Plenary and Mandatory Readings

Plenary and Mandatory Readings

The narrow reading of McCardle leaves a larger question open. That decision shows that Congress may repeal one statutory route to the Supreme Court and that the Court will examine only Congress's power, never its motives. It does not say what happens when Congress goes further and removes an entire subject matter, such as school prayer or abortion, from the Court's appellate docket. The answer depends on what the Exceptions Clause means, and the clause gives the Court appellate jurisdiction "with such Exceptions, and under such Regulations as the Congress shall make."¹ Read by itself, that phrase seems to leave the choice of exceptions entirely to Congress. But the clause is one sentence in a longer text, and the surrounding language about the judicial power gives a reader grounds to ask whether the discretion has an internal limit.

Two readings of the clause follow from that observation. The first, usually called the traditional or plenary view, takes the words in isolation: if a limitation is an exception to the Court's appellate jurisdiction, then Congress has power to impose it, whatever subject it covers.² The second, called the mandatory view, reads the clause together with the rest of Article III. It points out that the judicial power is to be vested in the federal courts and that the judicial power extends to "all" cases arising under the Constitution and federal law. From those words it concludes that some Article III court must remain available for such cases, so the exceptions power cannot eliminate every federal forum.³ The two readings agree on the text of the clause and differ on whether other parts of Article III restrict the power it grants.

The Supreme Court has never chosen between them. McCardle supports the plenary view on its face, because the Court took the clause's express words at face value, but the decision did not force the choice. The repeal there left the Court's habeas jurisdiction under the Judiciary Act of 1789 in place, and whether that alternative route was essential to the result remains unclear.⁴ No text, history, or precedent supplies a definitive interpretation, which is why an answer on this subject should present both readings fairly and then rest its conclusion on the limits that apply under either one.⁵ Those shared limits are collected in the final section of this chapter. The first subsection, The Plenary Power View, takes up the traditional reading and the reasons it has dominated the discussion.

The Plenary Power View

The traditional reading of the Exceptions Clause begins with its words and relies on little else. Article III gives the Supreme Court appellate jurisdiction in every case that is not original "with such Exceptions, and under such Regulations as the Congress shall make," and the clause names no limit on which exceptions Congress may choose.⁶ Read in isolation, that silence leaves Congress free to withdraw any subject matter from the Court's appellate docket, which is why the view is called plenary, meaning complete as to the scope of the power.⁷ The analysis therefore reduces to one question: is the limitation an exception to the Court's appellate jurisdiction? If it is, the clause supplies the authority, however sensitive the subject matter.

The word "exception" marks the edge of this power, because a statute can fail the one question the view asks. A statute that moved a category of cases from the appellate docket into the original docket would not be an exception to appellate jurisdiction at all, since it would rewrite the constitutional grant of original jurisdiction.⁹ The same logic keeps Congress from using the exceptions power to vacate a decision the Court has already rendered, because that would usurp a judicial prerogative.¹⁰ Plenary power thus covers what the Court may be asked to decide going forward, a point that matters when the final section collects the limits on Congress.

Three sources of support carry the view: the clause's text, the language of McCardle, and congressional practice since 1789. The textual argument is the simplest. Supporters of what is often called the orthodox account observe that Article III establishes the Supreme Court itself, so Congress cannot disestablish it, and that the Court's original jurisdiction is self-executing, so Congress cannot alter it, yet the Exceptions Clause empowers Congress to fashion exceptions to the appellate jurisdiction without specifying any limits.¹¹ Because the Constitution fixes the Court's existence and its original docket in terms Congress cannot change, the plenary reading treats the absence of any comparable limit on exceptions as meaningful.

