How the Founders Intended to Check the Supreme Court’s Power
“Deeply ingrained in the Constitution genius are checks and balances. The president can veto legislation; Congress can override a veto. The Courts can invalidate an act of Congress or the president. And the executive and legislative branches enjoy checks against the judiciary.
The Constitution called for the establishment of a Supreme Court and lower federal courts. It left it to Congress and the president to decide just what shape the judiciary would take. They did so in the Judiciary Act of 1789, which created district courts, circuit (or appellate) courts, and a six-member Supreme Court. Over the years, Congress, with the president’s approval, has increased and decreased the number of justices on the Supreme Court, created and changed the jurisdiction of district and circuit courts, and adjusted the number of federal judges.
By now, it’s well-known that Congress can change the size, and thus the composition, of the Supreme Court by simple legislation. Court-packing, as it’s been called since 1937, when President Franklin Roosevelt unsuccessfully attempted to circumvent a hostile court by expanding its membership, is a deeply controversial practice.
Critically, but less widely understood, the Constitution also grants Congress the power to strip the Supreme Court of its jurisdiction over specific matters. Article III, Section 2 reads: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, 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.”
At least one founder was clear about the intent of Section 2. Hamilton wrote, “From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.”
Defenders of judicial review appropriately point to Federalist 78 as evidence that Hamilton believed the Constitution contained an implicit power of judicial review. But he also believed that Congress could adjust the court’s jurisdiction.
In practice, so few instances exist of jurisdictional stripping that its meaning and scope are open to debate. But it has happened. In the late 1860s, federal authorities jailed William McCardle, a newspaper editor, under provisions of the 1867 Military Reconstruction Act. McCardle sued for his freedom, citing the Habeas Corpus Act of 1867. Congress denied the justices jurisdiction in the matter, and the court conceded that it was powerless to act.
Writing several decades later, Justice Felix Frankfurter, an FDR appointee, noted that “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.” Chief Justice Warren Burger, whom President Richard Nixon placed on the bench, agreed, writing that Congress could pass simple legislation “limiting or prohibiting judicial review of its directives.”
No less than the executive and legislative branches, the judiciary — particularly, the Supreme Court — is limited in just how much power it can exert. But only if Congress and the president exercise their right to check its power.”
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“A world in which a highly partisan and increasingly unpopular Supreme Court found its jurisdiction routinely boxed out by Congress is hardly a recipe for political stability. With every change of control, a new Congress and president could overturn precedent and lock the court out of its intended role as a constitutional arbiter. Moreover, there would likely be widespread confusion over just what might happen, were Congress to strip the court of its jurisdiction over, say, the state legislative doctrine. Would it then be left to lower courts to adjudicate cases? And what if they disagreed?
Conversely, today’s court majority claims largely unchecked power.
John Marshall, the chief justice who first asserted the power of judicial review, was “notably cautious in dealing with cases that might excite Republican or popular sensibilities,” noted historian Charles Sellers. He sought consensus among the associate justices, Federalists and Republicans alike, operated with “restraint” (Sellers) and led with “lax, lounging manners” (Thomas Jefferson) rather than cutting partisanship. He did so because he understood that the court was a new institution, and were it to lose popular support, the powers it claimed for itself would become either unenforceable, or subject to congressional restraint.
Ultimately, it is the responsibility and prerogative of the executive and legislative branches to encourage greater restraint and humility on the part of the judiciary.
Judicial review is well-rooted in American political tradition. But so are checks and balances. To save the Supreme Court from itself, Congress might first have to shrink it.”