Congressional Authority to Restrict Lower Federal Court Jurisdiction

TL;DR: In the last twenty years unpopular decisions by federal courts, particularly the Supreme Court, have led to serious discussions of curtailing federal court jurisdiction as mentioned in this paper, which is a recurrent example of this phenomenon.

Abstract: Separation of powers in the federal government inevitably generates conflicts among the branches. In recent years the executive branch's authority to impound funds appropriated by Congress' and to make war without congressional approval2 has been questioned. In earlier days debate raged over the Supreme Court's authority to nullify legislation passed by Congress.3 A recurrent example of this phenomenon has been the struggle between Congress and the judiciary over the scope of congressional control of federal court jurisdiction. The recent controversy over school busing has highlighted this problem. The problem is, however, neither novel nor peculiar to the busing issue. In considering the first judiciary act Congress debated the scope of its authority to regulate the jurisdiction of the federal courts. In the last twenty years unpopular decisions by federal courts, particularly the Supreme Court, have led to serious discussions of curtailing federal court jurisdiction. After Brown v. Board of Education5 there was a movement to withdraw Supreme Court jurisdiction to hear school desegregation cases.0 During and after the McCarthy era, and perhaps in response to it, the Supreme Court conferred upon citizens what some felt to be unduly broad protection from legislative investigations. 7 This prompted

Summary

16. The earliest person to question the majority position appears to have been

• Such courts may in the beginning have been a luxury for the young nation.
• The primary focus of this article is on the power of Congress to abolish, curtail the jurisdiction of, or remove remedies from, the lower federal courts.
• This gap, when read in conjunction with the "shall" of § 1, suggests that there must be inferior courts to exercise the residuum of federal jurisdiction withheld from the Supreme Court.

An interpretation of Article III much like the second one set

• In Martin v. Hunter's Lessee -24 Justice Story concluded from the phrase "shall be vested" that the whole federal jurisdictional power must be vested in some federal court.
• See 2 ELLIOT, supra note 39, at 494 (Wilson at Pennsylvania deliberations).
• One is tempted to ask how the framers could both intend the federal judiciary to be capable of hearing all cases within its jurisdiction and at the same time not explicitly incorporate inferior federal courts into the constitutional scheme.
• 74 Thus commentary at the time of the passage of the Constitution suggests that underlying the exercise of the other functions of the federal judiciary was the notion that the federal courts, whatever their form, could be expected to hear any litigant whose case was within the federal constitutional jurisdiction, either at trial or on appeal.

It is not fanciful to think that it would have been too much for unsheltered state judges . . . Certainly it would have been hard to have asked them to risk such an exposure with so few

• S8 Similarly, the success of innovative Supreme Court action in other areas, such as reapportionment and criminal procedure, has rested in substantial part upon the support of the lower federal courts.
• This shift in the Supreme Court's function has meant that it must decline to hear most cases.
• The first is to maintain and enunciate a political-legal order through formal adjudication.
• Congressional Control of Lower Federal Court Jurisdiction.

III, it is not clear whether vesting discretionary jurisdiction in the Supreme Court to hear all federal cases would saiisfy such a requirement.

• Article III's silence on the scope of congressional control over the lower federal courts does not mean there is no guidance on the matter.
• The considerations that underlie the conclusion reached in Part I have jurisdictional implications as well:.
• The federal forums mandated by them must be invested with jurisdiction to hear federal issues.
• Other constitutional provisions and the manner in which they interact with jurisdictional statutes provide further guidance.

A. Congressional Power to Restrict Jurisdiction to Avoid Case Overloads and Promote Efficiency

• It is tempting to conclude that Congress must give the lower courts power to hear all cases within the federal judiciary's constitutionally defined jurisdiction.
• Hart's thesis therefore suggests that Congress cannot destroy an essential role of the national judiciary.
• The availability of a federal lower court forum for each case should be sacrificed only when providing such a forum would seriously undermine the judicial system.
• First, the expense of such a system might make it impracticable.

