Jurisdiction Stripping

The need for Congress to take a more active role.

By and
25

Eleventh Circuit Judge Kevin Newsom takes over the role as professor to teach Sarah and David the implications of jurisdiction stripping and the balance of power between the branches of government. We’ll sum the lesson up as … Congress, do your job.

The Agenda:
—Judges say they won’t hire from Columbia Law School
—Explaining the exceptions clause
—Constraints over jurisdiction stripping by Congress
—Marbury powers
—Congress taking a more active role in constitutional interpretations

Show Notes:
—David for the NYT: The Magic Constitutionalism of Donald Trump
—Felker v. Turpin
—Sheldon v. Sill
—Judge Newsom’s mention of Bruen in the AO episode from June 2022
—Judiciary Act of 1979
—Akhil Amar’s two-tier theory of jurisdictions
—Daniel Epps’ article in Columbia Law Review
—Monday’s AO podcast
—Henry Hart’s dialogue with self in the Harvard Law Review

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Comments (25)
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  1. Philip.R.M.Hunt

    My candidate for stripping jurisdiction from SCOTUS is patent law. The Federal Circuit was created in 1982 because SCOTUS did not like patent cases and congress did not like what SCOTUS was doing with patent law. Scalia said patent cases were his least favorite cases because unlike the justices picked for the Federal Circuit, none of the SCOTUS justices have a technical background or training., so he did not think they were really qualified. The fact patterns in patent law can be highly technical, so it matters. Patent law is itself highly complex.

    SCOTUS could have left the Federal Circuit to be the last word on patent law since there can be no circuit splits, but they haven't and they have created quite a mess. Hopefully Congress will soon pass legislation to overturn Alice vs CLS Bank and when they do, they should strip SCOTUS of patent law jurisdiction.

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    OJFL

    I think I missed something in the discussion that maybe someone can clarify for me. It seemed implied in the class that Congress can strip jurisdiction of the Supreme Court but that it does not affect lower Courts. How exactly is that possible? If a subject is removed from judicial review at the Supreme Court, should it not be automatically removed from review by lower Courts? Do they not rely on jurisprudence and precedent of the Supreme Court?

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    Sarah’s Buckets

    Are not bankruptcy courts basically jurisdiction stripping?

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    Shane

    So, David, my brother lives in Franklin (owns a real estate brokerage). He knows I love the Dispatch and am a Frenchian conservative (Calvinist, lawyer, adoptive father etc.). I get this text yesterday. It’s a picture of “Ghosted” signed by one Nancy French, and here’s what he texted: “David and Nancy French had a book signing event at an art gallery owned by one of my agents and agent brought me this signed copy. I would’ve crashed it, but there was a real guest list and apparently I don’t reach the caliber of Mitt Romney.” LOL

    Y’all do a Franklin event for AO and I’ll drive from Texas to Franklin and bring my brother.

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  5. Zdarkprince

    Sarah and David, it is farcical to ask Israel to prioritize the issues of the Palestinian people living in Gaza over their duty to end hamas as a threat. It would be ludicrous to suggest to Ukraine that they concern themselves w the plight of the Russian people when defending their country. I would think that dealing w the protesters and the institutions supporting them would be the same calculation writ small ( very small!). If we focus on protect all students from their actions and associations, even if peripheral, can we actually change these institutions?

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    Aylene Wright

    Thanks for discussing the conservative judge boycott of Columbia students. I respect Judge Newsom for not wading into the fray and I understand his stated reason for doing so, that related matters might eventually come before him in his capacity as a judge.

    I would like to mention a take by another Friend of the Pod, Orin Kerr:

    https://reason.com/volokh/2024/05/09/do-judges-have-an-important-role-to-play-in-our-society-beyond-judging/

    Quoting Judge Rudofsky, who stated, as you mention, that "Judges have an important role to play in our society beyond the work we do in the courtroom or in chambers. We have a special responsibility to stand up for the rule of law and to stand against mob violence, especially where such violence echoes an age-old evil that once led to the murder of 6,000,000 Jews and millions of other innocents."

    Kerr replies thus:

    "I respectfully disagree. As I see it, judges as judges do not have an important role to play in our society beyond the work they do in the courtroom or in chambers. They shouldn't be stepping up to the plate, and they shouldn't be trying to help American society solve problems like anti-Semitism, in any kind of official capacity."

