fifty states to become courts of last resort for interpreting, enforcing, or adjudicating challenges to the law. This allows for the possibility that different state courts will construe the law differently, and no review in a higher tribunal is possible. The Court's essential functions include ensuring finality and uniformity across the United States in the enforcement and interpretation of federal law.

The third major problem with a proposal to exclude all federal jurisdiction is that it may violate the equal protection component of the Fifth Amendment Due Process Clause. See Bolling v. Sharpe, 347 U.S. 497 (1954) (recognizing, inter alia, that congruence requires the federal government to follow the same constitutional standard as the Fourteenth Amendment Equal Protection Clause requires states to follow). The Court will subject to strict scrutiny any classifications that explicitly burden a suspect class or fundamental right. A federal law restricting all federal jurisdiction with respect to it or some other federal law does both. First, it may be based on a suspect classification. A jurisdictional regulation restricting access by AfricanAmericans, or a particular religious group, to Article III courts to vindicate certain interests ostensibly because of mistrust of "unelected judges" plainly lacks a compelling justification and thus violates the equal protection class. While the usual constitutional measure of a jurisdictional regulation is the rational basis test, a court might find that even that has not been satisfied if the court finds the argument in support of burdening African-Americans, women, or Jews is illegitimate. While the Court has not employed strict scrutiny to analyze the constitutionality of laws burdening gays and lesbians, the Court has found two such fail even to satisfy the rational basis test. A court analyzing whether a classification precluding a gay or lesbian citizen from petitioning any Article III court would probably conclude that such a restriction is no more rational than the classification struck down by the Supreme Court in Romer v. Evans, 517 U.S. 620 (1996). In Romer, the Court found that the state referendum disadvantaging gays and lesbians failed to pass the rational basis test, because it had been motivated by animus. In all likelihood, a majority of the Supreme Court would strike down such a measure as having been driven by the same illegitimate concerns, or attitudes, that it rejected in that case.

A federal law restricting all federal jurisdiction may also run afoul of the Fifth Amendment by violating a fundamental right. Such is the case with a proposal restricting all federal jurisdiction over flag burning or school prayer. It is unlikely that the Court would find a compelling justification for burdening fundamental rights. I cannot imagine that the justices would agree that distrusting "unelected judges" qualifies as a compelling justification. Nor is a regulation excluding all federal jurisdiction over a matter involving the exercise of fundamental rights, for it precludes Article III courts even from enforcing the law.

In addition, a proposal excluding all federal jurisdiction may violate the Fifth Amendment's Due Process Clause's guarantee of procedural fairness. Over a century ago, the Court declared that due process "is a restraint on the legislative as well as the executive and judicial powers of the government, and cannot be construed to leave congress free to make ‘any due process of law,' by its mere will." For instance, the Court has explained "that the Due Process Clause protects civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs seeking to redress grievances." A proposal excluding all federal jurisdiction effectively denies a federal forum to plaintiffs whose constitutional interests have been impeded by the law, even though Article III courts, including the Supreme Court, have been designed to provide a special forum for the vindication of federal interests.

Excluding all federal jurisdiction with respect to some federal law forces litigants into state courts, which are often thought to be hostile or unsympathetic to federal interests. To the extent that the federal law burdens federal constitutional rights, it is problematic both for the burdens it imposes and for violating due process. Basic due process requires independent judicial determinations of federal constitutional rights (including the "life, liberty, and property" interests protected explicitly by the Fifth Amendment). Because state courts are possibly hostile to federal interests and rights and under some circumstances are not open to claims based on those rights, due process requires an Article III forum.

Last but not least, as the authors of a leading casebook on federal jurisdiction have observed, "At least since the 1930s, no bill that has been interpreted to withdraw all federal court jurisdiction with respect to a particular substantive area has become law." R. Fallon, D. Meltzer, D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 322 (2003). This refusal, for good reasons, constitutes a significant historical practice that argues for, rather than against, precluding all federal jurisdiction in retaliation against judicial decision(s).

