As alexander hamilton stressed in the federalist #78, the power and obligation of federal judges to measure the conduct of public officials and bodies against the precepts of the Constitution mean that federal courts must sometimes act to thwart these officials and bodies. On occasion this is, at least in some quarters, a very unpopular enterprise. From time to time, Congress has entertained the possibility of responding to controversial decisions by the Supreme Court or the lower federal courts by strategically removing the jurisdiction of part or all of the federal judiciary over the controverted matters.
Proposals of this sort raise the important and sensitive question of whether the lower federal courts and, possibly, even the Supreme Court, ultimately act at the sufferance of Congress or whether the Constitution secures the existence of an independent federal judicial voice. Article III of the Constitution, which provides for the establishment of the federal judiciary, invites rather than stills speculation on this fundamental question of institutional structure. The first sentence of Article III provides: "The judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Following this is the provision without which Hamilton felt the Constitution would have been "inexcusably defective": "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office."
Section 2 of Article III begins with a menu of matters over which the judicial power "shall extend." Nine categories are delineated. The first three are styled as classes of "cases," the most important being cases "arising under this Constitution, the Laws of the United States, and treaties." The remaining six are styled as classes o "controversies," the most prominent being controversies "between Citizens of different States." Section 2 then specifies two narrow classes of cases over which the Supreme Court has original jurisdiction and concludes with the following stipulation: "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."
Remarkably, there is no well-settled understanding of the scope of Congress's authority under these provisions to restrict federal jurisdiction. Cooler and more responsible heads have usually prevailed in Congress when "court-stripping" proposals have been floated, and the Supreme Court has been carefully diplomatic in sounding deference to Congress when it can afford to do so; as a result, there is little authority on the question. Most of the Court's pertinent statements have been by way of broad obiter dictum and have been Janus-faced. Broad statements welcoming Congress's plenary license to sculpt federal jurisdiction have been balanced by the Court's insistence that the very fabric of national union depends on the existence of final federal judicial authority over legal affairs.
The two most prominent cases in this area both grew out of the civil war. In ex parte mccardle (1869) the Court faced jurisdiction-limiting legislation plainly intended to protect Reconstruction legislation from constitutional invalidation. Although the legislation gestured at pushing the Court aside, it only touched one statutory basis of the Court's appellate jurisdiction, leaving—as the Court itself pointedly observed—another statutory route to the same end. With an angry and somewhat dangerous Congress in the wings and with little at stake for the moment, the Court gave broad deference to Congress's power to reduce its appellate jurisdiction. Three years later, in an attempt to prevent the presidential pardon of supporters of the Confederacy from entitling them to compensation for property lost during the hostilities, Congress denied the federal courts jurisdiction over property claims that depended on presidential pardon. In United States v. Klein (1872) the Court promptly struck down this law as a means to the unconstitutional end of interfering with the President's authority to grant pardons and as an unconstitutional attempt to dictate how federal courts otherwise seized with jurisdiction should decide cases. Most commentators are skeptical about the applicability of either the generous tone of McCardle or the special circumstances of Klein to modern court-stripping issues.
A few propositions are reasonably clear. In one sense, the lower federal courts do indeed exist at the sufferance of Congress. Although there is some scholarly dissent, most commentators agree that Congress was not obliged to create the lower federal courts at all and could disband them today. Most also agree that when Congress does establish lower courts it need not give them all or any particular part of the jurisdiction enumerated in Article III. Events at the constitutional convention of 1787 support the conclusion that the Framers intended to resolve their sharp division over what form, if any, the lower federal judiciary should assume by leaving the matter for congressional resolution, and the first sentence of Article III plainly executes this compromise. Although it is logically possible to hold that Congress must give all of the federal judicial power to any lower federal court it creates, such an inflexible view seems arbitrary and at odds with the idea of remanding the shape of the lower federal courts to the judgment of Congress in the first place. Congress has never given all of Article III jurisdiction to the lower federal courts, and the Supreme Court, from Sheldon v. Sill (1850) forward, has firmly assumed that Congress can order à la carte from the Article III menu.
Sheldon v. Sill can be read to say that Congress can choose any package of lower-court jurisdiction it likes, as long as the bounds of Article III jurisdiction are not exceeded. But this is surely not the case. Were Congress to parse access to civil plaintiffs on the ground of their religion or political affiliation, for example, the first amendment would surely be violated. A diversity case with no pertinent wrinkles, Sheldon reliably stands only as a negation of the binary view of congressional authority over the lower federal courts.
With respect to the Supreme Court, once it is observed that the first sentence of Article III clearly contemplates the existence of a Supreme Court with some modicum of jurisdiction, the textual focus shifts to the last sentence of Article III: "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." Most commentators agree that Congress's authority under this provision includes the power to remove some Article iii cases or controversies from the appellate jurisdiction of the Supreme Court. Congress has always kept some classes of cases from the Supreme Court, and the Court consistently has endorsed this reading of the exceptions language. Substantial housekeeping concerns support this institutional consensus. Some Article III matters have seemed unnecessary or even inappropriate candidates for the Court's appellate jurisdiction, such as controversies between citizens of different states that have been fully adjudicated in the courts of one of the states.
