Constitutionality of Legislation Withdrawing Supreme Court Jurisdiction to Consider Cases Relating to Voluntary Prayer
Proposed legislation w ithdraw ing jurisdiction from the Suprem e C ourt to consider cases relating to voluntary prayer in public schools and public buildings raises difficult and unsettled constitutional questions under the separation of powers doctrine. W hile C ongress possesses som e power under the Exceptions C lause of A rticle III o f the Constitution to regulate the appellate jurisdiction o f the Suprem e C o u rt, it may not interfere with the core functions of the Suprem e Court as an independent and equal branch in our system of governm ent.
The records of the C onstitutional C onvention, as well as the structure of the system of governm ent adopted by that C onvention, establish that the Exceptions Clause was not intended to allow Congress to intrude upon the Suprem e C ourt’s core functions. There is no basis in Suprem e C ourt precedent, or in long accepted historical practice, for reaching a contrary conclusion.
W hether a given exception to Suprem e C ourt jurisdiction intrudes upon its core functions depends upon a num ber of factors, such as w hether the exception covers constitutional or nonconstitutional questions, the extent to which the subject is one which by its nature requires uniform ity or perm its diversity am ong the different states and different parts of the country, the extent to which Suprem e Court review is necessary to ensure the suprem acy o f federal law, and w hether other forum s or rem edies have been left in place so that the intrusion can properly be characterized as an exception.
May 6, 1982
T he C h a ir m a n of the Com m it t e e o n t h e J u d ic ia r y U n it e d S tates S enate
D e a r M r . C h a i r m a n : This letter is written to you as Chairman of the Com m it
tee on the Judiciary. It is written in response to a num ber of earlier inquiries from members of your Committee concerning S. 1742, a proposal which would withdraw jurisdiction from the Supreme Court to consider “ any case arising out of any State statute, ordinance, rule, [or] regulation . . . which relates to voluntary prayers in public schools and public buildings.” A second provision of the bill would withdraw the jurisdiction of the district courts over any case in which the Suprem e Court has been deprived of jurisdiction. This bill raises fundamental and difficult questions regarding the role of the Supreme C ourt in our constitutional system, as well as the power of Congress to define and circumscribe that role. The issues involved have been the subject of intense scholarly debate, and prom inent constitutional scholars have differed as to the extent of congressional power to limit Supreme Court jurisdiction. This is perhaps to be expected since the question of congressional power over the appellate jurisdiction of the Supreme Court implicates in a basic way the
13 relations between Congress and the Suprem e Court, two co-equal branches of governm ent. Relations between the different branches in our tripartite system are generally governed by the doctrine of separation of powers. Neither the Constitu tion nor the decisions of the Suprem e Court have attempted to define the precise contours of this doctrine. As tw o astute students of our constitutional system have noted:
The accommodations am ong the three branches of government are not automatic. They are undefined, and in the very nature of things could not have been defined, by the Constitution. To speak of lines of demarcation is to use an inapt figure. There are vast stretches o f ambiguous territory.
F rankfurter & Landis, Power c f Congress O ver Procedure in Criminal Con tem pts in “Inferior” Federal C ourts, A Study in Separation c f Powers, 37 Harv. L. Rev. 1010, 1016 (1924) (em phasis in original). T he doctrine of separation of powers touches fundamentally on how the Nation is governed, and, as the Supreme Court noted last Term in a separation of powers case, “ it is doubtless both futile and perhaps dangerous to find any epigram- m atical explanation of how this country has been governed.” Dames & M oore v. R egan, 453 U .S. 654, 660 (1981). In this area more than any other we must heed Justice H olm es’ wise admonition that “ [t]he great ordinances of the Constitution do not establish and divide fields of black and white.” Springer v. Philippine Islands, 277 U .S . 