III. RESTRICTING THE JURISDICTION OF INFERIOR FEDERAL COURTS

Another kind of proposal sometimes made in the Congress is to preclude the jurisdiction of the inferior federal courts. Unlike the kinds of laws considered in the prior section, this kinds of law allows for the possibility of Supreme Court review albeit by way of petition for certiorari from the state courts. Nevertheless, this proposal has at least three constitutional defects. First, this proposal may violate the equal protection component of the Fifth Amendment Due Process Clause because it may burden a suspect class without a compelling justification or narrow tailoring. It is well settled that a group, or class, that is characterized by its exercise of a fundamental right is a suspect class. Hence, a bill that barred inferior federal courts from hearing any constitutional challenges may be directed at a suspect class, particularly if the group it burdens is defined by its exercise of a fundamental right that the restriction at issue is burdening.

The second major problem with withdrawing jurisdiction over a particular class of cases from inferior federal courts is that it may violate separation of powers.3 Imagine, for instance, that an inferior court had struck down a state law prohibiting flag-burning before the Supreme Court had decided on the constitutionality of that law. If Congress had enacted a law precluding any other inferior courts jurisdiction over the flag, its law would be unconstitutional for both attempting to override the effects of a substantive judicial decision and for hindering the exercise of a first amendment right.

The third problem with a proposal undertaken in retaliation against the federal judiciary is that it may violate the Fifth Amendment due process clause. The Congress' power to regulate jurisdiction may withdraw jurisdiction in Article III courts for neutral reasons, such as promoting their efficiency, national security, or improving the administration of justice. Neither mistrust of the federal judiciary nor hostility to particular substantive judicial decisions (or to particular rights) qualifies as a neutral justification that could uphold a congressional regulation of federal jurisdiction. It is hard to imagine why an Article III court, even the Supreme Court, would treat such distrust as satisfying the rational basis test required for most legislation. By design, Article III judges have special attributes-life tenure and guarantee of undiminished compensation-that are supposed to insulate them from majoritarian retaliation. They are also supposed to be expert in dealing with federal law and more sympathetic to federal claims than their state counterparts. See Martin v. Hunters' Lessee, 14 U.S. 304 (1816). Yet, a proposal that excludes inferior federal court jurisdiction is ill-designed to achieve its purported purpose, because it still allows state courts to hear challenges to the Pledge of Allegiance and retains possible jurisdiction over those challenges in the Supreme Court. As long as Supreme Court review is possible (and it appears to be), "unelected" justices will decide the merits of the challenges. It is hard to see that there is even a rational basis for believing that the "unelected judges" on the nation's inferior federal courts-all nominated by presidents and confirmed by the Senate (with the exception of two recess appointees) cannot be trusted to perform their duties in adjudicating claims relating to the Pledge of Allegiance. If a district court judge fails to do this or an appellate federal court fails to do this, their decisions may be appealed to higher courts.

Congress has shown admirable restraint in the past when it has not approved legislation aimed at placing certain substantive restrictions on the inferior federal courts. (I note that pending before the Court is the question whether the President's, rather than the Congress', authority to preclude all jurisdiction over claims brought by people detained in Guantanemo Bay based on their detention.) Over the years, there have been numerous proposals restricting jurisdiction in the inferior courts in retaliation against judicial decisions, but the Congress has not enacted them. The Congress has further refused since 1869 not to expand or contract the size of the Court in order to benefit one party rather than another. These refusals, just like those against withdrawing all federal jurisdiction in a particular class of constitutional claims, constitute a significant historical practice even a tradition that argues against, rather than for, withdrawing jurisdiction from inferior courts over particular classes of constitutional claims.

3 Professor Theodore Eisenberg has argued that the Framers understood "that the federal courts, whatever their form, could be expected to hear any litigant whose case was within the federal constitutional jurisdiction, either at trial or on appeal." Theodore Eisenberg, Congressional Authority to Restrict Lower Federal Court Jurisdiction, 83 Yale L.J. 498 (1974). He suggests that the Framers assumed that the Supreme Court could accomplish this objective, but argues, as do many other scholars, that this assumption is no longer practical. Eisenberg argues that Congress may exclude cases from federal jurisdiction for "neutral" policy reasons, such as to avoid case overloads or promote the efficiency of federal courts.

Beyond the constitutional defects with proposals to exclude certain cases from all federal jurisdiction or inferior federal courts, they may not be good policy. They may send the wrong signals to the American people and to people around the world. Under current circumstances, they express hostility to Article III courts, in spite of their special function in upholding constitutional rights and enforcing and interpreting federal law. If a branch of our government demonstrates a lack of respect for federal courts, our citizens and citizens in other countries may have a hard time figuring out why they should do otherwise. Rejecting proposals to exclude all federal jurisdiction or inferior court jurisdiction for some constitutional claims extends an admirable tradition within the Congress and reminds the world of our hard-won, justifiable confidence in the special role performed by Article III courts throughout our history in vindicating the rule of law.

