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Peter Gerdes's avatar

> If AEDPA is constitutional even in a world in which the Supreme Court will never use the one font of appellate jurisdiction that the statute leaves untouched, that’s a pretty powerful precedent that future Congresses could seek to exploit in imposing comparable constraints on the justices’ power.

Do you mean that as a legal precedent, eg, congress could engage in complete jurisdiction stripping? Or just a practical political precedent?

I guess I don't see why the court choosing not to use it's power creates a legal precedent that it can be completely stripped. I mean, it may suggest the court isn't doing its job but that's a different issue.

Mark F. Buckley's avatar

Looking back at HamdanvRumsfeld (and earlier, Hamdi), a writ of habeas corpus from John Roberts is about as likely as snow in July. Setting aside for a moment the distinction between appellate and original jurisdiction, John Roberts (DCCircuit) displays no more respect for the rights of prisoners who are not US citizens than he does for the Third Geneva Convention, specifically tailored towards non-international conflicts. Guantanamo is US territory, a modern internment camp and military tribunal.

I almost feel sorry for academics and journalists who have to take these clowns seriously. Mean men make and enforce mean laws. The kangaroo courts of Ulster taught the Irish how to impeach tyrants. I suggest Trinity, by Leon Uris, for a blueprint on civic courage.

Richard Careaga's avatar

Perhaps during a summer lull in the action, you might address the Easter Egg phenomenon of hinting that future litigation on a particular point would be welcome, as illustrated by the examples given by Justices Thomas and Alito. Maybe beginning with the famous Footnote 9.

Christopher Sheahen's avatar

I’m not a lawyer, but the story here is really interesting. I find it fascinating that not everything in the law is cut and tried. There are issues that are unresolved.

Merlin Dorfman's avatar

It seems implicit in this discussion that Congress does have the power to regulate what the Courts, including the Supreme Court, may and may not consider and rule on...or am I missing something? So can Congress pass a law and, in the same text or elsewhere, say that the courts cannot rule on the constitutionality of that law?

Steve Vladeck's avatar

Everyone agrees that Congress has *broad* power over the Supreme Court's docket. The question of whether that power is limitless is the one Justice Souter was referring to in his Felker concurrence, and it's one the Court has assiduously avoided ever having to answer. My own view is that there are *probably* limits on Congress's power to keep entire categories of constitutional claims out of the Court, but that they're pretty modest compared to all of the ways that Congress *could* restrict the Court's appellate authority.

Merlin Dorfman's avatar

Thanks...it would be amusing to see the court rule on the constitutionality of Congress declaring that the court could not rule on the constitutionality of some law or other.

anna maria's avatar

Your unpacking of Sotomayor’s warning about AEDPA’s durability hits the nail on the head; the idea that the Court’s silence could be interpreted as consent to jurisdiction stripping revives the same constitutional tension seen in Hamdi. In that vein, the archive of https://queenscountycourts.org provides a reference for how appellate bodies respond to legislative curbs. Still, the Supreme Court’s choice not to invoke the lone untouched appellate route doesn’t create a legal blank check for Congress, it merely reflects strategic restraint, a point underscored by the Hamdan v. Rumsfeld debate.

Camely's avatar

Your point about Justice Sotomayor flagging the AEDPA dilemma is especially when the Court's refusal to invoke its residual appellate power could set a powerful procedural benchmark. In that vein, the way courts quietly sidestep authority reminds me of how investigators pore through https://haywoodcountypropertyappraiser.org to uncover hidden patterns. This quietude arguably furnishes Congress with a roadmap for broader jurisdiction stripping, echoing the tensions seen in Hamdan v. Rumsfeld and the earlier Hamdi precedent. Ultimately, the legal landscape may shift more from inaction than from explicit rulings.