years.[60] While few of these challenges have been brought as original jurisdiction suits, the practice could take on more importance if politically salient jurisdiction-stripping legislation were enacted. The prospect of states filing original actions is significant partly because it is questionable whether Congress can restrict the original jurisdiction of the Supreme Court; the Article III exceptions power does not extend to Supreme Court original jurisdiction. Although the current original jurisdiction statute does not authorize the full extent of jurisdiction that the Article III appears to contemplate, some Justices and commenters have expressed doubts about Congress’s capacity to confine the Court’s original jurisdiction short of its constitutionally specified bounds.[61] In other words, original jurisdiction could potentially be an important loophole in many jurisdiction-stripping proposals.
2. Sources of Limitations on Congress’s Jurisdiction-Stripping Power
For analytical purposes, it is helpful to distinguish two kinds of limitations on Congress’s powers to restrict the jurisdiction of the Supreme Court, the lower federal courts, and state courts. One category includes limitations that are inherent in, or “internal” to, Article III’s grant of jurisdiction-limiting powers to Congress. Another category of limitations arises from constitutional provisions that circumscribe congressional power by creating individual rights. In scholarly literature, such limits are often referred to as “external” limits on congressional power.
a. Limits from Within Article III
It is difficult to identify specific examples of clear and noncontroversial internal limits, because each possible limit is much debated among scholars. That said, it is easy to give general examples that illustrate the idea. In perhaps the best-known example, Professor Henry M. Hart, Jr., argued in a much-celebrated contribution to the federal courts literature that the Constitution’s provision that “the judicial Power of the United States shall be vested in one supreme Court” establishes an implicit limit, internal to Article III, on Congress’s power to make exceptions to the Court’s appellate jurisdiction.[62] Constitutionally authorized restrictions, Hart maintained, cannot go so far as to “destroy the essential role of the Supreme Court in the constitutional plan.” To offer an illustration of this concern, a statute that limited the Court’s appellate jurisdiction to cases presenting issues of statutory interpretation only—and thus excluded all constitutional issues—might be thought to destroy the Court’s essential role and thus overreach Congress’s power under the Exceptions Clause. We note, however, that some scholars and commentators appear unpersuaded by Hart’s argument on this point.[63]
