They're Trying to Do It: Dems Pass Bill to Pack the Supreme Court. Here Are the Details.

They want to do it. It’s not a secret. Democrats, upset that we’ve flipped the Supreme Court, now want to destroy the third branch of government.

that does not mean it continues to have jurisdiction over them once they are established. At least, not to me.

To me, when people say that the Constitution is "not a suicide pact," they mean that anything that can be enacted by one Congress can be undone by a future Congress. It's been a long-standing tenet that one Congress cannot bind a future Congress, that is, Congress cannot pass a law saying that the law is irrevocable.

The only way to "bind" future Congresses is by amendment, but even amendments can be repealed by future amendments. However, it's the states that ratify amendments, not Congress.

Congress has never abolished an inferior court, but most scholars believe that it has the power to do so. I would think that realigning the courts would be a more likely action. Still, whatever Congress does must satisfy the "necessary and proper" clause in Article I Section 8:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Congress would have to show that abolishing a court is "necessary and proper" in the current circumstances, and does not violate other powers in the Constitution. Conversely, Congress would have to show that any new encumbrances or constraints are also necessary and proper and also don't violate other powers granted in the Constitution.

-PJ

I must not have explained myself clearly. As I said, I think it's implied that Congress could 'disestablish' a court if they can establish one. But that is not the same as having 'jurisdiction' over the court. It's like confirming a nomination to the Supreme Court. Congress has that power, but once a Justice is on the Supreme Court, Congress only has the power of impeachment of individual justices. They can't dictate that the lower courts do the sorts of things that were being discussed any more than they can dictate that the Supreme Court justices do (or don't do) something except through impeachment.

I think it's interesting that the Supreme Court has no real power. Its power is only through influence. At times (Andrew Jackson famously) a President has flatly ignored the Supreme Court. Biden has done it on Student Loan reassignment to taxpaers. Several local/circuit courts and local/state governments are ignoring the Supreme Court decision on the Second Amendment.

The reason that seems relevant is because it's possible that some or all of those 'rules' might become set in the public perception enough that they become de facto law even if the Constitution process is not followed.

That is because - ultimately - "We, the People" determine our laws. We have accepted the regulatory power of bureaucrats despite the clear words of the Constitution. We have accepted judge-made law at all levels despite the clear words of the Constitution. And that means anything might happen.

I happen to be a strict Constitutionalist. If I had the power, I would require that we go back to what it says as fully as possible - recognizing that some words, like, "the Press", have changed since the Constituion was ratified and need to be understood as "We, the People" would understand them currently. Today's "We, the People" would clearly put electronic media under the umbrella of the word, "Press." But with the exception of development due to evolving technology, I would interpret the Constitution literally. That's why I'm not sure I agree that Congress has 'jurisdiction' over the lower courts after they are established.

To me, "jurisdiction over the court" means that Congress can do more than just establish the court. It can also put limits on it by restricting the subjects that the courts have jurisdiction over. Congress can pass new Judiciary Acts that change the nature of the courts if they wish.

I do not mean that Congress polices the Courts, but I do mean that they can change the nature of courts to limit or redistribute subject matter to other courts.

Recall, too, that there are Article I courts and Article III courts and Congress has jurisdiction over both of them.

See this article from the Heritage Foundation's Guide to the Constitution: Inferior Courts

Excerpt:

Some commentaries and judicial opinions have maintained that the Inferior Courts Clause of Article I implies congressional discretion to determine how much of the subject-matter jurisdiction authorized by Article III should actually be vested in federal courts. The Framers, however, specified in the Constitution itself the subject-matter extent of “the judicial Power of the United States” and directed in mandatory language that it “shall be vested” in the national judiciary (to consist of the one “supreme” and whatever “inferior” courts Congress might establish). Indeed, the Framers specifically voted down a succession of proposals that would have empowered Congress to exclude subject matters from the inferior courts; with regard to the “supreme” court, though, they included the Appellate Jurisdiction Clause, so that if Congress did create “inferior” courts, these could be given “final jurisdiction in many cases,” as Madison had urged.
Yet the Necessary and Proper Clause (Article I, Section 8, Clause18) gave Congress a discretion to distribute jurisdiction among whatever courts it established. Barely a week before finalizing the scope of subject-matter jurisdiction, the delegates had approved the Necessary and Proper Clause, which the Committee of Detail had devised, in part, for the very purpose of empowering Congress to organize the judicial branch. It must have been obvious that, if infe-rior tribunals were created at all, this Necessary and Proper Clause would enable Congress to dis-tribute the jurisdiction prescribed by Article III without diminishing the collective competence of the federal judiciary as a whole. It logically follows that Congress may constitute specialized tribunals for admiralty, bankruptcy, claims, tax, or diversity cases, for example, so long as it makes one or another federal tribunal available for each subject matter on the Article III list...
Congress’s power to organize the judicial branch goes beyond constituting inferior courts and distributing the Article III subject-matter jurisdiction. Congress also may designate some courts for trials, others for appeals, and (if it chooses) some for both; it may facilitate, restrict, or preclude appellate review, and prescribe its procedural course; and it may legislate rules of evidence and practice.

-PJ

It can also put limits on it by restricting the subjects that the courts have jurisdiction over.

Agree completely. This is clearly part of the power to 'ordain' a court. They could, for example, decide that all civil cases would be tried in one 'branch' of courts, while all criminal cases could be tried in another.

To get back to the topic of the original posting, though, a lot of that was based on review of the court decisions by Congress, with the possible end of overturning the decisions. That is part of a post-decision review, not part of setting up the courts in the first place, which is what I think the Constitution says Congress can do.

The most important case in Federal law and the jurisdiction of the courts is Marbury v. Madison. In it, the Supreme Court overturned a law of Congress as incompatible with the Constitution. I think this was right, and correct for the Supreme Court to do.

But the critical aspect of that decision is that the Supreme Court said "No" on an act of Congress. They did not dictate a specific answer. To do that (such as the now-defunct Roe v. Wade) is always wrong.

So, setting up the inferior courts including defining what jurisdiction each has is clearly a Constitutional authority granted to Congress. Post-decision review on any court, Supreme or inferior, is not an authority granted to Congress - except in the long-term aspect of not funding the Court, etc.

As far as some of the things the Dhimms want, such as review of Supreme Court Justice tax returns, I always hold that anything that can be done to private citizens can be done to any and all government (at any level) employees. If Congress can review *my* tax return, they should be able to review those of government employees (including all three branches). Make a general law that says all government employees need to publish their tax returns, and the justices will need to comply also (as well as all members of Congress). Limiting it to a specific branch (particularly Judicial or Executive) or even to specific employees within the branch (Supreme Court justices or the President) does fall under the bill of attainder prohibition.

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