The Supreme Court's quiet revolution: redefining the meaning of jurisdiction.

• Author: Hawley, Erin Morrow
• Position: Abstract through II. Problems with the Clear Statement Approach B. The Clear Statement Approach Is Unpredictable, p. 2027-2059

ABSTRACT

Over the last three decades, the Rehnquist and Roberts Courts have carried out a quiet revolution in the nature and meaning of jurisdiction. Historically, federal courts generally treated procedural requirements, like filing deadlines and exhaustion prerequisites, as presumptively "jurisdictional." In case after case, the modern Court has reversed course. The result has been an unobtrusive but seminal redefinition of what jurisdiction means to begin with: the adjudicatory authority of the federal courts. This shift is momentous, but it has been obscured by the Court's erstwhile imposition of a clear statement requirement. For courts to find a statutory requirement jurisdictional, Congress must have clearly said so.

Scholars have applauded this new interpretive technique, yet even though the Court's more precise definition of jurisdiction is a welcome development, the Court's emphasis on the clear statement rule is a mistake. To begin, the Supreme Court's application of its clear statement rule is inconsistent. As a result, the Court's decisions are unpredictable, and Congress is left to guess how "clear" a clear statement must be. Second, the rule may not clarify dialogue between the courts and Congress because the Court has imposed it retroactively. Third, the Court has not tied its command to the protection of an important constitutional value, and there is a strong argument to be made that the rule unconstitutionally augments the Court's authority at the expense of Congress's unquestioned power over the scope of Article III jurisdiction.

Ultimately, the Court's turn to a clear statement rule is unnecessary. A close analysis of the Supreme Court's recent cases reveals it is the Court's quiet redefinition of jurisdiction that has been doing the work. The Court is right to demand precision as to jurisdiction. But the clear statement rule is a problematic and unnecessary attempt to carry that mandate into effect. This Article argues that the Court should jettison its clear statement requirement and focus on what it really wants to ask, and should have been asking all along: Did Congress intend this provision to oust the federal courts of their power to adjudicate this case?

TABLE OF CONTENTS INTRODUCTION I. HISTORY AND ORIGINS OF THE CLEAR STATEMENT RULE A. Historical Approaches to Procedural Requirements B. Origins of the Clear Statement Rule II. PROBLEMS WITH THE CLEAR STATEMENT APPROACH A. The Scholarly Consensus B. The Clear Statement Approach Is Unpredictable 1. Bowles, John R., and Stare Decisis C. The Clear Statement Approach Is Retroactive D. Separation of Powers Concerns 1. Clear Statement Background 2. The Court Has Not Invoked a Specific Constitutional Value 3. The Article I Problem III. DECIPHERING THE COURT'S JURISDICTIONAL JURISPRUDENCE A. The Clear Statement Rule Is Unnecessary B. Jurisdiction Sans the Clear Statement Rule CONCLUSION Terminology is destiny.

--Gonzalez v. Thaler (1)

INTRODUCTION

Over the last three decades, the Rehnquist and Roberts Courts have carried out a quiet revolution in the nature and meaning of jurisdiction. Historically, federal courts generally treated procedural requirements, like filing deadlines and exhaustion prerequisites, as "jurisdictional." (2) The early Court frequently used the term jurisdiction to refer not only to authority-conferring provisions, but also to procedural requirements. (3) Not anymore. In case after case, the modern Court has abandoned its treatment of procedural requirements as presumptively jurisdictional. (4) The result has been an unobtrusive but seminal redefinition of what jurisdiction means. In a word, the Court's cases have narrowed the definition of jurisdiction to mean only the courts' power to decide cases. Statutory requirements are jurisdictional only to the extent they are directed specifically at the adjudicatory authority of the federal courts.

This shift is momentous, as only a few scholars have realized. (5) Ironically, the principal reason so few have appreciated this revolution may be the Court itself. Even as they were rethinking jurisdiction, the Rehnquist and Roberts Courts chose to emphasize not their remodeled definition, but rather an interpretive technique for classifying statutory provisions as jurisdictional. To find a requirement jurisdictional, Congress must have clearly said so. (6) It is this clear statement rule that the Court has made the focus of its recent jurisdictional cases. (7) And the innovation has been warmly met by the academy. (8)

Even though the Court's more precise definition of jurisdiction is a welcome development, the Court's emphasis on the clear statement rule is a major mistake for several reasons. To begin, the Supreme Court's application of its clear statement rule is inconsistent. The Court invokes it when it wants to, but ignores it in other circumstances, without much rhyme or reason. For example, stare decisis ordinarily does not matter when it comes to clear statement rules, but the Court has recently treated precedent as dispositive in several procedural requirements cases. (9) As a result, the Court's decisions are unpredictable, and Congress is left to guess how "clear" a clear statement must be.

