Jurisdiction
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Supreme Court is so broad that in one instance—the case of Ex parte
McCardle (1868)—the Congress actually repealed the act which authorized the appeal in the case, thereby withdrawing jurisdiction while the
case was being decided. Numerous restrictions on the Court’s appellate
jurisdiction have been upheld since the earliest days of the Republic. For
a hundred years, for example, Congress refused to provide for a right of
appeal to the Supreme Court in Federal criminal cases, except upon a certification of division by the circuit court. By and large, however, the Congress has been extremely reluctant to limit the Court’s jurisdiction, and
the general pattern of legislation over the years has reflected a desire to
expand rather than decrease it.
Hence, much of the power presently enjoyed by the Supreme Court
may be attributed to a friendly Congress. Efforts in Congress, particularly since the Second World War, to withdraw the Court’s jurisdiction in
cases involving such controversial issues as abortion and prayer in the
public schools have failed to gain majority support. Though Congress
has the power, therefore, to strip the Court of all of its appellate jurisdiction, it has never withdrawn a meaningful portion of it. The tendency has
been to give the Court almost all of the appellate jurisdiction it can take,
and to let the Court retain it once it has been granted. Congressional control of the Federal Judiciary, in other words, is more a question of theory
than of practice.
This brings us finally to the jurisdiction of the lower Federal courts.
The second clause of Article III, Section 2 refers to the original and appellate jurisdiction of the Supreme Court, but makes no mention of inferior Federal courts. What type of jurisdiction may they possess, and to
what extent may Congress regulate their jurisdiction? The answer to
these questions lies in the first clause of Article III, Section 2, which authorizes Congress to create such courts. The thought that it would not be
necessary to create any inferior courts was expressed in the Philadelphia
Convention. Since State judges were bound under Article VI to uphold the
supremacy of the Constitution, Federal laws and treaties—irrespective of
what their State constitutions might require—the possibility was raised of
letting the State courts handle all Federal cases. The first Congress rejected this option, however, in the Judiciary Act of 1789. This legislation
organizing the Federal Judiciary, it should be noted, is one of the most