Ex parte McCardle

[William McCardle edited a newspaper in Vicksburg, Mississippi, and used it to attack the officers administering military government there under the Reconstruction Acts. He was arrested in November 1867 and held for trial before a military commission. He sought habeas corpus in the federal circuit court under the Habeas Corpus Act of February 5, 1867 — a Reconstruction statute, passed to protect freedmen and federal officers from hostile state process, which extended habeas to any person restrained in violation of the Constitution and, critically, gave a right of appeal to this Court. The circuit court denied relief; McCardle appealed. The case was argued over four days in March 1868, and everyone understood that the Court might use it to pass on the constitutionality of military rule in the South. Before the Court decided, Congress on March 27, 1868 repealed the 1867 Act’s appellate provision, passing the repealer over President Johnson’s veto. The Court set the case for reargument on the effect of the repeal and, a year later, decided only that question.

Note what this bracketed paragraph is doing. Everything in it comes from the Reporter’s statement of the case and from the surrounding history — none of it is in the opinion below. The opinion itself never tells you who McCardle was or why anyone cared. That is normal: a court writes for parties who already know the record. Supplying the posture yourself, before you read a word of the reasoning, is the first pass described in How to read for this course.]

The CHIEF JUSTICE delivered the opinion of the court.

The first question necessarily is that of jurisdiction; for, if the act of March, 1868, takes away the jurisdiction defined by the act of February, 1867, it is useless, if not improper, to enter into any discussion of other questions.

It is quite true, as was argued by the counsel for the petitioner, that the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred by the Constitution. But it is conferred “with such exceptions and under such regulations as Congress shall make.”

It is unnecessary to consider whether, if Congress had made no exceptions and no regulations, this court might not have exercised general appellate jurisdiction under rules prescribed by itself. For among the earliest acts of the first Congress, at its first session, was the act of September 24th, 1789, to establish the judicial courts of the United States. That act provided for the organization of this court, and prescribed regulations for the exercise of its jurisdiction.

The source of that jurisdiction, and the limitations of it, by the Constitution and by statute, have been on several occasions subjects of consideration here. In the case of Durousseau v. The United States, particularly, the whole matter was carefully examined, and the court held, that while “the appellate powers of this court are not given by the judicial act, but are given by the Constitution,” they are, nevertheless, “limited and regulated by that act, and by such other acts as have been passed on the subject.” The court said, further, that the judicial act was an exercise of the power given by the Constitution to Congress “of making exceptions to the appellate jurisdiction of the Supreme Court.” “They have described affirmatively,” said the court, “its jurisdiction, and this affirmative description has been understood to imply a negation of the exercise of such appellate power as is not comprehended within it.”

The principle that the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not affirmed having been thus established; it was an almost necessary consequence that acts of Congress, providing for the exercise of jurisdiction, should come to be spoken of as acts granting jurisdiction, and not as acts making exceptions to the constitutional grant of it.

The exception to appellate jurisdiction in the case before us, however, is not an inference from the affirmation of other appellate jurisdiction. It is made in terms. The provision of the act of 1867, affirming the appellate jurisdiction of this court in cases of habeas corpus is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception.

We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.

What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority, than upon principle.

Several cases were cited by the counsel for the petitioner in support of the position that jurisdiction of this case is not affected by the repealing act. But none of them, in our judgment, afford any support to it. They are all cases of the exercise of judicial power by the legislature, or of legislative interference with courts in the exercising of continuing jurisdiction.

On the other hand, the general rule, supported by the best elementary writers, is, that “when an act of the legislature is repealed, it must be considered, except as to transactions past and closed, as if it never existed.” And the effect of repealing acts upon suits under acts repealed, has been determined by the adjudications of this court. The subject was fully considered in Norris v. Crocker, and more recently in Insurance Company v. Ritchie. In both of these cases it was held that no judgment could be rendered in a suit after the repeal of the act under which it was brought and prosecuted.

