On Courts Supreme.

[jsbowden]

So...if I order a Supreme Court, that comes with lettuce, tomato, and sour cream, right?

Either way, kate_nepveu posted a link to a poll by another lawyer type which is related to a meme that's also making the rounds:

As was demonstrated in an interview with Katie Couric, Sarah Palin is unable to name any Supreme Court Case other than Roe v. Wade.

The Rules: Post info about ONE Supreme Court decision, modern or historic, to your lj. (Any decision, as long as it's not Roe v. Wade.) For those who see this on your f-list, take the meme to your OWN lj to spread the fun.

Now, I'm not going to do the meme as it's written, I just wanted a jumping off point to rant about something that's bugging me.

The original bailout Paulson asked for was a seven hundred billion dollar blank check that had verbiage in it that excluded it from oversight or review by the courts or congress.

Okay, congress excluding themselves, while stupid, is within their power.

My real question here though, is where the fuck do they get off telling the Judiciary that it's not allowed to review the law? Last time I read the Constitution, the Judiciary was an equal and independent branch and congress had no right to tell it what cases it can and can't hear.

How the fuck exactly do they justify this hubris, and more importantly, why the fuck does the Judiciary put up with it?

If one of you lawyer types can explain this to me, well, I'll still think it's complete and total bullshit, but I might be a little less likely to get incoherent and stop seeing red every time it comes up.

Comments

[prince-corwin.livejournal.com]

They get that from the Constitution.
Article Three, Section Two:

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Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, 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.

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You'd have to get someone more up on the intricacies of Constitutional Law to tell you if it's being properly applied here. I'd think that the Treasury Secretary would count as a public minister, and therefore be under original jurisdiction of the Supreme Court, but whether that "regulations" clause applies only to its own sentence or to the entire section, I couldn't tell you.

For the record, yes, that clause has been used in recent history. There was at one time an Amendment under serious consideration (passed the Senate, I believe) to retract it. And even in high school, I wondered why that clause was in there in the first place-- it couldn't possibly have been as a hedge against Judicial Oversight in the modern sense, because that doctrine wasn't in place until Marbury v Madison.

[scifantasy.livejournal.com]

To my minimally-trained eyes, the "subject to regulations" clause refers to the appellate jurisdiction clause only. But IANAL(Y).

But still, that only affects whether one gets to sue in the SC directly or has to sue in a lower court first...

[prince-corwin.livejournal.com]

I suspect you're right. I have no idea if it has ever been tested, though, and if not, that leaves open a certain ambiguity. Even if not tested, I strongly suspect that the Supreme Court would rule against it.

But, anyone who reads the Second Amendment knows perfectly well that James Madison had some really strange ideas about commas. And I know A3S2 has been getting a workout, lately-- the Marriage Protection Act bill invokes it as follows:

`No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.'.

It also features in the Akins' Pledge Defense bill, and by inference in the Protection of Lawful Commerce in Arms Act. For that matter doesn't the REAL ID act do essentially the same thing for the Secretary of Homeland Defense, regarding roads and barriers in a few locations?

This probably all depends on the working mechanics of the court system, but it seems like these provisions either ban all judicial review, or they essentially require that only the Supreme Court has any review authority whatsoever.

Don't think that I approve of this. I'm just saying, the A3S2 clause has been seeing a lot of use in the last ten years, and that activity has been leading up to something like this.

[scifantasy.livejournal.com]

`No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.'.

Hm. And given that this isn't about ministers/consuls/etc or (necessarily) states as parties...but I have to assume that the Supreme Court can claim original jurisdiction to review any law for constitutionality...

But yeah, it smacks of Congress overstepping its bounds. And like I said, my prof suggests the Court wouldn't stand for that for very long...

[jsbowden.livejournal.com]

I'd forgotten about that last bit, but like Will, I'd always understood that it only applied to that one bit.

[scifantasy.livejournal.com]

According to my Civ Pro professor...they can't. He thinks the Supreme Court would have found that provision unconstitutional if it came down to that.

[prince-corwin.livejournal.com]

Also, if you want my outrage on the whole subject, look no farther than the Senate version of the bill, which added $105B in fucking earmarks and pork.

A clause about the Supreme Court, which the Supreme Court will almost certainly strike down, doesn't even register for me, because it has no practical effect.

[jsbowden.livejournal.com]

Pork annoys me...a billion here, a billion there...eventually it adds up to real money and alla that, but congress and the executive somehow thinking that the framers and founders didn't actually mean for the judiciary to be a fully independent branch? That just pisses me right the fuck off. It wasn't right when Jackson did it, and it's still just as wrong today.

[prince-corwin.livejournal.com]

But why bother? It's got all the signifigance of a two year old pointing at a cookie jar and yelling, "Mine!" Yell all you want, kiddo, it's not actually up to you.

And pork, while annoying, absolutely incenses me when attached to something this important.