violated. Hart’s concern about the nullification of rights appears to have involved systemic effects, such as those of imagined legislation that would make it impossible for anyone ever to judicially vindicate a particular constitutional right at all. But Hart again did not attempt line drawing of his own and ultimately equivocated even with regard to the question of whether and when a total deprivation of jurisdiction and remedies to enforce a right might violate the Constitution. “The multiplicity of remedies, and the fact that Congress has seldom if ever tried to take them all away, has prevented the issue from ever being squarely presented,” he wrote.[70]
3. The Constitutionality of Particular Jurisdiction-Curbing Proposals
It would be infeasible to attempt to apply the principles delineated above—many of which, as we acknowledged, are disputed anyway—to all of the specific types of jurisdiction-curbing legislation that Congress might enact. Instead, we analyze some of the general issues that would arise from jurisdiction-curbing legislation within each of the three categories that we distinguished at the outset of Section I.B. First, we consider proposals that would restrict the appellate jurisdiction of the Supreme Court alone, while leaving lower court jurisdiction intact. Second, we consider proposals that would withdraw jurisdiction from all federal courts, while leaving state court jurisdiction intact. Finally, we consider proposals that would withdraw jurisdiction from all federal and state courts, including the Supreme Court, to rule on the constitutionality of federal (and possibly also state) legislation.
a. Restricting the Jurisdiction of Only the Supreme Court
If Congress were to withdraw the appellate jurisdiction of the Supreme Court over a class of cases—such as those challenging the constitutionality of a wealth tax or of prohibitions against abortion—while allowing such challenges to be litigated in other courts, including federal district courts and courts of appeals, challengers would likely argue that the restriction overstepped congressional power under the Exceptions Clause by precluding the Court from performing a function essential to its status as the nation’s “one supreme Court.” The argument would be that the Court is deprived of an aspect of its “supreme” status when it is denied the opportunity to pronounce authoritatively on a justiciable issue with respect to which the decisions of lower courts may diverge and might even (from the Court’s perspective) err egregiously.[71] Proponents of this argument could acknowledge Congress’s authority to withdraw rights to de novo appellate review by the Supreme Court, but insist that the Court must retain some minimal capacity to correct clear lower court errors—capacity that traditionally existed through “discretionary writs, such as mandamus, habeas corpus, and prohibition.”[72]
