The House on Thursday passed the Marriage Protection Act (H.R. 3313), a short bill that seeks to bar the Supreme Court from reviewing the Defense of Marriage Act, thereby guaranteeing that no state could ever be forced to recognize gay marriages formalized in another state.
This couldn’t possibly be consitutional, right? After all, the US Constitution reads in Section 2 that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States…”. However, Clause 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.
Can Congress really pass a law that the Supreme Court can’t review? This Plastic post cites this FindLaw article that discusses the issue.
There are varying points of view on the limits of the Supreme Court’s jusrisdiction and Congress’ ability to limit it, but there are precedents for “jurisdiction stripping”: in Ex parte McCardle, Congress acted explicitly, and over the President’s veto, to eliminate the Supreme Court’s appelate jurisdiction because it feared the Court’s decision. Also, as discussed in this Washington Times article, as recently as 2002, Congress “..passed legislation pushed by Senate Minority Leader Tom Daschle, South Dakota Democrat, that prohibited federal courts from hearing lawsuits challenging brush clearing in the Black Hills of South Dakota.”
All this makes it seem entirely possible that Congress can indeed forbid the Supreme Court from reviewing certain pieces of legislation.
Argh!