by Jay Wexler
It makes sense, then, when starting to think about how the Constitution should be interpreted, to do so in the context of some part of the Constitution that does not raise your blood pressure too much. A few years ago, a professor at the Cardozo School of Law in New York City named Michael Herz wrote a terrific article that deserves to be read by more than the fourteen people in legal academia who probably read it, in which he suggests that the recess-appointments clause is a great clause to use to think about how the Constitution should be interpreted. Why? Herz explains:
There are stakes, but they are not too high; there is substantial text to work with, but no shortage of interpretive issues. In considering the scope of the clause, moreover, one is perforce behind a sort of Rawlsian veil of ignorance. A given interpretation may be good for your team at one point in history and bad at another. Therefore, ideology and the appeal of desired outcomes in the short-term can more easily be set aside here than when considering many substantive constitutional issues.
Now, although the word “perforce” is a little too fourteenth century for my taste, Herz’s point remains a solid one. Since sometimes the president will be liberal and sometimes the president will be a Republican, your interpretation of the recess-appointment clause is unlikely to be swayed by your policy or political leanings. What’s good for George W. Bush one year is good for Barack Obama a few years later. So, when I was talking earlier about the various interpretive problems with the clause, what did you think? On the “happen” issue, where the text of the clause and its purpose seemed to be at odds, which one did you think should trump? On the intersession versus intrasession issue, did you think the Court should read the clause broadly to cover all breaks, or narrowly to cover just the intersession recess? Did you think it should matter that over time, the Senate has changed its practices to shorten the intersession recess and hold more intrasession breaks, or did you think that the original intention of the framers should control regardless of what happened two hundred years later? These are all incredibly important issues of constitutional interpretation that determine the very nature of political and social life in our country. Thinking about them in connection with a shrew like the recess-appointment clause can help us keep our heads straight when later on we find ourselves confronting affirmative action, abortion, or some other constitutional grizzly bear.
CHAPTER 4
The Original-Jurisdiction Clause
Judicial Powers
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.
Article III, Section 2
Between 1892, when the immigration depot at Ellis Island opened, and 1954, when it closed, millions of people entered the United States through its doors. Most likely, just about all of these new arrivals assumed they had landed in the state of New York. After all, steamships bound for the island listed their destination as “New York.” Certificates of Arrival were marked “Ellis Island, New York.” And the card pinned to each disembarking passenger read, “When landing at New York this card is to be pinned to the coat or dress of the passenger in a prominent position” in eight different languages. In light of all this, the new residents of the United States could likely be forgiven for not realizing that they may have in fact landed in (gasp!) New Jersey.
Not that New York would have admitted anything of the sort. Indeed, New York and New Jersey had disagreed about the ownership of Ellis Island ever since the Duke of York granted some ambiguous portion of his territory to the proprietors of New Jersey back in the late seventeenth century. The two states entered a legally binding compact in 1834 that set the boundary between the states at the middle of the Hudson River, although the agreement also provided that New York would retain “its present jurisdiction” over Ellis Island, which lies on the New Jersey side of that river. At the time, however, Ellis Island was a tiny pile of mud and oyster shells, and so nobody cared that much.
Although New York and New Jersey would argue endlessly over the years about which one of them owned Ellis Island, it was the national government that did almost everything of note there. For many years, the feds, to whom New York had temporarily ceded jurisdiction over the island back in 1800, used the place as a fortress. In the mid-nineteenth century, though, when Congress decided that immigrants should enter the country on an island due to their “frauds, robbery, and general crookedness,” the federal government picked Ellis Island as the nation’s new immigration station. Unfortunately, the island was too small for this purpose. As a result, during the forty years following its initial designation as the nation’s immigration capital, the federal government used rocks and sticks and other fill material to add over twenty-four acres to the original three-acre island.
New York and New Jersey agreed that the 1834 compact gave New York ownership of the original three acres of Ellis Island, but the two states disagreed about who owned the other twenty-four. It was a matter of some practical, as well as symbolic, importance, because the island had become home to a small number of permanent inhabitants, was the site of some taxable commercial activity, and was a place where a not-inconsequential number of people were born, got married, and died. Matters came to a head in the late 1980s. A government maintenance worker on Ellis Island who got part of his leg cut off by a stump-grinding machine sued the machine’s manufacturer. For various arcane technical reasons, the worker’s case turned on whether the law of New York or the law of New Jersey applied to his suit. A federal appellate court ruled that New York law applied. This was great for the worker, who could then recover for his injuries, but it did not bode well for New Jersey, which had assumed that its law applied to events happening on the island. At this point, New Jersey figured it was time to do something.
