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Alex Glashausser

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"It" Is the Supreme Court's Jurisdiction -- and Congress Can't Take Exception

Posted: 02/22/2012 3:15 pm

The federal judiciary, with its life tenure for unelected judges, has long been a punching bag in certain arenas. Several presidential candidates have recently taken jabs. Rick Santorum has resolved to "fight back" against "judicial tyranny." Newt Gingrich used that same rhetoric in an interview last month and has clamored for impeachment proceedings to coldcock judges who issue what Congress deems to be "unconstitutional decisions." Commentators have rushed in to defend judges' jurisprudential independence. Overlooked in the fracas, however, has been the equal need to safeguard courts' jurisdictional independence.

Some swings at the Supreme Court have called for restrictions on its jurisdiction. In Gingrich's white paper titled "Bringing the Courts Back Under the Constitution," he advocates legislation to "remove the power of the courts to hear certain types of cases." Ron Paul has introduced the "We the People Act," a bill that would bar the Supreme Court from hearing cases about privacy, same-sex marriage, or the free exercise or establishment of religion.

In support, both have cited the constitutional clause empowering Congress to make "Exceptions" to the Court's appellate jurisdiction. Though some observers have lamented that such restrictions violate the spirit of the separation of powers, the nearly universal opinion among scholars, legislators, and even the Justices themselves is that the text of the Exceptions Clause unavoidably lets Congress take free shots at the Court.

James Madison foresaw that the judiciary would often be on the ropes "defending itself" against "Legislative encroachments." But as his commentary from the Constitutional Convention helps explain, the delegates who drafted and approved the Exceptions Clause did not intend or understand it to facilitate jurisdictional assaults. Instead, it would permit Congress to shift some of the Supreme Court's appellate jurisdiction to its original docket. In other words, by invoking "Exceptions," Congress could allow the Court to hear cases sooner.

An early draft of the Constitution paradoxically offers the clearest view of the role of the Exceptions Clause: "[T]his supreme jurisdiction shall be appellate only, except in those instances, in which the legislature shall make it original..." The nature of the exceptions never changed. What did change during the Convention was language surrounding that clause, necessitating cosmetic adjustments that inadvertently shrouded its meaning.

Most unfortunate, in retrospect, was a routine reformulation stemming from a vague "it." Near the end of the Convention, the clause had, for simplicity's sake, been split in two. After a sentence providing that, for certain politically sensitive cases, jurisdictional form would "be original" was one stating that, in other cases, "it shall be appellate... with such exceptions... as the Legislature shall make." The "it" referred to the "jurisdiction of the Supreme Court." But then that earlier phrase was edited to the "judicial power," orphaning the "it."

Nobody noticed the plight of the "it" until the next day, when Madison explained that an edit was necessary "to prevent uncertainty whether 'it' referred to the Supreme Court, or to the judicial power." The delegates' answer, consistent with the wording throughout the convention, was the Supreme Court. Because the "it" had referred to the Supreme Court's jurisdiction, though, substituting "the Supreme Court" did not quite complete the clarification. To smooth out the sentence, the delegates also changed "shall be appellate" to "shall have appellate jurisdiction." The upshot was that in the cases whose jurisdiction is not constitutionally assigned to be original, "the Supreme Court shall have appellate jurisdiction... with such exceptions... as the Congress shall make."

Yielding no recorded commentary other than Madison's perfunctory note, the correction of the "it" glitch surely seemed innocuous at the time, but it unwittingly opened the door for later interpreters to misread the clause in a way that was not foreseen. People now interpret exceptions as operating on the having of jurisdiction rather than on the form in which the jurisdiction will be, thus allowing Congress to strip the Court of certain cases altogether. The final text of the Exceptions Clause may be somewhat ambiguous, but its context and drafting history reveal its object to be the timing of the Court's jurisdiction, not its existence.

Whether the way the delegates in Philadelphia designed the Constitution to work should control how we apply it today is a broader battle. But for those who scoff at the idea of a living Constitution and instead swear fidelity to originalism -- as Gingrich does in his white paper -- the Exceptions Clause must be viewed as one that permits Congress to expedite Supreme Court cases, not knock them out.