93. Jurisdiction-Stripping and the Supreme Court

A new reform bill raises an old question about how far Congress can go to keep appeals away from the Supreme Court. My own view is that Congress's Exceptions Clause power is broad, but *not* plenary.

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, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already): 

This week’s “Long Read” was prompted by a new bill introduced last week by Senate Majority Leader Chuck Schumer (D-N.Y.) and 33 other Democratic sentators, titled the “No Kings Act.” Although the bill does lots of things, its centerpiece is keeping certain constitutional questions about presidential immunity (and the bill itself) away from the Supreme Court—by expressly giving the last word to the D.C. Circuit and purporting to deprive the Court of the power to review that court’s decisions in those cases. If nothing else, the bill’s introduction provides a useful foil for rehashing the age-old debate over the extent of Congress’s jurisdiction-stripping powers—and why my own view is that Congress’s power to keep cases away from the Court is, though remarkably broad, not plenary.

But first, the news (such as it is).

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On the Docket

To my surprise, the Court didn’t issue a single ruling last week—including on the four different significant emergency disputes that remain pending before the justices. That was especially surprising given the August 1 deadlines parties had pointed to in both the student loan and Title IX disputes. If nothing else, it certainly seems like someone is writing an opinion respecting whatever the justices are doing in those cases. The new carbon-emissions dispute, West Virginia v. EPA (which now comprises six different emergency applications), is on a slower schedule; the Chief Justice ordered that responses to the applications aren’t due until August 19, i.e., two weeks from today. (A real emergency, eh?) Still, I’ll be (even more) surprised if we get to the end of this week without some movement on at least some of these disputes—along with an emergency application in a Texas capital case in which the execution is currently scheduled for Wednesday.

The justices didn’t make a lot of other news last week—even with Justice Gorsuch’s appearance on Fox News Sunday (he has a new book coming out). The only substantive thing I took Gorsuch to say was a cryptic comment that those pushing for Supreme Court reform should “be careful,” lest they undermine the independence of the federal judiciary. Although I suspect that Justice Gorsuch and I have fairly different views about which reforms would undermine judicial independence, I certainly agree that those advocating for reforms should be careful—to ensure that they don’t destroy the institution they’re trying to fix (unless, of course, that’s the point). More to the point, it’s striking that Gorsuch did not adopt the position Justice Alito espoused last summer—that Congress has no power in this space.

And that’s a fitting segue to the one other piece of Court-related news from last week (and the focus of this week’s “Long Read”) the introduction of the “No Kings Act.”

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The One First “Long Read”:
The Exceptions Clause Paradox

Just about every law student spends at least some time with Article III, Section 2, Clause 2 of the U.S. Constitution:

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.

The second sentence is known as the “Exceptions Clause.” And the contrast between the first sentence, which does not contemplate any role for Congress in regulating the Court’s (limited) “original” jurisdiction and the second sentence, which clearly does, is not just the heart of Chief Justice Marshall’s analysis in Marbury v. Madison; it’s the heart of one of the most important—and oldest—debates about the relationship between Congress and the Supreme Court: Is Congress’s power to make “exceptions” to the Supreme Court’s appellate jurisdiction plenary (so that Congress could keep any/all appeals away from the justices), or is it limited?

Before getting into the arguments on both sides of this debate, it’s worth emphasizing that the Supreme Court has never answered this question. Indeed, it has assiduously avoided answering this question—if for no other reason than because either answer would be a huge deal. Plenary Exceptions Clause power would allow Congress to kneecap the Court whenever it has the votes; limited Exceptions Clause power would give the Court dominion even over the political branches. Formalizing either outcome would thus be a lose-lose for the separation of powers. Instead, the only resolution for the first 234 years of the Court’s history has been the same as the resolution Joshua (the computer in the 1984 movie War Games) famously adopted for winning Tic-Tac-Toe: “the only winning move is not to play.”

The Case for Plenary Exceptions Clause Power

The case for plenary power has two major vectors. First, there’s the plain text of the Exceptions Clause. If the Constitution’s drafters meant to limit Congress’s power, it sure would have been easy to say so—either in that provision, or by giving the Court more “original” jurisdiction (the category of cases that Congress is not empowered to alter, at least according to Marbury). And although one could argue that the power to make “exceptions” to appellate jurisdiction is not the same as the power to completely eliminate it, that presupposes that Congress had an affirmative constitutional obligation to give the Supreme Court appellate jurisdiction in the first place. If such an obligation exists, where does it come from? To similar effect, if the Constitution limits Congress’s Exceptions Clause power, where/through which provision does it do that? Second, there’s the more structural argument that Congress has lots of other powers over the Court that it could use just as effectively if it really wanted to strangle it. If Congress has the power to starve the Court of all resources except the justices’ salaries, is taking away all of its appellate jurisdiction so much different? Indeed, isn’t it almost a lesser power at that point?