    He goes on to state:

    "Judges are not overseers of our culture, or specialists in mob violence or how to address it. If, as individuals, judges want to take on a broader role in society, they are free to step down from the bench and pursue it. But I don't think they should take on that role as judges.

    The problem, it seems to me, is that the "special responsibilities" Judge Rudofsky suggests judges have can be hard to distinguish from politics. I don't mean politics in the Republican versus Democrat sense (although it's presumably no coincidence that all of the judges who have publicly joined the boycott are Trump appointees).

    I mean politics in the broader sense of how our society resolves competing claims about justice and fairness. When those claims don't happen to involve a legal claim brought by a party in court, turning that question of politics into a question of law, I think judges acting in their official capacities should sit on the sidelines.

    Of course, if judges want to weigh in on law reform questions, or write law review articles or other legal commentary, that's of course fine. They have the same right to do that as anyone else.

    But it seems to me the boycott framework crosses an important line: It uses judges' official government power to employ law clerks in an effort to influence the world of culture and politics. And I don't think that line should be crossed."

    I haven't seen this framing of the boycott before, that it's a use, perhaps even abuse, of the judge's official government power. And although Kerr himself doesn't use the term, my first thought was, "Well, isn't that pretty much the definition of judicial activism?"

    But, although it would be (too) easy for the progressives reading this to say, "SEE? This just PROVES all the conservative judges claiming to reject judicial activism were LYING!!!!!"

    The Judge interviewed by AO, himself rejected this idea that it's ok for a judge to engage in this kind of political activity. This was quite reassuring.

    I also certainly get the impression there's a certain activist clique among some conservative judges that do find it perfectly acceptable to do this kind of thing, and that Judge Newsom isn't part of it.

    So, there seems to be yet another axis along how to evaluate judges, as more than simply "conservative vs liberal" or "libertarian vs statist" or "institutionalist vs not institutionalist". Whether they hold to an overall model of judicial restraint and "staying in our lane", or if they do see part of their role to Right Great Wrongs. Although a "conservative" judge may be less likely to do so within the judicial process itself, it seems some are happy to do so in an adjacent process such as when they Send A Political Message with which legal schools they pick their law clerks from.

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    1. MathewA

      I'm fine with it. The current state at many elite universities very much calls into question whether they are fulfilling their role to prepare students to turn into future lawyers and judges. They are failing as educational institutions.

      Is it not right for potential employers of those students to call them out and say this is unacceptable?

      We can't allow this educational rot to continue. Otherwise those radical students will go on to become new judges, (as well as senators, congressmen etc. )

      How does our society survive that type of rot in our elite institutions.

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  7. McGoogles

    Re the boycott, I’ve never understood why antisemitism is viewed as a greater level of hate or evil than discrimination against black people or women or LBGTQ people or Islamic people. I’m assuming (perhaps incorrectly) that these are conservative judges who support more racist and misogynistic laws. It all seems so hypocritical to me. Shouldn’t we equally condemn hate and discrimination against any person or class of persons?

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      Aylene Wright

      This really doesn't strike me as a question in good faith, to lead off with a worst case assumption that these judges are racist misogynists, and basically challenge us to prove a negative. I don't recall any of the judges participating in this boycott, claiming that anti-Semitism is a worse kind of prejudice than others. So the first part of the question is based on a strawman position.

      I honestly find this kind of "let's assume these conversative judges are all terrible bigoted lying hypocrites acting in total bad faith, and sit around talking about what horrible people they obviously are" exercise to be frankly boring.

      Same, btw, with people who assume all liberal judges are just arrogant Woke politicians who see themselves as a super legislature, etc.

      I find it much more interesting to assume people can actually disagree in good faith and try to understand how people can arrive at these very different conclusions.

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      1. McGoogles

        Good points. I’d still though, and in all good faith, like to understand why many consider antisemitism worse than other forms of hate and discrimination. I find all forms of hate and discrimination disgusting, but many don’t.

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        1. MathewA

          antisemitism resulted in attempts to eliminate Jews with over 6 million dead during the holocaust and many many more besides.

          Moreover, it's quite a apparent that there is still a sizable number of people that want to try again.

          Even with slavery as bad as that was there was never a concentrated effort to just kill ALL black people.

