What exactly do you think the supreme court’s job even is? You seem to have it exactly backwards. The framers spent enormous amounts of time and ink creating this system of separation of powers. Obviously it’s the job of the Supreme Court to police that. Much more so than finding new “rights” in emanations from penumbras.
If the Supreme Court continues to get ever more partisan, I wonder if there will ever be a challenge to Marbury v. Madison. Certainly Congress has the power to strip jurisdiction from the court for anything that isn't covered by Article III. They may not have the will, though, given the deep partisan divide and evenly split party representation.
> I wonder if there will ever be a challenge to Marbury v. Madison.
An excellent question. Marbury isn't itself so much a problem as how courts — and the All-Writs Act — have implemented the basic principle. But people have gone along with expansive judicial review for two centuries now, so it's pretty much locked in as "how things are done."
Congress could still limit the reach of Marbury without a constitutional amendment, I think: Under the Exceptions and Regulations Clause, Congress could pass a law saying, for example, some or all of the following:
1. Only SCOTUS has the power to declare an act of Congress (and/or a federal regulation) unconstitutional; a lower court's declaration of unconstitutionality is simply an advisory opinion that has the effect of putting the case in question on hold. (The latter part would need more thought as to the operational details.)
2. A SCOTUS declaration of unconstitutionality has no effect unless agreed to by at least a 7-2 vote.
3. A SCOTUS declaration of unconstitutionality can be overridden by, say, a 3/5 vote of each of the House and Senate, subject to the usual rules about presidential vetoes and pocket vetoes.
Is Congress likely to do any of the foregoing? Probably not — but there might be at least some bipartisan support for cautiously shifting more power back to the elected political branches.
I’m not sure Congress can regulate the Supreme Court’s voting rules, but I agree with your first point. We should’ve done that during the Warren court and stripped the Court of jurisdiction to challenge law on social and moral issues.
> We should’ve done that during the Warren court and stripped the Court of jurisdiction to challenge law on social and moral issues.
Without the Warren Court's decisions in Brown v. Board or Cooper v. Aaron ("separate but equal" schools), we likely would have had even more race-related social upheaval in the 60s than we actually did. Robert Caro's books on LBJ recount how he (LBJ) had to work very hard and skillfully to get civil- and voting-rights legislation past decades-long Southern congressional blockades — Southern committee chairman, plus Senate filibusters — and even then it was a near-run thing.
Without SCOTUS- and Fifth-Circuit intervention — back then, the "Mighty Fifth" was far more liberal than today — desegregation would have taken years longer, maybe even decades. The race riots and other violence we saw in the 60s (which I remember very well from childhood, including living in a Washington D.C. suburb during the riots after MLK's assassination) would likely have been even worse.
> I’m not sure Congress can regulate the Supreme Court’s voting rules
For its internal purposes the Court can certainly make any voting rules it wants. But I'd submit that Congress has the power (under the Exceptions and Regulations Clause) to limit what external effect is to be given to Court votes that don't rise to a congressionally-specified threshold.
> Certainly Congress has the power to strip jurisdiction from the court for anything that isn't covered by Article III.
You don't need the "for anything ...." part of your sentence: The Exceptions and Regulations Clause is part of Article III and explicitly gives Congress the power to limit the Supreme Court's appellate jurisdiction in pretty much all (federal) cases:
<quote>
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. [That is, the Supreme Court is the trial court; in those cases, SCOTUS practice is to appoint a "special master" — typically, a former SCOTUS clerk — to hear the case and submit findings of fact and conclusions of law for the Court's consideration.]
In all the other Cases before mentioned [i.e., all cases where federal courts have any jurisdiction at all], 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.
</quote>
(Emphasis and extra paragraphing added.)
Moreover, because all lower (federal) courts are creatures of Congress from the get-go, there's no reason to think Congress can't limit the jurisdiction of those courts. Congress has repeatedly done this in the past by creating specialty courts, e.g., the Court of Federal Claims and the former Court of Customs and Patent Appeals (merged into the Federal Circuit in 1982).
The constitution sets forth the structure of government with great specificity in a legal document. It’s quite reasonable to conclude that the Supreme Court, which is expressly conferred the “judicial power,” can decide compliance with the terms of that legal document. It’s not enumerated but it’s within the scope of the architecture of the constitution. Not everything needs to be “enumerated.” What is an “unreasonable search or seizure,” what is “cruel and unusual punishment?” The Supreme Court can decide that.
That’s completely different from “emanations from penumbras”—which is just pulling stuff out of your butt. Nothing in the Constitution makes the Supreme Court an Iran-style Guardian Council, the final arbiter on social and moral issues.
It’s no different than any other written legal document. I have a lease agreement with Toyota. That document can be interpreted—it doesn’t need to expressly enumerate everything. But that doesn’t mean you can read it to govern say how I raise my children. Just because everything doesn’t need to be enumerated doesn’t mean that some things aren’t outside the scope of the document.
I think it's farcical that this Court will hold the other branches to the strictly enumerated powers granted by the Constitution and yet restrains itself in no similar manner. "Emanations and penumbras" are just a mid-century aristocratic articulation of the idea that if you exercise multiple protected rights simultaneously, it follows that the sum of that conduct would also be constitutionally protected. People may disagree with the verbiage, or the outcome, but it is in fact quite easy to understand.
The Court isn’t holding Congress to “strictly enumerated powers.” The constitution doesn’t say anything about the federal government being able to enact environmental legislation, but the Supreme Court has widely interpreted the Commerce Clause to allow it.
The non-delegation cases are about whether the elaborate and explicit separation of powers in the Constitution even means anything at all. The notion that you can have executive agencies making “regulations” with the force of law, and adjudicating cases through administrative judges, is already inconsistent with the idea of having three separate branches of government with clearly differentiated powers. The only question is whether that constitutional separation is mostly meaningless, or completely meaningless.
And the “emanations and penumbras” has nothing to do with “multiple protected rights.” If you are carrying a gun while protesting, that’s covered by the second and first amendments and you don’t need anything on top of that. “Emanations and penumbras” is a way to pull “rights” out of your ass that aren’t in the document. It’s classic mid-20th century white guy pontificating.
Isn't it implied by the fact that the Constitution provides mechanisms to amend the Constitution? Why even have these mechanisms if an ordinary law couldn't be struck down on the grounds that the law is unconstitutional?
