The fight has begun. But whether or not the Democrats keep Alito off the Supreme Court, the next justice will be one nominated by George Bush. The court will move right. But a Democratic congress could act to restrict the court's power over fundamental issues such as abortion, federal environmental regulation, and civil rights. Better yet, the Democrats could use a promise of such restrictions to retake the congress in 2006.
The Constitution is clear. The founders never intended to create a democracy that was at the mercy of unelected judges. Democrats should issue a pledge that, if they gain control of congress in 2006, they will invoke their constitutional "power to make exceptions" to protect the fundamental rights of Americans and the future of our children.
Article III states that the Supreme Court "shall have appellate jurisdiction, both as to law and fact, with such Exceptions, and under such Regulations as the Congress shall make." Democrats should run on a promise to declare Roe v. Wade to be fundamental law, and to assert that the commerce clause allows federal regulation of the environment and civil rights, regardless of the decrees of the Supreme Court.
The case for such Congressional action has already been made - by winger theorists concerned about "judicial activism". As such constitutional "scholars" as Ed Meese have pointed out: "Although some respected constitutional scholars argue that Congress cannot restrict the Supreme Court's jurisdiction to the extent that it intrudes upon the Court's `core functions,' there is no question that Congress has more authority under the Constitution to act than it has recently exercised."
As Meese has pointed out, in the only case that directly addressed this issue, the Supreme Court upheld Congress's power to restrict the Court's appellate jurisdiction. In Ex Parte McCardle (1869), the Court unanimously upheld Congress's power to limit its jurisdiction, stating:
"We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words. What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction, the court cannot proceed at all in any case."
The 104th Congress displayed an encouraging willingness to assert its authority over the jurisdiction of the lower federal courts. For example, the Prison Litigation Reform Act of 1995 reduced the discretion of the federal courts to micromanage state prisons and to force the early release of prisoners. The Act also makes it more difficult for prisoners to file frivolous lawsuits. (An incredible 63,550 prisoner lawsuits were filed in federal court in 1995 alone.) Congress also passed the Effective Death Penalty Act of 1995. This Act limits the power of the federal courts to entertain endless habeas corpus appeals filed by prisoners on death row, significantly expediting the death penalty process.
Meese insists that such "encouraging" assertions of authority need not be restricted to the jurisdiction of the lower courts. Time for the wingers to face the implications of their own arguments. Democrats may have, in the past, been afraid to touch this issue for fear that a Republican congress would invoke this power to over-rule Roe v. Wade and other important decisions. But once the Scalia faction has become a majority on the court, we have nothing more to lose. The conservative justices are young and healthy. The balance will not shift for decades. A Republican congress can't take away anything the court won't take away itself.
That 1869 decision puts it well: "the power to make exceptions". Where the ideological biases of the justice cause them to forfeit their core responsibilities and use the court as a tool for their own agendas, it is time the people exercised the power the founders gave them.
And a big shout out to Edwin Meese. You gave us a lot of great porn. And now you've given us one last gift: a great idea.