But what could it do? In some other time and place, perhaps New Jersey could have threatened New York with war, mobilized its tanks, and amassed troops along the border (if it could have figured out where that border was). Since that was not an option, maybe New Jersey could have challenged New York to a game of rock-paper-scissors. Again, not an option. Could New Jersey sue New York? But where? In what court? New Jersey would want the case heard in New Jersey; New York would say the case should be in New York. It’s unlikely that courts in either state would be impartial. So what then? Sue in Connecticut? Burkina Faso? Luckily, the framers of the Constitution had foreseen precisely this problem, and so they provided right there in the founding document that states can sue each other directly in the Supreme Court of the United States. New Jersey’s lawyers put on their best gray suits, shined up their briefcases, and headed down to 1 First Street.
Like the two articles before it, Article III of the Constitution begins with a so-called vesting clause: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” You’ll note that Article III gets odd very quickly. Not only does the phrase “from time to time” seem strange in something so grand as the world’s greatest legal document ever (it seems more appropriate when describing your drinking or crack-smoking habits to a doctor), but isn’t it also odd that the Constitution requires only that there be one federal court in the entire country? Whether to create other federal courts was left up to Congress. As it happened, Congress used its power under Article III to create lower federal courts in 1789, and they’ve existed ever since. The federal judicial system now consists primarily of ninety-four trial courts known as district courts, thirteen geographically based appellate courts that sit in panels of three and are known as circuit courts (so-named because they used to be staffed by Supreme Court justices, who would ride “circuit” around the geographical area, deciding cases), and of course the one Supreme Court with its marble steps and golden doors and swing justice Anthony Kennedy, who, as I’ve already pointed out, decides what the law is for every single person in the country all by his lonesome.
> Article III is short—much shorter than Articles I or II—but it has some important stuff in it. For one thing, it limits the jurisdiction of the federal courts to deciding “cases” and “controversies,” which is the origin of the depressing “standing” doctrine that I discussed in chapter 1. For another, it provides that all federal judges “shall hold their offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” In other words, federal judges, once appointed and confirmed, cannot be fired (they can be impeached, but that’s something different—it’s hard to do and very rare) or have their salary reduced. The idea behind life tenure and salary protection is that judges should be isolated from politics, so they can make decisions without worrying about whether the president or somebody else might fire them or cut their salary if their decisions turn out to be politically unpalatable. Being a federal judge, as you can see, is a sweet gig.
The tenure and salary-protection requirements of Article III raise an important issue—namely, if all people who exercise federal judicial power are supposed to have life tenure and salary protection, how come there are thousands of people out there exercising federal judicial power who do not have life tenure and salary protection? I’m sorry, what? Did the author just say that the government is unconstitutional? Well, maybe. Administrative agencies are filled with commissions and panels and even flat-out judges (called administrative law judges, or ALJs) who resolve disputes between individuals and the government, oftentimes following hearings that look a lot like trials, but who can be fired or given a pay cut. Add to these guys the judges of the so-called Tax Court and federal magistrate judges, and you’ve got a whole lot of people in the federal government exercising real judicial power who do not enjoy life tenure or salary protection. This problem has not eluded Supreme Court attention, but in a bunch of cases that are about as clear as a bowl of New England clam chowder, the Court has said that these arrangements are for the most part okay, either because “Article III judges” (those who enjoy life tenure and salary protection) review their decisions or because resolving disputes between the government and individuals (as opposed to disputes just among individuals) isn’t the kind of judicial power the Constitution is talking about when it says “judicial power” or maybe just because there are so many of these non–Article III judges out there that if the Supreme Court held they were unconstitutional, the government would fall apart.
The Constitution also has a lot to say about what kinds of cases the federal courts, particularly the Supreme Court, can hear. According to Article III, the federal courts have jurisdiction to hear cases arising under federal law; cases between citizens of different states or between two states themselves; cases where the United States sues a state or where a state sues an individual of a different state; and cases involving foreign ambassadors, consuls, or ministers, among others. Notice that most kinds of cases—those routine matters where one person sues another person in the same state for selling a shipment of rotten cantaloupes or cutting off the wrong leg during an operation or not paying rent or whatever—cannot generally be heard by the federal courts; these cases lie solely within the jurisdiction of the state courts, which are created and governed by state law.
