Federal Supremacy, State Court Inferiority, and the Constitutionality of Jurisdiction-Stripping Legislation
Pfander, James E., Northwestern University Law Review
Neither Congress nor the British Parliament nor the Vermont legislature has power to confer jurisdiction upon the New York courts.[dagger]
To confer the power of determining [federal] causes upon the existing courts of the several states, would perhaps be as much "to constitute tribunals," as to create new courts with the like power.[double dagger]
The House of Representatives has considered and adopted a wide range of jurisdiction-stripping legislation in the last few years.1 Touching such subjects as gay and lesbian marriage, the Pledge of Allegiance, and official acknowledgment of God by public officials, the bills follow a consistent pattern: They deny the lower federal courts jurisdiction over certain controversial issues of constitutional law, and forbid the Supreme Court from exercising appellate jurisdiction over those same issues. By proposing to strip the federal courts of all power to hear disputed issues, the legislation would make the state courts the final arbiter of the meaning of the Constitution.2 The bills draw on provisions in Article III that confer powers of uncertain and untested scope on Congress to limit the jurisdiction of the federal courts.3
Apart from investing the state courts with initial and final decisionmaking authority, certain of the bills would introduce new wrinkles. One of the bills would free the state courts from any obligation to respect the legal precedents of the federal courts on the issues over which federal jurisdiction has been curtailed." The bills thus attempt to answer the nettlesome (and up to now, largely academic) question whether old Supreme Court precedents would continue to bind the state courts in the wake of legislation restricting the Court's appellate jurisdiction.5 In addition, some of the bills would threaten federal judges with impeachment if they exercise jurisdiction denied them by the legislation.6 These features of the bills seek to counter the familiar principle that the federal courts have jurisdiction to determine their own jurisdiction and can decide whether the Constitution imposes any limits on Congress's power to adopt jurisdiction-stripping legislation.7 By threatening non-compliant judges with impeachment, the legislation raises the stakes for any federal judges called upon to consider challenges to the constitutionality of the bills.
Although the bills have not moved forward in the Senate, the adoption of jurisdiction-stripping legislation by the House marks something of a watershed in the history of Congress's relationship with the federal courts. Jurisdiction-stripping bills are no strangers to Capitol Hill; past bills would have foreclosed federal jurisdiction over questions of abortion, school busing, and school prayer.8 But such legislation has rarely gained a hearing in the House Judiciary Committee and has even more rarely passed the House or Senate.9 Recent legislation, however, has come nearer to passing,10 and the current political climate may produce further initiatives." Indeed, House members have questioned the need for an independent federal judiciary.12
If the bills were to pass, the Supreme Court would eventually face questions about the scope of Congress's jurisdiction-stripping authority. Apart from a few well-known landmarks, we know little about how the Court might analyze the legislation. On the one hand, the Court has suggested a willingness to tolerate restrictions on the jurisdiction of the lower federal courts, in keeping with the notion that Congress has broad power over their continued existence and the scope of their jurisdiction.13 On the other hand, the Court has suggested that it might view restrictions on its own appellate jurisdiction with a measure of suspicion.14 Not only has the Court adopted somewhat strained readings of restrictions on its appellate jurisdiction, it has done so to avoid the constitutional question that would arise from legislation proposing to curtail such appellate authority. …