Duncan supporting bill to check high court

“I don’t think the Founding Fathers meant for the Supreme Court to become some sort of dictatorial power where potentially five people (a court majority) could overrule the wishes of an entire nation,” Duncan said in an interview.

The legislation, primarily authored by U.S. Rep. Ron Lewis, R-Ky., is stirring debate over whether Congress has the power to define the jurisdiction of the Supreme Court without an amendment to the U.S. Constitution.

Congress can override a presidential veto of a bill with two-thirds majority votes in both the House and Senate. A Supreme Court ruling, however, is the final decision on a legal challenge.

Duncan said the controversial bill could take 10 years to pass or may never be approved. The former criminal court judge in Knox County believes it will at least stimulate public debate about what he sees as excessive, unwise judicial power.

“I think we have had too many federal courts in recent years that have set themselves up as sort of super legislatures,” he said. “They have gotten into areas that they never got into before.”

Duncan cited earlier high court decisions that served to protect “terrible criminals.” He also said there is a chance the Supreme Court could one day take the words “under God” out of the Pledge of Allegiance, and some lower court rulings have opened the door to same-sex marriage.

Anthony Nownes, a University of Tennessee political science professor, doubts the bill could be passed.

“The Supreme Court remains a pretty popular institution of government among the public, the Congress, and — not all the time — even with the president,” Nownes said. “People tend to trust their (the justices’) judgment, and I think anything that would make them less powerful would probably go over less well with the public than a lot of conservatives think it would.”

Lewis said it is proper for the judiciary to review congressional legislation, but leaving the final decision to the Supreme Court can create “a despotic branch.”

“Why should the Supreme Court be the last word on what the Constitution says?” Lewis asked. “It was written by the founders for the citizens in the country, and is not for a select few who think they have a monopoly on what the Constitution says.”

Glenn Reynolds, a UT professor who teaches constitutional law, has not studied the bill but questions its wisdom.

“I don’t see how (the law) can be constitutional in the absence of a constitutional amendment making it so,” Reynolds said. “It seems like a dreadful idea to me. Congress, frankly, isn’t doing so well at performing its constitutionally assigned duties these days that it has any business performing anyone else’s.”

Elliot Mincberg, a legal counsel for the civil-liberties group People for the American Way, noted the landmark Supreme Court decision 50 years ago that required desegregation of schools. It was unpopular at the time with many people, he said.

“If this (House-proposed) rule were in effect, I think it is quite possible, unfortunately, that Brown v. Board of Education would have been reversed by two-thirds of the House and Senate,” Mincberg said.

“The whole idea of the Supreme Court is to provide folks who are not subject to political pressure who can look at the law and the constitutional principles, some of which are deliberately set up to give minorities rights, and not to have the majority rule.”

It’s dangerous to allow too much unchecked power by one of the three branches of government, Duncan said.

“This is a way to put a very minimal limitation or check on the power of the Supreme Court,” he said. “A bill like this would give the people of this country a little more say over their own government.”

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Information from: The Knoxville News Sentinel, http://www.knoxnews.com