Stripping Supremes

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Believers in the rule of law can agree that it's a bad idea to start immunizing certain kinds of legislation—such as anti–gay marriage legislation—from constitutional scrutiny by stripping federal courts of jurisdiction to review it. But are such attempts also themselves unconstitutional? Josh Chafetz thinks so.

Addendum: Readers who know far more about the law than I do seem convinced he's off base; some interesting analysis in the comments.

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  1. Article III, Section 2:

    The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

    In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. 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.

  2. Yeah, of course. And if you click through, you’ll see the various arguments about why that should’t be read as covering exceptions of the sort passed recently by the House.

  3. Julian Sanchez,

    Why not? The Congress was granted the power to specifically limit the appellate review of the federal courts (indeed, with regard to the lower federal courts, it has complete control of them). Now one could argue from a structural POV that the Congress couldn’t eviscerate all review – but that simply means that the review would be done in state courts, and not federal ones – which goes along with Hamilton’s arguments the Federalist Papers about the state courts being part of one whole system.

    Anyway, its pretty damn clear language – the only thing that would be able to trump is some sort of language external to Article III or some argument from “structure.”

  4. BTW, it should be noted that there is VERY LITTLE in the way of evidence regarding what the writers meant in creating Article III … it was more the outcome of other debates, than debated itself.

  5. Of course, believers in the rule of law can have equal qualms about an unelected Court throwing out laws or imposing new ones while blatantly ignoring centuries of precedent and what laws and Constitutions meant when they were adopted.

    Surely you admit that, a priori, giving the ultimate power to either the Court or to Congress makes little difference. Both members can be changed (but much slower in the case of the Court) as a result of the political process. It’s not clear that belief in the rule of law presupposes automatic support for one side ruling.

  6. “People who disagree with my analysis above have, I think, an obligation to explain why Art. III, sec. 2’s statement that the federal judicial power ‘shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority’ doesn’t actually mean that the federal judicial power shall extend to all such cases.”

    That’s easy – you’re confusing the federal “judicial power” (the subject matter jurisdiction that a court may wield) with the federal “Supreme Court” (what that specific court may do). In other words its pretty clear that the federal judicial power extends to nine specific kinds of cases or controversies, however that language doesn’t tell us who will wield that power – it could be the Supreme Court, or it could be the state courts.

    “People who disagree with me also need to explain the Eleventh Amendment.”

    That’s also easy to do.

    “After all, the Eleventh Amendment is just a jurisdiction stripping measure.”

    It strips jurisdiction the courts never had in the first place – which has been recognized by the Surpeme Court since the 19th century.

    “If Congress can constitutionally strip jurisdiction at any time, then why go to all the trouble of passing a constitutional amendment for the purpose?”

    Because the Supreme Court screwed up in 1799, which forced those opposed such insults to state dignity to get the amendment passed. The Supreme Court since then has admitted that it screwed up and has also since then admitted that the Amendment wasn’t really neccessary; that the Constitution never granted the federal courts the power that they assumed they had in 1799.

  7. Hell’s frozen over. I agree with Gunnels!

  8. Admittedly the issue would be perhaps different if the Congress tried to stop ALL REVIEW of these various areas of subject matter jurisdiction – but Article III does not require (by its own language) that outside of its original jurisdiction that the Supreme Court wield judicial power. Again, its the difference between the courts – state or federal – generally wielding the federal judicial power, and the Supreme Court specifically wielding that power.

  9. Eric,

    I spent four odd months hashing out these issues last Spring semester in my Federal Courts class – what I’ve written above – with some caveats – is what I’ve concluded after that hashing out period.

  10. Gary-
    I don’t think he’s confusing the Supreme Court with the “federal judicial power”–since he himself observes the distinction. He concedes that the SC could be stripped of jurisdiction, but that some other repository of “federal judicial power” would have to retain jurisdiction, and I don’t see how state supreme courts count for that purpose.

    Also, while I don’t agree with them (mostly for check-and-balance reasons), I certainly understand the arguments for leaving constitutional review as a legislative function. What’s troubling from a rule of law perspective is having MOST of that function in the hands of the court, but allowing legislatures to make ad-hoc exceptions to that presumption.

  11. All I wanna know, Congress has had this silver bullet since 1789 and the first good use for it is on the question of gay marriage? Huh?

  12. Let me see if this non-lawyer has the gist of it:

    The Constitution says that the Supreme Court has original jurisdiction in certain cases explicitly laid out, plus appellate jurisdiction in all other federal cases unless Congress says otherwise.

    So I think we’d all agree that Congress could say that appeals of certain federal cases aren’t heard by the Supreme Court, but instead some lower court has final say in those cases.

    The basic question is whether or not Congress could strip lower courts of the power to hear certain cases. In other words, could Congress decide that no federal court will hear certain cases?

