40. Ex parte McCardle and Congress's Power over the Court's Appellate Jurisdiction

The Supreme Court's 1869 ruling allowing Congress to take away its jurisdiction over a pending case is quite a story in its own right, and has important separation-of-powers implications for today

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning,¹ I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already):

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On the Docket

Once again, the Court was busy last week handling pending emergency applications, two of which produced significant rulings.

First, on Tuesday, a 5-4 Court granted the Biden administration’s emergency application to keep in place current federal limits on the sale of kits to make “ghost guns.” The federal rules had been blocked on a nationwide basis by Judge Reed O’Connor in Fort Worth, Texas, a ruling that the Fifth Circuit refused to stay. (The fight in this case isn’t over whether the rules run afoul of the Second Amendment; it’s a narrower question about the federal government’s statutory authority.) But Chief Justice Roberts and Justice Barrett joined the three Democratic appointees to put O’Connor’s ruling on hold for the duration of the federal government’s appeal (the first time that we’ve seen that 5-4 split since Justice Barrett joined the Court in October 2020). Neither the majority nor the four dissenting justices offered any explanation for their votes. But I’m planning to have a bit more to say about this case (and … unpersuasive … efforts to extract deep significance from Justice Barrett’s vote) in this Thursday’s bonus issue. (Spoiler alert: Once again, it was a bad day for the Fifth Circuit.)

Then, on Thursday, the Court also sided with the Biden administration in preventing the Second Circuit’s approval of the Purdue Pharma reorganization plan from going into effect while the justices decide whether federal bankruptcy law authorizes a reorganization plan to extinguish claims held by non-debtors against non-debtor third parties (like claims against the Sacklers) without the claimants’ consent. This is not only a critical question re: whether the Sackler family can be released from billions of dollars of potential liability for their role in the opioid crisis; it’s also a critical question of bankruptcy law in general on which lower courts are split. No justice publicly dissented from the order—which also took up the Biden administration’s invitation to grant certiorari and add the case to the Court’s merits docket for the upcoming term. It’ll be argued sometime in December.

Together, the ghost guns and Purdue Pharma orders mean that the Court has now granted emergency relief in six of the 11 cases in which the Biden administration has sought it (and has ruled for the administration on the merits in two of the five cases in which emergency relief had been denied—Biden v. Texas and United States v. Texas). That’s not as good a track record as the Trump administration (of the 36 Trump-era DOJ applications that the Court reached, it granted 28 in whole or in part). But it’s probably better than folks might otherwise have expected. And again, to spoil a bit of what’s coming Thursday, of the six Biden administration “wins" through emergency applications, four have involved nationwide injunctions (or similar rulings) by district courts that the Fifth Circuit declined to (fully) stay.

The only other order out of the Court last week was a quietly important one in a pending merits case, Acheson Hotels, LLC v. Laufer. The underlying dispute, which the Court agreed to take up in March, involves the standing of so-called “testers” to bring claims under the Americans With Disabilities Act in contexts in which they are not necessarily the primary beneficiary of the statute. But in a July 24 filing, the respondent (the plaintiff below) suggested that the dispute is now moot, and thus no longer fit for the Court’s resolution. In a brief order on Thursday, the justices denied the request to dismiss the case on mootness grounds now, but noted that they would consider the mootness issue alongside the merits when the case is argued in October.

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The One First Long Read: McCardle and the Exceptions Clause

One of my favorite cases to teach in the upper-level Federal Courts class is Ex parte McCardle—a habeas petition brought by a Mississippi newspaper editor who sought to challenge the constitutionality of military reconstruction (under which he had been arrested and held for prosecution by federal troops). It’s not just the remarkable facts of McCardle; it’s the “a-little-bit-for-everyone” quality of Chief Justice Chase’s opinion for the Court—which endorses broad congressional power over the Supreme Court’s appellate jurisdiction, but not necessarily unlimited congressional power. To understand how the Court split that difference (and why it matters a lot for contemporary debates over Congress’s powers vis-a-vis the Court), read on…

