Article III, Section 2, Clause 2 — Supreme Court Jurisdiction

ArtIII.S2.C2.1 Overview of Supreme Court Jurisdiction

Article III, Section 2, Clause 2 of the Constitution defines the Supreme Court’s jurisdiction. The clause creates two types of Supreme Court jurisdiction that apply to different categories of cases. First, the clause grants the Court original jurisdiction over “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.”¹ The constitutional grant of original jurisdiction over such cases means that they may be filed directly in the Supreme Court rather than reaching the Court on appeal from another court. The Supreme Court has held that its original jurisdiction flows directly from the Constitution and is therefore self-executing without further action by Congress.²

Article III, Section 2, Clause 2 also provides for Supreme Court appellate jurisdiction over all other cases subject to federal court jurisdiction, “with such Exceptions, and under such Regulations as the Congress shall make.”³ Known as the “Exceptions Clause,” this provision allows the Court to review both decisions of the inferior federal courts and final judgments of state courts, if authorized by Congress.⁴ The Supreme Court has generally indicated that the constitutional grant of appellate jurisdiction is not self-executing—meaning that Congress must enact legislation to empower the Court to hear cases on appeal—and Congress has exercised its power to implement the provision by granting the Supreme Court appellate jurisdiction over a subset of the cases included in the constitutional grant. Congress and the Court have also construed the Exceptions Clause to provide Congress significant control over the Court’s appellate jurisdiction and proceedings.⁵

ArtIII.S2.C2.2 Supreme Court Original Jurisdiction

Article III, Section 2, Clause 2 of the Constitution grants the Supreme Court “original Jurisdiction” over “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.”¹ When the Court has original jurisdiction over a case, it means that a party may commence litigation in the Supreme Court in the first instance rather than reaching the high court on appeal from a state court or an inferior federal court.

From the beginning, the Supreme Court has indicated that its original jurisdiction flows directly from the Constitution and is therefore self-executing without further action by Congress.² In Chisholm v. Georgia, the Court considered an action of assumpsit against the State of Georgia by a citizen of another state.³ Congress in Section 3 of the Judiciary Act of 1789 had granted the Court original jurisdiction in suits between a state and citizens of another state, but had not authorized actions of assumpsit in such cases or prescribed forms of process for the exercise of original jurisdiction.⁴ The Court sustained its jurisdiction and its power to provide forms of process and rules of procedure in the absence of congressional enactments.⁵ In 1861, Chief Justice Roger Taney reviewed applicable precedents and stated that, in all cases where the Constitution grants the Supreme Court original jurisdiction, the Court has authority “to exercise it without further act of Congress to regulate its powers or confer jurisdiction, and that the court may regulate and mould the process it uses in such manner as in its judgment will best promote the purposes of justice.”⁶

Under Supreme Court doctrine and long-standing congressional practice, the Court’s original jurisdiction is not necessarily exclusive. In some cases, Congress has granted the lower federal courts concurrent jurisdiction, meaning that cases subject to original Supreme Court jurisdiction may either be filed directly in the Supreme Court or in one of the lower federal courts. Chief Justice John Marshall appears to have assumed in Marbury v. Madison that the Court had exclusive jurisdiction of cases within its original jurisdiction.⁷ However, beginning with the Judiciary Act of 1789, Congress gave the inferior federal courts concurrent jurisdiction in some such cases.⁸ The federal circuit courts sustained the grant of jurisdiction in early cases,⁹ and the Supreme Court upheld concurrent jurisdiction in the nineteenth century.¹⁰ In another case from the late nineteenth century, the Court relied on the first Congress’s interpretation of Article III in declining original jurisdiction of an action by a state to enforce a judgment for a pecuniary penalty awarded by one of its own courts.¹¹ Noting that Section 13 of the Judiciary Act referred to “controversies of a civil nature,” Justice Horace Gray declared that it “was passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, and is contemporaneous and weighty evidence of its true meaning.”¹²

Although Congress may allow the lower federal courts to hear cases subject to Supreme Court original jurisdiction, the legislature can neither expand nor contract the constitutional grant of original jurisdiction to the Court. Thus, in Marbury, Chief Justice Marshall invalidated a provision of Section 13 of the 1789 Act because he interpreted the statute to give the Court power to issue a writ of mandamus in an original proceeding, which the Constitution did not authorize.¹³ In so holding, the Chief Justice did not defer to the constitutional judgment of the Congress that enacted the 1789 Act.

