The Appellate Jurisdiction Clause

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.

—Chief Judge William H. Pryor Jr.

Introduction

Article III of the Constitution establishes two types of jurisdiction for the Supreme Court. First, there is “original Jurisdiction” over “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” (See Essay No. 134.) And second, there is “appellate Jurisdiction” in “all other Cases” listed in Article III, Section 2, Clause 1 that are not allocated to the Court’s “original Jurisdiction,” subject to congressional “Exceptions.” The Appellate Jurisdiction Clause has raised four issues at various points in U.S. history: (1) What is the meaning of “Appellate” in the clause? (2) Does the Court’s appellate jurisdiction extend to the judgments of state courts? (3) What is the effect of the extension of appellate jurisdiction to “both . . . Law and Fact”? And (4) what is the scope of Congress’s power to make “Exceptions” to the Court’s appellate jurisdiction?

History Before 1787

The Articles of Confederation gave the United States in Congress the “exclusive right and power” of “establishing courts for receiving and determining finally appeals in all cases of captures.”¹ In 1780, Congress created a Court of Appeals in Cases of Capture that was the “one permanent judicial body which the Confederation maintained.”² This court’s appellate jurisdiction permitted it to hear new evidence and did not require deference to state courts’ “findings of fact or law, even when the case had been tried by jury.”³

The Constitutional Convention

At the Constitutional Convention, the influential Virginia Plan would have established “One Supreme Tribunal” and allowed the “national Legislature [to] be empowered to appoint inferior Tribunals.”⁴ The supreme court would have exercised appellate jurisdiction in cases involving “the national peace and harmony” and a few enumerated categories.⁵ But the Virginia Plan did not give the legislature power to make exceptions to that appellate jurisdiction. Nor did it give the supreme court jurisdiction to review law as well as the factual determinations of the lower courts.

The delegates later tinkered with the scope of appellate jurisdiction. The state-friendly New Jersey Plan proposed that the Supreme Court would hear appeals “in all cases touching the rights of Ambassadors,” “cases of captures,” “cases of piracies & felonies on the high seas,” and “cases in which foreigners may be interested, in the construction of any treaty or treaties, or which may arise on any of the Acts for regulation of trade, or the collection of federal revenue.”⁶ Relatedly, some delegates argued that inferior federal courts were unnecessary. For example, John Rutledge of South Carolina argued that the creation of inferior courts would be “an unnecessary encroachment on the jurisdiction” of state courts.⁷

Nevertheless, there was widespread agreement that the Supreme Court would exercise appellate jurisdiction over state courts. Rutledge admitted that appeals to “the supreme national tribunal” were necessary “to secure the national rights & uniformity of Judgments.”⁸ Even the New Jersey Plan permitted appellate jurisdiction over state courts.⁹ In the end, the Convention left it to the Committee of Detail to fill in the particulars as Edmund Randolph of Virginia proposed.¹⁰

A Committee of Detail draft in Randolph’s handwriting gave Congress the power to make some exceptions to the Supreme Court’s appellate jurisdiction: “But this supreme jurisdiction shall be appellate only, except in those instances, in which the legislature shall make it original. and the legislature shall organize it.”¹¹ The draft also specified that in certain classes of cases, the Supreme Court would have jurisdiction only as “the national legislature [would] assign.”¹² Later, the Committee of Detail’s report contained the final wording of the Exceptions Clause.¹³ Exactly why the Committee chose this wording is not known.¹⁴ The Committee’s draft, however, did not grant the Supreme Court the power to review both “Law and Fact.”¹⁵ That language was added on the floor of the Convention. James Wilson of Pennsylvania stated that it was the Committee’s intention to extend appellate jurisdiction to “facts as well as law.”¹⁶

The Ratification Debates

The Appellate Jurisdiction Clause did not occasion much debate during the Constitutional Convention, but it would become controversial during the ratification debates. Brutus, a prominent Anti-Federalist, warned that “[t]he appellate jurisdiction granted to the supreme court” was “one of the most objectionable parts of the constitution.”¹⁷

The principal controversy centered on the grant of appellate jurisdiction “both as to law and fact.” The Anti-Federalist Federal Farmer contended that allowing the Supreme Court to review facts as determined by the inferior court would effectively abolish trial by jury—“the most noble and important principle of the common law.”¹⁸ In Federalist No. 81, Alexander Hamilton responded that appellate jurisdiction over law and fact might be limited to civil law and admiralty cases and added that, in any event, Congress could and would address this issue under its power to create exceptions to the Supreme Court’s appellate jurisdiction so that it would not disturb facts found by juries.

In 1789, the First Congress proposed the Seventh Amendment, which addressed the Anti-Federalists’ concerns.¹⁹ It guaranteed that “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”²⁰ (See Essay Nos. 182 and 183.)