    What if the following law was passed by Congress: (since I’m not a lawyer, just assume that I’m presenting a translation from legalese to English, and that in the original legalese all the loopholes are plugged)

    “If a law passed by Congress infringes the right of the people to keep and bear arms, neither the Supreme Court nor any other federal court shall have jurisdiction over that case.”

    Nowhere in this bill does it say that the right to keep and bear arms is hereby infringed, it just says that if that right is infringed in the future the citizens won’t have recourse to the courts.

    I’m sure that the people on this forum will be consistent and applaud this legislation for taking a bite out of judicial activism.

    Right?

  13. Julian Sanchez,

    (a) “I don’t think he’s confusing the Supreme Court with the ‘federal judicial power’ – since he himself observes the distinction.”

    Sure he is; or rather, he’s confusing the judicial power the federal courts generally. You don’t need a federal court system to excercise the federal judicial power – the state courts can excercise that power nicely, as they always have.

    BTW, there is a shitload of historical precedent for this; the Supreme Court has never excercises its full potential appellate power, and neither have the lower federal courts – in other words, review of federal law, etc. has often in the past been left exclusively up to the state courts. Take for example state court review which upheld a federal right – this was not reviewable by the Supreme Court until the 20th century.

    (b) “I don’t see how state supreme courts count for that purpose.” Look, you do realize that the state courts already excercise federal judicial power, right? Its hardly a leap to assume that they could control that power exclusively outside the Supreme Court’s original jurisdiction and whatever external (to Article III) textual or structural limits are placed on the Congress’ power. Furthermore, it is always assumed that the state courts automatically excercise federal judicial power UNLESS there is some textual limit in the U.S. constitution, or the Congress chooses to keep them from excercising that power. Again, read Hamilton’s thoughts on the nature of the state courts – they should be properly viewed as part of one whole court system, and not as seperate from it.

    “…I certainly understand the arguments for leaving constitutional review as a legislative function.”

    Do you mean a judicial function?

    “What’s troubling from a rule of law perspective is having MOST of that function in the hands of the court, but allowing legislatures to make ad-hoc exceptions to that presumption.”

    What’s troubling about that?

  14. keith,

    “All I wanna know, Congress has had this silver bullet since 1789 and the first good use for it is on the question of gay marriage?”

    Since the Judiciary Act of 1789 Congress has always limited the power of the Supreme Court – indeed, the severest period of such limitation occurred from 1789 until the 1870s. Indeed, there was an entire litany of things that the Supreme Court could not do for most of the 19th century that the lower federal courts were also not empowered with, since as the review of state court decisions that upheld a claimed federal right.

  15. thoreau,

    “If a law passed by Congress infringes the right of the people to keep and bear arms, neither the Supreme Court nor any other federal court shall have jurisdiction over that case.”

    Who would determine that it indeed infringes on the Second Amendment?

  16. such… as the review of state court decisions that upheld a claimed federal right.

    Edit of …

    Comment by: Gary Gunnels at July 28, 2004 05:18 PM

  17. I haven’t seen anyone mention the fact that it wasn’t clear when the Constitution was written that the Supreme Court would have the power of judicial review. That is extremely important. If the Supreme Court didn’t have the power to overrule Congress, Congress would have no reason to strip the Supreme Court of the power to hear certain cases. Any discussion of the intent of Article III Section 2 in regard to jurisdiction stripping is meaningless if you don’t consider the ambiguity of judicial review.

  18. With all due respect to Josh Chafetz, he simply has no idea what he is talking about this issue. His interpretation of Article III is an interesting one, but it’s shared by very few legal scholars, and zero judges, since the early days of the republic. Back here in the real world, Congress restricts the jurisdiction of the federal courts all the time, without objection. If they didn’t, three Californians and an Arizonan would be able sue another Arizonan in federal court for breach of a $5.00 contract, as Congress would have no authority to restrict diversity jurisdiction, either. It just doesn’t work that way.

    Josh’s 11th Amendment question is even more embarassing. Had he bothered to look up Chisholm v. Georgia, the case that sparked the Eleventh Amendment, he would have found the answer to his own question: Chisholm involved the original jurisdiction of the Supreme Court, not appellate jurisdiction. Congress’s power to “regulate and except” extends only to appellate jurisdiction, not original jurisdiction. So forget what Chafetz said on this topic; he’s in way over his head.

