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Constitutionality of Legislation Withdrawing Supreme Court Jurisdiction to Consider Cases Relating to Voluntary Prayer

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Proposed legislation withdrawing jurisdiction from the Supreme Court to consider cases relating to voluntary prayer in public schools and public buildings raises difficult and unsettled constitutional questions under the separation of powers doctrine. While Congress possesses some power under the Exceptions Clause of Article III of the Constitution to regulate the appellate jurisdiction of the Supreme Court, it may not interfere with the core functions of the Supreme Court as an independent and equal branch in our system of government.

The records of the Constitutional Convention, as well as the structure of the system of government adopted by that Convention, establish that the Exceptions Clause was not intended to allow Congress to intrude upon the Supreme Court’s core functions. There is no basis in Supreme Court precedent, or in long accepted historical practice, for reaching a contrary conclusion.

Whether a given exception to Supreme Court jurisdiction intrudes upon its core functions depends upon a number of factors, such as whether the exception covers constitutional or nonconstitutional questions, the extent to which the subject is one which by its nature requires uniformity or permits diversity among the different states and different parts of the country, the extent to which Supreme Court review is necessary to ensure the supremacy of federal law, and whether other forums or remedies have been left in place so that the intrusion can properly be characterized as an exception.

Updated July 9, 2014