The Danger of Disrobing the Judiciary

Artful advocates advise this about addressing the court: if the facts are on your side, pound the facts; if the law is on your side, pound the law; if neither is on your side, pound the table. Adding to that adage, pusillanimous politicians propose undressing the court: if you fear its decision, strip it of jurisdiction. You might even steal the court's money, or push the judge off the bench.

The latest practitioner of such interbranch bullying is senator and presidential candidate Ted Cruz of Texas. Afraid that the Supreme Court will invoke the Constitution to safeguard same-sex marriage and that other federal courts will then follow that new precedent, he has introduced in the Senate the "Protect Marriage from the Courts Act." The act threatens to strip the jurisdiction of lower federal courts, as well as the appellate jurisdiction of the Supreme Court, over "claims pertaining to the constitutionality of State marriage laws."

Of course, the Supreme Court is on the verge of deciding precisely such an appeal. Lest it issue its judgment before the bill becomes law, not to worry: the bill refers to the pending case and provides that no non-parties -- in other words, no state judges -- "shall have any obligation to comply with the decision."

The way to protect marriage, apparently, is to declare war on the independent judiciary, a pillar of our constitutional democracy. This legislative attempt to restrain the judicial branch violates the separation-of-powers doctrine, and the invitation to state judges to ignore a Supreme Court decision makes a hash of the constitutional enshrinement of federal law as "the supreme Law of the Land."

To justify this power (s)trip, Cruz seeks refuge in two flawed lines of reasoning. One turns on Congress's constitutional authority to "ordain and establish" lower courts. That greater power to create courts from scratch, goes the argument, inherently includes the lesser power to withhold cases selectively from their jurisdiction. That logic is dubious; just because I don't have to hire any employees at all does not mean that once I do I can pay them as little as I'd like. In any event, although broad, neutral limitations on lower courts' jurisdiction have long been accepted, the notion that Congress can cherry-pick specific cases has not.

With respect (so to speak) to the Supreme Court, Cruz's bill relies on the constitutional provision that "the supreme Court shall have appellate Jurisdiction . . . with such Exceptions . . . as the Congress shall make." But would-be jurisdiction-strippers misinterpret that clause. In fact, so do their opponents who protest that exceptions violate the Constitution's spirit while ruefully conceding that the letter of the law allows them. What both groups overlook is that exceptions to appellate jurisdiction do not abrogate jurisdiction altogether. Rather, as I have explained in detail elsewhere, exceptions expedite the hearing of important cases by moving them into the Supreme Court's original jurisdiction, which is otherwise quite circumscribed.

As troubling as Cruz's attempt to divest courts of jurisdiction is in theory, in practice it is a political striptease with little chance of consummation. Perhaps even more scandalous is a judiciary appropriations bill that Sam Brownback, governor of Kansas, actually signed into law recently. Brownback knows that the state supreme court will likely soon address the constitutionality of a favored law of his from last year that seized administrative authority from that court and dispersed it to trial courts across the state. The new legislation leaves intact the state supreme court's jurisdiction to entertain such a challenge, which is already pending in trial court. But it comes with a threat of a different order: if any court strikes down the earlier law, then the provisions funding the entire state judiciary will be "declared to be null and void."

The judicial pen may be mightier than the sword, but ink costs money. Brownback should keep in mind that judicial review -- the power of courts to invalidate actions of other branches -- has been a cornerstone of the framework of separated powers, providing a crucial check on executive and legislative overreach. And as Cruz presumably laments, federal courts have been essential enforcers of the Constitution in the face of stubborn states, most notably during the Civil Rights Movement. If the political branches wield necessities like jurisdiction and budgets as weapons for browbeating courts into submission, the damage to judicial independence will in turn erode the rule of law.

Still another way politicians have found to intimidate judges has been to jeopardize their jobs. A precursor to Cruz's same-sex marriage bill was the "We the People Act," introduced by Texas representative Ron Paul, like Brownback a onetime presidential hopeful. Paul sought to block federal courts from hearing cases about not only sexual orientation but also reproduction or religion. Any violation of the jurisdictional bar by a judge would be, the bill warned, an "impeachable offense."

These various threats to disrobe judges by stripping them of authority are not only unseemly but downright dangerous. If Cruz, Brownback, Paul, and other merchants of menace fear certain court decisions about facts or law, let them pound the table. But don't let them have a pound of judicial flesh.