The Extension Clause and the Supreme Court's Jurisdictional Independence

78 Pages Posted: 18 Apr 2012 Last revised: 28 Jan 2013

See all articles by Alex Glashausser

Alex Glashausser

Washburn University School of Law

Date Written: April 17, 2012

Abstract

This Article challenges the prevailing doctrinal, political, and academic view that the Extension Clause — which provides that “[t]he judicial Power shall extend” to nine types of cases and controversies — justifies legislative attempts to strip the Supreme Court of appellate jurisdiction. Legislators have repeatedly introduced bills seeking to prevent the Court from hearing cases on politically charged topics such as marriage, religion, and abortion. Scholars have relied on the Extension Clause to advance three arguments in support of such jurisdiction-stripping: (1) that “judicial Power” is not jurisdiction, and thus jurisdiction is not constitutionally protected; (2) that “shall” is not mandatory, and thus the clause need not be obeyed; and (3) that to “extend” a power is not to grant it but merely to define its potential outer reaches, and thus Congress is responsible for deciding what to allow the Court to hear. As the Article explains, however, the text, context, and drafting history of the Extension Clause reveal the fallacy of those conventional justifications. Just as other constitutional provisions guarantee the jurisprudential independence of federal judges so that they can do their jobs without fear of reprisal, the Extension Clause prevents Congress from taking certain cases away from the Supreme Court and thus secures the Court’s jurisdictional independence.

Keywords: Supreme Court, Article III, jurisdiction, Congress, judicial power, Extension Clause, Constitutional Convention

JEL Classification: K10, K41

Suggested Citation

Glashausser, Alex, The Extension Clause and the Supreme Court's Jurisdictional Independence (April 17, 2012). Boston College Law Review, Vol. 53, No. 4, 2012, Available at SSRN: https://ssrn.com/abstract=2041268

Alex Glashausser (Contact Author)

Washburn University School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States
785-670-1662 (Phone)

HOME PAGE: http://washburnlaw.edu/faculty/glashausser-alex.php

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