Select Page

Federal Jurisdiction
University of South Carolina School of Law
Stravitz, Howard B.


A. Congressional Power to Regulate U.S. Supreme Court Appellate Jurisdiction

Article III, § 2, cl. 2—The Supreme Court has original jurisdiction in all cases 1) affecting ambassadors, other public ministers and consuls and 2) those in which a state shall be a party. In all other cases, the supreme courts shall appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

General Rule: Congress has broad power to regulate the appellate jurisdiction of the Supreme Court under the Exceptions Clause, including the power to remove appellate jurisdiction over a pending case. McCardle

3 Views of Exceptions Clause: Congress’s ability to make exceptions to Supreme Court Appellate jurisdiction
1) Plenary Power (full hearing or trial)—The Exceptions Clause gave Congress a plenary power to control the appellate jurisdiction of the Supreme Court. Therefore, Congress can use the Exceptions Clause to take certain issues (abortion, etc.) out of the court’s appellate jurisdiction.

2) Limited View—The word “exceptions” only modifies the word “fact” and, therefore, Congress can only limit appellate jurisdiction over questions of fact and not questions of law.

3) Specific Constitutional Limits—Congress cannot limit the Court’s appellate jurisdiction in a manner that violates another provision of the Constitution.

a. Bill of Attainder—Argument that removing appellate jurisdiction over claims of a readily identifiable group disfavored by Congress as a method of “legislative punishment” could act as a Bill of Attainder.

b. 6th Amendment—An exception to only cases where the defendant exercised his right to trial by jury instead of agreeing to a bench trial could violate the 6th Amendment right to a jury trial.

c. Equal Protection—If the excluded cases involved those deemed fundamental rights or were excluded based on a prohibited classification, then the exception could violate equal protection.

Ex Parte McCardle—Court said that Congress’ statement that certain cases are outside the Court’s appellate jurisdiction is sufficient as a positive exception under the Exceptions Clause and therefore could not be heard by the Court.

Ex Parte Yerger—Court held that it had jurisdiction to hear habeas petitions under the 1789 Act because the earlier repeal of appellate jurisdiction in McCardle only applied to habeas petitions under the 1867 Act.

Rule: Congress must be precise in excepting the Supreme Court’s appellate jurisdiction.

United States v. Klein—The Supreme Court originally held that a presidential pardon constituted proof that the person did not give aid or comfort to the enemy. Congress stated that the federal courts should treat a pardon as proof that the person was disloyal, requiring the courts (including the Sup. Ct.) to dismiss any cases seeking return of property for lack of jurisdiction. The Supreme Court held the Congressional limitation on jurisdiction and its discretion as unconstitutional. The jurisdiction was not specifically stated and the required decision violated separation of powers principles (Chemerinsky page 183).

Key—Kleinis important to show that there are limitations on Congressional power to control the jurisdiction of the federal courts, but does not independently stand for the proposition that separation of powers is a restricting principle.

Note: Due process does not include a right to appellate review, even a right to an appellate review for

ederal Courts Must Have Full Judicial Power

Key: This approach argues that Congress has complete discretion as to whether to create the lower federal courts, but once that power is exercised, the lower courts must have allof the jurisdiction enumerated in Art. III, § 2.

Rule: This approach was explicitly rejected in Sheldon v. Sill because, as the court said in that case, the greater power to create the lower federal courts must include the lesser power to define their jurisdiction.

2. Congressional Discretion to Decide Jurisdiction

Key: Art. III gives Congress the plenary power over whether to create lower federal courts and, once created, to define their jurisdiction up to the ceiling provided in Art. III § 2.

Sheldon v. Sill—The Judiciary Act prohibited the circuit courts from entertaining a suit deriving from an assignment unless the court would otherwise have jurisdiction to entertain the claim had the assignment never been made. The argument was that the restriction on the circuit court’s jurisdiction was unconstitutional as violating Art. III, § 2’s grant of jurisdiction over diversity cases. The Court reasoned that because Congress has the power to create the lower federal courts, then it also has the power to “proscribe the limits of their jurisdiction.”

Rule 1: Congress may withhold, from any court of its creation, the jurisdiction to hear any cases enumerated in Art. III, § 2.