Constitutional histories of the United States have tended to focus on two of the three branches established by the Constitution at the expense of the third. Congress and the Presidency have received ample historical attention while the federal courts have secured less of the spotlight. There are sound reasons for this. Article III of the Constitution creates only “one supreme Court,” and leaves it to Congress to fashion “such inferior Courts” as it desires. The high court exercises separate “original jurisdiction”—power to hear cases lodged in the first instance before the justices—and also “appellate jurisdiction” over other courts. But the latter is subject to “such Exceptions, and under such Regulations” as the political branches see fit.
As Northwestern Law School professor James Pfander rightly underscores, this is not the outer reach of political control over adjudication in the 1787 federal system: a separate, under-studied clause of Article I, Section 8—the provision enumerating the new Congress’s specific authorities—also gives allows legislative creation of “Tribunals inferior to the supreme Court.” At a minimum, this includes territorial courts such as those created by the Northwest Ordinance of 1787, finalized by the Continental Congress while the Philadelphia Convention was debating,
What does this network of congressional options—which on its face gives ample scope for political control of the judiciary via expansion or contraction in the number and jurisdiction of federal courts—suggest about the role of courts in American political development? What does it entail for rule-of-law values and the distribution of constitutional rights? The latter question, as Pfander notes, is sharply presented not merely by failed efforts to choke federal jurisdiction over abortion, establishment clause, and gay marriage issues, but also and more acutely by the successful efforts in 2005 and 2006 to extinguish, or at a minimum vastly constrain, the federal courts’ supervisory powers over the Guantánamo Bay detentions.
Federal jurisdiction, indeed, has seemingly played a pivotal role in transitions between what Stephen Skowronek has called “regimes.” At the threshold of the current constitutional era, my colleague Alison LaCroix has recently explained how the federal courts were understood as the site for elaborating the new federal-state relationship....
So what function do the federal courts play? And what stops Congress from leveraging its textual authority over the courts to transient political ends at odds with other substantive goals endorsed elsewhere in the constitutional text?
James Pfander’s articles and the book that summarizes and reframes those articles for an incrementally more general audience begin to answer that question.
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