Let’s start with the background. William McCardle was a pro-Confederate, anti-Reconstruction Vicksburg newspaper editor (and former Confederate soldier) who was arrested by federal military authorities in 1867 after publishing a series of incendiary editorials criticizing Reconstruction. He was held under the auspices of the Military Reconstruction Acts, and brought a habeas petition in Mississippi federal circuit court arguing (among other things) that those acts were unconstitutional and so he was unlawfully detained. The circuit court disagreed, denying his petition but releasing him on substantial bail. McCardle then appealed to the U.S. Supreme Court, taking advantage of a technical amendment that was a small part of the massively important Habeas Corpus Act of 1867, which appeared to give the Supreme Court direct appellate jurisdiction over circuit courts in habeas cases like McCardle’s. On February 17, 1868, the Supreme Court so concluded—holding in “McCardle I” that it had the power to entertain McCardle’s appeal (thereby denying the government’s motion to dismiss the appeal), and ordering an additional round of oral argument on the constitutionality of military reconstruction.

For those less familiar with the historical context, by February 1868, both chambers of Congress were controlled by the “radical” Republicans, who, among other things, sought far more punitive measures against the un-reconstructed South—and were effectively at war with President Andrew Johnson, who was far more sympathetic to the former Confederacy. Not only did this mean that Congress regularly overrode Johnson’s vetoes of controversial legislation (like the 1867 Military Reconstruction Acts),² but by February 1868, Congress was in the midst of initiating impeachment proceedings seeking to remove Johnson from office (proceedings that would culminate in Johnson’s acquittal, by a single vote, in May).

The radical Republicans were not only pushing the President around; they were also threatening to push the Supreme Court around. The House had already adopted a measure to require a supermajority vote of the justices before the Court could strike down federal legislation (like the military reconstruction statutes). And Congress in 1866 had reduced the size of the Court by barring President Johnson from filling any of the next three vacancies.

Against that backdrop, the Court had taken a wary approach to challenges to military reconstruction. The first such case, Mississippi v. Johnson (brought in the Court’s original jurisdiction), was dismissed on the dubious ground that the President wasn’t a proper defendant. The second attempt to invoke the Court’s original jurisdiction, Georgia v. Stanton, was likewise dismissed on what could, in modern terms, best be described as “political question” grounds. But McCardle’s case was almost perfectly framed to avoid both of those procedural obstacles. Here was an individual whose liberty was being restricted by statutes he claimed to be unconstitutional. If that wasn’t a proper question for the Court to resolve, what was?

Thus, on February 17, 1868 (just one week after the ruling in Georgia v. Stanton), a unanimous Court held, in “McCardle I,” that it did have jurisdiction over McCardle’s appeal—which it set for re-argument two weeks later on the merits. Across five days (March 2–5 and March 9), the Court, sitting in the Old Senate Chamber in the Capitol, heard lengthy arguments about the constitutionality (or not) of military reconstruction. And judging by what happened next, the radical Republicans were … nervous … about what the argument portended. Just three days after arguments ended, the House passed a bill with an amendment attached to repeal that part of the Habeas Corpus Act of 1867 that had authorized McCardle’s appeal. In other words, even as the Supreme Court considered the merits of McCardle’s case, the House moved to take away its power to do so.

The Senate followed suit the very next day, and the bill was sent to President Johnson (whose impeachment trial in the Senate had begun on March 5, with Chief Justice Chase presiding) on Friday, March 13. Johnson vetoed the bill 10 days later, but Congress quickly overrode him. In light of the override, the Supreme Court put the case over for re-argument during its December 1868 Term—kicking the potentially explosive constitutional potato down the pike, rather than resolving a seeming head-on conflict between Congress and the Court in the middle of the swirling head-on conflict between Congress and the President. Indeed, by the time the Court heard argument on the validity of the repealer in March 1869, Johnson was out of office—even if the radicals still controlled both chambers of Congress.

Finally, on April 12, 1869, the Court handed down its ruling in “McCardle II.” Writing for all eight justices, Chief Justice Chase upheld the constitutionality of the 1868 repeal statute, emphasizing Congress’s clear constitutional power to “make exceptions” to the Supreme Court’s appellate jurisdiction, even in pending cases:

The provision of the act of 1867, affirming the appellate jurisdiction of this court in cases of habeas corpus is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception.

We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.

What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle.

It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.

