CONGRESSIONAL POWER OVER COURTS?
Article 3, Secton 2, of the U.S. Constitution, includes a very dangerous provision:
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.
What’s to stop Congress from including a clause in every act, exempting it from Judicial Review? In fact, Congress has done this numerous times throughout the history of the Republic, sometimes for “good,” sometimes not. I consider this dangerous because Judicial Review aims to prevent Congress (and the Executive) from exceeding their Constitutional powers. Judicial Review is preferable to the means envisioned by the Framers for keeping Federal “departments” from exceeding their powers: the State Militias – in other words, Civil War! (This casts the 2nd Amendment in a new light!)
Is there no recourse from “activist judges” and “judicial supremacists”? Of course there is: Constitutional Amendment. Ideally, their rulings are based on the Constitution (or Common Law). If you amend the Constitution, their rulings must change. Some of the things conservatives seek to uphold, such as the flag, (conservative evangelical Protestant) prayer in taxpayer-funded public schools, taxpayer-funded displays of the Ten Commandments and Nativity of Christ creches, and heterosexual-limited marriage, they say are of such popularity, that they should have no difficulty in amending the Constitution in their favor, no? In such cases mere Congressional majoritarian “court-stripping” is cowardly, and does an end-run around the Constitution.
In reality, this portion of the original Constituion should be repealed by Amendment, because the potential (and historical reality) for abuse is too great.