105. For example, in Lynch v. Household Finance Corp., 405 U.S. 538 (1972), the

• Court noted that suits against federal officials for alleged deprivations of constitutional rights must satisfy the jurisdictional amount requirement.
• Thus lack of jurisdiction with respect to some federal question cases cannot justify limiting federal jurisdiction with respect to particular issues.
• Federal question and diversity cases involving less than $10,000 and lurking federal question cases arguably involve less vital federal interests as classes of cases than do other potential areas for jurisdiction restriction.

B. Congressional Power to Curtail Jurisdiction Because of Sub-

• Stantive Disagreement With Judicial Decisions Finally, President Nixon's busing bills, supra note 13, were designed to "place firm and effective curbs on busing.".
• The foregoing principles apply, of course, to jurisdictional statutes, 124 but because jurisdictional statutes seem to have a less direct substantive impact than other statutes, some preliminary analysis of the effects of jurisdictional statutes is in order.
• 32 Thus exercise by Congress of broad jurisdictional power based on the existence of state courts is not consistent with the Article III role of the national judiciary.

It is not enough to say that state courts might perform well or

• That the Supreme Court might grant certiorari or that the lower federal courts might not be up to the task of protecting federal rights.
• These results may all occur with some frequency.
• The crux of the argument is independent of state court performance.
• The job is given by Article III to the national judiciary.
• The framers undoubtedly realized that in some cases state courts could suffice, but they chose to rely on independent and tenured federal judges for the vindication of federal rights.

A second effect of a statute depriving lower federal courts of jurisdiction in federal cases is related to the fact that the Supreme Court

• Thus, where constitutional rights are rendered nugatory by state courts, 34 the effect of a federal jurisdictional limitation on an individual denied Supreme Court review is strikingly close to a substantive law limitation.
• In affirming the conviction, 5 2 the Supreme Court held that there was no right to injunctive relief under the circumstances because the procedure for protest and review in the Emergency Court of Appeals "affords to those affected a reasonable opportunity to be heard and to present evidence.".

160. The statute was enacted as a rider on an appropriation bill. Act of July 12,

• In cases in which Congress can constitutionally prescribe a rule of decision, no federal right that could be vindicated under a constitutional claim can be excluded from the federal courts by the withdrawal of jurisdiction.
• As the discussion of the Norris-LaGuardia Act showed, the line between "jurisdiction" and "jurisdiction to issue remedies" is unclear.