189, 209 (1928) (dissenting opinion). T here is no doubt that Congress possesses some power to regulate the appellate jurisdiction of the Supreme C ourt. The language of the Constitution authorizes Suprem e Court appellate jurisdiction over enumerated types of cases “ with such E xceptions, and under such Regulations as the Congress shall make.” U.S. C onst. A rt. III. The Supreme Court has upheld the congressional exercise of pow er under this clause, even beyond widely accepted “ housekeeping” matters such as tim e lim its on the filing of appeals and minimum jurisdictional amounts in controversy. See Ex parte M cC ardle, 74 U .S. (7 Wall.) 506 (1869). C ongress may not, however, consistent with the Constitution, make “ excep tions” to Suprem e C ourt jurisdiction which would intrude upon the core func tions o f the Suprem e Court as an independent and equal branch in our system of separation of powers. In determ ining whether a given exception would intrude upon the core func tions o f the Suprem e Court, it is necessary to consider a number of factors, such as w hether the exception covers constitutional or nonconstitutional questions, the extent to which the subject is one which by its nature requires uniformity or perm its diversity am ong the different states and different parts of the country, the extent to which Suprem e Court review is necessary to ensure the supremacy of federal law, and w hether other forum s or remedies have been left in place so that the intrusion can properly be characterized as an exception. Concluding that Congress m ay not intrude upon the core functions of the Suprem e C ourt is not to suggest that the Supreme Court and the inferior federal
14 courts have not occasionally exceeded the properly restrained judicial role envisaged by the Framers of our Constitution. Nor does such a conclusion imply an endorsem ent of the soundness of some of the judicial decisions which have given rise to various of the legislative proposals now before Congress. The Department of Justice will continue, through its litigating efforts, to urge the courts not to intrude into areas that properly belong to the state legislatures and to Congress. The remedy for judicial overreaching, however, is not to restrict the Supreme C ourt’s jurisdiction over those cases which are central to the core functions of the Court in our system of government. This remedy would in many ways create problems equal to or more severe than those which the measure seeks to rectify.1 With respect to other pending legislation, the Department of Justice has concluded that Congress may, within constraints imposed by provisions of the Constitution other than Article III, limit the jurisdiction or remedial authority of the inferior federal courts. See Letter from William French Sm ith, Attorney General, to Chairman Rodino, House Comm, on the Judiciary, concerning S. 951 (May 6, 1982). The question of congressional power over lower federal courts is quite different from the question of congressional power over Supreme Court jurisdiction, and the two issues should not be confused.
I.
Proponents of congressional constitutional authority to limit the Supreme Court’s entire appellate jurisdiction have contended that such authority exists under the Exceptions Clause of Article III of the Constitution. Article III provides, in pertinent part:
Section 1. The judicial Power of the United States, shall be vested in one supreme C ourt, and in such inferior Courts as the Congress may from time to time ordain and establish. . . .
Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties m ade, or which shall be made, under
1 The D epartm ent o f Justice, in previous A dm inistrations, has consistently op posed proposals to restrict Su p rem e C ourt ju risd ictio n S ee Lim itation c f A ppellate Jurisdiction c f the U nited S ta tes Suprem e C o u rt • H earings on S . 2 6 4 6 B efore the Subcom m To Investigate the A dm inistration c f th e Internal S ecu rity Act a n d O ther In te rn a l S ecu rity L aw s c f the Sen C om m on (heJudictary, 8 5 th C o n g ,2 d S e s s . 5 7 3 -7 4 , Pt 2 (1958) (statem ent o f A tto rn ey G eneral R ogers) (“ [f]ull and unim paired appellate jurisdiction in the Suprem e C o u rt is fundam ental un d er o u r system of governm ent” ); M em orandum for the A ttorney G eneral from A ssistant A ttorney G eneral M alcolm R W ilkey, O LC (F eb 2 5 , 1958) (bills to lim it S uprem e C ourt jurisdiction are constitutional but bad policy); M em orandum for the D eputy A ttorney G eneral from A ssistant A ttorney G eneral Tom pkins. Internal Security Div. (Feb 14, 1958) (unconstitutional), L etter to Sen. Jam es O E astland, C hairm an , Senate C om m , o n the Judiciary, from D eputy A ttorney G eneral Richard K leindienst (S ept 4, 1969) (not clearly distinguishing constitutional and policy objections), M em orandum for the A ttorney G eneral from A ssistant A ttorney G eneral W illiam H R ehnquist (Sept 16, 1969) (not clearly distinguishing constitutional and policy objections), Letter from A ssistant A ttorney G eneral A lan f^ rk e r to R ep Peter R odino, C hairm an, H ouse C om m on the Judiciary (June 19, 1980) (u n constitu tional); Prayer in P ublic Schools a n d Buildings— F ederal C ourt Jurisdictio n : H earings on S 4 5 0 Before the Subcom m on C ourts, C iv il Liberties, a n d the A dm inistration o f Ju stice c fth e H o u se C om m , on the Judiciary. 96th C o n g ., 2d Sess. 11 (1980) (testim ony o f John M . H arm on, A ssistant A ttorney G en eral, OLC) (unconstitutional).
