Concept
Supreme Court Jurisdiction Under Article III
Congressional power to define and limit
Supreme Court Jurisdiction Under Article III
Article III does not give the Supreme Court a single undifferentiated docket. Section 2 first lists the subject matters to which the judicial power extends, and it then sorts them into two groups: a short list of cases the Court may hear as the first court to consider them, and all the others, which it may hear only on review of a decision made in a lower federal court or a state court.1 The first group is the original jurisdiction and the second is the appellate jurisdiction. Diversity cases, federal question cases, and suits to which the United States is a party all fall in the appellate group, so review is the Court's ordinary business.2
This sorting matters here because Congress's power over the two groups differs sharply. The Exceptions Clause sits in the sentence that governs appellate jurisdiction and speaks only to that jurisdiction, so the power to make exceptions cannot be used to carve exceptions out of the Court's original jurisdiction.3 The reason lies in the structure of the text. If Congress could shift cases between the two groups at will, the constitutional language that sorts them would do no work, and Chief Justice Marshall reasoned along those lines in Marbury v. Madison when he refused to read the clause as a power to move cases from the appellate group into the original one.4 Any later question about how far Congress may go in cutting off cases therefore concerns the appellate side alone, and it cannot be framed until the original side has been set aside.
The next two subsections take the groups in that order. The first, Original Jurisdiction Is Fixed, identifies the two categories the Constitution assigns directly to the Court and explains why Congress cannot rearrange them. The second, Appellate Jurisdiction and Exceptions, turns to the clause itself, which is the language the Court construed in McCardle.
Original Jurisdiction Is Fixed
Article III names two kinds of cases that the Supreme Court may hear as the first court to consider them: cases affecting ambassadors, other public ministers, and consuls, and cases in which a state is a party.5 The first category refers to representatives of foreign governments.6 The second is dominated in practice by disputes between two states, such as boundary conflicts and suits over an interstate river, which the Court usually refers to a special master who takes evidence and recommends a resolution.7 Few cases fit either description, so original jurisdiction makes up a small part of the Court's work today, and almost everything else it decides reaches it on review.8 That small docket is still the half of the Court's jurisdiction that Congress cannot rearrange, and the rule has two sides, one settled by decision and one settled by general understanding.
The first side is that Congress cannot enlarge the list, and the decision that established it is Marbury v. Madison. William Marbury sued the Secretary of State directly in the Supreme Court for a writ of mandamus, relying on section 13 of the Judiciary Act of 1789, which purported to give the Court original jurisdiction over such writs.9 His suit arose under a law of the United States, which put it in the appellate group, and a suit against the Secretary of State is not one affecting ambassadors or ministers. The Exceptions Clause could have been read to let Congress redeal cases between the two groups, but Chief Justice Marshall rejected that reading because the Framers would have had no reason to define the original and appellate categories at all if Congress could shift cases between them at will.10 Section 13 fell, and the suit was dismissed for want of jurisdiction. The case is better known for establishing judicial review, but only its jurisdictional holding matters here: the constitutional list is a ceiling that Congress cannot raise.
The second side asks whether Congress may cut the list down, and the Court has never dispositively decided that question, though the Court and commentators generally accept that Congress may not.11 The reason is that the grant is self-executing. It comes directly from the Constitution and needs no statute to set it in motion, so a statute that is silent about a category, or hostile to it, cannot switch the jurisdiction off.12 Congress has always legislated on the subject, beginning with the Judiciary Act of 1789, which is why the self-executing theory has never been tested against a statute that really took a category away.13 What the theory predicts is that such a statute would simply be disregarded as to the Court's original jurisdiction.
Congress does keep one option on the original side, which is to let other courts share the work. A statute may make the Supreme Court's jurisdiction concurrent with that of the federal district courts, and Congress has done so for several categories in 28 U.S.C. § 1251.14 Concurrency leaves the Court's constitutional jurisdiction in place and changes only whether the Court is the sole forum for the dispute.15 In practice the Court often uses the opening that concurrency creates, declining to exercise original jurisdiction when another forum can hear the dispute.16
One fact separates those statutes: whether the Court's jurisdiction is shared or taken away. Sharing leaves the constitutional grant intact, while removal is the move the grant's self-executing character is understood to defeat.17
The consequence for the rest of this chapter follows from the text. The Exceptions Clause sits in the sentence that governs the remaining cases, so by its own terms it reaches only the appellate group, and Congress cannot use it to reshape the original list.18 Original jurisdiction therefore sits outside the debate over congressional power, and the controversy over jurisdiction stripping belongs to the appellate side, which the next subsection takes up.
