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

• Author: Hawley, Erin Morrow
• Position: II. Problems with the Clear Statement Approach C. The Clear Statement Approach Is Retroactive through Conclusion, with footnotes, p. 2059-2095

3. The Clear Statement Approach Is Retroactive

   Clear statement rules often are justified on grounds that they promote dialogue between the legislative and judicial branches. (204) However, the Supreme Court's clear statement rule for jurisdiction does not promote this sort of clarity because it often applies retroactively, thereby compromising "the reliability of background expectations that are essential to effective communication between Congress and the judiciary." (205)

   From the Marshall Court through at least the mid-nineteenth century, courts were likely to view procedural requirements as jurisdictional. (206) Beginning in the late 1990s, the Supreme Court narrowed its definition of jurisdiction, and in so doing, reversed that presumption. Arbaugh's clear statement principle now enforces a more limited view of the term jurisdiction. The Court presumes that Congress intended a condition to suit to operate nonjurisdictionally, unless Congress clearly says otherwise. (20)' The Court has held all sorts of preexisting procedural requirements to be nonjurisdictional, even those previously labeled "jurisdictional." (208) In fact, the Court's narrowing of the scope of the term jurisdiction has been so disruptive to prior precedent that Justice Scalia (the author of Steel Co. and its mandate to bring some discipline to jurisdictional cases) remarked that the Supreme Court's new presumption "shows signs of becoming a libertine, liberating romp through [the Court's] established jurisprudence." (209)

   There is no question that the Court's methodological approach has changed dramatically from the Marshall Court to the Taney Court to the current Court. But can the different approaches be explained by the different consequences that attached to a jurisdictional statute at different times in our history? The Supreme Court has used the term jurisdiction to mean different things at different times. For example, the federal courts did not generally treat jurisdiction rigidly until around 1900, (210) and Michael Collins argues that "certain of the qualities commonly associated with" limited subject matter jurisdiction "remained less than fully settled throughout much of the nation's history." (211)

   Although the Supreme Court's changing conception of jurisdiction may blunt the effects of its clear statement rule, the rule often operates retroactively because it is only in the last few decades that the Court retreated from the view that procedural requirements are often jurisdictional. Yet the consequences we ordinarily associate with jurisdiction, namely nonwaivability, attended jurisdictional statutes well before the Court's clear statement rule.

   In the 1868 case of Edmonson v. Bloomshire, the plaintiffs had failed to timely file the record with the Supreme Court. (212) The jurisdictional objection was first raised at oral argument. (213) The Supreme Court dismissed despite the fact that both parties had fully argued the case on the merits and counsel never objected to the regularity of the appeal. (214) The Court rejected the argument that a motion to dismiss was required before the case proceeded to a hearing. (215) The reason, the Court wrote, "is, that the writ of error and the appeal are the foundations of our jurisdiction, without which we have no right to revise the action of the inferior court." (216) The Court "ha[d] never hesitated" to dismiss a case on such grounds "although no motion to dismiss was made by either party." (217) "In fact, treating it as a matter involving the jurisdiction of the court, we cannot do otherwise." (218)

   The retroactivity of the clear statement approach is confirmed by prior case law rejecting the efficiency rationale that currently animates that approach. Despite the serious consequences that attended a jurisdictional ruling by at least 1868, the mid-nineteenth-century Court did not view inconvenience, a waste of time and effort on the part of litigants or courts, or even unfairness to blameless litigants, as grounds upon which to conclude that a statutory precondition to suit was nonjurisdictional. As the Edmonson Court put it: "it is better, if the rule is deemed unwise or inconvenient, to resort to the legislature for its correction." (219)

