In this second segment, I provide a list of possible actions of various kinds available for Congress to undertake. I am not providing likely, practical, or certain to succeed tactics. I’m providing here a list of available options. I’ll allow Majority Leader McConnell and Speaker Boehner explain why none of these is worth exploring.]
B.O.I.L.: BUDGET, OVERSIGHT, IMPEACHMENT, and LEGISLATION Offer Four Distinct Categories of Responses by Which Congress Can Answer the Obergefell Decision
If a Representative’s or Senator’s sole defense against legislative action is that there is little likelihood of success in any of these efforts, and if you are content to leave your Representative and Senators in peace when they let slip the “wolf” cry of “futility,” then read no further. Simply accept that there is nothing that Congress will do in response to what many perceive to be a lawless decision of the Court.
Congress has the power of the purse.
Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.
In all the other cases before mentioned, 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.
We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.... It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.
I do not see any reason why Congress cannot, if it elects to do so, take away entirely the appellate jurisdiction of the Supreme Court of the United States over state supreme court decisions.