QUESTION: I'm not sure I understand what we're supposed to take from Ex parte McCardle. I think I understand some things about the case: (1) that the Congress is free to grant and take away jurisdiction from the jurisdictional "storehouse" enumerated in the Constitution. That is, Congress can grant and take away jurisdiction over cases listed in the constitution; (2) that the Court cannot hear cases it has no jurisdiction over; and (3) that there is a question whether Congress can close off all "routes" an issue could take to the Court.
ANSWER: I definitely agree with (2) and (3). As to (1), yes, but there are caveats, as your point (3) itself makes clear. The Exceptions Clause must stand for something; there must be something that Congress can except from the Court's appellate jurisdiction. But the contours of this power are by no means clear. As I mentioned in my earlier post, I think it can do so through fairly neutral rules that are not gerrymandered to generate particular results. But others think that there always must be some route to the court.
QUESTION: But, McCardle's holding doesn't seem to rest on a new or novel rule of law. The case simply ends with the conclusion that the Court has no jurisdiction. I don't understand what the controversy was. What was the issue in the case? By this, I mean that I don't understand the "take away" from the case. Do you have any insights? Anything would be appreciated.
ANSWER: A very real issue in the case is whether the Act of March 1868, purporting to withdraw jurisdiction, was constitutional. There were two potential problems: (1) the Exceptions Clause might have been narrower than the Court construed it, so that it only permitted Congress to make rather small, technical exceptions or regulations regarding the Court's appellate jurisdiction; wholesale removal of jurisdiction in a broad set of cases might have been beyond the power granted by the Clause; (2) even if the Exceptions Clause in general would permit this sort of exception, it might have been unconstitutional in this particular case because it was specifically motivated to produce a desired result in a pending case; in other words, it might have been seen as a separation of powers problem, an impermissible meddling of the legislative branch in the independent affairs of the judiciary. The Court, of course, found no constitutional problem with the repealing act. It successfully and constitutionally removed jurisdiction, depriving the Court of the authority to say anything about the constitutionality of McCardle's detention.
I'm not sure any of that qualifies as "insightful," but it is what I can offer.