Judicial Power and Jurisdiction In a famous lecture delivered in 1942 Judge Learned
Hand said, “A constitution is primarily an instrument to distribute political power.” In any system of government, the department authorized to interpret and apply the law wields political power. American experience with the judicial power of the United States confirms this general proposition in its strongest form. In addition to applying the law's generalities to particular cases, American judges exercise major responsibility for shaping substantive public policies and even the structures of government. The title of Hand's lecture, “The Contribution of an Independent Judiciary to Civilization,” was only a mild exaggeration. Today, civilizations around the world rely upon independent judiciaries to interpret constitutions and enforce human rights.
The framers of the Constitution set the stage for the exercise of governmental authority by federal courts when they vested in them the “judicial power of the United States” in
Article III. That phrase describes the judicial function and defines the outer boundaries of the jurisdiction—the power to decide—that Congress can confer on the Supreme Court and the
lower federal courts, which together comprise the core of the federal judiciary. For the framers, however, the crucial purposes of Article III were both limitation and empowerment: to ensure that, within proper limits, the newly created judiciary would have a power of decision commensurate with the legislative powers of Congress. The framers did not mean to displace the
state courts, and they established limitations on the work federal judges would do. Mainly, though, they sought to provide a judicial mechanism for enforcing the laws that would emerge from the new national government.
Three ways of looking at the “judicial power of the United States” will aid understanding of the development of the legal doctrines governing the jurisdiction of the federal courts and of those courts' role in the system of government. All three perspectives are suggested in the language of the Constitution. First, the phrase describes a power assigned to courts, as opposed to other organs of government. Second, the term describes a power of the national government, as opposed to the states. Third, the power in question is one of the powers of governance allocated by the Constitution, a power that now permits the federal courts to influence and at times control the substantive policies enforced in the name of the United States—in short, a political power.
The Power of Judges.
Historians debate whether the Constitution's framers anticipated that the courts would exercise the power of
judicial review, that is, the power to hold laws or other federal governmental actions unconstitutional. Unquestionably, however, the framers were determined to assure the federal judiciary independence from the executive and legislative branches. The Constitution thus guarantees that the judges will hold their offices “during good Behaviour” (i.e., for life), and protects them against decreases in their salaries. Once the Supreme Court, under Chief Justice John
Marshall, had firmly established the power of judicial review, this independence from the other branches could be seen as a necessary condition of the rule of law. In the modern era this necessity came into bold relief after the Supreme Court decided
Brown v. Board of Education (1954, 1955) and federal judges throughout the South carried out the constitutional imperative of desegregating public schools in the face of virulent political opposition (see also
Desegregation Remedies).
At the Constitutional Convention of 1787 the delegates were of one mind about the necessity of a Supreme Court. Such a court was needed, for example, to decide cases that might grow out of conflicts among the states. Furthermore, the legislative powers of the new national government would apply directly to the people, without any need to use the state governments as intermediaries. The Supreme Court was needed to maintain the uniformity and supremacy of federal law.
The delegates were divided, however, on the question whether the Constitution should create lower federal courts. They compromised, leaving that decision to Congress: Article III vests the judicial power in “one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” When the First Congress met in 1789, it enacted the first Judiciary Act, establishing a system of federal trial courts. It confirmed the Supreme Court
’s limited
original jurisdiction in ambassador and state‐party cases and its
appellate jurisdiction over the decisions of the federal trial courts in civil cases and over state courts' decisions based on determinations of federal law (see
Judiciary Act of 17892). Most commentators today agree that Congress retains the constitutional power to abolish the lower federal courts altogether—but no one has any idea how the government might carry on the business of governing without those courts to enforce its law. The judicial power of the United States has become an essential part of modern government, and the federal courts have become, in the words of Felix
Frankfurter, the nation's “primary and powerful reliances for vindicating every right given by the Constitution, the laws, and the treaties of the United States” (Frankfurter and Landis, 1927, p 65).
In defining the extent of the judicial power, the Constitution specifies nine kinds of
cases and controversies that can be decided by the federal judiciary. These fall into two main categories: those defined according to their parties and those defined according to their subject matter. The party‐oriented category includes, most notably, controversies in which the United States is a party, in which the contending parties are different states, and in which the parties are citizens of different states (
diversity of citizenship jurisdiction). The subject‐matter category includes cases arising under the Constitution, federal laws, and treaties (
federal questions jurisdiction) as well as cases of
admiralty and maritime jurisdiction and cases affecting ambassadors.
