The nature of judicial review - Congressional power to defin...

Learning Outcomes

This article explains how judicial review interacts with Congressional control over federal jurisdiction, including:

• The constitutional source, structure, and purposes of Article III judicial power, with emphasis on the distinction between the Supreme Court’s original and appellate jurisdiction
• How the Exceptions Clause authorizes Congress to make exceptions to, and regulations of, the Supreme Court’s appellate jurisdiction, and the typical statutory mechanisms used to exercise that power
• The difference between permissible “jurisdiction channeling” and impermissible attempts to eliminate all federal judicial review of federal constitutional claims
• Key limits on Congress’s power to restrict jurisdiction, including the rule that original jurisdiction is constitutionally fixed and that Congress cannot use jurisdictional statutes to evade other constitutional guarantees or separation-of-powers principles
• How to analyze statutes that purport to strip jurisdiction on the MBE, including spotting when some federal forum remains open and when none does
• The operation of the adequate and independent state grounds doctrine as a separate limit on Supreme Court review of state-court judgments
• How to read state-court opinions for ambiguity about whether the judgment truly rests on adequate and independent state grounds, and what that ambiguity means for Supreme Court jurisdiction in exam hypotheticals

MBE Syllabus

For the MBE, you are required to understand the nature of judicial review and Congressional power to define and limit federal court jurisdiction, with a focus on the following syllabus points:

• The source and scope of federal judicial power under Article III
• Congressional power to make exceptions to the Supreme Court’s appellate jurisdiction
• The distinction between original and appellate jurisdiction, and which Congress may regulate
• Limits on Congressional efforts to restrict federal jurisdiction, including separation of powers and due process concerns
• The role of adequate and independent state grounds in cutting off Supreme Court review

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is true regarding Congress’s power over the Supreme Court’s appellate jurisdiction?
   1. Congress may eliminate all avenues for Supreme Court review of federal questions.
   2. Congress may make exceptions to the Supreme Court’s appellate jurisdiction, but must leave some federal forum for constitutional claims.
   3. Congress may restrict the Supreme Court’s original jurisdiction.
   4. Congress may not regulate the Supreme Court’s appellate jurisdiction at all.
2. If a state court decision rests on both federal and adequate independent state grounds, the U.S. Supreme Court:
   1. Must review the federal issue.
   2. May review only the state issue.
   3. Lacks jurisdiction to review the case.
   4. May remand for clarification.
3. Congress passes a law removing Supreme Court appellate review of all cases involving a specific federal statute. What is the strongest constitutional argument for the law’s validity?
   1. Congress may regulate both original and appellate jurisdiction of the Supreme Court.
   2. Congress may make exceptions to the Supreme Court’s appellate jurisdiction under Article III.
   3. Congress may abolish all federal courts.
   4. Congress may remove all judicial review of federal statutes.

Introduction

Judicial review—the power of courts to say what the law is and to invalidate unconstitutional government action—sits at the center of U.S. constitutional structure. Article III of the Constitution vests the federal “judicial Power” in one Supreme Court and in such inferior courts as Congress may establish. But Article III does more than simply create courts: it also limits the kinds of “Cases” and “Controversies” federal courts may hear and separates the Supreme Court’s jurisdiction into original and appellate components.

Within that framework, Congress has substantial control over the jurisdiction of the federal courts, especially the Supreme Court’s appellate jurisdiction. This power is not unlimited, however. For MBE purposes you must be able to:

• Identify when Congress may validly restrict Supreme Court appellate jurisdiction under the Exceptions Clause
• Recognize constitutional limits on “jurisdiction stripping,” such as the need to preserve some federal forum for federal questions and to avoid violating other constitutional provisions
• Apply the doctrine of adequate and independent state grounds, which independently limits when the Supreme Court can review state-court judgments

Key Term: Article III Judicial Power
The authority given to federal courts by Article III to decide “Cases” and “Controversies” arising under the Constitution, federal laws, treaties, and other enumerated categories (e.g., cases between states, cases involving ambassadors, and diversity cases).

Key Term: Judicial Review
The power of courts, especially the U.S. Supreme Court, to review legislative and executive actions and to invalidate those that conflict with the Constitution.