Second, the best justifications for clear statement rules generally--that they are democracy enhancing because they facilitate and clarify dialogue between the courts and Congress--do not apply here. The Supreme Court has imposed its clear statement rule retroactively, upsetting, rather than facilitating, congressional dialogue. (10)

Third, the Court's use of the clear statement rule in the jurisdictional context is unique in that, unlike other clear statement rules, here the Supreme Court has not tied its "speak clearly when you mean jurisdiction" command to the protection of an important constitutional value. Indeed, to require a clear statement from Congress as to jurisdiction implicates separation of powers principles. There is a strong argument to be made that this jurisdictional "clarity tax" unconstitutionally augments the Court's authority at the expense of Congress's unquestioned power over the scope of Article III jurisdiction.

Ultimately, the Court's turn to a clear statement rule on jurisdiction is a blind alley precisely because it is unnecessary. A close analysis of the Supreme Court's recent jurisdictional cases reveals that it is not in fact the clear statement rule that holds water. It is the Court's quiet redefinition of jurisdiction. Although many today equate the term "jurisdiction" with the judicial power to hear a case, the historical understanding of the term was much broader, encompassing procedural requirements. (11) The Court's recent cases reveal the tension between the old and new conceptions of jurisdiction coming to a head, and the Court choosing the narrower definition. (12) The Court is right to demand precision as to jurisdiction. But the clear statement rule is a clumsy, distracting, and ultimately unnecessary attempt to carry that mandate into effect. Once we jettison it, the true import of the Court's jurisdictional project comes into focus. What the contemporary Court really wants to ask, and should have been asking all along, is this: Did Congress intend this provision to oust the federal courts of their power to adjudicate this case?

To say that jurisdiction matters is a dramatic understatement. The power to hear cases--or not--goes to the very heart of what courts are and what they do. Courts are asked every day to determine whether statutory requirements are jurisdictional. Indeed, procedural requirements are at issue in every case--they include everything from filing deadlines, to exhaustion requirements, to litigating prerequisites such as copyright registration. Under today's understanding of jurisdiction, if a procedural requirement is jurisdictional, it is absolute. (13) Parties may not waive or forfeit such requirements and the federal courts may not create equitable exceptions--however meritorious the excuse. (14) In view of these consequences, it is time to recognize the contemporary Court's narrowing of the term jurisdiction for what it is: revolutionary.

Part I analyzes the development and contours of the Supreme Court's clear statement requirement for jurisdictional conditions. Part II concludes that the application of this approach has been problematic. The Supreme Court's invocation of context is inconsistent with clear statement rules generally, and its occasional reliance on stare decisis creates significant tension with the clear statement rule and leads to unpredictable results. The clear statement requirement also is troublesome because it operates retroactively, reversing the historical, presumptively jurisdictional approach that the Marshall and Taney Courts had adopted. Finally, the undertheorized clear statement rule is a poor fit because it does not protect important constitutional values and may itself create constitutional tensions. Part III decodes the Supreme Court's procedural requirements cases and establishes that the key doctrinal shift is a narrowed definition of the term "jurisdiction," not the clear statement rule. It also suggests a way forward--a straight-forward application of the question whether Congress conditioned the adjudicatory power of the federal courts--and briefly sketches out key considerations under this new inquiry.

1. HISTORY AND ORIGINS OF THE CLEAR STATEMENT RULE

   The Supreme Court's methodology for determining whether a procedural requirement is jurisdictional has fluctuated wildly. The Marshall Court held certain procedural requirements jurisdictional. The Taney Court took things further, adopting what amounted to a presumption that procedural requirements were jurisdictional. This presumption carried through in large measure to the more modern Supreme Court that has often endorsed a broad and imprecise view of the term jurisdiction. The past few decades, however, have...