Art III Power to Control Appellate Review

[Marty Lederman]

Here's the language:

"No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or determine any question pertaining to the interpretation of section 1738c of this title or of this section. Neither the Supreme Court nor any court created by Act of Congress shall have any appellate jurisdiction to hear or determine any question pertaining to the interpretation of section 7 of title 1."

A couple of quick questions:

1.  In order to avoid the serious constitutional question that would be raised by stripping article III courts of all jurisdiction to hear constitutional challenges to DOMA, would the Court construe the phrase "pertaining to the interpretation" narrowly, so as not to preclude constitutional challenges that do not depend on any "interpretation" of DOMA?  Cf.  Johnson v. Robison; INS v. St. Cyr.

2.  The bill would not affect the SCOTUS's original jurisdiction.  Is there any context in which the constitutionality of DOMA could be raised in an original action?  Cf. Felker v. Turpin.


  ----- Original Message ----- 
  From: RJLipkin at aol.com 
  To: CONLAWPROF at lists.ucla.edu 
  Sent: Wednesday, July 21, 2004 4:22 PM
  Subject: Art III Power to Control Appellate Review


          Any reactions to  H.R. 3313 ("Marriage Protection Act") which reportedly strips the federal courts of jurisdiction to review the "full faith and credit" provision of DOMA?


  Bobby


  Robert Justin Lipkin
  Professor of Law
  Widener University School of Law
  Delaware


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