Although the Supreme Court has held that Congress lacks the power to expand or contract the Court’s original jurisdiction, the Court has assumed significant latitude to interpret the jurisdictional grant itself. In some cases, such as Missouri v. Holland,¹⁴ the Court has adopted a liberal construction of its original jurisdiction, but the more usual view is that “our original jurisdiction should be invoked sparingly.”¹⁵ The Court has thus held that original jurisdiction “is limited and manifestly to be sparingly exercised, and should not be expanded by construction.”¹⁶ The Court has emphasized that its exercise of original jurisdiction is not obligatory but discretionary, to be determined on a case-by-case basis on grounds of practical necessity.¹⁷ The Court has explained that it will exercise original jurisdiction “only in appropriate cases.”¹⁸ It has further stated that “the question of what is appropriate concerns of course the seriousness and dignity of the claim; yet beyond that it necessarily involves the availability of another forum where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had.”¹⁹ Although the Court has exercised its original jurisdiction sparingly, where claims are of sufficient “seriousness and dignity” and resolution by the Judiciary is of substantial concern, the Court will hear them.²⁰ In cases subject to concurrent original and appellate jurisdiction, the Supreme Court has discretion to decline to exercise original jurisdiction and instead require that a case first proceed through the lower federal courts.²¹

ArtIII.S2.C2.3 Original Cases Affecting Ambassadors, Public Ministers, and Consuls

The Supreme Court’s original jurisdiction extends in part to cases affecting ambassadors and consuls. In addition to the general legal considerations relation to original jurisdiction discussed in the preceding essay, the Court has considered several legal questions specific to this grant of jurisdiction.¹ One question is whether the Court possesses original jurisdiction over cases where an ambassador or consul merely possesses an indirect interest in the outcome of the proceeding or whether such a person must be a party in interest. In United States v. Ortega, the Court ruled that a prosecution for violating international law and the laws of the United States by “offering violence” to a foreign minister was not a suit “affecting” the minister but rather a public prosecution for vindication of the law of nations and the laws of the United States.²

Another question is whether the Supreme Court can determine the official status of a person claiming to be an ambassador or consul. The Court has refused to review the decision of the Executive Branch with respect to the public character of a person claiming to be a public minister and has laid down the rule that it has the right to accept a certificate from the Department of State on such a question.³

A third question is whether the grant of original jurisdiction extends to cases affecting ambassadors and consuls accredited by the United States to foreign governments. The Court has answered that question in the negative, holding that the clause applies only to persons accredited to the United States by foreign governments.⁴

In matters of particular delicacy, such as suits under the law of nations against ambassadors and public ministers or their servants, Congress until recently made the original jurisdiction of the Supreme Court exclusive of that of other courts.⁵ By accepting Congress’s distribution of exclusive and concurrent original jurisdiction,⁶ the Court has tacitly sanctioned the legislature’s power to make such jurisdiction exclusive or concurrent as it may choose.

ArtIII.S2.C2.4 Supreme Court Appellate Jurisdiction

Most Supreme Court cases fall within the Court’s appellate jurisdiction rather than its original jurisdiction.¹ Congress has authorized Supreme Court review of decisions of the state courts and lower federal courts through two procedural mechanisms: appeals and petitions for a writ of certiorari.² The Court has discretion to grant or deny review via a petition for a writ of certiorari; by contrast, the Court is required to exercise jurisdiction over cases properly before it on direct appeal. Over time, Congress has limited the types of cases subject to direct appeal to the Supreme Court, rendering more cases subject to discretionary review via certiorari.³ The Court has also issued rulings that limit the scope of direct appellate review and thus reduce the attendant burden on the Court.

