Pending in Congress, as there have been in earlier Congresses, are various proposals to limit the jurisdiction of federal courts or otherwise curtail their power through various organizational or procedural changes. In this article, Senator Charles McC. Mathias, Jr., of Maryland, discusses the various efforts to curb the federal courts, focusing on current proposals and offering criticisms of them on both constitutional and policy grounds.
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References
1.
1. Stuart S. Nagel, “Court-Curbing Periods in American History,”Vanderbilt Law Review, 18:925 (Jun. 1965).
2.
2. H.R. 867, 97th Congress, 1st Session (1981).
3.
3. S. 481, 97th Congress, 1st Session (1981).
4.
4. H.R. 869, 97th Congress, 1st Session (1981).
5.
5. H.R. 2365, 97th Congress, 1st Session (1981).
6.
6. 2 U.S. 419 (1793).
7.
7. Quoted in Charles Warren, The Supreme Court in United States History (Boston: Little, Brown, 1926), p. 97.
8.
8. Ibid., p. 100.
9.
9. Frustrated by the Supreme Court's invalidation of much of his New Deal Program, President Roosevelt proffered a plan that would have allowed him to name a new member of the Court for each Justice over 70 years of age. Although offered in the name of “judicial efficiency,” Congress saw it for what it was: a blatant attempt to change the direction of the Court by permitting the President to appoint additional members of his own ideological persuasion. The Senate Judiciary Committee rejected the proposal unanimously, and it was relegated to a footnote in history.
10.
10. Proposals of this nature are summarized in Maurice S. Culp, “A Survey of the Proposals to Limit or Deny the Power of Judicial Review by the Supreme Court of the United States,”Indiana Law Journal, 4:386 (1929).
16. S. 917, 90th Congress, 1st Session, as amended by S. Rep. No. 1097, Sec. 3502 (1968).
17.
17. H.R. 1228, 85th Congress, 1st Session (1957) and S. 3467, 85th Congress, 2nd Session (1958).
18.
18. S. 2646, 85th Congress, 2nd Session (1957).
19.
19. U.S. Congress, Senate, Congressional Record, 97th Congress, 1st Session; 16 Feb. 1981, p. S1283.
20.
20. Orrin G. Hatch, “The Constitution, Not the Court is Supreme,”Washington Post, 3 May 1981.
21.
21. The Supreme Court has had a number of opportunities to rule on jurisdictional limitations on the lower federal courts. See, e.g., Lauf v. E. G. Shinner and Co., 303 U.S. 323 (1938). It has rendered far fewer decisions as to whether or not limitations on the Supreme Court's appellate jurisdiction were consistent with the exceptions clause set forth in Article III. The two leading cases are Ex Parte McCardle, 74 U.S. 506 (1869) and United States v. Klein, 80 U.S. 128 (1872). In McCardle, the Court sustained a congressionally imposed limitation on its appellate jurisdiction; in Klein, the Court ruled such a limitation unconstitutional. It has never ruled on the constitutionality of a proposal—like those pending in the present Congress—which would deprive all federal courts of jurisdiction over cases involving constitutional issues.
22.
22. There are, to be sure, conflicting opinions on this legal question. The various points of view can be found in several articles in the October 1981 issue of Judicature, which carries a symposium of articles on “Limiting Federal Court Jurisdiction: Can Congress Do It? Should Congress Do It?”Judicature, 65:177 (Oct. 1981).
23.
23. Myers v. United States, 272 U.S. 52,293 (1926) (Justice Brandeis dissenting).
24.
24. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: New American Library, 1961), p. 466.
25.
25. Letter to William P. Rogers, Attorney General of the United States, to Senator James Eastland, Chairman, Senate Judiciary Committee, 4 March 1958, reprinted in U.S. Congress, Senate, Committee on the Judiciary, Subcommittee to Investigate the Administration of the Internal Security Act and Other Internal Security Laws, Limitation on Appellate Jurisdiction of the United States Supreme Court, Hearing on S. 2646, 85th Congress, 2nd Session (1958), pp. 573-74.
26.
26. Herodotus, The Histories (Baltimore, MD: Penguin Books, 1968), p. 187.
27.
27. Quoted in Democrats Illustrative of the Formation of the Union of the American States (Washington, DC: Government Printing Office, 1927), p. 23. Parliament had provided secure tenure and salaries for English judges in the 1701 Act of Settlement, 12 and 13 William III, ch. 2, section 3 (1701), but colonial judges were gradually deprived of these same protections.
28.
28. Max Farrand, The Records of the Federal Convention of 1787, vol. 1 (New Haven: Yale University Press, 1911), p. 21.
29.
29. Martha Ziskind, “Judicial Tenure in the American Constitution: English and American Precedents,” 1969, Superior Court Review, pp. 135, 153.
30.
30. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: New American Library, 1961), pp. 278.
31.
31. Resolution of Special Committee on Coordination of Improvements in Federal Judicial Machinery, adopted by House of Delegates, American Bar Association, 11 Aug. 1981.
32.
32. William Ewart Gladstone, “Kin Beyond the Sea,”North American Review (Sept.-Oct. 1878).
33.
33. William L. Riordan, ed., Plunkitt of Tammany Hall (New York: McClure, Phillips, 1905), p. 13.
