Congress and the Courts' Jurisdiction

Article III lets Congress make "Exceptions" to the Supreme Court's appellate jurisdiction and create (or not create) lower courts; in Ex parte McCardle (1869) the Court accepted Congress's repeal of its jurisdiction over a pending appeal; how far this power goes is debated.

Article III creates "one supreme Court" and "such inferior Courts as the Congress may from time to time ordain and establish." It gives the Supreme Court original jurisdiction in a few cases (those involving ambassadors and those in which a state is a party) and appellate jurisdiction in the rest, "with such Exceptions, and under such Regulations as the Congress shall make." Those words give Congress real power over the courts. Marbury showed one limit: Congress cannot add to the original jurisdiction.

Article III, Section 2, Clause 2: original and appellate jurisdiction, with the Exceptions Clause.

Why it works

The framers left the lower federal courts to Congress as a compromise: some delegates wanted no lower federal courts at all, trusting state courts to hear federal cases first. Since Congress need not create lower courts, the usual reasoning goes, it may also decide which cases they hear. The Exceptions Clause gives Congress a similar power over the Supreme Court's appellate docket. This is one of the checks Congress holds on the judiciary.

Key idea

Congress may make exceptions to the Supreme Court's appellate jurisdiction and may create, shape or not create lower federal courts; Ex parte McCardle (1869) accepted a repeal that ended a pending appeal. How far the power goes, for example whether Congress could close every court to a constitutional claim, is debated.

Scholars' views on the outer limits (the Court has not settled them).
View	Main argument
Broad congressional power	The text says "such Exceptions" without limits, and McCardle accepted a repeal aimed at a pending case. Jurisdiction rules are how a democracy checks unelected judges.
Internal limits	An "exception" cannot swallow the rule; the Supreme Court's "essential functions" (uniformity and supremacy of federal law) must survive.
External limits	Other parts of the Constitution still apply: Congress cannot strip jurisdiction in a way that violates due process or equal protection, or that tells courts how to decide a pending case.

Worked example: Reading McCardle closely

Did McCardle leave detained people with no route to the Supreme Court?

The 1868 law repealed only the appeal route created in 1867.
The Court said its jurisdiction under the 1789 Act remained.
In Yerger (1869) it used that route.

Answer: No. That is one reason some scholars read McCardle narrowly: Congress closed one door, not all of them.

Worked example: A hypothetical

Congress passes a law: "No federal court shall hear any challenge to Statute X." Lay out the arguments.

For validity: Article III lets Congress make exceptions and decline to create lower courts; state courts remain open to hear the claim, subject to the Supremacy Clause.
Against: if state courts are also closed, people could be left with no court for a constitutional right, raising due process concerns; and an exception aimed at one statute's challengers may look like dictating the result.
The Court has not decided a case that squarely tests these limits.

Answer: A law that removes only federal jurisdiction, leaving state courts open, is on firmer ground than one that leaves no court at all. The outer limits remain debated.

Common mistake

Thinking Congress cannot touch the Court's jurisdiction. The Exceptions Clause gives Congress real power, and Congress regularly sets jurisdiction by statute (amount-in-controversy rules, for example). Check: is the question whether Congress has any power here (it does) or how far it goes (debated)?

Hamilton addressed this in Federalist No. 81, where he argued that the Exceptions Clause lets Congress make reasonable adjustments to appellate review. Brutus, on the other side, feared courts that could not be checked at all.

This is an educational course, not legal advice.

Congress and the Courts' Jurisdiction

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