The Common-Law Exceptions Clause: Congressional Control of Supreme Court Appellate Jurisdiction in Light of British Precedent

Abstract

This article revisits the literature on Congress’s ability to control the jurisdiction of the Supreme Court. It finds evidence that the well-known references in Article III to “exceptions” and “regulations” were legal terms of art in pre-1789 British law. An examination of the case law demonstrates that English and Scottish supreme courts always retained a certain quantum of supervisory jurisdiction over inferior courts, even when Parliament made an “exception” or “exemption” (a synonymous term) to the supreme court’s appellate jurisdiction. This quantum of supervisory jurisdiction extended not only to the power to enforce adherence to the supreme court’s prior precedents, but also to the power to resolve differences of opinions among courts as to statutory interpretations (something we often now encounter in the context of “circuit splits”) and to correct obvious misinterpretations of the law and fundamental denials of due process rights.