Inferior Courts

Discussing the meaning of “inferior” throughout the Constitution and arguing that the Constitution uses the term to describe a hierarchical relationship.

Arguing that Congress has the authority to constitute or not constitute inferior courts, but that it may not establish inferior courts not ultimately answerable to the Supreme Court.

Arguing that Congress can constitute state courts as inferior tribunals.

Arguing that the Necessary and Proper Clause both supplies much of the congressional power over the judiciary and provides “intrinsic limits” to the exercise of that power.

Arguing that “the principal mechanism for keeping federal law supreme over contrary state law is not an assured ‘quantity’ of federal ‘arising under’ jurisdiction but, instead, an assured ‘quality’ of federal judging in cases in which Congress confers jurisdiction.”

Defending the view that Congress has substantial authority to regulate federal court jurisdiction. 

Advocating for a “Neo-Federalist” approach to congressional power over federal jurisdiction.

Describing the history of negotiations leading to the Madisonian Compromise.

Arguing that “where Congress has legislative authority, it may commandeer state executives and state courts, but not state legislatures, to help implement its constitutional powers.”

Arguing that the Constitution does not require “a single forum of ultimate recourse in disputes as to national (including constitutional) law.”

Responding to the criticisms of Meltzer and Redish.

Rejecting Amar’s view of a limited congressional power to regulate federal jurisdiction.

Rejecting Amar’s “two-tiered” approach and defending the traditional view of congressional authority over federal jurisdiction.

Arguing that “the early legislative implementation of Article III in the Judiciary Act of 1789 and the adoption of the Eleventh Amendment departed remarkably little from the conception of an independent federal judiciary with constitutionally defined and demarcated jurisdiction,” that “any departures from this original understanding resulted from the continuation of the political debate between antifederalist and federalist political factions that had animated the ratification debates,” that “this implementation may not constitute the best evidence of the original understanding of the framers,” and that “the notion of congressional power over the scope of federal court jurisdiction originated in a peculiar abdication of judicial independence by the Supreme Court.”

Arguing that “the Framers did not intend to require the creation of lower federal courts,” but that “they did require that some federal court—supreme or inferior—be open, at trial or on appeal, to hear and resolve finally any given federal question, admiralty, or public ambassador case.”

Arguing that “[t]he powers over the federal judiciary that articles I and III gave to Congress thus involved authority over the distribution, organization, and implementation of the judicial power of the United States, not a license to curtail its exercise.”

Arguing that Congress may not strip from the federal courts jurisdiction to review state court adjudications of federal constitutional claims.