One of the few ways in which Congress retains some control over the life-tenured Supreme Court Justices is through its power to strip the Court of jurisdiction to hear certain categories of cases under the Constitution’s “Exceptions Clause,” which provides that the Supreme Court’s appellate jurisdiction is subject to “such Exceptions, and . . . such Regulations as the Congress shall make.”  Although legal scholars debate the scope of Congress’s power under the Exceptions Clause, thus far all assumed that it empowers Congress at the expense of the Court.  In a forthcoming article, Professor Tara Grove boldly takes the opposite view.  Grove contends that the “Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role.”

Grove’s argument is based in part on social science research showing that political actors are happy to delegate at least some decisions to courts because they settle disputes in a manner that promotes stability and uniformity.  The strongest evidence to support her thesis, however, is experience itself.  Although on rare occasions Congress has taken controversial cases or issues away from the Court, Grove points out that far more often Congress has used its Exceptions Clause power to expand Supreme Court jurisdiction and to give the Court more control over its docket.  For example, the Judiciary Act of 1891 simultaneously enlarged Supreme Court jurisdiction and granted the Court discretion over some of its caseload through certiorari review.  That trend continued throughout the twentieth century, leaving us where we are today – with a Court that has almost complete control over its docket.

Although I still view the Exceptions Clause as a potential check on the Court’s authority — in part because the threat of jurisdiction-stripping alone may influence the Court’s behavior, even if Congress rarely acts on it — Grove’s article makes a convincing case that the Clause can, and often has, been used by Congress to benefit the Court.  In short, her article provides an important new perspective on the relationship between Congress and the Court.

Posted in Academic Round-up

Recommended Citation: Amanda Frost, Academic highlight, SCOTUSblog (May. 4, 2012, 11:05 AM),