CHAPTER 1
Congress, the Courts, and Federal Jurisdiction: Theoretical Perspectives
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Congressional Power To Limit Federal Jurisdiction
Since 1955 members of Congress have introduced numerous bills to curb the federal courts' jurisdiction over selected areas of judicial decision making. Piqued by the Supreme Court's decisions on state and federal loyalty-security programs, public school segregation, defendants' rights and the administration of criminal justice, congressional districting, state legislative reapportionment, school busing as a tool of desegregation, prayer in the nation's public schools, and state antiabortion laws, the Court's congressional opponents have attempted to limit federal-court jurisdiction in these areas. Although there are many differences among the hundreds of bills that have been introduced, essentially they all leave the future definition and protection of federal constitutional rights or interests to the solicitude of the states' courts.
Sometimes referred to as court curbing, jurisdiction stripping, or jurisdictional gerrymandering, proposed limitations on federal jurisdiction reflect substantial congressional and, perhaps, public dissatisfaction with the Warren and Burger courts' definition and protection of the individual's rights against state and federal interference. Jurisdictional limitations also have constitutional consequences that reach beyond dissatisfaction with particular judicial decisions. Attempts to curb federal jurisdiction raise serious questions about congressional authority over the federal courts, the legitimate scope of judicial review in a democracy, and the Supreme Court's role as an arbiter of congressional, presidential, and state power within an institutional framework of federalism and the separation of powers.
In their attempts to curb "extraconstitutional" judicial policy making, the Court's congressional foes have zeroed in on the Court's controversial decisions on school prayer, Engel v. Vitale (1961) and Abington v. Schempp (1963); school busing, Swann v. Charlotte-Mecklenburg (1971); and state antiabortion laws, Roe v. Wade (1973). At times intense, the struggle over prayer, busing, and abortion reflects the fact that once again the Supreme Court is at the center of the political storm. This struggle raises basic questions about congressional authority to limit the Supreme Court's appellate jurisdiction as well as the lower federal courts' jurisdiction. A seemingly dry and technical subject, the debate engenders passionate discourse over congressional power on questions such as the Framers' and Ratifiers' original understanding of the Court's relationship to Congress. It is a high stakes debate about the Supreme Court's future role as a constitutional policymaker in a society that is theoretically committed to political democracy (popular sovereignty, majority rule, and responsible and responsive government) as well as a debate about constitutional limitations on the exercise of governmental power vis-à-vis individuals and minorities.
This perennial but unresolved debate includes at least three major positions on the scope of congressional authority to regulate and limit federal jurisdiction. The conventional view is that under Article III of the Constitution, congressional power to regulate federal jurisdiction is plenary. A second argument, the mandatory view, often associated with Justice Joseph Story, is that Article III imposes an affirmative duty on Congress to vest the entire constitutional jurisdiction in some federal court. A third view of more recent parentage is that, while Article III may impose few or no restrictions on Congress, other constitutional limitations external to Article III do impose specific limits on the exercise of congressional power over federal jurisdiction.
According to the plenary view, the language of the exceptions and regulations clause (Article III, section 2) imposes no limit on congressional power to regulate and make exceptions to the Supreme Court's appellate jurisdiction. Similarly, under the ordain and establish clause (Article III, section 1), Congress has plenary power to create and abolish lower federal courts and to define and limit their jurisdiction. These two clauses are legitimate checks on judicial usurpation of congressional and state legislative authority. Therefore, Congress can leave the final determination of federal constitutional questions to the states' courts without recourse to the federal judiciary. There may be a right to judicial process, but there is no guarantee of a federal forum in which individuals can vindicate their constitutional claims. Furthermore, under the supremacy clause (Article VI, section 2), state courts have an obligation to enforce the individual's rights against infringements by the states and the national government.
As the mandatory view implies, Article III imposes a constitutional obligation on Congress to create federal courts and to vest the maximum constitutional jurisdiction in the federal judiciary. The exceptions and regulations clause merely grants Congress authority to distribute federal jurisdiction between the Supreme Court and inferior federal courts. It is neither a grant of power to restrict access to the federal courts nor a legitimate check on the exercise of judicial power. If the federal judiciary is to act as a coequal partner to Congress and the president, its jurisdiction must extend to the limits of Article III and must be coterminous with the legislative power of Congress. Otherwise, Congress and the president could shield themselves from constitutional scrutiny and emasculate the federal judiciary's power of judicial review. From the mandatory perspective, Article III simply confers on Congress housekeeping power to promote the efficiency and effectiveness of the federal judiciary.
