Though its recent conduct belies this truth, Congress has the power to stop liberal activist judges. The U.S. Constitution expressly allows Congress to take away jurisdiction from rogue federal courts. The most recent batch of U.S. Supreme Court rulings is prompting conservatives to demand that Congress use this weapon —  one that has worked well in the past and whose use in the culture wars is long overdue.

Across the country, conservatives are fast losing faith in the courts. Congressman Steve King of Iowa, a conservative heavyweight in an influential state, has introduced legislation to strip the federal courts of jurisdiction over marriage. As noted in an earlier article on these pages, in Arizona more than 100 Republican and Tea Party leaders have called for similar reforms to overturn federal court rulings that torpedoed state crackdowns on illegal immigration. Republican presidential candidates are talking tough about the courts, as well.

Polling confirms a decided shift in public opinion. Half of Republican voters now believe states have the right to ignore federal court rulings. Negative views of the U.S. Supreme Court have hit a record high, with the Supreme Court barely receiving a positive rating. Sixty-one percent of Republicans view the court negatively.

Article III:  The One Reform that Can Work

For decades, conservative politicians have responded to liberal judicial activism with “reforms” that accomplished nothing. These include proposed constitutional amendments that never pass, new federal laws that liberal judges promptly strike down, and “strict constructionist” judicial appointees who frequently flip to the left once they don a black robe. Indeed, conservatives have witnessed their leaders fail to rein in the courts for fully half a century, since the Warren Court began using judicial power to impose liberal values.  During the same period, we have seen the culture disintegrate in direct response to these rulings.

Conservatives are increasingly turning to the one reform that has promise: stripping the federal courts of their jurisdiction over selected areas of public policy. Article III, Section 2 of the Constitution provides that the Supreme Court “shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”  This language expressly allows Congress to withdraw jurisdiction from the federal courts in order to uphold the will of the people.

It is time for Congress to deploy this ultimate weapon. On the issues that determine our quality of life and culture — immigration, criminal justice, abortion, marriage — the left enjoys clear mastery of the courts and is seeking to mop up and fully implement their social agenda. Except for occasional “crumbs from the master’s table,” conservatives no longer can win in court on the issues that matter most. Using Article III to return these issues to the states and the people makes eminent sense and is our last realistic option for regaining genuine self-government.

Article III: A Proven Strategy

History and precedent show this is a viable approach, and the only readily available remedy to combat these liberal aggressions. Congress has successfully revoked federal-court jurisdiction many times. One justice who acknowledged Congress’s power to do so was Chief Justice John Marshall (1801-1835), whose opinions first asserted the Supreme Court’s right to strike down laws it deemed unconstitutional. Marshall observed that all federal judicial powers “are limited and regulated” by Congress.

And in The Federalist Papers, written to persuade the earliest Americans to adopt the new Constitution, Alexander Hamilton echoed this understanding. He stated the courts were designed to be the “least dangerous” and “weakest” branch of government. The jurisdiction of the Supreme Court would be “confined to two classes, and those of a nature rarely to occur.” Likewise, federal appellate jurisdiction would exist only “with such exceptions and under such regulations as the Congress shall make” (Hamilton’s emphasis). There would never be a “superiority of the judiciary to the legislative power,” meaning the courts could not overrule Congress and the people. Indeed, Hamilton noted Congress could impeach activist judges who engaged in “deliberate usurpation on the authority of the legislature.”

Leading legal scholars and other intellectuals have noted Congress’s power to restrict the jurisdiction of the federal courts. They range from Harvard Law Professor Raoul Berger, a liberal who later endorsed this approach after seeing decades of unabated judicial activism, to conservatives such as Patrick J. Buchanan and Phyllis Schlafly.

The Supreme Court itself has repeatedly acknowledged and upheld congressional restrictions of federal-court jurisdiction. Indeed, the language of Article III is so straightforward that the high court has been obliged to concede such limitations despite the court’s obvious conflict of interest in allowing its own powers to be clipped.

Congress has used this power for a century and a half. Right after the Civil War, Congress withdrew jurisdiction over a lawsuit pending before the Supreme Court. The court acknowledged Congress had the power to do so. In Ex parte McCardle (1869), the court dismissed the lawsuit, noting the Constitution gave Congress “the power to make exceptions to the appellate jurisdiction of this court — by express words.”

Article III: Aiding the New Deal

While history remembers President Franklin Roosevelt’s failed attempt to “pack” the Supreme Court, largely forgotten is the way his congressional allies successfully used Congress’s Article III powers.  In the 1930s, Democratic leaders repeatedly invoked Article III as a tactic to enable implementation of the New Deal and related acts. In 1932, Congress passed the Norris-LaGuardia Act, which removed federal-court jurisdiction over labor strikes. The Supreme Court upheld the restriction in Lauf v. E.G. Skinner & Co. (1938). The court noted, “There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States.”

