Jason Kuznicki has some comments about the attempt to strip federal courts of jurisdiction over things that conservatives don’t like the courts to talk about. Best line: “the more high-sounding and grandiose a bill’s title appears, the less honorable and the less useful its ultimate ends inevitably are. Recent examples include the USA-PATRIOT Act, the No Child Left Behind Act, and the Defense of Marriage Act. This bill seems destined to join their ranks, and if a Being Nice to Cute Cuddly Puppies Act ever comes up for discussion, we’d all better be certain to read the fine print more carefully than usual.” Well said.
As for Ex Parte McCardle, 74 U.S. (7 Wall.) 506 (1868), the case involved a newspaper editor jailed for criticizing the Union government during the Civil War. The editor filed a habeas corpus petition, and then appealed to the Supreme Court under a jurisdictional statute giving the Court the power to review such petitions. While the case was waiting for Supreme Court decision, Congress, probably afraid of an adverse decision from the Court, repealed the act giving it jurisdiction. The Court dismissed the case because “[w]e are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given [to Congress] by express words.” Id. at 514. So the Supreme Court declined to hear the case, even though it’s almost certain that the Congress repealed the jurisdictional statute to avoid a decision on the merits of the case. That decision was unanimous.
What the “real reasons” for the Court’s decision were, is probably too subjective to say. The judges took seriously the constitutional and statutory limits on their jurisdiction, even more than they do today (and they really do, today). They probably just genuinely believed that they no longer had authority to hear the case. Only a few years later, in United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), the Court revealed that the ability of the legislature to interfere with court decisions is still limited:
Undoubtedly the legislature has complete control over the organization and existence of [a] court and may confer or withhold the right of appeal from its decisions.... But the language of the proviso shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. Its great and controlling purpose is to deny to pardons granted by the President the effect which this court had adjudged them to have.... It is evident from this statement that the denial of jurisdiction to this court...is founded solely on the application of a rule of decision, in causes pending, prescribed by Congress. The court has jurisdiction of the cause to a given point; but when it ascertains that a certain state of things exists, its jurisdiction is to cease and it is required to dismiss the cause for want of jurisdiction. It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.
Congress’ authority over jurisdiction, therefore cannot be used to “prescribe a rule for the decision of a cause in a particular way.” Id. at 146. “Where acts of the legislative branch prevent the judicial branch from accomplishing its Constitutionally assigned functions, Congress passes ‘over the limit which separates the legislative from the judicial power.’” James v. Lash, 965 F.Supp. 1190, 1195 (N.D. Ind. 1997) (quoting United States v. Sioux Nation, 448 U.S. 371, 391 (1980)).
A law stripping federal courts entirely of the jurisdiction to hear cases involving, for instance, gay marriage, would probably fall on the McCardle side of the line. Only if Congress wrote a law that said “if a court finds gay marriage illegal, it has jurisdiction, but if it finds gay marriage legal, it shall not have jurisdiction,” would such a measure be found unconstitutional. See further Erwin Chemerinsky, Federal Jurisdiction 187 (3d ed. 1999).
Comments policy