Jurisdictional Resequencing and Restraint

Abstract

Justice Ruth Bader Ginsburg is well known for her restrained jurisprudence, and yet one line of her opinions has been criticized as “substantially illegitimate.” Ruhrgas AG v. Marathon Oil Co. and Sinochem International Co. v. Malaysia International Shipping Corp. both involve “jurisdictional resequencing,” which in certain circumstances permits a federal court to decide a threshold jurisdictional question, such as forum non conveniens, before it resolves the question of subject-matter jurisdiction. Because jurisdictional resequencing allows courts to decide questions when they may in fact lack subject-matter jurisdiction, at least one critic has said this doctrine is “close to the line that separates valid authority from unprincipled usurpation.” In this Article, I argue that, contrary to this criticism, both Ruhrgas and Sinochem demonstrate Justice Ginsburg's restrained decision-making. In particular, both decisions reflect her view that the federal courts, as the undemocratic institutions in our government, should be careful to exercise their power when it might trench on the powers of the elected branches. By avoiding complex questions of subject-matter jurisdiction – control of which, apart from constitutional constraints, is given to Congress – the courts avoid questions about the margins of their power, precisely the kinds of questions that might involve judicial overreaching.

Keywords: federal courts, jurisdiction, judges