Appellate versus Original Jurisdiction

In Marbury v. Madison (1803), William Marbury asked the Supreme Court in its original jurisdiction to order Secretary of State James Madison to deliver Marbury’s judicial commission. The Court held that it lacked the power to grant a writ of mandamus because Article III fixed the Court’s original jurisdiction.²¹ Chief Justice John Marshall explained that Marbury had not invoked what was understood to be the appellate jurisdiction of the Supreme Court: “It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.”²² That is, Marbury’s mandamus request was not directed to a lower court where a cause had been instituted; instead, it was directed in the first instance to the Secretary of State to deliver the commission. Marshall concluded that Marbury’s request “seems not to belong to appellate, but to original jurisdiction.”²³ Marbury’s definition of appellate jurisdiction would prove influential.

The Supreme Court would next address its appellate jurisdiction in Ex parte Bollman.²⁴ Erick Bollman was implicated in an alleged treason plot involving Aaron Burr. After a federal circuit court found probable cause to order Bollman to stand trial for treason, Bollman sought a writ of habeas corpus in the Supreme Court under Section 14 of the Judiciary Act of 1789.²⁵ Was Bollman’s petition an appeal from the circuit court’s ruling, or was his petition a new action within the Supreme Court’s original jurisdiction? The Court held that the habeas petition fell within the Court’s appellate jurisdiction.²⁶ Marshall relied on his discussion of original and appellate jurisdiction in Marbury and acknowledged that the writ was sought in the first instance in the Supreme Court. But that application still implicated the Court’s appellate jurisdiction because the application sought “the revision of a decision of an inferior court, by which a citizen has been committed to jail.”²⁷ Following Bollman, an “original” petition for a writ in the Supreme Court has been deemed to fall within the Court’s appellate jurisdiction as long as the writ concerns or is directed to an inferior court proceeding previously instituted.²⁸

Appellate Jurisdiction over State Courts

During the Philadelphia Convention, “it was universally assumed that the Supreme Court would have jurisdiction to review the decisions of state courts on matters of federal concern.”²⁹ Nonetheless, the issue was widely contested in early American history.³⁰ It also inevitably came before the Supreme Court, where it was resolved in two of the Court’s most famous early decisions. First, Martin v. Hunter’s Lessee (1816) upheld the constitutionality of Section 25 of Judiciary Act of 1789, which gave the Court appellate jurisdiction over state civil decisions that denied the validity of a federal claim.³¹ And second, Cohens v. Virginia (1821) upheld the Supreme Court’s appellate jurisdiction under Article III to review state criminal cases.³²

In Ableman v. Booth (1858), the Supreme Court observed that “this ultimate appellate power in a tribunal created by the Constitution itself was deemed essential to secure the independence and supremacy of the General Government in the sphere of action assigned to it; to make the Constitution and laws of the United States uniform, and the same in every State.”³³

The Exceptions Clause

The Supreme Court’s appellate jurisdiction is subject to “such Exceptions, and under such Regulations as the Congress shall make.”³⁴ This provision, known as the Exceptions Clause, has raised two issues: how to construe statutory conferrals of appellate jurisdiction in light of the clause and the scope of Congress’s power to create “Exceptions.”

The Judiciary Act of 1789 provided that the Supreme Court might “re-examine[]” certain non-criminal federal circuit court decisions and state court decisions that denied a federal claim.³⁵ The act purported to grant the Court appellate review over these cases, but Durousseau v. United States (1810) held that the Court’s appellate jurisdiction was established by the Constitution, not Congress.³⁶

The seminal decision on the meaning of the Exceptions Clause is Ex Parte McCardle (1868). William McCardle, a Mississippi newspaper editor, was placed in military custody. A circuit court denied his habeas petition. McCardle thereafter appealed to the Supreme Court pursuant to the Habeas Corpus Act of 1867. After the Court heard oral argument, Congress repealed the provisions of the 1867 statute that had authorized Supreme Court review. The Court concluded that Congress had created an exception to its appellate jurisdiction. Therefore, even at that late date, the Court no longer had jurisdiction to decide the case. The Court stated, “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.”³⁷ McCardle provides the basis for the concept known as jurisdiction stripping. The Court later affirmed Congress’s broad power to make exceptions to its appellate jurisdiction.³⁸

United States v. Klein (1871) may have qualified McCardle. In Klein, Congress purported to alter the Court’s appellate jurisdiction to change the effect of a presidential pardon. The Court, however, held that Congress could not make such an exception or “prescribe rules of decision to the Judicial Department of the government in cases pending before it.”³⁹ But Klein also made clear that if Congress had “simply denied the right of appeal in a particular class of cases, there could be no doubt that it must be regarded as an exercise of the power of Congress to make ‘such exceptions from the appellate jurisdiction’ as should seem to it expedient.”⁴⁰