Key Term: Exceptions Clause
The sentence in Article III, Section 2 providing that in all cases within the Supreme Court’s appellate jurisdiction, the Court acts “with such Exceptions, and under such Regulations as the Congress shall make.”

Key Term: Adequate and Independent State Grounds
A doctrine that bars Supreme Court review of a state-court judgment when the judgment is supported by a state-law ground that is both “adequate” to sustain the result and “independent” of federal law.

Congressional Power to Define and Limit Federal Jurisdiction

Article III and the Structure of Federal Judicial Power

Article III, Section 1, creates one Supreme Court and authorizes Congress to establish lower federal courts. Importantly, lower federal courts are not constitutionally required; they exist only because Congress has created them by statute and defined their jurisdiction (for example, through jurisdictional statutes in Title 28 of the U.S. Code).

Article III, Section 2, defines the outer limits of federal judicial power by listing the categories of cases federal courts may hear. This includes:

• Cases arising under the Constitution, laws, or treaties of the United States (federal-question jurisdiction)
• Cases affecting ambassadors and other public ministers
• Cases of admiralty and maritime jurisdiction
• Controversies to which the United States is a party
• Controversies between two or more states, or between a state and citizens of another state (subject to later amendments and doctrines like state sovereign immunity)

Within those Article III categories, Congress decides:

• Whether to create lower federal courts at all
• Which categories of Article III cases each lower federal court may hear
• The specific routes by which cases may reach the Supreme Court on appeal

Article III then distinguishes between the Supreme Court’s original and appellate jurisdiction.

Key Term: Original Jurisdiction
The authority of a court to hear a case in the first instance, rather than on appeal from another court.

Key Term: Appellate Jurisdiction
The authority of a court to review, affirm, reverse, or modify decisions of lower courts.

Under Article III:

• The Supreme Court has original jurisdiction in a narrow set of cases: those affecting ambassadors and other public ministers and consuls, and those in which a state is a party.
• In all other cases within the federal judicial power, the Supreme Court has appellate jurisdiction, “with such Exceptions, and under such Regulations as the Congress shall make.”

For the MBE, two points follow:

• The categories of cases in Article III, Section 2 set the outer constitutional limit on federal jurisdiction. Congress cannot authorize federal courts to hear cases beyond those categories.
• Within those categories, the Supreme Court’s original jurisdiction is fixed by the Constitution; Congress cannot expand or contract it by statute.

The Exceptions Clause: Congressional Control over Appellate Jurisdiction

The key textual source of Congressional power over Supreme Court review is the Exceptions Clause:

“In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

This clause gives Congress substantial power to:

• Decide which lower-court decisions are reviewable by the Supreme Court
• Specify procedures and routes of review (e.g., direct appeals versus discretionary certiorari)
• Withdraw the Court’s appellate jurisdiction over certain types of cases or issues

Historically, Congress has used this power repeatedly. It has:

• Created and abolished particular routes of appeal
• Limited direct appeals in certain categories of cases
• Adjusted the Court’s mandatory docket, leaving most cases to discretionary review via certiorari

In one famous example (Ex parte McCardle), Congress repealed the statute that gave the Supreme Court jurisdiction to hear certain habeas appeals while such an appeal was pending. The Court dismissed for lack of jurisdiction, recognizing that Congress had validly exercised its Exceptions Clause power.

In MBE fact patterns, this means:

• A statute removing Supreme Court appellate review in a particular class of cases is generally valid, so long as it stays within Article III categories and does not violate other constitutional provisions.
• Congress may channel review by altering which lower courts hear particular controversies and which of those decisions the Supreme Court may review.

Limits on Congressional Power to Restrict Jurisdiction

Although the Exceptions Clause is broad, Congress’s power to limit federal jurisdiction is not absolute. Several important constraints appear on the exam:

1. Congress cannot change Supreme Court original jurisdiction

The Supreme Court’s original jurisdiction is set in the constitutional text. Congress:

• May not expand original jurisdiction by statute (e.g., cannot give the Court original jurisdiction over all federal-question cases).
• May not contract original jurisdiction by statute (e.g., cannot bar the Court from hearing suits between states).

Any statute purporting to alter original jurisdiction is unconstitutional, as established in early cases defining the Court’s role.

