Appellate Jurisdiction

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A court's appellate jurisdiction is its power to review the actions of another body, usually a lower court. The appellate jurisdiction of our federal courts lies within the control of Congress. Article III of the Constitution, after establishing the Supreme Court's original jurisdiction over certain cases, gives the Court appellate jurisdiction over all other types of cases within "the judicial power of the united states " but empowers Congress to make "exceptions and regulations" governing that jurisdiction. In the judiciary act of 1789 Congress did not, formally, make exceptions to the Supreme Court's appellate jurisdiction; rather it purported to grant the Court jurisdiction to hear various types of cases on writ of error. The assumption has been that such an affirmative grant of appellate jurisdiction over specified types of cases is, by implication, an "exception," excluding the Court from taking appellate jurisdiction over cases not mentioned.

The Supreme Court itself accepted this line of reasoning in ex parte mccardle (1869), stating that without a statutory grant of appellate jurisdiction it had no power to hear a case. Read broadly, this holding empowers Congress to undermine judicial review by withdrawing the Supreme Court's most important functions. Some commentators argue that Congress, in controlling the Supreme Court's appellate jurisdiction, is constitutionally bound to respect the Court's essential role in a system of separation of powers. Other writers, however, reject this view, and the Supreme Court has been presented with no modern occasion to face the issue. (See judicial system.)

Whatever the Constitution may ultimately require, Congress has acted on the assumption that it need not extend the Supreme Court's appellate jurisdiction to occupy the whole of the judicial power established by Article III. Until 1925, for example, the Court's appellate review of civil cases was limited by a requirement of a certain dollar amount in controversy. For the first century of the Court's existence, it had no general appellate jurisdiction over federal criminal cases, but reviewed such a case only on writ of habeas corpus or upon a lower court's certification of a division of opinion on an issue of law. Until 1914, the Supreme Court could review state court decisions only when they denied claims of federal right, not when they validated those claims. Although all these major limitations on the Court's appellate jurisdiction have now been eliminated, the halls of Congress perennially ring with calls for removing the Court's power over cases involving such emotion-charged subjects as subversive activities, school prayers, or abortion.

From the beginning the Supreme Court has reviewed cases coming from the lower federal courts and the state courts. The latter jurisdiction has been the source of political controversy, not only in its exercise but in its very existence. In a doctrinal sense, the power of Congress to establish the Court's appellate jurisdiction over state court decisions was settled early, in martin v. hunter ' s lessee (1816). In the realm of practical politics, the issue was settled when any serious thoughts of interposition or nullification were laid to rest by the outcome of the Civil War. (Ironically, the confederate constitution had provided a similar appellate jurisdiction for the Confederacy's own supreme court.) By the late 1950s, when the Court confronted intense opposition to school desegregation, its appellate jurisdiction was firmly entrenched; southern efforts to curb the Court failed miserably.

The Supreme Court's review of state court decisions is limited to issues of federal law. Even federal questions will not be decided by the Court if the state court's judgment rests on an adequate state ground. By congressional statute the Court is instructed to review only final judgments of state courts, but this limitation is now riddled with judge-made exceptions. The Court does, however, obey strictly its statutory instruction to review the decision of only the highest state court in which judgment is available in a given case. As Thompson v. Louisville (1960) shows, even a justice of the peace may constitute that "highest court" if state law provides no appeal from the justice's decision.

When the Supreme Court reviews a state court decision, all the jurisdictional limitations on the federal courts come into play. For example, although a state court may routinely confer standing on any state taxpayer to challenge state governmental action, the Supreme Court can take appellate jurisdiction only if the taxpayer satisfies the federal standards for standing.

Of the 4,000 cases brought to the Court in a typical year, only about 150 will be decided with full opinion. A large number of state criminal convictions raise substantial issues of federal constitutional law, but they largely go unreviewed in the Supreme Court. The warren court sought to provide a substitute federal remedy, facilitating access for state prisoners to federal habeas corpus. In the 1970s, however, the burger court drastically limited that access; in practical terms, a great many state convictions now escape review of their federal constitutional issues in any federal forum.

Final judgments of the federal district courts are normally reviewed in the courts of appeals, although direct appeal to the Supreme Court is available in a very few categories of cases. Usually, then, a case brought to the Supreme Court has already been the subject of one appeal. The Court thus can husband its resources for its main appellate functions: nourishing the development of a coherent body of federal law, and promoting that law's uniformity and supremacy.

For the Supreme Court's first century, its appellate jurisdiction was mostly obligatory; when Congress authorized a writ of error, the Court had no discretion to decline. The Court's second century has seen a progressive increase in the use of the discretionary writ of certiorari as a means of invoking Supreme Court review, with a corresponding decline in statutory entitlements to review on appeal. Today the Court has a high degree of discretion to choose which cases it will decide. Some observers think this discretion weakens the theoretical foundation of judicial review, expressed in marbury v. madison (1803). The Court there based its power to hold an act of Congress unconstitutional on the necessity to decide a case. If the Court has discretion whether to decide, the necessity disappears, and thus (so the argument goes) judicial review's legitimacy. Ultimately, that legitimacy may come to depend, both theoretically and politically, on the very power of congressional control so often seen as a threat to the Supreme Court's appellate jurisdiction.

Kenneth L. Karst


Bator, Paul M.; Mishkin, Paul J.; Shapiro, David L.; and Wechsler, Herbert, eds. 1973 The Federal Courts and the Federal System, 2nd ed. Chaps. 5, 11. Mineola, N.Y.: Foundation Press.