Tilting at Windmills

Atrios links to a post about some conservative congressmen who want to strip the federal courts of the power to hear certain cases (like Gay Marriage and 10 Commandment displays). The post questions the ability of those congressmen to 'follow the rule of law', but I would focus on their inability to understand the way our judicial system works.

The fact of the matter is, whether you agree or disagree, congress can strip the federal courts of any power they wish, and it should be constitutional. Read Art III Sec 1 of the constitution. The Federal courts are established by the whim, if you will, of congress. Their power to hear cases is also at the whim of congress. Congress can, if they like, restrict the power of the federal bench from hearing certain cases.

It doesn't end there, however, which is where the wingnut mistake comes in. The congressmen are suggesting this restriction on the federal courts will force these decisions back to the state courts. Only, that's not true. The constitution, not congress, gives power to the Supreme Court to hear certain cases. Any issue arising under the constitution becomes, by nature, a federal question. With no federal courts to filter, if you will, these cases, they become Supreme Court questions, not state questions. DOMA is a federal rule and will be challenged under the full faith and credit clause, and equal protection clause, both constitutional questions. 10 commandment questions are constitutional questions.

So, in effect, what these wingnuts will create is a deluge of supreme court cases which used to be diffused through the federal systems, but now having no such mechanism.

It will create judicial chaos. State courts are not empowered to hear US constitutional questions and can not be without a change to the constitution. So, having no other place to be heard, the SCOTUS will end up dealing with them.

On an amusingly related note, conservative Christians have been turned down by the SCOTUS to have a case heard in which the conservatives argue the Supreme Court must :

They must not be on close contact with the 'limit the federal judiciary' wingnut section of the movement, because they argue that it is the role of the federal judiciary, they argue to protect the people from tyranny, whether from a gun or from a decree of a court. (In other news, gay marriage is now a form of tyranny, apparently).