Limiting judiciary power

The House of Representatives recently passed a measure that, they hope, prevents the Federal Courts from receiving challenges to State Defense of Marriage Acts.

Common Dreams, liberal
CNS News, conservative

A friend of mine put the chances of this law thusly:

The trial begins. First opening argument for the law:

"Umm..we'd really like you to make it constitutional to limit the power of the judiciary by an act of congress. Okay?"

Supreme Court: "Denied. Case closed. And don't let the door hit you in your ass on your way out. Lunch anyone?"

Total elapsed time: 5 minutes, 37 seconds.

Which is very true. Another article on the topic had this choice quote:

Rep. John Hostettler, R-Ind., the bill's author, likened the Supreme Court to the Soviet Politburo. ``As few as five people in black robes can look at a particular issue and determine for the rest of us, insinuate for the rest of us that they are speaking as the majority will. They are not,'' Hostettler said.

I particularly like the bit about comparing the Supreme Court to the Soviet Politburo. I believe the honorable Representative was attempting to allude to the phrase, "tyranny from the bench," in his statement.

As it happens, Mr. Hostettler was correct in his view of the representativeness of the Supreme Court. But he was not correct in the second part of his statement, "...insinuate for the rest of us that they are speaking as the majority will." The Supreme Court does not speak for the majority, the judiciary was created to act as the advocate of the minority from the tyranny of the majority. It is the Judiciary job to ensure that laws are enforced fairly, and that new laws do not violate the constitution. It does NOT speak for the Majority. The one input the Majority has in the constituency of the Supreme Court and the Federal Bench is in the Senate chamber during confirmation hearings.

If the Legislature and Executive feel that a piece of legislation, the DOMA in this case, is not strong enough to stand up to a constitutional challenge, they have two choices. First, pass an amendment to the constitution that strengthens the position of the legislation. Second, limit the judiciary from ruling on it. The first method failed in the Senate and will probably not come back up for debate this session. The second method was tried by the House and will definitely fail on appeal to the Federal judiciary.

For the legislation itself is an unconstitutional limit on judicial power. It's a nice try, but it will fail. First it has to get through the Senate, and the signs so far do not look good. This is government in action! Be thankful that we do not have a unicameral legislature.