Full text

Congressional
Authority
to Restrict
Lower
Federal
Court
Jurisdiction
Theodore Eisenbergt
Separation
of
powers
in the
federal
government
inevitably
gen-
erates
conflicts
among
the
branches.
In
recent
years
the
executive
branch's
authority
to
impound
funds
appropriated
by Congress'
and
to
make
war
without
congressional
approval
2
has
been questioned.
In
earlier
days
debate
raged
over
the
Supreme
Court's
authority
to
nullify
legislation
passed
by
Congress.3
A
recurrent
example
of
this
phenomenon
has
been the
struggle
between
Congress
and
the
ju-
diciary
over
the
scope
of
congressional
control
of
federal
court
juris-
diction.
The
recent
controversy
over
school
busing
has
highlighted
this
problem.
The
problem
is,
however,
neither
novel
nor
peculiar
to
the
busing
issue.
In
considering
the first
judiciary
act
Congress
debated
the
scope
of
its
authority
to
regulate
the
jurisdiction
of
the
federal
courts.
4
In
the
last
twenty
years
unpopular
decisions
by
fed-
eral courts,
particularly
the
Supreme
Court,
have
led
to
serious
dis-
cussions of
curtailing
federal
court
jurisdiction.
After
Brown
v.
Board
of
Education
5
there
was
a
movement
to
with-
draw
Supreme
Court
jurisdiction
to
hear
school
desegregation
cases.
0
During
and
after
the
McCarthy
era,
and
perhaps
in
response
to
it,
the
Supreme
Court
conferred
upon
citizens
what
some
felt
to
be
un-
duly
broad protection
from
legislative
investigations.
7
This
prompted
t
A.B.
1969,
Swarthmore
College;
J.D.
1972,
University
of Pennsylvania;
member
of
the Pennsylvania
Bar.
I.
See,
e.g.,
State Highway
Comm'n
v.
Volpe,
41
U.S.L.W.
2539
(8th Cir. Apr.
2,
1973);
Note,
Impoundment
of
Funds,
86
HARV.
L.
REV.
1505
(1973);
Note,
Protecting
the
Fisc:
Executive
Impoundment
and
Congressional
Power,
82
YALE
L.J.
1636
(1973).
2.
See, e.g.,
Holtzman
v.
Schlesinger,
484
F.2d
1307
(2d
Cir.).
rev'g
Holtzman
v.
Richardson,
361
F.
Supp.
553 (E.D.N.Y.
1973);
Lofgren,
War-Making
Under
the
Con-
stitution:
The Original
Understanding,
81
YALE
L.J.
672
(1972).
3.
See,
e.g.,
Marbury
v.
Madison,
5 U.S.
(1
Cranch)
137
(1803).
4.
See
Warren, New
Light
on
the History
of
the
Federal
Judiciary
Act
of
1789,
37
HARV.
L.
REV.
49,
67-70
(1923).
5.
347
U.S. 483
(1954).
6.
H.R.
1228,
85th
Cong.,
1st
Sess.
(1957),
would
have
deprived
federal
courts
of
jurisdiction
to
hear
any
suit
questioning
state
laws
relating
to
public
schools.
See
also
S.
3467,
85th
Cong.,
2d
Sess.
(1958)
(depriving the
Supreme
Court
of
appellate
juris-
diction in
cases
attacking
state
public
school
systems
"on
grounds
other
than
substan-
tial inequality
of
physical
facilities
and
other
tangible
factors").
7.
See
generally
Comment,
Legislative
Inquiry
Into Political
Activity:
First
Amend-
ment
Immunity
From
Committee
Interrogation,
65
YALE
L.J.
1159
(1956).
498

