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The Extension Clause and the Supreme Court's Jurisdictional Independence Alex Glashausser Washburn University Law School, [email protected]

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The Extension Clause and the Supreme Court's Jurisdictional Independence Alex Glashausser Washburn University Law School, Alex.Glashausser@Washburn.Edu View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Digital Commons @ Boston College Law School Boston College Law Review Volume 53 | Issue 4 Article 3 10-10-2012 The Extension Clause and the Supreme Court's Jurisdictional Independence Alex Glashausser Washburn University Law School, [email protected] Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Constitutional Law Commons Recommended Citation Alex Glashausser, The Extension Clause and the Supreme Court's Jurisdictional Independence, 53 B.C.L. Rev. 1225 (2012), http://lawdigitalcommons.bc.edu/bclr/vol53/iss4/3 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. THE EXTENSION CLAUSE AND THE SUPREME COURT’S JURISDICTIONAL INDEPENDENCE Alex Glashausser* Abstract: This Article challenges the prevailing doctrinal, political, and academic view that the Extension Clause—which provides that “[t]he judi- cial Power shall extend” to nine types of cases and controversies—justifies legislative attempts to strip the U.S. Supreme Court of appellate jurisdic- tion. Legislators have repeatedly introduced bills seeking to prevent the Court from hearing cases on politically charged topics such as marriage, religion, and abortion. Scholars have relied on the Extension Clause to advance three arguments in support of such jurisdiction-stripping: (1) that “judicial Power” is not jurisdiction, and thus jurisdiction is not constitu- tionally protected; (2) that “shall” is not mandatory, and thus the clause need not be obeyed; and (3) that to “extend” a power is not to grant it but merely to define its potential outer reaches, and thus Congress is respon- sible for deciding what to allow the Court to hear. As the Article explains, however, the text, context, and drafting history of the Extension Clause re- veal the fallacy of those conventional justifications. Just as other constitu- tional provisions guarantee the jurisprudential independence of federal judges so that they can do their jobs without fear of reprisal, the Extension Clause prevents Congress from taking certain cases away from the Su- preme Court and thus secures the Court’s jurisdictional independence. Introduction Addressing Parliament in an October 1775 speech that unwittingly galvanized Americans’ resolve, King George III lamented that the re- bels had “assumed to themselves legislative, executive, and judicial * © 2012, Alex Glashausser, Professor of Law, Washburn University School of Law ( J.D. 1995, Duke University School of Law; B.A. 1990, Harvard College). This Article ben- efited from discussions of its ideas in their early stages at the Central States Law Schools Association Conference at Capital University Law School and at their later stages at the Junior Faculty Federal Courts Workshop at Florida International University College of Law. Special thanks go to Rory Bahadur, Robin Effron, Helen Gould, John Greabe, Robert Jones, Lou Mulligan, Jack Preis, Bill Rich, David Rubenstein, Mark Spottswood, Howard Wasserman, and Brian Woods. Particular appreciation “shall extend” to Martin Redish for the “judici[ous] [p]ower” of his comments. 1225 1226 Boston College Law Review [Vol. 53:1225 powers, which they already exercise in the most arbitrary manner.”1 The next July, in his condemnation of British “Tyranny” over the colo- nies, Thomas Jefferson in turn charged that the king had “obstructed the Administration of Justice, by refusing his Assent to Laws for estab- lishing Judiciary Powers.”2 Little could either foresee that after the Revolution was won and “[t]he judicial Power of the United States” constitutionally vested in “one supreme Court,”3 the power would again be unjustly obstructed—this time by the U.S. Congress. In countless bills through the years, including a string of recent ones on hot-button issues, American legislators have refused to assent to the full establish- ment of the U.S. Supreme Court’s appellate jurisdiction.4 A single month in 2011 is illustrative. On March 2, a group of four- teen U.S. representatives introduced the Marriage Protection Act, whose sole operative provision sought to prevent judicial review of the federal statute shielding states from having to recognize same-sex mar- riages: “[T]he Supreme Court shall have no appellate jurisdiction . to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of [the Defense of Marriage Act].”5 Six days later brought the We the People Act, an attempt to bar the Court from adjudicating “any claim involving . the free exercise or estab- 1 David McCullough, 1776, at 11, 67–68 (2005) (noting the impact of Americans’ reading of the speech in print early in 1776). 