Supreme Court of jurisdiction . The Court clearly based its decision on Congress ’ power under the exceptions clause . Chief Justice Chase began the opinion by recognizing that the appellate jurisdiction of the Court ‘ is conferred “ with such exceptions and under such regulations as Congress shall make .”’”
Quoting Chase again , Roberts added his own emphasis :
“ We are not at liberty to inquire into the motives of the legislature . We can only examine into its power under the Constitution ; and the power to make exceptions to the appellate jurisdiction of this Court is given by express words .” [ emphasis Roberts ’]
He continued his historical exposé of court-stripping with another 1869 decision , Ex parte Yerger , and then United States v . Klein ( 1872 ), Wiscart v . Dauchy ( 1796 ), Durousseau v . United States ( 1810 ), Daniels v . Railroad ( 1865 ), and The Francis Wright ( 1881 ).
In The Francis Wright , Roberts found that Chief Justice Morrison R . Waite ( whose Court oversaw the infamous 1886 “ corporate personhood ” Santa Clara County v . Southern Pacific Railroad case ) wrote for a unanimous Court , quoting him as follows :
“ Not only may whole classes of cases be kept out of the [ Supreme Court ’ s ] jurisdiction altogether , but particular classes of questions may be subjected to re-examination and review , while others are not .”
Each case strengthened the idea that Congress could simply pass a law , without even needing a super-majority , that barred the Supreme Court from ruling on a set of issues — like Reagan ’ s hot-button issues of school desegregation and abortion .
Moving toward late-19th-century decisions , Roberts quoted the Court in Colorado Central Consolidated Mining Co . v . Turck ( 1893 ):
“[ I ] t has been held in an uninterrupted series of decisions that this Court exercises appellate jurisdiction only in accordance with the acts of Congress upon the subject .”
Roberts , in his own voice , added :
“ Again , it bears emphasis that the basis for this theory is the implicit exercise by Congress of its exceptions power when it makes a limited grant of jurisdiction .”
Still building his case , Roberts jumped into 20th-century rulings , starting with National Mutual Insurance Co . v . Tidewater Transfer Co . ( 1948 ). Writing for the majority , Justice Felix Frankfurter noted in the decision :
“ 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 .”
About the 1944 Yakus v . United States case , Roberts wrote :
“ Justice Rutledge noted … that ‘ Congress has plenary power to confer or withhold jurisdiction .’”
Regarding Flast v . Cohen ( 1968 ), Roberts quoted Justice William O . Douglas , who wrote :
“[ A ] s respects our appellate jurisdiction , Congress may largely fashion it as Congress desires by reason of the express provisions of Section 2 , Article III . See Ex parte McCardle .”
In Section IV of his memo , Roberts again went back to the framing of the Constitution and brought us up to the present day , quoting another dozen or so cases that referenced , less directly , the power of Congress to exempt the Court from certain issues or decisions .
Roberts also noted that the original Judiciary Act ( which created the federal court system ) also refers to Congress ’ s power of exception , its power to forbid the Supreme Court from keeping either abortion or school desegregation legal .
Ultimately the Reagan administration didn ’ t act on Roberts ’ memo — he also built in it a case against court-stripping — because they didn ’ t have the political will or power at the time .
There wasn ’ t a nationwide sentiment that the Court was so corrupt that the nuclear option — Congress overruling it — should be pulled . After all , the precedent , once established , would forever change the balance of power between the Court and Congress , putting it back to where the Founders and Framers believed it should be .
Today , though , that sentiment has changed . The Court was so politicized by Trump and McConnell , and now by its own extremism , that its credibility is in the toilet .
Meaning this is the perfect time to revisit Roberts ’ research and regulate the Supreme Court with regard to abortion and ethics .
It ’ s time to establish an ethics standard for the Court , as well as pass a law that legalizes abortion nationwide that can ’ t be struck down by five handpicked religious fanatics .
When I first wrote about this in March , an attorney I respect tweeted at me that such a thing was impossible because the Supreme Court was above regulation by Congress .
I offer this article in rebuttal and continue to believe that Congress fully has the power to regulate the Supreme Court , even if they must assert that power within the legislation itself as Roberts suggested Reagan champion back in the 1980s .
44 x The Trial Lawyer