For the first century of the Court’s existence, most of its cases were direct appeals. Early decisions of the Supreme Court emphasized the mandatory nature of appellate review. Chief Justice John Marshall first implied that the Court is obligated to take and decide cases meeting jurisdictional standards in Marbury v. Madison.⁴ The Chief Justice explained in greater detail in Cohens v. Virginia:

The Judiciary cannot, as the legislature may, avoid a measure because it approaches

the confines of the constitution. We cannot pass it by because it is doubtful. With

whatever doubts, with whatever difficulties, a case may be attended, we must decide it,

if it be brought before us. We have no more right to decline the exercise of jurisdiction

which is given, than to usurp that which is not given. The one or the other would be

treason to the constitution.⁵

The Supreme Court has repeatedly stated that courts only declare what the law is in specific cases⁶ and are without will or discretion to make or change the law.⁷ The early Court’s statements that it could not decline to hear cases that fell within its jurisdiction rest on similar grounds as other Court holdings that embraced mandatory limitations of the judicial process, such as justiciability requirements that limit the federal courts’ jurisdiction to certain cases and controversies.⁸

The broad grant of appellate jurisdiction in the 1789 Act and the Supreme Court’s determination that the exercise of such jurisdiction was mandatory eventually caused overcrowding on the Supreme Court’s docket. In 1891, among other reforms, Congress enacted legislation replacing mandatory Supreme Court direct review with the option to petition for a writ of certiorari in many types of cases.⁹ In addition, while some modern cases echo Chief Justice Marshall’s earlier rulings discussed above,¹⁰ the Court has also adopted several discretionary rules that limit its exercise of judicial review.¹¹ The Court has applied prudential theorems limiting the scope of its review more or less strictly on a case-by-case basis.¹²

ArtIII.S2.C2.5 Supreme Court Review of State Court Decisions

The Supreme Court’s appellate jurisdiction includes the authority to review decisions of both lower federal courts and state courts.¹ The current statute authorizing Supreme Court review of state court decisions allows the Court to review the judgments of “the highest court of a State in which a decision could be had.”² This is often the state’s court of last resort, but it may be an intermediate appellate court or a trial court, if its judgment is final under state law and cannot be reviewed by any state appellate court.³ The Court has held that it may only review final state court judgments. Such a judgment “must be subject to no further review or correction in any other state tribunal; it must also be final as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein. It must be the final word of a final court.”⁴ The object of this rule is to avoid piecemeal interference with state court proceedings; it promotes harmony by preventing federal intervention until the state court efforts are finally resolved.⁵ For similar reasons, the Court requires that a party seeking to litigate a federal constitutional issue on appeal from a state court judgment must have raised the issue in state court at an appropriate time and with sufficient precision to allow the state court to consider it.⁶

When the judgment of a state court rests on an adequate, independent ground based on state law, the Court will not review any federal question presented, even if the state court decided the federal question incorrectly.⁷ The Court has stated that the reason for this rule is “obvious” and “is found in the partitioning of power between the state and Federal judicial systems and in the limitations of our own jurisdiction.”⁸ The Court further explained, “Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. . . . We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of Federal laws, our review could amount to nothing more than an advisory opinion.”⁹ Thus, when deciding whether to review a state court judgment, the Court faces two interrelated decisions: (1) whether the state court judgment is based upon a nonfederal ground and (2) whether the nonfederal ground is adequate to support the state court judgment. It is the responsibility of the Court to determine for itself the answer to both questions.¹⁰

The first question, whether a state court judgment is based on a nonfederal ground, may arise in several factual situations. A state court may have based its decision on two grounds, one federal and one nonfederal.¹¹ Alternatively, a state court may have based its decision solely on a nonfederal ground, but the federal ground may have been clearly raised.¹² In other cases, both federal and nonfederal grounds may have been raised but the state court judgment is ambiguous or is without a written opinion stating the ground relied on.¹³ Or the state court may have decided the federal question although it could have based its ruling on an adequate, independent nonfederal ground.¹⁴ For the Supreme Court to review a state court decision, it is necessary that it appear from the record that a federal question was presented, that the disposition of that question was necessary to the determination of the case, and that the federal question was actually decided or that the judgment could not have been rendered without deciding it.¹⁵

Several factors affect the answer to the second question, whether the nonfederal ground is adequate to support the decision. In order to preclude Supreme Court review, the nonfederal ground must be broad enough, without reference to the federal question, to sustain the state court judgment;¹⁶ it must be independent of the federal question;¹⁷ and it must be tenable.¹⁸ Rejection of a litigant’s federal claim by the state court on state procedural grounds, such as failure to tender the issue at the appropriate time, will ordinarily preclude Supreme Court review as an adequate independent state ground,¹⁹ so long as the local procedure does not discriminate against raising federal claims and has not been used to stifle a federal claim or to evade vindication of federal rights.²⁰

