Reading McCardle Narrowly

Reading McCardle Narrowly

Read at face value, McCardle looks like proof that Congress can decide what the Supreme Court is allowed to decide. The Court dismissed an appeal that had already been argued, members of Congress had said openly that they wanted to head off a ruling, and the Court declined to examine their motives. Litigants and legislators have cited the case for that proposition in efforts involving reapportionment, subversive activities, and school busing, and those efforts did not succeed.¹ The broad reading has a cost that explains the resistance to it. If Congress could use its power over jurisdiction to dictate the result of constitutional cases, the federal courts' authority to say what the Constitution requires would last only as long as Congress liked the answers.²

Two features of the case support a narrower reading. The first concerns what the repeal took away: the 1868 act withdrew only the appeal route that the 1867 statute had created, and the Court's other habeas corpus jurisdiction stayed in place, so Congress closed one avenue and left others open.³ The second concerns how the repeal operated. It shut the Supreme Court's door to the government and to the private party alike, so that a government loss in a future habeas case would have left the government, like McCardle, without an appeal.⁴ Neutrality matters because a restriction that falls evenly on both sides is hard to explain as an effort to pick the winner of a particular case, whereas a restriction that closes the Court to only one side invites exactly that suspicion.

These two features are why the case is usually described as holding that Congress may repeal particular statutory avenues of Supreme Court review, so long as it does not eliminate all avenues of Supreme Court review or all federal judicial review of constitutional claims.⁵ Whether the availability of a substitute route was essential to the result remains unclear, which is the reason to read the case carefully before using it as authority for anything broader.⁶ The first subsection, One Avenue, Not All, takes up the limited scope of the repeal and what the Court itself said about it, and the second, A Neutral Restriction, then explains why evenhandedness bears on the validity of a jurisdictional limit.

One Avenue, Not All

The repeal that ended McCardle's appeal was narrower than the dismissal suggests, and the Court said so in the last paragraph of its opinion. Counsel had supposed that giving effect to the repeal would deny the whole appellate power of the Court in habeas corpus cases. Chief Justice Chase called that an error, because the 1868 act excepted only appeals from the circuit courts under the act of 1867 and, in the Court's words, "does not affect the jurisdiction which was previously exercised."⁷ The repeal could be that limited because of how the 1867 statute was built. Before 1867 there was no appeal in habeas cases, although the Court could issue the original writs of habeas corpus and certiorari and so review a lower court's denial of habeas relief by that means.⁸ The 1867 act added an appeal on top of that existing authority, so repealing the addition returned the law to where it stood before and left the Judiciary Act of 1789 as a continuing source of habeas jurisdiction.⁹

That continuing source was put to use almost at once. In Ex parte Yerger, decided within about a year, a newspaper editor who, like McCardle, challenged the constitutionality of the Military Reconstruction Act came before the Court, and the Court held that it had authority under the Judiciary Act of 1789 to review the habeas decisions of lower federal courts.¹⁰ The repealing act had left that jurisdiction alone, so the writs of habeas corpus and certiorari could still revise the circuit court's decision and free a prisoner held unlawfully.¹¹ The decision rested on the settled understanding that the habeas power under the Judiciary Act is appellate in character and is exercised in revising judicial decisions, which is why the original writ could serve as the functional equivalent of the appeal Congress had repealed.¹² For a prisoner in McCardle's position, then, Congress had withdrawn one avenue of appeal to the Supreme Court and had not withdrawn all jurisdiction from the lower federal courts or the Supreme Court.¹³

The existence of that alternative route raises a question about the closing paragraph itself, and the question has no settled answer. The paragraph is either a passing remark or a necessary step in the reasoning, and the label matters because dicta, meaning a remark in an opinion on which the result did not depend, does not bind later courts, while a statement essential to the holding does. The two readings can be set side by side:

• On the first reading, the paragraph is dicta with nothing to do with the resolution of the case, because the Chief Justice merely observed that a different jurisdictional path to the Supreme Court for habeas claims still existed.¹⁴
• On the second reading, the paragraph is essential to the holding: Congress may choose the path that cases take into the federal courts but may not exclude claims of federal constitutional right from the federal system altogether, and the Court could deny jurisdiction to McCardle only because he had another means of getting a federal court to hear his claim.¹⁵

Each reading has its own logic. The second draws on the idea that the Supreme Court's essential role is not destroyed when one means of approach is taken away and another is left open.¹⁶ The first points to the ground the Court actually gave for dismissing, which was that the power to make exceptions to the appellate jurisdiction is given by express words and that the Court would examine only that power, with no inquiry into motive.¹⁷ Scholars have debated which reading is correct for more than a century, and the Supreme Court has never said.¹⁸

The disagreement changes nothing for most statutes, because both readings treat a statute that closes one route and leaves another open as valid. The later decision in Felker v. Turpin fits that pattern: it upheld Congress's withdrawal of Supreme Court jurisdiction over second or successive habeas petitions because the Court kept its jurisdiction over original habeas petitions.¹⁹ The readings part company only when a statute leaves no route at all, and a matched pair shows where the line falls.

