News & Events

Print/PDF this page:

Print Friendly and PDF

Share this page:

Opening the Door--A Commentary by Prof. Judith Resnik

(This essay originally appeared on Slate.com on February 1, 2006.)

Opening the Door
By Judith Resnik, Arthur Liman Professor of Law

Court stripping: unconscionable and unconstitutional?

Jurisdiction. The topic sounds technical and boring. But it is a central idea in American constitutional law and the key to the power the federal courts do -- or do not hold -- over people, property, life, death, and torture.

Last December, the Detainee Treatment Act of 2005 became law, putting Congress on record as prohibiting "cruel, inhuman, or degrading treatment" of American captives. But an amendment, added through a compromise by Sens. Lindsey Graham and Carl Levin, purports to limit the courts' jurisdiction to enforce that proposition. Graham-Levin (as it is known) is the troubling underbelly of the DTA -- providing that "No court, justice or judge shall have jurisdiction to hear or consider" applications for habeas corpus or "any action against the United States" brought by aliens detained at Guantanamo Bay. Left open are narrow routes to the courthouse, available only after people have been dealt with by the special military procedures the president established after 9/11. Thereafter, they can go to only the D.C. Circuit Court of Appeals, which has the discretion to refuse to hear them. In short, the amendment is aimed at limiting detainees' access to courts.

Graham-Levin does not explain what is to happen to people detained at Guantanamo and protesting that the military commissions violate U.S. law, or to people the government has not classified or tried, or to those who say they are mistreated. But within days of the passage of the DTA, the federal government relied on the bill to seek dismissals of some 160 lower court cases involving detainees at Guantanamo. And the government has asked the Supreme Court to dismiss the pending case of Hamdan v. Rumsfeld, challenging the legality of subjecting individuals to trials (and sentences including the death penalty) in the commission system created by the president. Yesterday, Hamdan?s lawyers filed their brief disputing that position.

Two questions, one statutory and the other constitutional, are now before the court. The first problem is how to make sense of the DTA, with its confusing subparts. Interpreting Graham-Levin as not applying to pending questions would be one way to avoid the larger, constitutional question: Can Congress -- if it used the right language -- really shut off access to courts? What about the idea of an independent judiciary? Constitutional commitments to separation of powers? The due process clause? The right to petition for redress? Equal protection? And the ancient writ of habeas corpus?

These questions have a new saliency but are as old as the United States. They are the product of debate by the Constitution's framers, who decided that some kind of national court system was needed but had different views on how much of a system to create. They compromised as they wrote Article III -- the part of the Constitution dedicated to the federal courts -- by providing that the "judicial Power ? shall be vested in one supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish."

While the Constitution gives the Supreme Court the role of being a court of first instance when cases affect "Ambassadors, other public Ministers and Consuls, and those in which the State shall be a party," Article III notes that the Supreme Court's appellate jurisdiction is subject to "such Exceptions and under such Regulations, as the Congress shall make."

How do all these words cash out? For some legal scholars, the answer is that Congress has plenary power over the appellate jurisdiction of the Supreme Court and the entire lower federal judiciary. But other readers, relying on an "internal" approach -- based on a close reading of the words and punctuation of Article III -- say the best way to make sense of the six paragraphs creating the judiciary is to see congressional power as more limited. For example, Supreme Court Justice Joseph Story, writing in the 1800s and looking at the part of Article III specifying that the "judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution" believed that it meant jurisdiction automatically vested in some federal court. The words "shall" and "all" were too important to ignore. Others have argued that the Constitution's mention of congressional power to make "exceptions and regulations" would be incoherent without some minimal jurisdiction for courts. And why would the Constitution specify how to select judges and protect their salaries and tenure, if they could be left with no jurisdiction through acts of Congress?

Move from parsing Article III's words to what constitutional scholars call the "external constraints" -- that is, other parts of the Constitution, which Congress cannot violate. The Equal Protection Clause, for example, instructs Congress not to give jurisdiction only to people of certain races or ethnicities. Similarly, the constitutional guarantee of the writ of habeas corpus permits suspension only upon findings that "Rebellion," "Invasion," or if public safety requires it. And due process guarantees speak to the idea that some court -- state or federal -- with independent decision-makers must be available to hear claims of right.

Move even further now, beyond the specifics of any clauses of the Constitution, to "structural" arguments. The Constitution created three branches of government and committed itself (and us) to a system of separated powers, checking, balancing, and not encroaching. The words endowing one branch with power should not be read to undermine the essential function of another branch. The structure of the three coequal branches thus makes implausible the idea that Congress could give no funds to the federal courts or close all the facilities, or end all the lower courts' jurisdiction.

Such painstaking debates have done more than provide the grist for law professors to get tenure. Article III is the text that framed Marbury v. Madison, the 1803 decision by Chief Justice John Marshall establishing the power of judicial review. Unlike the jurisdiction-stripping parts of the DTA, Marbury turned on whether Congress could give the Supreme Court more original jurisdiction that the Constitution detailed; Marshall ruled that Congress could not.

The court faced a variant of the question during the Civil War, when the issue was not giving more but taking away jurisdiction. Congress tried to stop the Supreme Court in the 1860s from ruling on the constitutionality of the Reconstruction. A newspaper editor, William H. McCardle, who was a vehement objector, challenged his detention by the military command. As the case was pending, Congress plucked it from the court by repealing the legislative basis on which the Supreme Court had taken the case. The court upheld that repeal while noting that other routes to justice were open. A few other odd-lot precedents exist. One 19th-century case refused to permit Congress to overturn the court's interpretation of a presidential pardon relating to loyalty to the Union. Another, after World War II, found that no jurisdiction existed for prisoners of war to bring habeas petitions in the United States. Generally, these and other opinions are fact-specific, focused on the nitty gritty of individual statutes and the facts. Moreover, many are dated, decided before the court had announced a host of individual rights and liberties.

During the second half of the 20th century, as federal courts that had once protected corporations and property came to recognize the rights of African-Americans, women, and criminal defendants, members of Congress would routinely register objections by proposing to take jurisdiction over some set of cases away. While limitations on certain kinds of remedies (injunctions against unions, or against state rate making) were imposed, most of these bills did not pass. Law professors used proposed bills stripping court jurisdiction over topics ranging from school prayer and busing to abortion as hypotheticals, to practice students on trying to figure out exactly what constitutional powers Congress had over the federal courts.

In the 1990s, however, the hypothetical became real. Congress enacted sharp limits relating to the courts' jurisdiction over immigration. Soon thereafter, a majority of the Supreme Court read the terms of the statute narrowly, concluding that when Congress had not used clear and plain language in the text of a statute cutting off all routes to courts, their doors remained ajar.

The 2005 Detainee Treatment Act now presents the next case: The Supreme Court could lower the stakes for everyone if it continues its pattern of insisting that, if and when Congress wants to raise the breathtaking question of the outer boundaries of its own power to close courthouse doors, Congress has to make that clear in the text of its statutes. The DTA does not explicitly address the Supreme Court's appellate jurisdiction, nor did Congress find in the DTA that rebellion, invasion, and public safety require suspending the writ of habeas corpus. The ambiguities in the DTA itself could thus stave off having to decide definitively a question that Congress, the courts, and the Executive have avoided for over 200 years: by answering the puzzle of exactly how much control Congress has over the judiciary through finding that a door remains ajar


Judith Resnik is the Arthur Liman Professor of Law at Yale Law School and she is part of a group of law professors who have filed an amicus brief in support of the Supreme Court's continuing jurisdiction in Hamdan v. Rumsfeld.