Response or Comment
1 Ave Maria L. Rev. 81 (2003)
When a ruling of the supreme court meets with Congressional disfavor there are several remedies available to Congress. If the decision is not on a constitutional level, a later statutory enactment will suffice to reverse or modify the ruling. If, however, the Court's decision is an interpretation of a constitutional mandate, such as the requirement of the fourteenth amendment that legislative districts be apportioned according to population, then a statute could not reverse the decision because the statute itself would be subject to that constitutional mandate as defined by the Court.
The obvious method of reversing a Supreme Court interpretation of the Constitution is by constitutional amendment. But amending the Constitution is a long and problematic process. Furthermore, the Constitution should be as compact a document as possible. If constitutional amendments became the common response to objectionable rulings by the Supreme Court, the Constitution would soon resemble a code of legislation in its length and complexity.
The disadvantages of the amendment process, however, may be avoided by the exercise of Congress' power to withdraw particular subjects from the appellate jurisdiction of the Supreme Court and from the original as well as appellate jurisdiction of the lower federal courts. This technique, which has been sparingly used and is not widely understood, offers a chance to restrain excesses of judicial power on the part of the Supreme Court without altering the basic charter of our government.
Charles E. Rice,
A Cultural Tour of the Legal Landscape: Reflections on Cardinal George's Law and Culture,
1 Ave Maria L. Rev. 81 (2003).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/383