Introduction

Congressional Control of Federal Jurisdiction

Introduction

Federal courts do not decide whatever cases litigants bring to them, so something must determine which cases they may hear, and the Constitution splits that task between its own text and Congress. Article III, section 1 vests the judicial power of the United States in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish.¹ The Supreme Court therefore exists by constitutional command, while every lower federal court exists because Congress chose to create it.² Section 2 then lists the kinds of cases to which the judicial power extends, including cases arising under the Constitution and federal law, and it sorts the Supreme Court's share of them into two groups: original jurisdiction, where the Court hears a case first, and appellate jurisdiction, where it reviews a decision made elsewhere.³ Original jurisdiction covers cases affecting ambassadors, other public ministers, and consuls, along with cases in which a state is a party. Every other listed case falls into the appellate group.

The appellate grant carries a qualification that gives this chapter its subject. In all the cases that are not original, the Supreme Court has appellate jurisdiction "with such Exceptions, and under such Regulations as the Congress shall make."⁴ This Exceptions Clause makes Congress a co-architect of the federal courts' docket, which fits the way Article III is written: two short sections establish the entire judicial branch and leave Congress to supply most of the design and detail, from the number of Justices to the length of the Court's term.⁵ Design work of that kind raises no controversy. The controversy begins when Congress dislikes a line of constitutional decisions and wonders whether it may narrow the docket so that the next such case never reaches the Supreme Court, or never reaches any federal court. Proposals of that sort have surfaced repeatedly, on subjects such as abortion, school prayer, and the Pledge of Allegiance, and almost all of them have failed.⁶ Because so few have become law, the Court has had little occasion to say how far the clause reaches, and the answer remains unsettled.

This chapter works through that question in stages. It begins with the constitutional text and the Supreme Court's own jurisdictional framework, separating the original docket, which Article III fixes, from the appellate docket, where the Exceptions Clause operates. It then turns to Ex parte McCardle, the one Supreme Court decision that tested the power, and to the narrow reading its facts invite.⁷ From there it sets the competing theories of the clause side by side, one treating the power as plenary and the other reading Article III to require that some federal court remain open, and then takes up Congress's control over the lower federal courts. It closes with the limits that survive under either theory, which come in three forms: the defined scope of the power, the separation of powers, and external guarantees such as those in the Bill of Rights.⁸ The first step is to see what Article III itself fixes for the Supreme Court, because the Exceptions Clause reaches only half of that docket.