Is Jurisdiction Jurisdictional?

Laura S. Fitzgerald, Is Jurisdiction Jurisdictional?, 95 Nw. U. L. Rev. 1207 (2001)

Points out how the Court has a "merits-first" tradition that stands in contrast to its "SMJ uber alles" rhetoric. (Expressly) doesn't really engage in a normative critique, except for a little bit in the conclusion.

"[J]urisdiction, as a formal constraint on the federal judicial power, may matter less to the Court than its rhetoric insists." 1208

Why merits-first contradicts the Constitution: "[T]he notion that the principle of limited federal power operates on federal courts primarily through the threshold requirement that formal subject matter jurisdiction be established in every case before any judicial power is exercised." 1211

"Particularly now, as the Court continues its decade-long campaign to enforce strict constraints on Congress's jurisdiction to act ... any tradition that leads the Court to soften jurisdictional constraints on itself and other federal courts deserves careful review." 1211-12

"[T]he scope of an institution's power--its jurisdiction--must be determined by a source outside that institution itself." 1274

References

Louise Weinberg, The Article III Box: The Power of "Congress" to Attack the "Jurisdiction" of "Federal Courts", 78 Tex. L. Rev. 1405 (2000)

Cohens v. Virginia, 19 U.S. 264 (1821)

Ex parte McCardle, 74 U.S. 506 (1868)

The Federalist No. 80 (Alexander Hamilton)