Why does it take so long to get a decision from the Supreme Court on the constitutionality of President Obama’s healthcare law, or Arizona’s SB 170, or California’s Proposition 8 limiting “gay marriage”?  Currently, those three cases are meandering their way around the lower federal courts.  The Obama administration’s healthcare law is under attack by 20 states in a federal district court in Florida, as well as by Missouri and Virginia in federal district courts in those states.  In time, there will be district-court opinions, then circuit-court opinions, and all of them will get lots of publicity.  But the lower-court opinions mean nothing.  Ultimately, the Supreme Court will have to take them up and decide them.  The issues are simple enough: Can the federal government make you buy something you don’t want to buy?  Can a state try to get people who are there illegally to leave?  Can a state define marriage as something between a man and a woman?

Why do we have to wait years for the Court to speak?

The Framers, in Article III of the Constitution, provide that a state can directly bring an action in the Supreme Court—what the Constitution calls its “original jurisdiction.”  Article III reads, “In all cases [involving ambassadors] . . . and those in which a State shall be a Party, the Supreme Court shall have original jurisdiction.”  That seems clear English.  The Constitution assures ready access to a Supreme Court hearing when a state believes the federal government is exceeding its authority.  In his Notes of Debates in the Federal Convention of 1787, James Madison records that the Constitutional Convention considered and rejected a proposal to give Congress the power to assign any part of the original jurisdiction to lower courts.  Alexander Hamilton explained the convention’s action in Federalist 81: “In cases in which a state might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal.”  The big surprise is that the Supreme Court today doesn’t follow the Constitution.

The Constitution provides that in all other cases the Court shall have “appellate” jurisdiction—the power to review lower courts—if Congress so provides.  The Court’s original jurisdiction is its only constitutionally based jurisdiction—the rest all depends on Congress.  The Supreme Court, as far as the Framers were concerned, could be limited to cases involving ambassadors and those in which a state is suing the federal government or another state.

In 1801, William Marbury was among the famous “midnight judges” appointed by outgoing Federalist President John Adams.  His commission, however, was not delivered before Thomas Jefferson took office.  Jefferson ordered James Madison, his secretary of state, to refuse to deliver the commission.  Marbury asked the Supreme Court to issue a writ of mandamus requiring the secretary of state to deliver the commission.  Marbury, of course, was neither an ambassador nor a state, so he was not within the Article III requirements for original jurisdiction.  Section 13 of the Judiciary Act of 1789, however, authorized the Court to issue writs of mandamus, and, Marbury argued, Congress had thereby broadened the Court’s original jurisdiction.  Chief Justice John Marshall found that Marbury was entitled to his commission, Madison had wrongfully withheld it, and mandamus was the proper remedy.  Marbury’s rights were violated.  But, Marshall ruled, the Court could not help him, as it had no power to order the secretary of state to turn the commission over: Section 13 of the Judiciary Act was unconstitutional because Congress had no power to enlarge or subtract from the Court’s constitutionally granted original jurisdiction.  Thus, the opinion in Marbury v. Madison (1803), in which Marshall concludes that,

If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance.

Marbury established the Court’s power of judicial review—the authority to declare acts of Congress unconstitutional.  Marbury held that Congress couldn’t alter the original jurisdiction of the Court granted by Article III.  The 1787 Convention, as noted above, specifically denied Congress any power to alter the Court’s original jurisdiction by sending a state to a lower court.  Had he access to the notes, Marshall presumably would have cited the convention debate, but Madison did not publish his Notes of the Debates until 1840.

Well then, what is going on?  Why can’t a state bring a case in the Supreme Court’s original jurisdiction to test healthcare?  Or why can’t Arizona, when the Justice Department sues it in district court, remove the case to the Supreme Court?  The constitutional language is clear, and the holding of the revered Marbury case says Article III means what it says.  So why are important cases wandering around the district courts and waiting to go to the circuit courts to waste more time?  Why can’t the country get a reasonably prompt answer to serious questions?

The answer is hard to believe, but here it is: The Court prefers it this way.  It asked Congress to exercise a power the Constitutional Convention had expressly denied to Congress—to give the Court the option to refuse to hear a case brought by a state and send it to a lower court.  Congress docilely complied, passing Title 28 of the U.S. Code in 1948.  Section 1251 (“Original Jurisdiction”) provides as follows:

(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.

(b) The Supreme Court shall have original but not exclusive jurisdiction of:

(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;

(2) All controversies between the United States and a State;

(3) All actions or proceedings by a State against the citizens of another State or against aliens.

Practitioners tend to read Section 1251 as requiring them to start actions against the United States in the district courts; for example, the 22 states attacking ObamaCare—who presumably would like a fast decision—are in district courts in Florida, Virginia, and Missouri.  The district courts have not yet held a hearing on the merits.  The system allows motions to go on forever—motions to dismiss, motions for summary judgment, and so on.  Also, Arizona and California have allowed themselves to be sued in district courts when they should be insisting that immigration and “gay marriage” be moved to the original jurisdiction of the Supreme Court.  The Court, however, will sometimes take a case if it is brought directly to them—e.g., Maryland v. Louisiana (1981) and South Carolina v. Baker (1988).  The problem is the Court interprets Section 1251 as giving it the option of taking a case or sending it to a district court.  Section 1251 can be read that way, but the Constitution cannot.

Section 1251, in defiance of the Constitution, the 1787 Convention, and Marbury, invents two types of original jurisdiction where the Constitution creates only one: one exclusive; the other nonexclusive.  Nonexclusive means the case can start elsewhere.

We could make Section 1251 legal if we amended the Constitution.  Do we want to do that?  Probably not.  If a state believes the federal government is going beyond its constitutional authority, the state should get a prompt hearing in the Supreme Court.  The policy reasons for a change don’t look strong.  Some say the additional time the case spends in the lower courts provides insights and properly defines the issue.  But the issues seem straightforward, and the Court is qualified to deal with them.  Others say the district courts are better designed to develop the facts; the big cases, however, are not fact-dependent, and the Court, in its original jurisdiction, can appoint a special master who can find any necessary facts.

There are lots of policy considerations that support what the Framers gave us.  The country deserves a prompt answer to serious constitutional questions.  Enforcement of the questionable new healthcare law threatens to strip many workers of their existing coverage.  The New York Times reported on October 7 that about one million workers, including 30,000 at McDonald’s, would have lost their health coverage if the Obama administration had not given waivers exempting certain companies from the terms of the new law.  Delayed justice also alters the result.  For example, the large expenditures pursuant to the new law create a strong bias in its favor.

When an issue has been around for a long time without being resolved, normal people tend to get tired of it.  Does anyone remember or care about the Guantanamo-detainee cases?  When the public’s patience is exhausted it just wants the issue decided so we can move on.

The Supreme Court does not respect the Constitution when it disregards the plain terms of Article III.  Congress should correct Section 1251 to make it conform to Article III.  The legislative process is slow because it needs to be—it usually takes time to form a majority.  But there’s no reason for the judiciary to be slow in deciding questions that need to be answered.  The Court has intruded deeply into matters we used to consider legislative.  Since it has, the Court should at least become part of the democratic process.  Let the Court decide the case; then Congress and the people can decide what they want to do with it.