Mr. CHABOT. Professor Redish, you're recognized for 5 minutes. TESTIMONY OF MARTIN H. REDISH, LOUIS AND HARRIET ANCEL PROFESSOR OF LAW AND PUBLIC POLICY, NORTHWESTERN LAW SCHOOL

Mr. REDISH. Thank you, Mr. Chairman.

I believe that as a matter of constitutional text, structure and history, many of the issues that we are discussing today are far simpler than numerous complex constitutional issues that the courts deal with. The power of this Congress to limit the jurisdiction of the Federal courts is clear. It is equally clear, however, and I cannot emphasize this enough, about the absence of this Congress' power to exclude all judicial review of constitutional issues. If this Congress limits the jurisdiction of the Federal courts, and as I said before, I believe that power is extremely broad, it must recognize that there still must be available a constitutionally adequate judicial forum to adjudicate constitutional rights and interpret the Constitution.

This is clearly the plan of the Constitution. There was a reason that the Federal judiciary was insulated from direct popular election and power to be regulated by the majoritarian branches. However, if this Congress limits the jurisdiction of the Federal courts, the State courts may provide that constitutionally adequate forum.

As I tell my students, the State courts are soldiers in the Federal judicial army. They are both empowered and obligated under article VI, clause 2, the supremacy clause, to interpret and enforce the Constitution. However, this Congress should not limit Federal court jurisdiction in the very mistaken belief that it can exclude all judicial review.

As to the power of this Congress over the jurisdiction of the Federal courts, I believe the text and the history are both quite clear that it is not necessarily the way I would have chosen to structure it, but when the text and the history are inexorable, we have no choice. It's what I refer to as the "I just work here" view of constitutional interpretation.

Article III explicitly vests in Congress the power not to have created lower Federal courts in the first place. The Framers' assumption was quite clear that if Congress chose not to create the lower Federal courts, the State courts could provide an adequate forum to interpret and enforce Federal law, including the Federal Constitution. While this Congress did create the lower Federal courts immediately, it is well established in the case law that that power to, from time to time, ordain and establish the lower Federal courts includes the power to abolish the lower Federal courts, and the

greater power to abolish the lower Federal courts logically subsumes within it the power to leave the courts in existence, but limit their jurisdictions.

Similarly, as Congressman Hostettler quite accurately pointed out, the Exceptions Clause in article III inescapably says that this Congress may make exceptions to the Supreme Court's appellate jurisdiction. There are external constitutional limits on this power; the Due Process Clause, the concept of separation of powers, and the equal protection directive in the fifth amendment apply. However, there are no internal constitutional limits, no limits in article III on Congress' power. Its power is plenary.

There have been respected constitutional scholars, and I include certainly Professor Gerhardt in this category, who have suggested that Congress may not use its power to limit the so-called essential functions of the Federal judiciary. I find that to be a textual phantom. I consider it to be the equivalent of constitutional wishful thinking. There is nothing that refers to any limit on essential functions from-on this Congress' power. If this Congress wishes to combine its power over the article III lower courts and the Supreme Court under the exceptions clause, the end result is that it can completely exclude Federal judicial power over pretty much any issue, as long as the State courts remain available.

Despite the extent of this power, I consider it as a matter of the American political process highly inadvisable to exercise it. My view has nothing to do with my particular views on the substantive merits of the issue of gay marriage. I claim no expertise on that, and you wouldn't be interested in my views anyway. I'm referring more to the broader issues of American judicial and political proc

ess.

I think this Congress should view its power to be the moral equivalent of nuclear war to take away Supreme Court and lower court jurisdiction. There are serious negative consequences. And we would be left with 50 State supreme court interpretations of Federal law. I don't think that's an unconstitutional result. I consider it an inadvisable result.

Thank you.

Mr. CHABOT. Thank you, Professor.

