Jurisdiction Stripping

Mon Mar 5 19:10:56 PST 2007

Sure it does.  Context affects meaning.  Since, in context, the Court did not need the words in question to mean as much as they possibly could mean in order for the outcome or the logic of its decision to be sustained, we need not assume that it meant those words to be read "for all [they're] worth," as Hart would say.  Moreover, the contortions in Yerger (a contemporary case, as Steve Vladeck notes) and Felker would have made little sense if the "maximal" reading of McCardle were the only possible one.  It's *possible* they meant that, but it's not *necessary.*  

None of this is  new.  The observation that McCardle might not, and need not, mean as much as the maximal reading of some of its words might suggest has been with us for longer than many of this list's participants have been alive.

Trevor W. Morrison
Associate Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
ph. 607.255.9023
fax 607.255.7193
SSRN author page:  http://ssrn.com/author=372569

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Earl Maltz
Sent: Mon 3/5/2007 9:58 PM
To: Vladeck, Steve ; Richard Dougherty
Cc: conlawprof at lists.ucla.edu
Subject: RE: Jurisdiction Stripping

The fact that the Court could have spoken in less sweeping terms does not
change the import of the language that it did use.

At 09:14 PM 3/5/2007 -0500, Vladeck, Steve wrote:
>Respectfully, to paraphrase Hart's Dialectic, Earl is reading McCardle for
>all it's worth.
>
>I think it's hard to say that Chief Justice Chase definitively answered
>the question, especially in light of the Court's decision a little under
>one year later in Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869), as
>discussed in Felker v. Turpin, 518 U.S. 651 (1996), both of which
>emphasized the availability of an original habeas petition in the Supreme
>Court (which would still technically be an exercise of the Court's
>constitutional appellate jurisdiction).  If Yerger and Felker are right,
>then the question of Congress's power to completely repeal the Supreme
>Court's appellate jurisdiction was not properly at issue in McCardle.
>That's not to say that the answer is that Congress's Exceptions Clause
>power is not plenary; just that McCardle doesn't help either way.
>
>As Justice Souter wrote in his concurrence, "if it should later turn out
>that statutory avenues other than certiorari for reviewing a gatekeeping
>determination were closed, the question whether the statute exceeded
>Congress's Exceptions Clause power would be open."
>
>-steve
>
>---
>Stephen I. Vladeck
>Associate Professor
>University of Miami School of Law
>G-385 Law Library
>1311 Miller Drive
>Coral Gables, FL  33146
>(305) 284-5837
>svladeck at law.miami.edu
>
>________________________________
>
>From: conlawprof-bounces at lists.ucla.edu on behalf of Earl Maltz
>Sent: Mon 3/5/2007 8:29 PM
>To: Richard Dougherty
>Cc: conlawprof at lists.ucla.edu
>Subject: Re: Jurisdiction Stripping
>
>
>
>
>  From McCardle:
>
>We are not at liberty to inquire into the motive of [jurisdicition
>stripping legislation].  We can only examine into [Congress's] power under
>the Constitution; and the power to make exceptions to the appellate
>jurisdiction of this court is given by express words..
>
>That sounds pretty definite and absolute to me.
>
>At 05:47 AM 3/5/2007 +0000, Richard Dougherty wrote:
>
> >Earl:
> >
> >Does McCardle settle the matter so clearly?  In relation to Congress's
> >power to subtract jurisdiction when it has established it, it seems to,
> >but it's not so clear that it stands for Congress's power to strip
> >jurisdiction that is constitutionally established.  Is that right?  Is
> >there any case law on the latter issue? (Not that that would settle the
> >matter...)
> >
> >Richard Dougherty
> >
> >-----Original Message-----
> >From: "Earl Maltz" <emaltz at camden.rutgers.edu>
> >Sent 3/4/2007 5:31:37 PM
> >To: RJLipkin at aol.com, CONLAWPROF at lists.ucla.edu
> >Subject: Re: Jurisdiction Stripping
> >
> >I find this question garbled. I think the answer is that Congress can
> >strip the federal courts of appellate jurisdiction over any issue at any
> >time. Ex Parte McCardle. (Those who argue that Klein is to the contrary
> >are simply wrong in my view.)
> >
> >At 05:55 PM 3/4/2007 -0500, RJLipkin at aol.com wrote:
> > > A college junior, unknown to me, from a major eastern university
> > > wrote asking the following set of questions:
> > >
> > > "My questions concerns Article III powers and jurisdiction
> > > stripping. There seems to be a consensus on both sides of the issue that
> > > congress has to abide by general restraints such as the Bill of Rights,
> > > Article I-9 issues, etc. My question is would this also apply to
> > > commerce clause questions? For example, assuming a Remedy at issue in
> > > the Morrison decision and then strip the courts jurisdiction to hear
> > > commerce clause challenges? Also assuming a broad interpretation of
> > > Article III, could the congress generally strip the court's authority
> > > concerning any commerce challenges (except obvious problems such as
> > > using Commerce Clause
> > >authority to prevent certain groups from traveling on interstate highways,
> > >etc.). The lack of Supreme Decisions on this question and vagueness of
> > >the literature has me confused. Any help would be appreciated. Thank you."
> > >
> > > Can anyone suggest an informative, but succinct, response? Thanks.
> > >
> > >Bobby
> > >
> > >Robert Justin Lipkin
> > >Professor of Law
> > >Widener University School of Law
> > >Delaware
> > >
> > >Ratio Juris, Contributor: http://ratiojuris.blogspot.com/
> > >Essentially Contested America, Editor:
> > >http://www.essentiallycontestedamerica.org/
> > >
> > >
> > >
> > >
> > >----------
> > >AOL now offers free email to everyone. Find out more about what's free
> > >from AOL at
> > >AOL.com.
> > >
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