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Safeguard the courts

Should Congress divest the US Supreme Court of authority to hear certain categories of cases? Every American should be aware that there is now a strong move in the legislature to do just this. More than two dozen bills have been introduced in Congress -- 23 in the House and several in the Senate -- which would deprive the high or other federal courts of jurisdiction in such sensitive cases as abortion , busing, and school prayer. If the bills are passed, jurisdiction in these cases would be left to the courts of the 50 separate states.

Grave constitutional issues are raised in the current debate over the proposed laws. These go to the very heart of the system of checks and balances between the three branches of government as conceived by the framers of the Constitution. While legal schollars are agreed that Congress has some powers over the federal courts, they are not agreed on the constitutionality -- or, at the least, the advisability -- of the bills. Many are concerned that the court-curbing efforts are fraught with danger. Lessons of history

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On the face of it, Congress has the right to limit the Supreme Court's jurisdiction. Article III of the Constitution, which establishes the judiciary, grants the Supreme Court appellate jurisdiction "with such exceptions and under such regulations as the Congress shall make." That seems plain enough.

Only once in history, however, has Congress actually taken jurisdiction away from the high court and that was more than 100 years ago at an extremely difficult time in the nation's history. In the Ex Parte McCardlem case of 1869 the justices upheld a 1867 law depriving the court of authority to hear appeals from persons imprisoned during the Civil War. Since then efforts have been made at various times to pass court-limiting laws -- in 1937, for instance, when Franklin Roosevelt tried to "peak" the court in order to get more favorable consideration of New Deal legislation -- but the issue has never been forced.

Some scholars believe that the 1869 decision was too narrow to set a precedent. Despite that lone case -- and the literal language on the Constitution -- it is felt that the question must be looked at in the light of 200 years of judicial evolution and practice. Since the Constitution was adopted, there have been many changes including the addition of a Bill of Rights and the 14th Amendment. These seem to put another cast on Article III, for if the court were limited by Congress as to a certain class of cases it could well be prevented from exercising its right to pass on the constitutionality of laws. In effect the door might be opened to attack on freedoms guaranteed by the Bill of Rights. Protecting rights

Some of the bills now pending in Congress would take authority away from the federal district and appellate courts, leaving jurisdiction in certain matters solely to the state courts. While there is less dispute over Congress's power to curb the authority of lower federal courts, the wisdom of such action is questioned. Constitutional lawyer Paul Bator of Harvard suggests that such court- curbing statutes are "dangerous" because they seem based on the argument that state courts will probably enforce federal constitutional rights less vigorously than the lower federal courts.

In any case, the net effect of restrictions on the high or the lower federal courts could be to undermine the uniformity of law in the nation -- a goal which establishment of the Supreme Court was certainly intended to foster. Each state would be responsible for interpreting the law. The result? "We could end up with a hodgepodge of state rulings and no way to reconcile them," says Prof. A. E. Dick Howard of the University of Virginia.

In America's increasingly pluralistic society such consequences should be scrupulously avoided. Imagine, if you will, that each state were given sole authority to decide what the establishment-of-religion clause of the First Amendment meant. It is conceivable that laws in Mormon Utah, Roman Catholic Rhode Island, and Baptist Georgia, say, might well break down the wall of separation of church and state so carefully preserved by the US Supreme Court. Majority rule could prevail in such basically sectarian states and the rights of minorities might be trheatened if not violated.

Still another compelling argument is that state courts are commonly elected by legislatures and last for a given period of time. Once faced with the pressures of reelection, it is harder for judges to stand independently and rule strictly on the basis of conscience. The Supreme Court, by contrast, has repeatedly proved its independence -- even when presidents counted on their appointees adopting certain ideological positions. Without the unrestricted independence of the high court, the great American experiment in self-government by free people might many times have been hamstrung -- if not destroyed -- by the passions of the moment. 'Human life' statute

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Today the most emotionally charged issue in the court-curbing bills is abortion, which was legalized by the Supreme Court in 1973. Dedicated groups are determined to overthrow that decision. Unable to gain enough support for a constitutional amendment outlawing abortion, or for laws over- turning the high court's ruling, they now are trying a different tactic -- to limit the jurisdiction of the federal courts and give states the power to ban abortion.

Part of this strategy is a "human life" bill giving full constitutional rights to an unborn fetus from the time of conception, which would then open the way for state antiabortion action. By legally establishing that life begins at conception, proponents of the bill argue, the fetuses as "human beings" would be protected by the 14th Amendment, which prohibits states from depriving persons of life without due process of law.

As in the case of the other court-curbing bills, some legal experts raise doubts about the constitutionality of a "human life" statute. Yale Law School scholar Robert Bork, solicitor general in the Justice Department under Richard Nixon, called the bill "unconstitutional insofar as it attempts to prescribe a rule of decision for the courts under the 14th Amendment." in congressional hearings former Watergate special prosecutor Archibald Cox went even further in terming it a "radical and dangerously unprincipled attacked upon the foundations of our constitutionalism."

"The very function of Constitution and court is to put individual liberties beyond the reach of both congressional majorities and popular clamor," commented Mr. Cox.

Does this not get to the nub of the controversy -- the protection of minorities against majority rule? A suppression of minority rights by the majorities of the moment is precisely what the Constitution -- and judicial review -- is meant to limit. Some militant groups in effect want to force all Americans into accepting a rigid set of beliefs on abortion, school prayer, and other social issues. This is not to argue the substance of the issues one way or the other. It is to say that, where a society is marked by so much social and religious diversity, it would seem prudent to hold to the traditional conservative tenet that government should stay out of people's personal lives as much as possible and let them practice their religious or personal beliefs without state mandate or prohibition.

One final point might be made. The issue of legislation which would limit court jurisdiction cuts across ideological lines. Today it is the extreme conservatives who seek to restrict the federal courts. Tomorrow it might be the extreme liberals who try to do so. Today the target is freedom of abortion. Tomorrow it could be the freedom of corporate business or of land ownership. Where, in other words, would Congress stop?

Perhaps it is salutary for the democratic process that Congress every now and then confronts the question of Supreme Court rulings and gives the court some feedback on them. Professor Bator makes this point. But, in the end, Congress had best be wary not to tamper with a court system that has served the country so well. The nation needs a judicial review that provides a uniform and authoritative answer to questions of fede ral law. Without it, society invites a host of problems.

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