McCardle supplies the second support, because the Court there took the clause at face value.¹² After Congress repealed the 1867 statute on which the appeal rested, the Court said it was not at liberty to inquire into the motives of the legislature and could examine only Congress's power, and it added that the power to make exceptions to its appellate jurisdiction "is given by express words."¹³ Because Congress had used that power in terms, nothing remained for the Court to do but dismiss: "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."¹⁴ Justice Frankfurter stated the same position even more bluntly in 1949, in National Mutual Insurance Co. v. Tidewater Transfer Co., when he observed that "Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice."¹⁵ Taken at face value, then, McCardle lets Congress exclude any topic from the Court's appellate docket by the same method.¹⁶ The earlier discussion of the narrow reading explains why that is only the face-value reading, since the repeal left the Court's other habeas jurisdiction in place.¹⁷

Practice supplies the third support. Congress first exercised the exceptions power in the Judiciary Act of 1789, which gave the Court appellate jurisdiction over state-court cases that had denied a federal constitutional claim and, by inference, excepted those in which the claim had been upheld.¹⁸ The Act also gave the inferior federal courts no federal question jurisdiction, so the federal judicial power did not reach all cases arising under the Constitution.¹⁹ Many of the Act's authors had helped draft the Constitution, which is why their work is read as adopting the plenary view, at least by inference.²⁰ The pattern they set has held ever since: the Court hears a case only when Article III permits it and Congress affirmatively authorizes it, and Congress has never conferred the full range of appellate jurisdiction that Article III describes, as its refusal to give the Court appellate jurisdiction over diversity suits decided in state courts illustrates.²¹

A structural argument reinforces these three. Congress controls the Court's appellate docket by statute, and Congress is an elected body, so when the Court decides a constitutional case under a statutory grant it can trace its authority to a democratic enactment. Congressional control over jurisdiction therefore gives judicial review a democratic footing. Many who hold the orthodox account also believe that Congress should, as a matter of policy, refrain from politically motivated jurisdiction stripping, and they welcome the caution with which it has acted so far.²²

That advice reflects two practical costs that attach to a power Congress undoubtedly holds on this reading. Stripping jurisdiction leaves the adverse precedent on the books: a statute that withdraws a category of cases changes who may hear later cases, and it vacates nothing the Court has already decided, so a Congress trying to escape a ruling finds the ruling still standing. The second cost falls on national uniformity. The Supreme Court is the only court whose decisions bind every circuit, so once its review is removed, courts of appeals in different regions can read the same constitutional provision differently with no court left to reconcile them, and the loss of uniform interpretation is a chief objection to jurisdiction stripping.²³

The label "plenary" also invites an error, because power that is complete as to the scope of exceptions is a different thing from power that is unrestricted. Students go wrong when they conclude that plenary means unlimited. Even those who accept the traditional view hold that Congress may not violate other provisions of the Constitution in controlling appellate jurisdiction, so a statute that arbitrarily or invidiously excluded a class of litigants, or that blocked review of constitutional-rights cases because of dissatisfaction with the Court's past decisions, would be unconstitutional.²⁴

Both this statute and the First Amendment statute above pass the question the plenary view asks, because each is an exception, and they separate only at the next step. The subject-matter withdrawal satisfies the scope question and then faces whatever external guarantees apply, while the statute that withdraws cases according to the litigants' religious membership collides with a guarantee on its face. Plenary power over scope answers the first question only, and the limits taught in the final section answer the second.

All of this presents the plenary view as one defensible reading and not as settled law. The Court has not recognized an Article III restriction on jurisdiction stripping in express terms, but McCardle admits of a narrow reading and the modern Court appears divided on what the decision means, so the scope of the power remains fluid.²⁶ The historical support is also weaker than it first appears: the 1789 Act was not free of constitutional defect, as Marbury showed, and current statutes come very close to granting the Court the full range of its Article III jurisdiction in federal question cases, which supporters of the competing view read as Congress's recognition of a duty.²⁷ A sound answer therefore starts from the plenary reading as the traditional position, presents the competing reading fairly, and rests its conclusion on the limits that apply under either one.²⁸ The competing reading is the subject of the next subsection, Mandatory Interpretations.

Mandatory Interpretations

The plenary view reads the Exceptions Clause as though it stood alone, and the competing reading begins from the fact that it does not. The clause is one phrase inside a longer text, and that text contains two commands about the judicial power. Section 1 of Article III says the judicial power "shall be vested" in one Supreme Court and in such inferior courts as Congress may establish.³⁰ Section 2 says the judicial power "shall extend to all Cases" arising under the Constitution and the laws of the United States, and it attaches the word "all" to only three of the listed subject matters, one of which is cases arising under the Constitution or federal law.³¹ The mandatory interpretation takes these verbs at their word. A command that the judicial power extend to all such cases is hard to reconcile with a power in Congress to remove a category of them from every federal court, so on this reading the Exceptions Clause operates inside the larger command. Congress may choose which court hears a constitutional case and by what route, but it may not leave the case without any Article III court.³²

