GOP lawmakers take aim at U.S. judiciary

Upset over rulings, some in House pursue `jurisdiction stripping'

July 23, 2006|By GAIL GIBSON | GAIL GIBSON,SUN REPORTER

When House Republicans tried last week to block federal courts from hearing challenges to the words "under God" in the Pledge of Allegiance, U.S. Rep. Todd Akin didn't sugarcoat the latest effort to limit the judiciary: We do this, the Missouri Republican said, "because we don't trust them."

In the simmering feud between Congress and the courts, such "jurisdiction stripping" measures have emerged as a weapon of choice for Republicans.

For the most part, the proposals - including the move to allow only state courts to hear Pledge of Allegiance challenges - stand little chance of becoming law, legal scholars and analysts say. But they lay bare ugly tensions between the legislative and judicial branches and could prove to be a potent issue in this year's midterm elections.

Angry about court rulings on issues ranging from private property seizures to same-sex marriage, lawmakers over the past two years have introduced at least a dozen measures aimed at stripping the federal courts, including the U.S. Supreme Court, of the authority to rule on any cases involving issues such as public displays of the Ten Commandments, prayer at government meetings or state laws restricting pornography.

Some lawmakers would go further. House Judiciary Committee Chairman F. James Sensenbrenner Jr. of Wisconsin has suggested appointing an inspector general to monitor the federal courts. Another proposal would dilute the influence of the San Francisco-based 9th U.S. Circuit Court of Appeals - which four years ago touched off the Pledge of Allegiance furor by ruling that "under God" had turned the patriotic oath into an unconstitutional "profession of religious belief" - by splitting the panel in two.

"I think you can look at this in two ways - and one way, which I think is clearly true, is it's a form of saber-rattling - the House is saying, `We're mad as hell. But if we just say we're mad as hell, it isn't going to be taken as seriously as if we pass something,'" said Charles G. Geyh, an Indiana University law professor and author of When Courts & Congress Collide: The Struggle for Control of America's Judicial System.

"The second possibility, though, is that we are seeing a sea change, something a little more profound," Geyh said recently. "It could be this brave new world of controlling judicial functions."

The proposal to keep Pledge of Allegiance challenges out of federal courts cleared the House on Wednesday in a 260-167 vote. Similar legislation is pending in the Senate, but it is not likely to move forward.

Still, measures aimed at putting brakes on courts are perceived as political winners among social conservative voters. The effort to keep Pledge of Allegiance challenges out of federal courts was part of the "American Values Agenda," a package of conservative goals that the House Republican leadership hopes to put to a vote before the November elections.

House Minority Leader Nancy Pelosi called it the politics of "distraction and division" in the recent debate.

"The pledge to the flag and the words `under God' are not in trouble," said Pelosi, a California Democrat. "It's hard to understand why you would take up the time of this Congress to bring something to the floor that is so out of touch with the concerns of the American middle class."

As a political maneuver, attempts at jurisdiction-stripping are not new. The first and most famous effort came in the post-Civil War case of a Mississippi newspaper editor, William McCardle, who challenged his detention in military custody for publishing "incendiary and libelous" articles. While the Supreme Court was considering McCardle's appeal, Congress abruptly repealed the federal law that had given McCardle access to the court.

More recently, Congress has threatened to remove jurisdiction on specific types of cases more as a way to protest rulings it did not like, usually without success, said Duke University law professor Erwin Chemerinsky, a constitutional law expert whose own cases before the U.S. Supreme Court have included a challenge to a Ten Commandment display on the Texas state Capitol grounds.

"This has been proposed in Congress over and over again through American history," Chemerinsky said. "In the 1950s, it was proposed with regard to the loyalty oath cases. In the1960s, it was the reapportionment cases, and then the school prayer cases. In the 1980s, it was not letting federal courts hear abortion cases or [school] busing cases."

The pattern has accelerated more recently, although without ultimate success for its GOP backers. In 2004, the House of Representatives approved two measures that would have stripped the federal courts of the power to hear challenges to the federal Defense of Marriage Act or to the phrase "under God" in the Pledge of Allegiance. Neither measure passed the Senate.

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