| The Supreme Court will hear oral argument today in Bowe v. United States, one of the many cases it resolves each year that fly under the radar of the general public but hold special interest for some subset of the legal community. The primary issue in Bowe is whether the statutory provision that limits the circumstances under which a person in state custody may file a second or successive habeas petition also applies to persons in federal custody. But in order to reach that question, the Court first must get past a jurisdictional hurdle. |
| The federal statute at issue in Bowe forbids federal district courts from entertaining second or successive habeas petitions unless the petitioner obtains a ruling from a federal appeals court that the petition is permissible. It further provides that an appeals court ruling on such matters is final: “The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” |
| That seems plain enough. The U.S. Court of Appeals for the Eleventh Circuit denied Bowe’s application for permission to file a successive habeas petition. So there’s no jurisdiction in the Supreme Court, and therefore the Justices made a simple mistake when they granted review. Right? |
| Probably not. For one thing, the Supreme Court granted the petition for a writ of certiorari, so it is likely that at least four Justices (the minimum needed to grant review) think they have jurisdiction. For another, Bowe’s lawyers argue that when the statute forbids Supreme Court review of an appeals court decision denying the right “to file a second or successive application,” it restricts appeals by state prisoners but not appeals by federal prisoners, who, under other statutory language, do not file “applications” but instead file motions to “vacate” their convictions or sentences. |
| In other words, Bowe’s argument for allowing Supreme Court jurisdiction mirrors his argument on the primary issue. With respect to both, Bowe contends that limits applicable to state prisoners do not apply to federal prisoners. |
| Interestingly, the government agrees with Bowe that the court of appeals was mistaken in applying the state-prisoner standard for successive habeas petitions to federal prisoners but contends that the mistake was “inconsequential” because the court of appeals could have relied on other authority to reject Bowe’s successive petition. However, the government disagrees with Bowe about the jurisdictional question. |
| Constitutional Avoidance |
| Who is right about jurisdiction? The parties offer conflicting accounts of how best to read the statutory text. In addition, Bowe’s lawyers contend that, to the extent that the statutory language is unclear, the Court should invoke the canon of constitutional avoidance. Under that canon, if there are two plausible ways to read a statute but one of them is potentially unconstitutional, a court should choose the other, clearly constitutional reading, and thus avoid having to decide the constitutional question. |
| For its part, the government contends that the avoidance canon does not come into play because the text, context, and structure of the relevant statutory language are clear and preclude jurisdiction. Avoidance, the government says, applies only when a “serious doubt” is raised about the constitutionality of a statute’s meaning, and here there is no such serious doubt. |
| Whether the avoidance canon will come into play thus depends in part on whether the Supreme Court reads the statutory language as unclear. It also depends on what the Justices think about the potential constitutional infirmity. Bowe argues—with support from an amicus brief on behalf of a number of Federal Courts scholars—that reading the statute to preclude Supreme Court review would (or at least might) be unconstitutional because doing so would prevent the Court from performing one of its “essential functions,” namely, maintaining the uniformity of federal law. |
| The Exceptions Clause and the Essential Functions Theory |
| Article III, Section 2 of the Constitution describes the cases that fall within the Supreme Court’s appellate jurisdiction “with such exceptions, and under such regulations as the Congress shall make.” Taken at face value, that language would seem to permit Congress to exclude any and all cases from the Supreme Court’s appellate jurisdiction. And in the 1868 case of Ex Parte McCardle, the Supreme Court took the language at face value, dismissing a habeas corpus appeal because, after the Court docketed the appeal but before it resolved the matter, Congress had barred jurisdiction. |
