Questions concerning McCardle and Problem 1

QUESTION: I am not sure I heard your taking on the constitutionality of section 3(d) in Senator Allard's Bill.  The following is my thought, but please correct me if I am wrong. I think section 3(d) is constitutional.  The Exceptions Clause in Article III, section 2 gives Congress the power to regulate the Supreme Court's appellate jurisdiction, and it is reasonable to extend Congress's power to regulate lower federal court's jurisdiction.

ANSWER: I agree that Congress has the authority to regulate the jurisdiction of the lower federal courts, but I disagree that the authority derives from the Exceptions Clause. Rather, I would say that it derives from (a) Article III, section 1, which makes clear that Congress is under no obligation to create any lower federal courts in the first place, and (b) historical understandings and historical practice, under which Congress has never provided the lower federal courts with all of the subject matter jurisdiction authorized by Article III, section 2, clause 1.

QUESTION: I am not sure whether any case arising out of section 3(a)-(c) could qualify as one of "all" cases arising under the Constitution or federal law. 

ANSWER: I think they would. All of the challenges to these sorts of things have been based on the Establishment Clause of the First Amendment, and thus have been federal constitutional claims.

QUESTION: If it could, the Supreme Court can still hear the case. Thus, the first sentence of Article III, section 2 is satisfied. 

ANSWER: Right, at least as to the facts. The bill proposed by Senator Allard would not have foreclosed appeals to the Supreme Court--indeed, it would not have regulated the appellate jurisdiction of the Supreme Court in any way. Rather, its effect would have been to steer all lawsuits covered by the law into lower state courts, with appeal ultimately available to the Supreme Court.

QUESTION: Accordingly, if section 3(d) also applied to the Supreme Court, it was not constitutional only if a case arising out of section 3(a)-(c) could be one arising under the Constitution or federal law.



ANSWER: I am not sure about this. Do I understand you to be asserting that, if Congress completely forecloses any avenue of appeal to the Supreme Court on a federal constitutional claim, then Congress has gone beyond its authority under the Exceptions Clause? I think McCardle is hopelessly ambiguous on this question, thanks to that last paragraph. The Court there pointed out that McCardle had another avenue to reach the Supreme Court with his claim. But the Court did not say whether it was constitutionally necessary that such an avenue be in place--only that it was. I agree that it could only potentially be unconstitutional as in excess of the Exceptions Clause power if it foreclosed all such appeals. But I think it is unclear whether it would be.

Moreover, to say that this bill does not unconstitutionally interfere with the Supreme Court's appellate jurisdiction is not to say that, therefore, it constitutionally regulates the jurisdiction of the lower federal courts. These are separate questions. I think all would agree that Congress has more leeway to regulate the jurisdiction of the lower courts, if only because there is no constitutional requirement that these courts exist at all. But that does not mean, obviously, that any regulation of their jurisdiction would be permissible.

QUESTION: Is the Supreme Court's original jurisdiction exclusive? What I want to know is whether a state court could have jurisdiction over the cases falling within the Supreme Court's original jurisdiction.

ANSWER: I think the answers are, respectively, no and yes. First, recall that this portion of Marbury (holding that all cases denominated in Article III, section 2, clause 2 as within the Supreme Court's original jurisdiction must be brought as original actions in the Supreme Court). Congress has subsequently allowed lower federal courts to take jurisdiction of many of these cases, with appeal available to the Supreme Court. (The Prop 8 case is but one example--a case "in which a State [is] a party.") Second, state courts are courts of general jurisdiction, and thus can basically hear anything (as a matter of federal constitutional law) that state law would permit. Now, Congress could decide otherwise by statute, and require that these claims be brought in federal court, and even as original actions in the Supreme Court exclusively. That would be a permissible regulation. But Congress has not done so, and there is nothing in the Constitution (as it has been interpreted) that requires Congress to enact such a regulation.

A question about Dred Scott

QUESTION: I noticed that Dred Scott was decided in 1857, only three years before the Civil War broke out. I was wondering how the Court handled the events of the Civil War, as I assume some justices on the Court were Southerners. I noticed that while section 3 of the Fourteenth Amendment prohibits Senators and Representatives who fought for the Confederacy from holding office, there is no mention of Justices. I am wondering if these issues ever came up, and if the southern Justices continued to serve after the Civil War. Per Dred Scott, I assume this precedent was invalidated by the ratification of the Fourteenth Amendment, as a constitutional amendment will trump a Supreme Court decision.

ANSWER: Good questions, all. Let me take them up in turn.

First, while most all representatives and Senators from the South resigned from their positions and left Washington for the home states once their home states seceded, I do not think this happened with any justices on the Court. My recollection is that they all stayed, regardless of their state of origin.

Second, and more broadly, the Court generally tried to stay out of the way during the Civil War. The Dred Scott decision, which tried to settle the great question of Congress's power to regulate slavery in the territories, and thus to avoid the war, was a miserable failure, and the Court's prestige was at a low ebb. Moreover, Lincoln flatly disobeyed Chief Justicve Taney's decision regarding the suspension of the writ of habeas corpus in the Merryman case, which we discussed in class. The Court, regardless of the justices' views on slavery, secession, or the war, had little interest in exposing itself to further abuse.

Third, yes, the Fourteenth Amendment specifically overruled the Court's decision in Dred Scott. Section 1 (which has been in the news a bit recently) declares that any person born in the United States is a citizen of the United States. This specifically overruled the portion of Dred Scott stating that African Americans could not be citizens. Additionally, the Thirteenth Amendment prohibited slavery, whereas Dred Scott afforded great protection to the property interests of masters in their slaves as a matter of due process. These amendments clearly trump whatever the Court said previously in Dred Scott.

Book recommendations

A number of you have asked about books that might be helpful in providing some historical background to the cases and issues that we are discussing in class. Here are a few, though I could offer several more.

If you are interested in the framing of the Constitution, I recommend The Summer of 1787 by David O. Stewart. It is a relatively concise, quite accessible treatment of the constitutional convention. Two other favorites of mine that involve the founding era are What Kind of Nation by James F. Simon and Founding Brothers by Joseph J. Ellis.

If you are interested in books about the Supreme Court, there are a handful of recent (and terrific) accounts of the Court's history (with a nice combination of law and political context). These are the ones I would specifically recommend:

* L.A. Powe, The Supreme Court and the American Elite, 1789-2008

* Jeffrey Rosen, The Most Democratic Branch: How the Courts Serve America

* Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution

* Michael Klarman, From Jim Crow to Civil Rights

I could probably mention another 20 or so, but that should be sufficient for now. All of these books are just great, especially for those wanting some surrounding context for the Court's major constitutional decisions.