Open Questions

• Professor Akhil Amar has argued that Congress cannot create exceptions for cases in the first three heads of Article III, Section 2, Clause 1 if such jurisdiction is denied to lower federal courts.⁴¹ This view may find some support in dicta from Martin v. Hunter’s Lessee,⁴² but it finds little support in Supreme Court case law.
• The Habeas Corpus Clause, also known as the Suspension Clause,⁴³ grants Congress the power to “suspend” the “Privilege of the Writ of Habeas Corpus.” (See Essay No. 68.) The relationship between the Exceptions Clause and the Suspension Clause remains uncertain.⁴⁴ Does the constitutional right to habeas corpus relief, as recognized in Boumediene v. Bush (2008), impose a limit on Congress’s power to make exceptions to the Supreme Court’s appellate jurisdiction?⁴⁵ McCardle and later cases went to great lengths to construe congressional abrogation of Supreme Court appellate review as not eliminating statutory habeas jurisdiction.⁴⁶

1. Articles of Confederation, art. IX, § 1. ↩︎
2. J. Franklin Jameson, The Predecessor of the Supreme Court, in Essays in the Constitutional History of the United States in the Formative Period 1775–1789, 4 (J. Franklin Jameson ed., 1889). ↩︎
3. Thomas H. Lee, Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787–92, 89 Fordham L. Rev. 1895, 1903 (2021). ↩︎
4. 1 Farrand’s 22. ↩︎
5. Id. ↩︎
6. Id. at 244. ↩︎
7. Id. at 124. ↩︎
8. Id. ↩︎
9. Id. at 243–44. ↩︎
10. Id. at 238. ↩︎
11. 2 Farrand’s 147 (punctuation as in original). ↩︎
12. Id. ↩︎
13. Id. at 186. ↩︎
14. John Eidsmoe, The Article III Exceptions Clause: Any Exceptions to the Power of Congress to Make Exceptions?, 19 Regent U. L. Rev. 96, 106 (2006). ↩︎
15. 2 Farrand’s 186. ↩︎
16. Id. at 431. ↩︎
17. Storing 2.9.169. ↩︎
18. Id. ↩︎
19. Edith Guild Henderson, The Background of the Seventh Amendment, 80 Harv. L. Rev. 289, 291–99 (1966). ↩︎
20. Amend. VII. ↩︎
21. 5 U.S. (1 Cranch) 137, 174–75 (1803). ↩︎
22. Id. at 175. ↩︎
23. Id. at 175–76. ↩︎
24. 8 U.S. (4 Cranch) 75 (1807). ↩︎
25. Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 73, 81–82. ↩︎
26. Id. at 101. ↩︎
27. Id. ↩︎
28. Felker v. Turpin, 518 U.S. 651, 667 n.1 (1996) (Souter, J. concurring); Ex parte Yerger, 75 U.S. (8 Wall.) 85, 103 (1868); Ex parte Watkins, 32 U.S. (7 Pet.) 568, 572–73 (1833). ↩︎
29. Richard H. Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts and the Federal System 19 (7th ed. 2015). ↩︎
30. Id. at 474. ↩︎
31. 14 U.S. (1 Wheat.) 304 (1816). ↩︎
32. 19 U.S. (6 Wheat.) 264 (1821). ↩︎
33. 62 U.S. (21 How.) 506, 518 (1858). ↩︎
34. Art. III, § 2, cl. 2. ↩︎
35. Judiciary Act of 1789, ch. 20, §§ 22, 25, 1 Stat. 73, 84; Id. § 25. ↩︎
36. Durousseau v. United States, 10 U.S. (6 Cranch) 307, 314 (1810). ↩︎
37. McCardle, 74 U.S. (7 Wall.) at 514. ↩︎
38. The Francis Wright, 105 U.S. 381 (1881). ↩︎
39. 80 U.S. (13 Wall.) 128, 146 (1871). ↩︎
40. Id. at 145. ↩︎
41. Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205 (1985). ↩︎
42. 14 U.S. (1 Wheat.) at 328–33. ↩︎
43. Art. I, § 9, cl. 2. ↩︎
44. Richard H. Fallon, Jr., Jurisdiction-Stripping Reconsidered, 96 Va. L. Rev. 1043, 1053 (2013). ↩︎
45. 553 U.S. 723 (2008). ↩︎
46. McCardle, 74 U.S. (7 Wall.) at 514; Yerger, 75 U.S. (8 Wall.) at 104–06; INS v. St. Cyr., 533 U.S. 289 (2001). ↩︎