Gary North explicates USA politics and the judiciary,
In Article III, Section 2, on the powers of the Federal judiciary, we read this:
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.
The Supreme Court has original jurisdiction in only three areas, two of which are arcane. In all other areas, its jurisdiction is delegated by Congress.
Does this mean that Congress – without the consent of the President – can remove the Court's jurisdiction? Yes. Are there any limits on this? Yes. "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." Any others? No.
The Supreme Court has original jurisdiction in the Obamacare case in the Florida District Court. States brought suit. Congress cannot touch that authority. But such cases are rare.
Then why doesn't Congress get its way when the Court overturns a law? Because of tradition. In the Republican Party-dominated period of Reconstruction, Congress did remove the Court's jurisdiction over a case involving the military rule over the South. The case was Ex parte McCardle (1869). Wikipedia's account is accurate.
During the Civil War Reconstruction, William McCardle, a newspaper publisher and professional soldier in the Confederate Army reaching the rank of sergeant, published some "incendiary" articles which advocated opposition to the Reconstruction laws enacted by the Republican Congress. He was jailed by a military commander under the Military Reconstruction Act of 1867, a law passed by the United States Congress. Mr. McCardle invoked habeas corpus in the Circuit Court of the Southern District of Mississippi. The judge sent him back into custody, finding the military actions legal under Congress's law. He appealed to the Supreme Court under the Habeas Corpus Act of 1867, which granted appellate jurisdiction to the Supreme Court to review denial of habeas petitions. After the case was argued but before an opinion was delivered, Congress suspended the Supreme Court's jurisdiction over the case, exercising the powers granted to Congress under Article III, section 2 of the Constitution.
If ever there has been a Constitutional case that has not made it into the American history textbooks, it is this one. This case makes it clear that Congress is in charge. If Congress wants to keep the Court's nose out of Congressional business, it can tell the Court to fly the proverbial kite.
Yet Congress refuses to do this. Congress passes laws that are clearly unconstitutional. Members justify this by means of this excuse: "If it's unconstitutional, the Supreme Court can say so." Congress has delegated to the Court original jurisdiction over everything: county laws, state laws, and Federal laws. Only in the case of treaties, over which the House has no jurisdiction, does the Court keep its hands off laws.
How did this come about? How was the judicial sovereignty of Congress removed completely by the Supreme Court? Because of the lawyers' guild. The law schools teach the doctrine of judicial sovereignty. This has mandated the teaching of the Court's original jurisdiction as unbounded. This extends to nine unelected representatives of the legal guild the power to overrule the masses, meaning a majority of the voters.
The Constitution says that the Congress has original jurisdiction. The lawyers say otherwise. The textbooks do not raise the issue. This includes textbooks in Constitutional law.
The Supreme Court has arrogated to itself the right to interpret the Constitution. For about a century, the Supreme Court has operationally ignored the Constitution's clear teaching regarding original jurisdiction. The Constitution has been allowed to die, section by section, according to "changing conditions," to quote Chief Justice Burger. The Court cuts off life support to those sections that interfere with the opinion of five members at any given time.
The solution is simple, instead of lawyer-bashing, why not just follow Kant and make the implicit conflict of interest for a lawyer serving in the legislative or executive branch explicitly a conflict of interest.
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