The phrase in the Appellate Jurisdiction Clause that raised the most serious concerns was the grant to the Supreme Court of appellate jurisdiction “both as to Law and Fact.” The Anti-Federalist opposition was certain it meant the end of the civil jury and allowed a second trial of those criminally charged at the appellate level.

The Anti-Federalist Brutus argued:

Who are the supreme court? Does it not consist of the judges? and they are to have the same jurisdiction of the fact as they are to have of the law. They will therefore have the same authority to determine the fact as they will have to determine the law, and no room is left for a jury on appeals to the supreme court.

Alexander Hamilton responded in The Federalist No. 81, arguing that for common law cases “revision of the law only” would be proper for the Supreme Court, but for civil law cases, such as prize cases, review of facts “might be essential to the preservation of the public peace.” Hamilton added that the grant of appellate jurisdiction would not abolish the right to trial by jury and that Congress possessed the power to restrict the Supreme Court in this area: “The legislature of the United States would certainly have full power to provide that in appeals to the Supreme Court there should be no reexamination of facts where they had been tried in the original causes by juries.”

Following Hamilton’s lead, Justice Joseph Story suggested in his Commentaries on the Constitution of the United States (1833) that the object of the clause’s reference to jurisdiction over “law and fact” was to allow for the review of law and fact in cases of admiralty and maritime jurisdiction. Ultimately, the Seventh Amendment and the Double Jeopardy Clause of the Fifth Amendment mollified the Anti-Federalists’ concerns by removing jury findings of fact from appellate review. See Amendment VII, Reexamination Clause; Amendment V, Double Jeopardy.

The Appellate Jurisdiction Clause also seemingly grants Congress unbounded authority to make “exceptions” to the appellate jurisdiction. The convention delegates at first rejected a clause providing that “the Judicial power shall be exercised in such manner as the Legislature shall direct”; but later, after the judicial power was defined in what eventually became Article III, the Framers appended this clause, permitting, as Federalists like John Marshall claimed, a broad power of Congress to regulate the appeals process to the Supreme Court. Justice Story later opined that Congress possessed “the utmost latitude” in limiting classes of cases that could reach the Supreme Court, so long as “the whole judicial power” was “vested either in an original or appellate form, in some courts created under [Congress’s] authority.” Martin v. Hunter’s Lessee (1816).

Early on, Chief Justice Oliver Ellsworth had gone further and suggested that “If Congress has provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction.” Wiscart v. D’Auchy (1796). In dissent, Justice James Wilson maintained that the Supreme Court’s appellate jurisdiction flowed directly from the Constitution until Congress took steps to make exceptions to it. Justice Wilson’s dissenting view in Wiscart prevailed unanimously in Durousseau v. United States (1810). Chief Justice John Marshall’s opinion in the latter case recognized that the appellate jurisdiction is created by the Constitution, not by the Judiciary Act of 1789. Nevertheless, applying standard rules for statutory interpretation, Marshall explained that Congress had described particular aspects of the Court’s jurisdiction in that statute, “and this affirmative description has been understood to imply a negative on the exercise of such appellate power as is not comprehended within it.” In other words, by providing for certain classes of appeals to reach the Supreme Court, Congress tacitly intended to “except” all others from Supreme Court review. In fact, then, the Judiciary Act of 1789 withdrew almost all federal questions from the Supreme Court’s jurisdiction by not providing an appeal mechanism to the Court.

In Martin v. Hunter’s Lessee and in Ableman v. Booth (1859), Justice Story and Chief Justice Roger B. Taney each described the need to provide for Supreme Court review of decisions of the states’ highest courts, in order, as Taney put it, “to secure the independence and supremacy of the General Government in the sphere of action assigned to it; [and] to make the Constitution and laws of the United States uniform, and the same in every State.”

