Outline for Federal Courts
Professor Adams
I. Introduction & POlicy Considerations
A. Two Models of Federal Jurisprudence:
1. The “Nationalist” Model: Adherents to this view believe that a strong federal judiciary is essential because of the lack of parity between state courts and federal courts, thus requiring federal courts to fully vindicate federal norms. This view tends to focus on the Reconstruction and the expansion of the federal judiciary at that time, as proof that more federal jurisdiction is always good. A key factor in the nationalist view in the superiority of the federal judiciary is the independence of that branch. In sum, while the nationalist model recognizes that federal courts are courts of limited jurisdiction, but argue for the broadest possible construction of that jurisdiction consistent with the limited grant.
2. The “Federalist” Model: The Federalist view stresses the parity of the state courts in enforcing federal norms, and believe that federal jurisdiction should be the exception, not the rule. This view posits a weaker, limited federal judiciary, with a narrow construction of the constitutional and statutory grants of jurisdiction.
This “Nationalist” vs. “Federalist” dichotomy permeates any discussion of federal jurisdiction.
B. Policy Considerations of Federal Jurisdiction: In shaping the doctrines of federal court jurisdiction, the Supreme Court has repeatedly focused on two major policy considerations: (1) the relationship between the federal courts and the other branches of the federal government; and (2)the relationship between the federal courts and the states and especially the state courts.
1. Federal Courts and the States:
a. The Concept of “Our Federalism”: In describing the relationship of the federal courts to the states, Justice Black in Younger v. Harris, 401 U.S. 37 (1971), coined the term “Our Federalism.” According to the Justice, :
[“Our Federalism” means] aproper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as “Our Federalism.”. . . The concept does not mean blind deference to “States Rights” any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, “Our Federalism,” born in the early struggling days of our Union of States, occupies a highly important place in our Nation’s history and its future.[1]
b. The Concept of “Parity”:
i. Definition: As Professor Chemerinsky describes it, “[p]arity is the issue of whether, overall, state courts are equal to federal courts in their ability and willingness to protect federal rights.”[2] There are two views of “parity,” and which view one takes affects how the argument is framed:
(a) “Strong” or Substantive Parity: Believe in “outcome neutral” parity—that is, the same inputs should always get the same outputs.
(b) “Weak” or Procedural Parity: This view holds that as long as the state courts give adequate constitutional process, they are equal to the federal courts—regardless of differing outcomes.
ii. The “There is NO Parity” Camp: Those who believe in the absence of parity between the state and federal courts point to the history of state court hostility to federal claims, and the structural differences between the federal courts and most state courts: life tenure; appointment not election; higher (irreducible) salaries; difficulty of removal (only by impeachment).[3] Related to these structural concerns is the argument that the federal bench is populated by better, smarter judges, attracted by the benefits of the structure and the bigger stage of the federal forum. All of this, they claim, makes the federal bench more independent—thus less likely to side with the government when assessing claims of individuals. Most of the adherents to the belief in the absence of parity speak in terms of “strong parity.”
iii. The “There is Parity” Camp: Those who believe that parity exists claim that the past differences between the two courts have been eliminated over time, and that the structural difference do not affect decisions because all judges are sworn to uphold the constitution. The mere difference in outcome does not necessarily mean that the state court has decided wrongly—to claim so is to import normative values that have no place in an analysis of the parity of the courts. In their eyes, to argue against parity is to disdain the federal system of government that recognizes states as sovereigns. Most of this camp speak in terms of “weak (procedural) parity.”
2. The Federal Courts and the Other Branches of the Federal Government—The Separation of Powers: Another policy implicated by federal jurisdiction arises in two instances: (1) when the federal courts exercise their power and interpret (or indeed invalidate) the acts of the legislative and executive branches; and (2) when the federal courts refuse to exercise (abstain) from exercising power granted to them by the legislature. The argument is that these instances reflect the “counter-majoritarian difficulty,” as the will of the people—as reflected in the politically accountable branches—is being thwarted by a one that is not accountable.
II. The source of Federal jurisdiction—Article III
A. Background: All of the federal judicial power derives from Article III of the Constitution, which was drafted in response to the experience under the Articles of Confederation, where the only federal court was the Court of Appeals in Capture Cases. Although fiercely debated in the Convention, there are several themes that argued in favor of a national judiciary: (1) the need to effectively implement the powers of the national government; (2) fears that the state courts might not fully enforce federal policies; (3) the need to have uniform interpretation of the federal constitution and laws; (4) the need to resolve disputes between states; and (5) the need to ensure the protection of individual liberties as against the states.
B. Article III of the United States Constitution: which provides:
Section 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. . . .
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution
III. Congressional Control of federal jurisdicton
A. Congressional Control of the Appellate Jurisdiction of the Supreme Court:
1. The Issue: This debate centers around one question: “Can Congress prevent the Supreme Court from hearing cases on particular issues?” This is known as “jurisdiction stripping.” The debate begins with the “Exceptions Clause” of Art. III. § 2, cl. 2, and the disagreement of the meaning of the constitutional text.[5]
a. The Dispute over the Meaning of the “Exceptions Clause” of Art. III § 2, cl. 2:
i. Proponents of Congressional Control: Proponents of congressional control of Supreme Court appellate jurisdiction argue that the unambiguous language of the clause permits Congress to make whatever exceptions to the appellate jurisdiction of the Supreme Court, including the ability to preclude review as to specific issues or topics. They argue that the “such exceptions” language operates on the entire clause, that is that Congress can control the appellate jurisdiction of all the enumerated cases.
ii. Opponents of Congressional Control: The opponents of congressional control of Supreme Court jurisdiction argue that the such exceptions language operates only on the word “facts,” thus the Congress is only authorized to restrict Supreme Court review of lower court findings of fact on appeal. Moreover, they argue that even if Congress can limit the appellate jurisdiction as to substantive issues, it may not do so in a way that violates the structure of the constitution (see the “Essential Functions” Doctrine, infra).
There is Supreme Court precedent for both arguments—which makes this a very uncertain area of jurisprudence. However, the instances of congressional attempts to strip the Court of jurisdiction have been rare, and indeed Congress has never attempted to preclude all Supreme Court review of a class of cases.[6]
[1] Younger, 401 U.S. at 44-45. [2] Erwin Chemerinsky, Federal Jurisdiction § 1.5 (3d ed. 1999) (hereinafter Chemerinsky] [3] See U.S. Const. Art. III (“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”). [4] U.S. Const. Art. III. [5] A caveat: This debate always assumes that even in the event of a limitation of Supreme Court review, some court would remain available to hear the claim—either the lower federal courts (arguably in some cases there must always be some federal forum, even if no Supreme Court review) or the state courts. For in the absence of any forum for the case, serious due process problems would arise. [6] See Chemerinsky § 3.2.