What can you do when the Supreme Court is wrong? Amend the Constitution? It's nearly impossible. Appoint new judges? That can take years and may not work. How about strip the Court of its jurisdiction? The House of Representatives voted to do just that in September 2004, when it passed the Pledge Protection Act. The legislation would prevent all federal courts from hearing cases that challenge the constitutionality of the Pledge of Allegiance.
Although unusual, such an act is clearly permitted by the Constitution. Article III, Section 2, provides that in cases outside of its original jurisdiction, "the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." The Constitution thus plainly grants to Congress plenary authority to make exceptions to the Supreme Court's jurisdiction.
The Framers never conceived of the judiciary as being completely independent. They equipped Congress with jurisdiction-stripping power so it could check the courts. Understanding that all power, including judicial power, is of an "encroaching nature" (Federalist 48), the Framers deliberately gave each branch of government the means to keep the other branches in line. But Congress has rarely exercised its full range of constitutional measures to check the courts. Those who decry the imperial judiciary may applaud the House for finally employing the jurisdiction-stripping power at its disposal.
Yet those who favor keeping "under God" in the Pledge should pray that the Senate quietly kills the Pledge Protection Act. Should it pass, the legislation may increase--not decrease--the likelihood that judges will find "under God" unconstitutional. The bill would prevent, moreover, the possibility of a decisive Supreme Court decision in favor of the Pledge.
Unlike a constitutional amendment, jurisdiction-stripping using Article III, Section 2, does not affect or overturn existing Supreme Court precedents. In practice it transfers final judicial authority from the United States Supreme Court to the court of last resort in each state. The tradition of stare decisis would likely lead these state courts to follow existing Supreme Court precedents. So if Congress strips all federal courts of jurisdiction over the Pledge, First Amendment challenges to "under God" will be decided by state supreme courts likely to apply existing Supreme Court precedents concerning the establishment of...