The Judiciary


Ex. parte McCardle (1869)

74 U.S. 506 (1869)

Vote: 8-0
Decision: Dismissed for want of jurisdiction
Majority: Chase, joined by Nelson, Grier, Clifford, Swayne, Miller, Davis, and Field

The CHIEF JUSTICE delivered the opinion of the court.

The first question necessarily is that of jurisdiction; for, if the act of March, 1868, takes away the jurisdiction defined by the act of February, 1867, it is useless, if not improper, to enter into any discussion of other questions.

It is quite true, as was argued by the counsel for the petitioner, that the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred by the Constitution. But it is conferred “with such exceptions and under such regulations as Congress shall make.” …

[A]cts of Congress, providing for the exercise of jurisdiction, should come to be spoken of as acts granting jurisdiction, and not as acts making exceptions to the constitutional grant of it.

The exception to appellate jurisdiction in this case however is not an interference from the affirmation of other appellate jurisdiction. It is made in terms. The provision of the act of 1867 affirming the appellate jurisdiction of this court in cases of habeas corpus is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception.

We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.

What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause …

It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.

Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised.

The appeal of the petitioner in this case must be


Patchak v. Zinke (2018)

583 U.S. ___ (2018)

Vote: 6-3
Decision: Affirmed
Plurality: Thomas, joined by Breyer, Alito, Kagan
Concurrence: Breyer
Concurrence: Ginsburg (in judgment), joined by Sotomayor
Concurrence: Sotomayor (in judgment)
Dissent: Roberts, joined by Kennedy Gorsuch

JUSTICE THOMAS announced the judgment of the Court and delivered an opinion, in which JUSTICE BREYER, JUSTICE ALITO, and JUSTICE KAGAN join.

Petitioner, David Patchak, sued the Secretary of the Interior for taking land into trust on behalf of an Indian Tribe. While his suit was pending in the District Court, Congress enacted the … Gun Lake Act or Act … which provides that suits relating to the land “shall not be filed or maintained in a Federal court and shall be promptly dismissed.” Patchak contends that, in enacting this statute, Congress impermissibly infringed the judicial power that Article III of the Constitution vests exclusively in the Judicial Branch. Because we disagree, we affirm the judgment of the United States Court of Appeals for the District of Columbia Circuit …

The separation of powers, among other things, prevents Congress from exercising the judicial power … One way that Congress can cross the line from legislative power to judicial power is by “usurp[ing] a court’s power to interpret and apply the law to the [circumstances] before it.” … The simplest example would be a statute that says, “In Smith v. Jones, Smith wins.” … At the same time, the legislative power is the power to make law, and Congress can make laws that apply retroactively to pending lawsuits, even when it effectively ensures that one side wins …

To distinguish between permissible exercises of the legislative power and impermissible infringements of the judicial power, this Court’s precedents establish the following rule: Congress violates Article III when it “compel[s] … findings or results under old law” … But Congress does not violate Article III when it “changes the law.” …

Statutes that strip jurisdiction “chang[e] the law” for the purpose of Article III … just as much as other exercises of Congress’ legislative authority. Article I permits Congress “[t]o constitute Tribunals inferior to the supreme Court,” §8, and Article III vests the judicial power “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” §1. These provisions reflect the so-called Madisonian Compromise, which resolved the Framers’ disagreement about creating lower federal courts by leaving that decision to Congress …

Indeed, this Court has held that Congress generally does not violate Article III when it strips federal jurisdiction over a class of cases. Shortly after the Civil War, for example, Congress repealed this Court’s appellate jurisdiction over certain habeas corpus cases … William McCardle, a military prisoner whose appeal was pending at the time, argued that the repealing statute was “an exercise by the Congress of judicial power.” This Court disagreed. Jurisdiction-stripping statutes, the Court explained, do not involve “the exercise of judicial power” or “legislative interference with courts in the exercising of continuing jurisdiction … ”

This Court has reaffirmed these principles on many occasions. Congress generally does not infringe the judicial power when it strips jurisdiction because, with limited exceptions, a congressional grant of jurisdiction is a prerequisite to the exercise of judicial power …

We doubt that the constitutional line separating the legislative and judicial powers turns on factors such as a court’s doubts about Congress’ unexpressed motives, the number of “cases [that] were pending when the provision was enacted,” or the time left on the statute of limitations … But even if it did, we disagree with the dissent’s characterization of §2(b). Nothing on the face of §2(b) is limited to Patchak’s case, or even to his challenge under the Indian Reorganization Act. Instead, the text extends to all suits “relating to” the Bradley Property. Thus, §2(b) survives even under the dissent’s theory: It “prospectively govern[s] an open-ended class of disputes” …

We conclude that §2(b) of the Gun Lake Act does not violate Article III of the Constitution. The judgment of the Court of Appeals is, therefore, affirmed.

It is so ordered.


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