Within these limits, Congress may exercise broad discretion over the distribution of jurisdiction among the federal courts. While Article III directly confers original and
appellate jurisdiction on the Supreme Court, Congress retains the power to provide the lower federal courts with
concurrent jurisdiction of matters within the Supreme Court's original cognizance and to fashion exceptions to the Supreme Court's appellate jurisdiction. Article III and Article I qualify congressional power by requiring that all lower federal courts and tribunals remain “inferior” to the Supreme Court.
This constitutional framework offers two general ways in which the jurisdiction of the federal courts can be made to expand or contract. First, within the constitutional limits, Congress may by statute augment or diminish the courts' jurisdiction. Second, the Supreme Court itself may give a broadening or a narrowing interpretation to Article III's definition of the judicial power, as when it expands or contracts the doctrines of justiciability. Because judicial power is political power, it is unsurprising that both the Supreme Court and Congress have expanded and contracted the federal courts' jurisdiction with substantive policies in mind. Disputes over the enforcement of federal rights, whether they be based upon constitutional interpretation or legislative enactment, tend to flow into the federal courts in keeping with the framers' notion that the judicial power was to be coextensive with the reach of federal law.
Both at the time of the framing, and as of today, the power to declare laws unconstitutional, and thus to refuse to enforce them, was not a function invariably entrusted to judges. When the Marshall Court asserted this power in
Marbury v. Madison (1803), however, the chief political opposition focused not on the principle of judicial review but on Marshall's intimations along other lines. Jeffersonians thought they saw in the Court's opinion a claim of broad judicial power to intrude into decisions that properly belonged within the executive branch. Marshall himself disclaimed any such ambitions and in so doing gave voice to a principle that today is called the
political question doctrine. In essence, that doctrine holds that some issues lie beyond the courts' jurisdiction because they fall within the exclusive domain of the political branches, that is, Congress or the president. The textual base for the political question doctrine is the specification, in Article III, that only cases and controversies lie within the judicial power; a political question is one that the courts see as presenting a dispute that the Constitution has assigned to a nonjudicial department for final resolution.
In the past century, the territory reserved to the political branches has diminished, but the political question doctrine remains strong in fields such as
foreign affairs,
impeachment, and Congress's control over the
constitutional amending process. Of far greater importance among the judicially created doctrines limiting the federal courts' jurisdiction are several other rules the Supreme Court has derived from Article III's references to cases and controversies: the doctrines of
standing,
ripeness, and
mootness. All these doctrines, the Supreme Court commonly says, are designed to ensure that the federal courts decide only issues whose resolution will affect the rights of persons in court and whose contours are well defined by facts that are concrete and by disputes that are real. The federal courts lack power to give
advisory opinions, that is, general statements about the law that are not attached to the resolution of cases. Concrete facts and real harms illuminate a court's understanding of issues, and the doctrines of standing, ripeness, and mootness promote efficiency in judging. These doctrines also tend to limit the judiciary to the resolution of disputes involving the rights of real parties, a limitation that is especially valued when the courts are exercising the power of judicial review.
Scholars question how much these judge‐made rules constrain the federal courts, especially the Supreme Court, which chooses from among thousands of petitions for
certiorari in deciding to hear some seventy‐five cases in any particular year. The power to pick and choose from among suitably ripe disputes between concretely adverse parties enables the Supreme Court to play a more active role in giving effect to its constitutional vision than the model of passive dispute resolution may suggest. The reality of the modern Supreme Court's practice may thus diverge to some extent from the model that informed the original justification for the doctrine of judicial review. In the
Marbury opinion Marshall defended judicial review by arguing that the essence of a court's function was to decide cases (and to do so according to law). The Supreme Court was ruling on the constitutionality of legislation not because it had a general commission to oversee Congress's legislative behavior but because the Constitution was higher law, drawn into conflict with other law in the course of a dispute the Court was bound to resolve. By tying the courts' power of constitutional interpretation to their power to decide cases, Marshall founded the legitimacy of judicial review on its connection to that case‐deciding function. While most lower federal courts have a largely nondiscretionary docket, and an obligation to decide all of the disputes that the parties bring before them, the Supreme Court's case‐deciding function has diminished in importance with the rise of its discretionary docket.
Ripeness and mootness are, in a sense, matters of timing. A federal court will dismiss a case for want of ripeness when the interests of the parties have not yet come into conflict in a way that gives the case sufficient concreteness to allow the court to understand the interests at stake or the legal issues raised. As the metaphor of ripening suggests, such a case may eventually be considered ready for decision, once additional facts have sharpened the contours of the dispute. A case becomes moot—and must be dismissed—when the decision of the case no longer can affect the parties' interests, the idea being that the dispute no longer presents a case or controversy.
