Congress Clears its Throat

Constitutional Commentary, Vol. 22, p. 553, 2005

32 Pages Posted: 21 Jul 2006


In the welter of opinions issued in connection with the Schiavo case, one opinion attracted enormous attention: the opinion by Judge Birch finding unconstitutional the Act of Congress providing for federal jurisdiction. That opinion was quite wrong in many ways, ranging from its failure to support Judge Birch's vote on the question before the Court to its treatment of statutory and common law principles as if they were constitutional requirements. Moreover, its interpretation of Klein v. United States, 80 U.S. 128 (1871) - a case involving the appellate jurisdiction of the Supreme Court, sovereign immunity, and a Presidential pardon in the wake of the Civil War - demonstrates the enduring wisdom of Professor Young's observation that Klein has given rise to a devotion among judges and scholars resembling a cult.

This article defends that Act of Congress against Judge Birch's criticism. It also places Klein in the context of the general constitutional law principle of vested rights. This context not only reveals that the pardon is relevant in Klein both as an independent ground of decision and as one means of creating vested rights, it also provides insight into the sovereign immunity problem.

Judge Birch's opinion nevertheless serves to bring into focus significant concerns about officials in Washington determining that a particular state court case was important, singling it out from the thousands of decided cases, providing for its adjudication in a federal court unburdened by the preclusive effect of the state court judgment, and insisting that their decision to single out this case not be understood as establishing a precedent. However, those who find themselves appalled by the Act should ask themselves why they are so unconcerned when the Supreme Court does the same thing.

Perhaps Congress was simply trying to do something about a particular tragedy that stuck in its craw, or perhaps it was sending a message to federal courts. But perhaps Congress was beginning to find its voice to assert control over the jurisdiction of federal courts.

Keywords: Schiavo, Klein, federal jurisdiction, judicial activism, en banc, Rooker-Feldman, standard of review, rule of decision, special legislation, private laws

JEL Classification: K40

Suggested Citation

Hartnett, Edward A., Congress Clears its Throat. Constitutional Commentary, Vol. 22, p. 553, 2005, Available at SSRN:

Edward A. Hartnett (Contact Author)

Seton Hall University School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973-642-8842 (Phone)

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