In response to recent attempts to curb federal jurisdiction on a selective basis, some scholars argue that congressional power under Article III may be broad, but it is not unlimited. Taken in context, the language of Article III does not warrant a complete closure of the federal courts to litigants presenting constitutional claims. Indeed, various constitutional provisions, including the supremacy clause (Article VI, section 2), the habeas corpus clause (Article I, section 9, clause 2), and the due process clause of the Fifth Amendment establish a right to a hearing before a federal judge on a constitutional claim. Access to a federal forum is necessary to promote the rule of law, a uniform construction of fundamental national rights, and federal constitutional supremacy. Inasmuch as state courts are state instrumentalities, they cannot provide a fair and neutral forum to persons who allege state violations of constitutional rights.
Each of these three views embodies different assumptions about the language and logic of Article III, the basic plan of government in the United States, the Framers' and Ratifiers' intentions, the relationship between Congress and the federal courts, and the relationship between the federal and state judiciaries and governments. Each view leads to different consequences for the Supreme Court's authority to define and protect constitutional rights and liberties. Each view incorporates subtle and complex arguments that require explanation and analysis before an informed reader can pass judgment on the adequacy and consequences of accepting a particular perspective. Each embodies a different vision of the nation's constitutional future as well as its constitutional heritage.
The Plenary View of Congressional Power
Proponents of the plenary view argue that the language of Article III is clear and unambiguous. Article III provides that:
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, (section 1)
In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all 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, (section 2, clause 2)
Except for the Supreme Court's original jurisdiction, which the Constitution mandates, its appellate jurisdiction is subject to congressional discretion. Unless Congress enacts jurisdictional legislation, the Supreme Court cannot exercise its appellate jurisdiction. Once Congress has acted, as John Marshall observed, the Court cannot exercise jurisdiction that Congress has not specifically conferred. As Chief Justice Salmon Chase noted in Ex parte McCardle, Congress can withdraw subjects from the Court's appellate jurisdiction, even in a pending case. Article III establishes the maximum appellate jurisdiction that Congress can confer, but it does not require Congress to grant any portion of that jurisdiction to the Supreme Court. Not unlike the Biblical potter, Congress shapes the vessel in which the Supreme Court exercises its judicial power.
Similarly, Article III authorizes but does not mandate Congress to create a lower federal judiciary. If Congress has the power to create federal tribunals to exercise the judicial power of the United States, it can abolish such courts. The power to create courts also comprehends the lesser power to regulate and restrict their jurisdiction. In fact, until the Judiciary Act of 1875, Congress severely restricted the lower courts' jurisdiction over federal questions. The state courts determined most federal questions with limited appeal to the U.S. Supreme Court. "Nominally," Eugene Rostow once wrote, "the courts exist on sufferance.... They are taught to believe they should be 'lions under the throne,' in Coke's phrase."
The plenary view is consistent with democratic theory, which emphasizes the primacy of congressional policy making and presidential discretion in the faithful execution of the law. Unlike the federal judiciary, whose members are appointed with lifetime tenure, Congress and the president are responsible to the people through regular and periodic elections. Despite such nondemocratic features as the electoral college, the equal representation of the states in the U.S. Senate, and legislative rules and organization that sometimes tend toward oligarchy, Congress and the president are representative institutions. Therefore, when scrutinizing the constitutionality of congressional legislation and presidential conduct, the federal judiciary should act with humility and self-restraint toward the people's representatives. Only when Congress has made a clear mistake about the scope and limits of legislative authority should the courts intervene.
The plenary view is also consistent with the basic plan of government, which provides for the separation of powers and balanced government (checks and balances). By vesting legislative, executive, and judicial power in three separate national institutions, the Framers and Ratifiers created separate but overlapping zones of authority. While the Supreme Court sometimes polices the boundaries between Congress and the president, the separation of powers strongly suggests that the judiciary should not interfere in those areas of national decision making constitutionally (i.e., textually) committed to another branch of government. Not only is such intervention imprudent and probably ineffective, it violates the separation-of-powers doctrine. Accordingly, each branch of the national government should avoid impairing the ability of other branches to perform their essential or core functions. The federal judiciary should only intervene when there is resolute conflict between the legislature and the executive that threatens the balance or harmony of the national government.
