The Supreme Court's Quiet Revolution: Redefining the Meaning of Jurisdiction

C. The Clear Statement Approach Is Retroactive Clear statement rules often are justified on grounds that they promote dialogue between the legislative and judicial branches. (204) However, the Supreme Court's clear statement rule for jurisdiction does not promote this sort of clarity because it often applies retroactively, thereby compromising "the reliability of background expectations that are essential to effective communication between Congress and the judiciary." (205) From the Marshall Court through at least the mid-nineteenth century, courts were likely to view procedural requirements as jurisdictional. (206) Beginning in the late 1990s, the Supreme Court narrowed its definition of jurisdiction, and in so doing, reversed that presumption. Arbaugh's clear statement principle now enforces a more limited view of the term jurisdiction. The Court presumes that Congress intended a condition to suit to operate nonjurisdictionally, unless Congress clearly says otherwise. (20)' The Court has held all sorts of preexisting procedural requirements to be nonjurisdictional, even those previously labeled "jurisdictional." (208) In fact, the Court's narrowing of the scope of the term jurisdiction has been so disruptive to prior precedent that Justice Scalia (the author of Steel Co. and its mandate to bring some discipline to jurisdictional cases) remarked that the Supreme Court's new presumption "shows signs of becoming a libertine, liberating romp through [the Court's] established jurisprudence." (209) There is no question that the Court's methodological approach has changed dramatically from the Marshall Court to the Taney Court to the current Court. But can the different approaches be explained by the different consequences that attached to a jurisdictional statute at different times in our history? The Supreme Court has used the term jurisdiction to mean different things at different times. For example, the federal courts did not generally treat jurisdiction rigidly until around 1900, (210) and Michael Collins argues that "certain of the qualities commonly associated with" limited subject matter jurisdiction "remained less than fully settled throughout much of the nation's history." (211) Although the Supreme Court's changing conception of jurisdiction may blunt the effects of its clear statement rule, the rule often operates retroactively because it is only in the last few decades that the Court retreated from the view that procedural requirements are often jurisdictional. Yet the consequences we ordinarily associate with jurisdiction, namely nonwaivability, attended jurisdictional statutes well before the Court's clear statement rule. In the 1868 case of Edmonson v. Bloomshire, the plaintiffs had failed to timely file the record with the Supreme Court. (212) The jurisdictional objection was first raised at oral argument. (213) The Supreme Court dismissed despite the fact that both parties had fully argued the case on the merits and counsel never objected to the regularity of the appeal. (214) The Court rejected the argument that a motion to dismiss was required before the case proceeded to a hearing. (215) The reason, the Court wrote, "is, that the writ of error and the appeal are the foundations of our jurisdiction, without which we have no right to revise the action of the inferior court." (216) The Court "ha[d] never hesitated" to dismiss a case on such grounds "although no motion to dismiss was made by either party." (217) "In fact, treating it as a matter involving the jurisdiction of the court, we cannot do otherwise." (218) The retroactivity of the clear statement approach is confirmed by prior case law rejecting the efficiency rationale that currently animates that approach. Despite the serious consequences that attended a jurisdictional ruling by at least 1868, the mid-nineteenth-century Court did not view inconvenience, a waste of time and effort on the part of litigants or courts, or even unfairness to blameless litigants, as grounds upon which to conclude that a statutory precondition to suit was nonjurisdictional. …