MORE ON JURISDICTION-STRIPPING, a.k.a. Can't we just say the Supreme Court doesn't get to impose same-sex marriage?: Sasha Volokh

A note on jurisdiction-stripping: About Eugene's post below, whether a statute can deprive the Supreme Court of jurisdiction is actually not clear. ...

But various commentators (see Hart, 66 Harv. L. Rev. 1362 (1953); Ratner, 109 U. Pa. L. Rev. 157 (1960)) argue that there's an implied condition in the Constitution that Congress can't negate the Court's "essential constitutional functions of maintaining the uniformity and supremacy of federal law" -- a theory that could deny Congress power to strip the Court of jurisdiction in a particular class of cases like abortion cases, Pledge cases, DOMA cases, and so on. ...

So, the Constitution says Congress can make "exceptions" to the Supreme Court's jurisdiction, perhaps suggestion that any exceptions are O.K.? The Supreme Court's last word is either "anything goes" (1869) or "some jurisdiction stripping is unacceptable" (1871), and aside from that, all we're left with are some reasonable-sounding arguments from academics.

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posted by Eve at 1:44 PM | link

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