Document Type

Article

Publication Date

2024

Abstract

As Chief Justice Marshall explained, “the primary motive” for creating a “judicial department” for the new national government was “the desire of having a [national] tribunal for the decision of all national questions.” Thus, although Article III of the Constitution lists nine kinds of “Cases” and “Controversies” to which the “judicial Power” of the United States “shall extend,” “the objects which stood first in the minds of the framers” were the cases “arising under” the Constitution, laws, and treaties of the United States. Today we refer to this as the federal question jurisdiction.

Of all federal question cases, the Framers were most concerned to provide a federal forum for those in which a litigant seeks to enforce the supremacy of federal law against alleged encroachment by a state. Consistent with that view, for more than 100 years, the federal trial courts have exercised a jurisdiction, as one prominent judge put it, “to grant equitable relief against unconstitutional penalties and prosecutions threatened under state authority.” But in 2021, in Whole Women’s Health v. Jackson, the Supreme Court vindicated a stratagem designed by a state legislature to foreclose resort to that jurisdiction to challenge a state abortion law that plainly violated the Federal Constitution as then interpreted.

The decision in Whole Women’s Health is one of several developments over the last four decades that have raised concerns about the operation of the federal question jurisdiction today. These developments include Congressional legislation, judicial doctrines, and the Supreme Court’s management of its docket. They affect both the ability of federal courts to provide a forum for individual litigants – particularly in cases challenging state action – and the ability of the system to foster uniformity rather than “balkanization” in the interpretation of federal law.

The individual developments have received attention, but this Article is the first to identify a broader pattern and suggest its possible significance. Drawing on a novel synthesis of history, doctrine, and institutional arrangements, the Article chronicles the various developments and places them in context. It first reviews the drafting history and ratification debates and the judicial interpretation of the jurisdictional grant. It then examines how Congress has implemented the jurisdiction and why there is reason to be concerned that the operation of the jurisdiction today falls short of the Framers’ expectations. It concludes with an invitation to further research.

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