Thursday, March 08, 2018

Does the "Essential Role" Theory of Appellate Jurisdiction Survive Patchak v. Zinke?

by Michael Dorf

Last week's SCOTUS decision in Patchak v. Zinke raised but ultimately did not resolve two of the most fundamental questions about the power of Congress to limit the jurisdiction of the federal courts: (1) Where is the line between acts of Congress that permissibly change the law applicable to pending and future cases versus acts that impermissibly dictate the result in a particular case?; and (2) What limits does the Constitution place on Congress's ability to exclude cases from the federal courts' jurisdiction?

In my latest Verdict column I discuss the Court's treatment of the first question. Here I'll consider what the Court says about the second. Patchak does not definitively answer either question, because there is no majority opinion and the concurrences in the judgment (by Justices Ginsburg and Sotomayor) would resolve the case on wholly different grounds. However, what the plurality opinion of Justice Thomas says about the second question is troubling, and because the dissent of Chief Justice Roberts takes issue mostly on the first question, there is no response to some of the broader implications. I'll try to fill that gap.

If you haven't yet read Patchak -- or even if you have but you never took or don't really remember what you learned in Federal Courts during law school -- I strongly recommend that you read my column for a summary. Here I'll just provide the briefest overview so I can set up the question on which I want to concentrate.

Congress passed a law stripping federal courts of jurisdiction to adjudicate disputes regarding the use of a certain parcel of land for a casino. Just about everyone acknowledges that the sole purpose of the law was to require the dismissal of one particular lawsuit already pending in federal court, indeed, a case that had already been up to the Supreme Court once. The chief objection of plaintiff David Patchak was that the law was a sham--a thinly disguised effort to dictate the result in his case and thus a violation of separation of powers. Three justices--CJ Roberts who wrote for himself and Justices Kennedy and Gorsuch--agreed with Patchak. But the plurality--written by Justice Thomas for himself and Justices Breyer, Alito, and Kagan--thought otherwise. Citing prior precedents that allowed Congress to write laws that referred to specific pending cases by docket number, Justice Thomas concluded that the jurisdiction-stripping statute had the form of a general law and that was enough. In my column I say that this is empty formalism, even as I concede that there may well be practical reasons why it would be difficult to implement the Roberts approach, because the line between a sufficiently general law and an impermissibly specific one will be hard to draw in a principled way.

So much for issue (1). Now let's turn our attention to issue (2). One of the steps in the argument set forth by Justice Thomas in his plurality opinion is to say that a jurisdiction-stripping law is a law, which seems banal enough. But for that proposition he relies on Ex Parte McCardle, in which the Supreme Court allowed Congress to eliminate its jurisdiction over a class of habeas cases, even though one such case was then pending in the Court. Yet McCardle has long been regarded as troubling, because it appears to allow Congress to insulate federal laws and policies--there Reconstruction-Era detention--from judicial challenge through the expedient of eliminating jurisdiction.

CJ Roberts made just that point in dissent. He noted the concerns about reading McCardle for all it is worth and added that a narrower reading is readily available. The statute at issue in McCardle cut off one avenue to the Supreme Court but left an alternative path open, as the Court said in McCardle itself and confirmed shortly thereafter in Ex Parte Yerger. The statute at issue in Patchak, the Chief Justice observed, cut off all avenues of federal court relief.

Justice Thomas and the plurality were not impressed. They pointed out that, to the extent that McCardle is a troubling case, that's because it seemed to cut off access to a federal court for the grant of a habeas corpus petition--something Congress may not do unless it takes the drastic step of suspending the privilege of the writ of habeas corpus. "McCardle’s reservation," he said, citing Yerger, "was responding to a potential problem under the Suspension Clause, not a potential problem under Article III." In non-habeas cases, Justice Thomas said, Congress can completely eliminate any and all categories of federal court jurisdiction, so long as the statute doing so doesn't violate some other constitutional provision.

What other constitutional provisions might be violated? A law that said that jurisdiction over some class of cases exists but only where the plaintiff is white or a man would violate the equal protection component of the Fifth Amendment's Due Process Clause. However, so long as a jurisdictional statute does not run afoul of a so-called "external" limit in this way, nothing internal to Article III forbids Congress from withholding from the federal courts any of the jurisdiction they would otherwise exercise. Citing a 1944 case, Justice Thomas said that, absent an external limit, Congress has "plenary" control over the jurisdiction of the federal courts. (For more on the difference between internal and external limits on jurisdiction stripping, see my forthcoming article in the Texas Law Review, which I described here.)

