CHAPTER 2

Congressional Power to Limit the Jurisdiction of the Supreme Court and Inferior Federal Courts

§2.1 INTRODUCTION AND OVERVIEW

Article III, §1 provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Section 2 of the same Article describes nine subject matters over which the “judicial Power shall extend,” vesting two of those subject matters in the Supreme Court’s original jurisdiction, and with respect to the remaining seven providing, “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.”

Thus, in two brief sections consisting of three somewhat cryptic paragraphs, Article III establishes the judicial branch. It will consist of a Supreme Court and those lower federal courts Congress decides to create. The Constitution’s only other textual references to the composition of the Supreme Court are indirect—most notably, a description of the role of the “Chief Justice” in the impeachment process, and the inclusion of “Judges of the supreme Court” within the President’s appointment power. Art. I, §3, cl. 6; Art. II, §2, cl. 2. There is also one other textual reference to inferior federal courts, but that reference merely provides the source of the power to create those courts—a grant of authority to Congress “To constitute Tribunals inferior to the supreme Court.” Art. I, §8, cl. 9.

Quite clearly, the Constitution, both expressly and impliedly, presumes that Congress will supply much of the design and most of the detail for the newly created third branch. Presumably the Framers expected Congress to create a working structure for the Supreme Court pursuant to the Necessary and Proper Clause, Art. I, §8, cl. 18 (see §5.2), and pursuant to the power to regulate and make exceptions to the Court’s appellate jurisdiction. Art. III, §2, cl. 2. Thus such matters as the number of Justices, the length of the Court’s term, the extent of support personnel, etc., would be determined by Congress. In fact, this has been the historical practice. Similarly, the express grant of authority to “constitute” courts inferior to the Supreme Court certainly contemplated congressional involvement in the creation and design of this component of the judicial branch.

But what is the scope of these powers granted to Congress? Are they simply meant to implement the constitutional vision of three branches, vesting Congress with a somewhat limited “design” authority, or are they meant to provide Congress with a substantive check on the judicial branch and its power of judicial review? For example, may Congress use its exceptions power to adopt jurisdiction-stripping measures that preclude the Supreme Court from exercising appellate jurisdiction over specific categories of constitutional disputes, such as those involving school prayer, abortion, or school desegregation? Or may Congress, relying on its power to constitute inferior federal courts, deny those courts the authority to hear such matters? More generally, are there any constitutional limits to these implied and express powers of Congress?