ArtIII.S2.C2.6 Exceptions Clause and Congressional Control over Appellate Jurisdiction

Unlike the Supreme Court’s original jurisdiction,¹ Article III provides that the Court’s appellate jurisdiction is subject to “Exceptions” and “Regulations” prescribed by Congress.² Congress and the Court have construed this provision, sometimes called the “Exceptions Clause,” to grant Congress significant control over the Court’s appellate jurisdiction and proceedings. In addition, Congress possesses extensive authority to regulate the jurisdiction of the lower federal courts, and may limit the cases the Supreme Court can hear on appeal by generally stripping the federal courts of jurisdiction over certain cases.

Article III, Section 2, Clause 2 provides that the Supreme Court “shall have” appellate jurisdiction over certain matters, subject to regulation by Congress.³ Since Congress first enacted legislation to structure the Federal Judiciary in the Judiciary Act of 1789, the legislature has often exercised this power by granting the Supreme Court appellate jurisdiction over a subset of the cases included in the constitutional grant.⁴ Several decisions of the Court from the 1700s and 1800s considered the extent to which the Court could exercise appellate jurisdiction absent express authorization from Congress. In the 1796 case Wiscart v. D’Auchy, the Court considered whether it could review admiralty cases.⁵ A majority of the Court held that it had jurisdiction to review admiralty cases because such cases fell within the scope of a statute authorizing review of federal circuit court decisions in “civil actions.” In so holding, the majority stated that congressional authorization was necessary to create jurisdiction and that, if Congress provided for jurisdiction, the Court must accept it: “If Congress had provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it.”⁶ By contrast, in the 1810 case Durousseau v. United States, Chief Justice John Marshall accepted the validity of legislation limiting the Court’s jurisdiction but suggested that, in the absence of such congressional action, the Court’s appellate jurisdiction would have been measured by the constitutional grant.⁷ However, later cases have generally taken the view that “the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress.”⁸

Congress has on occasion used its power to regulate Supreme Court jurisdiction to forestall a possible adverse decision from the Court. In Ex parte McCardle, the Court granted certiorari to review the denial of a petition for a writ of habeas corpus from a civilian convicted of acts obstructing Reconstruction.⁹ Anticipating that the Court might void, or at least undermine, congressional reconstruction of the Confederate States, Congress overrode the President’s veto to enact a provision repealing the statute that authorized the appeal.¹⁰ Although the Court had already heard argument in the case, it dismissed the action for want of jurisdiction. The Court stated, “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.”¹¹ Since its decision in McCardle, the Supreme Court has upheld numerous legislative limits on its jurisdiction.¹²

Congress also possesses significant power to prevent Supreme Court appellate review by limiting the federal courts’ jurisdiction over certain classes of cases, or even specific cases, a practice sometimes called “jurisdiction stripping.”¹³ The Constitution provides for the existence of a Supreme Court, but leaves to Congress the decision whether to establish inferior federal courts.¹⁴ That broad grant of discretion has been interpreted also to grant Congress expansive authority to regulate the structure and jurisdiction of the lower federal courts.¹⁵ Separation of powers considerations bar Congress from requiring courts to reopen final judicial decisions¹⁶ or dictating a certain substantive outcome in pending litigation.¹⁷ However, the Court has upheld legislation that deprives the federal courts of jurisdiction over certain matters, including legislation that removed jurisdiction over a specific pending case.¹⁸ Jurisdiction stripping statutes may limit the Court’s appellate jurisdiction; by contrast, Congress cannot enact legislation to limit the Supreme Court’s original jurisdiction.¹⁹

In addition to regulating the federal courts’ jurisdiction, since the early years of the Republic Congress has enacted legislation regulating court proceedings, for instance by setting the times and places for holding court, even of the Supreme Court, and limiting the courts’ power to issue injunctions.²⁰ One striking example of regulating when the Court sits occurred following the repeal of the Judiciary Act of 1801. Congress enacted legislation changing the Court’s term to forestall a constitutional attack on the repeal, with the result that the Court did not convene for fourteen months.²¹ Examples of restrictions on injunctions include limitations on injunctions related to taxes²² and the Norris-La Guardia Act, which limits the issuance of injunctions in labor disputes.²³