15 their A uthority;— to all C ases affecting Ambassadors, other pub lic M inisters and Consuls;— to all Cases of admiralty and mar itim e Jurisdiction;—to Controversies to which the United States shall be a Party;— to Controversies between two or more States;— between a State and Citizens of another State;— between Citizens of different States;—betw een Citizens of the same State claiming Lands under Grants of different States, and between a State, or the C itizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting A m bassadors, other public M inisters and C onsuls, and those in w hich a State shall be Party, the supreme C ourt shall have original Jurisdiction. In all the other Cases before m entioned, the suprem e Court shall have appellate Juris diction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. (Emphasis added.)
The language of the Exceptions Clause, italicized above, does not support the conclusion that Congress possesses plenary authority to remove the Supreme C o u rt’s appellate jurisdiction o v er all cases within that jurisdiction. The concept o f an “ exception” was understood by the Fram ers, as it is defined today, as m eaning an exclusion from a general rule or law. An “ exception” cannot, as a m atter of plain language, be read so broadly as to swallow the general rule in term s of which it is defined. The C onstitution, unlike a statute, is not drafted with specific situations in m ind. D esigned as the fundamental charter of our political system, its most im portant provisions are phrased in broad and general terms. As eloquently expressed by Justice Holmes in M issouri v. H olland, 252 U .S. 416, 433 (1920): [W ]hen we are dealing w ith words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors m uch sweat and blood to prove that they created a nation. The case before us must be considered in the light of our w hole experience and not merely in that of what was said a hundred years ago. For exam ple, a literal interpretation of A rticle III as a whole would seem to m andate that Congress vest the full judicial power of the United States either in the Suprem e C ourt or in an inferior federal court. Under such an interpretation, C ongress could m ake “ exceptions” to the Supreme C ourt’s appellate jurisdiction only if it vested the jurisdiction at issue either in an inferior federal court or in the Suprem e C o u rt’s original jurisdiction. This interpretation, which would require the conclusion that any measure which entirely ousted the federal courts from exercising any portion of the ju d icial power of the United States and vested that
16 authority in state courts would be unconstitutional, is rejected by all authorities today.2 The Constitution contains a num ber of other pronouncements w hich, although seemingly unambiguous and absolute, have necessarily been interpreted as lim ited in th eir applicability. See, e .g .. H om e B uilding & L oan A ss’n v. Blaisdell, 290 U .S. 398 (1934) (Contract Clause); Everson v. Board c f E duca tion, 330 U .S. 1 (1947) (Establishment Clause); Reynolds v. United States, 98 U.S. 145 (1878) (Free Exercise Clause); Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam ) (Free Speech Clause). The Supreme Court has also recog nized that even when a statute is otherwise within a power granted to Congress by the Constitution, extrinsic limitations on congressional power contained in the Bill of Rights or elsewhere may nevertheless render the statute unconstitutional. See, e .g .. N ational League c f Cities v. Usery, 426 U.S. 833 (1976) (limitations on Commerce Clause); M cCulloch v. M aryland, 17 U .S. (4 W heat.) 316, 421 (1819) (limitations on Necessary and Proper Clause). In light of these principles of constitutional interpretation, the Exceptions Clause may not be analyzed in a vacuum but must be understood in terms of Article III as a whole, as evidenced by the history of its framing and ratification, its place in the system of separation of powers embodied in the structure of the Constitution, and its consistency with external limitations on congressional power implicit in the Constitution and contained in the Bill of Rights. The construction of the Exceptions Clause that is most consistent both with the plain language of the clause and with other evidence of its meaning is that Congress can limit the Suprem e C ourt’s appellate jurisdiction only up to the point where it impairs the C ourt’s core functions in the constitutional scheme.
II.
