The Supreme Court, Article III, and Jurisdiction Stuffing

57 Pages Posted: 5 Apr 2024

Date Written: April 1, 2024


Reflecting on the state of the federal judiciary in the aftermath of the Biden Commission report and subsequent controversies, this Article identifies problems with the current operation of both the Supreme Court and the lower courts that make up the Article III judicial pyramid. Many federal issues have been assigned to non-Article III tribunals, courts poorly structured to offer the independent legal assessment that such Founders as James Wilson prized as they structured the federal judiciary. Meanwhile, the Supreme Court devotes growing attention to a slice of highly salient public law questions, including those presented on the shadow docket, thereby slighting matters of private law and fueling dysfunctional decision-making. Instead of jurisdiction-stripping and court packing, two controversial proposals for court reform, this Article proposes modest jurisdiction stuffing.

By that, the Article means jurisdictional provisions that will expand the Court’s mandatory appellate docket to encompass a broader range of matters, without unduly burdening the Court. Among its proposals, the Article suggests some broadening of the Court’s mandatory review of state court decisions, some expansion of three-judge tribunals to clarify the factual and legal issues that now occupy the Court’s shadow docket, and some as-of-right review of a slice of Federal Circuit decisions that implicate matters of private law. The Article proposes novel filtration rules to select cert-worthy issues for mandatory review.

Keywords: federal judiciary, Biden Commission, Article III, jurisdiction, shadow docket

JEL Classification: K10, K30

Suggested Citation

Pfander, James E., The Supreme Court, Article III, and Jurisdiction Stuffing (April 1, 2024). Pepperdine Law Review, Vol. 51, No. 3, 2024, Northwestern Public Law Research Paper No. 24-08, Available at SSRN:

James E. Pfander (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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