The Structural Safeguards of Federal Jurisdiction

ARTICLE THE STRUCTURAL SAFEGUARDS OF FEDERAL JURISDICTION TABLE OF CONTENTS I. INTRODUCTION 870 II. THE THEORY 874 A. The Search for a Judicially Enforceable Baseline in 874 Article III B. The Structural Safeguards of Article I 880 III. STRUCTURAL VETO POINTS IN POST-CIVIL WAR AMERICA 888 A. Jurisdictional Battle: Suits Involving Corporations 890 1. Establishing the Battleground: The Jurisdictional 891 Expansion of 1875 2. Jurisdiction-Stripping Efforts: 1875-1890 893 B. Jurisdiction Stripping in a Changing Party System: 896 1891-1912 IV. STRUCTURAL VETO POINTS IN THE MODERN ERA 900 A. Jurisdiction-Stripping Efforts: 1970s and 1980s 900 1. School Prayer 902 2. Busing 907 B. Present Day: Pledge and Marriage Protection Acts 911 V. THE SCOPE AND LIMITS OF STRUCTURAL SAFEGUARDS 916 A. Successful Efforts to Strip Inferior Federal Court 916 Jurisdiction B. Special Safeguards for Supreme Court Review 920 1. Possible Explanations for the Supreme Court's "Special 921 Safeguards" 2. Breakdown in the Article I Process 922 C. Implications 927 VI. CONCLUSION 932 APPENDIX 933 Scholars have long debated Congress's power to curb federal jurisdiction and have consistently assumed that the constitutional limits on Congress's authority (if any) must be judicially enforceable and found in the text and structure of Article III. In this Article, I challenge that fundamental assumption. I argue that the primary constitutional protection for the federal judiciary lies instead in the bicameralism and presentment requirements of Article I. These Article I lawmaking procedures give competing political factions (even political minorities) considerable power to "veto" legislation. Drawing on recent social science and legal scholarship, I argue that political factions are particularly likely to use their structural veto to block jurisdiction-stripping legislation favored by their opponents. Notably, this structural argument is supported by the history of congressional control over federal jurisdiction. When the federal courts have issued controversial opinions that trigger wide public condemnation, supporters of the judiciary--even when they were only a political minority in Congress--repeatedly used their structural veto to block jurisdiction-stripping proposals. This structural approach also provides one answer to a puzzle that has particularly troubled scholars: whether there are any constitutional limits on Congress's authority to make "exceptions" to the Supreme Court's appellate jurisdiction. The structural safeguards of Article I have proven especially effective at preventing encroachments on the Supreme Court's Article III appellate review power. I. Introduction There is a recurring concern among scholars of federal courTs and federal jurisdiction that Article III is at war with itself. (1) Article III states that "[t]he judicial Power ... shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." (2) That provision further states that this "judicial Power shall extend to all Cases" arising under federal law, (3) and that the Supreme Court "shall have appellate Jurisdiction" over such federal question cases. …