# What does this provision of the US Constitution mean?
**URL:** https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661
**Category:** Factual Questions
**Created:** [November 5, 2016, 12:02am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661 "2016-11-05T00:02:10Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@Lumpy](https://boards.straightdope.com/u/Lumpy)
#### Post date: [November 5, 2016, 12:02am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/1 "2016-11-05T00:02:10Z")
Article Three (re. the Supreme Court), Section Two, Clause Two (bolding mine):
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> In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.
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> In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, **with such Exceptions, and under such Regulations as the Congress shall make.**
Because a blog I happened upon claims that this means that Congress could make a law with the explicit provision that the SCOTUS cannot review it (!) Stunning, if true.
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### Author:  [@Tripler](https://boards.straightdope.com/u/Tripler)
#### Post date: [November 5, 2016, 12:07am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/2 "2016-11-05T00:07:56Z")
It means that the Congress has the power to make the laws that dictate what cases the Supreme Court will hear outside of those with international/diplomatic or State-on-State action. It also has the power to enact laws creating the Federal Courts that hand-up their Appeals to the Supreme Court.
Congress has already made laws that depending on the law broken, a particular court will hear it. Otherwise, the SCOTUS would be inundated with torts and environmental law infractions.
There was a really good podcast I heard last weekend that illustrated the poor status of the SCOTUS under the Adams/Jefferson administration, and how a “midnight appointee” basically invented the process of Judicial Review–allowing the SCOTUS to declare something unconstitutional. I’ll get the title for you.
Tripler
Mmmmm. Hot State-on-State action.
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### Author:  [@RadicalPi](https://boards.straightdope.com/u/RadicalPi)
#### Post date: [November 5, 2016, 12:22am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/3 "2016-11-05T00:22:39Z")
It’s called jurisdiction stripping. The Wiki has an article on it. The gist of the idea is that Congress can decide that certain laws are not subject to review by the federal courts. Sometimes this means that state courts can deal with them, but in other cases, the laws are just not open to review.
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### Author:  [@Lumpy](https://boards.straightdope.com/u/Lumpy)
#### Post date: [November 5, 2016, 1:04am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/4 "2016-11-05T01:04:57Z")
Given numerous controversial decisions, I’m surprised then that there haven’t been more calls to limit the SC’s jurisdiction.
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### Author:  [@buddha\_david](https://boards.straightdope.com/u/buddha_david)
#### Post date: [November 5, 2016, 1:43am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/5 "2016-11-05T01:43:32Z")
> [@Tripler](#):
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> There was a really good podcast I heard last weekend that illustrated the poor status of the SCOTUS under the Adams/Jefferson administration, and how a “midnight appointee” basically invented the process of Judicial Review–allowing the SCOTUS to declare something unconstitutional. I’ll get the title for you.
That would be [Marbury v. Madison](https://en.wikipedia.org/wiki/Marbury_v_madison), correct? (The most important SCOTUS decision ever, as it established the legitimacy of _all_ SCOTUS decisions.)
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### Author:  [@Jeff\_Lichtman](https://boards.straightdope.com/u/Jeff_Lichtman)
#### Post date: [November 5, 2016, 2:09am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/6 "2016-11-05T02:09:30Z")
Is that really the meaning of this clause? It seems to be about in which cases the Supreme Court has original versus appellate jurisdiction. I’d have thought it meant that Congress can give the Supreme Court original jurisdiction in types of cases other than those mentioned, not that Congress can prevent the Supreme Court from ruling on certain types of cases.
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### Author:  [@jtur88](https://boards.straightdope.com/u/jtur88)
#### Post date: [November 5, 2016, 2:25am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/7 "2016-11-05T02:25:01Z")
It looks to me like the first cases are never herd by a lower court – if there is litigation, it goes straight to the Supreme Court. In the second cases, disputes are handled first by lower courts, and go to the Supreme Court only if appealed.
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### Author:  [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)
#### Post date: [November 5, 2016, 2:39am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/8 "2016-11-05T02:39:11Z")
The Court has long held that, in matters of original jurisdiction, no Congressional act is necessary to enable the Court to act, and no Congressional act can limit it.
As to matters of its appellate jurisdiction, however, the Court has generally held that, absent Congressional action enabling that jurisdiction, the Court cannot act. See, for example, _Ex parte McCardle_, 73 U.S. (6 Wall.) 318 (1868), where Congress, to forestall a presumed attempt by the Court to interfere with Reconstruction, passed legislation removing the right to appeal under which the petitioner was before the Court. The Court dismissed the appeal, despite the fact it had already heard argument on the merits, citing the lack of jurisdiction.
