Northwestern University Law Review, Vol. 85, No. 2 (1991), pp. 465-477


Article III presents a conundrum for scholars seeking a coherent explanation of the federal courts' role in our system of government. On the one hand, the framers set up the judiciary as a separate branch with jurisdiction over federal law and other matters of federal interest. They granted federal judges life tenure and undiminishable salary in order to preserve judicial independence from executive and legislative pressure. It is evident from these provisions that the framers saw a need for a strong national judiciary. At the same time, article III explicitly leaves to Congress the decision whether to create any lower federal courts at all, and authorizes Congress to make “exceptions” and “regulations” of the Supreme Court's appellate jurisdiction. It appears that Congress can virtually destroy the independent judiciary envisioned by the other parts of article III. Barry Friedman's “dialogic” approach is the latest in a long line of efforts to reconcile these apparently contradictory directives. Professor Friedman rejects the conventional view that the Constitution assigns to Congress control over the jurisdiction of federal courts. In his view, the congressional control thesis fails to describe the actual state of the law, and falls short in normative terms as well, because it rests on the premise of parity between federal and state courts – a premise too controversial to support a rule of constitutional dimension. He argues that it is better, from both the descriptive and normative perspectives, to think of the law in this area as a dialogue between Congress and the Supreme Court, in which neither institution has the final word and there are no fixed constitutional principles. I am not persuaded by Friedman's arguments. The principle of congressional primacy withstands Friedman's critique and remains a more cogent account of the law than the dialogic approach he prefers. Contrary to Friedman's thesis, the article III congressional authority provisions do embody a fundamental value that transcends the circumstances of particular problems. Congressional primacy is not the only value at work in these cases. Here, as everywhere, Congress must respect other constitutional provisions-in particular, the due process clause of the fifth amendment. Congress may not employ jurisdictional statutes to accomplish a deprivation of life, liberty, or property without due process of law. Besides congressional primacy and constitutional limits on Congress, the cases evince a third theme. Professor Friedman demonstrates convincingly that the Supreme Court assumes an aggressive role in making jurisdictional rules, expanding or contracting federal jurisdiction in accordance with its views of sound policy. But, here again, the Court's rules do not contradict the principle of congressional control, for the Court invariably defers to congressional decisions to modify judge-made rules. For this reason, the Court's nonstatutory jurisdictional doctrine is more accurately described as a form of federal common law than as part of a dialogue with Congress in which neither side has the final say. I submit that these three principles – congressional primacy, due process limits, and a common-law role for the Supreme Court – provide a better descriptive and normative account of the law on control of federal jurisdiction than does Friedman's dialogue.