Emotion makes an end run around the courts

The subcommittee chairman rapped his gavel and said that he was sorry, the President was calling him and he must step out for a minute. Fortunately, he said, the chairman of the full Judiciary committee was present, so would Sen. Strom Thurmond (R) of South Carolina please take over? The high wood-paneled chamber looked as sedate as a courtroom and this was appropriate because the subcommittee was considering something important -- a proposed way to limit the Supreme Court. Senator Thurmond asked Prof. Jules Gerard of the Washington University law school in St. Louis to continue his testimony.

Article III Section 2 of the Constitution enumerates the powers of the Supreme Court and gives it appellate jurisdiction over certain cases "with such exceptions and under such regulations as the Congress shall make." Congressmen who don't like the high court's decisions in a number of recent "social issues" -- school prayer, busing, abortion, and the like -- now want to make a flank attack. Amending the Constitution is a cumbersome process so why not just amend the Jurisdiction Authority Act, forbidding the high court to hear certain types of cases on appeal? On April 5, 1979, the Senate, 51 to 40, adopted an amendment to the jurisdiction act, offered by conservative Sen. Jesse Helms (R) of North Carolina, depriving courts of jurisdiction to hear school prayer cases. The amendment died in a House subcommittee, however.

Now Congress is asked again by intense and vocal groups to use its Article III power. In his statement Professor Gerard showed the emotionalism of the issue. "I understand the exasperation, the despair of those who are fed up with The Imperial Judiciary," he declared. He added, "the situation is intolerable." He thought that Congress had the authority to intervene legislatively without the burden of passing a constitutional amendment, if it will "exercise its constitutional power to regulate and make exceptions to the jurisdiction of the federal courts." Do the lawmakers want to do this? he demanded. It's up to Congress!

Subcommittee chairman Orrin G. Hatch (R) of Utah returned to his seat without comment about the White House. He asked the next witness to proceed -- Edward I. Cutler of Tampa, representing the American Bar Association. The ABA includes half of the legal profession of the United States, witness said, adding for good measure that this is one-third of all the lawyers of the world. As to the court's recent decisions in sensitive social issues, he said, the ABA would take no position; on the other hand, he continued, the ABA "has long opposed changing constitutional jurisprudence through jurisdictional legislation."

It's not a new position, he said. When Franklin Roosevelt tried to "pack" the Supreme Court in 1936-37 the ABA objected. Some 30 bills were introduced to implement the Roosevelt proposal, he recalled. The board of governors and the assembly of the ABA unanimously opposed such legislation.

Again in 1958, Mr. Cutler added, came an attempt to withdraw Supreme Court jurisdiction. The charge in Congress at that time was that the court, by its decisions, was "sheltering Communists." The ABA adopted a resolution against the effort to limit the court's jurisdiction.

Witness spoke quietly. He quoted the ABA 1937 declaration that the effort to restrict the tribunal's authority by oblique means "is the most insidious attack that can be made upon constitutional government."

Yes, he said, "last year's rejection of the Helms amendment was the result of sound judgment. The legislation now under consideration should be rejected on the same basis."

So those are the two positions presented to Congress in a complex and emotional issue. Should opponents of the court's recent decisions try to make an end run around the justices while one of the seats is vacant? Or should they try what Justice Felix Frankfurter once called the "leaden-footed process of constitutional amendment"?