Mississippi, Kentucky, Georgia, Ohio, Alabama passing 6 week abortion ban bills
- Thread starter Cuddles
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The only reason that the Texas law made the public a harmed party and not an official of the Government is so it could get to the court immediately. If first you needed a Government official to be harmed it would only be after the fact.
i am not weighing in on what the court did, I am just asserting the claim that Congress cannot pass a law and as part of that law make it illegal or prohibit judicial review of a valid challenge to the constitutionality of the statute. That would go against everything the Constitution stands for..
Also here is the infor I was trying to convey about the clause not meaning what you think it means:
https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2
We all believe we know what the Constitution stands for; we are somewhat less certain about what's written in it. And we might be shocked if we actually read it.
I admit I was surprised to find that the clause means very much precisely what I thought it means. At least in the case of this one precedent you turned up. Thank you. I had no idea the Constitutional clause had been tested. Certainly the Clause it self under Article III could not be more clear.
[ here the case is summarized in some detail. See your link]
See: This congressional power, conferred by the language of Article III, § 2, cl. 2, which provides that all jurisdiction not original is to be appellate, “with such Exceptions, and under such Regulations as the Congress shall make,” has been utilized to forestall a decision which the congressional majority assumed would be adverse to its course of action. In Ex parte McCardle,73 U.S. (6 Wall.) 318 (1868). That Congress’s apprehensions might have had a basis in fact, see C. FAIRMAN, HISTORY OF THE SUPREME COURT OF THE UNITED STATES, VOL. VI, PT. I: RECONSTRUCTION AND REUNION 1864–88 493–495 (1971). McCardle is fully reviewed at pp. 433–514. ">1227
Although the Court had already heard argument on the merits, it then dismissed for want of jurisdiction.Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). In the course of the opinion, Chief Justice Chase speculated about the Court’s power in the absence of any legislation in tones reminiscent of Marshall’s comments. Id. at 513. ">1229 “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.” “What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”74 U.S. at 514. ">1230 Although McCardle grew out of the stresses of Reconstruction, the principle it applied has been applied in later cases.
Texas judge hands narrow win to abortion providers fighting new 6-week ban
https://thehill.com/regulation/cour...rrow-win-to-abortion-providers-fighting-new-6
https://thehill.com/regulation/cour...rrow-win-to-abortion-providers-fighting-new-6
Has anyone but me noticed this statement in bold below, incorporated into Chief Justice Chase's remarks and included in my quote above of his remarks attending McCardle:
...and the power [of Congress] to make exceptions to the appellate jurisdiction of this [Supreme] court is given by express words.
Now is moment for the Congress, once again, to touch that Constitutional third rail, Codify Roe and include as the final eleven words in the Statute: The Supreme Court shall not have appellate jurisdiction over this Statute.
You should read the other parts of what you cited....:
Numerous restrictions on the exercise of appellate jurisdiction have been upheld. E.g., Congress for a hundred years did not provide for a right of appeal to the Supreme Court in criminal cases, except upon a certification of division by the circuit court: at first appeal was provided in capital cases and then in others. F. Frankfurter & J. Landis, supra at 79, 109–120. Other limitations noted heretofore include minimum jurisdictional amounts, restrictions of review to questions of law and to questions certified from the circuits, and the scope of review of state court decisions of federal constitutional questions. See Walker v. Taylor, 46 U.S. (5 How.) 64 (1847). Though McCardle is the only case in which Congress successfully forestalled an expected decision by shutting off jurisdiction, other cases have been cut off while pending on appeal, either inadvertently, Insurance Co. v. Ritchie, 72 U.S. (5 Wall.) 541 (1866), or intentionally, Railroad Co. v. Grant, 98 U.S. 398 (1878), by raising the requirements for jurisdiction without a reservation for pending cases. See also Bruner v. United States, 343 U.S. 112 (1952); District of Columbia v. Eslin, 183 U.S. 62 (1901).
This is about Congress highlighting proper channels and processes for appellate review or scope of review. In NONE of these cases did it involve Congress passing a law and then blocking the SC from any appellate review on a CONSTITUTIONAL ISSUE.
I am sorry we keep go ing back and forth but you are not fully citing what you are relying on to support your idea. You are conjecturing that Congress can cut off SC review of a constitutional matter but the cases you cite are where Congress delineates appellate processes by other means or requires certain steps prior or grants jursidiction to other types of courts.
For example, Congress can say that SC has no appellate review on cases for less than $10,000... it must go to the Circuit Court of Appeals first etc...
Article III grants braod judicial authority in SC and Congres was given the power to create all the courts below and the jursidictional rules because EVERYTHING cannot go straight to the SC as would be envisioned by the Constitution without anything further.
