There is clear authority and precedent for congressional control of federal court jurisdiction, particularly, when, as is the case with the Human Life Bill, the jurisdiction of the Supreme Court and the state courts is left untouched. Perhaps the clearest statement of the constitutionality of such a limitation is the opinion of Justice White in Palmore v. United Statesm (1973). His opinion was joined by the Chief Justice and justices Brennan, stewart, Marshall, Blackmun, Powell and Rehnquist:
"The decision with respect to inferior fedderal courts, as well as the task of defining their jurisdiction, was left to the discretion of Congress. That body was not constitutionally required to create inferior Arts. III courts. . . . Nor, if inferior federal courts were created, was it required to invest them wih all the jurisdiction it was authorized to bestow under Art. III."
The question of the desirability of such a limitation is directly related to the need for such an action in the abortion area.The activities of inferior federal court judges in the matter of abortion can only be characterized as hostile to any legislation that touches upon abortion. These judges have seized upon the abortion right a though it were one of our most sacred and precious liberties.
To reach some of their results one would believe that in eight short years abortion-on- demand has become a higher value than any other; even than those explicitly written into our Constitution nearly 200 years ago. Virtually every law -- state or local -- which touched upon abortion, from clinic safety regulations, to parental of spousal consent, to denying public funding of abortions, has met with almost vicious rejection by inferior court judges. So blatant has been this judicial animus that Justice Byron White has felt compelled to comment that he is "not yet prepared to accept the notion that normal rules of law, procedure, and constitutional adjudication suddenly become irrelevant solely because a case touches on the subject of abortion."
The current situation is worse even than the well-known antiunion bias which prompted Congress in 1932 to enact the Norris-LaGuardia Act, which limited federal court jurisdiction in certain labor cases. That act achieved its intended efect by allowing certain essential union activities to go on unmolested by a hostile judiciary. The Supreme Court upheld the act in Lauf v. E. G. Shinner & Co.m (1938).
The need for such action is once again present in the abortion context, and the Human Life Bill fits that need well.
The Fourteenth Amendment protection of life is meaningless if nom decision can be made about life or not life. For the unborn in 1981 it is clearly meaningless. If some others get their way the very young or very old may lose their protection under that amendment. So, too, the "defective." Because who could doubt that the day will come when we might hear arguments that science cannot decide if infancts are human life, or the invalid old, or the severely handicapped? These, it will be said, are questions of philosophy, or religion, of value, or opinion. If that is the case then no one's life is really protected, because we will have decided that we cannot decide, and protection will be a matter of power not right. Only the powerful will be able to demand protection.
Consequently, Congress's considered judgment on the question of when life begins is indispensable to understanding what the Fourteenth Amendment means when it says we protect life. Without Congress's judgment, and in light of the court's self-professed incompetence on the question, a great void exists, which could easily be filled by a most compromising view of whose life should be protected.
Congressional teaching on the meaning of personhood is similarly indispensable in trying to persuade the court that they were incor rect in writing the unborn out of the Constitution.