> [@United States Supreme Court](#):
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> “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.” 74 U.S. at 514
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### Author:  [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)
#### Post date: [November 5, 2016, 3:50am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/9 "2016-11-05T03:50:24Z")
> [@Jeff\_Lichtman](#):
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> Is that really the meaning of this clause? It seems to be about in which cases the Supreme Court has original versus appellate jurisdiction. I’d have thought it meant that Congress can give the Supreme Court original jurisdiction in types of cases other than those mentioned, not that Congress can prevent the Supreme Court from ruling on certain types of cases.
No, that was exactly the point in _Marbury_: the Court’s original jurisdiction is defined by Article III, and Congress can not add to the Court’s original jurisdiction.
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### Author:  [@aldiboronti](https://boards.straightdope.com/u/aldiboronti)
#### Post date: [November 5, 2016, 9:37am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/10 "2016-11-05T09:37:34Z")
> [@Lumpy](#):
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> Given numerous controversial decisions, I’m surprised then that there haven’t been more calls to limit the SC’s jurisdiction.
That is surprising, especially if Congress needs only a simple majority to strip jurisdiction (although I’m not sure if that is the case.) I see from the [wiki](https://en.wikipedia.org/wiki/Jurisdiction_stripping) that **RadicalPi** mentions that there have been several successful examples recently, including the [Illegal Immigration Reform and Immigrant Responsibility Act of 1996](https://en.wikipedia.org/wiki/Illegal_Immigration_Reform_and_Immigrant_Responsibility_Act_of_1996), which inter alia stripped the federal judiciary of its jurisdiction to review certain Immigration and Naturalization Service decisions, and the [Prison Litigation Reform Act of 1996](https://en.wikipedia.org/wiki/Prison_Litigation_Reform_Act) restricting the remedies available to prison inmates.
This seems like such a powerful tool for a Republican Congress eager to limit the power of what it sees as activist federal courts that one would think it would have been used far more often. Or am I missing something about the scope of these powers or the difficulty in getting such acts passed?
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### Author:  [@ftg](https://boards.straightdope.com/u/ftg)
#### Post date: [November 5, 2016, 12:02pm UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/11 "2016-11-05T12:02:27Z")
> [@jtur88](#):
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> It looks to me like the first cases are never herd by a lower court – if there is litigation, it goes straight to the Supreme Court. In the second cases, disputes are handled first by lower courts, and go to the Supreme Court only if appealed.
I strongly agree with this. I don’t see how anyone can read it as a way to _remove_ any power but to _add_ other cases that go directly to the court. The preceding context makes is incredibly clear what situation they are covering: what goes directly to the Supremes.
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### Author:  [@Vicsage](https://boards.straightdope.com/u/Vicsage)
#### Post date: [November 5, 2016, 1:39pm UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/12 "2016-11-05T13:39:37Z")
It doesn’t matter what the constitution says, all that matters is what the court says the constitution says. The court is like the Pope, whatever he says the Bible meant, is what it meant. Both the Pope and the court can twist their original document any way they want, and the sheeple fall in line.
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### Author:  [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)
#### Post date: [November 5, 2016, 2:58pm UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/13 "2016-11-05T14:58:02Z")
> [@ftg](#):
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> I strongly agree with this. I don’t see how anyone can read it as a way to _remove_ any power but to _add_ other cases that go directly to the court. The preceding context makes is incredibly clear what situation they are covering: what goes directly to the Supremes.
Uh, quite the opposite, as my cogent post above made clear.
Here’s how it works:
The subjects on which the federal judiciary can rule are listed in Art. III, Sec. 1. That’s called “subject matter jurisdiction.” That jurisdiction cannot be limited by Congress.
The second section talks about the division of **process**. The first sentence says that cases involving certain people have to be filed directly with the Supreme Court.
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> In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.
The second sentence says that, anytime the federal courts have subject matter jurisdiction,
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> In all the other Cases before mentioned,
the Supreme Court has appellate jurisdiction, that is, the case must be filed in some inferior court first, and decided there.
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> the supreme Court shall have appellate Jurisdiction, both as to Law and Fact,
But that appellate jurisdiction isn’t guaranteed to exist, because it exists only to the extent Congress allows it to exist.
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> with such Exceptions, and under such Regulations as the Congress shall make.
The implication between the lines, not stated directly, is that “inferior” courts are not only an option,
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> The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
but a **requirement** , otherwise large swaths of judicial power owned by the federal judiciary wouldn’t be able to be exercised. But the **explicit** language of the Constitution says that Congress could refuse to give the Supreme Court ANY appellate jurisdiction if it wanted. What it cannot do is add power to the Supreme Court.
