March 31, 2005

How Does The Supreme Court Work?
#5 Jurisdiction, Appeal and Article III

The fifth installment in my SCOTUS series is available on my website here along with the others. ( #1 - #2 - #3 - #4 - #5 )

No court can rightly proceed where it lacks jurisdiction. This fundamental burden is often taken for granted today, when the courts have broad jurisdictions and are rarely ignored or stripped of authority by the other branches of government. Congress does possess the constitutional power to limit the Supreme Court, however. Article III of the Constitution gives the Supreme Court appellate jurisdiction “with such Exceptions, and under such Regulations as the Congress shall make.” In other words, Congress controls, by simple majority, the appellate jurisdiction of the Supreme Court.

If Congress disagreed with the Supreme Court on prayer, abortion or affirmative action it could simply remove its appellate jurisdiction. In this case, depending on how they worded it, the highest court probably becomes the state Supreme Courts. This would mean that Mississippi and Rhode Island could have drastically different interpretations of the Constitution but it would never go to the Supreme Court because of jurisdiction.

Obviously this is an unlikely move; Americans like our checks and balances and it seems awkwardly Parliamentarian for the Congress to start declaring whole subjects out of judicial contention. However, that they have this power in the Constitution is uncontestable.

During Reconstruction, the Supreme Court heard the case Ex parte McCardle. Argued and decided in 1868, Congress passed a law after argument but before the decision was rendered that removed the Supreme Court’s jurisdiction on this matter of habeas corpus. As such, Chief Justice Chase and the unanimous court agreed that they had no jurisdiction to hear the matter. They conceded that the Congress had a constitutional power to limit their appellate jurisdiction. Without jurisdiction, they had no power to affect the case.

Congress’ power to change the jurisdiction of the Supreme Court isn’t unlimited. For “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,” original jurisdiction falls to the Supreme Court. This is not open to interpretation by Congress. Appellate jurisdiction is fair game though. Technically the Constitution never says that Congress can remove the appellate jurisdiction of the federal courts inferior to the Supreme Court. However, since Congress can create and destroy these courts by legislative, and since it holds jurisdictional control over their superior, it is highly likely that such a power is assumed in the Constitution. After all, Congress could simply eliminate a federal court and after that fiddling with jurisdiction isn’t such a big thing.

This is the strange part of constitutional checks and balances. The Constitution seems to have wanted the Congress to be stronger than the President (who seems at times almost like a figurehead with a few administrative and a couple political duties) and superior to the Supreme Court (which didn’t even explicitly have judicial review over Congress). Students of history will know why; the legacy of Parliamentary supremacy in England was our political heritage at the time. Although they correctly tried to separate the executive and legislative powers (at the time, a joint executive-legislative power was considered tyrannical) the founders did not give an appropriate balance between them and the judiciary.

When it comes to Congress and the judiciary, the founders seemed to want more checks and less balance. Americans do not subscribe to the idea of Parliamentary supremacy because we wholeheartedly ascribe to the idea of judicial independence and to separation of powers. Congress is not a Parliament, and it’s become even less like one than the founders envisioned because of our reluctance to see the legislative constantly run roughshod over the Supreme Court. As a result, even when a majority of Congress disapproves of a judicial decision, few members discuss the idea of removing judicial jurisdiction on the issue. But what if they did? How much recourse would the Supreme Court have to review such a law?

Some people have suggested that the Court could simply overturn this jurisdictional change if it violated the Constitutional rights of the citizenry. Why? There is no constitutional right to appeal to the Supreme Court, as strange as that sounds. There are a variety of processes and statutes the Supreme Court promulgates and follows that protect your ability to appeal to that body, but there’s no constitutional right to appeal to them. Certainly there’s no right to be heard in the Supreme Court, as countless rejected petitioners will agree.

So if your rights are being trampled but the Congress has removed the Supreme Court’s appellate jurisdiction, what happens? What can you do? Well, more than likely somebody would petition the Supreme Court anyway and say that the Congressional act violates civil liberties and due process because it doesn’t allow for appeal to the Supreme Court. The problem is that just because you have the right doesn’t mean the Supreme Court is the final arbiter of the decision. Perhaps unfortunately, nothing in the Constitution gives you the right to appeal to the Supreme Court when your rights are lost. All it says it that you have those liberties; it doesn’t say you have the right to redress.

A lot of people, most of the more paleo-conservative or paleo-libertarian variety and others who simply dislike the Supreme Court’s decisions, will think this is a great development. After all, it means the Supreme Court is fallible and that it can be struck down by a simple majority. Rather than taking a whole amendment to the Constitution, they could cut out unpopular or incorrect Supreme Court methodology with a simple vote in Congress.

I think it’s a rather dangerous design, because it means our rights have no more force than Congress – the people who brought you the IRS, the DEA, the ATF, the Alien and Sedition Acts, the Espionage and Sedition Acts and the USAPATRIOT Act – chooses to give them. In other words, there is no enforcement mechanism to the Constitution. Of course, the Supreme Court is a pretty fair-weather enforcer of the Constitution anyway, but I’d rather have the Supreme Court and Congress blocking each other somewhat than free Congress from what oversight the Court gives it.

The Constitution does not have a great self-enforcement mechanism. Of course ultimately laws require people to enforce them, but the Constitution does not state who is to be in charge of enforcing our rights. It’s an important development, one done during the time most of the founders were still alive, that the Supreme Court holds the power to invalidate acts of Congress and government. This means there are some teeth to our rights, so long as the Court hears our complaints and rules on them appropriately (two dubious propositions in many cases). It’s hardly perfect, since the Supreme Court could be too busy to hear our plea or could disagree with the liberty in question or could be unwilling to push it against public opinion, but it’s a lot better than expecting Congress or the President to handle all the burden alone. No matter how weak in the face of public opinion or political influence the Court seems, the politicians are always more susceptible to it – and less educated on the nuances of the law.

Perhaps there ought to be a right to appeal to the Supreme Court. Not a right to be heard or a right to get your way, but a right to at least file the appeal. For this to mean anything, the jurisdictional power of Congress would have to be modified or even eliminated, but Congress barely uses it anyway. We shouldn’t expect the current divisive climate of controversial judges and judicial decisions to spawn any greater judicial rights, but it would make sense if checks and balances were the law and not just the tradition. After all, we’re not British.

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