Later that year, the House considered a similar bill, the Pledge Protection Act (PPA), sponsored by Rep. Todd Akin, a Missouri Republican. It would strip the lower federal courts of all jurisdiction, and the Supreme Court of appellate jurisdiction, to hear cases challenging the Pledge of Allegiance. It won 247 to 173, with the support of 34 Democrats.
When the House considered PPA again last week, the bill won 260 to 167. This time, 39 Democrats voted for it.
The bill's leading opponents have been reduced to half-hearted arguments that court-stripping is unconstitutional. "Let us be clear," said House Democratic Whip Steny Hoyer of Maryland. "This bill is unnecessary and, I believe, probably unconstitutional."
But that claim has already been demolished by Chief Justice John Roberts.
In the 1980s, when he was an assistant to then-Attorney General William French Smith, Roberts was ordered to write a memo advocating the constitutionality of court-stripping legislation. He produced a tour de force of constitutional analysis, pointing to "a long and consistent line of judicial opinions reading the exceptions clause as meaning exactly what it says."
The first opinion was written in 1796 by Chief Justice Oliver Ellsworth, a George Washington appointee. "The appellate jurisdiction is … qualified, in as much as it is given 'with such exceptions, and under such regulations, as Congress shall make,'" wrote Ellsworth. "Here, then, is the ground, and the only ground, on which we can sustain an appeal. If Congress has provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it."
A century later, in Colorado Central Consolidated Mining Co. v. Turck, the court said: "It has been held in an uninterrupted series of decisions that this court exercises appellate jurisdiction only in accordance with the acts of Congress upon the subject."
The Supreme Court will only have the power to change the meaning of marriage, or ban the Pledge in schools, if Congress fails to enact the Marriage Protection Act and the Pledge Protection Act.
It is time to re-balance the constitutional machinery. Make both bills law this year.