The citation of the 1944 case was problematic, because there the Court referred to the plenary power of Congress in the very same paragraph in which it pointed out that other remedies remained available in federal court--making the case more like McCardle as seen through the lens of Yerger than the plurality acknowledged. So too was Justice Thomas's citation of his own (horribly Kafkaesque) opinion for the Court in Bowles v. Russell, which did indeed contain dicta pointing in the direction of plenary power but did not involve that issue at all; it concerned time limits.

The truth is that the Supreme Court has never definitively decided a case in which it held (as opposed to said) that Congress has plenary power under Article III to strip federal courts of jurisdiction. And for good reason. If Justices Thomas, Breyer, Alito, and Kagan are right that congressional power truly is plenary, that would mean that Congress could pass a law forbidding ANY federal court from hearing ANY federal constitutional case. It could do so with respect to the lower federal courts under the so-called "Madisonian Compromise," that is, the power of Congress to ordain and establish lower federal courts (because the power to ordain and establish encompasses the plenary power to adjust jurisdiction), and it could do so with respect to the Supreme Court pursuant to the Exceptions Clause allowing Congress to make exceptions to the appellate jurisdiction granted the Supreme Court by Article III.

There are a variety of theories that would limit the power of Congress to strip jurisdiction, even when doing so does not violate some external constitutional provision. As I explain in the forthcoming Texas Law Review article, the least problematic of these theories builds on a position famously articulated by Henry Hart in a 1953 article, in which Hart argued that Congress may not so restrict the Supreme Court's appellate jurisdiction as to interfere with its ability to play its "essential role." One appealing version of Hart's theory limits the power of Congress to strip SCOTUS jurisdiction in constitutional cases.

Now I'll readily admit that, just as the Court has never held that the plenary power theory is right, so it has never endorsed any variant of Hart's essential role theory. But there's enough to the theory that it should not be rejected in passing by a string citation of dicta.

We are left with the puzzle of the cross-ideological lineup. Justices Ginsburg and Sotomayor would have resolved the case on sovereign immunity grounds, but at least Sotomayor expressed agreement with the dissent on what I have called issue (1). Neither she nor Justice Ginsburg directly addressed the McCardle question. The bigger puzzle concerns the scramble. Why did Justices Kagan and Breyer go along with the plenary power theory expressed by Justice Thomas? Why did Roberts, Kennedy, and Gorsuch split from Thomas and Alito?

I don't have a well-worked-out answer, but views about the scope of congressional power to restrict the jurisdiction of the federal courts do not break strictly on ideological lines. The plenary power view was taken by Herb Wechsler--Hart's co-author on the canonical field-creating casebook. And no less a liberal than Charles Black took the plenary power view; he thought it an ultimate popular safeguard that legitimized otherwise countermajoritarian judicial review.

Making matters more complicated, jurisdiction stripping is commonly proposed by conservatives seeking to prevent liberal court rulings than vice-versa, but the specific statute at issue in Patchak skewed sort of liberal; Congress passed a jurisdictional statute that aimed to help a Native tribe, and a non-Native neighbor sued to block it. In very narrow ideological terms, the result in Patchak is "liberal," but over the long run the plenary power approach probably skews "conservative."

Ideology aside, it is worth emphasizing that the answer to the question that titles this post is clearly "maybe." If Hart's Essential Role theory was alive before Patchak, it remains alive today, for the simple reason that no opinion in Patchak got five votes.


Marty Lederman said...

Mike: I agree with most of what you say about Question "2." But I thought I'd raise here a question about your treatment of Question "1" in the Verdict piece. You suggest sympathy to Roberts's view that it is just as constitutionally problematic for Congress to say "the courts shall not have jurisdiction in Case X" as it is to say that "the courts shall rule for Smith on the merits in Case X." Obviously, Thomas, Breyer, Alito, and Kagan are much less troubled by the former than the latter. Why?

