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Reshaping Federal Jurisdiction: Congress's Latest Challenge To Judicial Review, Helen Norton

Publications

This Article examines growing congressional interest in a specific legislative check on judicial power: controlling the types of cases judges are empowered to decide by expanding and/or contracting federal subject matter jurisdiction. Congress has recently sought to shape judicial power through a range of proposals that variously enlarge and compress federal subject matter jurisdiction. In 2004, for example, the House of Representatives voted to strip federal courts of jurisdiction over constitutional challenges to the Defense of Marriage Act and the Pledge of the Allegiance. Just a few months later, the new 109th Congress undertook a groundbreaking expansion of federal subject …

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …