March 30, 2006
Checks, Balances
Steve Vladeck is suspicious of S. 2468, another Schiavo-style bill that would give automatic standing and jurisdiction and expedited review to those wishing to challenge the constitutionality of the NSA wiretap program. He leaves aside the constitutionality of the law, so I will too.
Steve's concern is that it is:
pernicious... for Congress to effectively tell the Supreme Court that it needs to quickly decide a specific legal question as it is for Congress to effectively tell the Supreme Court that it can't decide a specific legal question. The key point, overly simplistic though it may be, is that the Court's authority over its own docket serves as an important institutional check on Congress's ability to control the Court.
I guess I agree and disagree. It seems to me that on the whole the Court's ability in the 20th century to control which cases it wishes to decide has been healthy, allowing the Court to avoid taking cases it thinks it will make a hash out of, to step aside of various politically sensitive issues, and to avoid wasting time on legal issues that really don't need further guidance from on high.
All the same, I see no reason that the Court's control over itself should go entirely unchecked. Because we only give Congress the power to punish Supreme Court Justices in extreme circumstances (at least until Sai Prakash gets his way) it makes perfect sense to give them a bit of up-front control over the issues the Court confronts. If we the people are desperate for a non-political resolution to an important controversy, and if that controversy is one fairly within the Court's potential jurisdiction under Article III, why shouldn't the Court-- which serves us, not itself, in the end-- be forced to help us out?
Just as the Court's "rule of four" allows a minority of Justices to force the majority to at least briefly consider a question of law that the majority might rather duck, it seems to me that having a regime where Congress can also put issues on the Court's plate even if some Justices would rather avoid the problem acts as a very valuable check on a very powerful institution. Checks and balances go both ways.
So I agree with Steve that agenda-setting power is important, and that Congress's decisions to take control of the agenda in individual cases to some extent checks the power of the Supreme Court. But what's so bad about that? [Again, I bracket the constitutionality of these types of jurisdictional bills. Obviously what is desirable but unconstitutional is still unconstitutional.]
UPDATE: I erroneously described this bill as being "Schiavo-style", when as Marty Lederman persuasively demonstrates, there are important structural and constitutional differences between the two. At any rate, my broader point, that Congressional monkeying with Supreme Court jurisdiction is to some extent healthy, stands. Comments (10)
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