Vicki C. Jackson, Introduction: Congressional Control of Jurisdiction and the Future of the Federal Courts -- Opposition, Agreement, and Hierarchy, 86 Geo. L.J. 2445 (1998).
Abstract: Introducing a Symposium of articles exploring the constitutionality of recently-enacted jurisdictional laws affecting prisoners and aliens, this essay argues that the recent legislation reveals three complex and contradictory relationships between Congress and the federal courts over their jurisdiction: (1) a dynamic of confrontation, in which Congress seeks to curtail "activist" federal judges, (2) a dynamic of agreement, in which Congress and the federal judiciary as a whole seek to curtail access to federal courts for these claimants, and (3) a dynamic expressing judicial hierarchy, in which both the Supreme Court and Congress seek to reinforce the "supersupremacy" of the Supreme Court vis-a-vis the inferior federal courts. In connection with this third dynamic, the essay suggests that 28 U.S.C. section 2254 (d)(1), which appears to limit the sources of controlling federal law on state habeas corpus to decisions of the Supreme Court (and, by implication, excludes decisions of the inferior federal courts) violates Article III principles requiring that decisions of all courts exercising the "judicial power" of the United States be constrained by the prospect of those decisions functioning as precedent. After reviewing the excellent contributions of Professors David Cole, John Harrison, Daniel J. Meltzer, Judith Resnik and Lawrence G. Sager, the essay goes on to suggest that jurisdictional rules affecting aliens have foreseeable effects on foreign relations (see Breard) that require attention, beyond the concerns for caseload reduction and expeditious judgment that informed much recent legislative change. Concluding that the dynamics of confrontation, agreement and hierarchy are likely to endure, the essay joins with Professor Resnik in calling for more attention to nonadjudicatory judicial statements (e.g., the Long Range Plan of the Federal Courts) about the nature of federal jurisdiction.