Article III: Judicial
Section 1
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour(sic) , and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section 3
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
(1) The high court generally has a great deal of leeway over its case load, but there are some cases they must accept.
Two statutes, 28 U.S.C. §§1253 and 2284(a), require the court to hear “reapportionment cases,” which deal with how states divvy up their territory for federal and state elections.
That’s “a serious problem because there are a lot of cases that come up,” via these statutes that would be the kind of case that the court “might deny cert in, to let the issue percolate,” Chief Justice John G. Roberts said in 2015. But “no, we have to decide it on the merits,” he said.
The court’s mandatory review in redistricting cases has its roots in Ex Parte Young, 209 U.S. 123 (1908).
In that case, the Supreme Court said that a federal judge could stop a state attorney general from enforcing an unconstitutional state statute, even in light of sovereign immunity doctrines, which limit suits against states
Nevertheless, both liberals and conservatives have used the special procedures associated with these redistricting cases to advance their causes at the Supreme Court.
When the courts hand down rulings that Congress doesn’t like, lawmakers sometimes retaliate by trying to take away their power to hear certain kinds of cases at all or strictly limiting what they can do.
Why does Congress get to take cases away from judges or change the rules for hearing them? Judges weren’t the heroes of the Revolution. They were appointed by the British crown. “So even after Independence, judges carried a lot of historical baggage. The Constitution’s drafters gave Congress weapons to use against the courts without giving judges much to defend themselves with. The president can draw his veto pen if Congress goes after him. The Supreme Court has to find a straight-faced way to declare a law unconstitutional when it weakens the judiciary’s powers.
A law Congress passed in 1996 says that the federal courts can’t grant a habeas petition that state courts have turned down unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” That is a high bar.
The federal courts can only look to see whether the Supreme Court has already said it’s not fair. If they don’t turn up a case that’s on point, they are to leave the state court’s decision untouched.
There are reasons for federal judges to defer to state judges—among them the principle of comity, according to which different branches of government show respect for one another, and the principle of finality, which in this context basically means that you get your habeas crack in the state courts, and that’s enough.
Work at the Supreme Court is divided into two main categories. One is deciding the cases it hears on the merits: the 70-some cases each year that the court selects for extensive briefing, oral argument and a substantial written opinion, sometimes with dissents. These are the cases we hear about in the news.
The orders docket includes nearly everything else the court must decide — which cases to hear, procedural matters in pending cases, and whether to grant a stay or injunction that pauses legal proceedings temporarily. There are no oral arguments in these cases and they are often decided with no explanation.
Despite their obscurity, these orders — there are thousands each year, if you count decisions not to hear cases — are significant. Different groups of justices dissented in some of the cases, but the court did not explain any of them.
This lack of transparency has a practical impact. Because the court doesn’t issue opinions in these cases, lawyers don’t know what legal standards to apply when litigating the issue again in the future. And because we don’t even know which justices have joined most of the orders, we don’t know which justices are responsible, and we don’t know whether the justices are being consistent and principled from case to case.
These procedural issues also affect the lower courts, which are supposed to follow Supreme Court precedent. But because the lower-court judges don’t know why the Supreme Court does what it does, they sometimes divide sharply when forced to interpret the court’s nonpronouncements. The orders can influence the substance of litigation, too, because a key factor in procedural cases is whether the claim has merit.
The court is in the spotlight more and more. Transparency in all its decisions is vital to its continued legitimacy. But, when all else fails, when the Judiciary becomes activist rather than deliberative, the elected representatives of the people can have their say through Congressional action.
Letting Congress strip the courts of the authority to hear certain claims or cases means giving more power to the people, who can elect their lawmakers but not their federal judges. From a pre-Revolutionary vantage point, that made sense… and it still does today.
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