Jurisdiction-stripping:

A reader mentioned to me that this issue has come up again — some people are arguing that Congress should preserve certain statutes (this time, the Defense of Marriage Act, but in the past this has been suggested as to the Pledge, anti-abortion legislation, and so on) against Supreme Court invalidation by stripping the U.S. Supreme Court of jurisdiction to hear appeals in such cases. Is this constitutional, a reader asks?

     Congress probably does have the power to strip the Supreme Court of jurisdiction over Pledge cases, under art. III, sec. 2, cl. 2:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, 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.

I take it that Congress may also strip lower federal courts of jurisdiction because their jurisdiction (even their existence, see art. III, sec. 2, cl. 1, “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish”) are defined by Congress in most cases. There’s some controversy about this, but my sense is that Congress may indeed act this way.

     But just how useful would that be? Even if federal courts lose jurisdiction over objections to some statute, state courts would still be able to entertain them — state courts must enforce the U.S. Constitution just as much as federal courts do (that’s in art. VI, sec. 2). If people are worried that the U.S. Supreme Court may strike down the Defense of Marriage Act, then they should be worried that state supreme courts may do the same; and even those state supreme courts that might not take this view on their own might feel moved by precedents from other states, since courts throughout the country tend to try to interpret the U.S. Constitution consistently with the decisions of other courts.

     What’s more, if a state supreme court does hold DOMA unconstitutional under the U.S. Constitution, then there’ll be no remedy (short of impeaching the state supreme court Justices). Amending the state constitution, which is a remedy for state supreme court decisions based on the state constitution (such as the Goodridge gay marriage decision in the Massachusetts) will do nothing to change the state court’s interpretation of the U.S. constitution. And an appeal to the U.S. Supreme Court won’t be possible, because the Court has been stripped of jurisdiction to hear the case. (I suppose one could strip the Court of jurisdiction to hear appeals from decisions upholding DOMA but not from decisions invalidating DOMA, but then if the Court upholds a decision invalidating DOMA, DOMA will be invalid throughout the country.)

     True, the jurisdiction-stripping would at least confine the DOMA invalidations to those states where the supreme courts rendered such decisions; that’s something DOMA supporters might appreciate. But my sense is that they won’t be wild even about this result, especially since the alternative might be the Supreme Court’s upholding DOMA on a nationwide basis. It seems to me that if you really want to make sure a statute isn’t invalidated, a narrowly tailored constitutional amendment (not the currently talked-about Musgrave draft Federal Marriage Amendment, which would go far beyond protecting DOMA) is indeed the first-best alternative, especially when it seems like it could well be politically plausible.