Congress and the nation are now facing an attack on the vital role and nature of the Supreme Court the likes of which has not been seen since FDR's court-packing plan. The current attack is even more serious because it strikes at the independence and intergrity of the Supreme Court's most basic function -- to review the constitutionality of state laws ans actions. This current assault is embodied in 13 bills pending in the House, which are designed to eliminate the jurisdiction of the federal courts to consider any cases that relate to state laws on prayer in public schools, abortion or school desegregation plans.
Bastically, the proponents of these bills are saying, "We don't like the way the federal judiciary has resolved these issues, so we're going to take away their power to make such rulings." This attitude is particularly pernicuous because it is focused on three of our most precious liberties -- the separation of religion and the state, the right to equal public education free of racial bias and a woman's right to personal liberty and privacy. The Supreme Court has been on the front lines on these issues. a
Whatever differences one may have with the court, its role, since the enactment of the Constitution has been to be the final arbiter of fundamental questions, the articulator of rights, the last best hope for the maintenance of our freedoms. It has served us well. To now cut away at the court's authority cannot be in anyone's interest.
The basic questions facing the Judiciary Committee are: Does Congress have the power to withdraw federal court juridiction over constitutional rights cases? And, if so are there good policy reasons to do so? I believe that the answer to both of these questions is no.
At least two arguments suggest that the legislation is constitutionally flawed. First, there is the "essential role" argument, which asserts that Congress does indeed have power to regulate the court's jurisdiction, but not to the degree that such regulation impinges on the essential role of the court to maintain the supremacy of the Constitution reviewing the constitutionality of state laws and actions. Of importance is a relevant due process/equal protection issue. An admitted premise of this legislation is that by relying on the state courts to determine final constitutional law, persons who are similarly situated and are asserting the same constitutional right may well be treated differently in different jurisdictions, violating the tenet of equal protection under the law. The Supreme Court would, for the first time, have no authority to rectify conflicting state court judgements.
There are also policy objections to the legislation. First, the law is not a static text, but an evolving set of principles, ideas and judgements. An end of Supreme Court jurisdiction for any of these types of case would freeze federal constitutional law in the area, eliminating the possibility of aggrieved citizens' seeking further development of the law. To cut off a full hearing of important issues cannot be a reasonable public policy goal.
Also, Congress must not offend or jeopardize the legitimate prerogatives of the other two equal branches of government. Chilling the ability of the federal courts to deal with constutional questions suggests that the judicial branch is not competent to consider such questions.
Further, as the Carter Justice Department suggested last year, this legislation would run afoul of the public interest in affording a definitive and nationwide resolution of issues of constitutional magnitude.
It is no doubt healthful to review the nature and role of our nation's institutions. However, to attempt to emasculate the vital function of an institution as fundamental to our liberty as the federal judiciary can have only disastrous consequences.