The authorities the Chief Justice relies on

Durousseau v. The United States, 10 U.S. (6 Cranch) 307 (1810), is the Marshall-era decision holding that the Judiciary Act's affirmative grants of appellate jurisdiction operate by negative implication as exceptions under Article III — the interpretive premise on which the whole of McCardle rests. Norris v. Crocker, 54 U.S. (13 How.) 429 (1851), and Insurance Co. v. Ritchie, 72 U.S. (5 Wall.) 541 (1866), are the repeal cases: in each, a statutory cause of action was repealed while suit was pending and the Court held that no judgment could issue. The "best elementary writers" Chase invokes without naming are the nineteenth-century treatise authors on statutory construction; the proposition he draws from them — that a repealed statute is treated as though it had never existed except as to transactions past and closed — is today qualified by the federal saving statute, 1 U.S.C. § 109, which Congress enacted in 1871, two years after this decision, precisely to change that default.

It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.

Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised.

The appeal of the petitioner in this case must be

DISMISSED FOR WANT OF JURISDICTION.

Notes & Questions

1. Read the last two paragraphs first, and then decide what the case holds. McCardle is cited constantly for the proposition that Congress may strip the Supreme Court of jurisdiction over a class of cases, even mid-appeal, even with the plain purpose of stopping a particular decision. Every word of that is in the opinion. But so is the closing paragraph, which says the 1868 repealer touched only appeals taken under the 1867 Act and left untouched the habeas jurisdiction the Court had exercised since 1789. So McCardle himself was not left without a federal forum; he was left without this route to one. State the holding twice — once in the broad form, once as narrowly as the opinion’s own last paragraph will allow — and ask which version a careful advocate could actually defend against a hostile bench. When a case is quoted far more often than it is read, the gap between those two statements is usually where the argument is.

2. “We are not at liberty to inquire into the motives of the legislature.” Chase writes this in a case where the motive was neither hidden nor disputed: Congress repealed the appellate provision because it feared what this Court would do with it, and it repealed over a presidential veto to make sure. Take the sentence seriously as doctrine, not as evasion. What is the argument for a flat bar on motive inquiry when the challenged act is a jurisdictional one — that motives are unknowable, that they are institutionally unfit for judicial appraisal, that any inquiry would itself be a confrontation the Court cannot survive? Now test it against the rest of the course: motive is very much justiciable under the Establishment Clause, under equal protection after Arlington Heights, and in the Trump v. Hawaii and census litigation of our own decade. Is jurisdiction different in kind, or was 1869 simply a year in which the Court had reason not to look?

3. The external limits the opinion does not mention. Chase gives the Exceptions Clause its full literal breadth and stops. He does not ask whether some other provision of the Constitution might independently forbid a jurisdictional exception — whether Congress could except from review all appeals brought by Black litigants, or all appeals raising a Free Exercise claim, or all appeals by members of the opposing party. The structure of the argument matters: a power granted in express words is still exercised subject to the rest of the document. Build the strongest version of the “external constraints” answer, then say honestly what work is left for McCardle if that answer is right. And consider the harder case, which is not the racially discriminatory statute but the ideologically motivated one: Congress removes federal appellate jurisdiction over every case involving a named subject, on which it dislikes the Court’s answers. Which constitutional provision, exactly, does that violate?

4. The escape hatch, and what it costs. Ex parte Yerger, decided later the same year, and United States v. Klein, two years after, are both in your reading for this module, and both are best understood as the aftershocks of this decision. Yerger takes the closing paragraph of McCardle at its word and holds the 1789 Act’s habeas jurisdiction intact; Klein finds a line Congress crossed when it dictated the outcome rather than merely withdrawing the forum. Read the three together and try to state the rule that reconciles them. Then ask the question the trio raises but does not answer: is the operative distinction between withdrawing jurisdiction and prescribing a rule of decision a real one, or a formal one that any competent legislative drafter can satisfy? Draft the statute that gets Congress what it wanted in Klein while staying on the McCardle side of the line. If you can draft it in three sentences, what is left of Klein?

5. Nine hundred words, and the institutional judgment behind them. This opinion is shorter than the note you are reading. There is no discussion of Reconstruction, of military commissions, of Ex parte Milligan — decided two years earlier and squarely in the background — or of the constitutional crisis then running between Congress and the President. Nor is there any account of the Court’s own timing: the case was argued in March 1868 and decided in April 1869, a thirteen-month silence that the opinion does not mention, let alone explain. Was the brevity cowardice, prudence, or craft? Consider what the Court preserved by saying so little, and what it gave up. Then bring the question forward: when the modern Court decides a politically explosive case on a narrow procedural ground and writes short, are you watching the same instinct? Is that instinct a vice in a court, or the thing that lets a court survive long enough to be a court?