When the Supreme Court confronted a statute that deprived it of appellate jurisdiction over a narrow class of court of appeals decisions in the habeas corpus case of Felker v. Turpin, the Court upheld the statute, but it emphasized—as it had more than a century earlier in Ex parte McCardle[73]—that it retained jurisdiction to oversee the courts of appeals by entertaining original applications for the writ.[74] As a result, there appears to be no squarely on-point precedent deciding whether Congress could more categorically strip the Supreme Court of all jurisdiction over a particular issue or set of issues that the lower courts could continue to decide. Perhaps the only clear conclusion is this: A total preclusion of all opportunity for Supreme Court oversight of lower court decisions involving specific issues, statutes, or policies would run a greater risk of judicial invalidation than a less-than-total preclusion.
b. Restricting the Jurisdiction of All Federal Courts, but Not State Courts
There also appears to be no authoritative ruling and no consensus among scholars on the permissibility of Congress’s stripping all federal courts of jurisdiction over a class of cases—which again might be cases challenging the constitutionality of a wealth tax or prohibitions against abortion—while permitting those specified issues to be litigated in the state courts. Reviving an argument that Justice Joseph Story advanced in the iconic case of Martin v. Hunter’s Lessee,[75] one prominent modern commentator has argued energetically that legislation of this kind would violate the provision of Article III, Section 2, Clause 1 that “[t]he judicial Power [of the United States] shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.”[76] Under this principally text-based argument, the Exceptions Clause permits elimination of the Supreme Court’s appellate jurisdiction in cases “arising under” federal law if and only if they are subject to the jurisdiction of the lower federal courts. Similarly, Congress can divest the lower federal courts of jurisdiction over cases presenting federal questions that remain within the Supreme Court’s appellate jurisdiction to review state court judgments. But, the argument maintains, Congress cannot simultaneously preclude the exercise of jurisdiction by both the Supreme Court and the lower federal courts in cases arising under the Constitution, laws, and treaties of the United States.
Other distinguished modern scholars have disagreed with this argument on both originalist and precedent-based grounds.[77] Among other arguments, they maintain that Article III’s provision that the judicial power shall extend to “all cases” under the Constitution serves mainly to clarify that Congress can provide for federal jurisdiction over both civil and criminal actions if it chooses to do so.[78]