The first statute stays within what McCardle approved, because federal judicial review of the claim survives and only the route changes. The second statute differs in kind, because McCardle supplies no authority for it, the repeal there having left habeas jurisdiction standing. It would also collide with other constitutional provisions: Article I, section 9 forbids suspending the writ of habeas corpus except under very limited conditions, and closing every federal court to certain habeas claims would offend that provision.²⁰ Closing the courts to claims of constitutional violation effectively denies the substantive right itself, a point taken up below with the other limits on Congress's power.²¹

Because the Court has not chosen between the readings, the careful reading of McCardle is the narrow one. It permits Congress to repeal a particular statutory route to the Supreme Court when other routes remain, and it cannot be cited as authority that Congress may close every federal route to a constitutional claim.²² An answer that relies on McCardle for closing every route attributes to the case a holding it never reached, since the only repeal before the Court left habeas jurisdiction standing. A statute that leaves no jurisdictional basis for any federal court to hear the claim is therefore one that McCardle cannot be said, with certainty, to validate.²³

A Neutral Restriction

The second feature that narrows the broad reading of McCardle concerns how the repeal operated, where the first concerned what it removed. The 1868 act closed Supreme Court appeal in the covered habeas cases to every litigant who might have used it. A prisoner who lost in the circuit court could not take the case to the Supreme Court under the 1867 act, and neither could the government if it had lost. In some later habeas case, then, the government would have stood exactly where McCardle stood, without an appellate remedy.²⁵ Calling the restriction neutral means only this: the statute defined a class of appeals and shut that class off without regard to which side wanted to pursue it.

The reason neutrality matters lies in what it takes to decide a particular case through legislation. A legislature that wants a specific litigant to win must write a rule that burdens only the other side, and it can do so only if it knows who is likely to lose. A rule that closes the same door to both sides works differently, because it governs future cases whose winners nobody can name in advance, so the legislature has changed the system of review and has not announced a result. A neutral limit therefore helps to assure that the withdrawal of jurisdiction is not an attempt to alter the results of specific cases.²⁶ Put as a condition, Congress may not decide the merits of a case under the guise of limiting jurisdiction, and evenhandedness is one feature that helps show it has not.²⁷

Neutrality has to be kept apart from the Court's refusal to examine motive, because the two answer different questions. Members of Congress said openly that they meant to remove McCardle's case from the Court's docket and head off a ruling that might invalidate Reconstruction.²⁸ The Court nonetheless said it was "not at liberty to inquire into the motives of the legislature" and could examine only Congress's power, which the Exceptions Clause gives by express words.²⁹ So Congress knew whom the repeal would help in this very case, and the Court declined to make that knowledge matter. Motive is a fact about what legislators intended, and the Court would not investigate it. Neutrality is a fact about what the statute says and does, which any reader can check from its terms without inquiring into anyone's mind. Answers go wrong when they treat motive and neutrality as a single question, because the repeal's validity did not depend on Congress's purpose being innocent, and the evenness of the statute is what makes it hard to describe the repeal as a verdict in McCardle's case.

The Court drew one further line that shows what it understood itself to be approving. Counsel had cited decisions for the position that the repeal could not reach the pending appeal, and the Court found that none of them helped, because they were cases of the exercise of judicial power by the legislature, or of legislative interference with courts in the exercise of continuing jurisdiction.³⁰ Two of the decisions it had in view came from state courts. In De Chastellux v. Fairchild, the Pennsylvania Supreme Court struck down a statute that gave a new trial to a defendant who had lost a trespass suit, reasoning that the legislature was attempting to exercise judicial power.³¹ In State v. Fleming, a liquor-sale prosecution was pending when the Tennessee legislature legalized such sales and barred punishment for earlier violations, and the Tennessee Supreme Court held that the legislature had no power to interfere with the judicial function.³² The two cases differ in timing, since one reopened a suit that had been lost and the other ended a prosecution still in progress, but they share the feature that matters: the legislature reached into a specific dispute and settled it. The 1868 act did nothing of the kind. Congress used its constitutional power to make exceptions to appellate jurisdiction, and it did not use that power to control the substantive result of a particular case.³³ The syllabus states the same conclusion in procedural terms: repealing such an act while an appeal is pending is not an exercise of judicial power by the legislature, whether the repeal takes effect before or after argument.³⁴

A twin of the repeal isolates the fact that carries the neutrality point.

The second pattern appears in an actual decision. In Klein, which this chapter takes up near its end, Congress directed that the Supreme Court lose jurisdiction on appeal when a claimant's judgment in the Court of Claims rested on a presidential pardon, which was the category in which the government was losing, and the Court held that the withdrawal of jurisdiction was only a means of dictating the result.³⁵ Neutrality is what the McCardle repeal had and the Klein statute lacked. It does not settle every question about a jurisdictional statute, however, because the McCardle repeal also left other avenues open, and the limits section below asks what must survive no matter how evenly a statute is drawn.