Article III, Section 2, Clause 2:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, 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.

Unlike the Supreme Court’s original jurisdiction,1 Article III provides that the Court’s appellate jurisdiction is subject to “Exceptions” and “Regulations” prescribed by Congress.2 Congress and the Court have construed this provision, sometimes called the “Exceptions Clause,” to grant Congress significant control over the Court’s appellate jurisdiction and proceedings. In addition, Congress possesses extensive authority to regulate the jurisdiction of the lower federal courts, and may limit the cases the Supreme Court can hear on appeal by generally stripping the federal courts of jurisdiction over certain cases.

Article III, Section 2, Clause 2 provides that the Supreme Court “shall have” appellate jurisdiction over certain matters, subject to regulation by Congress.3 Since Congress first enacted legislation to structure the Federal Judiciary in the Judiciary Act of 1789, the legislature has often exercised this power by granting the Supreme Court appellate jurisdiction over a subset of the cases included in the constitutional grant.4 Several decisions of the Court from the 1700s and 1800s considered the extent to which the Court could exercise appellate jurisdiction absent express authorization from Congress. In the 1796 case Wiscart v. D’Auchy, the Court considered whether it could review admiralty cases.5 A majority of the Court held that it had jurisdiction to review admiralty cases because such cases fell within the scope of a statute authorizing review of federal circuit court decisions in “civil actions.” In so holding, the majority stated that congressional authorization was necessary to create jurisdiction and that, if Congress provided for jurisdiction, the Court must accept it: “If Congress had provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it.” 6 By contrast, in the 1810 case Durousseau v. United States, Chief Justice John Marshall accepted the validity of legislation limiting the Court’s jurisdiction but suggested that, in the absence of such congressional action, the Court’s appellate jurisdiction would have been measured by the constitutional grant.7 However, later cases have generally taken the view that “the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress.” 8

Congress has on occasion used its power to regulate Supreme Court jurisdiction to forestall a possible adverse decision from the Court. In Ex parte McCardle, the Court granted certiorari to review the denial of a petition for a writ of habeas corpus from a civilian convicted of acts obstructing Reconstruction.9 Anticipating that the Court might void, or at least undermine, congressional reconstruction of the Confederate States, Congress overrode the President’s veto to enact a provision repealing the statute that authorized the appeal.10 Although the Court had already heard argument in the case, it dismissed the action for want of jurisdiction. The Court stated, “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.” 11 Since its decision in McCardle, the Supreme Court has upheld numerous legislative limits on its jurisdiction.12

Congress also possesses significant power to prevent Supreme Court appellate review by limiting the federal courts’ jurisdiction over certain classes of cases, or even specific cases, a practice sometimes called “jurisdiction stripping.” 13 The Constitution provides for the existence of a Supreme Court, but leaves to Congress the decision whether to establish inferior federal courts.14 That broad grant of discretion has been interpreted also to grant Congress expansive authority to regulate the structure and jurisdiction of the lower federal courts.15 Separation of powers considerations bar Congress from requiring courts to reopen final judicial decisions16 or dictating a certain substantive outcome in pending litigation.17 However, the Court has upheld legislation that deprives the federal courts of jurisdiction over certain matters, including legislation that removed jurisdiction over a specific pending case.18 Jurisdiction stripping statutes may limit the Court’s appellate jurisdiction; by contrast, Congress cannot enact legislation to limit the Supreme Court’s original jurisdiction.19

In addition to regulating the federal courts’ jurisdiction, since the early years of the Republic Congress has enacted legislation regulating court proceedings, for instance by setting the times and places for holding court, even of the Supreme Court, and limiting the courts’ power to issue injunctions.20 One striking example of regulating when the Court sits occurred following the repeal of the Judiciary Act of 1801. Congress enacted legislation changing the Court’s term to forestall a constitutional attack on the repeal, with the result that the Court did not convene for fourteen months.21 Examples of restrictions on injunctions include limitations on injunctions related to taxes22 and the Norris-La Guardia Act, which limits the issuance of injunctions in labor disputes.23

Footnotes

1

For discussion of the Court’s original jurisdiction, see ArtIII.S2.C2.2 Supreme Court Original Jurisdiction.

2

U.S. Const. art. III, § 2, cl. 2.

3

Id.

4

See, e.g., Judiciary Act of 1789, 1 Stat. 80.

5

3 U.S. (3 Dall.) 321 (1796).

6

Id. at 327.

7

10 U.S. (6 Cr.) 307, 313–14 (1810) ( “Had the judicial act created the supreme court, without defining or limiting its jurisdiction, it must have been considered as possessing all the jurisdiction which the constitution assigns to it. . . . [I]n omitting to exercise the right of excepting from its constitutional powers, [Congress] would have necessarily left those powers undiminished. The appellate powers of this court are not given by the judicial act. They are given by the constitution. But they are limited and regulated by the judicial act, and by such other acts as have been passed on the subject.” ). See also Ex parte McCardle, 74 U.S. (7 Wall.) 506, 512–13 (1869) ( “It is quite true . . . that the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred by the Constitution. But it is conferred ‘with such exceptions and under such regulations as Congress shall make.’” ); United States v. More, 7 U.S. (3 Cr.) 159 (1805); but cf. Ex parte Bollman, 8 U.S. (4 Cr.) 75, 93 (1807) (Marshall, C.J.) ( “Courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.” )

8

Barry v. Mercein, 46 U.S. (5 How.) 103, 119 (1847); see also Daniels v. Railroad, 70 U.S. (3 Wall.) 250, 254 (1865); Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799).

9

74 U.S. (7 Wall.) 506 (1869).

10

By the Act of February 5, 1867, § 1, 14 Stat. 386, Congress had authorized appeals to the Supreme Court from circuit court decisions denying a petition for a writ of habeas corpus. Previously, the Court’s jurisdiction to review habeas corpus decisions, based in Section 14 of the Judiciary Act of 1789, 1 Stat. 81, was somewhat unclear. Compare United States v. Hamilton, 3 U.S. (3 Dall.) 17 (1795), and Ex parte Burford, 7 U.S. (3 Cr.) 448 (1806), with Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807). The repealing statute was the Act of March 27, 1868, 15 Stat. 44. The repealed act was reenacted March 3, 1885. 23 Stat. 437.

11

74 U.S. (7 Wall.) at 513. A few years after McCardle, in Ex parte Yerger, the Court held that the Judiciary Act of 1789 gave it the authority to review on certiorari a circuit court’s denial of a habeas petition from of a person held by the military in the South, suggesting that the repeal at issue in McCardle did not deprive the Court of all jurisdiction over the matter but simply eliminated one possible statutory grant. 75 U.S. (8 Wall.) 85 (1869). See also Felker v. Turpin, 518 U.S. 651 (1996).

12

See The Francis Wright, 105 U.S. 381, 385–386 (1882); Luckenbuch S. S. Co. v. United States, 272 U.S. 533, 537 (1926); Am. Constr. Co. v. Jacksonville, T. & K.W. Ry., 148 U.S. 372, 378 (1893); United States v. Bitty, 208 U.S. 393 (1908); United States v. Young, 94 U.S. 258 (1876); Insurance Co. v. Ritchie, 72 U.S. (5 Wall.) 541 (1866); Railroad v. Grant, 98 U.S. 398 (1878); Bruner v. United States, 343 U.S. 112 (1952); District of Columbia v. Eslin, 183 U.S. 62 (1901); Patchak v. Zinke, 138 S. Ct. 897 (2018); see also Walker v. Taylor, 46 U.S. (5 How.) 64 (1847).

13

For additional discussion of jurisdiction stripping, see generally Kevin Lewis, Cong. Rsch. Serv., R44967, Congress’s Power over Courts: Jurisdiction Stripping and the Rule of Klein (2018), https://crsreports.congress.gov/product/pdf/R/R44967.

14

U.S. Const. art III, § 1 ( “The 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.” ); U.S. Const. art I, § 8, cl. 9 (allowing Congress “[t]o constitute Tribunals inferior to the supreme Court” ).

15

See, e.g., United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 33 (1812); Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721–722 (1838); Cary v. Curtis, 44 U.S. (3 How.) 236 (1845); Kline v. Burke Constr. Co., 260 U.S. 226, 233–234 (1922); Ladew v. Tennessee Copper Co., 218 U.S. 357, 358 (1910); Venner v. Great Northern R. Co., 209 U.S. 24, 35 (1908); Kentucky v. Powers, 201 U.S. 1, 24 (1906); Stevenson v. Fain, 195 U.S. 165, 167 (1904); Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511, 513–521 (1898); The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 251–252 (1868); South Carolina v. Katzenbach, 383 U.S. 301, 331 (1966); Palmore v. United States, 411 U.S. 389, 400–02 (1973); Swain v. Pressley, 430 U.S. 372 (1977). A minority view, articulated by Justice Joseph Story in Martin v. Hunter’s Lessee, argues that the Constitution requires Congress to create inferior federal courts and vest them with all the jurisdiction they are capable of receiving. 14 U.S. (1 Wheat.) 304, 329–336 (1816); see also, e.g., Amar, A Neo-Federalist View of Article III: Separating the Two-Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205 (1985); Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990).

16

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).

17

United States v. Klein, 80 U.S. 128 (1871); see also Patchak v. Zinke, 138 S. Ct. 897, 905 (2018) (plurality opinion) (Congress cannot usurp the judiciary’s power by saying “in Smith v. Jones, Smith wins.” ).

18

Patchak, 138 S. Ct. 897; cf. United States v. Sioux Nation of Indians, 448 U.S. 371, 374 (1980).

19

See ArtIII.S2.C2.2 Supreme Court Original Jurisdiction.

20

Supreme Court Justices have, at times, opposed legislation that might regulate the Court or its procedures. See, e.g., John G. Roberts, Jr., 2021 Year-End Report on the Federal Judiciary (2021); Letter from Charles Evans Hughes, C.J., to Burton K. Wheeler, U.S. Sen. (Mar. 21, 1937), reprinted in S. Rep. No. 75–711, app. c at 40 (1937). In addition, even absent clearly established constitutional limits on Congress’s authority to regulate court proceedings, the legislature has often deferred to the courts, and especially the Supreme Court, to regulate their own procedures. For instance, the Rules Enabling Act, 28 U.S.C. § 2071–2077, authorizes the Supreme Court to make procedural rules for the inferior federal courts, subject to approval by Congress, and further allows the Court to make its own procedural rules without legislative oversight.

21

1 Charles Warren, The Supreme Court in United States History 222–224 (rev. ed. 1926).

22

Act of March 2, 1867, 10, 14 Stat. 475 (codified as amended at 26 U.S.C. § 7421 (federal taxes)): Act of August 21, 1937, 50 Stat. 738 (codified at 28 U.S.C. § 1341 (state taxes)). See also Act of May 14, 1934, 48 Stat. 775 (codified at 28 U.S.C. § 1342 (state rate-making)).

23

47 Stat. 70, 29 U.S.C. §§ 101–115 (1932). The Court has upheld the Act and applied it liberally through the years. See Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938); New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938); Bhd. of R.R. Trainmen v. Chi. River & Ind. R.R., 353 U.S. 30 (1957); Boys Markets v. Retail Clerks Union, 398 U.S. 235 (1970).