Although this language seemed to imply that Congress’s power over the Court’s appellate jurisdiction was therefore plenary, Chase concluded his brief opinion with a remarkably vague passage suggesting that the Court had not in fact been presented with (or answered) that question:

Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised. [emphasis mine]

As I joke with my students, Chase would get marked off for failing to cite any authority for this proposition other than McCardle I. (Of course, he didn’t exactly want to tip Congress off.) But this was clearly a reference to a different way that the Supreme Court could hear habeas cases—its jurisdiction to issue “original” writs of habeas corpus under section 14 of the Judiciary Act of 1789, which Chief Justice Marshall had sustained in 1807 as an exercise of the Court’s “appellate” constitutional jurisdiction so long as there was some lower-court proceeding to review.

In other words, Chase was effectively saying that Congress had just closed one door to the Court’s review of McCardle’s case, but not every door. Thus, McCardle II upheld Congress’s power to take away the Supreme Court’s appellate jurisdiction at least while other avenues remain at least theoretically available for bringing the same legal question before the justices. Nor is this speculation; just six months after McCardle II, the Court would affirm, in Ex parte Yerger, that it had the authority to review the constitutionality of military reconstruction through such an “original” writ. By that point, the tempest in Congress had died down; there was no serious further attempt to keep the matter away from the justices (who nevertheless resolved only the jurisdictional question in Yerger).

What, exactly, does McCardle II thereby establish? It upheld Congress’s power to take away the Supreme Court’s jurisdiction over a pending case where there was at least one other avenue by which the same issue could have been brought to the justices on appeal. Thus, Congress’s power to “make exceptions” to the Supreme Court’s appellate jurisdiction is broad, indeed. As for whether McCardle II recognizes limits on Congress’s power (by going out of its way to point out that Congress hadn’t taken away all of the Court’s jurisdiction), the jury is very much still out. The best that can be said is what Justice Souter wrote in a 1996 concurring opinion. In a case about a very similar move by Congress (taking away one avenue for reviewing lower-court rulings in habeas cases while leaving the Court’s “original” jurisdiction intact), Souter wrote that “if it should later turn out that statutory avenues other than certiorari for reviewing [these lower-court rulings] were closed, the question whether the statute exceeded Congress’s Exceptions Clause power would be open.” Even Souter, in other words, was only willing to agree that there’d be a constitutional question with such a statute—not that it would necessarily be unconstitutional.

The upshot seems to be that Congress has remarkably (perhaps even surprisingly) broad authority over the Supreme Court’s appellate jurisdiction. It’s possible that such authority has limits (e.g., if Congress sought to keep any Second Amendment challenge to a state or federal gun regulation away from the justices). But (1) there’s no Supreme Court decision expressly holding that those limits exist; and (2) there’s an awful lot of control Congress could exercise before coming anywhere close to whatever those limits might be.

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SCOTUS Trivia: President Johnson and the Mississippi Case

As noted above, President Johnson was deeply opposed to military reconstruction—which he thought to be both unconstitutional and bad policy. And yet, when Mississippi tried to challenge the constitutionality of the military reconstruction acts directly in the Supreme Court in April 1867, Johnson sent his Attorney General, Henry Stanbery, to argue that the Court lacked the power to entertain Mississippi’s complaint. (It was Johnson’s nomination of Stanbery to the Court, in April 1866, that had provoked Congress into taking away Johnson’s ability to fill any of the next three seats.)

In other words, rather than make it easier for Mississippi to advance constitutional arguments with which he agreed, Johnson stood up for the institution of the presidency—in a context in which arguing against the Court’s power was arguing against his policy preferences. It was a rare moment of deep constitutional principle for Johnson, who otherwise had a tendency to gravitate toward whichever constitutional arguments advanced his agenda. But it was a noteworthy one.

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Happy Monday, everyone. I hope that you have a great week!!

1. My apologies that this week’s issue comes a bit later in the day; suffice it to say, there were some … technical difficulties … that had to be overcome.

2. To this day, Congress’s 15 overrides of Johnson’s 29 vetoes remains the highest raw total and percentage of vetoes overridden for any President in American history. Only Presidents Truman (12 overrides of 250 vetoes) and Ford (12 overrides of 66 vetoes) also ended up in double figures.