Can Congress Create Procedures for the Supreme Court's Original Jurisdiction Cases?
Stephen R. McAllister
University of Kansas - School of Law
June 1, 2009
Green Bag 2D, Vol. 12, p. 281, 2009
This article takes off from the short concurring opinion of Chief Justice Roberts (joined by Justice Souter) in Kansas v. Colorado, 556 U.S. (2009), to examine the constitutional text and historical precedent relevant to the question whether Congress has the power to dictate procedures the Supreme Court must follow in original jurisdiction — as opposed to appellate jurisdiction — cases. The article concludes that the more persuasive view is that Congress lacks such authority, but that the Court has avoided answering the question for more than 200 years and may well never have to address this question of constitutional power on the merits.
Number of Pages in PDF File: 15Accepted Paper Series
Date posted: October 17, 2011
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