| To be sure, the final paragraph of the McCardle opinion provided reassurances that other avenues of obtaining relief from the Supreme Court remained open. Some scholars have thus read McCardle as consistent with the proposition that there are limits on what Congress can do under the Exceptions Clause. They have argued that McCardle should not be read for all that it is worth. The most prominent such scholar was Henry M. Hart, who, in an influential 1953 article in the Harvard Law Review, contended that Congress may not use the Exceptions Clause to “destroy the essential role of the Supreme Court in the constitutional plan.” |
| The Federal Courts scholars’ amicus brief relies on Hart’s essential functions theory. It argues that if Supreme Court review is unavailable to harmonize the discordant lower court views over whether the limits on successive state prisoner habeas petitions apply to filings by federal prisoners, the Court will be unable to perform its essential function of maintaining the uniformity of federal law. |
| How Solid is the Essential Functions Argument? |
| I have considerable sympathy for Hart’s essential functions theory, as I explained in a 2018 article in the Texas Law Review. Thus, I hope that the Court endorses it—or at least does not repudiate it—in Bowe. |
| That said, I worry that the Federal Courts scholars overstate the authority of Hart’s view. Somewhat surprisingly, neither the Federal Courts scholars’ amicus brief nor Bowe’s brief even cites, much less offers an argument for cabining, McCardle. |
| Meanwhile, as authority for the proposition that the Supreme Court’s essential functions include maintaining the uniformity of federal law, the Federal Courts scholars’ brief cites Justice Joseph Story’s 1816 opinion for the Court in Martin v. Hunter’s Lessee. Yet while Story did invoke uniformity there as a basis for upholding the validity of Section 25 of the Judiciary Act of 1789 (authorizing Supreme Court appellate review of certain state high court rulings), Story’s broader view of Article III—which he expounded elsewhere in Martin—is somewhat different from Hart’s view. Story relied on the fact that Article III vests in the federal judiciary the authority to hear “all cases” arising under federal law for the conclusion that some federal court must have jurisdiction over every such case, but that federal court need not be the Supreme Court. |
| Nor is Supreme Court review always an essential means of maintaining the uniformity of federal law. To see why, suppose that Congress stripped the Supreme Court of jurisdiction to review decisions of the U.S. Court of Appeals for the Federal Circuit in patent cases and also provided that any patent issues that arise in state court are appealable to the Federal Circuit but not the Supreme Court. (Although federal district courts have exclusive jurisdiction over patent claims, state courts sometimes adjudicate patent issues that arise by way of defense and are thus not cognizable in federal court under the so-called well-pleaded complaint rule.) If so, the Federal Circuit, not the Supreme Court, would ensure the uniformity of federal law. But if that’s possible, then maintaining the uniformity of federal law is not an essential function of the Supreme Court in the sense of a role that only the Supreme Court can play. |
| To be sure, we could treat the foregoing example as the basis for a friendly amendment to Hart’s thesis: maintaining the uniformity of federal law is an essential function of the Supreme Court unless some other court can perform that function. But that reformulation in turn raises further questions. |
| Suppose that Congress channeled all appeals in cases involving immigration to the U.S. Court of Appeals for the Fifth Circuit, with no appeal to the Supreme Court. Or suppose Congress sent nearly all cases in all areas of law to the Fifth Circuit, leaving the Supreme Court with appellate jurisdiction over nothing but, say, patent cases. That hypothetical scenario is based on an example that Hart himself proposed, and while I share Hart’s view that such a scheme would be unconstitutional, that conclusion has nothing to do with uniformity, which, in my hypothetical example, the Fifth Circuit is capable of maintaining. |
| Hart’s 1953 article is justifiably celebrated as brilliant, but neither it nor any other scholar’s approach to the scope of congressional power under the Exceptions Clause is authoritative. Nor has the Supreme Court ever provided a definitive answer to questions of the sort that Hart pondered. Rather, in cases implicating the Exceptions Clause as well as the Suspension Clause (which governs at least some habeas cases), the Court has often invoked constitutional avoidance and found loopholes in the statutes that seem to strip it of jurisdiction. It would not be surprising if the Court does so again in Bowe. |
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