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### Author:  [@AK84](https://boards.straightdope.com/u/AK84)
#### Post date: [November 5, 2016, 3:49pm UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/14 "2016-11-05T15:49:31Z")
[QUOTE=DSYoungEsq]
But the explicit language of the Constitution says that Congress could refuse to give the Supreme Court ANY appellate jurisdiction if it wanted. What it cannot do is add power to the Supreme Court.
[/QUOTE]
.
If the hypothetical where the Supreme Court is stripped of all Appellate Jurisdiction by An Act of Congress, would that not be \*ex facie \* unconstitutional? Since the text talks of exceptions and regulations, not whether Congress so chooses to give jurisdiction?
If say Congress decreed that henceforth, Appeals from State Supreme Courts would be heard by the Court of Appeals for that Circuit, that would be a regulation hence Constitutional. If the Act said, there could be no Appeal to Supreme Court at all from State Supreme Courts?
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### Author:  [@Jeff\_Lichtman](https://boards.straightdope.com/u/Jeff_Lichtman)
#### Post date: [November 5, 2016, 5:04pm UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/15 "2016-11-05T17:04:32Z")
Was the intent of this clause to provide for balance of power, so that Congress can limit the clout of the Supreme Court when necessary? It seems to me that it could upset the balance of power by allowing Congress to hamstring the Supreme Court (and by extension, the entire judicial branch).
Did the authors of the Constitution ever say why they included this clause?
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### Author:  [@Lumpy](https://boards.straightdope.com/u/Lumpy)
#### Post date: [November 5, 2016, 10:11pm UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/16 "2016-11-05T22:11:48Z")
> [@Jeff\_Lichtman](#):
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> Was the intent of this clause to provide for balance of power, so that Congress can limit the clout of the Supreme Court when necessary? It seems to me that it could upset the balance of power by allowing Congress to hamstring the Supreme Court (and by extension, the entire judicial branch).
>
> Did the authors of the Constitution ever say why they included this clause?
Alexander Hamilton concludes the Federalist #80 with this:
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> From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconviences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a wellinformed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages.
What I take him to be saying is this: The authority given to the Supreme Court is proper and necessary; and if the court did somehow overstep its boundaries, the federal Congress has the power to rein the court in.
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### Author:  [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)
#### Post date: [November 6, 2016, 12:35am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/17 "2016-11-06T00:35:33Z")
> [@AK84](#):
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> If the hypothetical where the Supreme Court is stripped of all Appellate Jurisdiction by An Act of Congress, would that not be \*ex facie \* unconstitutional? Since the text talks of exceptions and regulations, not whether Congress so chooses to give jurisdiction?
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> If say Congress decreed that henceforth, Appeals from State Supreme Courts would be heard by the Court of Appeals for that Circuit, that would be a regulation hence Constitutional. If the Act said, there could be no Appeal to Supreme Court at all from State Supreme Courts?
The case law on this clause is a doctrinal mess, so predictions are especially difficult. To the best of my knowledge, however, all of the reasonably modern cases acknowledging jurisdiction-stripping have done so in the context of federal statutory law. My guess, unsupported by any scholarly evidence, is that an attempt by Congress to strip the Court of appellate jurisdiction over constitutional claims (including those arising from state court decisions) would somehow be found to violate the separation of powers.
Note too that stripping the federal courts of jurisdiction to hear cases arising under a federal statute does not necessarily bar those claims from being raised elsewhere, such as state court.
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### Author:  [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)
#### Post date: [November 6, 2016, 1:11am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/18 "2016-11-06T01:11:49Z")
> [@Lumpy](#):
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> Alexander Hamilton concludes the Federalist #80 with this:What I take him to be saying is this: The authority given to the Supreme Court is proper and necessary; and if the court did somehow overstep its boundaries, the federal Congress has the power to rein the court in.
What the heck is the federal Congress?
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### Author:  [@Lumpy](https://boards.straightdope.com/u/Lumpy)
#### Post date: [November 6, 2016, 2:48am UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/19 "2016-11-06T02:48:03Z")
> [@D\_Anconia](#):
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> What the heck is the federal Congress?
The legislature of the federal government of the United States of America, as opposed to any of the states’ legislatures.
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### Author:  [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)
#### Post date: [November 6, 2016, 2:58pm UTC](https://boards.straightdope.com/t/what-does-this-provision-of-the-us-constitution-mean/770661/20 "2016-11-06T14:58:14Z")
> [@Tripler](#):
>
> …
> Mmmmm. Hot State-on-State action.
🙂
Isn’t there another yet-again thread now on existing border disputes between states?
- [http://boards.straightdope.com/sdmb/showthread.php?t=809301](http://boards.straightdope.com/sdmb/showthread.php?t=809301) \*
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