Jindal expressed this desire after two
monumentally flawed, discouraging, and dangerous decisions, one to ignore
the strict wording of a law in favor of an interpretation the opposite of it
infused into it by the Court, and the other to conjure up a new protected class
of individuals on the basis of their behavior not otherwise explicitly listed
in the Constitution. Both set bad precedents that empowered government while
simultaneously threatening liberty through dispensing with democratic norms.
But while Jindal’s frustration may
be understandable, the Constitution does not really provide for that solution,
unless he wishes to go through the difficult amendment process. Theoretically,
this complete neutering of the Court could happen statutorily by the powers
vested in Congress in Art. III that, while the article requires the presence of
one Supreme Court, it could set the Court’s membership currently at nine to
zero. However, it need not take such a drastic approach, for Art. III also
allows Congress to set the appellate jurisdiction of the Court beyond that
specified in the Constitution – and once before it has done that as a reaction
to a Court taking up an inflammatory case.
In 1867, disturbed by the attempt
by a newspaper publisher in unreconstructed, military-occupied Mississippi to
invoke habeas corpus under one law
permitting Court reviews of these requests after his having been jailed under another
law for writing pieces unkind to Reconstruction, Congress simply suspended the
law that had given that appellate jurisdiction to the Court. It then ruled in
1869 the action against itself constitutional, establishing that Congress could
remove jurisdiction over certain kinds of cases from the Court.
This means that if, for example, if
Jindal wished that the Court not deal with the Patient Protection and
Affordable Care Act, Congress could pass a law stripping the Court of the
ability to hear cases about this on appeal. This could lead to confusing
situations – as a result, whatever the various circuit courts of appeals ruled
in each of their 12 circuits would hold for that circuit on issues stemming
from this law – but would accomplish the purpose.
Naturally, at this time it is
likely that Democrats in the Senate might filibuster to prevent passage of such
a law, but that could be dispensed with through the “nuclear
option,” or that a simple majority of the chamber comprised of all Republicans
could vote to exempt filibusters on that subject. Yet even if it passed this
hurdle, Pres. Barack Obama
probably would veto such a bill and Republicans lack the two-thirds majorities
to overcome that.
However, the 2016 elections might
solve these problems for the GOP; certainly Jindal wants to be part of this
solution by occupying the White House. Still, even if such a law came to
fruition, it would not apply retroactively; only Constitutional amendments
mandating how the judiciary must decide on these issues could build a
fool-proof avenue by which to litigate again the questions previously taken up,
and poorly decided, by the Court from last week where these would be guaranteed
to turn out differently.
So Jindal’s thinking on this isn’t
so far out when put into a different format. But whether Republicans even can
construct majorities among themselves to alter Court jurisdictions – something that
appears could not happen for at least 19 months – much less incorporating
Democrats into attaining the supermajorities and most states’ approvals
required for Constitutional amending that would undo the damage already done,
seems far-fetched. However, righting wrongs never is easy.
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