CRS Annotated Constitution
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Appellate Jurisdiction.—In Wiscart v. D’Auchy,1060 the issue was whether the statutory authorization for the Supreme Court to review on writ of error circuit court decisions in “civil actions” gave it power to review admiralty cases.1061 A majority of the Court decided that admiralty cases were “civil actions” and thus reviewable; in the course of decision, it was said that “[i]f Congress had provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it.”1062 Much the same thought was soon to be expressed by Chief Justice Marshall, although he seems to have felt that in the absence of congressional authorization, the Court’s appellate jurisdiction would have been measured by the constitutional grant. “Had the judicial act created the supreme court, without defining or limiting its jurisdiction, it must have been considered as possessing all the jurisdiction which the constitution assigns to it. The legislature would have exercised the power it possessed of creating a supreme court, as ordained by the constitution; and in omitting to exercise the right of excepting from its constitutional powers, would have necessarily left those powers undiminished.
“The appellate powers of this court are not given by the judicial act. They are given by the constitution. But they are limited and regulated by the judicial act, and by such other acts as have been passed on the subject.”1063 Later Justices viewed the matter differently than had Marshall. “By the constitution of the United States,” it was said in one opinion, “the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress.”1064 In order for a case to come within its appellate jurisdiction, the Court has said, “two things must concur: the Con[p.781]stitution must give the capacity to take it, and an act of Congress must supply the requisite authority.” Moreover, “it is for Congress to determine how far, within the limits of the capacity of this court to take, appellate jurisdiction shall be given, and when conferred, it can be exercised only to the extent and in the manner prescribed by law. In these respects it is wholly the creature of legislation.”1065
This congressional power, conferred by the language of Article III, Sec. 2, cl. 2, which provides that all jurisdiction not original is to be appellate, “with such Exceptions, and under such Regulations as the Congress shall make,” has been utilized to forestall a decision which the congressional majority assumed would be adverse to its course of action. In Ex parte McCardle,1066 the Court accepted review on certiorari of a denial of a petition for a writ of habeas corpus by the circuit court; the petition was by a civilian convicted by a military commission of acts obstructing Reconstruction. Anticipating that the Court might void, or at least undermine, congressional reconstruction of the Confederate States, Congress enacted over the President’s veto a provision repealing the act which authorized the appeal McCardle had taken.1067 Although the Court had already heard argument on the merits, it then dismissed for want of jurisdiction.1068 “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.
“What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the[p.782]cause.”1069 Although McCardle grew out of the stresses of Reconstruction, the principle there applied has been similarly affirmed and applied in later cases.1070
Jurisdiction of the Inferior Federal Courts.—The Framers, as we have seen,1071 divided with regard to the necessity of courts inferior to the Supreme Court, simply authorized Congress to create such courts, in which, then, judicial power “shall be vested” and to which nine classes of cases and controversies “shall extend.”1072 While Justice Story deemed it imperative of Congress to create inferior federal courts and, when they had been created, to vest them with all the jurisdiction they were capable of receiving,1073 the First Congress acted upon a wholly different theory. Inferior courts were created, but jurisdiction generally over cases involving the Constitution, laws, and treaties of the United States was not given them, diversity jurisdiction was limited by a minimal jurisdictional[p.783]amount requirement and by a prohibition on creation of diversity through assignments, equity jurisdiction was limited to those cases where a “plain, adequate, and complete remedy” could not be had at law.1074 This care for detail in conferring jurisdiction upon the inferior federal courts bespoke a conviction by Members of Congress that it was within their power to confer or to withhold jurisdiction at their discretion. The cases have generally sustained this view.
Thus, in Turner v. Bank of North America,1075 the issue was the jurisdiction of the federal courts in a suit to recover on a promissory note between two citizens of the same State but in which the note had been assigned to a citizen of a second State so that suit could be brought in federal court under its diversity jurisdiction, a course of action prohibited by Sec. 11 of the Judiciary Act of 1789.1076 Counsel for the bank argued that the grant of judicial power by the Constitution was a direct grant of jurisdiction, provoking from Chief Justice Ellsworth a considered doubt1077 and from Justice Chase a firm rejection. “The notion has frequently been entertained, that the federal courts derive their judicial power immediately from the constitution: but the political truth is, that the disposal of the judicial power (except in a few specified instances) belongs to Congress. If Congress has given the power to this Court, we possess it, not otherwise: and if Congress has not given the power to us, or to any other Court, it still remains at the legislative disposal. Besides, Congress is not bound, and it would, perhaps, be inexpedient, to enlarge the jurisdiction of the federal courts, to every subject, in every form, which the constitution might warrant.”1078 Applying Sec. 11, the Court held that the circuit court had lacked jurisdiction.
Chief Justice Marshall himself soon made similar assertions,1079 and the early decisions of the Court continued to be[p.784]sprinkled with assumptions that the power of Congress to create inferior federal courts necessarily implied “the power to limit jurisdiction of those Courts to particular objects.”1080 In Cary v. Curtis,1081 a statute making final the decision of the Secretary of the Treasury in certain tax disputes was challenged as an unconstitutional deprivation of the judicial power of the courts. The Court decided otherwise. “[T]he judicial power of the United States, although it has its origin in the Constitution, is (except in enumerated instances applicable exclusively to this court), dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating tribunals (inferior to the Supreme Court), for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.”1082 Five years later, the validity of the assignee clause of the Judiciary Act of 17891083 was placed in issue in Sheldon v. Sill,1084 in which diversity of citizenship had been created by assignment of a negotiable instrument. It was argued that inasmuch as the right of a citizen of any State to sue citizens of another flowed directly from Article III, Congress could not restrict that right. Unanimously, the Court rejected these contentions and held that because the Constitution did not create inferior federal courts but rather authorized Congress to create them, Congress was also empowered to define their jurisdiction and to withhold jurisdiction of any of the enumerated cases and controversies in Article III. The case and the principle has been cited and reaffirmed numerous times,1085 and has been quite recently applied.1086
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