Should the federal courts stray too far from their constitutional function, proponents of plenary congressional power continue, the Framers equipped Congress with a check on judicial policy making. The Framers intended the exceptions and regulations clause and the ordain and establish clause of Article III as democratic checks on judicial usurpation of legislative and executive power. In other words, these clauses are the price for judicial review in a democratic polity. As an empirical observation, several scholars note that when the federal courts stray too far from popular or governmental consensus, Congress employs its plenary power over federal jurisdiction to discipline the judiciary and to mold future judicial decision making in accordance with popular preferences. According to Judge J. Skelly Wright, "if the Justices are not themselves sufficiently attuned to the times, Congress can bring reality home through its power over the Court's appellate jurisdiction."
Another variant of this argument involves the interpretivist-noninterpretivist controversy that continues to rage in the nation's law journals. Interpretivists contend that the judiciary is bound by the Framers' and Ratifiers' original intent or understanding of the Constitution and its amendments, insofar as their intent is manifest in or can be inferred from the Constitution's language, framing, and ratification and contemporaneous debates. In deciding constitutional questions, the judiciary may fill in the "interstices" of the basic law, but cannot substitute its own or contemporary values for those of the Framers and Ratifiers. If due process means the process due in judicial proceedings, the Warren Court is no more justified in embodying its own substantive values of equality and individual freedom and autonomy than the Fuller Court was in discovering substantive property rights in the Fifth and Fourteenth amendments. When the Court amends the Constitution in derogation of the regular amendment process (Article V), Congress has the authority and responsibility to remind the federal courts of their judicial function. Although Michael Perry favors noninterpretivist review in human rights cases, he concedes that one cannot reconcile noninterpretivist judicial review with the democratic principle of "electorally accountable policymaking."
By incorporating the Bill of Rights into the due process clause of the Fourteenth Amendment and adopting a broad construction of equal protection that the Framers never intended, interpretivists continue, the Supreme Court has trenched on powers reserved for the states under the Tenth Amendment. In defining due process and equal protection to include the rights to be free from prayer and racial segregation in public schools and to privacy in deciding whether to seek and obtain an abortion, the Court has arrogated powers that the amendment's Framers conferred on Congress. As a remedy to judicial aggrandizement, some of the Court's critics suggest that Congress employ its powers under Article III and section 5 of the Fourteenth Amendment to restore the authority of the states and their judiciaries to define the individual's constitutional rights. The substantive effects of this proposal notwithstanding, Congress rather than the Supreme Court would become the primary arbiter of American federalism.
In its pure form, the plenary view of Article III, sections 1 and 2, would have fundamental consequences for the basic plan of government. Congress could use its authority to emasculate the federal courts' power of judicial review. By eradicating federal jurisdiction over constitutional rights, Congress could upset the delicate balance of power between the legislative and judicial branches. If Congress were to employ this technique on a wide range of constitutional issues, it could impair the separation of powers, which the Framers apparently believed essential in maintaining limited, constitutional government. Moreover, from the Framers' perspective, the maintenance of equilibrium is essential in preserving political liberty against government tyranny.
Of course, one can argue that the federal courts are also capable of threatening the individual's liberties. However, Congress and the president have ample disciplinary powers over the federal judiciary, including the power to nominate, confirm, and appoint federal judges, impeach and remove judges, revise legislation to circumvent constitutional infirmities and disfavored statutory constructions, and amend the Constitution to correct the courts' mistaken views. Given the difficulties of constructing congressional majorities, the Supreme Court sometimes frustrates majority rule, as in the child labor case (Hammer v. Dagenhart). Nevertheless, the American political system represents a careful balance between democratic norms and constitutional limitations on majoritarian impulses. Rather than existing as an aberrant institution, the federal courts are an essential element in a liberal democracy. Even if due process does not guarantee access to a federal court in order to vindicate constitutional claims, legislation that alters or threatens the delicate balance of governmental power is constitutionally suspect.
Such legislation also could fundamentally alter the federal system. In addition to making the states final arbiters of federally protected rights, such proposals would undermine the Supreme Court's authority to enforce the supremacy clause of Article VI and police the boundaries between state and national power. While Jesse Choper argues that Congress, as a popular institution, is better suited to arbitrate national-state relationships, the states' interests are already well represented in Congress. The federal courts provide another forum in which state, national, and individual interests can be balanced and adjusted, somewhat removed from the daily clash of partisan and parochial forces. Oliver Wendell Holmes, who discounted the importance of judicial review of congressional acts, recognized the profound effects of losing federal judicial power to review the constitutionality of state acts.