    There is, however, a narrower, more interesting constitutional issue that does warrant exploring: may Congress insulate a specific statute from a specific type of challenge, or must it legislate more generally (e.g., strip federal courts of juriseiction to hear all full faith and credit challenges for everything)? The answer is that Congress probably can do it, but we don’t know for sure because it’s never been tried. Ultimately, though, the real question is whether COngress should do it. I think they shouldn’t for two reasons: (1) it would set a horrible precedent for future laws of dubious constitutionality, which would also contain handy-dandy no-jurisdiction clauses, and (2) it won’t do anything about state court challenges raising the same issue under the same Constitution the federal courts can no longer interpret. Once a single state court finds a “right” to gay marriage under the U.S. Constitution, which can no longer be appealed to the U.S. Supreme Court, watch for a flood of litigants looking for a way to get their cases into that state’s courts.

    Over the weekend, I put together two blog entries on the subject, one to explain why the Marriage Protection Act is probably constitutional, and another to demonstrate why it would probably backfire.

  19. Xavier,

    Actually, the Federalist Papers do assume this; or Hamilton’s comments in them do; and there is evidence in Madison’s notes that they assumed that such would review would be part of the court’s powers as well. Interestingly, the Supreme Court recognized this power long before “Marbury” – that Marshall doesn’t mention this case law has always been counted as strange (admittedly, Madison’s notes weren’t published in 1803 – which Marshall could thus not rely on).

  20. “Who would determine that it indeed infringes on the Second Amendment?”

    The courts, presumably. But wouldn’t Second Amendment activists want the court to have jurisdiction in that case, so they could strike the law down?

  21. Gary Gunnels is correct in all that he states in this thread. It has been over a decade since I took Con Law, but what he recites is my understanding of the relevant law.

    –Mona–

  22. I realize that judicial review was established before Marbury, but it wasn’t clearly established when the Constitution was written. It’s my understanding that Madison’s notes show that opinion was divided as to whether the Supreme Court should have that power. At least that’s what my con law professor said.

  23. Gary Denton,

    “Gunnel is completely silly – 98% of judges and lawyers would disagree with him, the exception being the types who could right a brief that whatever the President does is above the law.”

    I’m sure your survey was done scientifically. 🙂

    “This would make state courts being given the responsiblity to decide federal law.”

    They already do this, and they’e done so exclusively in the past – the example I provided of state courts upholding some claimed federal right is one area that this has been allowed in – there are others.

    “The meaning of Article 13 is that Congress can strip it from lower federal courts but the Supreme Court is the final arbitor.”

    Article 13?

    “Even a first year law student can see that runs contrary to over 200 years of legal precedent.”

    Actually its common practice in American law; the notion of having various courts having various interpretations of the constitution or federal law has been common in American history, and remains so today – which is why you can have a split in the circuits that can on for decades.

    “No prior law has ever removed an issue from the Supreme Courts reach…”

    Sure it has, and I’ve just given you an example of such. Indeed, since the Judiciary Act of 1789 the Supreme Court has NEVER excercised its full potential appellate power (even when that appellate power would be reviewing something done by a state court).

  24. Something I’m not seeing in this thread: The only vaguely feasible way I can see to skirt the plain language Article III Section 2 is to posit that the Fifth Amendment (remember: Amendments trump Articles) guarantees due process of law, and that a total denial of judicial review on a subject, especially a subject that exclusively implicates an insular minority (see Stone’s famous “Footnote 4”) cannot possibly satisfy due process (I believe the test is that the law must not “offend traditional notions of fair play and substantial justice”). There aren’t many legal doctrines as “traditional” as judicial review of constitutionality of federal statutes.

  25. I guess I’m part of the other 2%. That’s OK, as I also outscored 98% of my classmates in Federal Courts in 1998 (taught by that arch-conservative appellate judge, William Fletcher). Sounds like Mona and Gary G. did pretty well in that area, too.

    Meanwhile, I’m still scouring my copy of the U.S. Constitution, searching high and low for that elusive but unlucky “Article 13.” It’s got to be in there, somewhere. Perhaps the legal eagle was actually thinking of Amendment 13, on the theory that depriving judges of their precious jurisdiction is equivalent to enslaving them.

  26. Gunnel is completely silly – 98% of judges and lawyers would disagree with him, the exception being the types who could right a brief that whatever the President does is above the law.

    This would make state courts being given the responsiblity to decide federal law. The meaning of Article 13 is that Congress can strip it from lower federal courts but the Supreme Court is the final arbitor.

    The bill says no federal court can consider challenges to the cross-state recognition section of the Defense of Marriage Act (DOMA.) The result? There could potentially be as many as 50 different interpretations of DOMA, as each state’s supreme court would be the final authority on the constitutionality of DOMA in their state. Even a first year law student can see that runs contrary to over 200 years of legal precedent.

    This bill violates both separation of powers and due process not to mention equal protection. No prior law has ever removed an issue from the Supreme Courts reach and if Gary Gunnels thinks even this court is going to allow that I’d like some of what he’s smoking.

    The implications of MPA are absurd for any liberty loving citizen. Any party in power could simply remove any laws they pass from judicial review.

    Gary Denton

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