Constitutional Guarantees of the Judiciary: Jurisdiction, Tenure, and Beyond


Laurence Claus

Document Type


Publication Date



This National Report to the XVIIth Congress of the International Academy of Comparative Law analyzes the constitutional guarantees of jurisdiction and tenure that empower and protect the U.S. federal judiciary. On jurisdiction, the Report adumbrates arguments advanced in a major work-in-progress on Article III's guarantee of federal jurisdiction. In particular, the Report argues:

1. The orthodox understanding that Article III's exceptions clause lets Congress remove jurisdiction over Article III matters from the Supreme Court is inconsistent with (a) Article III's syllogism that the judicial Power shall be vested in the Court and shall extend to all nine categories of matter listed in the Article; (b) Article III's requirement that the Court's relation to the judicial Power be that of one supreme Court; and (c) the source of Congress's exceptions power, which is the necessary-and-proper clause of Article I Section 8.

2. The drafting history of Article III at the Philadelphia Convention suggests that Congress's exceptions power was designed only to let Congress shift Article III matters from the Supreme Court's appellate jurisdiction to the Court's original jurisdiction.

3. The Supreme Court's jurisdictional supremacy contemplates an ultimate appellate jurisdiction over all Article III matters. In default of contrary Congressional regulation under the necessary-and-proper clause to create as-of-right appeals, the Court's ultimate appellate jurisdiction is exercisable at the Court's discretion. The discretionary nature of ultimate appellate jurisdiction was exemplified for the founders by the British House of Lords' reception as supreme court of judicature in the kingdom of petitions for review.

4. Two-tier analysis of Article III's case and controversy categories is not supported by the founders' use of all only with respect to the case categories. Absence of all from the controversy categories merely reflects the founders' plan, for most of Article III's drafting history, to extend Article III to some but not all controversies between states, and in particular, to except from the Article controversies between states concerning territory or jurisdiction.