The seminal decision on jurisdiction-strip-ping statutes under the Appellate Jurisdiction Clause came shortly after the Civil War. Ex parte McCardle (1869) involved a newspaper editor in military custody, who had appealed a lower federal court’s denial of habeas corpus relief to the United States Supreme Court, pursuant to the Habeas Corpus Act of 1867. After the Supreme Court heard oral argument, Congress repealed the provisions of the statute that had authorized Supreme Court review. The Court concluded that, pursuant to Congress’s power under the Appellate Jurisdiction Clause, it had no jurisdiction to decide the case. The Court also expressed a deferential view toward legislative acts in this context, noting: “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.”

Shortly thereafter, the Supreme Court found that a different jurisdiction-stripping statute did not fall within Congress’s Appellate Jurisdiction Clause power. In United States v. Klein (1871), Congress had enacted a statute which provided that persons whose property had been seized during the Civil War could recover proceeds of their property if they proved they had not given aid to the rebellion during the war. The Supreme Court had previously held that a presidential pardon for such activities was proof that a person had not given aid to the rebellion. United States v. Padelford (1870). In Klein, the claimant had succeeded in the lower court, but the government had appealed. While the case was pending in the Supreme Court, Congress passed a law that attempted to reverse the holding in Padelford. The new law required courts to treat the pardon as proof of disloyalty, and on proof of such pardon, the jurisdiction of the court would cease and the suit be dismissed.

The Klein Court noted that, if Congress had “simply denied the right of appeal in a particular class of cases,” the act would have been a valid exercise of legislative power under the Appellate Jurisdiction Clause. However, the Court determined that the statute withheld jurisdiction only as a means to an end, and that its purpose was to negate the legal effect of a presidential pardon, which was exclusively in the president’s hands. Congress did have the power, the Court averred, to change underlying substantive law upon which the claim had been litigated, Pennsylvania v. Wheeling & Belmont Bridge Co. (1856), but Congress could not do so by invading the president’s power to pardon, nor to direct a particular decision in a pending case. Nor could Congress dictate to a Court how to decide the substance of a case before it under the guise of regulating its appellate jurisdiction.

Klein was a rare case. Although it showed that Congress cannot use its powers over jurisdiction to override a constitutional provision (such as the president’s pardon power, or, by extension, a provision of the bill of rights), the Supreme Court has affirmed Congress’s broad power to make exceptions to its jurisdiction, The Francis Wright (1881), and its equally broad power to change underlying substantive law even if that change affects the outcome in a pending case. Robertson v. Seattle Audubon Society (1992). Congress, however, may not by legislation reopen a case already decided and finalized, that is, when the time for appeal has passed. Plaut v. Spendthrift Farm, Inc. (1995).

Recent debate over the Appellate Jurisdiction Clause has centered on proposals for legislation that would remove parts of existing Supreme Court jurisdiction. Constitutional scholars strongly disagree as to how far Congress may go in removing Supreme Court jurisdiction under the clause. The traditional view, exemplified by Gerald Gunther, is that the text gives Congress power to remove the Supreme Court’s appellate jurisdiction with little or no internal Article III limitation. Gunther and Ronald Rotunda argue that extrinsic restraints, such as those found in the Bill of Rights and elsewhere in the Constitution, could be applied. However, Gunther notes that under McCardle, the Court must still avoid looking into Congress’s “motivations” except where an extrinsic restraint (such as those found in the Bill of Rights) so requires.

Henry Hart and others have suggested that the Appellate Jurisdiction Clause may not be used to “destroy the essential role of the Supreme Court in the constitutional plan.” As Gunther noted, however, there is no “essential functions” limit on the face of the Appellate Jurisdiction Clause, and McCardle provides precedent for judicial deference to congressional limitations of appellate jurisdiction.

