Court Supreme

In 1804, Thomas Jefferson wrote that he believed that the Executive and Judicial branches had coordinate powers to enforce and interpret the Constitution. Jefferson believed that Congressionally passed Alien and Sedition Acts represented unconstitutional abridgement of freedom of speech. But the judges, most of whom had been appointed by federalist Presidents, believed otherwise. Wrote Jefferson:

• The Judges, believing the [Sedition Law] constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, was bound to remit [refuse] the execution of it. But the opinion which gives to the Judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislative and Executive also in their spheres, would make the Judiciary a despotic branch."

We have discussed two early cases regarding the Supreme Court's power in some detail. The Court's power has been refined in subsequent cases. In Martin v. Hunter's Lessee,the Supreme Court dealt with the refusal of the Virginia Supreme Court to obey a Supreme Court decision. The Judiciary Act had granted the Supreme Court jurisdiction to review State Court decisions in some circumstances. The Supreme Court had held that a Virginia decision violated a treaty. Subsequently, the Virginia Supreme Court itself ruled that the Judiciary Act's grant of power to review State Court decisions had been unconstitutional, and therefore refused the Supreme Court's mandate. In its 1816 decision, the Supreme Court rejected the Virginia Court's challenge to its authority. The Court pointed out that under Art. III, the judicial power extends to "all cases" arising out of federal law, not just those that are originated in federal court.

Then in Cohen v. Virginia, (1821) the Court dealt with a Virginia Court criminal conviction of a defendant who had sold a District of Columbia lottery ticket in violation of Virginia law. The lottery had, however, been authorized by and Act of Congress. Again, Virginia challenged the Supremacy of the Court. In its decision, the Court stated that the States are not independent sovereign nations, but rather members of a single nation, the United States. This power of the Supreme Court has remained controversial. Prior to the Civil War, the Courts of seven states denied the right of the Supreme Court to review their decisions, for example. Andrew Jackson railed against the Supreme Court as undemocratic. In 1832, Andrew Jackson wrote:

• "It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both."

There are other limitations on the Court's powers. For example, the Congress has Constitutional authority to create and abolish inferior courts. The number and composition of inferior courts may substantially affect the Court's power. For if there are few inferior courts, there are less federal judges available to afford remedies to local challenges to federal authority. In Stuart v. Laird, (1803) the Court upheld Congressional power to abolish inferior courts. Congress has at times established inferior courts with specialized jurisdiction, because it has been dissatisfied with the rulings of existing federal courts. For example, when the federal courts interfered with Roosevelt's wartime emergency price controls, Congress established a special Emergency Court of Appeals and removed jurisdiction over those appeals from the other federal courts. In Lockerty v. Phillips, ((1943) the Court upheld these provisions. And then in Yakus v. United States, the Supreme Court upheld a law which prohibited the regular federal courts from considering the invalidity of a price control as a defense even to a criminal prosecution. During the depression, Congress became concerned that the federal courts had become instruments of anti-labor movement forces, issuing injunctions against strikes and other labor activity. In the Norris-LaGuardia Act, Congress removed most federal courts' jurisdiction to issue injunctions in cases involving labor disputes. This power was upheld in Lauf v. E.G. Shinner & Co. (1938).

How far could this Congressional power go? Congress need not provide a lower court remedy for all federal legal violations. It would be permissible to relegate federal claims to state courts, subject to the Supreme Court's appellate jurisdiction. But could Congress remove a specific power even from the Supreme Court, by denying to the Supreme Court appellate jurisdiction over such appeals and at the same time denying that power to the lower federal courts. We can find some information about these issues in the post civil war cases involving habeas corpus. Notice that the Constitution expressly grants to Congress the authority to determine the Supreme Court's appellate jurisdiction. Theoretically, then, the Congress could deprive the Supreme Court of appellate jurisdiction over a specified class of cases, and fail to provide for lower court jurisdiction in that same class of cases.

In Ex Parte McCardle, the Supreme Court accepted an appeal of a Mississippi newspaper editor's appeal of a lower court's denial of a petition for writ of habeas corpus. McCardle was held under military authority pursuant to Reconstruction legislation. The writ allows a court free an improperly imprisoned person, if the jailer cannot show valid cause. Since the Supreme Court was deemed hostile to the Reconstruction process, Congress expected that the Court would use this case as an opportunity to strike down the Reconstruction laws. After the case had been argued to the Court, the Congress passed repealed the Court's appellate jurisdiction over habeas corpus appeals. The Court then dismissed the appeal for want of jurisdiction.

However, in United States v. Klein, the Supreme Court ruled unconstitutional a loyalty oath statute despite legislation which purported to deprive the Court of jurisdiction over that case. Most scholars believe that Congress may not deprive the Court of all avenues of jurisdiction to enforce Constitutional mandates