          One last point, our elite institutions are rightly still concerned about racism. But can't seem to muster the same outrage against antisemitism. That's pretty concerning

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          Aylene Wright

          Again, I just don't see a large groundswell of people claiming that anti-Semitism is "worse" than other forms of hate and discrimination, at least in terms of the overall morality of it.

          Of course, people are talking about it more now, because that's what's making headlines. I don't recall too many people saying in the wake of George Floyd's murder, that anti-semitism was either morally worse or more of a problem than racism. I do recall some people pushing back on the Black Lives Matter slogan with All Lives Matter, though. Interestingly, isn't that what you're doing right now?

          I suppose there's an argument that anti-Semitism has been around for longer, or it's more deep-seated, or that unlike some other forms of discrimination, it's present on both sides of the ideological spectrum, etc. There are actual statistics that at least in the US, there are more religiously motivated hate crimes against Jews, than followers of all other religions combined.

          I get the impression that by referring to "all forms of hate and discrimination" you're suggesting that, say, calling a transgender person by the wrong pronoun is just as bad as openly calling for the genocide of all Jews, and that anyone who doesn't condemn both equally is a hypocrite. In the abstract, I suppose that might be so.

          But I don't see any campus encampments filled with transphobic people gleefully chanting the wrong pronouns at trans students, or filled with racists hanging up nooses to taunt black people, or misogynists holding signs that say they want women to go back to being barefoot and pregnant, etc.

          But I think your perception of hypocrisy is a good argument against judges doing this kind of thing, to make a specific stand on a specific social injustice but not others. It implies that if a group of Jews were to come before these judges to plead a case, they would look more favorably on them, than if they were Muslim. I think Judge Newsom's refusal to discuss the current events because of the possibility he might have to deal with them in his official capacity, is preferable and prudent in a judge.

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          1. McGoogles

            Thank you for your very thoughtful reply. On your transgender question, I don’t agree with your straw man at all. But I would equate religious leaders and others calling for LGBTQ people to be executed as similar to those calling for the genocide of Jews.

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  8. Ebedard

    Genuine question: isn't there a (purely) textual argument that rather than empowering Congress to limit the Supreme Court's appellate jurisdiction, the Exceptions Clause merely empowers it to expand its original jurisdiction?

    The text reads, in relevant part, that in certain cases, "the supreme Court shall have original Jurisdiction. 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."

    On the podcast, everyone seemed to assume that this text obviously favored jurisdiction stripping. But I think that there's also a plausible argument that the Exceptions Clause is merely giving Congress power to set the relevant dividing line between the Court's original jurisdiction and its appellate jurisdiction. In other words, the Constitution sets forth certain types of cases which *must* be in the Court's original jurisdiction and sets a default rule that everything else is in the Court's appellate jurisdiction. But Congress can create "exceptions" to that default rule by giving the Court more original jurisdiction if it wants to. At the end of the day, the Supreme Court is always the one with the final say--the only question is whether they get the *first* say.

    That reading would also seem to better square with the earlier Article III text that the judicial power "shall be vested in *one* Supreme Court, and in such *inferior* courts as the Congress may from time to time establish." If Congress can remove the Court's appellate jurisdiction altogether, then the inferior courts are no longer quite so inferior...

    Now, this may run headlong into all sorts of precedent*, historical context, etc., etc. I'm certainly not a scholar on the Exceptions Clause. But from a purely textual perspective, it seemed to me the podcast too easily jumped to assuming that the text supported jurisdiction stripping.

    *For example, I know that the Court held in Marbury v. Madison that Congress cannot expand the Court's original jurisdiction. But maybe *that's* where Marbury v. Madison was wrong--not judicial review--and Marbury really should have gotten his writ of mandamus...

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    J. Eric

    This podcast was great, as always. Thanks

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    Alexander Spalding

    Non-lawyer hypothetical standing question: (Also need to admit I was not 100% focused; sorry if this was addressed) If Congress were to strip the Supreme Court of jurisdiction on an issue, who would have standing to challenge that so the court could review the question?

    I assume the court would still technically have jurisdiction on the issue of whether or not they had jurisdiction unless that, too, was explicitly excluded. Would the court itself have to bring suit? Is that even possible? Or, would someone who ran out of appeals before Supreme Court review have standing through some due process issue?

    Or is the answer to everything just 🤷‍♂️?

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