I think it depends on what one thinks the source of the constitutional problem is. You emphasize a Bill-of-Attainder-like concern -- let's call it an Art. I concern -- about Congress acting on a single case rather than in gross. But of course Congress does so all the time, including by changing the underlying substantive law of a very discrete dispute (e.g., Wheeling Bridge) in a way that will determine the outcome of one, and only one, case. (Or by making an earmarked appropriation, etc.) The whole point of bill-of-attainder doctrine is to identify the very discrete category of "singular" legislation that's constitutionally impermissible (i.e., punitive legislation). There is not a general rule that Congress must act in gross.

Another possible source of a constitutional concern --an Article III concern -- would be to pass legislation forcing the courts to undo their own judgments (Plaut). That's not at issue here, either.

That leaves the other problem raised in the Klein/Wheeling Bridge/Robertson/Markazi line of cases, and it's the one the Thomas four focus upon--namely, whether Congress can tell the courts how to resolve a particular dispute *on the merits*. Congress cannot, for example, tell the courts to hold that Jones did not violate the governing law if the courts would otherwise hold that she did so (or even where the courts have not yet determined whether she did so). (Klein stands for at least that, even if nothing more.) But that's quite different from telling the courts: You can't adjudicate Smith's case at all. In the latter case, the courts aren't instructed to make any judgments contrary to their own view of the law.

To be sure, as you and Roberts stress, in both cases Congress is saying "Jones wins." But it's not clear why that is an *article III* problem (putting aside your Question 2 for now) if the "win" is "merely" a holding that there's no jurisdiction, rather than on the merits. (Nor, for what it's worth, is the "win" equlivalent in the two cases: In this case, not only does the "no jurisdiction" judgment fail to establish any precedent on the merits, but it also does not have collateral estoppel or res judicata effect on the merits (right?) if and when there is jurisdiction for the courts to resolve this or other particular disputes between Smith and Jones.)

If I'm right about all this, it would mean that your Question 2 is, or ought to be, where the real action is.

Shag from Brookline said...

I imagine that if there were a second Constitutional Convention a fair bit of time would be taken on the questions raised by this post. How might Article III be restructured? The lack of a majority in Patchak together with the unusual divisions between conservatives/liberals might suggest a confused Court even with a full contingent. How might Congress react to Patchak? Perhaps a second Constitutional Convention might might result in a "Battle of the Branches" and changes in the concept of separation of powers. A "fly on the wall" view of the conference on Patchak might be quite revealing. Meantime, the Constitution does not specifically provide for judicial supremacy over the federal elective branches while it remains unclear how Congress (with the aid of the Executive) might impose certain jurisdictional limitations on the judiciary.

By the way, I'm not suggesting we have a second Constitutional Convention. We have enough chaos as is. We need to Get Smart!

Michael C. Dorf said...

Marty, thanks for the comment. I agree with most (perhaps all) of what you say. My main complaint w/r/t the plurality's treatment of Q1 is the formalism, not the result. The plurality accepts that Congress cannot pass a law that says "In Smith v Jones, Smith wins," but then accepts that Congress can do just that with some minimally competent evasive drafting. I would prefer that the Court just say there is no generality requirement. Now perhaps you're saying that a more sympathetic reading of the plurality is that they're saying that the real problem isn't "Smith wins" but, as you say, the "other" Klein problem and that jurisdictional statutes don't raise that problem. To the extent that this is what the plurality is saying, I don't have a problem with it. I would note, however, that this is not a case where state courts are open, so a congressional determination that there is no federal court jurisdiction, while not acting on the merits, does dispose of the case. But that's a problem, if at all, per Q2.

Shag from Brookline said...

I was not aware of Marty's comment until I posted mine. I look forward to exchanges between Mike and Marty - and others - on a subject that is too deep for me, but important. I hadn't read Mike's Verdict column but will do so shortly to better understand exchanges that may follow.

Marty Lederman said...

Sorry to disappoint, Shag: At this point I think Mike and I are in stubborn agreement!

Shag from Brookline said...

Of course by the time this thread morphs into moderation, Marty and Mike may be at most a plurality as others comment not only on question 1) but question 2).

Joe said...

Does Justice Breyer's concurrence clarify his position in any fashion -- he seemed to be arguing that this specific case might be different. That would leave Kagan.