More important than the doctrines of ripeness and mootness in limiting the federal courts' jurisdiction is the other main branch of the cases and controversies requirement, the doctrine of standing. Here the concern is not the timing of the case but the identity of the parties seeking judicial relief. In general, when government officials act, only someone who is personally injured by those acts has standing to complain that they are unlawful. Generally a plaintiff does not satisfy the requirement of standing by alleging that governmental action was unconstitutional, if the only harm alleged has been caused to someone else or if the illegality in question is only a violation of some other person's legal right. Under the Supreme Court's present reading of the doctrine, an individual may not necessarily challenge government action simply because it violates the Constitution, particularly where such a challenge arises from a “generalized grievance” that causes no particular injury to the individual in question. Even members of Congress have been denied standing to challenge alleged violations of the constitutional rules that structure the legislative process where they failed to show any personal and particularized injury (
Raines v. Byrd, 1997).
Although the Supreme Court differentiates between requirements that flow from Article III, and those that are matters of judicial prudence, all these doctrines have been made by judges. Still, the Court has made clear that Congress may play a role in shaping their application. In the Declaratory Judgments Act (1934), for example, Congress authorized suit in federal courts in a number of instances that gave rise to questions of ripeness. The Supreme Court upheld the law, limiting its application to cases in which the dispute, even though not far advanced, was likely to generate a factual record sufficiently concrete to inform the courts about the legal issues involved. More recently, Congress has adopted a series of statutes that attempt to give parties a legally cognizable stake in overseeing and enforcing the executive department's compliance with rules that constrain the administrative state. Beginning with the Administrative Procedure Act (1946), and continuing in recent statutes that authorize individuals to bring citizen suits to secure compliance with environmental laws and to bring actions on behalf of the federal government, the Supreme Court has permitted Congress to structure individual rights in ways that permit broader citizen engagement with the government's regulatory activities. Suits under such statutes have been allowed in the face of an argument, somewhat reminiscent of the Jeffersonian reaction to
Marbury, that they invade the discretionary power of the executive branch over law enforcement, and thus violate the constitutional
separation of powers (
FEC v. Akins, 1998).
Judges have played a similarly adaptive function in adjusting individual rights to sue to conform to their perception of the importance of securing enforcement of particular constitutional rights. During the years of Earl
Warren's chief justiceship (1953–1969), the Supreme Court expanded its interpretation of individual rights in such areas as civil rights, criminal justice, freedom of expression, and legislative apportionment. With the expanded litigation that these changes invited came a change in the analysis of the plaintiff's standing to pursue a new claim. Older formulations asked whether the plaintiff was asserting a legally cognizable interest, something that often proved fatal at the outset of the litigation to litigants pursuing a novel claim. By the early 1970s, the Supreme Court had begun to emphasize the existence of an “injury in fact.” For lawyers seeking to expand the reach of constitutional rights, this view had the advantage of divorcing the question of standing from that of the plaintiff's legal rights.
In the 1970s the Court also began to relax the rigors of the mootness barrier. A
class action—for example, a school desegregation case brought by a few students on behalf of all the African‐American children in a school district—would, in the traditional theory, become moot as the named plaintiffs were graduated from the school system. Nonetheless, the Court has held that such a case is not moot if it continues to present a live controversy between the school board and new students entering the plaintiff class as the old ones graduate. Furthermore, the Court has held that a case, otherwise moot, will not be dismissed if the governmental action in question is capable of being repeated, but—owing to the time required to carry a lawsuit through all its stages, including appeals—might escape judicial review if the action were dismissed. On this theory the plaintiff in the
abortion case of
Roe v. Wade (1973) was allowed to continue litigating even though she had already had her baby by the time the Supreme Court heard her case.