The events at the Constitutional Convention support a construction of the Exceptions Clause that would preclude Congress from interfering with the Supreme C ourt’s core functions. The Framers agreed without dissent on the necessity of a Supreme Court to secure national rights and the uniformity of judgm ents. The Resolves which were agreed to by the Convention and given to the Com m ittee of Detail provided, simply, that “ the jurisdiction [of the Supreme Court] shall extend to all cases arising under the Natl, laws: And to such other questions as may involve the Natl, peace & harmony.” 2 M. Farrand, Records c f the Federal Convention c f 1787, at 46 (rev. ed. 1937). No mention was made of any congressional power to make exceptions to the C ourt’s jurisdiction. The Committee of D etail, charged with drafting a provision to implement these Resolves, proposed the language of the Exceptions Clause. It seems unlikely that
2 M arbury v M adison, 5 U .S . (I C ranch) 137 (1803). established that C ongress has no authority to enlarge the Suprem e C o u rt’s original jurisdiction by creating “ exceptions” to its appellate ju risd ictio n In M a rtin v H u n ter's L essee. 14 U .S (1 W heat ) 304, 330-31 (1816), Justice Story argued that, if C ongress creates any inferior federal co u rts, it m ust co n fer on them the full federal ju risdiction. This view, however, has never since been accepted by a m ajority o f the S uprem e C ourt
17 the C om m ittee of Detail could have deviated so dramatically from the Con vention’s Resolves as to have given Congress the authority to interfere with the Suprem e C o u rt’s core functions without considerably more attention to the subject at the Convention. T his interference is strengthened by the events surrounding the adoption of the Judicial A rticle by the full Convention. In determ ining the scope of the C ourt’s jurisdiction, the Convention agreed to provisions expressly confirming that the jurisdiction included cases arising under the Constitution and treaties; but it rejected, by a 6 to 2 vote, a resolution providing that, except in the narrow class of cases under the C o u rt’s original jurisdiction, “ the judicial power shall be exer cised in such m anner as the Legislature shall direct.” 3 The Convention thus rejected a clear statement of plenary congressional power over the C ourt’s appellate jurisdiction. Nevertheless, on the same day— without any recorded debate o r explanation— the Fram ers adopted the Exceptions and Regulations language now contained in A rticle III. In light o f the value placed on the Supreme C o u rt’s appellate jurisdiction, a s evidenced by the other actions of the Con vention, it seem s highly unlikely that the Framers would have agreed, without the slightest hint of controversy, to a provision that would authorize Congress to interfere with the C o u rt’s core constitutional functions. T here are additional reasons why the lack of controversy surrounding the adoption of the Exceptions Clause supports the inference that no power to intrude on the C o u rt’s core functions was intended. First, the historical materials show the great im portance which the Framers attached to these functions. They envisaged that the Supreme C ourt was a necessary part of the constitutional schem e and believed that the C ourt would review state and federal laws for consistency with the Constitution.4 These sentiments were echoed by the authors of The Federalist Papers (J. Cooke ed. 1961), a work which is justly regarded as an im portant guide to the meaning of the C onstitution.5 In light of this explicit recognition by the Founding Fathers of the C o u rt’s vital role in the constitutional schem e, it seem s unlikely that they would have adopted, without controversy, a provision which would effectively authorize Congress to eliminate the C ourt’s core functions. A second reason for inferring a more limited construction of the Exceptions Clause from the lack of discussion at the Convention concerns the compromise agreed to by the Fram ers regarding the establishm ent of inferior federal courts. W hile the necessity of a Supreme Court was accepted without significant dissent am ong the Fram ers, there was vigorous disagreem ent over whether inferior federal courts should be provided. The Convention first approved a provision calling for m andatory inferior federal courts, then struck this provision by a divided vote, and finally determined to leave to Congress the question whether to
3 2 M . fiirran d . R ecords o f ihe Federal C onv en tio n o f 1787 4 S e e , e .g ., 1 M fiarrand, supra, at 124; 2 M . fiarrand, supra, at 589 s S e e ,e .g , T h e F ederalist N o. 39. at 256 (J M adison) (J. C o o k e ed . 19 6 1) (S uprem e C o u rt is “clearly essential to prevent an appeal to the sw ord and a disso lu tio n of the co m p act” ); id N o. 80 (A H am ilton), id. N o 82 (A . H am ilton)
18 establish inferior federal courts. The Supreme Court was viewed as a necessary part of the constitutional structure and was established by the Constitution itself; Congress was given no control over whether the Court would be created. The inferior federal courts, however, were viewed as an optional part of the govern ment and were authorized but not established by the Constitution. The decision whether to create them was given to Congress. This distinction, and the role explicitly assigned to Congress with respect to the inferior federal courts, implies that the powers of Congress were to be quite different with respect to the Supreme Court and the inferior federal courts. If the Exceptions Clause authorized Congress to eliminate the Supreme C o u rt’s appellate jurisdiction, thus limiting it to the exercise of original jurisdiction, the power of Congress over the Supreme Court would be virtually indistinguishable -from its power over inferior federal courts. Just as Congress could decline to create inferior federal courts, it could, in the guise of creating “ exceptions” to the Supreme C ourt’s appellate jurisdiction, deny the Supreme Court the vast major ity of the judicial powers which the Framers insisted “ shall be vested” in the federal judiciary. Congress could not eliminate the Supreme Court, but it could reduce it to a position of virtual impotence with only its limited original jurisdiction remaining. Such an interpretation cannot be squared with the stark difference in treatment which the Framers accorded to the Supreme Court and the inferior federal courts. Given the intensity of the debate regarding inferior federal courts, and the compromise arrived at by the Framers, it seems highly unlikely that the Convention would have adopted without comment a provision which, for most practical purposes, would place the Supreme Court and the inferior federal courts in the same position vis-a-vis Congress. A third reason to infer a limited construction o f the Exceptions Clause from the lack of debate accompanying its adoption is found in the theory of separation of powers which formed the conceptual foundation for the system of government adopted by the Convention. The Framers intended that each of the three branches of government would operate largely independently of the others and would check and balance the other branches. The purpose of this approach was to ensure that governmental power did not become concentrated in the hands of any one individual or group, and thereby to avoid the danger o f tyranny which the Fram ers believed inevitably accompanied unchecked governmental power. In deed, it is not an exaggeration to say that the single greatest fear of the Founding Fathers was tyranny, and that concentration of power was, in their minds, “ the very definition of tyranny.” 6 Essential to the principle of separation of powers was the proposition that no one branch of government should have the power to eliminate the fundamental constitutional role of either of the other branches. As Madison stated in The Federalist No. 51, at 349 (J. Cooke ed. 1961): [T]he great security against a gradual concentration of the several powers in the same departm ent, consists in giving to those who
6 T h e Federalist N o. 4 7 , at 324 (J M adison) (J. C ooke ed 1961)
19 adm inister each departm ent, the necessary constitutional means and personal motives, to resist encroachments, of the others. The provision for defense m ust in this, as in all other cases, be made com m ensurate to the danger of attack.