Asher Steinberg said...

I don't know if the following is a distinct position from either of yours, but I think that:

(1) the plurality is right to concede that Congress can't simply say "Smith wins in Smith v. Jones," if what's meant by "wins" is wins on the merits;

(2) but even if Congress says something as unadorned as "no jurisdiction over Jones's pending suit against Smith," that's quite alright as an Article III matter (though I might object to a statute that said, for example, state-law claims so related to federal claims as to be part of the same case or controversy are within federal jurisdiction, and Smith's state-law claims are not so related; one could argue that that mandates a jurisdictional result under existing law rather than making new jurisdictional law);

(3) Congress also may change substantive law in a manner intended to completely resolve the merits of a single case, e.g., Congress could have said while TVA v. Hill was pending before the Supreme Court that the Tellico Dam could be built in spite of its impinging on the snail darter's habitat;

(4) there is no meaningful category of laws that mandate a result "in the guise" of changing the law while concededly changing the law; mandating results at varying degrees of generality is just what laws do.

I should also note that while it's true there was no state-court jurisdiction here, such that there's nowhere for Patchak to bring his case, in the absence of a binding merits judgment interpreting the substantive part of this statute in a certain way Patchak is free to make his arguments about the Department of Interior's choice to take this land into trust to the Department, and if Congress repeals the jurisdictional bar he wouldn't be precluded from refiling his claim, subject to statutes of limitation.

John Barron said...

When faced with this direct question, our courts chose treason. Cohens v. Virginia, 16 U.S. 264, 404 (1821)

P files an official capacity action, challenging the constitutionality of The Judges' Bill (abolishing the right to certiorari review). P had standing, having suffered a decision that screamed for certiorari review ("[A] law that makes a man a Judge in his own cause ... is against all reason and justice." Calder v. Bull, 3 U.S. 386, 388 (1798) (opn. of Chase, J., seratim). The lower courts shattered too many controlling precedents to list in their desire to deprive P of an effective remedy.

[For those who don't know, at common law, certiorari is a supervisory writ, apprising a superior court of “jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and ‘error of law on the face of the record.’” Craig v South Australia (1995) 184 CLR 163, 175 (H.C. Austl.) (citations omitted). “The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion.” Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 (India) (emphasis added).]

Why is this right so important? Our lawprofs should all remember Anastasoff. In theory, we have the right to equal and impartial justice under law. Caldwell v. Texas, 137 U.S. 692, 697-98 (1891) (citations omitted). In practice, "the law" is whatever the judge finds in his fuckin' Depends; the entire United States Reports is no defense against a headstrong judge. And when an appellate panel goes off the rails, defying hidebound SCOTUS precedent the losing party relied on, the remedy is certiorari review.

So, what did the lower courts do? They declared that they didn't have jurisdiction--over a statute that affects an individual right as precious as the right of access to the courts. Think about it: Congress can pass a law empowering our judiciary to take away quite literally every individual right you think you have at a whim, and you have no standing to challenge their arbitrary rule.

But it gets better. When P petitioned to SCOTUS--in an official capacity action--the Justices recused en masse. Most Americans had the good sense to roll their eyes in bemusement when they heard of Scalia's public claim that he hadn’t received a bribe from Dick Cheney, even though he admitted facts which would justify a bribery prosecution. But yet, he justified his decision to sit in a case deciding the interests of his good friend and generous patron in claiming that "…while friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue, it has traditionally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or the reputation of the Government officer." Cheney, 541 U.S. at 916.

So, who was right? Justice Scalia ... or Justice Scalia?

More than a century ago, Justice Matthews left us this incorrigible axiom: “To take away all remedy for the enforcement of a right is to take away the right itself.” Poindexter v. Greenhow, 114 U.S. 270, 303 (1884). As such, the constitutionally correct answer is that Congress cannot close the doors to the courthouse via statute where constitutional rights are being impaired. But the real-world answer is that a judge would much rather sodomize her daughter's corpse than cede even a scintilla of her wrongfully-usurped power. Remember, Scalia loved ruling us so much that he was willing to do it for free.

Bugsmasher said...

Out of respect for readers and colleagues some commenters need to learn to control their? language. Who is controlling the propriety of posts on this forum? Otherwise, the commenter makes good points.