2 The Declaration of Independence paras. 2, 10 (U.S. 1776). 3 U.S. Const. art. III, § 1. 4 See Tara Leigh Grove, The Structural Safeguards of Federal Jurisdiction, 124 Harv. L. Rev. 869, 872 (2011) [hereinafter Grove, Structural Safeguards] (referring to “[c]ountless bills” in the past century that would have stripped the Supreme Court of jurisdiction in cases about issues “ranging from reapportionment to the use of ‘under God’ in the Pledge of Allegiance”). Tara Grove has exhaustively grouped jurisdiction-stripping attempts by era, id. at 888–916, and analyzed the political and constitutional reasons that most such efforts fail, id. at 916–32 (concluding that “structural safeguards” in Article I were designed to, and have in fact served to, protect the Supreme Court’s power). See also Tara Leigh Grove, The Article II Safeguards of Federal Jurisdiction, 112 Colum. L. Rev. 250, 260–68 (2012) [here- inafter Grove, Article II Safeguards] (explaining incentives for the executive branch to op- pose the legislature’s jurisdiction-stripping proposals). For other historical overviews of jurisdiction-stripping bills, see Dawn M. Chutkow, Jurisdiction Stripping: Litigation, Ideology, and Congressional Control of the Courts, 70 J. Pol. 1053, 1061–63 (2008) (empirically analyz- ing hundreds of enacted bills and concluding that Congress restricts federal jurisdiction for reasons of efficiency rather than ideology); Alex Glashausser, A Return to Form for the Exceptions Clause, 51 B.C. L. Rev. 1383, 1386–87 (2010) (briefly recounting trends); Helen Norton, Reshaping Federal Jurisdiction: Congress’s Latest Challenge to Judicial Review, 41 Wake Forest L. Rev. 1003, 1007–10 (2006) (summarizing bills since the 1820s). 5 H.R. 875, 112th Cong. § 2(a) (2011); see Defense of Marriage Act of 1996, Pub. L. No. 104-199, § 3(a), 110 Stat. 2419 (codified at 1 U.S.C. § 7 (2006) and 28 U.S.C. § 1738C (2006)). 2012] The Extension Clause and the Supreme Court’s Jurisdictional Independence 1227 lishment of religion; . the right of privacy, including . reproduc- tion; or . the right to marry without regard to sex or sexual orienta- tion.”6 A week after that came the Sanctity of Life Act, aiming to stop the Court from reviewing any laws or practices regulating abortion.7 Though most jurisdiction-stripping bills fail,8 their recurring threats are Damoclean, and sometimes one of the bills becomes law. For example, the Detainee Treatment Act of 2005 barred federal courts from exercising “jurisdiction to hear or consider” habeas corpus peti- tions filed by “enemy combatant[s].”9 Three years after its enactment, that statute was struck on the specific ground that it violated the Sus- pension Clause of Article I of the U.S. Constitution (protecting the writ of habeas corpus),10 but the more general issue of congressional con- trol of the Supreme Court’s jurisdiction is timeless.11 Given that the jurisdiction and even existence of inferior courts are constitutionally precarious,12 the stripping of jurisdiction from the Supreme Court could leave state courts as the protectors of federal rights. Thus, even beyond the evident separation-of-powers implications of one branch’s control of another, the issue is also one of federalism. Article III of the Constitution provides that “[t]he judicial Power shall extend” to various types of cases and controversies.13 Despite the 6 H.R. 958, 112th Cong. § 3 (2011). 7 H.R. 1096, 112th Cong. § 3(a) (2011); see Maggie McKinley, Note, Plenary No Longer: How the Fourteenth Amendment “Amended” Congressional Jurisdiction-Stripping Power, 63 Stan. L. Rev. 1213, 1214–16, 1242 (2011) (citing the bill as a prime example of a jurisdiction- stripping attempt that runs afoul of the Fourteenth Amendment). 8 See Grove, Article II Safeguards, supra note 4, at 268–86 (outlining the reasons for the failure of such bills across four distinct political eras); Grove, Structural Safeguards, supra note 4, at 871–83 (sketching the political dynamics that defeat most such bills); cf. James E. Pfander, One Supreme Court: Supremacy, Inferiority, and the Judicial Power of the United States 145 (2009) (contending that as long as the Supreme Court retains broad supervisory authority over inferior courts, particular instances of jurisdiction-stripping pose “little threat”). 9 Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005(e)(1), 119 Stat. 2739, 2742 (codified at 28 U.S.C. § 2241(e)(1) (2006)), invalidated by Boumediene v. Bush, 553 U.S. 723 (2008). 10 Boumediene, 553 U.S. at 732–33; see infra text accompanying notes 73–78 (discussing the context of the Court’s decision). 11 The question of the extent to which Congress may restrict the Court’s jurisdiction has been called “one of the most difficult in the law of the federal courts.” Mark Tushnet, “The King of France with Forty Thousand Men”: Felker v. Turpin and the Supreme Court’s Delib- erative Processes, 1996 Sup.
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