This basic principle o f the Constitution— that each branch must be given the necessary m eans to defend itself against the encroachments of the two other branches— has special relevance in the context of legislative attempts to restrict ju d ic ia l authority. The Framers “ applaud[ed] the wisdom of those states who have com m itted the judicial pow er in the last resort, not to a part of the legislature, but to distinct and independent bodies of m en.” The Federalist No. 81, at 544 (A. Ham ilton) (J. Cooke ed. 1961). They believed that, by the inherent nature o f their power, the legislature would tend to be the strongest and the judiciary the weakest of the branches. This insight is reflected in the very structure of the Constitution: the provisions governing the legislature are placed first, in A rticle I; those establishing and governing the Judicial Branch are in the third position, in A rticle 111. M adison recognized the great inherent power of the Legislative Branch in The Federalist No. 48. Drawing extensively from Jeffer so n ’s N otes on the State o f Virginia, M adison concluded that in a representative republic “ [t]he legislative departm ent is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.” The Federalist No. 48, at3 3 3 (J. Cooke ed. 1961). See a lso The Federalist No. 51 (J. M adison)(J. Cooke ed. 1961). It was in no sense a derogation on the concept of governance responsive to popular will that the Founding Fathers desired checks on the power o f the legislature they were creating. T h e Acts of Parliament as well as those of the King form ed the litany of grievances w hich produced the Revolution. The Founding Fathers believed in the voice of th e people and their elected representatives and placed substantial power in the Legislature. At the same time, however, they were acutely sensitive to the rights o f individuals and minorities. Most of them had first-hand experience with persecution. The idea of a written Constitution was precisely to place a check on the popular will and, in large part, to restrain the m ost powerful branch. They crafted a representative republic with restraints on the legislature. “An elective despotism was not the government we fought for. . . .” The Federalist No. 4 8 , at 335 (J. Madison) (J. Cooke ed. 1961), quoting Jefferson’s N otes on the State o f Virginia (emphasis in original). The Suprem e C ourt was viewed as a part of this restraint, but, nonetheless, inherently as the least dangerous branch. Flamilton, in a famous passage from The Federalist No. 78, at 522-23 (J. Cooke ed. 1961) eloquently testified to the inherent weakness of the Judicial Branch: W hoever attentively considers the different departments of power m ust perceive, th at in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy
20 or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgm ents.