The Case Against Plenary Exceptions Clause Power

Like the case for plenary jurisdiction-stripping power, the case against such power also has two major vectors. First, there’s the text of a different provision: Article III, Section 1, the very first sentence of which provides that “The 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” (emphasis mine). We tend to gloss over this provision in law school, but we shouldn’t; if “one Supreme Court” means anything, it means that we can’t have two supreme courts (unlike, say, Oklahoma and Texas, or Germany). It ought to follow from that understanding that Congress therefore violates Article III when it makes someone other than the Supreme Court “supreme” (among other things, this is the argument for why circuit judges can’t be empowered to enforce ethics rules against the justices).

Second, there’s the practical argument—that there’d be little point in having an independent judiciary with the power to strike down acts of the democratically elected branches if those branches could take that power away at any time and for any reason. Courts couldn’t be much of a bulwark against tyrannies of the majority if the majority can just take away their power to check the democratically elected branches on a whim.

The “Essential Functions” Thesis

The real challenge for the anti-plenary power view is identifying what the actual limit is. Even the textual argument (“one Supreme Court”) doesn’t do it; which cases must the Supreme Court hear in order to truly be “supreme”? In the 1950s, Harvard law professor Henry Hart, who helped found the entire field of “Federal Courts,” suggested that the answer depends upon the Court’s “essential functions”—that Congress couldn’t use the Exceptions Clause in a way that deprives the Court of its essential functions. Of course, that only begs the question (a question I’ve put to 19 years of Federal Courts students).

It ought to be uncontroversial, at a minimum, that interpreting state law is not one of the Supreme Court’s essential functions (in such a case, the Court is bound to defer to how the state supreme court would answer the question). Ditto the interpretation of statutes, since Congress is free to overrule the Court’s interpretations. But my own view is that there’s a very good argument that most, if not all, constitutional interpretation is the Court’s essential function—and that giving the final say over the meaning of a particular constitutional provision or principle to someone other than the Supreme Court is necessarily depriving the Court of its essential function.

Critically, this doesn’t mean that all jurisdiction-stripping statutes are unconstitutional—or even that all statutes stripping jurisdiction over constitutional cases are. The issue is not whether the Court can hear a particular case or set of cases; the issue is whether the Court has the ability to interpret a particular constitutional provision in any case. So long as it retains that power, then even Hart’s view of the Exceptions Clause is satisfied, even if Congress has prevented the Court from doing so in a particular dispute. (This helps to explain Ex parte McCardle, about which more shortly.)

The upshot is that Congress therefore doesn’t even start to run afoul of the Exceptions Clause until and unless it has taken away the Court’s power to conclusively interpret a specific constitutional provision or principle in all contexts—and given it to someone else, either a lower court or the democratically elected branches. (Of course, Congress could violate other constitutional provisions through jurisdiction-stripping statutes, like a statute providing that the federal courts “shall have no jurisdiction over any lawsuit in which the plaintiff is Jewish,” or a statute that takes away jurisdiction in violation of a litigant’s due process rights. The relevant point for present purposes is that such a statute does not present an Exceptions Clause issue.) But if and when Congress crosses the essential functions line, it raises a serious Article III question. And one on which I must confess to my substantial agreement with Professor Hart.

The “No Kings Act”

Against that backdrop, consider the crux of the newly proposed “No Kings Act.”¹ The bill is aimed to minimize the impact of the Court’s recent ruling in Trump v. United States—and to heavily water down the efficacy of the immunity recognized by Chief Justice Roberts’s majority opinion.

I’m simplifying a bit, but in a nutshell, section 4(a)(2) of the bill would deprive the Supreme Court of appellate jurisdiction to enforce the immunity recognized in Trump v. United States in any federal criminal prosecution against a current or former President or Vice President (it can hear appeals in such cases on other issues; it just can’t grant any relief related to a finding of immunity). And section 4(b)(7) deprives the Supreme Court of appellate jurisdiction to hear constitutional challenges to the No Kings Act itself (including section 4(a)). Instead, both provisions give the last word on such issues to the D.C. Circuit.

My own view is that both section 4(a)(2) and section 4(b)(7) would exceed Congress’s power under the Exceptions Clause. Whether the analysis supporting it is right or wrong, the immunity recognized by Chief Justice Roberts’s majority opinion in Trump is undeniably grounded in the majority’s interpretation of the Constitution. And so giving the last word on the scope of that immunity to someone other than the Supreme Court, in every case in which it could arise, is necessarily depriving the Court of its essential functions. And even if you disagree with that view, it’s at least a colorable constitutional objection to the bill—on which section 4(b)(7) also gives the last word to the D.C. Circuit. Thus, section 4(a)(2) would prevent the Court from enforcing the constitutional immunity principle recognized in Trump; and section 4(a)(7) would bar the Court from resolving the grave Exceptions Clause question that section 4(a)(2) would thereby raise.

Ultimately, it seems to me that the only way courts could uphold either of those provisions, let alone both of them, would be to endorse the plenary power view of the Exceptions Clause. That may be satisfying to many of the Court’s critics in the short term; I have serious concerns about its implications in the long term. Of course, forcing the Court to strike down these provisions may be part of the political calculus here (assuming this bill could ever survive a filibuster in the Senate). But as a matter of pure constitutional law, it’s hard to see the upside.

I realize that it might seem odd for someone with my view of the current Court to take this view. Odder still given how deeply problematic I believe that the majority opinion in Trump actually is. But as I’ve tried to suggest in various prior issues of this very newsletter, our separation of powers made it through the first two centuries of the Republic through Sturm und Drang—with the branches pushing back against each other’s excesses.

Here, it seems to me that the proposed legislation jumps all the way to the extreme end of the jurisdiction-stripping (if not the entire Court-reform) spectrum. And as problematic as that is in the abstract, it’s even more exasperating when there is so much fertile (and constitutionally secure) ground in between. How about a bill that takes away the Court’s appellate jurisdiction to enforce the “Major Questions Doctrine” (which, after all, is just a series of statutory interpretations), or abolishes that doctrine altogether? Or a bill that requires the Court to hear lots more cases each term than it’s currently hearing (a power Congress has exercised repeatedly since the Judiciary Act of 1789, and one slice of which remains on the books today)? Or a bill that requires the justices to spend at least six weeks each year sitting on their assigned court of appeals (modeled on a practice that persisted from 1789—1911)? Or a bill that regulates the exact circumstances in which the Court can affirm injunctions based upon constitutional violations (a move the Court expressly upheld in the Eighth Amendment context in 2000)?

This is hardly an exhaustive list; in all, there are lots of ways Congress could curb the Court’s power that don’t require provoking the gravest of constitutional questions—and that are, therefore, far more likely to be both politically viable and something that even the Court’s critics can unite behind. The No Kings Act, in contrast, may be good politics (I’m not yet convinced); but, once again, it strikes me as unnecessarily provocative constitutional law—and yet another obstacle to the kind of politically feasible and constitutionally permissible reforms that the Court so desperately needs.

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SCOTUS Trivia: Ex parte McCardle’s Aftermath

Almost exactly one year ago, I devoted an entire installment of the newsletter to the remarkable background of Ex parte McCardle—the 1869 case that’s still, to this day, the closest the Supreme Court has ever come to weighing in on the Exceptions Clause debate summarized above. If you’re interested in the (remarkable) background, I’d encourage you to check it out. In a nutshell, in a case in which the Court seemed poised to strike down a significant part of Reconstruction, Congress took away the Court’s appellate jurisdiction after the oral argument—and the Court eventually upheld the jurisdiction-stripping statute, albeit in an opinion by Chief Justice Chase that cleverly avoided endorsing the plenary view of Congress’s Exceptions Clause power.

Here’s the trivia: Chief Justice Chase’s confrontation-avoiding result in McCardle—upholding the statute that took away the Court’s power over that case while nodding obliquely toward its power to reach the same issue in a different case—was quickly put to the test. Just six months after the April 1869 ruling in McCardle, the Court was presented with another habeas case seeking to challenge the constitutionality of military trials in the un-reconstructed South. This time, the defendant—Edward Yerger, who was charged with murdering U.S. Army Maj. Joseph Crane, then the acting Mayor of Jackson, Mississippi—took Chase’s not-so-subtle hint in McCardle and filed an “original” petition for a writ of habeas corpus directly in the Supreme Court, the precise esoteric door that Chase’s McCardle opinion had indirectly suggested Congress had (unintentionally) left open.

On October 25, 1869, the Supreme Court unanimously held that it had jurisdiction over Yerger’s “appeal.” But before the case could be re-argued on the merits (the Court itself had limited the issue in the first go-round to its jurisdiction), the federal government quietly transferred Yerger to civilian custody—thereby mooting the constitutional challenge to military prosecutions in the un-reconstructed South and finding another way to keep that issue away from the Court. In the end, like so many others accused of violent, politically motivated crimes in the post-Civil War South, Yerger was never tried for Crane’s murder.

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1. Have we so quickly forgotten that, for 70 of the last 72 years (and for 134 of the 236 years since the Constitution was adopted), the U.K. had a queen??