What are the "Essential Functions" of the Supreme Court?

Yesterday the Supreme Court heard oral argument in Bowe v. United States. In my Verdict column previewing the case, I highlighted the case's potential to resolve a longstanding constitutional question: What are the limits on Congress's power to remove cases from the Supreme Court's appellate jurisdiction under the Exceptions Clause of Article III? As I explained in my column, an amicus brief by some Federal Courts scholars propounds the view of the late great Henry M. Hart that Congress may not deploy its power under the Exceptions Clause in such a manner as to "destroy the essential role of the Supreme Court in the constitutional plan."

I am dubious of the argument put forward in the Federal Courts scholars' amicus brief for the proposition that maintaining the uniformity of federal law is an essential function of the Supreme Court--at least if it's taken to mean that the Supreme Court must have the authority to resolve every possible conflict over the meaning of federal law. As I noted in the column, the amicus brief relies on Justice Story's opinion for the Court in Martin v. Hunter's Lessee, but Hart's views about Article III differ in some important details from Story's views. The latter (especially as revived and tweaked by Akhil Amar) would allow that Congress could ensure the uniformity of federal law by vesting jurisdiction in some other federal courts instead of the Supreme Court.

That is not to say that I think Hart was entirely or even mostly wrong. I like Hart's essential functions theory. Among other things, it has the virtue of complementing my own view (which I expounded in a 2018 Texas Law Review article) regarding the limits on Congress's affirmative power to strip state courts of jurisdiction in federal constitutional questions. Although I do not think that invocation of Story's Martin opinion suffices to show that maintaining the uniformity of federal law is an essential function of the Supreme Court's appellate jurisdiction, I agree with Hart and the Federal Courts scholars' amicus brief that in the usual course, maintaining the uniformity of federal law is at least a very important function of the Supreme Court. Thus, I agree with the bottom line of that brief and the petitioner's brief: the Court should employ the constitutional avoidance canon to read the jurisdiction-stripping statutory provision at issue in Bowe as inapplicable to certiorari jurisdiction in cases involving habeas petitions by federal prisoners.

It's worth noting that Hart himself never said that the Supreme Court must have the ability to resolve all federal issues in order to maintain the uniformity of federal law. That formulation is generally credited to Leonard G. Ratner, who propounded it in a 1960 article in the University of Pennsylvania Law Review. He cited Story's Martin opinion but also offered arguments rooted in text, original understanding, precedent, and ultimately functional considerations for his view. I am not entirely persuaded by the Ratner version of the Hart thesis as it applies to questions of statutory interpretation, but at least with respect to constitutional questions, it strikes me as plausible.

For what it's worth,  the version of Hart's approach that I find most persuasive is the one articulated by Larry Sager in his 1981 Harvard Law Review Foreword, which regards the Supreme Court's role in maintaining the supremacy of federal law as even more vital than its role in maintaining its uniformity. Under Sager's view, the "Court must be available to superintend state compliance with federal law unless Congress provides effective review elsewhere within the federal judiciary." Sager offered historical and doctrinal arguments, but the core of his view--like the core of Hart's view--was functional.

In recent memory, perhaps the clearest clash between a functional account of the Supreme Court's essential functions and a more formalist view can be found in the back-and-forth between Justices Kennedy (for the majority) and Scalia (in dissent) in 2013 in United States v. Windsor. On the merits, the Court invalidated Section 3 of the Defense of Marriage Act (DOMA), but to reach the merits, the Court had to find that there was a concrete case or controversy despite the fact that the Obama administration was enforcing but not defending DOMA.

For the majority, Justice Kennedy explained that disallowing jurisdiction when the executive branch chose not to defend a law's constitutionality would frustrate the Supreme Court's ultimate authority, pursuant to Marbury v. Madison, "to say what the law is." In dissent, Justice Scalia accused the majority of confusing the role of the U.S. Supreme Court with the role that constitutional courts in Europe play. He wrote that "declaring the compatibility of state or federal laws with the Constitution is not only not the 'primary role' of this Court, it is not a separate, free-standing role at all. We perform that role incidentally--by accident, as it were--when that is necessary to resolve the dispute before us."

One can argue that Justice Scalia's view (which overlaps with what is sometimes called "departmentalism") is more faithful to the original understanding of the Constitution than Justice Kennedy's, but the Kennedy view more closely tracks the understanding of the Court that has emerged over the course of the last century or so and especially since 1988, when Congress eliminated nearly all of the Supreme Court's mandatory appellate jurisdiction. With nearly complete discretion over what cases to hear, the Court has understood its job as deciding just those cases that present the most important legal questions. It takes its cases for the purpose of deciding such questions and not, as Justice Scalia would have it, to resolve particular disputes and propound its view of the law "by accident."

