Federal Jurisdiction

21 September

• The problem at the start of the justiciability chapter: the one about phone tapping, where lawyers and journalists sue (because of their clients/sources).

  6^th Cir. says they didn't have standing. There were two bases argued:

  1. Our phone calls were actually monitored, so that's the injury. Of course, they couldn't really know if what calls were monitored, so hard to say you've got an injury there.
  2. Loss of contact with sources or clients out of fear of monitoring. But the program was secret-- there's no causation there: the harm was caused by the revelation.

  So who could get this into court? How do you show that your source would have talked to you but for the program?

  So the national security exception prevents us from identifying whose rights have been violated, but we can pretty much tell for sure that somebody's were. (See, e.g., US v. Reynolds: state secrets doctrine blocks tort suit by widows of civillian passengers killed in 1947 B-29 USAF crash).

  Anyway, maybe the court just doesn't want to rule on the merits of the suit-- by recognizing the existence of state secrets, the court is maybe tipping its hand about whether it's possible to have standing here.

  The dominant position of the court is to narrowly construe standing so as to avoid treading on the authority of other branches. A different court-- one that sees this case as an opportunity to declare the law on this important issue-- might have looked for a way to make standing work here.

  Good point by Will: it's up to the court to determine whether there's a case or controversy. So there's a threshold factual issue here: if the executive declines even to answer the suit, maybe there could be some sort of estoppel remedy (i.e., we're going to draw the inference that the plaintiff's pleading is valid).

• Congressional control of jurisdiction. Even in Marbury, we saw that congress has the power to regulate jurisdiction. Art. III doesn't specify the jurisdiction of the lower courts (the ordain and establish clause) or what kinds of limits can be imposed (the exceptions and regulations clause). Looking at these is generally called "internal." "External" concerns are about things like separation of powers, protection of individual rights (i.e., can congress say "federal courts can no longer hear affirmative action cases"), due process (e.g. the procedure here is bad), etc.

  So, is the role of SCOTUS subject to the whim of congress? And the lower courts? And what does that mean for the power of state courts?

• One subtext here: are federal courts better at interpreting federal law? do they give a more generous interpretation of federal rights?
• "Where there are rights, there are remedies (Marbury)," means access to the courts is critical.
• Ex Parte McCardle
  Congress' power over SCOTUS (Yerger is the companion piece).

  This was a hot case (i.e., it was part of a burning political controversy), whereas Sheldon v. Sill is pretty bloodless.

  So, a military trial for a newspaperman who was criticizing the government.

  Anyway, McCardle is the target of a congressional act designed to erase the statute on which his suit was base: removing jurisdiction to prevent arguments about the constitutionality of reconstruction from being heard in court.

  It's a really strong power move by Congress, implicating very important rights. Why does the court go along with this? Four reasons:

  1. Well, perhaps the court didn't want to talk about the constitutionality of the reconstruction act, so it's nice to be let off the hook. That makes us think that we shouldn't take McCardle too seriously-- it's just an anomaly under this theory.
  2. Also, viz. Yerger, this isn't a total strip of jurisdiction-- just the >expanded version of habeas corpus defined in the 1867 act (extending federal habeas power to prisoners in state custody). And the court reminds everyone of this, at the end of the opinion. They read congress's act sort of minimally, and assert that the other ground for habeas relief wasn't swiped by this.
  3. The plain text of the constitution says this is how it should be. The court's analysis of Art III is on the money here. This makes Congress look very strong ( "plain meaning" ¶ now on p. 105). Of course, later we see (Battaglia, the external argument) that maybe congress can't take away jurisdiction in such a way that violates due process rights. Anyway, there is an exceptions and regulations clause, and here we heed it.
  4. Separation of powers: this is a check on the courts. The court's powers are not unlimited-- congress has the ability to limit them, and do so politically. That is a natural result of the structure the Framers made. We can debate whether this check is good or not, but there it is, and separation of powers is a good idea. So, do we think it's OK for congress to take away statutorily granted rights while litigation is in progress? This has implications for the GTMO detainees, but we've got McCardle as precedent, where this actually happened.
  You can think of litigation as an effort to get the court to issue an opinion on an issue. And there might be lots of reasons why a political party (or parties) would not want that to happen. At the same time, a check on power shouldn't include the ability to totally eviscerate the court. Clearly congress has the power to announce some limits on the federal courts, but it's the courts who get to say what the limits really mean.

  But the threat of jurisdiction-snatching keeps the court in line, even when it's not exercised.

• Problem 3-1: Felker. Dealing with the problem of successive habeas petitions as a tactic for delaying your execution. To bring a new petition, you need to get permission from the Ct. App., and you can't get SCOTUS review of their decision. SCOTUS says there is still another way: you can make an original petition for habeas review (not used since 1925, so don't count on it). So it's like Yerger: we still have a way of taking the case, so it's not the dramatic problem the litigants thought-- congress didn't entirely strip our jurisdiction.
• Yerger: congress didn't take our jurisdiction away entirely.
• Sheldon v. Sill
  Again, congress is maybe doing the court a favor here, by taking away jurisdiction here. Cutting back jurisdiction isn't always an attack on the court-- there's such a thing as too much jurisdiction. We want The Right Things in federal court, and congress is given the job of designing that solution.

  Again, Congress looks really strong here (see middle ¶ on p. 115).

• So, could congress relegate the constitutionality of death penalty cases just to state courts? (i.e., strip it from federal jurisdiction, as a tactic to preserve the death penalty). First off, is it a good idea for congress to use this approach as a means to its ends? Maybe not: the flag-burning case produced a lot of scholarly advice against yanking this issue from federal court jurisdiction.

  Well, if you take the issue away from SCOTUS, you lose the ability to get a coherent statement of the law that's binding on everyone. Rights will mean different things in different states, and that's maybe bad. Or not so bad, depending on what you think of federalism. Still, with respect to federal rights, it just makes sense that there be a unified federal position on them.

  And you get stability, as well-- precedent changes less than political leadership. If congress is constantly blocking and granting jurisdiction, there will be volatility.

  And then, if a state legislature can also oust a state court's jurisdiction, then there's no court in which this particular right can be vindicated.

  Is it a violation of due process to say that a federal right is relegated to state courts? The questions about this power may have been enough to keep congress from using it, but it may also keep the federal courts in line. Maybe both branches moderate themselves, as a result, and that's separation of powers in action.