Constitution Series Part 22: Article III, Section 2, Clauses 2 and 3

The first clause of Section 2 listed the cases that federal courts were designed to handle. As I noted, the vast majority of federal cases are handled by the district and appellate courts, and only a few actually reach the Supreme Court.

The remaining clauses of Section 2 clarify which cases go directly to the Supreme Court (spoiler: almost none) and where juries figure into all of this.


ARTICLE III

Section 2

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

"Original jurisdiction" means that, in those situations, the case goes directly to the Supreme Court. There's no need to go through the lower courts first.

However, this only applies to two situations: when an ambassador (or other foreign diplomat) is involved, or when a state is involved. That's it. Congress can not provide any other cases with original jurisdiction. Marbury v. Madison made that clear, and the Supreme Court has guarded that restriction ever since.

That said, Congress has been allowed to reduce the Supreme Court's jurisdiction: specifically, in cases involving ambassadors. Those can actually be handled in the lower courts, as Congress and the courts have decided that the lower courts are not likely to have any significant bias in those cases. In effect, Congress can not add to the Supreme Court's caseload, but it can reduce it.

Now, the only cases that go directly to the Supreme Court are cases in which one or more states are involved. And even then, the Supreme Court can simply decline the case if they don't feel it's significant enough to warrant their attention.

In total, there have been less than 200 state vs. state cases of original jurisdiction handled by the Supreme Court in the 226 years since the courts were established. And, in that same amount of time, there has been only two original jurisdiction cases involving ambassadors. The vast majority of the cases heard by the Supreme Court have come up through the appeals system.

While Congress can not control which cases the Supreme Court must hear, they do have some control over the appeals system, insofar as they have the ability to generally organize the federal courts and their processes. However, the extent that Congress can and should limit the Supreme Court's access to the appeals process is and has always been a matter of considerable debate.

Some believe that the "with such Exceptions... as the Congress shall make" part means that Congress has total authority to make exceptions in the appeals process that prevent the Supreme Court from hearing certain cases. This is significant, since only the Supreme Court, not the lower courts, has the power to determine that a given law is unconstitutional. So, effectively, this means that Congress can, in theory, protect its laws from judicial review.

Others claim that Congress has only partial authority or no authority at all to determine what cases the Supreme Court can hear, and the language used in the clause makes it very difficult to determine what the founders intended.

Personally, I think that it's true that the language suggests that Congress has authority over the appeals process, but I also think it would be bad form for Congress to exercise that power, as I don't think that was the intention. In many places in the Constitution, the writers managed to say an awful lot with very little. Here, though, I think they said more than they intended, and they should, perhaps, have been more clear. At this point, the only thing that would really settle this is a Constitutional Amendment to clarify things.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

The right to a jury in criminal cases is an ancient one, but it was of special significance to revolutionary America. Though trial by jury was a standard in English criminal courts, King George III attempted to circumvent jury trials in the decades leading to the American Revolution. As with so many attempts to bring the colonists to heel, the approach backfired and ended up as another item on the list of grievances in the Declaration of Independence. As such, nobody, including the Anti-Federalists, objected to this clause.

The power of juries has been clarified by the courts over the years. Early on, juries were able to question and sometimes even overturn laws they found unjust. However, over time, judges began to make it clear that juries needed to accept the judge's interpretation of the law, and that their job as the jury was simply to render a verdict of guilt or innocence based on the facts of the case. (Though a jury, if united against a law, can simply find a defendant "not guilty" if they so desire. Judges simply don't bring this up, for obvious reasons.)

That said, in general the power of juries has diminished somewhat. For instance, in a federal criminal case, the defendant can waive the right to a jury if they like. Another popular way the courts avoid jury trials is by using plea bargains, which is when the defendant pleads guilty without a trial in order to get a reduced sentence.

Finally, criminal cases are to be tried in the state where the crime occurred so that the jury is, in fact, a jury of people from the area. This was another response to British tyranny, as around the time King George could no longer trust colonial juries to uphold his laws, some colonists would be shipped back to England to stand trial with a jury of Englishmen who would likely be far less sympathetic to the colonists' cause.

Continue to Part 23: Article III, Section 3