Document Type



Wake Forest Law Review




This Article examines growing congressional interest in a specific legislative check on judicial power: controlling the types of cases judges are empowered to decide by expanding and/or contracting federal subject matter jurisdiction. Congress has recently sought to shape judicial power through a range of proposals that variously enlarge and compress federal subject matter jurisdiction. In 2004, for example, the House of Representatives voted to strip federal courts of jurisdiction over constitutional challenges to the Defense of Marriage Act and the Pledge of the Allegiance. Just a few months later, the new 109th Congress undertook a groundbreaking expansion of federal subject matter jurisdiction when it expressly empowered federal courts to hear any constitutional or federal claim on behalf of Terri Schiavo, and directed the district court to determine the matter de novo, notwithstanding the Florida state courts' prior determinations and regardless of whether state remedies had been exhausted. At about the same time, the same Congress significantly increased federal courts' diversity jurisdiction over state law claims with the enactment of the Class Action Fairness Act.

Taken together, these proposals illuminate legislators' emerging views on the appropriate distribution of power between state and federal courts, and on judicial review altogether. In particular, they reveal Congress' increasingly common assessment that the courts - both federal and state - are appropriate arbiters of particular disputes only to the extent that their decisions reflect the preferences of a majority of congressional representatives. Indeed, at least in some contexts, legislative efforts to re-shape the balance of power between state and federal courts may serve a strain of popular constitutionalism - which characterizes "the people," rather than the courts, as the Constitution's only legitimate interpreters - by expressing "the people's" constitutional preferences through the jurisdictional choices made by their elected representatives.

These proposals offer a contemporary case study of popular constitutionalism as an antidote to judicial review's countermajoritarian implications, answering at least some of popular constitutionalism's critics by supplementing what has been largely a descriptive account of the theory's past practice with a concrete modern-day application. Moreover, by retaining a role for at least some court system in achieving finality and settlement when resolving important disputes, these initiatives may offer an especially attractive option for those suspicious of judges, yet reluctant to abandon judicial review altogether. On the other hand, these measures expose the weaknesses of popular constitutionalism put into practice, such as the difficulty ascertaining with confidence "the people's" constitutional preferences, the danger that Congress may be seeking to transfer power from the courts not to the people but to itself, and the potential that "the people's" Constitution will be interpreted to mean very different things in different parts of the country. While these efforts help clarify the theory's costs and benefits for contemporary America, opportunistic congressional appeals to popular constitutionalism invite skepticism about the prospects for its principled application. The Article concludes that Congress' growing interest in jurisdictional re-alignment may be fueled more by a simple interest in changing the identity of litigation's winners and losers than by a thoughtful re-evaluation of the courts' appropriate spheres of influence.