When Congress Tampers with the Court’s Independence

By a lopsided margin, the U.S. House has approved a bill to prevent the Supreme Court from deciding whether the words "under God" should be removed from the Pledge of Allegiance. It's extremely rare for Congress to tamper with the Court's appellate jurisdiction. In fact, never before has such a drastic action been considered for so trivial a matter.

The case involving the Pledge attracted much attention two years ago when a federal appeals court ruled that the phrase "under God" violated the separation of church and state and interfered with a father's control of his child's religious education. The Supreme Court ruled unanimously in June that the father lacked legal "standing" to bring the lawsuit. It returned the case to the lower courts without deciding its merits.

Then, on Sept. 23, the House did something extraordinary. Rather than take a chance that the Supreme Court would get the case again and ban "under God" from the Pledge, it voted 247-173 to use the authority given to it under Article III of the Constitution to eliminate the case from the appellate jurisdiction of the federal courts.

The great irony is that the use of this power potentially undermines the viability of the Constitution. Once Congress goes down that road, it doesn't have to stop with the Pledge. It can remove cases dealing with abortion, affirmative action, the rights of criminal defendants or other areas of the law.

The House's action isn't unprecedented. It has deep roots. The founders knew they were creating a potentially powerful federal judiciary, with judges appointed for life and with the capacity to declare invalid the acts of state legislatures and state courts, as well as federal laws.

So to assure the American people that the federal courts would not become oppressive, the framers of the Constitution argued that Congress had the authority to remove all but a few cases from Supreme Court consideration.

John Marshall, who would become chief justice and do more than anyone to make the Supreme Court a co-equal branch of government, reminded delegates at the 1788 Virginia ratifying convention that "these exceptions [to the appellate jurisdiction of the Supreme Court] certainly go as far as the legislature may think proper, for the interest and liberty of the people."

When Congress takes away cases because of how they might be decided, it damages the principles of separation of powers and checks and balances. It also interferes with the ability of judges to adapt the law to changing conditions and thus avoid a constitutional confrontation with Congress.

The most explicit exercise of such congressional authority was at the end of the Civil War. Then, the clash between Congress and the courts involved potentially grave consequences for the nation, unlike the current controversy over the Pledge.

After military authorities arrested a Mississippi newspaper editor for publishing editorials that allegedly incited insurrection, Congress worried that the Supreme Court would use the case to declare the Reconstruction program for protecting newly freed slaves and readmitting Southern states to be unconstitutional. The editor argued that because civilian courts were available, he could not be tried by the military.

After the Court heard arguments, but before it handed down its decision, Congress passed a law over a presidential veto denying the Court the authority to rule in the case. In 1868, the Court dismissed the editor's appeal because it reluctantly agreed that Congress had removed the case from its jurisdiction.

In the Pledge of Allegiance vote, House members who support the measure cannot convincingly argue that removal of "under God" is as important as the potential collapse of the Reconstruction program or that it justifies stripping the federal courts of the authority to hear the case.

The Pledge controversy comes at a time in the nation's history when fear of terrorism has tested our commitment to preserving the Bill of Rights. Congress could take advantage of that anxiety and stop the federal courts from hearing cases involving the rights of terrorism suspects and those who protest government policies.

A generation ago, during the Red Scare of the 1950s, Congress so resented the constitutional protections granted to unpopular individuals that it came within one vote of preventing the Supreme Court from hearing cases dealing with government employees suspected of disloyalty. Conservatives in Congress objected to decisions of the Warren Court extending First Amendment rights to political dissidents and those accused of subversive activities.

With the Pledge vote, the House has shown an appalling lack of appreciation for the role of an independent federal court system. The Senate should refuse to go along.

We rely on federal judges to protect individual rights, especially when the persons involved promote controversial ideas or are considered a threat to the nation's security. They cannot perform that indispensable function if Congress removes the power to decide such cases. Although the Constitution gives Congress that authority, it should know better than to use it.

Richard Labunski is a journalism professor at the University of Kentucky and author of "The Second Constitutional Convention" (2000).