Some thoughts on jurisdiction stripping

Stephan Kinsella had a very interesting question that he emailed me, and I urged him to blog it. The question is this: we often hear proposals to strip the Supreme Court of jurisdiction for certain cases—say, cases involving references to God in the pledge of allegiance, or whatever. (As a side note—I’ve always rather liked these proposals. To me, jurisdiction stripping is the last refuge of people who have no real argument. It’s the legal equivalent of taking your marbles and going home.)

But, notes Kinsella, Article III section 2 paragraph 2 of the Constitution gives the Supreme Court original jurisdiction over any case “in which a State shall be a party.” If Congress can’t mess with Constitutional grants of jurisdiction, which seems logical, then Congress might deprive the Supreme Court of appellate jurisdiction or certiorari in cases where the state is a party, but all that would mean is that Mr. Lawrence would walk over to the Supreme Court and file a complaint there, instead of petitioning the Supreme Court after going through the Texas court system. Kinsella asked if anyone’s ever thought of this before. I’m not aware of any cases.

I did find Wisconsin v. Pelican Insurance Co., 127 U. S. 265 (1888), in which the State of Wisconsin filed a complaint in the Federal Supreme Court, seeking enforcement of a judgment rendered in a Wisconsin court, against a Louisiana corporation. Jurisdiction was asserted on the ground that it was a case in which a state was a party. The Supreme Court accepted that jurisdiction—and did so again in Massachusetts v. Mellon, 262 U.S. 447 (1923), which discussed the Pelican case. But these cases then stated that Art III § 3 ¶ 3 does “not…confer jurisdiction upon the court merely because a state is a party, but only where it is a party to a proceeding of judicial cognizance. Proceedings not of a justiciable character are outside the contemplation of the constitutional grant.” Mellon, 262 U.S. at 481. In Pelican, the Court said that it did not have authority to execute the penal statutes of another sovereign, so that it could not enforce the Wisconsin state court judgment, which was rendered under a penal statute.

So what happens when Mr. Lawrence goes to Washington and files his complaint against Texas? The Supreme Court might say that the Eleventh Amendment alters Art III § 3 ¶ 3, by constitutionalizing principles of sovereign immunity. This is a difficult argument to assess since, as we all know, the Eleventh Amendment did not constitutionalize principles of sovereign immunity, despite the Supreme Court’s recent repeated insistence to the contrary. The Eleventh Amendment makes no reference to sovereign immunity, but merely removes a single element of the Supreme Court’s jurisdiction (namely, suits by citizens of one state against another state). Still, the cases have interpreted that Amendment very broadly—finding immunity in its emanations and penumbras. So would those emanations and penumbras limit Mr. Lawrence from going to D.C. as I’ve proposed? I’m afraid this is too speculative for me to guess.

(Incidentally, Kinsella writes “Since the 14th Amendment speci[fi]cally allows Congress to provide, or not provide, jurisdiction to hear certain cases under the 14th [amendment], it’s appellate by definition…. Let’s take the case where, say, Lawrence sues Texas. He sues in state courts. Then it’s appealed to the Supreme Court. This…[is] appellate jursid[i]ction.” True, but we’re hypothesizing that some loony Congress has removed the Supreme Court’s authority to hear appeals or cert. from state courts. So instead Lawrence files his complaint in Federal Court. In that case, personal jurisdiction against the state would be granted by Article III, and subject matter jurisdiction would be granted by the Fourteenth Amendment. That should be enough, unless personal jurisdiction must be based on some act or event which is related to the cause of action—something which I believe the Supreme Court has rejected.)