These developments in jurisdictional doctrine took place alongside the emergence of what Abram Chayes has called “public law litigation.” In the traditional
common‐law model of a lawsuit there is one plaintiff and one defendant; the plaintiff personally initiates the lawsuit, and on both sides the parties control the conduct of the case; the parties' dispute concerns legal obligations founded on facts in the past; the remedies requested are closely fitted to the specific rights of the plaintiff; and the case culminates in a single trial and a single judgment. If, however, a class of plaintiffs sues a governmental institution such as a school board or the managers of a state hospital or prison, the lawsuit is likely to diverge from the common‐law model. Public‐interest lawyers may invent the lawsuit and then go out to find some plaintiffs. Under liberal rules allowing other parties to intervene, the dispute may become multisided, as where parents opposed to busing intervene as parties in a school desegregation case. The plaintiffs may be seeking remedies that will reform the structure of an institution. After the court initially decides the case, it may retain jurisdiction over a long period while this structural reform is going on—for example, while a hospital revises its methods of dealing with mentally ill patients. During this time, there may be more hearings and more fact‐finding investigations, for example, to determine whether a school board is making sufficient progress toward desegregation. The whole process has a “legislative” or even “administrative” look. The interests of the particular parties in whose name the suit was filed seem secondary.
Recent developments have curtailed the public law model to some extent. Congress has adopted legislation that cuts back on the power of federal courts to exercise broad powers of supervision over state prisons, and the Supreme Court has signaled a desire for a more limited judicial role in school desegregation litigation. Chief Justice William H.
Rehnquist has been a leader in the Court's efforts to contain a number of the substantive constitutional developments of the Warren era. Rehnquist has also played a role in reshaping standing law to limit access to federal courts. These substantive and jurisdictional developments have restricted the role of federal judges in some processes of government—a result consistent with the explicit political agendas of Presidents Richard
Nixon, Ronald
Reagan, and George H. W. Bush, who had made all but one of the appointments to the Supreme Court from 1969 to the mid‐1990s, when President Bill Clinton appointed two justices. In other arenas, as with its controversial decision to resolve the presidential election in 2000, the Court has brought new political questions within the judiciary's compass (
Bush v. Gore, 2000).
Federal Jurisdiction and National Power.
The framers of the Constitution expected that a national judiciary, with ultimate responsibility for the interpretation and enforcement of national laws, would support the power of the national government. There have been moments in the nation's history during which the Supreme Court has frustrated the nationalizing efforts of the political branches in the name of states' rights, notably during the
New Deal. But even under Chief Justice William Rehnquist (1986–), when the Supreme Court has revived and constructed a series of limitations on the legislative power of Congress, limits set in the name of federalism have not gravely threatened national power.
The pattern was set early. The era of the Marshall Court (1801–1835) was, in every sense, a time of national expansion. The population was spilling over the Appalachians and into the heartland of the continent. A national economy was taking shape. No instrument of government was more important to this process than the federal judiciary. The Supreme Court gave the stamp of approval to a broad interpretation of the legislative powers of Congress, including not only the power to create substantive law but also the power to give jurisdiction to the federal courts. The Court's decision in
Osborn v. Bank of the United States (1824) was celebrated at the time mainly as a defense of an unloved federal institution against local populist attack, but its modern importance lies elsewhere. The Court gave a sweepingly broad interpretation of Congress's power to grant federal courts jurisdiction in federal question cases. For half a century Congress before 1875 declined to accept the Court's invitation to confer a broad federal‐question jurisdiction on the federal courts. This reluctance paralleled Congress's unwillingness, until late in the nineteenth century, to adopt substantive legislation that gave effect to the Court's broad interpretation of its power to regulate interstate commerce (see
Commerce Power).
Despite this congressional disinclination to expand the reach of the national government, the Supreme Court's work during the first half of the nineteenth century contributed to the making of a nation. Its decisions on both substantive law and federal court jurisdiction promoted this end. The Court was zealous to protect the growing national economy against local regulations that would stifle enterprise and inhibit interstate trade. Its doctrinal grounds for striking down state and local legislation were mainly the Commerce Clause and the
Contracts Clause. Every interpretation of the Constitution, of course, adds to a body of national law. Because Congress had not yet established a general federal‐question jurisdiction in the lower federal courts, the Supreme Court itself was called on to rule on many of these constitutional challenges to state laws. In the first Judiciary Act (1789) Congress had given the Court appellate jurisdiction over judgments of the highest state courts in cases presenting issues of federal law, and the Court had upheld the constitutionality of this jurisdictional grant in
Martin v. Hunter's Lessee (1816).
Throughout the early nineteenth century the moral pestilence of
slavery was protected against eradication by much more than constitutional theory. Even so, such theory played its part. The doctrine of
dual federalism assumed that the national government and the states occupied separate spheres of sovereignty, with slavery largely assigned to the states' domain. As a general constitutional theory, dual federalism survived until the New Deal, but its application to slavery perished in the
Civil War. The
Reconstruction era saw the adoption of three amendments to the Constitution and four major civil rights acts. This legislation promised equal
citizenship to freed slaves and established federal instrumentalities to enforce the rights of citizens. In addition, two acts of Congress—the Habeas Corpus Act of 1867 and the Judiciary Act of 1875—expanded the jurisdiction of the federal courts and have had enormous modern importance (see
Removal Act of 1875).
