NOTE ON DEVELOPMENTS SINCE THE DIALOGUE

A. Congressional Attempts to Restrict Jurisdiction

(1) In the fifteen years between 1953 and 1968, over sixty bills were introduced in Congress to eliminate the jurisdiction of the federal courts over a variety of specific subjects; none of these became law. Consider the following three notable examples. How would they have fared under the criteria proposed in the Dialogue?

The Jenner bill, S. 2646, 85th Cong., 2d Sess. (1958), was responsive to numerous Supreme Court cases of the mid-fifties invalidating or limiting federal and state programs aimed at alleged subversives.1 It provided that "the Supreme Court shall have no jurisdiction to review, either by appeal, writ of certiorari, or otherwise, any case where there is drawn into question the validity of

"(1) any function or practice of, or the jurisdiction of, any committee or subcommittee of the United States Congress, or any action or proceeding against a witness charged with contempt of Congress;

"(2) any action, function, or practice of, or the jurisdiction of, any officer or agency of the executive branch of the Federal Government in the

1. See, e. g., Watkins v. United States, 354 U.S. 178 (1957); Cole v. Young, 351 U.S. 536 (1956); Pennsylvania v. Nelson, 350 U.S. 497 (1956); Slochower v. Board of Higher Education, 350 U.S. 551 (1956); Konigsberg v. State Bar, 353 U.S. 252 (1957).

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administration of any program established pursuant to an Act of Congress or otherwise for the elimination from service as employees in the executive branch of individuals whose retention may impair the security of the United States Government;

pose

"(3) any statute or executive regulation of any State the general purof which is to control subversive activities within such State;

"(4) any rule, bylaw, or regulation adopted by a school board, board of education, board of trustees, or similar body, concerning subversive activities in its teaching body; and

"(5) any law, rule, or regulation of any State, or of any board of bar examiners, or similar body, or of any action or proceeding taken pursuant to any such law, rule, or regulation pertaining to the admission of persons to the practice of law within such State."

"2

The Jenner bill would have left untouched the jurisdiction of the lower federal courts. In contrast, in 1964, in response to the Supreme Court's decisions invalidating state legislative apportionments, Representative Tuck introduced, and the House of Representatives passed, H.R. 11926, 88th Cong., 2d Sess. (1964), which would have added the following provisions to Title 28:

"§ 1259. 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."

"§ 1331(c). The district courts shall not have jurisdiction to entertain any petition or complaint seeking to apportion or reapportion the legislature of any State of the Union or any branch thereof

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In 1968 the Senate had before it Title II of the "Omnibus Crime Control and Safe Streets" bill, S. 917, 90th Cong., 2d Sess. (1968), which included the following provisions:

"§ 3502 [to be added to Title 18]. Neither the Supreme Court nor any inferior court ordained and established by Congress under article III

2. The Senate Judiciary Committee

reported the bill favorably but in a truncated version, retaining the elimination of the Supreme Court's jurisdiction only in bar admission cases. See S.Rep.No.1586, 85th Cong., 2d Sess. (1958). The bill was killed on the Senate floor, 49-41. Sce 104 Cong. Rec. 18687 (1958). For discussion, see Pritchett, Congress Versus the Supreme Court 1957-1960 (1961); Elliott, Court Curbing Proposals in Congress, 33 Notre Dame Lawyer 597 (1958).

3. The Senate rejected the Tuck bill, sce 110 Cong. Rec. 22104 (1964). Compare the approach espoused by Senator Dirksen in his rider to the Foreign Aid Bill of 1964, H.R. 11380, 88th Cong., 2d Sess. (1964) (Amdt. No. 1191) (for original version see S. 3069, 88th Cong., 2d Sess. (1964)), which would

have ordered the federal courts to "stay" any action questioning the constitutionality of state legislative apportionments "for such period as will be in the public interest", such period to be long enough (in the absence of "highly unusual circumstances") (a) to permit elections to be held under existing apportionments until January 1, 1966, and (b) to allow the state a "reasonable opportunity" to reapportion by statute or constitutional amendment. See 110 Cong. Rec. 1917172 (1964).

The Tuck and Dirksen proposals were among the more than fifty bills introduced in the second session of the 88th Congress designed either to eliminate jurisdiction in or "stay" reapportionment cases. None of these became law. See generally McKay, Court, Congress and Reapportionment, 63 Mich.L.Rev. 255 (1964).

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of the Constitution of the United States shall have jurisdiction to review or to reverse, vacate, modify, or disturb in any way, a ruling of any trial court of any State in any criminal prosecution admitting in evidence as voluntarily made an admission or confession of an accused if such ruling has been affirmed or otherwise upheld by the highest court of the State having appellate jurisdiction of the cause.'

"4

"§ 2256 [to be added to Title 28]. The judgment of a court of a State upon a plea or verdict of guilty in a criminal action shall be conclusive with respect to all questions of law or fact which were determined, or which could have been determined, in that action until such judgment is reversed, vacated, or modified by a court having jurisdiction to review by appeal or certiorari such judgment; and neither the Supreme Court nor any inferior court ordained and established by Congress under article III of the Constitution of the United States shall have jurisdiction to reverse, vacate, or modify any such judgment of a State court except upon appeal from, or writ of certiorari granted to review, a determination made with respect to such judgment upon review thereof by the highest court of that State having jurisdiction to review such judgment."

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(2) Professor Ratner called the Jenner bill "clearly invalid", on the ground that Congress has no power to make exceptions to the appellate jurisdiction of the Supreme Court which would "negate" the Court's "essential constitutional functions of maintaining the uniformity and supremacy of federal law." Ratner, Congressional Power Over the Appellate jurisdiction of the Supreme Court, 109 U.Pa.L.Rev. 157, 201-02 (1960) ("legislation that precludes Supreme Court review in every case involving a particular subject is an unconstitutional encroachment"). Can such a position be reconciled with the constitutional language? Berger, Congress v. The Supreme Court 285–96 (1969), and Merry, Scope of the Supreme Court's Appellate Jurisdiction: Historical Basis, 47 Minn.L.Rev. 53 (1962), argue that the power to make exceptions to the appellate jurisdiction was intended exclusively to deal with the problem of appellate review of findings of fact by a jury. But see Wechsler, The Courts and the Constitution, 65 Colum.L.Rev. 1001, 1005-06 (1965): "There is, to be sure, a school of thought that argues that 'exceptions' has a narrow meaning, not

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including cases that have constitutional dimension; or that the supremacy clause or the due process clause of the fifth amendment would be violated by an alteration of the jurisdiction motivated by hostility to the decisions of the Court. I see no basis for this view and think it antithetical to the plan of the Constitution for the courts-which was quite simply that the Congress would decide from time to time how far the federal judicial institution should be used within the limits of the federal judicial power; or, stated differently, how far judicial jurisdiction should be left to the state courts, bound as they are by the Constitution as 'the supreme Law of the Land any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Federal courts, including the Supreme Court, do not pass on constitutional questions because there is a special function vested in them to enforce the Constitution or police the other agencies of the government. They do so rather for the reason that they must decide a litigated issue that is otherwise within their jurisdiction and in doing so must give effect to the supreme law of the land. That is, at least, what Marbury v. Madison was all about. I have not heard that it has yet been superseded, though I confess I read opinions on occasion that do not exactly make its doctrine clear."

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(3) Could it be argued that it is politically healthy that Professor Ratner's position has never been authoritatively accepted and that the limits of Congressional power have never been completely clarified? Does the existence of a Congressional power of unspecified scope help the maintenance of a desirable tension between Court and Congress? In some circumstances, may not attempts to restrict jurisdiction be an appropriate and important way for the political branches to register disagreement with the Court and to channel and focus such contrary opinions in a way that will come to the Court's attention? And is it not enormously significant in this regard that, ever since McCardle, such "attempts" have, in the main, been just that, that Congress has not significantly cut back the Supreme Court's jurisdiction in a "vindictive" manner despite the enormous unpopularity from time to time of some of its rulings?

