Article III, Section 2, Clause 2:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Unlike its original jurisdiction, the appellate jurisdiction of the Supreme Court is subject to
exceptions and regulations prescribed by Congress, and the jurisdiction of the inferior federal courts is subject to congressional prescription. Additionally, Congress has power to regulate modes and practices of proceeding on the part of the inferior federal courts. Whether there are limitations to the exercise of these congressional powers, and what the limitations may be, are matters that have vexed scholarly and judicial interpretation over the years, inasmuch as congressional displeasure with judicial decisions has sometimes led to successful efforts to
curb the courts and more frequently to proposed but unsuccessful curbs. 1 Supreme Court holdings establish clearly the breadth of congressional power, and numerous dicta assert an even broader power, but that Congress may through the exercise of its powers vitiate and overturn constitutional decisions and restrain the exercise of constitutional rights is an assertion often made but not sustained by any decision of the Court.
In Wiscart v. D'Auchy, 2 the issue was whether the statutory authorization for the Supreme Court to review on writ of error circuit court decisions in
civil actions gave it power to review admiralty cases. 3 A majority of the Court decided that admiralty cases were
civil actions and thus reviewable; in the course of decision, it was said that
[i]f Congress had provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it. 4 Much the same thought was soon to be expressed by Chief Justice Marshall, although he seems to have felt that in the absence of congressional authorization, the Court's appellate jurisdiction would have been measured by the constitutional grant.
Had the judicial act created the supreme court, without defining or limiting its jurisdiction, it must have been considered as possessing all the jurisdiction which the constitution assigns to it. The legislature would have exercised the power it possessed of creating a supreme court, as ordained by the constitution; and in omitting to exercise the right of excepting from its constitutional powers, would have necessarily left those powers undiminished.
The appellate powers of this court are not given by the judicial act. They are given by the constitution. But they are limited and regulated by the judicial act, and by such other acts as have been passed on the subject. 5 Later Justices viewed the matter differently from Marshall.
By the constitution of the United States, it was said in one opinion,
the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress. 6 In order for a case to come within its appellate jurisdiction, the Court has said,
two things must concur: the Constitution must give the capacity to take it, and an act of Congress must supply the requisite authority. Moreover,
it is for Congress to determine how far, within the limits of the capacity of this court to take, appellate jurisdiction shall be given, and when conferred, it can be exercised only to the extent and in the manner prescribed by law. In these respects it is wholly the creature of legislation. 7
This congressional power, conferred by the language of Article III, § 2, cl. 2, which provides that all jurisdiction not original is to be appellate,
with such Exceptions, and under such Regulations as the Congress shall make, has been utilized to forestall a decision which the congressional majority assumed would be adverse to its course of action. In Ex parte McCardle, 8 the Court accepted review on certiorari of a denial of a petition for a writ of habeas corpus by the circuit court; the petition was by a civilian convicted by a military commission of acts obstructing Reconstruction. Anticipating that the Court might void, or at least undermine, congressional reconstruction of the Confederate States, Congress enacted over the President's veto a provision repealing the act which authorized the appeal McCardle had taken. 9 Although the Court had already heard argument on the merits, it then dismissed for want of jurisdiction. 10
We 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 by express words.
What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. 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. 11 Although McCardle grew out of the stresses of Reconstruction, the principle it applied has been applied in later cases, 12including recently in Patchak v. Zinke. 13
Jurisdiction of the Inferior Federal Courts
The Framers, as we have seen, 14 divided with regard to the necessity of courts inferior to the Supreme Court, simply authorized Congress to create such courts, in which, then, judicial power
shall be vested and to which nine classes of cases and controversies
shall extend. 15 While Justice Story deemed it imperative of Congress to create inferior federal courts and, when they had been created, to vest them with all the jurisdiction they were capable of receiving, 16 the First Congress acted upon a wholly different theory. Inferior courts were created, but jurisdiction generally over cases involving the Constitution, laws, and treaties of the United States was not given them, diversity jurisdiction was limited by a minimal jurisdictional amount requirement and by a prohibition on creation of diversity through assignments, equity jurisdiction was limited to those cases where a
plain, adequate, and complete remedy could not be had at law. 17 This care for detail in conferring jurisdiction upon the inferior federal courts bespoke a conviction by Members of Congress that it was within their power to confer or to withhold jurisdiction at their discretion. The cases have generally sustained this view.
Thus, in Turner v. Bank of North America, 18 the issue was the jurisdiction of the federal courts in a suit to recover on a promissory note between two citizens of the same state but in which the note had been assigned to a citizen of a second state so that suit could be brought in federal court under its diversity jurisdiction, a course of action prohibited by § 11 of the Judiciary Act of 1789. 19 Counsel for the bank argued that the grant of judicial power by the Constitution was a direct grant of jurisdiction, provoking from Chief Justice Ellsworth a considered doubt 20 and from Justice Chase a firm rejection.
