Constitutional Interpretation; The Power of Political Control over the Supreme Court

Ex parte Yerger

75 U.S. (8 Wall.) 85 (1869)

Six months after McCardle, and from the same Chief Justice, comes the decision that tells you how much McCardle actually decided. Edward Yerger killed the Army officer administering Jackson, Mississippi, and was held for trial before a military commission. Like McCardle, he petitioned for habeas corpus in the federal circuit court; like McCardle, he lost. But his lawyers did not appeal under the 1867 Act, whose appellate provision Congress had by then repealed. They went instead to the Supreme Court directly, invoking § 14 of the Judiciary Act of 1789 — the original habeas power the Court had construed in Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807), as a form of appellate jurisdiction exercisable to review another court’s refusal of the writ.

Chase, for the Court, held that the 1868 repealer did not reach it. The repealer “is limited in terms, and must be limited in effect to the appellate jurisdiction authorized by the act of 1867.” It withdrew a route, not the destination. The habeas jurisdiction the Court had exercised since the First Congress remained exactly where it had always been, and Yerger’s petition was properly before the Court on its merits.

This is the closing paragraph of McCardle cashed out, and you should notice how much it changes the picture. The standard classroom account of McCardle is that Congress shut the courthouse door on a pending case and the Court accepted it. The standard account is not wrong, but Yerger shows the door was one of several, that the Court said so at the time in McCardle itself, and that when the next petitioner walked through a different one the Court let him in. Whether Congress in 1868 misunderstood what it was repealing, or understood perfectly and wanted only the narrow result, is a question worth arguing both ways — the repealer’s language is narrow, and Congress had just watched the Court accept a jurisdictional argument rather than reach the merits.

Two features of the opinion repay attention beyond the holding. First, Chase reasons from the consequence: a construction of the repealer broad enough to cover Yerger would leave a person imprisoned by federal authority with no access to this Court at all, and he treats that consequence as a reason to reject the construction rather than as a regrettable cost of a clear text. Set that method beside his refusal in McCardle to look past the words of the earlier repealer, and ask whether the two opinions apply the same interpretive discipline. Second, having established jurisdiction, the Court never decided Yerger’s case. The government released him to civil authorities and the appeal became moot — a resolution that let the Court keep the power it had just claimed without ever using it against the Army. If that pattern is starting to look familiar from Marbury and Martin, it should.

For our purposes the pair states the rule you will carry into the modern jurisdiction-stripping debate: an exception to appellate jurisdiction is read for exactly what it says and no further, and the burden of leaving a federal claimant with no federal forum at all is one Congress must shoulder in unmistakable language — if it may shoulder it at all, a question neither case reaches.

United States v. Klein

80 U.S. (13 Wall.) 128 (1871)

If McCardle marks how far Congress may go, Klein is the Court’s attempt to say where the line is. The Abandoned and Captured Property Act let an owner whose cotton the Union had seized recover the proceeds from the Treasury on proof that he had never given aid or comfort to the rebellion. In United States v. Padelford, 76 U.S. (9 Wall.) 531 (1869), the Court held that a presidential pardon established that fact conclusively: the pardon wiped out the offense, so the claimant stood before the law as a loyal man. Klein, administering the estate of a claimant named Wilson, won in the Court of Claims on exactly that theory.

Congress responded with a proviso attached to an appropriations bill. It provided that a pardon accepted without an express disclaimer of guilt was itself conclusive evidence that the claimant had aided the rebellion; that on such proof the Court of Claims must dismiss for want of jurisdiction; and that the Supreme Court, on appeal in any such case, must likewise dismiss for want of jurisdiction. The drafting was deliberate, and it was drafted in the vocabulary of jurisdiction — the vocabulary McCardle had just blessed.

Chase, again for the Court, held the proviso unconstitutional. The language everyone quotes is that Congress “has inadvertently passed the limit which separates the legislative from the judicial power.” The reasoning behind it runs on two tracks. First, this was not a withdrawal of jurisdiction but a rule of decision: the statute told the courts what conclusion to draw from a particular piece of evidence in a pending case, and used the word jurisdiction as the instrument for imposing a result. The Court will look at what a statute does, not at the label Congress gives it. Second, the proviso impaired the pardon power itself, taking a constitutional act of the Executive and directing the courts to treat it as proof of the very guilt it forgave. Whether Klein rests on separation of powers generally, on Article III specifically, on Article II, or on all three at once is genuinely contested, and how you answer determines how much of the case survives.