As a consequence of this view, Hamilton believed that it was necessary for the judiciary to remain “ truly distinct from both the legislative and the executive. For I agree that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’ ” Id. at 523, quoting M ontesquieu’s Spirit of Laws. Thus, he concluded: “ The complete independence of the courts of justice is peculiarly essential in a limited constitution.” The Federalist No. 78, at 524 (J. Cooke ed. 1961). It was in recognition of the inherent weakness of the judiciary, particularly as contrasted with the inherent power of the legislature, that the Framers determined to give special protections to the judiciary not enjoyed by officials of the other branches. Federal judges were given lifetime positions during good behavior, and were protected against diminution of salary while in office. The purpose of these provisions was largely to provide the judiciary, as the weakest branch, with the necessary tools for self-protection against the encroachm ents o f the other branches. The notion that the Exceptions Clause grants Congress plenary authority over the Supreme C ourt’s appellate jurisdiction cannot easily be reconciled with these principles of separation of powers. If Congress had such authority, it could reduce the Supreme Court to a position of impotence in the tripartite constitutional scheme. The Court could be deprived of its ability to protect its core constitu tional functions against the power of Congress. The salary and tenure protections so carefully crafted in Article III could be rendered virtually meaningless in light of the power of the Congress simply to eliminate appellate jurisdiction altogether, or in those areas where the C ourt’s decisions displeased the legislature. It is significant that while the Framers did not focus on the Exceptions Clause, they did point to the impeachment power as “ a complete security” against risks o f “ a series of deliberate usurpations on the authority of the legislature.” The Federalist No. 81, at 546 (A. Hamilton) (J. Cooke ed. 1961). In light of these basic considerations, it seems unlikely that the Fram ers intended the Exceptions Clause to empower Congress to im pair the Supreme C ourt’s core functions in the constitutional scheme. Even if some of the Framers could have intended this, it is improbable that the Exceptions Clause could have been approved by the Convention without debate or controversy, or indeed without any explicit statement by anyone associated with the framing or ratifica
21 tion of the Constitution that such a deviation from the carefully crafted separation of pow ers m echanism s provided elsewhere in the Constitution was intended. Nor does it seem likely that the Convention would have developed the Exceptions Clause as a check on the Supreme Court in such a manner that an exercise of power under the Clause to remove Supreme Court appellate jurisdiction would not return authority to Congress, but vest it in the state courts instead. Hamilton regarded even the possibility of m ultiple courts of final jurisdiction as unaccept able. The Federalist N o. 80, at 535 (J. Cooke ed. 1961).
The m ere necessity of uniform ity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contra diction and confusion can proceed.
T hus, unless there is sound and com pelling evidence o f a contrary interpretation in the decisions of the Supreme C ourt, or in the long-accepted historical practices regarding congressional control o f Supreme C ourt jurisdiction, it must be con cluded that the Exceptions Clause does not authorize Congress to interfere with the C o u rt’s core functions in o u r constitutional system.
III.
An exam ination of the Supreme C ourt’s cases does not require any different interpretation. T he Supreme C ourt has provided only inconclusive guidance on the m eaning of the Exceptions C lause. In M artin v. H unter’s Lessee, 14 U .S. (1 W heat.) 304, 347—48 (1816), the Court noted “ the im portance, and even necessity of uniform ity of decisions throughout the whole United States, upon all subjects within the purview of the constitution.” In the absence of the Supreme C ourt, Justice Story observed, “ the laws, the treaties, and the constitution of the U nited States would be different, in different states. . . . The public mischiefs that would attend such a state of things would be truly deplorable; and it cannot be believed, that they could have escaped the enlightened convention which formed the constitution. . . . [T]he appellate jurisdiction must continue to be the only adequate rem edy for such evils.” Id. at 348. Sim ilar statements are found in the opinions of C h ief Justice Marshall, Cohens v. Virginia, 19 U .S. (6 W heat.) 264, 415 (1821), and C hief Justice Taney, Ablem an v. Booth, 62 U .S. (21 How.) 506, 5 1 7 -1 8 (1858).7 Although these cases do not squarely address the question w hether Congress could constitutionally deprive the Court of its core functions, the C o u rt’s language seems strong enough to cast considerable doubt, at least by im plication, on the pow er of Congress to elim inate Supreme Court jurisdiction
7 Cf. the fam ous statem en t o f Justice H olm es: I d o not think the U nited States w ould com e to an end if we lost o u r pow er to d eclare an A ct o f C ongress void I d o think th e Union w o u ld be im periled if we could not m ake that declaration as to the law s o f the several States O. H o lm e s, C ollected L egal P apers 295-96 (1920).
