About Eugene’s post below, whether a statute can deprive the Supreme Court of jurisdiction is actually not clear. Cribbing from Hart & Wechsler’s The Federal Courts and the Federal System (5th ed. 2003), by Fallon, Meltzer & Shapiro, I find that:
First, there’s Ex parte McCardle, 17 U.S. (7 Wall.) 506 (1869), which basically says that the Constitution allows Congress to limit the Supreme Court’s jurisdiction. And, by the way, even today, the Supreme Court’s jurisdiction is less than the maximum possible jurisdiction consistent with the Constitution. For instance, suppose two people who are citizens of different states sue each other in state court. The Supreme Court to this day doesn’t have jurisdiction to review that case (see 28 U.S.C. 1257(a)), though it does fall within the judicial power as defined in Article III, Section 2 of the Constitution.
But various commentators (see Hart, 66 Harv. L. Rev. 1362 (1953); Ratner, 109 U. Pa. L. Rev. 157 (1960)) argue that there’s an implied condition in the Constitution that Congress can’t negate the Court’s “essential constitutional functions of maintaining the uniformity and supremacy of federal law” — a theory that could deny Congress power to strip the Court of jurisdiction in a particular class of cases like abortion cases, Pledge cases, DOMA cases, and so on.
The Supreme Court has only invalidated a Congressional withdrawal of jurisdiction once, in United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), which is confusing and hard to interpret.
And the Court had occasion to consider the scope of acceptable jurisdiction-stripping just 8 years ago, in Felker v. Turpin, 518 U.S. 651 (1996), a case about the Antiterrorism and Effective Death Penalty Act where Congress limited the Court’s certiorari jurisdiction in certain habeas corpus cases. But, instead, they avoided the question by interpreting the statute as not really withdrawing jurisdiction.
So, the Constitution says Congress can make “exceptions” to the Supreme Court’s jurisdiction, perhaps suggestion that any exceptions are O.K.? The Supreme Court’s last word is either “anything goes” (1869) or “some jurisdiction stripping is unacceptable” (1871), and aside from that, all we’re left with are some reasonable-sounding arguments from academics.
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