The 1867 act authorized federal circuit courts to grant the writ of
habeas corpus to persons held in custody in violation of the Constitution. The act's immediate purposes were to protect federal officers and their families from harassment by local officials in the southern states during the Union army's occupation and to release some freed slaves who were being held in unlawful captivity. The law has been amended from time to time; its present version extends to state prisoners who have been imprisoned in the ordinary criminal process. The law today allows a federal court to grant the writ, releasing any person held in custody by state authorities in violation of the federal Constitution. From the 1920s to the 1970s the Supreme Court gradually expanded the demands of the
Fourteenth Amendment's Due Process Clause in state criminal prosecutions (see
Due Process, Procedural). Here, too, federal substantive law and federal court jurisdiction have interacted. Many of the Supreme Court's decisions recognizing new due process requirements for the states grew out of federal habeas corpus proceedings. As the substantive requirements of due process expanded, so did the numbers of state prisoners filing petitions for habeas corpus.
The 1875 Judiciary Act established the original federal‐question jurisdiction of the federal courts, limited only by the restriction that the matter in controversy involve a certain amount of money; this statutory jurisdiction remains today in virtually the same form but no longer includes any jurisdictional amount. As a result, plaintiffs with federal constitutional challenges to state laws, or with claims based on federal statutes, have the option of suing in federal courts in the first instance. Today a major portion of the lower federal courts' workload consists of such constitutional and statutory challenges.
Another substantive development added to federal judicial power at the local level. The heart of the jurisdiction of the federal district courts during this period was their power to decide diversity of citizenship cases (in Article III's language, controversies “between Citizens of different States”). In
Swift v. Tyson (1842) the Supreme Court held that a federal court in such a case should apply principles of a general common law—that is, a general federal common law. The opinion's author, Justice Joseph
Story, surely hoped that the federal courts would take the lead in developing a uniform national body of law governing contracts and other commercial transactions, thus facilitating the smooth development of nationwide commerce. This arrangement had its problems; it led lawyers into “forum shopping,” jockeying to locate cases in state or federal courts, depending on where the substantive law seemed more favorable to their clients. The Supreme Court did not abandon this system of federal common law until 1938, when it held in
Erie Railroad Co. v. Tompkins that a federal district court, in a diversity of citizenship case, must apply the common law of the state in which it sits. Though often portrayed as preserving a role for state courts in the development of state law, and as reflecting a perception that federal courts properly focus on the interpretation and enforcement of federal law, recent scholarship depicts the
Erie decision as the triumph of a sustained Progressive critique of the lawmaking role that federal courts had played in the exercise of their diversity jurisdiction. By preventing federal judges in diversity from making law to govern labor disputes, personal injury cases, and contract disputes (except within boundaries defined by federal statutory law), the
Erie doctrine has come to secure the primacy of the legislative power at both the state and federal levels.
With acceptance of the
Erie doctrine's portrait of the proper federal judicial role in such cases, many have called for a repeal or substantial curtailment of the diversity jurisdiction. While the repeal movement made some headway through the 1970s and 1980s, practicing lawyers have always resisted the loss of forum choice that a restriction of diversity jurisdiction would entail. More recently, corporations have lobbied extensively for the preservation and expansion of diversity jurisdiction, particularly over claims joined together for mass litigation. Two such statutes have become law, the Y2K Class Action legislation (1999), and the Multiparty, Multiforum Trial Jurisdiction Act of 2002, both of which deal with the complexity of mass litigation by shifting cases to federal dockets on the basis of minimal diversity. Broader minimal diversity class action legislation may follow, driven both by the procedural advantages of federal transfer and consolidation practice and by a perception that federal courts take a more restrictive view of the availability of such actions and thus offer a more hospitable forum for corporate litigants.
