Why Not Just Limit the Supreme Court's Jurisdiction over Parental Rights?
Instead of an Amendment, why not use Congress's power to limit the jurisdiction of the Supreme Court to prevent them from deciding on parental rights cases?
Answer:
- This measure would not be easier to pass than the constitutional Amendment. Although the Amendment requires a 2/3 majority, passing a measure limiting the Supreme Court would be just as difficult in today's political climate, because it would require the president's signature, which it is not likely to receive. Barring that, it would also require a 2/3 vote in order to override his veto.
- If Congress were to pass a measure that limited the scope of the Supreme Court, it would apply exclusively to federal courts. This means that the law would not apply to State and local courts, which would still be obligated to fulfill the UN CRC should it ever be ratified.
- Finally, this type of a measure would freeze the Court's jurisprudence where it currently stands. Thus the binding precedent for the Supreme Court would be Troxel v. Granville -- which refused to grant strict scrutiny protection to parental rights. Were Wisconsin v. Yoder or Pierce v. Society of Sisters the binding precedent for the Supreme Court, this could possibly be a different issue, but the jurisprudence of the Court as it currently stands offers no substantive protection for parental rights.