One senators' line of questioning for Judge Samuel A. Alito that lacked follow-up concerned the power of Congress to define the jurisdiction of federal courts.
Anybody who has read the U.S. Constitution knows that Article III, Section 2 clearly states: "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."
Alito skillfully avoided substantive responses to questions that in the future might come before the high court, but he ducked the opportunity to explain his views on jurisdiction by calling it an academic debate on which scholars are divided. He was vague on whether he was saying that the Article III section itself can be parsed into conflicting views, or whether the division he referred to is about the wisdom of using Article III power.
Matters of policy are issues for Congress to decide, not the Supreme Court. The House made a policy determination in 2004 when it passed a bill by Todd Akin, R-Mo., to make the Pledge of Allegiance immune to court challenges. It was a policy decision when the House did the same thing for Indiana Republican John Hostettler's 2004 Defense of Marriage Act.
Those who defend judicial supremacy try to disparage these bills as "court-stripping," and insist they are not allowed. But their analysis usually boils down to the policy argument that Congress should not limit court jurisdiction, rather than saying that Congress cannot.
In fact, both the present and the immediate past Chief Justices of the Supreme Court - John Roberts and William Rehnquist, respectively - have recognized that Article III gives Congress the power to define and limit the jurisdiction of all federal courts, including the Supreme Court.
When Rehnquist issued his last annual report, he spent several pages discussing criticism of the courts and discouraging Congress from using its constitutional power to impeach judges. He then included this sentence: "There were several bills introduced in the last Congress that would limit the jurisdiction of the federal courts to decide constitutional challenges to certain kinds of government action."
Rehnquist didn't say such action would be unconstitutional or unwise or undeserved or out of the mainstream. He added no comment; he just left that sentence for us to construe either as an invitation to congressional action or as a warning to his associates.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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