That contest is not academic. Read narrowly — as a pardon-power case, or as a case about a statute that dictated the outcome without changing any underlying substantive law — Klein forbids very little, and Bank Markazi v. Peterson, 578 U.S. 212 (2016), confirms the narrow reading: Congress may pass a statute that governs a single pending case, identified by docket number, so long as it changes the applicable law rather than commanding a result under old law. Read broadly, Klein is the answer to the question McCardle left open, and it means Congress may close a forum but may not use the closing to pick the winner.

The exercise worth doing is the drafting exercise. Take what Congress wanted in 1870 and write the statute that achieves it under the Klein–Bank Markazi rule: amend the substantive standard so that pardoned claimants are simply ineligible, say nothing about evidence, say nothing about jurisdiction, and let the courts apply the new law. If that statute is valid — and on the modern authorities it is hard to see why it would not be — then the line Klein draws is a line about drafting technique. Whether a constitutional limit that any competent legislative counsel can draft around is a limit at all is one of the questions this module exists to put to you.

Patchak v. Zinke

583 U.S. 244 (2018)

The nineteenth-century cases in this module are not antiquarian. In 2018 the Court decided, on a fractured vote and without a majority opinion, a case in which Congress ordered the dismissal of a single identifiable pending lawsuit — and upheld the statute.

David Patchak lived near a tract in Michigan, the Bradley Property, which the Secretary of the Interior took into trust for the Match-E-Be-Nash-She-Wish Band so that the Band could build a casino. Patchak sued under the Administrative Procedure Act, and in Match-E-Be-Nash-She-Wish Band v. Patchak, 567 U.S. 209 (2012), the Court held that he had prudential standing and that sovereign immunity did not bar the suit. On remand, with the case live again, Congress passed the Gun Lake Trust Land Reaffirmation Act. Section 2(a) reaffirmed the trust status of the land. Section 2(b) provided that, notwithstanding any other law, an action relating to that land — “including an action pending in a Federal court as of the date of enactment” — “shall not be filed or maintained in a Federal court and shall be promptly dismissed.”

There was exactly one such action. Congress knew whose it was.

Justice Thomas, writing for a plurality of four, held that § 2(b) does not violate Article III. The governing distinction, drawn from the Court’s precedents and from Klein, is that Congress violates Article III when it compels findings or results under old law but not when it changes the law — and a statute that strips jurisdiction changes the law, because jurisdiction is itself a legal rule the courts must apply. That the new rule applied to one case, and that Congress could see the outcome it produced, does not convert legislation into adjudication. Justice Ginsburg, joined by Justice Sotomayor, concurred only in the judgment, reading the statute as a restoration of the Band’s sovereign immunity rather than as a jurisdiction-stripping provision at all; Justice Sotomayor wrote separately to the same end, and Justice Breyer concurred to stress that Congress had acted against a background of ordinary retroactivity principles.

Chief Justice Roberts dissented, joined by Justices Kennedy and Gorsuch, and his objection is the one you should be able to state in your sleep: Congress exercises the judicial power when it manipulates jurisdictional rules to decide the outcome of a particular pending case. The dissent’s rhetorical question is the whole argument in a line — whether there is any material difference between a statute saying that the court lacks jurisdiction over Jones’s pending suit and one saying that Smith wins.

Put Patchak next to McCardle and the resemblance is close enough to be uncomfortable. Both involve a statute enacted while an appeal was pending, aimed at that appeal, framed in jurisdictional terms, and both end in dismissal. The differences are real but they cut in more than one direction: McCardle withdrew a whole category of appeals while leaving another route open, whereas § 2(b) was drawn to fit one dispute and left no route at all. Ask yourself which of those facts should matter to an Article III analysis, and why. Then ask the harder question the plurality’s rule invites. If “changing the law” includes changing who may be heard, and if a jurisdictional rule may be written to fit a single docket number, what exactly is the residue of Klein — and is the answer that Congress may do anything it likes to a pending case so long as its lawyers use the right nouns?