Lower
Federal
Court
Jurisdiction
a
proposal
to
curtail
Supreme
Court
jurisdiction
to
review
cases
in-
volving
contempt
of Congress,
as
well
as
cases
involving
state
and
federal
regulation
of
subversive
activities.
8
After
Reynolds
v.
Sims
9
a
bill
which
passed
the
House
of
Representatives
would
have
with-
drawn
jurisdiction
from the
Supreme
Court
and
the
district
courts
to
hear
cases
in
which
plaintiffs
sought
to
force
reapportionment
of
state
legislatures.
10
From
1953
to
1969
over
60
unsuccessful
bills were
introduced in
Congress
to
curtail
some
aspect
of
federal
jurisdiction."
Today,
because
of
a
number
of
district
court
decisions
ordering
the busing
of
schoolchildren
to overcome
segregation,
12
the
issue
of
congressional
dominion
over
federal
court
jurisdiction
is
again
of
vital
national
importance.'
3
8.
See
S.
2646,
85th
Cong.,
2d
Sess. (1958).
It
was
defeated
in the
Senate.
104
CONG.
REc.
18687
(1958).
9.
377
U.S.
533
(1964).
10.
The
bill,
introduced
by
Representative
Tuck,
read in
part:
The
Supreme
Court
shall
not
have
the
right
to review
the
action of
a
Federal
court
or
a
State
court
of
last
resort concerning
any
action
taken
upon
a
petition
or
complaint
seeking
to
apportion or reapportion
any
legislature of
any
State
of
the
Union
or
any
branch
thereof
....
The
district
courts
shall
not
have
jurisdiction
to
entertain
any
petition or
com-
plaint
seeking
to
apportion or reapportion
the
legislature
of
any
State
of
the
Union
or
any
branch
thereof
.
H.R.
11926,
88th
Cong.,
2d
Sess.
(1964).
The
bill
was
defeated
in the
Senate.
110
CONC.
REC.
22104
(1964).
11.
See
P.
BATOR,
P.
MISHKIN,
D.
SHAPIRO
& H.
WECHSLER,
HART
&
WECHSLER's
THE
FEDERAL
COURTS
AND
THE
FEDERAL
SYSTEM
360
(2d
ed.
1973)
[hereinafter
cited
as
BATOR].
The
focus
on
relatively recent
times
is
not meant
to
suggest
that
the
phenomenon
is
a
new
one.
See
C.
LEONARD,
A
SEARCH
FOR
A
JUDICIAL
PHILOSOPHY:
MR.
JUSTICE
ROBERTS
AND
THE
CONSTITUTIONAL
REVOLUTION OF
1937,
at
1
(1971);
2
C.
WARREN,
THE
SUPREME
COURT
IN
UNITED
STATES
HISTORY
117-18
(1922)
(Senator
Johnson's
proposal
for
Senate
review
of
cases
to
which
a
state
is
a
party);
McKay,
Court,
Congress,
and
Reapportion-
ment,
63
MICH.
L.
REV.
255
(1964).
Another
recent
instance
was
Senator
Dirksen's
bill
to
curtail
federal
court
activity
in
obscenity
cases.
S.
4058,
90th
Cong., 2d
Sess.
(1968).
The
bill
was
discussed
in
Note,
Removal
of
Supreme Court
Appellate
Jurisdiction:
A
Weapon
Against
Obscenity?,
1969
DUKE
L.J.
291.
12.
See,
e.g.,
Swann
v.
Charlotte-Mecklenburg
Bd.
of Educ.,
311
F.
Supp.
265
(W.D.
N.C.
1970),
aff'd,
402
U.S.
1
(1971).
See
generally
Note,
The
Nixon
Busing
Bills
and
Congressional
Power,
81
YALE
L.J.
1542, 1543
n.7
(1972).
13.
See, e.g.,
H.R.
10693,
92d
Cong.,
1st
Sess.
(1971).
Most
proposals
in
response
to
busing
have
been
in
the
form
of
constitutional
amendments. H.J.
Res.
1035,
92d
Cong.,
2d
Sess.
(1972);
S.J.
Res.
165,
92d
Cong.,
1st
Sess.
(1971);
H.J.
Res.
30,
823,
856,
858,
92d
Cong.,
1st
Sess. (1971).
The
busing
bills backed
by
the Nixon
administration
have
attracted
the
most
attention.
H.R.
13915,
13916,
92d
Cong.,
2d
Sess.
(1972).
They are
discussed
in
detail in
Goldberg,
The
Administration's
Anti-Busing
Proposals-Politics
Makes
Bad
Law,
67
Nw.
U.L.
REV.
319
(1972);
Thompson
&
Pollitt,
Congressional
Con-
trol
of
Judicial
Remedies:
President
Nixon's
Proposed
Moratorium
on
"Busing"
Orders,
50 N.C.
L.
REV.
809
(1972);
Note,
Moratorium
on
School
Busing
for
the
Purpose
of
Achieving
Racial
Balance:
A
New
Chapter
in
Congressional
Court-Curbing,
48
NoTRr
DA
ME
LAWYER
208
(1972)
[hereinafter
cited
as
Note,
Moratorium
on
School
Busing];
Note,
supra
note
12.
The
version
of
the
bill
that
passed
the
House
forbids
court-ordered
busing
of
students
bc)oud
the
two
schools closest
to
their
home:
Sec.
403.
(a)
No
court,
department, or
agency
of
the United
States
shall,
pursuant
to
section
402,
order
the
implementation
of
a
plan
that
would
require
the
trans-
portation
of
any
student
to
a
school
other
than
the
school
closest
or
next
closest

