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)

Ruhrgas

Ruhrgas v. Marathon Oil, 526 U.S. 574 (1999)

Courts can decide personal jurisdiction issues before subject matter jurisdiction issues if they want (at least in removal cases, although nothing in the reasoning limits the decision to those type of cases). It's all just jurisdiction to Justice Ginsburg.

Lower court, Fifth Circuit, had determined that respect for federalism required that SMJ be determined first, but it reversed itself en banc.

References

5th Circuit opinion, 115 F.3d 315; en banc at 145 F.3d 211?

Steel Co.

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)

Scalia is so not cool with "resequencing", i.e. addressing standing before SMJ, but Stevens wants to permit it.

Scalia: "We decline to endorse such an approach because it carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers." 94

Again: "The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation of equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects." 101

Finally: "For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires." 101-02

Stevens relies in part on the idea of constitutional avoidance (but recall the idea that constitutional avoidance is itself constitutionally motivated, so the very act of deciding to avoid a constitutional question is an act of interpreting the constitution (right?)).

References

Bell v. Hood, 327 U.S. 678 (1946)

Mitchell v. Maurer, 293 U.S. 237 (1934)

Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993)

The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913)

Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661 (1974)

Romero v. International Terminal Operating Co., 358 U.S. 354 (1959)

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987)

United States v. Vanness, 85 F.3d 661 (C.A.D.C. 1996)

Northwest Airlines v. County of Kent, 510 U.S. 355 (1994)

Montana-Dakota Util. v. Northwestern Public Service, 341 U.S. 246 (1951)

Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)

Great Southern Fire Proof Hotel v. Jones, 177 U.S. 449 (1900)