Congress and the Supreme Court

A minor controversy— perhaps about to become a major one— has developed over the power of Congress to make “exceptions” to the appellate jurisdiction of the Supreme Court. A number of bills to make “exceptions” are now pending in Congress. The relevant language of the Constitution (Article III, Section 2) provides: “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.”

Mr. Howard P. Fink, a professor of law at Ohio State University, has taught federal jurisdiction courses for the last 16 years. Recently he asserted in an Op-Ed article in the New York Times that “only once in our history . . . has this ‘exceptions’ clause been used to impair Supreme Court jurisdiction.” And he went on to say that “many legal scholars [whom he does not identify] believe that Congress cannot validly use this ‘exceptions’ clause to impair Supreme Court jurisdiction . . .” The American Civil Liberties Union has expressed the belief that the bills now pending in Congress are unconstitutional. Mrs. Harriet Pilpel, a learned civil-liberties scholar, in an appearance on the TV show Firing Line denied the power of Congress to make “exceptions,” quoting as her authority a Professor Herrick, of the University of Chicago. According to Mrs. Pilpel, Professor Herrick had said, at the time of the appointment of Justice Brandeis, “that the Supreme Court has become the real law-creating body of our government.” (Professor Herrick’s remark seems more an observation of what has happened than a constitutional interpretation; considered as such, it is not without some validity. If so, the remark must be taken as a description of a violation of Article I of the Constitution providing that “all legislative powers hereby granted are vested in the Congress.”)

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C. Dickerman Williams

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A minor controversy— perhaps about to become a major one— has developed over the power of Congress to make “exceptions” to the appellate jurisdiction of the Supreme Court. A number of bills to make “exceptions” are now pending in Congress. The relevant language of the Constitution (Article III, Section 2) provides: “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.”

Mr. Howard P. Fink, a professor of law at Ohio State University, has taught federal jurisdiction courses for the last 16 years. Recently he asserted in an Op-Ed article in the New York Times that “only once in our history . . . has this ‘exceptions’ clause been used to impair Supreme Court jurisdiction.” And he went on to say that “many legal scholars [whom he does not identify] believe that Congress cannot validly use this ‘exceptions’ clause to impair Supreme Court jurisdiction . . .” The American Civil Liberties Union has expressed the belief that the bills now pending in Congress are unconstitutional. Mrs. Harriet Pilpel, a learned civil-liberties scholar, in an appearance on the TV show Firing Line denied the power of Congress to make “exceptions,” quoting as her authority a Professor Herrick, of the University of Chicago. According to Mrs. Pilpel, Professor Herrick had said, at the time of the appointment of Justice Brandeis, “that the Supreme Court has become the real law-creating body of our government.” (Professor Herrick’s remark seems more an observation of what has happened than a constitutional interpretation; considered as such, it is not without some validity. If so, the remark must be taken as a description of a violation of Article I of the Constitution providing that “all legislative powers hereby granted are vested in the Congress.”)