- The Washington Times - Saturday, May 22, 2004

Rep. Ron Lewis, Kentucky Republican, has just introduced a bill to allow congressional override of Supreme Court decisions. Trying to curb the Supreme Court’s power is about as hopeless as the fate of Sisyphus doomed for eternity to roll up a steep hill a huge stone that tumbles back down when he reaches the top. Then the whole process starts once more. Will Mr. Lewis be a modern Sisyphus?

Mr. Lewis’ bill is doomed by the cowardice of his congressional colleagues who talk big about judicial tyranny but do nothing about it even though the U.S. Constitution gives Congress pre-eminent power over the court.

There is no need for Mr. Lewis’s bill anymore than there is need for a constitutional amendment once proposed to override decisions of the Supreme Court and lower courts.

By a simple majority vote in both Houses, Congress under Article III, Section 2, can curtail the Supreme Court’s appellate jurisdiction. In other words, Congress could by majority vote tell the court it may not rule, say, on abortion. This is the language of the Constitution: “The Supreme Court shall have appellate jurisdiction, both as to law and to fact, with such exceptions, and under such regulations as the Congress shall make.” What could be clearer?

The writers of the Constitution did not intend to give the Supreme Court or the lower courts the power they have assumed almost from the beginning of the Republic. The Founding Fathers were concerned about a runaway judiciary.

In fact, in the “Federalist Papers,” Alexander Hamilton wrote that the powers of Congress provide “a complete security [against] the danger of judiciary encroachments on the legislative authority.” Hamilton was anticipating the Supreme Court might become another legislature with this difference: its members have life tenure.

Louis D. Brandeis, a liberal justice, in 1924 said the Supreme Court had converted judicial review into the power of “a super-legislature.”

Here is a list of other congressional powers over the Supreme Court as enacted by the Founding Fathers:

(1) Congress decides on the appropriation for the judicial branch, including salaries. If Congress says no to a requested salary increase, there is nothing the court can do about it.

(2) The president appoints the justices but they must be confirmed by the Senate.

(3) Congress has the power to define the jurisdiction of the lower federal courts because the Constitution grants Congress the right “to ordain and establish such courts.” Nowhere in the Constitution, directly or implicitly, are federal judges granted the right to manage schools, hospitals, prisons and other institutions.

(4) The House may impeach and the Senate may try and remove federal judges right up to the Supreme Court. There is nothing the courts can do about it because neither the chief executive nor the Supreme Court can interfere with the impeachment powers of Congress.

(5) Congress is empowered to decide how many Supreme Court justices there shall be.

The distinguished legal scholar the late Professor Herbert Wechsler has said, “Congress has the power by enactment of a statute to strike at what it deems judicial excess.” And yet Congress has rarely acted on its undoubted privilege.

I hope Mr. Lewis will buttonhole his colleagues and ask them why they have done nothing about judicial excess. Mr. Lewis should ask: “With all these powers over the courts granted by the Constitution to House and Senate, why do our 535 representatives sit on their hands?

I have an answer: The U.S. Supreme Court and the lower courts, state and federal, have gotten away with their power grab because of simple cowardice on the part of the Congress in exercising its constitutional power over the Supreme Court.

In this era of judicial supremacy, it is forgotten the Founding Fathers made Congress — not the president, not the Supreme Court — the ultimate power. It is no accident that Article I of the Constitution is Congress, Article II, the presidency and last, Article III, the Supreme Court.

The Supreme Court now exercises unrestricted right over its appellate jurisdiction with the result that legal opinions are, as Justice Antonin Scalia has said, “rendered not on the basis of what the Constitution originally meant, but on the basis of what the judges currently thought it desirable for it to mean.”

I wish Mr. Lewis would get his fellow lawmakers to exercise the powers granted them by the Founding Fathers and the U.S. Constitution over power-grabbing federal courts.

Arnold Beichman, a Hoover Institution research fellow, is author of “Anti-American Myths: Their Causes and Consequences.”

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