The Corner

Mitch McConnell On Roberts…

…and the “court-stripping” controversy:

For example, during the past couple of days, there has been great deal of media attention regarding the arcane issue of so-called “court stripping,” a shorthand term describing the issue of whether Congress has the authority to deny jurisdiction to federal courts.

The New York Times writes this morning that “Mr. Roberts consistently argued that courts should be stripped of authority of abortion, busing, school prayer and other matters.”…As a young attorney in the Justice Department, John Roberts was assigned to write a memo advocating that Congress had the constitutional authority to determine the appellate jurisdiction of the Supreme Court and other courts. This memo was written in response to legislation introduced in Congress proposing to strip federal jurisdiction on a number of controversial social issues.

Mr. Roberts was a constitutional scholar, and he did what constitutional scholars are frequently asked to do: Argue a legal theory about Congressional authority. Mr. Roberts was given this assignment by his boss, and he responded with the outstanding advocacy for which he is justly admired.

Making a legal argument, however, is miles away from endorsing the policy underlying the constitutional argument.

And as it turns out, Mr. President, John Roberts didn’t think that “court stripping” was good policy in the first place.

Rich Lowry — Rich Lowry is the editor of National Review. He can be reached via email: comments.lowry@nationalreview.com. 

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