Around the beginning of the twentieth century, the Supreme Court began to strike down a considerable number of state laws regulating economic activity; the preferred ground for these decisions was the Fourteenth Amendment's Due Process Clause, now in its substantive
due process mode. The
Eleventh Amendment, which had been interpreted as immunizing state governments from suit in federal court in a wide range of potential actions, seemed a serious jurisdictional obstacle to the enforcement of such due process limits in the federal trial courts. Demonstrating again that jurisdiction follows substance, the Court in
Ex parte Young (1908) held that a state officer who was acting unconstitutionally was stripped of his official character, so that a suit to enjoin the officer's illegal conduct was not a prohibited suit against the state (see
Injunctions and Equitable Remedies). In one perspective the ruling was a triumph of form over substance; but in the modern era it has provided the jurisdictional basis for federal judges to enjoin state officers from denying all manner of federal constitutional rights. A rigorous application of the Eleventh Amendment's immunity implies a drastic limitation of the power of the federal judiciary to enforce the Constitution. One observer's patent fiction is another's essential predicate for the rule of law.
The 1932 election of Franklin D.
Roosevelt brought a strong new political philosophy to power in the national government; his New Deal legislative program ran headlong into the Supreme Court's restrictive interpretations of the Commerce Clause and the Due Process Clause of the
Fifth Amendment. Given the Supreme Court's adamant refusal, for several years, to uphold the constitutionality of major New Deal statutes, one might have expected a move to limit the Court's jurisdiction. Instead, President Roosevelt asked Congress to authorize an increase in the Court's membership to a maximum of fifteen justices. The
court‐packing plan died in the Senate, but the Court had already begun to uphold New Deal statutes, and, for a season, all talk of limiting the Court's jurisdiction ceased. The combination of the Great Depression and
World War II produced a wholesale transfer of political power from the states to the national government, and the federal courts retained ample jurisdiction to effectuate that shift of power (see
Federalism).
Jurisdiction and Political Preferences.
During the New Deal years the Supreme Court's role in the governmental system generated an often impassioned, and sometimes fierce, debate. In those years no one could doubt that judicial power was political power. The Court's critics, echoing a famous dissent by Justice Oliver Wendell
Holmes in
Lochner v. New York (1905), said that the “nine old men” were simply writing their preferences for laissez‐faire economics into the Constitution's two due process clauses (see
Laissez‐Faire Constitutionalism). By the 1950s critics of the Warren Court were complaining that a new generation of justices was writing its preferences for other kinds of liberty, and for racial equality, into the Constitution. The
Brown v. Board of Education decisions of the mid‐1950s not only served as catalysts for the
civil rights movement; Brown also introduced an era in which the federal judiciary, and the Supreme Court in particular, took on new responsibility for protecting outsiders, dissenters, subordinated groups, have‐nots—in other words, constituencies dramatically different from those of the “nine old men.” More recently, with efforts to cut back on the Warren Court legacy and with the advent of newly minted protections for the states' role in the federal system, commentators increasingly worry about conservative judicial activism.
For a federal court to enforce substantive constitutional rights, of course, the court must have jurisdiction over a case. When a challenged state law has been enforced in the state courts (for example, by criminal prosecution), a sympathetic Supreme Court can rule on the constitutional issues on appellate review. In some cases, however, jurisdictional limitations such as the political question doctrine or the rules of standing may make it difficult for anyone to raise the constitutional claims in question in any federal court. So it was with the problem of legislative apportionment until the 1960s, when the Warren Court dramatically broadened both substantive rights in this area and the federal courts' jurisdiction to protect those rights.
After a census, when it is time to draw new boundaries for legislative districts, every state legislature is disposed toward promoting the interests of the majority party. That purpose may counsel doing nothing at all, leaving the district lines as they were before the latest census or even as it has been for fifty years. Until 1962 the prevailing view of the Supreme Court was that the political questions doctrine (and arguably the law of standing as well) doomed any lawsuit challenging the constitutionality of a state's apportionment system. Such facts, the Court said, raised a claim under Article IV's clause guaranteeing each state a republican form of government, and the Court had previously held that such claims raised questions lying within the domain of the political branches (see
Guarantee Clause). Congress, for example, might refuse to seat an Illinois delegation elected as a result of malapportionment, but it was no business of the federal courts to set things right.
In
Baker v. Carr (1962), however, the Court rejected this reasoning and concluded that claims of malapportionment were proper subjects of adjudication by the federal courts. Two years later, in
Reynolds v. Sims (1964), the Court established a basic rule of population equality for legislative districts: absent some special reason for departing from equality, the rule was to be one person one vote. These
reapportionment cases provide one of the best examples of the interconnection of judicial jurisdiction and substantive policies.
