Jurisdiction Stripping in Three Acts: A Three String Serenade
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Article
JURISDICTION STRIPPING IN THREE ACTS:
A THREE STRING SERENADE1
CAPRICE L. ROBERTS*
INTRODUCTORY NOTE
Jurisdiction Stripping.2 Impeachment. Inspector General. Appointments. Same-
Sex Marriage. The Pledge of Allegiance. Nuclear Option.
1. This subtitle stems from MAZZY STAR, Five String Serenade, on So TONIGHT
THAT I MIGHT SEE (Capitol Records 1993). My intention with the alteration from
five to three is to have the three strings symbolize the axes of tension between
the three branches of federal government: executive, legislative and judicial.
Although a separate string represents each branch to signify the separation of
powers, the three together exist on one instrument to symbolize that they are
linked together on a larger device upon which success or failure of one affects all.
The instrument itself reveals the blending of relations and power that occurs when
the three strings attempt to escape dissonance by achieving harmony through a
certain level of balance.
* Associate Professor, West Virginia University College of Law; Washington &
Lee University School of Law, J.D. 1997; Rhodes College, B.A. 1994. This Article
benefited from thoughtful comments provided by Professors Mike Allen, andr6
douglas pond cummings, Ron Eades, Ron Krotoszynski, John Taylor, Doug
Williams and others in connection with its oral presentation at the SEALS
Conference (Hilton Head, July 2005). Special thanks to Professor Gerry G.
Ashdown for his careful review and thought-provoking questions. The inspiration
for this Article stems from a conversation with my two tremendous research
assistants, Andrea Marano and Sean Cook, regarding whether members of the
three branches of government ever engage in private dialogues like the narrative
jurisprudence of Derrick Bell's Space Traders, originally published in DERRICK BELL,
FACES AT THE BoTroM OF THE WELL: THE PERMANENCE OF RACISM (1992), and, of
course, the seminal work of Henry M. Hart, Jr., The Power of Congress to Limit the
Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARv. L. REv. 1362 (1953).
While drafting this Article, my appreciation of the art of dialogue increased upon
reading Ruthann Robson &James R. Elkins, A Conversation, 29 LEGAL STUD. F. 145
(2005). My deepest gratitude goes to Scott C. Nelson and Andrew M. Wright for
their insights on political nuances of Congress and the Executive. For helpful
revisions, thanks to Jonathan Deem, Justin Jack and Bertha Romine. Many thanks
to the West Virginia University College of Law and the Hodges research grant for
making this Article possible and to the students of my Judicial Power & Restraint
Seminar who enriched my appreciation of the subtle contours and assumptions
embedded in the ebb and flow of separation of powers tension.
2. Jurisdiction stripping is also known as jurisdiction curbing and jurisdic-
tional gerrymandering. See Gerald Gunther, Congressional Power to Curtail Federal
Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895,
896 (1984) [hereinafter Gunther, Congressional Power] (Jurisdiction-curbing pro-
posals have surfaced in Congress in virtually every period of controversial federal
court decisions.); Laurence H. Tribe, Jurisdictional Gerrymandering: Zoning Disfa-
vored Rights Out of the Federal Courts, 16 HARv. C.R.-C.L. L. REv. 129, 154 (1981)
(describing Congress's jurisdiction-stripping maneuvers as indefensible attempt at
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Jurisdiction Stripping in Three Acts: A Three String Serenade
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