Affirmative action, abortion, the Ten Commandments, the Pledge of Allegiance, coddling criminals, protecting terrorists. Pick your poison, and somewhere, someone's arguing that this is all the work of federal judges—a godless, gay-loving, politically correct cabal conspiring to foist the liberal agenda on a pliant people. Say you are dead-set certain that federal judges from the Supreme Court on down have hijacked the Constitution, holding the country hostage. What can you do about it?
The judges seem to have you in a constitutional lock-hold. It's fourth-grade social studies run amok: The Constitution is the supreme law of the land. Whenever an ordinary law passed by Congress or a state legislature conflicts with the Constitution, the Constitution trumps. Federal judges decide what the Constitution means. And judges have lifetime tenure, provided they exhibit good behavior. You could try to impeach the bums, but that takes a two-thirds vote of the Senate, which you'll never get—look at the Bill Clinton fiasco.
What galls you the most, what really sticks a constitutional crick in your craw is that federal judges are themselves the ones who invented this system. They're the ones who came up with the idea that a judge can strike down an act of Congress—a rule that does not appear anywhere in the text of the Constitution.
And then it hits you! A brilliant, blinding insight, piercing the mind like a diamond bullet: a constitutional loophole. A loophole codified in the Constitution itself. Thus, with the singsong tremolo of a preacher reading Scripture, you intonethe words of the "exceptions clause," Article III, Section 2 of the Constitution: "In all 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."
That's the ticket! Maybe the courts control the Constitution, but Congress controls the courts. It gets better: Article III vests the judicial power "in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." So all those lower federal courts are the creatures of Congress. The judges may have tenure, but the courts don't. Congress could eliminate them all!
And so it is that a number of imaginative conservative pundits, afraid the federal courts will oppose the Ten Commandments, impose same-sex marriage, and install a pledge to one nation not-under-God, have begun floating the claim that Congress could and should abolish the jurisdiction of federal courts to hear any such cases and that we should be lobbying our congressmen to do just that. Lower courts owe their existence to Congress, they argue in op-eds across the land, and Congress thus has plenary power to limit the jurisdiction of lower federal courts as it pleases. As to the Supremes, the exceptions clause in Article III clearly instructs that the appellate jurisdiction is subject to such "exceptions" and "regulations" as Congress shall make. In theory you could use these powers to "except" the whole liberal agenda from judicial review.
Will the plan fly? The story starts with a case titled Ex parte McCardle, decided in 1868. The Supreme Court was confronted with an appeal brought by a newspaper editor from Vicksburg, Miss., named McCardle. He had been jailed by the Union Army for his editorials attacking Reconstruction legislation, on grounds that he was disturbing the peace and inciting insurrection. He filed a petition for habeas corpus challenging the legality of his confinement, and his case was ultimately appealed to the Supreme Court, under a federal statute granting the Supreme Court appellate jurisdiction over such cases. While McCardle's case was pending, however, Congress repealed the jurisdictional law McCardle had been using to support his appeal. The question then arose whether the Supreme Court could go forward and rule in McCardle's case anyway or was instead bound to dismiss the appeal for lack of jurisdiction. The Supreme Court dropped the case like a hot rock. Why? Under Article III of the Constitution, the court reasoned, it would normally have the power to hear cases involving questions of federal law, such as McCardle's. When Congress passed the original statute authorizing habeas corpus appeals, Congress was just, in effect, "confirming" this jurisdiction. Yet the court felt that Congress, having given, could taketh away. So, citing the exceptions clause, the court held that once Congress repealed the law on which McCardle's appeal had been based, the court had no choice but to leave him out in the cold.
The McCardle decision, coupled with the text of the exceptions clause, makes the argument for the legitimacy of jurisdiction-stripping seem strong. But it's not so simple. Because while Congress had cut off the specific statutory route that McCardle had used, it had not eliminated all recourse that McCardle or others like him had to the Supreme Court. Alternative routes to the court remained open, and indeed, the same year McCardle was decided, the Supreme Court entertained a habeas petition from a person named Yeager who also challenged his confinement and the legality of Reconstruction legislation. Yeager used a different federal statute than McCardle to support his appeal, and the court accepted it. McCardle thus tells us that Congress may eliminate a specific statutory path to Supreme Court review, but it does not tell us whether Congress could zero-out an entire class of cases. In other words, Congress may apply the squeeze, but perhaps not the full freeze.
It is usually unsound to interpret any one constitutional provision in isolation. The exceptions clause must coexist with many other constitutional guarantees, such as equal protection or free exercise of religion. Congress could not use its power to regulate federal court jurisdiction, for example, to declare that while the courts may hear civil rights cases, they may only hear them when they are brought by white people. Nor could Congress pass a law limiting religious free-exercise challenges to Catholics only. And Congress could not say, for example, that the Supreme Court may take cases involving abortion, but only if it rules pro-life. Beyond rights laid out in the Constitution itself, other limitations on the exceptions-clause power may also exist. Many scholars and jurists have argued that Congress may use the exceptions clause only to enact neutral jurisdiction laws, run-of-the-mill rules of procedure that regulate jurisdiction but do not attempt to control substantive outcomes. True jurisdiction laws are driven by administrative and procedural factors that properly influence policies regarding jurisdiction—issues like the size of a court's caseload or the efficiency of court procedures. When Congress, under the guise of limiting jurisdiction, tries to kick out all Pledge of Allegiance cases, however, the underlying agenda is transparently not about caseloads but results.
In setting up a regime of three co-equal branches of government, creating the classic system of checks and balances, the framers devised a constitutional version of Rock, Paper, Scissors. Each branch has its own unique strengths and its own unique weaknesses. Rock, Paper, Scissors would lose its point if we gave one of the implements a superkibosh power. And the system of checks and balances will lose its balance if one branch gets a supercheck.
The framers did not create a system of direct democracy. They created a republic and divided power. The idea of democracy is not America's great contribution to human history. America's great contribution is the idea of rights. The power of independent judges to "call 'em as they see 'em" is a cornerstone of this system. There is nothing wrong with intense debate over the nature of our constitutional rights. Citizens and members of Congress are of course entitled to rail against the courts when they don't like judicial rulings. But there is something wrong with stealth efforts to overrule the courts, using phony jurisdiction laws to manipulate judicial outcomes. That's poaching. The practice threatens to devolve into a kind of interbranch blackmail: Watch how you rule, or we'll shut you down. In thinking about our constitutional system of checks and balances, it is important to take the long view. Over the long haul of history, our nation has proved stronger and more resilient because of our commitment to taking constitutional principles seriously. Preserving an independent judiciary is an indispensable element of that commitment.