Can Congress—if it used the right language—really shut off access to courts? What about the idea of an independent judiciary? Constitutional commitments to separation of powers? The due-process clause? The right to petition for redress? Equal protection? And the ancient writ of habeas corpus?
—Judith Resnik, Yale Law School professor
Preventing Courts From Upholding the Law
Court-stripping, also known as jurisdiction-stripping, is the removal of specific cases, or types of cases, from a court's jurisdiction. This prevents courts from playing their vital role in our system of checks and balances—protecting individual rights, and ensuring that other branches of government uphold the law and Constitution.
Jurisdiction can be stripped by legislative or executive action, or through a ballot measure. Court-stripping legislation has sought to bar courts from considering detainee rights, abortion, religion (Ten Commandments, school prayer), and same-sex marriage. Prominent examples include:
- Military Commission Act. Passed in 2006, this law barred federal courts from reviewing Guantanamo detainee cases, under the Writ of Habeas Corpus. In the 2007 case of Boumediene v. Bush, the U.S. Supreme Court struck down this provision as unconstitutional.
- Relief of the Parents of Theresa Marie Schiavo Act. Passed in 2005, at the height of a national furor, this law abruptly transferred the tragic end-of-life case of Terry Schiavo from state to federal court.
- Pledge Protection Act, adopted by the U.S. House in 2004, would have outlawed the ability of courts to hear challenges to the Pledge of Allegiance.