[The prepared statement of Mr. Redish follows:]

PREPARED STATEMENT OF MARTIN H. REDISH

INTRODUCTION

I have been asked to express my views concerning the scope of Congress's constitutional power to limit federal court jurisdiction over particular classes of cases. While I have both taught and written about the subject on numerous occasions over the last thirty years, I must concede at the outset that it is virtually impossible to say definitively what the outer limits of this congressional power actually are. This confusion results from the relatively limited case law that exists on the subject. In a certain sense, of course, the lack of doctrinal development on this subject may well be a good thing, because the issue arises in the courts only when the judicial and legislative branches are involved in a tense political confrontation, a situation that has occurred only rarely in the nation's history. Yet the fact remains that relatively few decisions have considered the issue, and what little doctrine does exist is occasionally vague or inconsistent. Adding to the confusing state of the law are the dramatically different views expressed by federal jurisdiction scholars over the years. Thus, the most I can do today is to provide my own theoretical take on the subject. While I believe that this approach flows inexorably from both the text and structure of the Constitution and is consistent with what little case law exists, for purposes

of full disclosure I must concede that many respected scholars, both current and past, would disagree with all or part of the approach I suggest here.

In this testimony, I plan to describe my approach to the question and explain why I believe it derives from constitutional text and structure. I will then briefly describe alternative theoretical models, and explain why I consider them to be unacceptable.

CONCLUSIONS

I believe that, at least as a constitutional matter, the issue of congressional power to control federal jurisdiction is far simpler than many other scholars think. The text and internal logic of Article III of the Constitution make clear that congressional power to control the jurisdiction of the lower federal courts and the appellate jurisdiction of the Supreme Court is extremely broad. There is nothing in the provision's text that in any way confines congressional authority in either area. It is highly likely, however, that the federal courts would construe congressionally imposed, substantively based restrictions on their jurisdiction in a highly grudging manner. Thus, if Congress wishes to exercise its vast authority, it would be advised to state its intent explicitly in the text of the relevant statutes.

To be sure, several other guarantees contained in the Constitution-due process, separation of powers, and equal protection-may well impose limitations on the scope of congressional power. The Due Process Clause of the Fifth Amendment requires that a neutral, independent and competent judicial forum remain available in cases in which the liberty or property interests of an individual or entity are at stake. But as long as the state courts remain available and adequate forums to adjudicate federal law and protect federal rights, it is difficult to see how the Due Process Clause would restrict congressional power to exclude federal judicial authority to adjudicate a category of cases, even one that is substantively based. Separation of powers, on the other hand, imposes more far reaching restrictions. That doctrine prevents Congress from (1) itself adjudicating individual litigations, (2) directing a federal court how to decide a particular case, (3) employing the federal courts for purposes of enforcement without simultaneously allowing them to interpret the law being enforced or consider its constitutionality, or (4) overturning individual decisions or classes of decisions already handed down by a federal court. However, it is difficult to see how any of those constitutional guarantees would restrict congressional authority completely to exclude substantively based categories of future or presently undecided cases from either the jurisdiction of the lower federal courts or the appellate jurisdiction of the Supreme Court. The constitutional directive of equal protection restricts congressional power to employ its power to restrict jurisdiction in an unconstitutionally discriminatory manner

It should be noted that the fact that Congress possesses such broad constitutional power in no way implies that it would be either wise or appropriate, as a matter of the American political process, for Congress to exercise its authority to remove specific categories of substantive cases from federal jurisdiction. Purely as a matter of policy, I believe that Congress should begin with a very strong presumption against seeking to manipulate judicial decisions indirectly by selectively restricting federal judicial authority. I also firmly believe that were Congress to take such action it would risk undermining public faith in both Congress and the federal courts. Due to their constitutionally granted independence and insulation from the majoritarian branches of the federal government, the judiciary possesses a unique ability to provide legitimacy to governmental action in the eyes of the populace. Congressional manipulation of federal judicial authority therefore threatens the legitimacy of federal political actions. Moreover, to exclude federal judicial power to interpret or enforce substantive federal law undermines the vitally important function performed by the federal judiciary in the American political system. The expertise and uniformity in interpretation of federal law that is provided by the federal judiciary should generally not be undermined.

CONGRESSIONAL POWER TO CONTROL THE JURISDICTION

OF THE LOWER FEDERAL COURTS

Article III, section 1 of the Constitution provides that "[t]he 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." On its face, this language vests in Congress complete discretion whether or not to create the lower federal courts, and the established historical understanding of the so-called "Madisonian Compromise" makes clear that this view is accurate. For an extended discussion of the Madisonian Compromise, see Martin H. Redish & Curtis Woods, Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis, 124 U. Pa. L. Rev. 45, 52-55 (1975). The framers' as