COUNTERACTING MARBURY: USING THE EXCEPTIONS CLAUSE TO OVERRULE SUPREME COURT PRECEDENT INTRODUCTION: THE LEGISLATIVE LIMITS OF MARBURY The case provides the foundation for modern constitutional law. It contains arguably the most recognizable quote in the Supreme Court’s history. In Marbury v. Madison,1 Chief Justice Marshall proclaimed, “It is emphatically the province and duty of the judicial department to say what the law is.”2 Such judicial supremacy in constitutional interpretation has since become a hallmark of the American legal tradition.3 And the Supreme Court has consistently and vehemently reaffirmed what Marshall and the rest of Marbury’s unanimous Court deemed “the very essence of judicial duty.”4 No doubt, the fortress Marbury built to cement the Court’s authority to strike down unconstitutional statutes has been repeatedly attacked: from scholarly commen- tary,5 from state officials,6 from the modern administrative state,7 and from Congress itself.8 However, Marbury has sur- vived, and indeed, Marbury has thrived. As the Supreme Court explained in the wake of a state’s refusal to implement one of the Court’s landmark decisions: 1. 5 U.S. (1 Cranch) 137 (1803). 2. Id. at 177. 3. See, e.g., G. Edward White, The Constitutional Journey of Marbury v. Madison, 89 VA. L. REV. 1463, 1467 (2003) (“Marbury v. Madison has been seen as founda- tional to the American constitutional enterprise . .”). 4. 5 U.S. (1 Cranch) at 178. 5. See, e.g., Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346, 1406 (2006). 6. See, e.g., Cooper v. Aaron, 358 U.S. 1, 19–20 (1958) (holding that Arkansas state officials were bound by the Court’s decision in Brown v. Board of Education, 347 U.S. 483 (1954), and thus had to desegregate schools). 7. See City of Arlington v. FCC, 569 U.S. 290, 316 (2013) (Roberts, C.J., dissent- ing) (quoting Marbury’s declaration of the judicial responsibility and adding that “[t]he rise of the modern administrative state has not changed that duty”). 8. In the aftermath of Miranda v. Arizona, 384 U.S. 436 (1966), Congress passed a statute providing for the admissibility of statements made voluntarily, even if the defendant was not first read his or her so-called “Miranda rights.” See Dickerson v. United States, 530 U.S. 428, 432 (2000). The Court deemed this statute unconstitutional. Id. at 437. 280 Harvard Journal of Law & Public Policy [Vol. 43 [T]he Constitution [is] “the fundamental and paramount law of the nation” . [Marbury] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a perma- nent and indispensable feature of our constitutional system.9 Thus, the suggestion that Congress might act on behalf of the federal government as the final arbiter for a law’s constitution- ality is ostensibly at odds with Marbury. The idea of a single body wielding the power both to make the law and to interpret its validity seems to conflict squarely with our contemporary conception of separation of powers.10 Nevertheless, and perhaps surprisingly, the Constitution ex- plicitly permits this type of congressional aggrandizement. An infrequently litigated provision in Article III provides that: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the 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.11 Plainly read, this latter declaration—the so-called “Exceptions Clause”—instills Congress with the unqualified power to re- strict the Court’s appellate jurisdiction. So long as a case does not fall within the few enumerated classes of the Supreme Court’s original jurisdiction,12 a simple majority of Congress (with the President’s approval) could use this provision to le- gitimately strip the Court of its most powerful check on the leg- islature—the ability to declare a law unconstitutional. Given that “hyperpartisanship has led Congress—and the United States—to the brink of institutional collapse,”13 this is un- derstandably disturbing. A targeted invocation of the Exceptions 9. Cooper, 358 U.S. at 18 (quoting Marbury, 5 U.S. (1 Cranch) at 177). 10. Of course, this does not always hold true in the interpretation of statutes or regulations. See, e.g., Auer v. Robbins, 519 U.S. 452, 461 (1997). But that is largely irrelevant to the issue of constitutional interpretation. 11. U.S. CONST. art. III, § 2, cl. 2 (emphasis added). 