Exceptions Clause and Congressional Control over Appellate Jurisdiction

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Article III, Section 2, Clause 2:

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.

Unlike the Supreme Court’s original jurisdiction,1 Article III provides that the Court’s appellate jurisdiction is subject to “Exceptions” and “Regulations” prescribed by Congress.2 Congress and the Court have construed this provision, sometimes called the “Exceptions Clause,” to grant Congress significant control over the Court’s appellate jurisdiction and proceedings. In addition, Congress possesses extensive authority to regulate the jurisdiction of the lower federal courts, and may limit the cases the Supreme Court can hear on appeal by generally stripping the federal courts of jurisdiction over certain cases.

Article III, Section 2, Clause 2 provides that the Supreme Court “shall have” appellate jurisdiction over certain categories of cases and controversies, subject to exceptions and regulations by Congress.3 Several Supreme Court decisions have considered whether the Article III grant of Supreme Court appellate jurisdiction is self-executing—that is, whether it would allow the Court to exercise appellate jurisdiction absent express authorization from Congress. In practice, since the first Judiciary Act of 1789, Congress has enacted legislation that affirmatively grants the Supreme Court appellate jurisdiction over only a subset of covered cases rather than providing (or assuming) that the Court can hear all such cases and carving out discrete exceptions.4 In the 1796 case Wiscart v. D’Auchy, the Court considered whether it could review admiralty cases.5 A majority of the Court held that it had jurisdiction to review admiralty cases because such cases fell within the scope of a statute authorizing review of federal circuit court decisions in “civil actions.” 6 In so holding, the majority noted that that congressional authorization was necessary to create jurisdiction and that, if Congress provided for jurisdiction, the Court must accept it, stating: “If 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.” 7 By contrast, in the 1810 case Durousseau v. United States, Chief Justice John Marshall accepted the validity of legislation limiting the Court’s jurisdiction but suggested that, in the absence of such congressional action, the Court’s appellate jurisdiction would have been measured by the constitutional grant.8 Several cases have taken the view that “the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress.” 9 However, more recent cases indicate support for the notion that the Supreme Court would have appellate jurisdiction over certain cases and controversies absent legislative action.10

Congress has on occasion used its power to regulate Supreme Court jurisdiction to forestall a possible adverse decision from the Court. In Ex parte McCardle, the Court granted certiorari to review the denial of a petition for a writ of habeas corpus from a civilian convicted of acts obstructing Reconstruction.11 Anticipating that the Court might void, or at least undermine, congressional reconstruction of the Confederate States, Congress overrode the President’s veto to enact a provision repealing the statute that authorized the appeal.12 Although the Court had already heard argument in the case, it dismissed the action for want of jurisdiction. The Court stated, “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.” 13 Since its decision in McCardle, the Supreme Court has upheld numerous legislative limits on its jurisdiction.14

Congress also possesses significant power to prevent Supreme Court appellate review by limiting the federal courts’ jurisdiction over certain classes of cases, or even specific cases, a practice sometimes called “jurisdiction stripping.” 15 The Constitution provides for the existence of a Supreme Court, but leaves to Congress the decision whether to establish inferior federal courts.16 That broad grant of discretion has been interpreted also to grant Congress expansive authority to regulate the structure and jurisdiction of the lower federal courts.17 Separation of powers considerations bar Congress from requiring courts to reopen final judicial decisions18 or dictating a certain substantive outcome in pending litigation.19 However, the Court has upheld legislation that deprives the federal courts of jurisdiction over certain matters, including legislation that removed jurisdiction over a specific pending case.20 Jurisdiction stripping statutes may limit the Court’s appellate jurisdiction; by contrast, Congress cannot enact legislation to limit the Supreme Court’s original jurisdiction.21 The Supreme Court’s original jurisdiction is not necessarily exclusive.22 To the extent cases excepted from the Court’s appellate jurisdiction could also fall within the grant of original jurisdiction, parties may still be able to litigate those matters by filing original cases in the Supreme Court.23

While the Supreme Court has upheld some limitations on its jurisdiction, it has a times struck down such limitations or interpreted them narrowly. In United States v. Klein, the court struck down a statute that limited the jurisdiction of the lower federal courts and the Supreme Court.24 With respect to the limit on its appellate jurisdiction, the Supreme Court held that if the law “simply denied the right of appeal in a particular class of cases, there could be no doubt that it must be regarded as an exercise of the power of Congress to make ‘such exceptions from the appellate jurisdiction’ as should seem to it expedient.” 25 However, the Court explained, “the language of the proviso shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end,” requiring the courts to reach a specific outcome in certain cases.26 Such a law, the Court said, “is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power,” and, in enacting the law, “Congress has inadvertently passed the limit which separates the legislative from the judicial power.” 27

In a line of habeas cases stretching back to McCardle, the Supreme Court has read statutes narrowly to avoid finding that Congress has stripped it of all jurisdiction over certain claims.28 In one case when such an interpretation was not available, the Court struck down a limit on its jurisdiction, notwithstanding the grant of power in the Exceptions Clause.29

In addition to regulating the federal courts’ jurisdiction, since the early years of the Republic Congress has enacted legislation regulating court proceedings, for instance by setting the times and places for holding court, even of the Supreme Court, and limiting the courts’ power to issue injunctions.30 One striking example of regulating when the Court sits occurred following the repeal of the Judiciary Act of 1801. Congress enacted legislation changing the Court’s term to forestall a constitutional attack on the repeal, with the result that the Court did not convene for fourteen months.31 Examples of restrictions on injunctions include limitations on injunctions related to taxes32 and the Norris-La Guardia Act, which limits the issuance of injunctions in labor disputes.33

1: For discussion of the Court’s original jurisdiction, see .
2: U.S. Const. art III, § 2, cl. 2.
3: Id.
4: See, e.g., Judiciary Act of 1789, 1 Stat. 80.
5: 3 U.S. (3 Dall.) 321 (1796).
6: Id. at 326.
7: Id. at 327.
8: 10 U.S. (6 Cranch) 307, 313–14 (1810) ( “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. . . . [I]n omitting to exercise the right of excepting from its constitutional powers, [Congress] 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.” ). See also Clarke v. Bazadone, 5 U.S. (1 Cranch) 212, 213 (1803) ( “Congress has made no exception of the present case; and no regulation of congress was necessary to give this court the appellate power. It derives it from the constitution itself.” ); United States v. More, 7 U.S. (3 Cranch) 159, 173 (1805) (averring that the Constitution would be “the only standard by which [the Supreme Court’s] powers could be tested” in the absence of legislation describing the Court’s jurisdiction, “[b]ut as the jurisdiction of the court has been described, it has been regulated by congress” ).
9: Barry v. Mercein, 46 U.S. (5 How.) 103, 119 (1847); see also Daniels v. Railroad Co., 70 U.S. (3 Wall.) 250, 254 (1865); Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799).
10: See Ex parte McCardle, 74 U.S. (7 Wall.) 506, 512–13 (1869) ( “It is quite true . . . that the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred by the Constitution. But it is conferred ‘with such exceptions and under such regulations as Congress shall make.’” ); Felker v. Turpin, 518 U.S. 651, 661 (1996); Hamdan v. Rumsfeld, 548 U.S. 557, 575 (2006).
11: 74 U.S. (7 Wall.) 506 (1869).
12: By the Act of February 5, 1867, § 1, 14 Stat. 386, Congress had authorized appeals to the Supreme Court from circuit court decisions denying a petition for a writ of habeas corpus. Previously, the Court’s jurisdiction to review habeas corpus decisions, based in Section 14 of the Judiciary Act of 1789, 1 Stat. 81, was somewhat unclear. Compare United States v. Hamilton, 3 U.S. (3 Dall.) 17 (1795), and Ex parte Burford, 7 U.S. (3 Cranch) 448 (1806), with Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807). The repealing statute was the Act of March 27, 1868, 15 Stat. 44. The repealed act was reenacted March 3, 1885. 23 Stat. 437.
13: 74 U.S. (7 Wall.) at 513. As discussed further below, in both McCardle and a later case, Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869) the Court indicated that the Judiciary Act of 1789 gave it the authority to review on certiorari a circuit court’s denial of a habeas petition, meaning that the repeal at issue in McCardle did not deprive the Court of all jurisdiction over the matter but simply eliminated one possible statutory grant. See infra note 26.
14: See The Francis Wright, 105 U.S. 381, 385–386 (1882); Luckenbuch S. S. Co. v. United States, 272 U.S. 533, 537 (1926); American Construction Co. v. Jacksonville, T. & K.W. Ry., 148 U.S. 372, 378 (1893); United States v. Bitty, 208 U.S. 393 (1908); United States v. Young, 94 U.S. 258 (1876); Insurance Co. v. Ritchie, 72 U.S. (5 Wall.) 541 (1866); Railroad Co. v. Grant, 98 U.S. 398 (1878); Bruner v. United States, 343 U.S. 112 (1952); District of Columbia v. Eslin, 183 U.S. 62 (1901); Patchak v. Zinke, 138 S. Ct. 897 (2018); see also Walker v. Taylor, 46 U.S. (5 How.) 64 (1847).
15: For additional discussion of jurisdiction stripping, see generally CRS Report R44967, Congress’s Power over Courts: Jurisdiction Stripping and the Rule of Klein, by Joanna R. Lampe, >https://crsreports.congress.gov/product/pdf/R/R44967.
16: U.S. Const. art III, § 1 ( “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” ); U.S. Const. art I, § 8, cl. 9 (allowing Congress “[t]o constitute Tribunals inferior to the supreme Court” ).
17: See, e.g., United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 33 (1812); Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721–722 (1838); Cary v. Curtis, 44 U.S. (3 How.) 236 (1845); Kline v. Burke Constr. Co., 260 U.S. 226, 233–234 (1922); Ladew v. Tennessee Copper Co., 218 U.S. 357, 358 (1910); Venner v. Great Northern R. Co., 209 U.S. 24, 35 (1908); Kentucky v. Powers, 201 U.S. 1, 24 (1906); Stevenson v. Fain, 195 U.S. 165, 167 (1904); Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511, 513–521 (1898); The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 251–252 (1868); South Carolina v. Katzenbach, 383 U.S. 301, 331 (1966); Palmore v. United States, 411 U.S. 389, 400–02 (1973); Swain v. Pressley, 430 U.S. 372 (1977). A minority view, articulated by Justice Story in Martin v. Hunter’s Lessee, argues that the Constitution requires Congress to create inferior federal courts and vest them with all the jurisdiction they are capable of receiving. 14 U.S. (1 Wheat.) 304, 329–336 (1816); see also, e.g., Amar, A Neo-Federalist View of Article III: Separating the Two-Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205 (1985); Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990).
18: Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).
19: United States v. Klein, 80 U.S. 128 (1871); see also Patchak v. Zinke, 138 S. Ct. 897, 905 (2018) (plurality opinion) (Congress cannot usurp the judiciary’s power by saying “in Smith v. Jones, Smith wins.” ).
20: Patchak, 138 S. Ct. 897 (2018); cf. United States v. Sioux Nation of Indians, 448 U.S. 371, 374 (1980).
21: See .
22: See 28 U.S.C. § 1251(b) (outlining categories of cases and controversies over which the Supreme Court has “original but not exclusive jurisdiction” ).
23: For instance, the grant of original jurisdiction includes cases where a state is a party. U.S. Const. art III, § 2, cl. 2.
24: 80 U.S. (13 Wall.) 128 (1872).
25: Id. at 145.
26: Id.
27: Id. at 146, 147.
28: See Ex parte McCardle, 74 U.S. (7 Wall.) 506, 515 (1868) (upholding limitation on appeals in habeas cases but noting that the limit did not apply to original habeas petitions filed in the Supreme Court); Ex parte Yerger, 75 U.S. (8 Wall.) 85, 106 (1869) (confirming that the legislation at issue in McCardle had not affected Supreme Court jurisdiction over original habeas petitions); Felker v. Turpin, 518 U.S. 651 (1996) (avoiding an Exceptions Clause challenge by narrowly construing a limitation on appellate jurisdiction); Hamdan v. Rumsfeld, 548 U.S. 557, 575 (2006) (avoiding constitutional challenges to a jurisdiction stripping statute by construing the statute narrowly, holding that it did not apply to cases pending at the time of its enactment). Several of the habeas cases expressly mention the Exceptions Clause, while others do not, but all concerned limitations on the Court’s jurisdiction. For additional discussion of the habeas corpus cases in the context of the Exceptions Clause, see generally CRS Report R48250, The Exceptions Clause and Congressional Control over Supreme Court Jurisdiction, by Joanna R. Lampe, >https://crsreports.congress.gov/product/pdf/R/R48250.
29: Boumediene v. Bush, 553 U.S. 723 (2008) (holding that a jurisdictional limitation effected an unconstitutional suspension of the writ of habeas corpus). The Court’s opinion in Boumediene rested on the Constitution’s Suspension Clause and did not cite the Exceptions Clause. For additional discussion of the Suspension Clause, see .
30: Supreme Court Justices have, at times, opposed legislation that might regulate the Court or its procedures. See, e.g., John G. Roberts, Jr., 2021 Year-End Report on the Federal Judiciary (2021); Letter from Charles Evans Hughes, C.J., to Burton K. Wheeler, U.S. Sen. (Mar. 21, 1937), reprinted in S. Rep. NO. 75–711, app. c at 40 (1937). In addition, even absent clearly established constitutional limits on Congress’s authority to regulate court proceedings, the legislature has often deferred to the courts, and especially the Supreme Court, to regulate their own procedures. For instance, the Rules Enabling Act, 28 U.S.C. § 2071–2077, authorizes the Supreme Court to make procedural rules for the inferior federal courts, subject to approval by Congress, and further allows the Court to make its own procedural rules without legislative oversight.
31: 1 Charles Warren, The Supreme Court in United States History 222–224 (rev. ed. 1926).
32: Act of March 2, 1867, 10, 14 Stat. 475, as amended, now 26 U.S.C. § 7421 (federal taxes): Act of August 21, 1937, 50 Stat. 738, 28 U.S.C. § 1341 (state taxes). See also Act of May 14, 1934, 48 Stat. 775, 28 U.S.C. § 1342 (state rate-making).
33: 47 Stat. 70 (1932), 29 U.S.C. §§ 101–115. The Court has upheld the Act and applied it liberally through the years. See Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938); New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938); Brotherhood of Railroad Trainmen v. Chicago River & I. R.R., 353 U.S. 30 (1957); Boys Markets v. Retail Clerks Union, 398 U.S. 235 (1970).