Dispatches from the Creation Wars

ACS on Court Stripping Legislation

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.


  1. #1 spyder
    March 26, 2005

    This is also one of the big worries of the environmental movement. Congressional legislation, particularly in the form of amendments to larger bills, provide significant opportunities for special interests to “run roughshod” over state and local courts and their jurisdictions in many environmental and ecological matters. This is particularly dangerous with mining and other energy extraction industries, as well as logging. The nomination of Myers is also bothersome in this regard.

  2. #2 Troy Britain
    March 26, 2005

    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.

    Well the judiciary better start fighting back. Perhaps judges not involved in cases like this could start offering themselves up to the media to help educate the public on things like the separation of powers etc..

  3. #3 Duane Smith
    March 26, 2005

    I believe that the goal of the Schiavo political sideshow (not the real human tragedy) is to demonizing the judicial system. And as Spyder said, “the judiciary better start fighting back.”

  4. #4 David S
    March 26, 2005

    The right has found that ranting about “unelected judges” scores political points with their base and they aren’t about to give it up.

    Interesting isn’t it that Judge Greer is an elected judge and was just re-elected to a six-year term.

  5. #5 raj
    March 26, 2005

    Judge Greer is not only an elected judge, he is also a Republican and, until very recently, a Southern Baptist.

    It is ironic that some people rant against unelected judges when it suits their interest. Where these same people ranting against the unelected judges on the US Supreme Court when they installed GW Bush as president? Obviously not.

  6. #6 raj
    March 26, 2005

    BTW, the irony in regards the Schiavo case is that, if the congress purported to strip the federal courts of the jurisdiction to hear issues regarding the case, the case would have stayed in the FL state courts, with the results that we have seen. The US Supreme Court may not have even had the jurisdiction to accept an appeal in the matter.

  7. #7 bethiris
    March 27, 2005

    Facts, facts, facts. They’re so inconvenient for high-minded legislators who want reason divorced from law as soon as possible.
    The piece of legislation they debated and regrettably passed mentions the name of only one person. Are they governing Terry Schiavo and have they decided to leave the rest of us alone?
    Oh, if only . . .

  8. #8 Reverend H.L. Spork
    March 28, 2005

    What I find truly bizarre with this entire painful saga is that a woman who has no control over her own body could cleave the Republican party. No other event in the past ten years has exposed the growing chasm between traditional conservatives and the Christian right more than this case.

    It was jolting, if slightly amusing, to see the both Bushes carry the flag of the pro-life movement, attacking the courts and those activist judges, until the polls came in and showed that a majority of Americans, even Christian conservatives, frowned on federal interference in what they regard as a family matter. George Jr. and Jeb dropped their flags so fast, they left dents in the sidewalk. I saw Jeb Bush on CNN recently, and he looked genuinely remorseful, muttering that he couldn’t violate a court order to save Schiavo’s life. Well, of course he could, if he knew the GOP would back him up. But even Grover Norquist openly questioned the wisdom of interfering in the case, and when Norquist talks, the GOP listens.

    Republicans can’t win with this issue. It’s hard to attack the “activist judges” ruling in this case when most of them are conservatives. Attacking a conservative-controlled Supreme Court that put G.W. Bush in office is likewise useless. They can’t go after the GOP-controlled Florida legislature either. There’s nothing left to do until Terri Schiavo finally dies, and after that, they’ll have to address the inevitable schism in their party.

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