22 over cases in which a final, uniform, and supreme voice is necessary in the guise of creating “ exceptions” to that jurisdiction. In the words of C hief Justice Taney, the exercise of such a power would withdraw authority which is “ essen tial. . . to [the] very existence [of the Federal] Government [and] essential to secure the independence and supremacy of [that] Governm ent.” Id. The Supreme Court has, in a num ber of early cases, referred to the power of Congress over its appellate jurisdiction as being quite broad. For exam ple, in Barry v. M ercein, 46 U .S. (5 How.) 103, 119 (1847), the Court stated that “ [b]y the constitution of the United States, the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress; nor can it, when conferred be exercised in any other form, or by any other mode of proceeding than that which the law prescribes.” See also The Francis Wright, 105 U .S. 381, 386 (1881); Daniels v. Railroad Co., 70 U .S. (3 Wall.) 250, 254 (1865); Durousseau v. U nited States, 10 U.S. (6 Cranch) 307, 313-14 (1810); U nited States v. M ore, 1 U .S. (3 Cranch) 159 (1805); Wiscart v. Dauchy, 3 U .S . (3 Dali.) 321, 327 (1796). However, every one of these statements is dictum; the Court has never held that Congress has the power entirely to preclude the C ourt from exercising its core functions. It may also be doubted whether these broad statements are intended to cover cases in which such an extraordinary con gressional power was exercised. They may instead be designed to recognize a broad power which, like the Commerce Clause, is limited by other provisions of the Constitution and by the structure of the docum ent as a whole. Proponents of the “ plenary power” thesis rely most heavily on the only Supreme Court decision which could be characterized as upholding a power of Congress to divest the Court of jurisdiction over a class of constitutional cases: E x parte M cCardle, 74 LI.S . (7 Wall.) 506 (1869). At issue in that case was the constitutionality o f an 1868 statute repealing a provision enacted the previous year which had authorized appeals to the Supreme Court from denials of habeas corpus relief by a circuit court. In a brief opinion which did not discuss the scope or implications of the Exceptions Clause, the Court upheld Congress’ withdrawal in 1868 of jurisdiction under the 1867 law, stating that “ the power to m ake exceptions to the appellate jurisdiction of this court is given by express w ords.” Id. at 514. Despite this broad language, the Court suggested that the withdrawal of jurisdiction provided by the 1867 law did not deprive the Court of jurisdiction over habeas corpus cases that had been conferred by § 14 of the Judiciary Act of 1789 (1 Stat. 81). “ Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error.” 74 U.S. (7 Wall.) at 515. The C ourt’s dictum regarding alternative procedures for Supreme Court review of habeas corpus cases was converted into a holding several months later in E x parte Yerger, 75 U .S. (8 Wall.) 85 (1869). The petitioner in that case had invoked the C ourt’s jurisdiction under the Judiciary Act of 1789, ch. 20, 1 Stat. 73. In holding that it had jurisdiction, the Court in Yerger made it clear that the 1868 legislation considered in M cCardle was limited to appeals taken under the 1867 act and upheld the petitioner’s right to Supreme Court review under the proper
23 jurisdictional statute. The Court noted that the 1868 act did “not purport to touch the appellate jurisdiction conferred by the Constitution. . . ." Id . at 105. Indoing so, the C ourt observed that any total restriction on the power to hear habeas corpus cases would “ seriously hinder the establishm ent of that uniformity in deciding upon questions of personal rights which can only be attained through appellate jurisdiction. . . .” Id. at 103. Thus, within months of the McCardle decision, the C ourt m ade it clear that M cCardle did not decide the question of C ongress’ power to deprive it o f all authority to hear constitutional claims in habeas corpus cases. For this reason, while the Yerger C ourt acknowledged that the C o u rt’s jurisdiction as given by the Constitution “ is . . . subject to exception and regulation by C ongress,” id. at 102, neither McCardle, nor Yerger, nor any other case, constitutes an authoritative statement that Congress could deprive the C ourt o f its core functions.
IV.
Finally, the historical record regarding the authority actually asserted by C ongress to control the Court’s appellate jurisdiction supports, on balance, the construction that the Exceptions Clause does not authorize Congress to interfere with the C ourt’s core functions. It is indeed true that Congress did not in the First Judiciary Act explicitly authorize the Supreme Court to exercise the full range of appellate jurisdiction established by Article III. Perhaps the most prominent category of cases in which the C ourt was not granted statutory jurisdiction was federal crim inal cases, which were not explicitly brought within the C ourt’s appellate jurisdiction until 1889. Although Suprem e Court review over these cases may have been available in special circum stances, it is probably true that m ost federal crim inal cases were not reviewable by the Supreme Court during this period under the term s of the applicable legislation. The Judiciary Act also failed to grant the Suprem e Court appellate jurisdiction over state court decisions striking down state laws as being inconsistent with the federal Constitution, or upholding federal statutes against constitutional attack. T he failure of Congress in the First Judiciary Act to provide the Court with the full appellate jurisdiction authorized under A rticle III does not undermine the conclusion that Congress cannot interfere with the Supreme C ourt’s core func tions, for several reasons. First, w hile Congress did omit certain specific catego ries of cases from the appellate jurisdiction provisions of the First Judiciary Act, it is notew orthy that the first C ongress, containing among its members many delegates to the Constitutional Convention, recognized the C ourt’s appellate jurisdiction over an extremely broad range of constitutional cases. M ost signifi cantly, the C ourt was given authority under § 25 of the Judiciary Act (1 Stat. 85) to review decisions of state courts striking down federal statutes or upholding state statutes against constitutional attack. That authority was conferred despite the intense controversy which it sparked am ong the states— controversy which resulted in state resistance to Suprem e C ourt judgm ents and in attempts in C ongress, foreshadow ing the current attempts to limit the C ourt’s jurisdiction, to
