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.