Bert Brandenburg of Justice at Stake has a guest column on the American Constitution Society blog about the Schiavo case and recent instances of court-stripping legislation. Over the last few years, there have been many efforts to strip courts of jurisdiction in areas where they have issued rulings that are unpopular, particularly rulings unpopular with social conservatives. This goes back at least to the 1989 ruling in Texas v. Johnson, which struck down laws against flag burning. 16 years later, conservatives in Congress are still demagoguing that ridiculous issue, and in 2004 a bill was introduced to strip the courts of jurisdiction to hear flag burning cases. The Constitution Restoration Act of 2004 would likewise have prevented the courts from hearing any cases involving “acknowledgment of God”. There are many other examples. Brandenburg hits the nail on the head on both the motivation and the danger in such proposals:
Proponents of court-stripping frequently seek to whip up populist outrage against the courts. House Majority Leader Tom DeLay says that “judges need to be intimidated” and that Congress should “take no prisoners” in dealing with the courts. Other efforts are stealthier: the Feeney Amendment was slipped into a popular anti-kidnapping measure without a single hearing or consulting a single judge, triggering strong complaints from Chief Justice Rehnquist.
Backers of the new law did not worry that they were wresting jurisdiction over Mrs. Schiavo’s case from Florida’s judiciary, where 19 judges in six courts have been reviewing it for more than 15 years. “The Congress will pursue this, if we have to hold him in contempt of Congress,” Congressman DeLay said last week. “We will do everything to enforce the power and authority of the Congress and no little judge sitting in a state district court in Florida is going to usurp the authority of Congress.”
But other conservatives are crying foul, saying that the law casts aside their federalist principles. “The bill itself does not create any new substantive rights,” said Harvard Professor Charles Fried, who was Solicitor General during the Reagan Administration. “What they gain is delay and publicity, and a terrible, disgraceful interference in what is a personal tragedy.”
Many Americans agree. In an ABC News poll, 70 percent of Americans said that it is “inappropriate for Congress to get involved” in the case, including 58 percent who say they feel “strongly” opposed.
On the other hand, it will be interesting to see if the Schiavo legislation will prove to be a bellweather of yet more attacks on the power of courts. The new world of cable, blogs, and talk radio make it easier than ever to cobble together instant political pressure campaigns–and courts will always be popular whipping boys, since judges rarely fight back in the political arena.
And it’s not going to stop any time soon. The right has found that ranting about “unelected judges” scores political points with their base and they aren’t about to give it up.