Court stripping: unconscionable and unconstitutional?
Court stripping: unconscionable and unconstitutional?
The law, lawyers, and the court.
Feb. 1 2006 2:12 PM

Opening the Door

Court stripping: unconscionable and unconstitutional?

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The court faced a variant of the question during the Civil War, when the issue was not giving more but taking away jurisdiction. Congress tried to stop the Supreme Court in the 1860s from ruling on the constitutionality of the Reconstruction. A newspaper editor, William H. McCardle, who was a vehement objector, challenged his detention by the military command. As the case was pending, Congress plucked it from the court by repealing the legislative basis on which the Supreme Court had taken the case. The court upheld that repeal while noting that other routes to justice were open. A few other odd-lot precedents exist. One 19th-century case refused to permit Congress to overturn the court's interpretation of a presidential pardon relating to loyalty to the Union. Another, after World War II, found that no jurisdiction existed for prisoners of war to bring habeas petitions in the United States. Generally, these and other opinions are fact-specific, focused on the nitty gritty of individual statutes and the facts. Moreover, many are dated, decided before the court had announced a host of individual rights and liberties.

During the second half of the 20th century, as federal courts that had once protected corporations and property came to recognize the rights of African-Americans, women, and criminal defendants, members of Congress would routinely register objections by proposing to take jurisdiction over some set of cases away. While limitations on certain kinds of remedies (injunctions against unions, or against state rate-making) were imposed, most of these bills did not pass. Law professors used proposed bills stripping court jurisdiction over topics ranging from school prayer and busing to abortion as hypotheticals, to practice students on trying to figure out exactly what constitutional powers Congress had over the federal courts.


In the 1990s, however, the hypothetical became real. Congress enacted sharp limits relating to the courts' jurisdiction over immigration. Soon thereafter, a majority of the Supreme Court read the terms of the statute narrowly, concluding that when Congress had not used clear and plain language in the text of a statute cutting off all routes to courts, their doors remained ajar.

The 2005 Detainee Treatment Act now presents the next case: The Supreme Court could lower the stakes for everyone if it continues its pattern of insisting that, if and when Congress wants to raise the breathtaking question of the outer boundaries of its own power to close courthouse doors, Congress has to make that clear in the text of its statutes. The DTA does not explicitly address the Supreme Court's appellate jurisdiction, nor did Congress find in the DTA that rebellion, invasion, and public safety require suspending the writ of habeas corpus. The ambiguities in the DTA itself could thus stave off having to decide definitively a question that Congress, the courts, and the Executive have avoided for over 200 years: by answering the puzzle of exactly how much control Congress has over the judiciary through finding that a door remains ajar.

Judith Resnik is the Arthur Liman professor of law at Yale Law School.