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That the Congress' failure to abuse its power to restrict jurisdiction is no mere accident is borne out by the following reminder of “practical objections" to a complete withdrawal of jurisdiction: "To begin with, government cannot be run without the use of courts for the enforcement of coercive sanctions and within large areas it will be thought that federal tribunals are essential to administer federal law. Within that area, the opportunity for litigating constitutional defenses is built in and cannot be foreclosed. The same necessity for federal tribunals will be felt in many situations that do not involve proceedings for enforcement; it has led Congress in recent years to expand remedial jurisdiction by such measures as the Federal Declaratory Judgment Act, the Tucker Act, the Administrative Procedure Act and others I could name. The withdrawal of such jurisdiction would im

7. For some analyses of these tensions,

see Stumpf, Congressional Response to Supreme Court Rulings: The Interaction of Law and Politics, 14 J.Pub. L. 377 (1965); Nagel, Court-Curbing Periods in American History, 18 Vand. L. Rev. 925 (1965); see also Murphy, Congress and the Courts (1962).

8. See Hearings on the Supreme Court Before the Subcomm, on Separation of Powers of the Sen. Comm, on the Judiciary, 90th Cong., 2d Sess. (1968), and especially the remarks of Professor Mishkin at 160-63, 202.

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pinge adversely on so many varied interests that its durability can be assumed. Beyond this, if the jurisdiction of the Supreme Court alone is withdrawn in a given field, as happened in McCardle, issues are left to final resolution in the lower courts, which may, of course, reach contrary_results in different sections of the country. If, in addition, all federal jurisdiction is withdrawn, the resolution is perforce left to the courts of fifty states, with even greater probability of contrariety in their decisions. How long would you expect such inconsistency in the interpretation of the law of the United States to be regarded as a tolerable situation? There is, moreover, still another difficulty. The lower courts or the state courts would still be faced with the decisions of the Supreme Court as precedents-decisions which that Court would now be quite unable to reverse or modify or even to explain. The jurisdictional withdrawal thus might work to freeze the very doctrines that had prompted its enactment, placing an intolerable moral burden on the lower courts.

"These are the reasons why congressional control of jurisdiction has so rarely been exerted as a method of expressing dissidence to constitutional decisions, even when such dissidence has won the sympathy of Congress." Wechsler, supra, at 1006–07.

(4) It has been argued that any notion of plenary power in Congress to control the Supreme Court's appellate jurisdiction is in principle inconsistent with the Framers' intention to have the federal courts exercise the power of judicial review over the constitutionality of federal legislation. Berger, supra, at 285–86, 336–37. Do you agree? Could it not be argued that, politically and psychologically, the legitimacy of judicial review is enormously buttressed by the continuing existence of Congressional power to curtail jurisdiction? That the continuing existence of this power, rather than being a threat to judicial independence, is one of its important (though subtle) bulwarks?

In Glidden Co. v. Zdanok, p. 395 n. 11, infra, Justice Douglas criticized Justice Harlan for citing "with approval" the McCardle case, saying: "There is a serious question whether the McCardle case could command a majority view today." If this is so, should it be so? Even if McCardle is read "for all it might be worth," see Dialogue p. 330, supra, are the essentials of constitutional government in jeopardy?

(5) Notice that the "confession" section of the Crime Control bill was not cast in terms of withdrawing jurisdiction over a whole case; it simply insulated from reversal a state court "ruling" as to admissibility of confessions. Is this distinction significant in a case where the admissibility of the confession is the only federal question in the case? Where there are other federal issues in the case? Is thi an example of a court being "given jurisdiction and at the same time [being] told to exercise it in violation of the Constitution," see Dialogue, p. 341, supra? Compare the occasional practice of the Supreme Court of granting certiorari on a limited basis and deciding only particular issues in the case: does this practice raise the same problems? 9

9.

Sec, e. g., Roth v. United States, 352 U.S. 964 (1957) limiting the grant of certiorari to the constitutionality of the federal obscenity statute; thus, in deciding the case, 354 U.S. 476

(1957), the Court affirmed the conviction without passing on the obscenity of the materials involved. See also Chap. XI, p. 1599, infra.