The Warren Court's recognition of new federal constitutional rights in the area of criminal justice chiefly took the form of the selective
incorporation of the Bill of Rights into the Fourteenth Amendment's Due Process Clause. By that doctrinal means a number of guarantees—such as the privilege against
self‐incrimination,
trial by jury, and the right to
counsel—were made applicable not only to the federal government but to the states as well. There was an immediate, dramatic increase in the number of instances in which persons caught up in the state criminal justice systems became potential claimants of federal constitutional rights. The traditional manner of bringing claims of this kind before a federal court had been to seek appellate review in the Supreme Court. But the Supreme Court agrees to hear about seventy‐five cases each year, and it was unimaginable that such review would provide effective supervision of state court protection of the newly recognized rights, particularly in the South where the even‐handed extension of new rights had to overcome the legacy of Jim Crow.
The Supreme Court's solution to this problem was to rely on the federal district courts as the federal forum in which those federal constitutional claims might be made, after state criminal processes had run their course. The Court found this solution in its interpretation of the modern habeas corpus statute, a descendant of the Habeas Corpus Act of 1867. In Brown v.
Allen (1953), the Court held that a federal court sitting in habeas must make an independent determination of a state prisoner's constitutional claims, even where those claims have been fully and fairly litigated in the state courts. In
Fay v. Noia (1963) the Court authorized federal habeas corpus relief even when state prisoners had failed to raise their federal constitutional claims in a proper manner in the state courts, so long as these failures resulted from lawyers' errors and not from conscious strategic choices. The number of habeas corpus petitions increased greatly. So did the resentment of state officials, who faced the prospect that a conviction affirmed by a state supreme court could be overturned by the ruling of a single federal district judge.
A number of the Warren Court's politically controversial decisions, as well as some decisions of the Burger Court (1969–1986), have provoked serious efforts in Congress to restrict the Supreme Court's jurisdiction, the jurisdiction of the lower federal courts, or both. The usual bill of this type proposes to withdraw jurisdiction over cases involving a particular substantive area or even a particular substantive result. Various bills have proposed to immunize any number of areas from federal judicial intervention, including school busing, legislative apportionment, subversive activities, school prayers, and abortion. For several decades legal scholars have debated the constitutional validity of this sort of restriction on the federal courts' jurisdiction, which in its baldest form seeks a change in constitutional meaning through the passage of ordinary legislation. Until recently, such legislation has not become law, as members of Congress voted to protect the idea of an independent judiciary, just as they did when Roosevelt sought to pack the Supreme Court.
Even so, some of the substantive goals of these congressional proposals have been accomplished without any restriction of the federal courts' jurisdiction, just as the constitutionality of the New Deal's program was consolidated in the 1940s without any structural change to the Constitution. In both instances important doctrinal changes have followed changes in the Court's composition, as newly elected presidents have appointed like‐minded justices.
In recent decades, the more conservative justices of the Burger and Rehnquist Courts have succeeded in narrowing access to federal courts for state prisoner habeas corpus petitions. First in
Stone v. Powell (1976) the Court denied habeas corpus to petitioners who claimed that their state court convictions were infected by the introduction of evidence that had been obtained through unconstitutional searches and seizures (see
Fourth Amendment). Then, in a series of cases, the Court overruled
Fay v. Noia both as it applied to the strategic decisions and inadvertent errors that occur during trial proceedings and to more fundamental failures on the part of appellate counsel. Under the current regime, criminal defendants must live (and occasionally die) with their lawyers' mistakes unless those mistakes compel the courts to conclude that the defendants have been effectively denied the right to counsel. Finally, in
Teague v. Lane (1989), the Court denied relief to habeas petitioners seeking the extension of an established rule of constitutional law to a new situation.
These cases are merely illustrations of a broad range of jurisdictional doctrines that the Supreme Court's majority has used to shut the federal courthouse door to federal constitutional and statutory claims. Another technique has been the doctrine of “equitable restraint,” which bars federal courts from giving injunctive relief against state criminal prosecutions (and some civil actions) even when those state proceedings may be based on unconstitutional state laws (see
Abstention Doctrine). Such doctrines result in the initial determination of many federal constitutional challenges by state judges, subject to some degree of federal judicial oversight.
The Supreme Court has also ascribed broad new significance to the idea of state
sovereignty, ruling in a series of cases that Congress lacks power to subject the states to suits for money damages to enforce statutes, such as environmental and intellectual property laws, that were adopted to regulate the national economy. Although initially based upon the Eleventh Amendment and its curtailment of the federal judicial power in a limited range of matters (
Seminole Tribe v. Florida, 1996) the Court's more recent decisions candidly admit that the text of the Eleventh Amendment has little to do with its restriction of congressional power (
Alden v. Maine, 1999). Rendered in the name of federalism, these highly controversial decisions flatly restrict the ability of private individuals to enforce federal commercial law against the states, except in actions for injunctive or declaratory relief. They correspond to decisions in the same period that limit both the scope of Congress's commerce power and the manner in which it structures programs of cooperative federalism.