Now I suppose one might say that just as Congress had the power to eliminate the Court's mandatory appellate jurisdiction, it also has the power to modify what remains of that appellate jurisdiction. And to a point, I would agree. That's why I prefer the Sager version of Hart's view to the more expansive version promoted by Ratner and others. But it would be a mistake to view the 1988 elimination of nearly all of the Supreme Court's mandatory appellate jurisdiction as simply the exercise of Congress's policy discretion. Rather, the statutory change reflected and ratified a decades-long transformation of the Supreme Court into a de facto constitutional court of the European sort. Whatever the essential functions of the Supreme Court may have been in the distant past, they now include interpreting and applying the Constitution.

To be sure, that does not mean that the Court must or does have jurisdiction in every circumstance in which constitutional meaning is contested. The political question doctrine, standing limits, various forms of immunity, and other doctrines mean that there are some issues that federal courts--including the Supreme Court--do not resolve. But absent circumstances that implicate any one of those doctrines, the Court does have a responsibility to apply the Constitution and laws of the United States.

Whether those principles play any role at all in the Bowe case remains to be seen. As I noted in my Verdict column yesterday, I would not be surprised if the Court decides the case on purely statutory grounds, leaving unresolved the scope of congressional power under the Exceptions Clause.

During yesterday's oral argument, four Justices expressed interest in the Exceptions Clause issue. Chief Justice Roberts was the most aggressive in promoting a maximalist version of congressional power under the Exceptions Clause. He asked Bowe's attorney, Andrew Adler, this rhetorical question: "But we've never held that the Exceptions Clause does not mean what it says, have we?" Mr. Adler said no but then fell back on his avoidance argument without offering a substantive defense of the essential functions theory; he simply relied on the Federal Courts Scholars' amicus brief.

Mr. Adler was more responsive to a question from Justice Sotomayor. She wanted to know why his view, if accepted, wouldn't mean that the limit on certiorari is unconstitutional in cases involving state prisoners? His answer--which resonates with the final paragraph of Ex Parte McCardle--was that state prisoners have other means of seeking review in the Supreme Court that are unavailable to federal prisoners. (It's worth noting that the government argues that such alternative means are also available to federal prisoners, but I'll put that disagreement aside.)

Mr. Adler had the toughest time with a question from Justice Barrett. She suggested that his view of the Court's essential functions would "completely eviscerate the Exceptions Clause" because whenever Congress withdrew any set of cases from the Court's jurisdiction, the Court would be unable to resolve circuit splits on questions that arise in those cases. Mr. Adler tried to pivot back to the statute at hand but eventually appeared to concede that there would indeed be a constitutional question in such cases and thus didn't answer Justice Barrett's objection that under his view Congress has no power under the Exceptions Clause.

That was a mistake. Even if one takes the view (which, to be clear, I don't take), that SCOTUS must have the power to resolve all circuit splits (and all splits with or among state courts) on questions of federal law, that would not mean Congress is powerless under the Exceptions Clause. Indeed, my discussion of the reduction in the Court's mandatory jurisdiction above indicates why.

The Judiciary Act of 1789 and most subsequent legislation is phrased as conferring jurisdiction on the Supreme Court, but that's misleading. As the Court explained in Murdock v. Memphis, when Congress purports to confer less jurisdiction on the Supreme Court than what is set out in Article III, it is in essence exercising power under the Exceptions Clause to change the default. The default would be that the Supreme Court has, in the words of Article III, jurisdiction over "all" federal question cases. So, for example, the fact that Congress changed some of the Supreme Court's appellate jurisdiction from mandatory to discretionary via certiorari was an exercise of the Exceptions Clause power. And with the certiorari jurisdiction, the Court can resolve all circuit splits even though it has less jurisdiction than it would have if Congress had not exercised some of its power under the Exceptions Clause.

That's the answer that Mr. Adler should have given to Justice Barrett's question: there are many things Congress can do under the Exceptions Clause that would limit the scope of SCOTUS jurisdiction but still leave it with the ability to resolve circuit splits. His theory doesn't eviscerate the Exceptions Clause. (And again, to be clear, I don't agree with the Federal Courts scholars' amicus brief that the Court must have the power to resolve all circuit splits. For example, if Congress were to withdraw jurisdiction over circuit splits involving only statutory questions, Congress itself would still be able to resolve them, thus maintaining the uniformity of federal law.)

The fourth Justice to ask about the Exceptions Clause was Justice Alito. Questioning Anthony Yang, who argued for the government, Justice Alito worried that the issue should be briefed more thoroughly if the Court were to say anything about it. Justice Alito also suggested that an issue of the Court's essential functions under the Exceptions Clause might arise if the Court were prevented from addressing the merits of some important issue but that the contested issue in Bowe was too technical or procedural to implicate that concern.

Thus, there was some discussion of the Exceptions Clause issue in Bowe, but not enough for me to adjust my assessment before the oral argument: I continue to think it unlikely that the Court will say anything definitive about the essential functions theory or the scope of congressional power under the Exceptions Clause.

In any event, Bowe is small potatoes. The question of the moment is not what the Court will allow Congress to do to restrict its jurisdiction. Congress is not doing much of anything right now. The fundamental question is whether the Supreme Court recognizes that its most essential function is to defend the Constitution and the rule of law against an assault by an authoritarian president. The preliminary evidence is not encouraging.

Michael C. Dorf