Next, Article III provides that the Supreme Court has two kinds of jurisdiction: original and appellate. In original-jurisdiction cases, the plaintiff sues the defendant directly in the Supreme Court without going to any other court first. With appellate jurisdiction, the plaintiff first sues in the trial court; the loser at that level may appeal to the circuit court, and the loser in the circuit court can ask the Supreme Court to take the case, which may or may not agree to hear it. Most of the Court’s cases are brought under its appellate jurisdiction. Only a few types of cases can be brought under the Court’s original jurisdiction, and those are specified by Article III’s “original-jurisdiction clause”: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.
Very early on, Congress tried to expand the original jurisdiction of the Supreme Court. This did not work. Probably the most important case ever decided by the Court was Marbury v. Madison, which is significant mostly because that’s where the Court announced that it could exercise “judicial review,” meaning that courts can review laws passed by Congress to make sure they are constitutional. But the actual holding of the case is that Congress may not expand the original jurisdiction of the Supreme Court.
After losing the election of 1800 to Thomas Jefferson, John Adams, determined to entrench his policies before Jefferson could take over, nominated a hefty group of justices of the peace in the District of Columbia. After the Senate confirmed the new judges, Adams’s secretary of state (who happened to be John Marshall, also the chief justice of the Supreme Court) sent his brother to deliver signed commissions to the judges. One of these judges was William Marbury, but, sadly (from Marbury’s perspective), he did not receive his commission before Jefferson took over as president. When Jefferson told his secretary of state, James Madison, to withhold the commissions, Marbury was basically screwed. Marbury then sued Madison directly in the Supreme Court, claiming that Congress had passed a statute giving the Court the power to order Madison to deliver the commission to Marbury. The Supreme Court dismissed the suit. In an opinion written by John Marshall, the Court held that no matter what Congress says, the only cases that can be brought under the Supreme Court’s original jurisdiction are those that are specifically listed in Article III. Marbury lost, spent a happy life as a rich banker instead of a judge, and lived in a mansion that now houses the Ukrainian Embassy to the United States.
Although Congress cannot directly change the original jurisdiction of the Supreme Court, it can give lower federal courts concurrent jurisdiction over the same cases that the Supreme Court can hear under its original jurisdiction. And indeed, Congress has done precisely that for almost all of the types of cases listed by Article III as falling under the Supreme Court’s original jurisdiction. Specifically, Congress has said that the federal trial courts can hear cases involving ambassadors, ministers, or consuls; cases between the United States and a state; and cases brought by a state against citizens of a different state. For these kinds of cases, then, the parties will go to the trial court first instead of the Supreme Court. This is perfectly fine with the Supreme Court, it’s worth noting, because the Court is not set up to hold trials in any way. The justices are used to deciding cases on appeal, which means reading a lot of papers and thinking about weighty issues and having a short oral argument where they can ask the lawyers questions or badger them or show off how funny they think they are or whatever, but they are not equipped to hear witnesses or entertain objections (“Objection, Justices, the witness is not an oral surgeon!”) or listen to days and days of arguments about all sorts of minor issues, which is what judges have to do when they preside over a trial. Indeed, the Court would most likely be quite happy to never have to exercise its original jurisdiction at all. Unfortunately for the Court, however, there is one type of case that Congress has not allowed lower federal courts to hear—cases brought by one state against another state. For these cases, no other court would have the authority or the objectivity necessary to provide a fair trial. When a state sues another state, then, it has to come directly to the Supreme Court.
I have always found these cases where one state sues another state to be fascinating. I think it has something to do with how the case names sound like college football games: Missouri vs. Illinois, Arkansas vs. Oklahoma, Kansas vs. Colorado. I’ve wanted to write something about them for a long time. A while back, I asked one of my favorite colleagues, a professor named Larry Yackle (that’s “YAKE-il,” as in “Shake-il” or “Bake-il,” not “Tackle”), if he wanted to cowrite a book with me called State versus State: The Ten Greatest State against State Cases in Supreme Court Histo
ry, which, granted, would have made for one hell of an awful book, but I still think it’s a testimony to how serious legal academics tend to be that even Yackle—who brings his dog into work on the front of his Vespa—just looked at me like I was an idiot when I made the suggestion and walked away.