The
Yale
Law
Journal
During
the
current
controversy
there
have
been
two
approaches
to
the subject
of Congress'
control
of
federal
jurisdiction.
The
po-
sition taken
most
often
in
contemporary debate
begins
with
the
as-
sumption
that
Congress
has
authority
to
abolish
the
lower
federal
courts.
14
Since
Congress
has
the
power
to
abolish, this
argument
runs,
Congress
must
have
plenary
control
over
inferior
federal
juris-
diction.'5 Others
have
begun
with
the
same
assumption
but
feel
that
a
resolution
of
the
subsequent
questions
is
not
so
easily
achieved.
Must
Congress,
they
ask,
to
satisfy
Article
III,
vest
jurisdiction
in
some
federal
court
to
hear
all
cases
within
the
federal
judicial
power?',
What
are the
limits
on
congressional
control
of
Supreme
Court
juris-
diction?'
7
If
Congress
can
remove
an
entire
class
of
cases
from
the
district
court
level,
can
Congress
also
limit
the
remedies available
to
a
court
once
it
is
given
jurisdiction
to
hear
a
case?'
s
Virtually
all
of
those who have engaged
in
this
contemporary debate,
however,
assume
that
Congress
may
abolish
the
lower
federal
courts.
19
That
such
an
important
assumption should
be
unquestioned
in
the
current furor
over
busing
is
surprising.
Clearly
it
limits
the
range
of
argument
open
to
those
favoring
broad
mandatory
federal
jurisdiction.
If
the
assumption
is
false,
inquiry
should
be
redirected
to
whether
Congress
may
selectively
withdraw
jurisdiction
to
grant
to
his place
of
residence
which
provides
the
appropriate
grade
level
and
type
of
education
for
such
student.
H.R.
13915,
92d
Cong.,
2d
Sess.
(1972)
(as
it
passed
the
House
and
was
introduced
in
the
Senate
on
August
18,
1972).
Although
the
bill
is
not
phrased
in
jurisdictional
terms,
it
would
be
a
triumph
of form
over
substance
to
fail
to analyze
it
in
such
terms.
See
Note,
supra
note
12,
at
1546.
14.
See
Glidden
Co.
v.
Zdanok,
370
U.S.
530,
551 (1962)
(dictum);
]ATOR,
supra
note
11,
at
12;
Currie,
The
Federal
Courts
and
the
American
Law
Institute,
36
U.
Ci.
L.
REV.
1,
2-3
(1968);
Hill,
Constitutional
Remedies,
69
COLUM.
L.
REV.
1109,
1117
(1969);
Note,
Moratorium
on
School
Busing,
supra
note
13,
at
209-10.
15.
Ratner,
Congressional
Power
Over
the
Appellate
Jurisdiction
of
the
Supreme
Court,
109
U.
PA.
L.
REV.
157, 158
(1960).
See
Lockerty
v.
Phillips,
319
U.S.
182,
187
(1943);
Kline
v.
Burke Constr.
Co., 260
U.S.
226, 234
(1922);
United
States
v.
Union
Pacific
R.R.,
98
U.S.
569,
603 (1878);
Sheldon
v.
Sill,
49
U.S.
(8
How.)
441
(1850).
16.
The
earliest
person
to
question
the
majority
position appears
to
have
been
Henry
Wheaton
in
1821.
BATOR,
supra
note
11,
at
314-15
n.2.
It
is
repeated in
Eisen-
stager
v.
Forrestal,
174
F.2d
961,
965-66
(D.C.
Cir.
1949).
Although Wheaton
accepted
the
basic
proposition
he contended
that
Congress
is
compelled
to
grant
the
Supreme
Court appellate jurisdiction
to
review
all
matters
within
the
federal
judicial
power.
17.
See
Freund,
Storm
Over
the
American
Supreme Court,
21
MODERN
L.
REv.
345
(1958);
Levy,
Congressional
Power
Over
the
Appellate
Jurisdiction
of
the
Supreme
Court:
A
Reappraisal,
22
N.Y.U.
INTRA.
L.
REV.
178
(1967);
Merry, Scope
of
the
Supreme
Court's
Appellate
Jurisdiction:
Historic
Basis,
47
MINN.
L.
REv.
53 (1962);
Ratner,
supra
note
15;
Roberts, Now
is
the
Time: Fortifying
the
Supreme
Court's
Independence,
35
A.B.A.J. 1
(1949).
18.
Thompson
&
Pollitt,
supra
note
13,
at
823-27;
Note,
supra
note
12,
at
1546
n.19,
1549.
19.
See
note
14
supra.
Vol.
83:
498,
1974