Exam Warning

The Supreme Court’s original jurisdiction is determined by the Constitution itself. On the MBE, any answer suggesting that Congress can expand or restrict original jurisdiction by ordinary legislation is incorrect.

1. Congress may not eliminate all federal judicial review of federal questions

Because Article III allocates “judicial Power” over cases arising under federal law to the federal judiciary, and because constitutional rights must ultimately be enforced somewhere, most modern analysis assumes:

• Congress may reallocate federal question jurisdiction between the Supreme Court and lower federal courts, or between federal and state courts.
• But Congress may not simultaneously strip all federal courts of jurisdiction over a federal constitutional claim, leaving no federal forum at all to enforce federal rights.

Thus, for MBE purposes:

• A statute that removes Supreme Court appellate review of a certain constitutional issue could be valid if lower federal courts retain jurisdiction to decide that issue.
• A statute that also strips lower federal courts of jurisdiction so that no federal court can hear the federal claim will likely be unconstitutional.

1. Congress cannot use jurisdiction stripping to violate other constitutional provisions

Congress cannot avoid constitutional limits simply by framing a restriction as a jurisdictional rule. Examples:

• Congress cannot use a “jurisdiction” statute to direct courts to decide cases under an unconstitutional standard or to dictate the outcome of specific cases in a way that invades the judicial function.
• Congress cannot, through jurisdictional rules, undermine other constitutional powers (e.g., the President’s pardon power) or deny due process or equal protection to disfavored litigants.

On the exam, if a statute:

• Removes jurisdiction and
• Simultaneously dictates how courts must treat particular parties or types of claims in a way that contradicts another constitutional provision

then the better answer is that the statute is unconstitutional for violating separation of powers or another explicit constitutional protection, even if Congress has broad power over jurisdiction.

1. Congress cannot force state courts to ignore federal law

Congress may give federal courts exclusive jurisdiction over certain federal claims, but:

• It cannot prohibit state courts from hearing federal claims where state courts otherwise have jurisdiction over similar types of cases.
• Nor can Congress compel state courts to decide cases in a way that contradicts valid federal law; the Supremacy Clause requires state courts to follow controlling federal law in cases properly before them.

These limits operate alongside Congress’s broad power to structure federal jurisdiction.

Adequate and Independent State Grounds

Even where Congress has authorized Supreme Court review, Article III restricts that review to “Cases” arising under federal law. The adequate and independent state grounds doctrine implements that limit.

If the highest state court’s judgment rests on:

• A state-law ground that is adequate to support the judgment (i.e., it fully disposes of the case), and
• That state-law ground is independent of federal law (i.e., it does not depend on how the federal issue is resolved),

then the U.S. Supreme Court lacks jurisdiction to review the case—even if federal issues were also litigated.

• Adequate means that the state ground, by itself, requires the result. For example, a state procedural rule (such as a timely-filing requirement) that bars the claim regardless of its federal merits is adequate.
• Independent means that the state court’s interpretation of state law does not turn on, or incorporate, federal law. If the state court explicitly says its decision would be the same under state law even if federal law meant something different, that supports independence.

This doctrine prevents the Supreme Court from issuing advisory opinions on federal issues that cannot change the outcome of the state judgment.

If the state court opinion is ambiguous—unclear whether it rests on state or federal grounds—the Supreme Court may:

• Accept review and resolve the federal issue, or
• Remand to the state court to clarify the basis of its decision.

Revision Tip

When you see a state supreme court judgment supported by both federal and state grounds, ask: (1) Would the state-law ground, by itself, require the same result? (2) Is that state law interpretation independent of federal law? If yes to both, the Supreme Court has no jurisdiction.

Worked Example 1.1

Congress passes a statute stating that the Supreme Court may not hear appeals “from any state or federal court” involving a particular federal statute regulating campaign finance. The statute leaves in place jurisdiction of federal district courts and courts of appeals over cases involving that statute. A party loses on a constitutional challenge to the statute in a federal court of appeals and seeks certiorari in the Supreme Court.

Answer:
Under the Exceptions Clause, Congress may make exceptions to the Supreme Court’s appellate jurisdiction. Because lower federal courts retain authority to decide the federal constitutional claim, and because the statute only withdraws Supreme Court appellate review in that category of cases, the restriction is likely valid. The Court must dismiss the appeal for lack of jurisdiction.

