Congress v. court: deciding who rules on hot social issues

The US Supreme Court has displeased and angered American conservatives. It ruled prayers out of the schools and busing in, and perhaps most serious of all, it legalized abortion.

Now that conservatives have the driver's seat on Capitol Hill, they are fighting back. By a 52-to-43 vote last week, the Senate joined the House in voting to cut off virtually all federal funding for abortions, its most stringent antiabortion action yet.

And Congress is considering about 20 bills that amount to a frontal attack on the federal courts. These bills would clip judicial wings by taking away from federal courts the authority to hear cases on abortion, busing, and school prayer. Instead, most of the bills would give state courts jurisdiction on these controversial issues.

Congress has rarely wielded such power to limit courts, and constitutional scholars have lined up on Capitol Hill to warn of the dangers.

"If such legislation were permissible, Congress could by statute profoundly alter the structure of American government," said Leonard G. Ratner, a law professor at the University of Southern California. He told a Senate subcommittee last week that if states and lower federal courts had the final say in cases, it could upset the constitutional checks and balances between the three branches of government and reduce the laws of the land to "a hodgepodge of inconsistent decisions."

Experts generally agree that the US Constitution gives Congress broad powers in regulating federal courts and deciding what types of cases these courts will hear. But these powers rarely have been used. Only once has Congress passed a retaliatory law to block Supreme Court action, and that was more than 100 years ago.

Prof. Charles Rice of the University of Notre Dame law school argues that the time has come to use this legislative power in narrowly defined areas, such as abortion, where, he says, the Supreme Court has been guilty of "usurpation" of power.

"It would teach the court a lesson, without tampering with the Constitution," he told the Senate Judiciary Subcommittee on the Constitution. Then, if the law were found to be unworkable, it could be repealed, he said.

Professor Rice said that he would oppose a "wholesale obliteration" of the Supreme Court's jurisdiction, but that limiting its powers in certain areas would be a "surgical knife" approach to reform.

While many lawyers agree that Congress does have some powers over the courts, there is little certainly about whether the bills now before Congress are constitutional. William Van Alstyne, law professor at Duke University, testified that he has never seen a draft of a bill to limit court jurisdiction that he believes to be constitutional.

He cast doubts on the proposed "human life" bill. It would give full constitutional rights to an unborn fetus from the time of conception, thus opening the door to laws forbidding abortion. That bill also would give to state, not federal, courts the power to rule on abortion cases.

Such a law might "encourage state courts to come to different outcomes" from the Supreme Court and thus take away abortion rights already granted by the high court, said Mr. Van Alstyne. The Supreme Court could strike down the "human life" law on the grounds that it was aimed at restricting already established constitutional rights.

Stephen H. Galebach, a Washington lawyer who supports a human life bill, said in another Senate hearing last week that "there is no reason to distrust the good faith and judgment of state courts" to resolve abortion cases. "State courts have not attempted to evade federal abortion decrees in the past."

Efforts to reshape the federal court are not new. President Franklin D. Roosevelt proposed packing the court with additional justices in 1937 because the court had overturned many of his economic measures. But even then Congress showed reluctance to interfere with the judicial branch. Eventually the court yielded and upheld the Roosevelt programs.

The Senate last year passed a measure to limit court jurisdiction in matters of school prayer, but the House failed to act. However, this year such bills have a greater chance of success in a conservative-controlled Capitol Hill.And opponents are clearly concerned.

John Shattuck, Washington director of the American Civil Liberties Union, has called the effort "a radical assault on the independence of the federal judges." He says it could bring about a constitutional crisis.