The Exceptions Clause as a Structural Safeguard

Abstract

Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court's central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad "exceptions power" to facilitate, not to undermine, the Supreme Court's constitutional role. Drawing on insights from social science, this Article asserts that Congress has an incentive to use its control over federal jurisdiction to promote the Court's role in settling disputed federal questions. Notably, this argument has considerable historical support. When the Supreme Court's mandatory appellate docket grew to the point that it was unmanageable for a single tribunal, Congress responded by exercising its authority under the Exceptions Clause. Congress made "exceptions" to the Court's mandatory appellate jurisdiction and replaced it with discretionary review via writs of certiorari-precisely so that the Court could concentrate its limited resources on resolving important federal questions. Thus, contrary to conventional wisdom, Congress has often used its broad exceptions power to safeguard the Supreme Court's role in the constitutional scheme.

A House Divided: When State and Lower Federal Courts Disagree on Federal Constitutional Rights

“…164 For example, with respect to the criteria used to determine whether police justifiably entered a home without a search warrant based on concern that evidence might be destroyed, compare United States v. Mongold, 528 F. App'x 944, 949 (10th Cir. 2013) (specifying four factors to consider, including that a "serious crime" is involved), with People v. Wehmas, 246 P.3d 642, 649 (Colo. 2010) (en banc) (specifying four factors to consider but omitting mention of crime seriousness and adding, unlike the Tenth Circuit, that persons likely must be aware of police presence), and State v. Maxwell,275 P.3d 220,224 (Utah 2011) (applying a general reasonableness test). See also, e.g., State v. Gilstrap,332 P.3d 43,[45][46]with respect to the question of whether police can search the belongings of a visitor at a residence, the position adopted by Arizona and Oregon courts conflicts with that of Alaska, California, and Hawaii courts, all of which differ from the position adopted by the Ninth Circuit).…”