The same pattern followed with other Democrat-sponsored legislation. The Emergency Price Control Act of 1942 removed jurisdiction over challenges to price-control regulations. The Supreme Court upheld the law in Lockerty v. Phillips (1943). When the Supreme Court ruled employers must pay retroactive wages for coal miners’ underground travel to and from their work stations in Tennessee Coal v. Muscoda (1944), Congress passed the Portal-to-Portal Act in 1947, preventing enforcement of that decision in federal court.

Article III Successfully Used More Recently

More recently, the federal courts upheld the power of a Republican Congress to restrict their jurisdiction over immigration disputes. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act. The law barred the federal courts from entertaining lawsuits by illegal aliens challenging decisions by the U.S. Attorney General to commence or implement deportation. In an opinion written by Justice Antonin Scalia, the U.S. Supreme Court upheld the law. In Reno v. American-Arab Anti-Discrimination Comm. (1999), the court ruled Congress could revoke federal-court jurisdiction over suits challenging the U.S. Attorney General’s decision to initiate deportation proceedings. Lower federal courts similarly ruled Congress could restrict their jurisdiction over suits challenging the U.S. Attorney General’s decision to execute removal orders (Hatami v. Ridge, 2003).

Also in the 1990s, Congress successfully trimmed the powers of the federal courts regarding frivolous inmate lawsuits. In upholding the Antiterrorism and Effective Death Penalty Act of 1996, the Supreme Court allowed Congress to ban certain repeated inmate lawsuits. (Felker v. Turpin, 1996). Lower federal courts acknowledged Congress’s Article III powers in allowing the Prison Litigation Reform Act to ban certain meritless inmate suits.  (Disclaimer: This author advised congressional staff in the drafting of both of these measures.)

Indeed, in 2002 Congress passed a law pushed by Democratic Senator Tom Daschle, then Senate Majority Leader, to take away jurisdiction from the federal courts concerning brush-clearing in South Dakota.

Only once has such efforts encountered resistance from the Supreme Court. To prevent alleged terrorists held at Guantanamo, Cuba, from gaining the same rights as U.S. citizens in federal court, Congress passed the Military Commissions Act of 2006. The act denied federal habeas jurisdiction for detained aliens determined to be enemy combatants. In Boumediene v. Bush (2008), the Supreme Court, in a 5-4 decision, blocked the provision denying habeas relief to these prisoners. However, the ruling was narrowly written, and noted the writ of habeas corpus has a long history of court protection in Anglo-American law. Indeed, the Supreme Court upheld less sweeping habeas restrictions by Congress just a few years before. The court was careful not to explicitly challenge or overturn the 150 years of judicial precedent acknowledging Congress’s powers to curb the Court’s powers under Article III.

A Necessary Fight

Of course, should Congress use its Article III powers to roll back judicial activism over, say, illegal immigration or abortion, the legal left would mount fierce resistance. The outcome of that fight cannot be predicted with certainty. Would the Supreme Court invalidate 150 years of settled law and say Congress can no longer determine federal court jurisdiction — in defiance of the plain language and repeated judicial interpretations of Article III, Section 2? If so, how would the court explain such an about-face, especially in light of its own obvious conflict of interest in rendering such a decision?

If the court did defy Congress and the president, what would Congress do? Would it follow Alexander Hamilton’s counsel and impeach the justices for abusing their powers? Would it respond more modestly? We will not know unless we try. What we do know beyond peradventure is that Congress is giving federal judges a free pass by ignoring its constitutional duty.

Conservatives must insist that the leaders they elect on the basis of their conservative credentials finally call the judiciary’s bluff. The issue must be pressed. If nothing else, this exercise will educate the public about Congress’s rightful powers and the judiciary’s abuses. For that matter, such a public dressing-down would have a very salutary effect on an unelected branch of government not known for its humility. Indeed, if history is any guide and the text of the Constitution still means anything, conservatives will finally win.

By the same token, if we do not try this approach, we know with certainty what will continue to happen. The culture will erode further at the behest of unelected judges and a left-leaning legal system.

Such a confrontation would not cause a “constitutional crisis,” as the left would surely claim. This crisis is going on now, and has been for the last half century. It has been engineered by agenda-driven liberal judges who have done great damage to our republic. They have commenced a political street fight in which only one side has been engaged. Are not our national character, culture and very souls worth a true fight?

To paraphrase Pascal’s Wager, what do we have to lose?