The practical case for that reading lies in what the federal courts do for federal law. The Convention expected the federal judiciary, with the Supreme Court as its focus, to keep federal law uniform and supreme.³³ If Congress could remove a whole category of constitutional cases from every federal court, enforcement of those rights would fall to state judges, who almost universally serve limited terms and face some form of election, and the meaning of a constitutional provision could differ from state to state with no federal court able to reconcile the answers.³⁴ Those consequences supply the reason to treat the command that the judicial power reach all constitutional cases as a floor on what the exceptions power may remove. They also explain why the versions of the theory differ mainly in how much of the Supreme Court's role each one protects.

The ordering tracks what each version demands. The minimal version asks only whether a federal forum of any rank remains, so a statute that sent every constitutional case in a category to the lower federal courts would satisfy it. The essential-role version asks about the Supreme Court's own function, and because that function is keeping federal law uniform and supreme, a statute that left only lower-court review might draw its objection even where the minimal version is content.³⁸ The broadest versions go furthest, because they deny that Congress may subtract constitutional jurisdiction from the Court at all.

The broadest version traces to Justice Story's opinion in Martin v. Hunter's Lessee. Story wrote that the language of Article III is mandatory on the legislature, because the judicial power "shall be vested" where the text might have said "may be vested."³⁹ He read "shall extend" in section 2 the same way. For cases arising under the Constitution, laws, and treaties, for cases affecting ambassadors, and for admiralty cases, he concluded that the judicial power must reach every case either originally or on appeal, while the other enumerated controversies could be left to Congress to qualify.⁴⁰ From that premise he drew a conclusion about lower courts: the Supreme Court's original docket covers only two categories, and if state courts could not hear some enumerated cases, the Court's appellate jurisdiction could not reach them, so Congress seemed bound to create some inferior courts.⁴¹ Later accounts describe the argument as requiring that the entire range of jurisdiction described in Article III be vested in the federal judiciary.⁴² Because Story's own reasoning singled out the categories modified by "all," his argument at its most careful covers the same territory as the minimal version.

None of these theories is law. The Court has not recognized any Article III restriction on jurisdiction stripping in express terms, and no text, history, or precedent supplies a definitive reading of the Exceptions Clause.⁴³ Story's statements were dictum, a remark in an opinion on which the result did not depend, so they bind no later court, and answers go wrong when they present Story's dictum as law.⁴⁴ Even among those who read the text as mandatory, one possible position holds that the duty rests on Congress with no means of judicial enforcement if Congress fails to act.⁴⁵ Practice also cuts against the broadest version, since Congress has never given the Supreme Court the full range of appellate authority Article III describes, and no federal court has ever had jurisdiction over diversity cases in which the amount in controversy is too small.⁴⁶ Diversity is not one of the subject matters that carries the word "all," so those examples trouble the broadest theory without answering the minimal one.⁴⁷

The standard illustration shows where every mandatory version parts company with the plenary view. A school-prayer statute provides that the Supreme Court may not review, by appeal, certiorari, or otherwise, any case about voluntary prayer, Bible reading, or religious meetings in public schools, and it withholds from the district courts any case the Supreme Court cannot review.⁴⁸ On the plenary view the statute is a literal exception to appellate jurisdiction and lies within Congress's power. On any mandatory view it fails, because it eliminates Article III jurisdiction over a whole category of cases arising under the Constitution, so that no federal court of any rank remains available.⁴⁹

The essential-role version asks a different question, namely whether the Supreme Court's own role in keeping federal law uniform and supreme survives, so it may still object to the second statute where the minimal version does not.⁵⁰

On an exam, the mandatory interpretation is best handled as an alternative argument set beside the traditional one. State the plenary reading first as the traditional position, present the mandatory reading with its textual hooks, identify the minimal version as the narrowest, and say plainly that the Court has adopted none of them. Then rest the conclusion on the ground where the two sides converge. Congress has broad power to close particular routes to review, but McCardle cannot be cited to validate a statute that eliminates all federal judicial review of constitutional claims, and the mandatory theories condemn such a statute outright.⁵¹