Sen. Ted Cruz (R-Texas) was in Iowa yesterday, where the presidential hopeful reflected on the possibility of a Supreme Court ruling endorsing marriage equality. The far-right senator told his audience, “The first thing and I think the most important thing every one of us can do, is pray. Lift up in prayer.”
But as the Dallas Morning News noted, that’s not all Cruz said.
He reiterated his vow to press for a constitutional amendment that would clarify the power of state legislatures to define marriage as the union of one man and one woman. If the high court does legalize gay marriage nationwide, he added, he would prod Congress to strip federal courts of jurisdiction over the issue, a rarely invoked legislative tool.
The prospect of changing the U.S. Constitution to block marriages seems a little silly, especially since most Americans actually support equal marriage rights.
But it’s that other part that stood out for me.
“Court-stripping” – or “jurisdiction-stripping,” as some call it – is a fringe idea that doesn’t come up often, largely because it’s just too bizarre for most policymakers to even consider. The idea isn’t complicated: under this scheme, Congress would pass a federal law effectively telling the courts, “We’ve identified a part of the law that judges are no longer allowed to consider.”
In other words, let’s say you live in a state with a law that discriminates against same-sex couples. You decide to challenge the constitutionality of the law, get an attorney, and go to court. Under Ted Cruz’s approach, the judge would have no choice but to ignore the case – the courts would have no legal authority to even review lawsuits related to marriage equality because Ted Cruz and his pals say so.
Whatever one thinks of marriage equality, court-stripping is itself a ridiculous idea. The constitutional principles of “separation of powers” hasn’t disappeared just yet, so the idea that the legislative branch will dictate to the courts what kind of cases judges are allowed to hear is more than a little crazy – it undermines the very idea of an independent judiciary.
And it sure as heck isn’t “constitutional conservatism.” Indeed, it’s effectively the congressional version of “legislating from the bench” – Cruz and his cohorts want to adjudicate from the legislature.
To be sure, this isn’t entirely new. Back in the 1980s, Sen. Jesse Helms (R-N.C.) repeatedly tried to prevent federal courts from hearing cases related to school prayer. About a decade ago, Sam Brownback and Todd Akin (remember him?) worked on similar measures related to the Pledge of Allegiance. Now, the junior senator from Texas is dipping his feet in the same radical waters.
Congress has never actually passed a court-stripping scheme – we can only speculate about the constitutional crisis it would invite – and it probably won’t start with marriage equality. But the fact that Ted Cruz, a presidential hopeful, would even endorse such an idea speaks to just how radical a senator he is.