Jurisdiction, Federal (Update)

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In the 1990s, there have been two notable statutes, and one bill not yet enacted, regulating the jurisdiction of the federal courts to accomplish particular policy goals.

The antiterrorism and effective death penalty act of 1996 cuts back federal habeas corpus for state prisoners and limits judicial review in deportation proceedings against aliens. In habeas cases, the act limits the appellate jurisdiction of the Supreme Court. A prisoner whose first habeas petition has been denied may file a second petition only if authorized to do so by the court of appeals, and a denial of authorization may not be appealed to the Supreme Court. In Felker v. Turpin (1996), the Supreme Court upheld the constitutionality of this provision, finding that the act had not entirely eliminated review because the prisoner still had a right to file an original habeas petition in the Supreme Court. This construction of the act allowed the Supreme Court to avoid the constitutional question that would have been presented if Supreme Court review had been entirely foreclosed. In deportation proceedings, the act eliminates all appellate review of deportation orders against aliens who have committed certain crimes. The circuit courts have sustained the constitutionality of this provision, but only on the understanding that habeas corpus remains available as a means to challenge the deportations. The Supreme Court has not yet addressed the issue.

The Prison Litigation and Reform Act of 1995 makes litigation more difficult for prisoners seeking better prison conditions. The act limits the "remedial jurisdiction" of courts by imposing stringent new criteria on future injunctions reforming prison conditions and by terminating previously entered consent decrees that do not comply with the criteria. As of the summer of 1999, six courts of appeals had sustained the constitutionality of the act, and one court of appeals had struck down the termination provision as a violation of constitutional separation of powers. The Supreme Court had not yet addressed the issue.

The proposed Judicial Reform Act of 1998 would, if enacted, require a three-judge district court for any constitutional challenge to a state voter initiative. Such a challenge is now heard by a single district judge. The bill would represent a partial return to a jurisdictional structure that existed between 1910 and 1976. The 1910 statute was enacted in response to ex parte young (1908), which allowed a single district judge to enjoin the enforcement of state laws found by that judge to be unconstitutional. The current bill was introduced in the wake of a decision by a district judge (later reversed by the court of appeals) enjoining the enforcement of California's anti-affirmative action initiative.

In all three instances, Congress has sought to achieve relatively narrow policy goals by changes in the jurisdictional structure of the federal courts. The Supreme Court has given little indication that it will find either of the two acts unconstitutional, and there is no doubt that if enacted, a modern three-judge court statute would survive constitutional scrutiny.

William A. Fletcher


Note 1997 The Constitutional Requirement of Judicial Review for Administrative Deportation Decisions. Harvard Law Review 110:1850–1867.

Tushnet, Mark 1996 "The King of France with Forty Thousand Men": Felker v. Turpin and the Supreme Court's Deliberative Processes. Supreme Court Review 1996:163–190.

Tushnet, Mark and Yackle, Larry 1997 Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act. Duke Law Journal 1997:1–86.