Ira Mickenberg and Robert Clinton distinguish between the words “exceptions” and “regulations” in the Constitution. Clinton argues that the phrase “such exceptions” refers to the class of cases assigned to the original, not appellate, jurisdiction of the Supreme Court under Article III. Mickenberg suggests that an “exception” could not abolish all appellate jurisdiction, and supports limits to the exception power as a matter of original intent. David Engdahl, Gary Lawson, and Steven Calabresi argue that the Appellate Jurisdiction Clause is not an express grant of power, but rather a cross-reference to Congress’s enumerated powers under Article I, specifically, the Necessary and Proper Clause (Article I, Section 8, Clause 18). They hold that Congress can only divide federal jurisdiction among the federal courts and the Supreme Court, but not remove any Article III grant of jurisdiction entirely. Their view, however, would contradict the assumptions behind the Judiciary Act of 1789 and the holding of Chief Justice Marshall in Marbury v. Madison (1803). Paul Bator recognizes Congress’s power to strip the Court of its appellate jurisdiction, but, as a matter of policy and in light of intended constitutional structure, argues that such an act would violate “the spirit of the Constitution.”

Lawrence Sager takes the view that although Congress has broad authority to regulate appellate jurisdiction, Congress cannot remove jurisdiction with regard to a federal constitutional question from both the lower courts and the Supreme Court. In a variation, Akhil Amar has argued that Article III provides for two tiers of jurisdiction. Those grants of jurisdiction phrased with the emphatic “shall” must be left somewhere in the federal judicial system; the remaining grants may be removed or excepted by Congress. Justice Joseph Story, in dictum, made a similar claim in Martin v. Hunter’s Lessee. John Harrison disputes Amar’s thesis on the basis of a careful textual analysis of Article III.

For almost a century, Congress has rarely attempted to take away a whole swath of subject matter from the appellate jurisdiction of the Court. However, over the past decade, due to the government’s response to the terrorist attacks of September 11, 2001, the Court has perforce become an actor in a constitutional contest between the executive, legislative, and judiciary branches. The “jurisdiction-stripping” power of the Appellate Jurisdiction Clause has played its part in this contest, and the way in which the Court has handled it (or the way in which the Court has worked itself around it) has only increased the scholarly debate on the issue.

In Rasul v. Bush (2004), the Supreme Court interpreted the federal habeas corpus statute to extend to the detainees at Guantanamo Bay. Congress responded by passing the Detainee Treatment Act of 2005. The DTA limited jurisdiction over habeas corpus petitions originating from detainees at Guantanamo Bay exclusively to the U.S. Court of Appeals for the District of Colombia Circuit, thereby making an exception to the Supreme Court’s appellate jurisdiction over the matter. But in Hamdan v. Rumsfeld (2006), the Supreme Court avoided the issue of Congress’s removal of its appellate jurisdiction by stating that the statute had not yet come into effect regarding habeas petitions.

Congress once again responded to the Supreme Court by passing a new statute, the Military Commissions Act of 2006, affirmatively making the limitation of the Court’s appellate jurisdiction come into effect. In Boumediene v. Bush (2008), the Court held that that statute was actually an invalid suspension of the writ of habeas corpus under Article I, Section 9, Clause 2, because it did not provide an adequate substitute for the writ. The question of the extent to which Congress can remove the appellate jurisdiction of the Court was left unanswered.

Scholars have different opinions of what Boumediene means for future Supreme Court jurisprudence and Congress’s power over federal jurisdiction. Some have argued that Boumediene will result in Congress’s retaining power over the Court’s jurisdiction while others have argued that Boumediene will result in a limit on Congress’s powers.

Steven Calabresi and Gary Lawson argue that a proper textual and structural analysis of Article III would result in the conclusion that there is one judicial power vested in the Supreme Court, signifying that the Supreme Court must have the last word on any federal or constitutional question. Laurence Claus makes a similar case and concludes that, the idea of a “unitary judiciary” is not only apparent from the text of the Constitution, but it is what the Framers originally intended based on the convention’s proceedings. Paul Taylor disagrees, and concludes that the Appellate Jurisdiction Clause was originally understood as a constraint on the federal courts.

Thus far, the Supreme Court has remained aloof from the scholarly contest, leaving its precedents to stand at present for broad congressional authority to limit the appellate jurisdiction of the Supreme Court. Thus far, the Court has followed the lead of John Marshall, who stated in the Virginia ratifying convention, “Congress is empowered to make exceptions to the appellate jurisdiction, as to law and fact, of the Supreme Court. These exceptions certainly go as far as the legislature may think proper for the interest and liberty of the people.”