise the possibility of innumerable different constructions of the fundamental law of the land. Or, as Yale Law School Professor Robert Bork puts it, "you'd have 50 different constitutions running around out there, and I'm not sure even the conservatives would like the results."

What started the anticourt drive was conservative anger at federal court opinions that, among other things, legalized abortion, outlawed school prayer and supported the use of busing to achieve desegregation. Even before those rulings were handed down, conservative wrath had been aroused by the federal judiciary's strong protection of the rights of defendants and its uncertain approach to pornography. And conservatives have never been happy about the modern judiciary's penchant for the sort of activism that has prompted some federal judges, like Frank Johnson of Alabama, to take over the administration of prisons or busing programs as a way of guaranteeing constitutional rights. For this reason Sandra Day O'Connor doubtless pleased the New Right when, on the eve of her confirmation as the first woman on the Supreme Court, she declared that "the proper role of the judiciary is one of interpreting and applying the law, not making it." The legal theory underlying the New Right campaign is primitive in its simplicity: if federal courts interpret the law of the land in a way you do not like and you cannot muster the votes to amend the Constitution, then hamstring the courts. Says Utah's Senator Orrin Hatch, a cautious supporter of the New Right crusade: "The federal judiciary has been courting disaster by reading its own predilections in the Constitution."

What the New Right proposes instead, in its pending array of court-hobbling bills, is to substitute its own predilections. But the very notion of such legislation, says University of Southern California Law Professor Leonard Ratner, implies that "Congress could by statute profoundly alter the structure of American Government." If the bills were actually enacted, the traditional balance of power between the three branches of U.S. Government would be put thoroughly askew. The Supreme Court would be supreme no more. The "supremacy clause" of the Constitution, declaring that document to be the prevalent law of the land, would become a "nullity," in the word used by Tampa Lawyer Edward Cutler, who is lobbying against the New Right proposals for the American Bar Association. According to Wisconsin's Democratic Congressman William Kastenmeier, the enactment of even one measure that would cripple the Supreme Court in even one area would be a dangerous precedent--an invitation to Congress to turn itself into a sort of Supersupreme Court over the Supreme Court. Says Kastenmeier, a leading foe of the anticourt crusade: "If Congress can decide willy-nilly that the Supreme Court and the federal appellate courts have no appellate jurisdiction, then we have arrogated to ourselves considerable power."

Congress, by then, would also have plunged the entire nation into a constitutional crisis of the first order. A head-butting confrontation between the Supreme Court and Congress would be unavoidable. And it would be impossible for either adversary in such a conflict to come out a clear winner. It would be simple, of course, for any federal court to take the first opportunity and knock down court-stripping acts themselves as unconstitutional. Yet such an action could only result in increased resentment among certain elements of the public and probably a heightened tendency toward further vindictiveness in the Congress. If the court-stripping acts actually stuck--as hard as that is to imagine--Congress might be pleased with itself for a moment but would have earned condemnation for having undermined the judicial independence that has been and remains indispensable to the workings of U.S.-style democracy.

Congress, however, already possesses some legitimate authority over federal courts. The Constitution, for instance, gives Congress the power to "constitute tribunals inferior to the Supreme Court," and legal experts generally agree that the power to create implies the power to regulate and even abolish. Moreover, the Constitution awards the Supreme Court complete appellate jurisdiction, "with such exceptions, and under such regulations as Congress shall make." Experts disagree on the import of this little-exercised grant of authority. Some agree with Northwestern Law Professor Martin Redish that "if Congress truly desires, it can do almost anything it wants to the jurisdiction of the lower courts or the appellate jurisdiction of the Supreme Court." Many other experts, among them Cardozo Law School Professor Telford Taylor, argue that Congress cannot possess any power that would enable it to prevent the Supreme Court from doing its primary job of deciding constitutional issues. And the real purpose of the pending bills, says Taylor, is "to make it more difficult to vindicate constitutional rights." Summarizes TIME Supreme Court Correspondent Evan Thomas: "If there is any consensus among the scholars who have debated this issue, it is that Congress does have the power to remove issues from the lower courts but probably not the Supreme Court."

More than a century ago, to be sure, Congress curtailed the Supreme Court's jurisdiction over habeas corpus proceedings in a limited way, prohibiting it from hearing cases arising out of an 1867 act of Congress. In this, the high court acquiesced, ruling in 1869: "We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words." This remains the sole case in which Congress successfully imposed "exceptions" on the high court. Only three years later, the court did not hesitate to strike down a congressional effort to limit its jurisdiction over cases involving property claims made by litigants who were pardoned after the Civil War. In that, the court said, Congress had exceeded its authority.

For the most part, Congress as a whole has always practiced self-restraint in dealing with the courts. Factions within Congress have over and over again tried to hobble or thwart the federal judiciary--liberals in the 1920s when the high court kept striking down their measures outlawing child labor, conservatives in the mid-century years when the Supreme Court struck down some state antisubversion laws. But the anticourt propositions of these and other factions were never enacted by the whole Congress.

History, then, offers some cause to hope that Capitol Hill will quickly squelch the 20 court-stripping bills before it. Unfortunately, there are also grounds for pessimism. There is, above all, the fact that Congress now is clearly more conservative than in 1979, when the Senate did pass a bill that would have taken away federal court jurisdiction over the issue of school prayer; the House killed the bill. Political observers suspect that the New Right can get at least some of its measures through the Senate again. But this time around it is less certain, given the new conservative atmosphere, that opponents could vote down the measures in the House. The issue will possibly be decided by the Administration; though it generally tilts to the conservative side of the so-called moral issues, the Administration has so far withheld forthright support of the anticourt campaign partly because of genuine doubts about its constitutionality and also out of fear of endangering the congressional consensus on economic issues.

It is all but a national custom for Americans of every philosophical shade to berate the federal courts, from the highest down, over decisions that cut against the popular grain. Conservative calls for the impeachment of activist Chief Justice Earl Warren were commonplace. But to allow anger at the courts to grow into political action that would disable them could prove extremely perilous. What needs to be remembered is why the federal courts so frequently go against the grain of popular sentiment. More often than not they are doing what they, alone among U.S. institutions, were designed to do: safeguarding the fundamental rights of the individual against the potentially tyrannical attitudes of the majority. --By Frank Trippett

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