12. Those being “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” Id. 13. Cynthia R. Farina, Congressional Polarization: Terminal Constitutional Dysfunction?, 115 COLUM. L. REV. 1689, 1691 (2015) (internal quotation marks omitted). No. 1] Counteracting Marbury 281 Clause for pure political gain could be imminent. For example, what is to stop the Republican Party from passing a statute banning abortion and preventing the Court from reviewing the law’s constitutionality?14 On the flip side, could anything pre- vent Democrats from statutorily overruling Citizens United v. FEC15 with a similar judicial review prohibition, in an effort to gain and entrench partisan advantage? Would the first invocation of such a blatantly partisan strategy result in a Constitution whose meaning effectively shifts whenever Congress changes hands? If so, the fundamental judicial role espoused in Marbury may soon be under constitutionally legitimate—although deeply disconcerting—legislative attack. Part I of this Note provides an overview of the sparse historical dialog between Congress and the Supreme Court with respect to the Exceptions Clause. Part II then scrutinizes both the text and original understanding of the provision and argues that the Constitution grants Congress the near-plenary power to curb the Court’s appellate jurisdiction. Finally, although most of this Note seeks to show that Congress could legitimately re- move a statute from the Court’s appellate oversight, Part III will close by arguing why Congress generally should not do so. I. HISTORICAL TREATMENT OF THE EXCEPTIONS CLAUSE A. Congressional Reluctance The motivation for Congress to invoke the Exceptions Clause power is clear and tantalizing. Via a procedural device, the leg- islature can unilaterally rewrite substantive law to comport with majoritarian values, and then shield the act from federal judicial review. In doing so, Congress could bypass the inher- 14. At first glance, given the Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 (1973), this would seem to conflict squarely with the holding in Dickerson v. United States, 530 U.S. 428, 437 (2000) (“Congress may not legislatively supersede [the Supreme Court’s] decisions interpreting and applying the Constitution.”). However, if the court lacked jurisdiction to rule on the constitutionality of the statute superseding the abortion cases in the first place, the Supreme Court would have no constitutional authority to ever render a ruling striking it down. See, e.g., Patchak v. Zinke, 138 S. Ct. 897, 907 (2018) (plurality opinion) (“[A] congressional grant of jurisdiction is a prerequisite to the exercise of judicial power.” (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998))). 15. See 558 U.S. 310, 365 (2010) (holding that, under the First Amendment, Congress cannot restrict corporate political expenditures). 282 Harvard Journal of Law & Public Policy [Vol. 43 ent difficulty of the amendment process, and, in some instanc- es, it could smoothly recalibrate the Constitution with modern ideals.16 Yet historically, Congress has nonetheless proved hesi- tant to flex its Exceptions Clause muscles to strong-arm federal legislation into force. Although textually the power to restrain the judiciary certainly resides with the legislature in some fash- ion, two primary external considerations have provided a de- terring force: constitutional uncertainty and political anxieties. As to the former, Professor Mark Tushnet argues that an emergent “scholarly consensus” supporting the unconstitu- tionality of such measures provides “a political force that keeps Congress from enacting jurisdiction-restricting legislation.”17 This cannot, however, be the sole restraint. For one, there is far from a “consensus” in the scholarly literature; some have gone so far as to proclaim a narrow reading of the Exceptions Clause as “antithetical to the plan of the Constitution for the courts.”18 And although judicial review provides a cornerstone of our modern separation-of-powers framework, one must also keep in mind that Marbury was not a foregone conclusion. Its hold- ing does not inevitably flow from any explicit textual provi- sions, and “nowhere in Marbury did [Chief Justice Marshall] suggest that other branches of government were precluded from interpreting the Constitution for themselves.”19 Indeed, this Note seeks to show that the Exceptions Clause limits Marbury in a significant way. It provides the people with a necessary safe- guard aimed at reconciling the institution of judicial review 16. But cf. THE FEDERALIST NO. 78, at 466 (Alexander Hamilton) (Clinton Rossiter ed., 2003) (“[W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”). 17. Mark V. Tushnet, Legal Realism, Structural Review, and Prophecy, 8 U. DAYTON L. REV. 809, 813 (1983). 18. Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1005 (1965); see also Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN.