Presidential Commission on the Supreme Court of the United States
is “not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.”[30] In other words, limits exist on Congress’s power to make exceptions, though there is debate about what these limits are.
Congress enacted a small spate of legislation restricting the jurisdiction of the federal courts during the 1930s, primarily to limit the remedies lower federal courts could issue for violations of the law. The Norris–LaGuardia Act of 1932 sharply limited the capacity of “the courts of the United States” to issue injunctions “in a case involving or growing out of a labor dispute.”[31] The Supreme Court upheld that restriction against a constitutional challenge in Lauf v. E.G. Shinner & Co.[32] The Johnson Act of 1934 stripped the federal courts of jurisdiction to enjoin state orders fixing rates for public utilities whenever certain conditions were satisfied, including where “[a] plain, speedy and efficient remedy” for illegality was available in state court.[33] The Tax Injunction Act of 1937 similarly provided that “[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.”[34]
Since at least the 1950s, members of Congress regularly have introduced legislation that would strip the Supreme Court, the lower federal courts, or both, of jurisdiction to resolve particular hotly contested and politically salient constitutional issues.[35] Only one of these proposals, the Military Commissions Act of 2006, has ever been enacted into law (and that statute was subsequently invalidated, as noted below). In the 1950s, Congress gave serious consideration to bills that would have restricted the Supreme Court’s jurisdiction to review challenges to national-security legislation.[36] In the 1970s, a number of proposals sought to limit federal jurisdiction to order busing as a remedy for school segregation.[37] The 1980s witnessed repeated failed proposals to limit federal jurisdiction over challenges to abortion restrictions and school prayer.[38] In 2004, the House of Representatives enacted bills that would have deprived both the lower federal courts and the Supreme Court of jurisdiction over suits challenging the Defense of Marriage Act,[39] as well as over suits against laws requiring students to recite the Pledge of Allegiance in school.[40] But those measures died in the Senate. In more recent years, members of Congress have introduced jurisdiction-stripping legislation involving abortion, religious liberty, and other matters.
In 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) withdrew the Supreme Court’s certiorari jurisdiction to review decisions by the federal courts of appeals denying prisoners convicted by state courts the permission to file second or “successive” petitions for federal writs of habeas corpus.[41] The Court upheld that limitation in Felker v. Turpin.[42] In doing so, however, it emphasized that the AEDPA provision curbing the Court’s
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