In the likely event that the Supreme Court brings marriage equality to all 50 states this summer, Sen. Ted Cruz (R-TX) wants to strip the entire federal judiciary of its power to hear cases brought by same-sex couples seeking the right to marry, according to the Dallas Morning News.
Cruz’s remarks came during a speech in Sioux City, Iowa, where the tea party senator also praised the original, more discrimination-friendly version of Indiana’s new “religious liberty” law, and claimed that a cabal of liberals and big business endorsed a “radical gay marriage agenda” which says that “any person of faith is subject to persecution if they dare” disagree with marriage equality.
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.
Attacks on the Supreme Court’s jurisdiction are more controversial, but they also have a plausible basis in the Constitution’s text. According to Article III of the Constitution, in most cases, “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.” Proponents of jurisdiction-stripping claim that this power to make “exceptions” to the justices’ jurisdiction includes the power to eliminate their power to decide certain questions.
Congress actually did engage in jurisdiction stripping on at least one occasion, and the Supreme Court upheld its decision to do so. During Reconstruction, a military commander jailed a newspaper publisher accused of publishing “incendiary and libellous” articles. Though the publisher sought an order from the Supreme Court requiring his release, Congress stripped the justices of jurisdiction to hear the matter in March of 1868. That December, a unanimous Court held in Ex parte McCardle held that this jurisdiction stripping bill bound the Court.
Yet, while Congress may have the technical legal authority to take up and pass Cruz’s proposed bill, there are two reasons why Cruz may want to rethink his proposal. The first is, as I lay out in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, the justices have historically been a great ally to men who think like Senator Cruz. If Cruz sets a precedent for using jurisdiction stripping bills to resolve a modern constitutional debate, he should not be surprised if a Democratic Congress invokes this precedent in the future to revive the Voting Rights Act, prevent enforcement of the Citizens United decision, restore access to birth control and, if necessary, insulate the Affordable Care Act from judicial challenge.
The second reason why lawmakers should be cautious of jurisdiction stripping generally is that such legislation could potentially cast the law into chaos. Suppose that the Supreme Court sides with marriage equality this June, for example, and that Congress responds by enacting Cruz’s bill. If the Court loses jurisdiction over marriage equality cases, that will mean that it does not even have the power to rescind its previous decision supporting equality, which will mean that every judge in the country will remain bound by a decision of the highest Court in the land, even if that Court can no longer enforce its own decision.
Some judges are likely to decide, as Alabama’s supreme court has suggested that it would, that they are free to go their own way from the Supreme Court of the United States. Other judges are likely to believe, correctly, that they are still bound by a higher Court’s decision. In some states, lower court judges will be forced to decide between contradictory rulings from their state supreme court and the federal justices. In others, local officials will disagree, leading to a situation where a same-sex couple’s access to a particular right will hinge upon who runs the office that administers or enforces that right. Eventually, statewide officials may step in to resolve these conflicts, but it may not be clear who within the state — the governor? the attorney general? the state’s highest court? — has the power to do so. And even if one official does emerge as the dominant player in this struggle, their resolution of the issue could change if they are replaced in the next election.