Congressional conservatives are gearing up this session to do something they have dreamed about but have never been able to achieve: strip the federal courts, including the Supreme Court, of power over the big-three social issues of busing, abortion and school prayer.
They plan to fight early and hard, their confidence reinforced by the conservative thrust of the November election. Opponents concede it will be harder than ever to fend them off.
They think they can block the conservatives, but if they cannot and such legislation is passed, liberals say the result will be a drastic change in the American legal system. The immediate impact would be that only state courts could review these issues and each could go its own way. Half the states might forbid voluntary school prayer, for example, and half might permit it.
The more radical change would be that the Supreme Court would be replaced as the final interpreter of the Constitution, a privilege it won in 1803 and one that has made it the most powerful court in the world.
If the court upheld Congress' restrictions on its power to review constitutional questions, liberals say, the justices would be pushing a self-destruct button. If Congress can remove its authority over school prayer, it could remove its authority over almost any other social issue.
There will be other approaches to the prayer, busing and abortion issues, such as constitutional amendment proposals and riders restricting Justice Department spending for school busing cases and resolutions expressing the sense of Congress.
But the jurisdictional restrictions on the courts are most feared by opponents. "We view the threat of this legislation as a serious one," said American Civil Liberties Union lobbyist David Landau.
The conservtive movement got its steam from three Supreme Court actions the last 20 years that aroused widespread protest. In 1973, the justices said it was a violation of a woman's constitutional right to privacy to deny her an abortion. In the late '60s and '70s, the court sanctioned extensive busing of school children to achieve racial balance. In 1962, the justices voted 6 to 1 against state-sponsored prayers in public schols, voluntary or otherwise. It was an unconstitutional establishment of religion, the court ruled.
"When the power, prestige and financial support of government is placed behind a particular religious belief," Justice Hugo Black wrote, "the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain."
Last March, Massachusetts' highest court reminded conservatives of that ruling when it invalidated a state law permitting voluntary morning prayer in public school classrooms.
The effort to do something about the school prayer decision is expected to get the farthest this session. Sen. Jesse Helms (R-N.C.) introduced legislation in the last session to remove the federal court's jurisdiction over voluntary school prayer. It passed the Senate but got held up in the liberally led House Judiciary Committee. It died there, but only after falling 32 signatures short of the majority necessary to bring it to the floor.
Helms will introduce the legislation again this year and another battle is considered likely. "We will go in early and go in hard," said Helms legislative assistant Carl Anderson. "We think there's been a conservative shift in the House of at least 30 seats."
The conservative thrust of November's election results, he said, may bring even more on board. "They're all politicians," Anderson said of members who opposed the measure last year. "Some of these things might have been seen as a fluke before but now it's a question of how long they want to hit their heads against it."
Anderson and other conservatives said similar initiatives can be expected on busing and abortion and, if the Supreme Court invalidates the all-male draft registrations, on the draft.
There are few limits to Congress' authority restricting federal court jurisdiction where constitutional matters are not involved. Where they are -- such in the school prayer controversy, which turns on the First Amendment -- it is another matter.
Conservatives cite a Reconstruction-era Supreme Court opinion (the McCardle case) in defense of their proposal's constitutionality. The Supreme Court in 1868 accepted for review the appeal of a southern newspaper editor being held for trial by a military commission for anti-Reconstruction articles he had written. Three days after the court accepted the case, Congress revoked its jurisdiction to hear it.
The court ultimately held unanimously that when Congress revoked its jurisdiction, it was left powerless to do anything and it dismissed McCardle's appeal. Though later cases somewhat modified the ruling, it remains the clearest precedent.
"There's no argument about what the court has said," according to Notre Dame law professor Charles Rice, who testified last year for Helms' legislation. "Congress has the power to take away the courts' appellate jurisdiction."
(The Constitution says the Supreme Court "shall have appellate jurisdiction . . . with such exceptions and under such regulations as the Congress shall make.")
Others note the decision is more than 100 years old and believe the court could not uphold the Helms proposition now. "It would have implications that reach far beyond school prayer," said Rep. Robert Kastenmeier (D-Wis.), whose Judiciary subcommittee bottled up the legislation last year. "It reaches every other social issue."