On Wednesday, the Supreme Court’s single hearing will focus on a case that is quite narrow but is unfolding against a broad historical background on Congress’s power to control the work of the federal courts, including the Supreme Court. Some critics now want to use that power to rein in an unpopular Court.
The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
Tomorrow’s hearing: Wilkins v. United States Scheduled for one hour, the hearing will begin at 10 a.m.
Background: Since 1803, the Supreme Court and Congress have engaged in a delicate constitutional minuet, not always in step with each other, over the power of Congress to grant or take away the powers of the Court. That year brought the Court’s famous decision in Marbury v. Madison, claiming for itself the power to strike down acts of Congress that it found had violated the Constitution.
In 1789, Congress passed the first federal law setting up the federal court system and assigning tasks to the Supreme Court (which had already been created directly by the Constitution’s Article III) and tasks to be performed by the newly created lower courts. In passing that law, Congress was using its assignment under Article III to spell out the jurisdiction of the Court. Without clear jurisdiction (court authority to decide), no court can rule. Those who wrote the Constitution wanted to keep federal judicial power in check, so they specified that grants of power should be clearly spelled out.
Article III provided a limited list of the kinds of cases the Supreme Court could decide directly, without the controversy going first through lower courts. An example of that is the power to decide disputes between states – say, over a boundary line. Beyond that specific list, any other dispute had to begin in lower courts, with a later appeal to the Supreme Court possible.
In Section 13 of the 1789 law, however, Congress added to that list, giving the Court the authority to direct government officials to act or not to act (technically, to issue a writ of mandamus). In the Marbury decision, the Court ruled that such authority could not be handed to the Court, and – declaring for the first time that it had the authority to “say what the law is” – nullified that provision as unconstitutional.
It has been true, ever since, that Congress has considerable power to define the jurisdiction of the Court and lower federal courts, but a basic question that has lingered throughout history is just how much power Congress actually has in this area.
In recent years, the Court has been making a special effort to clear up confusion about when a court does, or does not, have jurisdiction. In 1998, for example, it commented that “jurisdiction is a word of many, too many, meanings.” It has been worried about labeling laws defining court powers as jurisdictional because, if a court lacks that, a case must end immediately when that lack becomes clear.
A challenge to jurisdiction can come at any time as a case proceeds, and a court must decide it right then before any further proceedings. If the lack of jurisdiction is clear at the very beginning, a case gets shut down. It is not unusual, after one side loses in a case, to raise the question of jurisdiction to try to upset its loss. One result is that disputes over the issue can become a matter of legal gamesmanship. They also can waste the courts’ time.
The Supreme Court, in a 2011 decision on this issue, commented: “Because the consequences that attach to the jurisdictional label may be so drastic, we have tried in recent cases to bring some discipline to the use of the term.”
The resulting trend, so far only partially developed, has been for the Court to treat laws regulating court procedures as guidance on how to proceed, even if the law seems to make a specific procedure mandatory. For example, it has allowed deadlines for filing some lawsuits to be suspended, rather than literally enforced, in order to save some opportunity to sue in federal court.
The Court has declared that, only if Congress has dictated that a specific limit on jurisdiction is spelled out clearly and explicitly as a control on jurisdiction, will it be found to be binding on the courts. That technique, of course, allows the Court to protect the courts’ authority to decide more cases, and dismiss fewer, without seeming to be engaging in outright defiance of Congress. If Congress disagrees with how this is done in a given instance, it can pass a clearer version.
One difficulty with that, from Congress’s perspective, is that the legislative process does not always result in unambiguous laws because bills often require compromise among politicians, always subjected to pressure from lobbyists.
The case to be heard by the Justices on Tuesday illustrates what has been happening, in a very specific legal setting – a narrow one but a broader look at this technical issue of jurisdiction adds potential significance.
The facts of this case: Because the federal government is a sovereign power, it cannot be sued in any court without its consent. Congress, though, quite often gives consent. One example of that is a 1972 federal law, the Quiet Title Act. If the federal government claims an interest in physical (“real”) property, and that interest is challenged as interfering with private property rights, the private person or company can sue in an attempt to lift that restriction.
This case involves two Montana owners of private property, Larry Steven Wilkins and Jane B. Stanton. Their properties are located on Robbins Gulch Road in rural Ravalli County, which lies in a valley between the Sapphire and Bitterroot Mountains. A federal agency, the U.S. Forest Service, has legal rights to use and maintain that road to facilitate timber harvesting in the area (in legal terms, it has an easement).
Since the Forest Service decided in 2006 to give the general public a right to use that road, traffic has increased, and the two property owners have claimed that this interferes with the use of their home sites. Strangers including hunters, they say, have trespassed on their property, some goods have been stolen, and cars and trucks are speeding along the road. The road, they claim, has not been well maintained by the Forest Service, and that their property value has fallen.
They, along with neighbors, tried to get the Forest Service to improve the road and deal with the traffic but, they said, they got nowhere. So, in August 2018, they sued the federal government under the Quiet Title Act. That law sets a 12-year deadline for such lawsuits, with that time starting to run when the suing individual first learns that the government has an interest in the property.
Granting the government’s plea to dismiss the case, for lack of jurisdiction, the lower courts ruled that the two owners had waited too long to sue. The courts did not specify when the 12-year period had started to run, but said that the deadline to file had not been met. Under the law, those courts ruled, the deadline must be satisfied for the court to have jurisdiction.
The property owners appealed to the Supreme Court, arguing that the federal appeals courts are split on the issue. They argued that the courts that have found the filing deadline to be fixed did so before the recent trend in the Supreme Court to find such deadlines not necessarily binding.
The question before the Court: If a property owner does not meet a 12-year deadline for suing the federal government over its interest in that property, must the case be dismissed at the outset as beyond the courts’ power?
Significance: At the narrowest level, this case is likely to settle the disagreement among lower courts about how definite the 12-year filing deadline under the Quiet Title Act was meant by Congress to be. The Court presumably voted to review the case because of that split, but it may also have intended to move more energetically to further curtail binding rules on court procedures.
There is a substantially greater potential in this case, however. That is related to the discontent with the current Supreme Court’s direction, especially among some of its liberal critics. Upset by the strong rightward shift led by six conservative Justices, the critics are looking around for ways to reshape or limit the Court.
The critics are most upset by the Court’s decision to end the constitutional right to abortion. But they are also troubled by rulings narrowing federal voting rights protections and decisions expanding religious groups’ access to government funds and insulating them from workplace discrimination laws. The overruling of the abortion decision has stirred fears of the future loss of rights to birth control and to same-sex marriage.
Among a variety of measures being pursued in Congress these days are what are called, loosely, “jurisdiction-stripping” proposals that would simply target some cases or controversies from being reviewed by the Supreme Court. The idea has been around for decades, but was last considered seriously in the 1950s in reaction to the school desegregation decisions and to rulings over communism in America. Nothing was done along those lines back then, but the idea has lately been revived.
Constitutional scholars disagree about how far Congress could go to pull certain classes of cases away from the Supreme Court. Congress has done so only once in U.S. history, in an 1868 law that stopped the Court from ruling on an appeal by a newspaper publisher jailed by a military commission for opposing federal policy after the Civil War. It is a precedent, but historians do not regard it as a very sturdy one.
No one expects today’s challenge to the Court to come up during tomorrow’s hearing on the Montana case. But anything the Court does say in deciding the case may reveal more clearly the current Court’s attitude toward Congress’s power over the fundamental issue of jurisdiction. The Court does not always stay within the four corners of a case.
The Court will be on the bench again next week. The first hearing Monday will bring a new test of the legal right of a business operator to refuse to deal with gay and lesbian couples as part of their marriage plans. The second is a case growing out of the bankruptcy – after 125 years in business — of the retail store chain, Sears Roebuck.