   Even as early as 1848, the Court dismissed concerns over inconvenience or unfairness as irrelevant to a jurisdictional question. (220) In United States v. Curry, Thomas Curry had been awarded land under a statute enabling land claimants within the new state of Louisiana to institute proceedings in federal district court to prove the validity of their colonial land claims. (221) The statute provided that an appeal to the Supreme Court must be brought within one year of the district court decision. (222) But the district court, in accordance with local Louisiana law, granted an extension of time in which to file an appeal. (223) The government perfected its appeal to the Supreme Court within the time granted by the extension, but beyond the one-year limitation. (224) The Supreme Court found that the government's reliance on the district court order was irrelevant to the jurisdictional question because the appeal had not been prosecuted "in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction." (225) As for the government's argument that application of the limitations statute would work an "inconvenience or injustice," Congress alone determined the manner in which a case must be brought before the Court and thus only Congress could provide relief. (226)

   In sum, the Supreme Court's clear statement rule has changed the way the Court analyzes whether a procedural requirement is jurisdictional. This change in approach means that the clear statement rule often may operate contrary to congressional expectations. The point here is not that statutes necessarily should be interpreted according to the principles in place at the time of their enactment, (227) but the narrower observation that the Supreme Court's new clear statement rule for jurisdictional provisions is not democracy enforcing. Thus, although clear statement rules are often justified because they facilitate legislative and judicial communication, the Court's clear statement rule for jurisdiction cannot be defended upon clarity grounds because it often applies retroactively, compromising the background expectations necessary for effective communication between Congress and the judiciary. (228)

4. Separation of Powers Concerns

   The clear statement rule for jurisdiction is undertheorized. Such a rule is a powerful tool in the statutory interpretation arsenal; it alters the usual mode of statutory interpretation and should not be imposed without serious consideration. This Section first briefly discusses how clear statement rules operate and then demonstrates that even a forward-looking rule that is consistently applied will be problematic for two reasons: (1) the Court has not tied it to a specific constitutional interest and (2) the rule itself implicates separation of powers concerns.

   1. Clear Statement Background

      As Professor Eskridge explains, clear statement rules are the strongest form of interpretive presumption employed by the courts. (229) They are a type of "substantive canon" that commands a particular statutory meaning unless Congress has clearly rejected that meaning in the text of the statute. (230) Clear statement rules require a court to depart from ordinary judicial review. For a statute to reach a certain result, it is not enough that the best reading of the statute provide for such result. (231) Rather, a particular substantive interpretation is commanded unless Congress "unequivocally express[ed]" a contrary intention in the text of the statute. (232)

      Supporters argue that clear statement rules are democracy enforcing. (233) Such rules permit the Court to police constitutional boundaries without taking the extraordinary step of invalidating a federal statute. (234) Because clear statement rules are procedural, rather than a judgment regarding the substantive legitimacy of a congressional act, they are reversible. (235) Congress may override the Supreme Court's clear statement decisions if it speaks clearly. This override authority requires Congress to "focus[] the political process on the values enshrined in the Constitution" and tempers the Court's dialogue with the political branches, leaving lawmaking authority with the democratic branches. (236)

      Clear statement rules are not without their critics. (237) Yet even assuming the validity of clear statement rules in general, they are an aberration from ordinary principles of judicial review. Such a departure is not warranted when the clear statement rule at issue does not protect a sufficiently specific constitutional interest, and engenders constitutional concerns of its own.

   2. The Court Has Not Invoked a Specific Constitutional Value

      Since clear statement rules direct courts to something other than the most reasonable reading of a statute, (238) they are usually reserved for constitutional values. (239) Clear statement rules crop up in a variety of contexts, but they operate primarily to preserve constitutional principles. As John Manning puts it, clear statement rules "share the defining feature of trying to safeguard constitutional values." (240)

      Structural federalism, for example, has inspired the Supreme Court to require Congress to "unequivocally express" its intention when it acts to abrogate state sovereign immunity. (241) Because the Constitution did not contemplate federal jurisdiction over citizen suits against nonconsenting States, (242) the federal courts must be certain of Congress's intent to override the guarantees of the Eleventh Amendment. (243) And while a State may waive its own sovereign immunity, the "test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one." (244) Consent to...