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Daniel Birk: Congressional Control of Supreme Court Appellate Jurisdiction in Light of British Precedent
Michael Ramsey

Daniel D. Birk (Chicago-Kent College of Law) has posted The Common-Law Exceptions Clause: Congressional Control of Supreme Court Appellate Jurisdiction in Light of British Precedent (Villanova Law Review, Vol. 63, No. 2, 2018) on SSRN.  Here is the abstract: 

Jurists and scholars widely acknowledge that the institutions, practices, and decisions of the British common-law court system at the time of the framing can provide an important guide in interpreting and applying the provisions of Article III of the U.S. Constitution. It is somewhat surprising, then, that students of the federal courts have so rarely turned to the common law in attempting to understand Article III’s most controversial and widely debated question: Whether Congress can use its power to make “exceptions” to the Supreme Court’s appellate jurisdiction to prevent the Supreme Court from deciding cases presenting particular questions of constitutional law.

This Article fills that gap in the Exceptions Clause literature by conducting a detailed examination of pre-1789 British cases and statutes related to parliamentary exceptions to the jurisdiction of the supreme courts of England and Scotland. By ignoring this precedent, participants in the debate over the Exceptions Clause have been missing an important piece of the puzzle. Strikingly, the evidence refutes the conventional view that Congress’s exceptions power is unlimited in scope and confirms textual arguments that a defining attribute of a “supreme” court is its ability to supervise the decisions of courts inferior to it. The evidence shows that, even where Parliament made an exception to the appellate jurisdiction of a supreme court, it was well-understood that the exception would never entirely divest that court of the power to correct major interpretive errors and denials of due process and to ensure that inferior courts remain within the bounds of the law. By resituating the Exceptions Clause within the common-law heritage familiar to the Framers of the Constitution, this Article offers an interpretation of the Clause that makes sense of and respects the constitutional text while assuaging fears that Congress could use its exceptions power to entirely preclude Supreme Court review of the decisions of lower federal and state courts.