Presidential Commission on the Supreme Court of the United States
more democratically accountable institutions.[20] Jurisdiction stripping is also a mechanism that has been used in other countries to make apex courts more politically accountable.[21]
Though the academic debate has been robust, no recent commentator has offered a programmatic blueprint for jurisdiction stripping. In the analysis that follows, we provide a brief historical background concerning congressional efforts to strip courts of their jurisdiction, an evaluation of various types of jurisdiction-stripping proposals, and an assessment of the constitutionality of jurisdiction stripping in its various forms.
At bottom, one cannot assess the constitutionality of jurisdiction stripping in the abstract. Congress certainly has some power to impose limits on the appellate jurisdiction of the Supreme Court. However, the extent of that power is unclear, and the constitutionality of specific proposals would depend upon the particular details of those proposals. The Commission does not have a firm view on the overall merits of jurisdiction stripping, but we are skeptical that the aim of promoting more democratically accountable control of public policy can be achieved solely by limiting the jurisdiction of the Supreme Court.
A. Constitutional and Historical Background}
The Constitution undisputedly gives Congress power to grant and withhold the jurisdiction of the federal courts, though the precise scope of that power is much debated. Article III of the Constitution vests the Supreme Court with “original” jurisdiction in a small category of cases. Article III then specifies that “[i]n 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.”[22] Although the scope of Congress’s power under the Exceptions Clause has never been settled definitively, Congress always has made some exceptions to the Court’s appellate jurisdiction. The 1789 Judiciary Act, for example, made no provision for Supreme Court review of criminal cases tried in the lower federal courts.[23]
The Constitution also contemplates broad congressional power to determine and adjust the jurisdiction of the lower federal courts. As the result of a deliberate compromise at the Constitutional Convention, Article III authorizes Congress to create lower federal courts but does not require it to do so. It provides instead that “[t]he 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.”[24] This language has always been understood to authorize Congress to create or not create lower courts, and to vest the lower courts with less jurisdiction than the maximum amount that Article III would permit.
December 2021 | 155