But beyond the propositions that the Supreme Court must have some jurisdiction and that Congress can take some cases out of the Court's appellate jurisdiction, little is clear, and much remains open to scholarly reflection. The orthodox view among legal scholars has been very generous to Congress. As long as Congress leaves the jurisdiction of state courts intact, avoids patent constitutional problems such as selecting plaintiffs on the basis of their religious beliefs, and avoids untoward interference with the federal courts that do have jurisdiction, the orthodox view licenses Congress to tailor federal jurisdiction, including that of the Supreme Court, as it pleases. On this view, for example, Congress could respond to decisions by the Supreme Court that extended the protections of the First Amendment to the burning of the American flag by depriving the entire federal judiciary of jurisdiction over flag desecration cases. Most, if not all, of the scholars who hold this view—their ranks have included Paul Bator, Charles Black, Gerald Gunther, Michael Perry, and Herbert Wechsler—would deplore such an event, and they would urge Congress not to trifle with the federal judiciary in this fashion. But the orthodox view rests on the unshakable conviction that the first section of Article III gives Congress unlimited plenary authority over the Supreme Court. For some, this reading of the Constitution has been a cause for regret; but others have seen an important institutional virtue in the federal judiciary's vulnerability to such treatment. Charles Black and Michael Perry, for example, have urged that Congress's power to silence the federal, when not exercised, supports the claim that Congress has acquiesced in the general run of the courts' decisions and, hence, lends democratic legitimacy to these nonmajoritarion tribunals.
A revisionist strand of Article III scholarship has developed, arguing for substantial constitutional restraints on Congress's power to shape federal jurisdiction. The claims for such restraints group around two propositions: first, that the Constitution secures a core function for the federal judiciary against congressional interference; and second, that Congress cannot act to reduce federal jurisdiction selectively out of manifest hostility to federal judicial doctrine.
Henry Hart, in a famous written dialogue on Congress's jurisdiction-limiting authority, first argued that there was an essential role of the Supreme Court that Congress could not constitutionally impair. Leonard Ratner has given more concrete content and support to what is called the "essential functions" thesis, arguing that the demands of supremacy and uniformity require that the Supreme Court be available to review all matters of federal legal substance. Although lacking in explicit textual support in its Hart-Ratner form, the essential-functions thesis can draw support from the commitment of the Constitutional Convention and its product, the Constitution, to subordinate the states to federal authority and to do so through the federal judicial process. In some of its variations, the thesis can also draw support from congressional precedent: in the course of two centuries of meandering Supreme Court appellate jurisdiction, the Court has always been permitted jurisdiction to review unrequited claims of constitutional right against state and local conduct.
A structurally distinct form of the essential-functions thesis has also emerged, attached not to the Supreme Court alone but to the Article III federal judiciary as a whole. The claim is that there are certain matters for which some Article III court must be provided. Only in default of Congress's having provided a lower federal court with jurisdiction over these matters does the Constitution require that the Supreme Court be available to them. Although given modern voice in the past decade, this appears to have been Alexander Hamilton's view, as reflected in The Federalist #82, and is familially related to Justice joseph story's views in martin v. hunter's lessee (1816). The scholars who have been attracted to this version of the essential-functions thesis have regarded it as better supported by legally relevant materials. This author, in the first modern statement of this form of the essential-functions thesis, has argued that Article III's textually explicit commitment to an independent judiciary can be honored only if politically sensitive cases—those involving claims of constitutional right being the strongest possible candidates—are assured review in an Article III forum. Robert Clinton has argued from a close analysis of events at the Constitutional Convention that the Framers intended to oblige Congress to distribute all Article III jurisdiction among the federal courts and used the "exceptions and regulations" language only to permit Congress to distribute Article III matters among Article III courts. Akhil Amar, observing, in effect, that every instance of the word "cases" in Article III is modified by a preceding "all," has argued that the first three items on the Article III menu—those styled as categories of "cases"—are textually required to be assigned to some Article III court.
The alternative revisionist claim, that Congress cannot act to reduce federal jurisdiction selectively out of manifest hostility to federal judicial doctrine, has been advanced on a number of connected grounds. Laurence Tribe has borrowed equal-protection analysis from the hunter v. erickson (1969) tradition to argue that it is unconstitutional for Congress to burden the exercise of particular constitutional rights by depriving those who claim such rights the benefits of a federal forum. John Hart Ely has argued that the motive of Congress in such cases—hostility to federal judicial doctrine—is impermissible and can serve to invalidate selective removals of jurisdiction. This author has argued that some selective deprivations of jurisdiction carry the appearance of congressional hostility to controversial constitutional claims, invite the disregard of those claims, and are for that reason unconstitutional.
Although the best possible protection against untoward congressional manipulation of federal jurisdiction is the sound judgment of Congress, there is a growing, but still much disputed, view among academic commentators that the Constitution protects against a lapse of congressional responsibility here as elsewhere.
Lawrence G. Sager
Amar, Akhil 1985 A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction. Boston University Law Review 65:205–272.
Bator, Paul M. 1982 Congressional Power over the Jurisdiction of Federal Courts. Villanova Law Review 27:1030–1041.
Clinton, Robert L. 1984 A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding. University of Pennsylvania Law Review 132:741–866.
Eisenberg, Theodore 1974 Congressional Authority to Restrict Lower Federal Court Jurisdiction. Yale Law Journal 83: 498–533.
Gunther, Gerald 1984 Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate. Stanford Law Review 36:895–922.
Hart, Henry M., Jr. 1953 The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic. Harvard Law Review 66:1362–1402.
Redish, Martin H. and Woods, Curtis E. 1975 Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis. University of Pennsylvania Law Review 124:45–109.
Sager, Lawrence Gene 1981 Foreword: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts. Harvard Law Review 16:129–156.
Tribe, Laurence H. 1981 Jurisdictional Gerrymandering: Zoning Disfavored Rights Out of the Federal Courts. Harvard Civil Rights-Civil Liberties Law Review 16:129–156.
Wechsler, Herbert 1965 The Courts and the Constitution. Columbia Law Review 65:1001–1014.