While Congress has enacted a notable collection of statutes that purport to authorize suits against the states as such, a distinctive feature of legislative activity in recent years has been its tendency to support and extend the Supreme Court's judge‐made rules of jurisdictional curtailment, and to curtail the jurisdiction of the lower federal courts. In the Antiterrorism and Effective Death Penalty Act of 1996 (ADEPA), Congress codified and extended a number of the Supreme Court's own decisions restricting the scope of federal habeas corpus review, and did so in a way that sought to diminish the role of the lower federal courts as constitutional interpreters. In the Prison Litigation Reform Act of 1995, Congress drastically limited the role of the federal courts in supervising the conditions of confinement in state prisons, and adopted provisions designed to curtail such litigation. Such restrictions succeeded in reducing the number of prisoner filings by some 40 percent. Similar restrictions narrow the ability of the federal courts to review administrative decisions concerning the detention and eventual deportation of illegal immigrants. More sweeping restrictions became law with the adoption of the USA Patriot Act of 2001, as Congress and President George W. Bush responded to the events of 11 September 2001 by stepping up the administration's power to detain and interrogate immigrants thought to have ties to terrorist organizations.
Many of these new legislative and executive initiatives, including President Bush's executive order of November 2001 establishing military tribunals, and the detention of enemy combatants at Guantanamo Bay, Cuba, will test the limits of judicial independence and the scope of Congress's power over federal jurisdiction. So far, the Supreme Court has proceeded cautiously. Rather than proclaim the unconstitutionality of jurisdiction‐stripping legislation and other efforts to exclude certain questions from the federal courts, the Court has invoked the doctrine of constitutional avoidance to justify a clear statement rule. Under the doctrine, the Court seeks to avoid a finding that certain jurisdictional restrictions violate the Constitution; it does so by construing statutes, if possible, to find that they do not actually impose a substantial jurisdictional restriction. Only where Congress issues an especially clear statement will the Court have to reach the constitutional issue. The lack of the requisite clear statement doomed Congress's attempt to restrict the Supreme Court's own appellate jurisdiction in
Felker v. Turpin (1996), just as the lack of such a statement persuaded the Court to conclude in
INS v. St. Cyr (2001) that Congress had not really meant to curtail judicial review in certain immigration cases. Many scholars expect that federal courts will use the clear statement rule to avoid the apparent implications of a provision the Bush military tribunals order. The order creates non‐Article III courts staffed by military personnel to adjudicate certain claims of unlawful terrorist activity by noncitizens and purports to preclude all judicial review. But such preclusion would raise substantial questions concerning the power of Congress and the executive to suspend the writ of habeas corpus.
The wisdom of the framers of the Constitution in seeking to guarantee the independence of the federal courts from partisan politics is more apparent today than ever before. The wisdom of a wholesale transfer of the defense of federal constitutional rights away from those courts to federal executive branch officials and elected state judges is less apparent (see
State Constitutions and Individual Rights). Nonetheless, some members have Congress have begun to press a jurisdiction‐stripping agenda that would eliminate the federal judicial role on such issues as same sex‐marriage and the public expression of religious faith. Today, as always, the allocation of judicial jurisdiction—especially the withdrawal of jurisdiction from courts that enjoy political independence—is an exercise of political power.
Bibliography
Jack Bass , Unlikely Heroes: The Dramatic Story of the Southern Judges Who Translated the Supreme Court's Brown Decision into a Revolution for Equality (1981).
Abram Chayes , The Supreme Court, 1981 Term—Foreword: Public Law Litigation and the Burger Court, Harvard Law Review 96 (1982): 4–60.
Richard H. Fallon, Jr.,, Daniel J. Meltzer,, and and David L. Shapiro , Hart and Wechsler's The Federal Courts and the Federal System, 5th ed. (2003).
Malcolm M. Feeley and and Edward L. Rubin , Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons (1998).
Felix Frankfurter and and James M. Landis , The Business of the Supreme Court: A Study in the Federal Judicial System (1927).
Learned Hand , The Spirit of Liberty, edited by Irving Dilliard (1952).
Richard Posner , The Federal Courts: Challenge and Reform (1996).
Edward A. Purcell, Jr. , Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth‐Century America (2000).
Kenneth L. Karst; revised by and James E. Pfander
