Introduction: Congressional control of jurisdiction and the future of the federal courts--opposition, agreement, and hierarchy

Georgetown Law Journal, Jul 1998 by Jackson, Vicki C

VICKI C. JACKSON*

In 1996, Congress enacted several laws restricting the jurisdiction and remedial powers of the federal courts across a range of litigation brought by prisoners and immigrants. These laws include the Prison Litigation Reform Act (PLRA),1 the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),2 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA).3 This spate of congressional jurisdiction-stripping imposes what may be the most significant limitations on federal jurisdiction since those enacted in connection with World War II price controls and draft legislation.4

What do these laws do? Because their complexity eludes easy summary, a mere sketch will have to suffice. The PLRA is intended to restrict federal courts' authority to impose intrusive remedial decrees on state prison systems,5 and to authorize the reopening of previously entered consent decrees that do not comply with the standards set forth by the new law.6 The AEDPA, in relevant part, is intended to limit the number of habeas petitions filed by state prisoners in federal courts and to limit the number of such petitions actually granted. The law for the first time imposes statutes of limitations on the filing of habeas corpus petitions,7 restricts the standards applied by federal courts in deciding whether to grant relief,8 and restricts the circumstances in which subsequent petitions can be filed.9 Separate provisions of the AEDPA provide even shorter time periods for habeas review of capital sentences.10 Note that the AEDPA and the PLRA also contain provisions requiring permission or involvement from the courts of appeals, or three-judge courts, intended to restrain single judges from taking certain actions.ll The IIRIRA, together with other provisions of the AEDPA, is intended to expedite administrative processing of illegal aliens, eliminate Article III review of deportation orders for certain classes of aliens, and eliminate class litigation of certain challenges to INS procedures. 12

The common theme in all of these statutes is one of restricting access to federal judicial review of, and remedies for, government action challenged as violating federal law by prisoners and aliens. In 1981, at an earlier time of threatened but not enacted "jurisdiction-stripping" legislation, Professor Lawrence Sager wrote a Harvard Law Review Foreword concerning Congress's power to restrict the authority of the federal courts. He argued, inter alia, that "[a]doption of any of the bills that are part of the proposed assault on the federal judiciary would set a dangerous and tawdry precedent by sabotaging the integrity of the judicial process." 13 While much scholarship has been devoted to hypothetical problems of jurisdiction-stripping, the recent increase in enacted laws restricting jurisdiction calls for renewed attention to the problem. The Supreme Court has already issued several opinions construing restrictions on habeas corpus for state prisoners so as to preserve its own jurisdiction, one of which also narrowly construed a ban on successive petitions in the lower courts to preserve their jurisdiction.14 As the lower federal courts continue to address a variety of challenges to these laws as separation of powers and due process violations,15 the question raised by Professor Sager's earlier argument-- whether these jurisdiction- and remedy-stripping measures "sabotag[e] the integrity" of the federal courts-is of continued importance.

The articles that follow, prepared for a panel at the Federal Courts Section of the American Association of Law Schools' Annual Meeting in San Francisco in January, 1998, explore questions relating to the integrity of the federal courts and the constitutionality of the recently enacted jurisdictional restrictions. A remarkable number of unresolved questions concerning the Article III judicial power and the Suspension Clause16 are raised by this spate of legislation. As the collective product of this symposium suggests, federal courts scholars have an opportunity not only to consider these doctrinal issues but also to explore more broadly the relationships between federal adjudication and federal lawmaking.

I.

I begin with an effort to describe the dynamic between the federal courts and the Congress that underlies and frames the doctrinal issues posed by the recent legislation. The tale is an ambiguous one, however, as three different and in some ways conflicting narratives seem to emerge from the jurisdiction- and remedy-stripping of the 1990s. So here follow three narratives-of opposition, agreement, and hierarchy.

A. CONGRESS AGAINST THE COURTS

First, congressional activism can be seen as a response to undue "judicial activism," as a story about Congress exercising its powers to remove jurisdiction or control remedies in response to what it sees as untoward substantive developments or outcomes in the federal courts. A possible precursor to this view can be found in a decision invalidating earlier congressional legislation. In Plaut v. Spendthrift Farm, Inc.,17 the Court held unconstitutional a federal statute requiring federal courts to reopen final judgments of dismissal.18 Distinguishing sharply the rule that changes in statutory law occurring during the pendency of litigation can be applied to that litigation, the Court explained that the Constitution protects the final judgments of Article III courts from legislative revision.19 The Court thus rebuffed Congress's effort to rectify perceived inequities resulting from the Court's prior decision where the affected cases had gone to final judgments. Confronted with Congress's disagreement and its attempt to require Article III courts to exercise jurisdiction,20 the Court held that Congress's action violated the separation of powers principle that forbids the legislature from interfering with courts' final judgments.