Appellate Jurisdiction and Exceptions
Every case within the judicial power that is not assigned to the original docket falls on the appellate side, and the grant there carries a built-in qualification. Article III says that in all such cases 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."20 Two sources of authority meet in that one sentence. The jurisdiction itself comes from the Constitution, which is why the Court has said that its appellate power is not derived from acts of Congress, yet the grant arrives already subject to whatever exceptions and regulations Congress chooses to impose.21 The Constitution supplies the potential docket, and Congress decides how much of it the Court actually exercises.
The practical consequence is a two-part requirement. The Court may exercise appellate jurisdiction in a given case only when Article III reaches the case and a federal statute authorizes the Court to hear it. The rule traces to Wiscart v. D'Auchy in 1796, where the Court held that it could not proceed on appeal without a rule from Congress to regulate its proceedings.22 A reader coming from the previous subsection should note the contrast, because original jurisdiction is self-executing while the appellate side is not, and students lose this point when they forget that a statute is also required before the Court can hear an appeal. The reason lies in what the Exceptions Clause would do if no statute were needed. Were the Court free to hear every appellate case Article III describes whenever a litigant asked, there would be nothing left for Congress's exceptions and regulations to act upon, and the Court itself would fix the boundaries of its docket. Requiring an affirmative statute places that choice with the legislature, and Congress has exercised it continuously, specifying the Court's appellate jurisdiction by statute since 1789.23
Because Congress defines the jurisdiction by affirmative grant, the grants carry a second meaning. In Durousseau v. United States the Court explained that its appellate powers are given by the Constitution but are "limited and regulated by that act, and by such other acts as have been passed on the subject," and that a statute's affirmative description of jurisdiction has been understood to imply a negation of the appellate power it does not comprehend.24 The result is an implied exception: when Congress grants review of some category of cases and says nothing about another, the omission operates as an exception for the second category.25 The practice has been so settled that the Court has found it unnecessary to decide whether, had Congress made no exceptions and no regulations at all, the Court could have exercised general appellate jurisdiction under rules of its own.26
The Judiciary Act of 1789 shows the implied exception at work on both of its edges. Congress gave the Court review of state-court decisions that rejected a federal constitutional claim, and by inference excepted the state-court decisions that upheld one, even though no provision of the Act forbade that review.27 The same pattern holds for diversity. Article III lists controversies between citizens of different states among the cases to which the judicial power extends, yet Congress has never given the Court appellate jurisdiction over diversity suits decided in state courts, and at no point in history has Congress granted the full range of appellate authority the constitutional text would permit.28 In each instance the Court's appellate reach stops where the statute stops, and the missing grant does the work of an express limit.
The clause also has a boundary on the other side, which the original-jurisdiction subsection already traced. The power it confers is a power to make exceptions to the Court's appellate jurisdiction, so a statute that tries to move a category of cases from the appellate docket to the original docket is not an exception at all, because it rewrites the constitutional grant of original jurisdiction. The power to make exceptions to appellate jurisdiction cannot be used to make exceptions to the original jurisdiction.29 Marbury v. Madison supplies the same limit from the other direction, since Chief Justice Marshall read Article III as fixing a distribution of cases between the two dockets that Congress cannot redraw.30
Everything described so far concerns jurisdiction that Congress never conferred. A different situation arises when Congress has granted a route to the Court, a litigant has taken it and the Court has heard argument, and Congress then repeals the grant. In Ex parte McCardle the repeal was not an inference from other grants but, in the Court's words, "hardly possible to imagine a plainer instance of positive exception."31 That raises the question the clause leaves open on its face: if Congress may decline to confer appellate jurisdiction, may it also withdraw jurisdiction it has already conferred, even while a case is pending? McCardle answers that question, and the next section turns to it.