"Can we tentatively set Monday, September 9?" asked Sen. Jesse Helms of Majority Leader Robert Dole a couple of months ago. He was trying to pin down a date for Senate consideration of his bill, S. 47. The meassince its introduction, would strip the Supreme Court of jurisdiction over any case involving voluntary school prayer, Bible reading or religious meetings in public schools, leaving the states free to reinstitute these practices. Sen. Dole agreed to call up the bill this week only after its author threatened to stall other, more critically needed legislation.
It's not as if school prayer has not been debated in Congress. That's been going on ever since the Supreme Court banned the practice in 1962. Only last year the Senate defeated a proposed constitutional amendment on the subject after much discussion. But Sen. Helms is not easily dissuaded. "Round one is over," he said after that vote, "but so long as I am in the U.S. Senate, there will be many more rounds to come."
This time he has abandoned the traditional constitutional amendment route because there are not 67 votes in the Senate to pass such an amendment. Instead, the senator wants to take the whole matter of school prayer away from the Supreme Court, which he believes he can accomplish by passing an ordinary bill requiring only a majority vote.
Many constitutional scholars, including 55 law school deans, believe that this kind of "court stripping statute" is not permissible since its real purpose is not to modify the responsibilities of the court but to change constitutional law. Former attorney general William French Smith agreed, and so advised the Senate Judiciary Committee when a similar bill was considered in 1982. And he went beyond the primary reason for opposing the bill to its merits: "Even if it were concluded that legislation in this area could be enacted consistent with the Constitution," he wrote, "the Department would have concerns as a policy matter about the withdrawal of a class of cases from the appellate jurisdiction of the Supreme Court . . . (because) the integrity of our system of federal law depends upon a single court of last resort having a final say on the resolution of federal questions."
If Sen. Helms succeeds in getting this bill enacted, we can expect a barrage of proposals prohibiting the court from considering cases in areas as diverse as school desegregation, abortion, church- state relations and criminal law. The Framers provided a perfectly good way to oveturn Supreme Court interpretations of the Constitution: the amendment process. Statutory shortcuts such as Sen. Helms' bill are wrong and should be rejected.