That is why we have State v . Federal courts, Federal District Courts and Circtui Courts of Appeals. Congress created exemptions and restrictions so that cases would not go to the SC but have to go to another court and would not be allowed to go to SC unless lower courts were first used.
You should read the other parts of what you cited....:
Numerous restrictions on the exercise of appellate jurisdiction have been upheld. E.g., Congress for a hundred years did not provide for a right of appeal to the Supreme Court in criminal cases, except upon a certification of division by the circuit court: at first appeal was provided in capital cases and then in others. F. Frankfurter & J. Landis, supra at 79, 109–120. Other limitations noted heretofore include minimum jurisdictional amounts, restrictions of review to questions of law and to questions certified from the circuits, and the scope of review of state court decisions of federal constitutional questions. See Walker v. Taylor, 46 U.S. (5 How.) 64 (1847). Though McCardle is the only case in which Congress successfully forestalled an expected decision by shutting off jurisdiction, other cases have been cut off while pending on appeal, either inadvertently, Insurance Co. v. Ritchie, 72 U.S. (5 Wall.) 541 (1866), or intentionally, Railroad Co. v. Grant, 98 U.S. 398 (1878), by raising the requirements for jurisdiction without a reservation for pending cases. See also Bruner v. United States, 343 U.S. 112 (1952); District of Columbia v. Eslin, 183 U.S. 62 (1901).
This is about Congress highlighting proper channels and processes for appellate review or scope of review. In NONE of these cases did it involve Congress passing a law and then blocking the SC from any appellate review on a CONSTITUTIONAL ISSUE.
I am sorry we keep go ing back and forth but you are not fully citing what you are relying on to support your idea. You are conjecturing that Congress can cut off SC review of a constitutional matter but the cases you cite are where Congress delineates appellate processes by other means or requires certain steps prior or grants jursidiction to other types of courts.
For example, Congress can say that SC has no appellate review on cases for less than $10,000... it must go to the Circuit Court of Appeals first etc...
Article III grants braod judicial authority in SC and Congres was given the power to create all the courts below and the jursidictional rules because EVERYTHING cannot go straight to the SC as would be envisioned by the Constitution without anything further.
That is why we have State v . Federal courts, Federal District Courts and Circtui Courts of Appeals. Congress created exemptions and restrictions so that cases would not go to the SC but have to go to another court and would not be allowed to go to SC unless lower courts were first used.
can congress claim this particular case is not the jurisdiction of SCOTUS, and have a lower court grant congress such exception to bypass judicial review?
That's right, and this, of course, has no relevance to the discussion of Congress' power to make exceptions in the Courts appellate jurisdiction, which is specifically taken up elsewhere in the excellent general discussion of the Court under Article III, which you found on the Cornell site. I thank you for finding that.
See Chief Justice Chase's remarks in the matter of McCardle. These were a clear recognition by the Court of Congress' power, if they see fit, to make exceptions to the Court's appellate jurisdiction. And indeed, with your help, I discovered that Congress caused that to happen in the McCardle case. The reason for Congress' action is also stated.
Now is the time for Congress, once again, to rise to the occasion and restrict the Appellate Jurisdiction of the Court in two upcoming critical issues. One being HR-1 and the other codification of Roe, which might be capable of passing both Houses, but barely. However it's unlikely HR-1 can pass without first jettisoning the Cloakroom filibuster, so why not simply assure both bills passing by getting rid of this insanity. ( I find myself incredulous that I should even have to write this. It's as though I just wrote, "if we want to eat we will have to take the padlock off of the refrigerator.")
It is insane that anyone would go along with such a ridiculous rule as the "Cloakroom filibuster, whioch in practice has prevented the Senate from performing its Constitutionally prescribed duties. It's as though though the witch from Alice in Wonderland has been left in charge of the U.S. Senate and nothing shall occur there "unless I say it shall." This wreckless contrivance speaks volumes of the absurd lengths the Republicans have resorted to in what, I hope, will be a vain attempt to survive the demographic tsunami that is headed their way.
The Court's been tampered with. The goal was to bind the evangelical and white supremacist vote firmly to the Republican party and improve chances of a favorable outcome at the polls. And barring that, keep the Court from interfering with what is likely to be a needed jiggering of the 2024 election; maybe even that in 2022. The demographics of the U.S. are inexorably shifting in a way not favorable to our champions of White Supremacy. There may be some chance of getting enough Senate Republicans, those few who recognize the inevitable, to support a codified Roe, but protection from the jiggered Court is still needed. I don't see HR-1 passing without jettisoning the cloakroom filibuster. It's laughable, but no one is laughing until it's gone. So why not get rid of it, and protect both Bill's from the Court's wrecking ball. Then we can laugh.