During Reconstruction, when the Southern states were still under military occupation, a Mississippi editor who was an “unreconstructed rebel” published an editorial in the Vicksburg Times called “The Scoundrelism of Satraps.” It severely criticized the Yankee general in command of that area. The editor was arrested and held for trial before a military commission under the Reconstruction Acts. He sought his freedom on a writ of habeas corpus, and when this was denied by the circuit court, appealed to the Supreme Court.
The radicals in Congress, fearing that he would win and that the Court might hold the Reconstruction Acts unconstitutional, as indeed a majority seemed about to do, took an extra-ordinary step. Though the Court had already taken jurisdiction and heard argument in the case, Congress over President Johnson’s veto passed a rider amending the Judiciary Act of 1789 to withdraw jurisdiction in habeas corpus appeals from the Supreme Court. Thereupon in Ex Parte McCardle (7 Wall. 506) the Court, in 1869, regretfully dismissed the editor’s appeal on the ground that authority to hear it had been withdrawn.
This obscure, dubious, and difficult case is the nearest thing to a precedent in American constitutional law for a bill Nixon has submitted to Congress. This declares a “moratorium” on all busing decisions by the federal courts until July 1 of next year or until the passage of its companion measure in his anti-busing program, the “Equal Opportunities Educational Act of 1972,” if that should be passed earlier. The effect of Ex Parte McCardle was to prevent the Supreme Court from enforcing a basic constitutional right, that of habeas corpus. The purpose of “The Student Transportation Moratorium Act of 1972,” as submitted to Congress by Nixon, is to prevent the Supreme Court and the lower federal courts for a time from enforcing, as they deem necessary, the constitutional right of blacks and other minorities to nonsegregated schools under the “equal protection” clause of the Fourteenth Amendment.
The constitutional question raised in both cases could hardly be more fundamental. Can Congress by legislation block the courts from enforcing fundamental rights? This casts a shadow far beyond the issues of school desegregation or of busing as one means of implementing it.
This is the second time in less than a decade that the Republicans have put forward this particular ploy to undercut Supreme Court decisions they disliked. In August, 1964, the late Senator Dirksen, then minority leader of the Senate, offered a similar “moratorium” rider to suspend for two to four years the historic “one man, one vote” reapportionment decision of the Supreme Court two months earlier. This brought a sharp protest from fifteen of the country’s most prestigious law school deans and law school professors, including Erwin N. Griswold, then dean of Harvard Law School and now solicitor general.1
What they said then of the Dirksen rider applies equally to the…
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