    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




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