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Reversing the Supreme Court

The Supreme Court recently ended its October 2007 term. There’s always a flurry of interest around this time as big cases are often handed down late in the term.

Here’s more analysis than you need of the term just ended from SCOTUSBlog and a summary of some of the most significant recent cases.

Supreme Court cases have winners and losers, of course. And Members of Congress aren’t content to sit idly by while the Court takes things in the wrong direction as they see it. There are at least two examples in the last couple of weeks where bills have been introduced in Congress to reverse the results or outcomes in Supreme Court cases.

Kennedy v. Louisiana found that executions for the rape of a child violate the Constitution’s ban on cruel and unusual punishment. “The death penalty is not a proportional punishment for the rape of a child,” Justice Kennedy wrote for the court.

There is interesting discussion in the legal blogosphere and a story in the New York Times about whether the Court had overlooked some relevant law. Whether or not because of that detail, some members of Congress have moved to reverse the Court.

House Joint Resolution 96 proposes an amendment to the Constitution that says: “The penalty of death for the forcible rape of a child who has not attained the age of 12 years does not constitute cruel and unusual punishment.”

Here’s the current vote on the bill. Click to vote or comment:



Boumediene v. Bush is a second case that members of Congress have gone after. The case found that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts. Justice Kennedy, again writing for the Court, said, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Shortly after the decision, H.R. 6274 was introduced: the Boumediene Jurisdiction Correction Act. It doesn’t set out to reverse the Supreme Court, but it says:

Any person being held under military authority in the part of Cuba leased to the United States may challenge the circumstances and legality of that person’s detention to the same extent and with the same rights as are provided under the writ of habeas corpus. The courts established under the Uniform Code of Military Justice and operating in that part of Cuba shall have exclusive original jurisdiction to hear and determine any such challenge.

Of course, giving jurisdiction over a writ of habeas corpus to a military court would have about the same effect as taking away the habeas petition, and the first commenter on the bill said: “If this bill will ‘undo’ the Supreme Court’s decision in the case of the Guantanamo detainees, it must be passed.”

Here’s the current vote on the bill. Click or vote to comment:



The Supreme Court is the highest court in the land, but it may not always have the last word.

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The WashingtonWatch.com Blog

[…] out next time. There are people who differ with the Supreme Court’s rulings, and they offer serious legislation and serious arguments. They’re doing they’re jobs as they see them, not monkeying […]

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