Lower
Federal
Court
Jurisdiction
a
particular
remedy
from
district
courts
and
to
whether
it
may
with-
draw
a
particular
case
or
class
of
cases
from
those
tribunals.
20
This
article
will
attempt
to
demonstrate
that
the
premise
that
Con-
gress
may
abolish
the
lower
federal
courts
is
false.
Such
courts
may
in
the
beginning
have
been
a
luxury
for
the young
nation.
Today
they
are
almost
as
necessary
as
the
Supreme
Court
in performing
the
functions
given
the federal
judiciary
in
the
Constitution.
"The
life
of
a
nation"'
has
come
to
depend
in
no
small
degree
on
these
bodies
and
their
too
hastily
assumed
mortality
should
be
a
matter
of
general
concern.
If
it
is
true,
as
I
argue,
that
inferior
federal
courts
may
not
be
abolished,
then
resolution
of
the
corollary
ques-
tions
of
whether
Congress
can
selectively
curtail
jurisdiction
or
re-
sort
to
certain
remedies
is
more
difficult.
I.
May
Congress
Abolish
the
Lower
Federal
Courts?
A.
The
Traditionat
View
Article
III
of
the
Constitution
is
the
starting
point
for
analysis
of
this
question:
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,
the
Laws
of
the
United
States,
and
Treaties
made,
or
which
shall
be
made,
under
their
Authority;-to
all
Cases
affecting
Ambassadors,
other
public
Ministers
and
Consuls;-to
all
Cases
of
admiralty
and
mari-
time
Jurisdiction;-to
Controversies
to
which
the
United
States
shall
be
a
Party;-to
Controversies
between
two
or
more
States;-
between
a
State
and
Citizens
of
another
State;-between
Citizens
of
different
States;-between
Citizens
of
the
same
State
claiming
Lands
under
Grants
of
different
States,
and
between
a
State,
or
the
Citizens
thereof,
and
foreign
States,
Citizens
or
Subjects.
The
foregoing
text
is
open
to
several
interpretations
with
regard
to
Congress'
power
over
lower
tribunals.
It
states
that
the
judicial
20.
The
primary
focus
of
this
article
is
on
the
power
of
Congress
to
abolish,
cur-
tail
the
jurisdiction
of,
or
remove
remedies
from,
the
lower
federal
courts.
There
is
a
very
closely
related
question
as
to
the
authority
of
Congress
to
restrict
the
juris-
diction
of
both
the
lower
federal
courts
and
the
Supreme
Court
under
the
jurisdictional
power
and
the
exceptions
clause
of
Article
III.
U.S.
CoNsT.
art.
III,
§
2.
For
a
dis-
cussion
of
the
aspects
of this
question
that
I
will
not
address
see
Blumstein,
The
Supreme
Court's
Jurisdiction-Reform
Proposals,
Discretionary
Review,
and
Writ
Dis-
missals,
26
VAND.
L.
REv.
895
(1973).
21.
A.
BICKEL,
THE
LF-,sr
DANGEROUS
BRANCH
14
(1962)
(writing
about
judicial
review).

