A new opinion by Justice Sotomayor highlights one of the Court's more obscure powers—and the serious constitutional question that could arise from the justices' unwillingness to ever use it.
I’m not a lawyer, but the story here is really interesting. I find it fascinating that not everything in the law is cut and tried. There are issues that are unresolved.
> If AEDPA is constitutional even in a world in which the Supreme Court will never use the one font of appellate jurisdiction that the statute leaves untouched, that’s a pretty powerful precedent that future Congresses could seek to exploit in imposing comparable constraints on the justices’ power.
Do you mean that as a legal precedent, eg, congress could engage in complete jurisdiction stripping? Or just a practical political precedent?
I guess I don't see why the court choosing not to use it's power creates a legal precedent that it can be completely stripped. I mean, it may suggest the court isn't doing its job but that's a different issue.
It seems implicit in this discussion that Congress does have the power to regulate what the Courts, including the Supreme Court, may and may not consider and rule on...or am I missing something? So can Congress pass a law and, in the same text or elsewhere, say that the courts cannot rule on the constitutionality of that law?
Everyone agrees that Congress has *broad* power over the Supreme Court's docket. The question of whether that power is limitless is the one Justice Souter was referring to in his Felker concurrence, and it's one the Court has assiduously avoided ever having to answer. My own view is that there are *probably* limits on Congress's power to keep entire categories of constitutional claims out of the Court, but that they're pretty modest compared to all of the ways that Congress *could* restrict the Court's appellate authority.
Thanks...it would be amusing to see the court rule on the constitutionality of Congress declaring that the court could not rule on the constitutionality of some law or other.
Perhaps during a summer lull in the action, you might address the Easter Egg phenomenon of hinting that future litigation on a particular point would be welcome, as illustrated by the examples given by Justices Thomas and Alito. Maybe beginning with the famous Footnote 9.
Looking back at HamdanvRumsfeld (and earlier, Hamdi), a writ of habeas corpus from John Roberts is about as likely as snow in July. Setting aside for a moment the distinction between appellate and original jurisdiction, John Roberts (DCCircuit) displays no more respect for the rights of prisoners who are not US citizens than he does for the Third Geneva Convention, specifically tailored towards non-international conflicts. Guantanamo is US territory, a modern internment camp and military tribunal.
I almost feel sorry for academics and journalists who have to take these clowns seriously. Mean men make and enforce mean laws. The kangaroo courts of Ulster taught the Irish how to impeach tyrants. I suggest Trinity, by Leon Uris, for a blueprint on civic courage.
I’m not a lawyer, but the story here is really interesting. I find it fascinating that not everything in the law is cut and tried. There are issues that are unresolved.
Thank you for this. I’m an ex-cop and I do love a good walk in the legal weeds such as this.
> If AEDPA is constitutional even in a world in which the Supreme Court will never use the one font of appellate jurisdiction that the statute leaves untouched, that’s a pretty powerful precedent that future Congresses could seek to exploit in imposing comparable constraints on the justices’ power.
Do you mean that as a legal precedent, eg, congress could engage in complete jurisdiction stripping? Or just a practical political precedent?
I guess I don't see why the court choosing not to use it's power creates a legal precedent that it can be completely stripped. I mean, it may suggest the court isn't doing its job but that's a different issue.
It seems implicit in this discussion that Congress does have the power to regulate what the Courts, including the Supreme Court, may and may not consider and rule on...or am I missing something? So can Congress pass a law and, in the same text or elsewhere, say that the courts cannot rule on the constitutionality of that law?
Everyone agrees that Congress has *broad* power over the Supreme Court's docket. The question of whether that power is limitless is the one Justice Souter was referring to in his Felker concurrence, and it's one the Court has assiduously avoided ever having to answer. My own view is that there are *probably* limits on Congress's power to keep entire categories of constitutional claims out of the Court, but that they're pretty modest compared to all of the ways that Congress *could* restrict the Court's appellate authority.
Thanks...it would be amusing to see the court rule on the constitutionality of Congress declaring that the court could not rule on the constitutionality of some law or other.
Perhaps during a summer lull in the action, you might address the Easter Egg phenomenon of hinting that future litigation on a particular point would be welcome, as illustrated by the examples given by Justices Thomas and Alito. Maybe beginning with the famous Footnote 9.
Looking back at HamdanvRumsfeld (and earlier, Hamdi), a writ of habeas corpus from John Roberts is about as likely as snow in July. Setting aside for a moment the distinction between appellate and original jurisdiction, John Roberts (DCCircuit) displays no more respect for the rights of prisoners who are not US citizens than he does for the Third Geneva Convention, specifically tailored towards non-international conflicts. Guantanamo is US territory, a modern internment camp and military tribunal.
I almost feel sorry for academics and journalists who have to take these clowns seriously. Mean men make and enforce mean laws. The kangaroo courts of Ulster taught the Irish how to impeach tyrants. I suggest Trinity, by Leon Uris, for a blueprint on civic courage.