Supreme Court “original jurisdiction” Part II

We did a post recently explaining that even though the Constitution gives the Supreme Court original jurisdiction of controversies between a state and the United States (such as Florida’s suit against Obamacare), that jurisdiction is not “exclusive”, and thus Florida did not have to file its suit first in the Supreme Court.  As at least one person felt the post raised more questions than it answered, let me go back to the beginning.

Article I, Section 8 of the Constitution gives Congress the power to “constitute Tribunals inferior to the Supreme Court”.  The first exercise of that power was the Judiciary Act of 1789.  Section 13 of that Act contains the first reference (at least that I can find) to the term “exclusive jurisdiction”, and vests the Supreme Court with exclusive jurisdiction over certain enumerated types of cases, and appellate jurisdiction over other types of cases.  The list of “exclusive” jurisdiction cases does not include all of the controversies over which the Supreme Court has “original jurisdiction” under the Constitution. 

How can Congress possibly have the power to do this, you may ask?  Well, because the Supreme Court said it did.

In Ames v. Kansas, 111 U.S. 449 (1884), the Court held,

…the Court is unwilling to say that it is not within the power of Congress to grant to inferior courts of the United States jurisdiction in cases where the Supreme Court has been vested by the Constitution with original jurisdiction.

This decision was followed up some three years later by United States v. Louisiana, 123 U.S. 32 (1887) where the Supreme Court made it clear that an action brought by a state against the United States was not within the exclusive jurisdiction of the Supreme Court.

The Supreme Court’s “original jurisdiction”

A caller to today’s show read from Article 3, Section 2 of the United States Constitution and, maintained that Judge Vinson’s ruling on Obamacare was unconstitutional because only the Supreme Court could hear the case. So, at the risk of putting everyone to sleep, let me explain the Supreme Court’s “original jurisdiction“.

Pursuant to Title 28, United States Code, Section 1251 there are two types of Supreme Court “original jurisdiction”.  The first is original and exclusive jurisdiction, and, and the second is, original jurisdiction.  Only a case meeting the former definition must be brought initially in the Supreme Court, not the latter.

The only controversies where the Supreme Court has original and exclusive jurisdiction involve disputes between states, the most common being disputes over where the border between two states is. 

For any controversy between a state and the United States, although the Supreme Court has original jurisdiction, it is not original and exclusive jurisdiction.  Thus, although these types of disputes must be filed in the federal court system (as opposed to the state court system), they do not have to originate in the Supreme Court.

Obama administration argues in court: Individual health care mandate is a tax

Yup, that’s right. After spending months ensuring the American people the health care individual mandate is certainly not a tax, the Obama administration’s Department of Justice has gone to court in defense of their mandate, arguing the mandate is a tax.

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Kagen-sure in some cases you can ban books

I am posting this one because it drove a bit of the conversation I had yesterday with Kathryn Jean Lopez from National Review. While arguing Citizens United as Solicitor General, Kagen tried to defend McCain Feingold and it’s limitations on the corporate purchase of political advertising within 30 days of an election. She did not do well.

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States must comply with the Second Amendment

Today, in a very close decision, the Supreme Court ruled in McDonald v. Chicago that no state can pass a law that would violate a citizen’s right to bear arms under the Second Amendment of the United States Constitution.

Before going further, though, it is important to understand what the decision does, and what the decision does not do.  It allows citizens of any state to own a gun, and provides that individual states (or cities, or municipalities) cannot pass laws that would interfere with that right.  But, it does not allow anyone,

to keep and carry any weapon whatsoever, in any manner whatsoever, and for whatever purpose.  (see p. 45)

The question presented in McDonald was whether the second amendment is a “fundamental” right.  As Justice Alito put it (in the majority opinion), a fundamental right is one that is “fundamental to our scheme of ordered liberty and system of justice”, and which is a “fundamental principle of liberty and justice which lie at the base of all our civil and political institutions”. (see p. 22, emphasis in original)

According to the Court, the right to bear arms is as fundamental to our American system as the right to freedom of speech, or, the “right” to remain silent, or, the “right” to be represented by council in criminal proceedings.  As such, the fourteenth amendment’s due process clause prohibits a state from denying any citizen the right to bear arms.

Of further interest is the Court’s emphasis of the word “our” in the above quote.  Justice Stevens’, in his dissenting opinion, believes that the American concept of “fundamental rights” and “due process” should be defined, in part, by what other countries do.  Not only do I have trouble with this approach, as it would allow judges to basically pick and choose laws from other countries, and apply them here willy nilly, but, so does Justice Scalia.  He devotes virtually the entirety of his concurring opinion to explaining why Stevens’ approach to constitutional law is flawed.  He takes apart Steven’s thought that due process should only apply to what has been historically protected, reasoning that were that the case, no new rights could ever be recognized by any court, no matter how fundamental that right was (see p. 56); and, Stevens’ belief that courts should make “moral judgments” in determining fundamental rights.

Justice Stevens’ approach, on the other hand, deprives the people of that power, since whatever
the Constitution and laws may say, the list of protected rights will be whatever courts wish it to be… Justice Stevens abhors a system in which ‘majorities or powerful interest groups always get their way’…but replaces it with a system in which unelected and lifetenured judges always get their way. (p. 66)

Justice Scalia’s concurring opinion, beginning at page 52, is certainly well worth the time it takes to read it.  In a logical and reasoned manner, he pretty much dismantels any claim that the Constitution should be some “living breathing document” that changes not only from moment to moment, but from court room to court room.

In a post that is already way to long, one more thing struck me.  Justices Breyer, Ginsburg and Sotomayor did not join in Justice Stevens’ dissenting opinion…Justice Breyer wrote his own dissenting opinion, and Justices Ginsburg and Sotomayor joined in that opinion.  Could Justice Stevens’ views be even way to liberal for them?

Juan Williams: Obama has declared war on Supreme Court

Well, in particular, Chief Justice John Roberts. Of course this should not come as a surprise to anyone. He declares war on anyone that dares disagree with him.

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How will firearm legislation be rewritten? SCOTUS incorporates 2nd Amendment

No time for analysis, but McDonald v. Chicago case has been resolved at the Supreme Court. In a 5 to 4 decision (expected), SCOTUS has ruled the 2nd Amendment is incorporated.

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Freedom of association and the Supreme Court

Yesterday, the United States Supreme Court heard oral arguments in a case that will attempt to resolve an apparent conflict between the issue of “diversity” and the First Amendment right of “freedom of association”.  To me, at least, the facts are fascinating.

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Justice Stevens retires – decision partially political, tied to mid-term elections

US Supreme Court Justice John Paul Stevens may be retiring for many reasons, but in his resignation letter, he implies the the 2010 mid-term elections were a factor.

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