The notion has frequently been entertained, that the federal courts derive their judicial power immediately from the constitution: but the political truth is, that the disposal of the judicial power (except in a few specified instances) belongs to Congress. If Congress has given the power to this Court, we possess it, not otherwise: and if Congress has not given the power to us, or to any other Court, it still remains at the legislative disposal. Besides, Congress is not bound, and it would, perhaps, be inexpedient, to enlarge the jurisdiction of the federal courts, to every subject, in every form, which the constitution might warrant. 21 Applying § 11, the Court held that the circuit court had lacked jurisdiction.
Chief Justice Marshall himself soon made similar assertions, 22 and the early decisions of the Court continued to be sprinkled with assumptions that the power of Congress to create inferior federal courts necessarily implied
the power to limit jurisdiction of those Courts to particular objects. 23 In Cary v. Curtis, 24 a statute making final the decision of the Secretary of the Treasury in certain tax disputes was challenged as an unconstitutional deprivation of the judicial power of the courts. The Court decided otherwise.
[T]he judicial power of the United States, although it has its origin in the Constitution, is (except in enumerated instances applicable exclusively to this court), dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating tribunals (inferior to the Supreme Court), for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good. 25
Five years later, the validity of the assignee clause of the Judiciary Act of 1789 26 was placed in issue in Sheldon v. Sill, 27 in which diversity of citizenship had been created by assignment of a negotiable instrument. It was argued that, because the right of a citizen of any state to sue citizens of another flowed directly from Article III, Congress could not restrict that right. Unanimously, the Court rejected this contention and held that because the Constitution did not create inferior federal courts but rather authorized Congress to create them, Congress was also empowered to define their jurisdiction and to withhold jurisdiction of any of the enumerated cases and controversies in Article III. The case and the principle have been cited and reaffirmed numerous times, 28 including in a case under the Voting Rights Act of 1965. 29 More recently, in Patchak v. Zinke, the Court confirmed that “Congress’ greater power to create lower federal courts includes its lesser power to ‘limit the jurisdiction of those Courts.’ So long as Congress does not violate other constitutional provisions, its ‘control over the jurisdiction of the federal courts’ is ‘plenary.’” 30 In Patchak, a neighboring landowner challenged the authority of the Secretary of the Interior to invoke the Indian Reorganization Act 31 and take into trust a property on behalf of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, which planned to build a casino on the property. 32 While the suit was on remand in a district court, Congress enacted the Gun Lake Trust Land Reaffirmation Act, which “reaffirmed as trust land” the Tribe’s Property and provided that “an action . . . relating to [that] land shall not be filed or maintained in a Federal court and shall be promptly dismissed.” 33 In response, the district court dismissed the suit, and the U.S. Court of Appeals for the D.C. Circuit affirmed. 34 On appeal, the Supreme Court affirmed the dismissal, holding that the Gun Lake Act did not violate Article III. 35 In so holding, the Court clarified that “Congress generally does not infringe the judicial power when it strips jurisdiction because, with limited exceptions, a congressional grant of jurisdiction is a prerequisite to the exercise of judicial power.” 36 Furthermore, the Court stated, “when Congress strips federal courts of jurisdiction, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it.” 37
Congressional Control Over Writs and Processes
The Judiciary Act of 1789 contained numerous provisions relating to the times and places for holding court, even of the Supreme Court, to times of adjournment, appointment of officers, issuance of writs, citations for contempt, and many other matters which it might be supposed courts had some authority of their own to regulate. 38 The power to enjoin governmental and private action has frequently been curbed by Congress, especially as the action has involved the power of taxation at either the federal or state level. 39 Though the courts have variously interpreted these restrictions, 40 they have not denied the power to impose them.
Reacting to judicial abuse of injunctions in labor disputes, 41 Congress in 1932 enacted the Norris-La Guardia Act which forbade the issuance of injunctions in labor disputes except through compliance with a lengthy hearing and fact-finding process which required the district judge to determine that only through the injunctive process could irremediable harm through illegal conduct be prevented. 42 The Court seemed to experience no difficulty in upholding the Act, 43 and it has liberally applied it through the years. 44
Congress’s power to confer, withhold, and restrict jurisdiction is clearly revealed in the Emergency Price Control Act of 1942 45 and in the cases arising from it. Fearful that the price control program might be nullified by injunctions, Congress provided for a special court in which persons could challenge the validity of price regulations issued by the government with appeal from the Emergency Court of Appeals to the Supreme Court. The basic constitutionality of the Act was sustained in Lockerty v. Phillips. 46 In Yakus v. United States, 47 the Court upheld the provision of the Act which conferred exclusive jurisdiction on the special court to hear challenges to any order or regulation and foreclosed a plea of invalidity of any such regulation or order as a defense to a criminal proceeding under the Act in the regular district courts. Although Justice Rutledge protested in dissent that this provision conferred jurisdiction on district courts from which essential elements of the judicial power had been abstracted, 48 Chief Justice Stone for the Court declared that the provision presented no novel constitutional issue.