The
Yale
Law
Journal
power
shall
be
vested
in
one
Supreme
Court
"and
in
such
inferior
Courts
as
the
Congress
may
from
time
to
time
ordain
and
establish."
The
quoted
phrase
can
be
interpreted
to
mean
that
Congress
may
establish lower
federal
courts
on
a
discretionary
basis.
An
equally
rational
reading
of
Article
III
leads
to
a
contrary
conclusion.
Section
2
gives
the
federal
judiciary
power
to
hear
in
the
first
instance
many
cases
which
are
not
within
the
Supreme
Court's
original
jurisdic-
tion.
22
Thus,
there
is
a
gap
between
the
full
reach
of
federal
ju-
dicial
power
and
that
which
is
conferred
originally
by
the Consti-
tution
on
the
Supreme
Court.
This
gap,
when
read
in
conjunction
with
the "shall"
of
§ 1,
suggests
that
there must
be
inferior
courts
to
exercise
the
residuum
of
federal
jurisdiction
withheld
from
the
Supreme
Court.
This
proposition
is
supported
as
well
by
the
fact
that
§
2
originally
read
"the
jurisdiction
of
the
Supreme
Court"
and
was
changed
to
read
"The
judicial
Power.
' 23
It
thus
seems
clear
that
lower courts
were
intended
to
be
covered.
An
interpretation
of
Article
III
much
like the
second
one
set
forth
above
was
advocated
long
ago.
In
Martin
v.
Hunter's
Lessee
-24
Justice
Story
concluded
from the
phrase
"shall
be
vested"
that the
whole
federal
jurisdictional
power
must
be
vested
in
some
federal
court.
Since
Article
III
gave
federal
courts
jurisdiction
wherever
the
Supreme
Court
lacked
original
jurisdiction,
it
followed
that
congress
[was]
bound
to
create
some
inferior
courts,
in
which
to
vest
all
that
jurisdiction
which,
under
the
constitution,
is
exclusively
vested
in
the
United
States,
and
of
which
the
supreme
court
cannot
take
original
cognizance.
2 5
Justice
Story
later
repeated
this
position
2
and,
in
a
modified
form,
it
has
found
some
support.
2
Justice
Story's
dicta
might
have
carried
the
day
but
for
the
argu-
22.
"In
all
cases
affecting
Ambassadors,
other
public
Ministers
and
Consuls,
and
those
in
which
a
State
shall
be
Party,
the
Supreme
Court
shall
have
original
juris-
diction."
U.S.
CONST.
art. III,
§ 2,
cl.
2.
A
constitutional
challenge
to
a
federal
statute,
for
instance,
would
be
within
the
ambit
of
the
federal
judicial
power
but
not
within
the
Supreme
Court's original
jurisdiction.
23.
Ratner,
supra
note
15,
at
164.
James
Madison
and
Gouvernor
Morris
recom-
mended
this
change
and
it
was
accepted
by
the
entire
Convention
without
any
debate.
MNI.
FARRAND,
RECORDS OF
THE
FEDERAL CONVENTION
OF
1787,
at
425,
431
(1911)
[here-
inafter
cited
as
FARRAND].
24.
14
U.S.
(1
Wheat.)
304,
328-31 (1816)
(dictum).
25.
Id.
at
331
(emphasis
in
original).
This
theory
originated
not
with
Justice
Story
but
with
Gouvernor
Morris.
3
FARRAND,
supra
note
23,
at
391
(App.
A)
(addressing
Congress).
26.
3
J.
STORY,
COMMENTARIES
ON
THE
CONSTITUTION
§§
1590-94,
at
409-12
(1891).
A
discussion
of
the
early
debate
on
this
topic
may
be
found
in Warren,
supra
note
4,
at
68-70.
27.
See
1
M.
CROSSKEY,
POLITICS
AND
THE
CONSTITUTION
IN
THE
HISTORY OF
TIlE
UNITED
STATES
613-16
(1953).
502
Vol.
83:
498,
1974

Frequently asked questions

Q1. What does the Court have to do to promote efficiency?

Congress' broad power over the availability of judicial relief for nonconstitutional claims gives it room to promote efficiency without endangering federal court availability for constitutional rights. 

Q2. What would be the effect of annexing to State Courts jurisdictions which they had?

"To annex to State Courts jurisdictions which they had not before, as of admiralty cases, and, perhaps, of offences against the United States, would be constituting the judges of them, pro tanto, federal judges, and of course they would continue such during good behavior, and on fixed salaries, which in many cases would illy comport with their present tenure of office." 

Q3. What is the evidence that the framers did not confer discretionary review powers upon courts?

64 The framers' failure to confer, or even consider conferring, discretionary review powers upon courts suggests that federal tribunals, including the Supreme Court, were thought capable of providing a forum in all cases within their jurisdiction. 

Q4. What is the meaning of the phrase "no federal interest is lost when jurisdiction is not extended?

No federal interest is lost when jurisdiction is not extended to parties who have, in their exuberance to obtain a federal forum, exceeded the spirit of the Constitution's jurisdictional grant.