The Two-Tiered Structure of the Judiciary Act of 1789

Abstract

What limits (if any) does the Constitution impose on congressional efforts to strip federal courts of jurisdiction in controversial areas-abortion, flag burning, or what have you-thereby leaving the last word to state judges who lack article III insulation from political pressure? From the First Judiciary Act on, this question has periodically occupied center stage in the high drama of national politics. To be sure, the substantive targets of would-be jurisdiction strippers in Congress have varied, from the attempts of John C. Calhoun and his followers in the early nineteenth century to eliminate all Supreme Court federal question review of state courts, to the more selective efforts of politicians in the latter half of this century to oust federal court review of school segregation and school prayer. But in spite of the substantive differences in the targets of attack, the basic separation of powers issue has remained the same: how much power to restrict federal jurisdiction does the Constitution give Congress?