Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868)

Commentary by Jon Roland

It is uncertain whether the decision in this case was the result of politics or incompetence in the use of the English language, but it has set a damaging precedent that has not yet been overturned. To quote from the opinion:

The Constitution of the United States ordains as follows:

' 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.'

' 2. The judicial power shall extend to all cases in law or equity arising under this Constitution, the laws of the United States,' &c.;

And in these last cases the Constitution ordains that,

'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.'

However, omitted from this last quote was the preceding sentence:

In all cases [list of types of cases] the supreme Court shall have original jurisdiction.

The combination of the two sentences makes it clear that only two kinds of jurisdiction are being considered: original and appellate. The Constitution makes some types of cases original only, others appellate, but allows for exceptions to be made from the list of types of cases for which the Supreme Court has appellate jurisdiction. Since the alternative to appellate is original, the exceptions allowed must create original jurisdiction.

The opinion is, essentially, that Congress may remove all jurisdiction from the Supreme Court for some types of cases, but if that were the intended meaning, then it could remove all jurisdiction for all types of cases, thereby eliminating the judicial branch and defeating the separation of powers. A clear reading of the language is that no such meaning was intended. The intended meaning is that Congress may assign original jurisdiction to the Supreme Court for some types of cases over which it would otherwise have appellate jurisdiction only.

It should also be clear that any court which may decide its own jurisdiction without any higher court to which an appeal of that decision might be made has jurisdiction over any case it chooses to hear, and that power cannot be denied it by Congress, because it can always decide to overturn a statute restricting its jurisdiction.

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