Article III, Section 2, Clause 2:

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. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Most Supreme Court cases fall within the Court’s appellate jurisdiction rather than its original jurisdiction.1 Congress has authorized Supreme Court review of decisions of the state courts and lower federal courts through two procedural mechanisms: appeals and petitions for a writ of certiorari.2 The Court has discretion to grant or deny review via a petition for a writ of certiorari; by contrast, the Court is required to exercise jurisdiction over cases properly before it on direct appeal. Over time, Congress has limited the types of cases subject to direct appeal to the Supreme Court, rendering more cases subject to discretionary review via certiorari.3

, § 3, 102 Stat. 662. The Court has also issued rulings that limit the scope of direct appellate review and thus reduce the attendant burden on the Court.

For the first century of the Court’s existence, most of its cases were direct appeals. Early decisions of the Supreme Court emphasized the mandatory nature of appellate review. Chief Justice John Marshall first implied that the Court is obligated to take and decide cases meeting jurisdictional standards in Marbury v. Madison.4 The Chief Justice explained in greater detail in Cohens v. Virginia:

The Supreme Court has repeatedly stated that courts only declare what the law is in specific cases6 and are without will or discretion to make or change the law.7 The early Court’s statements that it could not decline to hear cases that fell within its jurisdiction rest on similar grounds as other Court holdings that embraced mandatory limitations of the judicial process, such as justiciability requirements that limit the federal courts’ jurisdiction to certain cases and controversies.8

The broad grant of appellate jurisdiction in the 1789 Act and the Supreme Court’s determination that the exercise of such jurisdiction was mandatory eventually caused overcrowding on the Supreme Court’s docket. In 1891, among other reforms, Congress enacted legislation replacing mandatory Supreme Court direct review with the option to petition for a writ of certiorari in many types of cases.9

, § 3, 102 Stat. 662. But see, e.g., 28 U.S.C. § 1253 (authorizing direct appeal to the Supreme Court of decisions of a three-judge district court). In addition, while some modern cases echo Chief Justice Marshall’s earlier rulings discussed above,10 the Court has also adopted several discretionary rules that limit its exercise of judicial review.11 The Court has applied prudential theorems limiting the scope of its review more or less strictly on a case-by-case basis.12

Footnotes

1

For discussion of the Court’s original jurisdiction, see ArtIII.S2.C2.2 Supreme Court Original Jurisdiction; ArtIII.S2.C2.3 Original Cases Affecting Ambassadors, Public Ministers, and Consuls.

2

28 U.S.C. §§ 1253–1257.

3

See, e.g., Act of June 27, 1988, Pub. L. No.

100-352

, § 3, 102 Stat. 662.

4

5 U.S. (1 Cr.) 137 (1803).

5

19 U.S. (6 Wheat.) 264, 404, (1821).

6

See, e.g., Justice George Sutherland in Adkins v. Children’s Hospital, 261 U.S. 525, 544 (1923), and Justice Owen Roberts in United States v. Butler, 297 U.S. 1, 62 (1936).

7

“Judicial power, as contradistinguished from the powers of the law, has no existence. Courts are the mere instruments of the law, and can will nothing.” Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824) (Marshall, C.J.). See also Justice Roberts in United States v. Butler, 297 U.S. 1, 62–63 (1936).

8

The political question doctrine is another limitation arising in part out of inherent restrictions and in part from prudential considerations. For a discussion of limitations utilizing both stands, see Ashwander v. TVA, 297 U.S. 288, 346–56 (1936) (Brandeis, J., concurring). See generally, ArtIII.S2.C1.2 Historical Background on Cases or Controversies Requirement.

9

Act of March 3, 1891, ch. 517, 26 Stat. 826. In 1988, Congress enacted legislation that replaced direct appeals with discretionary certiorari petitions in almost all remaining circumstances. Act of June 27, 1988, Pub. L. No.

100-352

, § 3, 102 Stat. 662. But see, e.g., 28 U.S.C. § 1253 (authorizing direct appeal to the Supreme Court of decisions of a three-judge district court).

10

Powell v. McCormack, 395 U.S. 486, 548–49 (1969); Baker v. Carr, 369 U.S. 186, 211 (1962); Zwickler v. Koota, 389 U.S. 241, 248 (1967).

11

See, e.g., Zucht v. King, 260 U.S. 174 (1922) (holding that the Court may decline to hear an appeal that does not present a substantial federal question).

12

See Justice Louis Brandeis’ concurring opinion in Ashwander v. TVA, 297 U.S. 288, 346 (1936). And contrast A. Bickel, supra note 3, at 111–198, with Gunther, The Subtle Vices of the “Passive Virtues” : A Comment on Principle and Expediency in Judicial Review, 64 Colum. L. Rev. 1 (1964).