Worked Example 1.2

A state supreme court upholds a criminal conviction, explicitly relying on both (1) a federal constitutional ruling that the defendant’s confession was voluntary, and (2) a state procedural rule that the defendant forfeited any challenge by failing to object at trial. The defendant petitions the U.S. Supreme Court to review the voluntariness of his confession under the federal Constitution.

Answer:
The Supreme Court lacks jurisdiction. The state procedural rule is an adequate and independent state ground: it fully supports the judgment regardless of the federal issue and does not depend on federal law. Even if the Supreme Court held that the confession was obtained in violation of the federal Constitution, the conviction would stand on the state forfeiture rule. Therefore the Court cannot review the case.

Worked Example 1.3

Congress enacts a statute providing that, “No federal court shall have jurisdiction over any claim that a federal statute violates the First Amendment,” and simultaneously repeals all statutes granting jurisdiction over such claims. A plaintiff files a First Amendment challenge to a federal statute in federal district court; the court dismisses for lack of jurisdiction under the new law.

Answer:
This statute likely exceeds Congress’s power. While Congress may adjust the distribution of jurisdiction among federal courts, it may not eliminate all federal judicial review of a core constitutional claim. By closing every federal forum to First Amendment challenges to federal statutes, Congress effectively disables the Article III “judicial Power” over an entire category of federal-question cases. On the MBE, the best answer is that the statute is unconstitutional because some federal court must remain available to adjudicate federal constitutional claims.

Worked Example 1.4

The highest court of State X rules that a state statute restricting certain campaign leaflets is valid. The court states: “We uphold the statute under the free-speech provision of our state constitution, which we interpret to provide the same protections as the First Amendment. We therefore also reject the federal First Amendment challenge.” The losing party petitions the U.S. Supreme Court.

Answer:
The opinion is ambiguous about independence. The state court ties its state constitutional interpretation to the federal First Amendment (“the same protections as the First Amendment”). That suggests the state-law ground may not be independent of federal law, so the adequate-and-independent-state-grounds doctrine may not bar review. The Supreme Court could accept the case and decide the federal question, or remand for clarification of whether the state ground is truly independent.

Exam Warning

Be careful to distinguish (1) Congress’s power to limit appellate jurisdiction of the Supreme Court (which is broad but bounded), from (2) Congress’s inability to alter the Supreme Court’s original jurisdiction or to eliminate all federal forums for federal constitutional claims.

Revision Tip

When analyzing a jurisdiction-stripping question, proceed in this order:

• Identify whether the case falls within the Article III categories of federal judicial power.
• Ask whether Congress is altering original jurisdiction (not allowed) or appellate jurisdiction (potentially allowed).
• Determine whether any federal court remains available to hear the federal claim.
• Check whether the jurisdictional statute violates other constitutional provisions (e.g., due process, separation of powers, or the Supremacy Clause).

Key Point Checklist

This article has covered the following key knowledge points:

• Article III sets the outer limits of federal judicial power and divides the Supreme Court’s jurisdiction into fixed original jurisdiction and adjustable appellate jurisdiction.
• Congress has broad power under the Exceptions Clause to make exceptions to and regulations of the Supreme Court’s appellate jurisdiction.
• Congress cannot expand or contract the Supreme Court’s original jurisdiction; that portion of jurisdiction is constitutionally fixed.
• While Congress may limit Supreme Court appellate review, it may not eliminate all federal judicial review of federal constitutional claims; some federal forum must remain.
• Jurisdiction-stripping statutes must also respect other constitutional provisions, including due process, separation of powers, and the Supremacy Clause.
• The adequate and independent state grounds doctrine prevents the Supreme Court from reviewing state-court judgments that rest on state-law grounds sufficient to support the judgment and independent of federal law.
• When state and federal grounds both support a state judgment, Supreme Court jurisdiction turns on whether the state law ground is both adequate and independent.

Key Terms and Concepts

• Article III Judicial Power
• Judicial Review
• Exceptions Clause
• Adequate and Independent State Grounds
• Original Jurisdiction
• Appellate Jurisdiction