Congress, the Courts, and Federal Jurisdiction: Theoretical Perspectives

* * *

Congressional Power To Limit Federal Jurisdiction

Since 1955 members of Congress have introduced numerous bills to curb the federal courts' jurisdiction over selected areas of judicial decision making. Piqued by the Supreme Court's decisions on state and federal loyalty-security programs, public school segregation, defendants' rights and the administration of criminal justice, congressional districting, state legislative reapportionment, school busing as a tool of desegregation, prayer in the nation's public schools, and state antiabortion laws, the Court's congressional opponents have attempted to limit federal-court jurisdiction in these areas. Although there are many differences among the hundreds of bills that have been introduced, essentially they all leave the future definition and protection of federal constitutional rights or interests to the solicitude of the states' courts.

Sometimes referred to as court curbing, jurisdiction stripping, or jurisdictional gerrymandering, proposed limitations on federal jurisdiction reflect substantial congressional and, perhaps, public dissatisfaction with the Warren and Burger courts' definition and protection of the individual's rights against state and federal interference. Jurisdictional limitations also have constitutional consequences that reach beyond dissatisfaction with particular judicial decisions. Attempts to curb federal jurisdiction raise serious questions about congressional authority over the federal courts, the legitimate scope of judicial review in a democracy, and the Supreme Court's role as an arbiter of congressional, presidential, and state power within an institutional framework of federalism and the separation of powers.

In their attempts to curb "extraconstitutional" judicial policy making, the Court's congressional foes have zeroed in on the Court's controversial decisions on school prayer, Engel v. Vitale (1961) and Abington v. Schempp (1963); school busing, Swann v. Charlotte-Mecklenburg (1971); and state antiabortion laws, Roe v. Wade (1973). At times intense, the struggle over prayer, busing, and abortion reflects the fact that once again the Supreme Court is at the center of the political storm. This struggle raises basic questions about congressional authority to limit the Supreme Court's appellate jurisdiction as well as the lower federal courts' jurisdiction. A seemingly dry and technical subject, the debate engenders passionate discourse over congressional power on questions such as the Framers' and Ratifiers' original understanding of the Court's relationship to Congress. It is a high stakes debate about the Supreme Court's future role as a constitutional policymaker in a society that is theoretically committed to political democracy (popular sovereignty, majority rule, and responsible and responsive government) as well as a debate about constitutional limitations on the exercise of governmental power vis-à-vis individuals and minorities.

This perennial but unresolved debate includes at least three major positions on the scope of congressional authority to regulate and limit federal jurisdiction. The conventional view is that under Article III of the Constitution, congressional power to regulate federal jurisdiction is plenary. A second argument, the mandatory view, often associated with Justice Joseph Story, is that Article III imposes an affirmative duty on Congress to vest the entire constitutional jurisdiction in some federal court. A third view of more recent parentage is that, while Article III may impose few or no restrictions on Congress, other constitutional limitations external to Article III do impose specific limits on the exercise of congressional power over federal jurisdiction.

According to the plenary view, the language of the exceptions and regulations clause (Article III, section 2) imposes no limit on congressional power to regulate and make exceptions to the Supreme Court's appellate jurisdiction. Similarly, under the ordain and establish clause (Article III, section 1), Congress has plenary power to create and abolish lower federal courts and to define and limit their jurisdiction. These two clauses are legitimate checks on judicial usurpation of congressional and state legislative authority. Therefore, Congress can leave the final determination of federal constitutional questions to the states' courts without recourse to the federal judiciary. There may be a right to judicial process, but there is no guarantee of a federal forum in which individuals can vindicate their constitutional claims. Furthermore, under the supremacy clause (Article VI, section 2), state courts have an obligation to enforce the individual's rights against infringements by the states and the national government.

As the mandatory view implies, Article III imposes a constitutional obligation on Congress to create federal courts and to vest the maximum constitutional jurisdiction in the federal judiciary. The exceptions and regulations clause merely grants Congress authority to distribute federal jurisdiction between the Supreme Court and inferior federal courts. It is neither a grant of power to restrict access to the federal courts nor a legitimate check on the exercise of judicial power. If the federal judiciary is to act as a coequal partner to Congress and the president, its jurisdiction must extend to the limits of Article III and must be coterminous with the legislative power of Congress. Otherwise, Congress and the president could shield themselves from constitutional scrutiny and emasculate the federal judiciary's power of judicial review. From the mandatory perspective, Article III simply confers on Congress housekeeping power to promote the efficiency and effectiveness of the federal judiciary.

In response to recent attempts to curb federal jurisdiction on a selective basis, some scholars argue that congressional power under Article III may be broad, but it is not unlimited. Taken in context, the language of Article III does not warrant a complete closure of the federal courts to litigants presenting constitutional claims. Indeed, various constitutional provisions, including the supremacy clause (Article VI, section 2), the habeas corpus clause (Article I, section 9, clause 2), and the due process clause of the Fifth...