After my post this week on DeLay and Hostettler’s trial balloon on “jurisdiction stripping” as a tactic in the fight to ban gay marriage, I did a bit of research. Naturally, the history of Congressional jurisdiction modifications is complex, and unresolved. In a nutshell, there are arguments on both sides, stemming from the Jurisdiction Clause of Article III, Section 2:
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.
Proponents of Congressional control over jurisdiction read the last sentence as indicating that Congress can make laws both positive and negative regarding the jurisdiction of Article III courts. Opponents of Congressional control range from claiming that Congress may only make procedural, not substantive, regulations concerning jurisdiction, to those who admit that Congress can legislate jurisdiction, but only if such restrictions do not themselves violate other provisions of the Constitution.
The case law is slight. Decisions appear to be minimalist, ducking the sticky overall question. The broadest statement by the Court on jurisdiction limitation is perhaps United States v. Klein, decided in 1871. Chief Justice Chase wrote:
It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.
The court is required to ascertain the existence of certain facts and thereupon to declare that its jurisdiction on appeal has ceased, by dismissing the bill. What is this but to prescribe a rule for the decision of a cause in a particular way? …. Can we do so without allowing one party to the controversy to decide it in its own favor? Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department of the government in cases pending before it?
We think not; and thus thinking, we do not at all question what was decided in the case of Pennsylvania v. Wheeling Bridge Company. 27 …. No arbitrary rule of decision was prescribed in that case, [80 U.S. 128, 147] but the court was left to apply its ordinary rules to the new circumstances created by the act. In the case before us no new circumstances have been created by legislation. But the court is forbidden to give the effect to evidence which, in its own judgment, such evidence should have, and is directed to give it an effect precisely contrary.
We must think that Congress has inadvertently passed the limit which separates the legislative from the judicial power.
It is of vital importance that these powers be kept distinct. The Constitution provides that the judicial power of the United States shall be vested in one Supreme Court and such inferior courts as the Congress shall from time to time ordain and establish. The same instrument, in the last clause of the same article, provides that in all cases other than those of original jurisdiction, ‘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.’
Congress has already provided that the Supreme Court shall have jurisdiction of the judgments of the Court of Claims on appeal. Can it prescribe a rule in conformity with which the court must deny to itself the jurisdiction thus conferred, because and only because its decision, in accordance with settled law, must be adverse to the government and favorable to the suitor? This question seems to us to answer itself.
Klein upholds a broad understanding of separation of powers, and specifically that Congress may not direct the outcome of a case or class of cases by prescribing rules of decision. More broadly, Klein would suggest (but does not state) that Congress may not impair the Court’s ability to be the arbiter of Constitutional interpretation and construction.
In practice, the Court has upheld a small number of Congressional restrictions on jurisdiction (out of many attempts: 60 bills were proposed from 1953 to 1968 alone). One of the most important is perhaps Felker v. Turpin, in which the Rehnquist Court upheld Title I of the 1996 Antiterrorism and Effective Death Penalty Act, limiting state prisoners from bringing successive habeas corpus petitions unless their petitions are approved by the U.S. Court of Appeals. Title I of the AEDPA was upheld because the Court believed that it did not repeal the Court’s authority to hear habeas petitions, since original petitions may still be heard. In essence, the Court said that Congress may shape jurisdiction as it sees fit until a threshold is crossed where ALL judicial review of a class of cases is prevented.
This seems to be consistent with the current Court’s take on separation of powers: the democratic process as expressed by the legislative branch is to be given maximum latitude whenever possible, up until it threatens the ability of the other branches to exercise their enumerated powers.
Thus, one might expect that certain types of jurisdiction stripping to enforce gay marriage bans might be upheld by the Court, and not others. The good news for opponents of DeLay and Hostettler’s tactics is that the Court is unlikely to look kindly upon Congressional actions which prohibit ALL judicial review of the subject. The Court seems likely (based on track record) to allow procedural restrictions on what subordinate courts are allowed to hear, but history would seem to suggest that it will brook little interference on its own rights to determine constitutionality.
This is another situation where the classical liberal/conservative analysis of the Court isn’t very useful. The Rehnquist Court has been a strong advocate of judicial supremacy and the Court’s right to be an arbiter, even in situations where one would imagine that a majority of justices would politically align with those trying to limit their power on specific issues.