24 repeal § 25 of the Judiciary Act. The fact that the Judiciary Act did not explicitly recognize jurisdiction over state court decisions upholding the validity of federal laws or striking down state laws, or over federal criminal cases, does not undercut the position that the Court cannot be divested of its ability to fulfill its essential responsibility under the Constitution. The supremacy of federal law, guaranteed by the Suprem e Court, would not be seriously threatened by state court decisions upholding federal laws or striking down state laws on federal constitutional grounds. Second, the history of Supreme Court appellate review has confirmed the importance of its core functions. To the extent that any inferences can be drawn from the failure of the First Judiciary Act explicitly to recognize the full range of the Supreme C ourt’s appellate jurisdiction over constitutional cases, those in ferences are subject to refutation by later events. The Supreme Court now has appellate jurisdiction over all federal cases. Each of the areas of incomplete jurisdiction has long since been fulfilled. The vast majority of constitutional decisions which are on the books today, and which affect our national life in many and important ways, have been rendered by the Court under a statutory regime which included such broad appellate jurisdiction. As Justice Frankfurter said in another context, “ the content of the three authorities of government is not to be derived from an abstract analysis. . . . It is an inadmissibly narrow conception o f American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them .” Youngstown Sheet & Tube Co. v. Sawyer, 343 U .S. 579, 610 (1952) (concurring opinion). The gloss which life has written on the Supreme C ourt’s jurisdiction is one which protects the essential role of the Court in the constitutional plan.
V.
As noted at the outset, Congress has substantial authority over the jurisdiction and power of the inferior federal courts. It also is given the power under Article III to regulate the Supreme C ourt’s appellate jurisdiction in circumstances which do not threaten the core functions of the Court as an independent branch in our system of separation of powers. Congress may, for example, specify procedures for obtaining Supreme Court review and impose other restraints on the Court. But the question of the limits of Congress’ authority under the Exceptions Clause is an extraordinarily difficult one. Thoughtful and respected authorities have come to conclusions which differ. The legislative process itself is often important in assessing not only the meaning but also the constitutionality of congressional enactments. The Court has stated that it must have “ due regard to the fact that this Court is not exercising a primary judgm ent but is sitting in judgm ent upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government.” Rostker v. G oldberg, 453 U.S. 57, 64 (1981). If Congress considers the subject matter of S. 1742 it may wish to do so in light of the principles enunciated above and carefully weigh whether whatever action
25 is taken would intrude upon the essential functions of the Supreme Court as an independent branch of government in our system of separation of powers. As the C ourt has stated, “ The customary deference accorded the judgments of Congress is certainly appropriate when . . . Congress specifically considered the question of the A ct’s constitutionality.” 453 U .S. at 64. Ultimately, it is for Congress to determ ine what laws to enact and for the Executive Branch to “ take Care that the Laws be faithfully executed.” U .S. C o n st., A rt. I ll, § 3. It is settled practice that the Department of Justice must and will defend Acts of Congress except in the rare case when the statute either infringes on the constitutional pow er of the Executive or when prior precedent overw helm ingly indicates that the statute is invalid. Accordingly, should the D epartm ent be called upon to defend the constitutionality of this bill before the courts, it responsibly could and would do so. It is appropriate to note, however, that even if it were concluded that legislation in this area could be enacted consistent with the Constitution, the Department would have concerns as a policy m atter about the withdrawal of a class of cases from the appellate jurisdiction o f the Supreme C ourt. History counsels against depriving that C ourt of its general appellate jurisdiction over federal questions. Proposals of this kind have been advanced periodically, but have not been adopted since the Civil War. There are sound reasons that explain why Congress has exercised restraint in this area and not tested the limits of constitutional authority under the Exceptions Clause. T he integrity of our system of federal law depends upon a single court of last resort having a final say on the resolution of federal questions. The ultimate result o f depriving the Suprem e Court o f jurisdiction over a class of cases would be that federal law would vary in its impact am ong the inferior courts. State courts could reach disparate conclusions on identical questions of federal law, and the Su prem e C ourt would not be able to resolve the inevitable conflicts. There would also exist no guarantee through Suprem e Court review that state courts accord appropriate suprem acy to federal law when it conflicts with state enactments.
Sincerely, W il l ia m F rench S m it h