The unitary executive, jurisdiction stripping, and the Hamdan opinions: A textualist response to justice scalia

Steven G Calabresi*, Gary Lawson

*Corresponding author for this work

Research output: Contribution to journalReview articlepeer-review

54 Scopus citations


In Hamdan v. Rumsfeld, a five to three majority of the united States Supreme Court held unlawful the Bush Administration's use of military com-missions to try alien combatant detainees held at the United States airbase in Guantanamo Bay, Cuba. The most basic issue in Hamdan was whether the Supreme Court had jurisdiction to hear the case. Justice Scalia's dissenting opinion argued that the Detainee Treatment Act of 2005 stripped the Supreme Court and all other courts of jurisdiction to hear habeas cases such as Hamdan's. Hamdan argued in the Supreme Court that to read the Detainee Treatment Act to strip jurisdiction over pending habeas cases, as Justice Scalia did, would raise constitutional questions about Congress's power to limit the Supreme Court's appellate jurisdiction. The Hamdan majority did not address this constitutional question because it read the Detainee Treatment Act to preserve jurisdiction over pending cases. But Justice Scalia's construction of the statute required him to address Hamdan's constitutional claims. He casually dismissed concerns about Congress's power to strip the Supreme Court's jurisdiction by reference to the Exceptions Clause of Article III, § 2, which he viewed as an explicit authorization for Congress to limit the Court's jurisdiction. While Justice Scalia may have been right on the specific facts of Hamdan, his broader claims about Congress's power to strip jurisdiction from the Supreme Court are textually wrong. Simply put, Article III requires that the federal judiciary be able to exercise all of the judicial power of the United States that is vested by the Constitution and that the Supreme Court must have the final judicial word in all cases, such as Hamdan's, that raise federal issues. These conclusions flow quite naturally from an originalist methodology that looks to the objective meaning of the Constitution that would have been held by a hypothetical reasonable observer in 1788 and that relies primarily on textual, intratextual, and structural arguments. Ironically, one can make a strong case for Justice Scalia's view of congressional power to control Supreme Court jurisdiction using legislative history and consequentialist arguments - tools that Justice Scalia normally abjures. But the more one focuses on formalist arguments from text and structure, the more clear it becomes that the Supreme Court is constitutionally vested with the final judicial say on matters within (at least the first three of) the heads of jurisdiction granted to the federal courts in Article III. Relying on textual, intratextual, and structural arguments, this Essay argues that, in the same way that the Constitution vests all of the executive power of the United States in a unitary executive department, the Constitution vests all judicial power in the federal judiciary, with the Supreme Court having supervisory power over all other inferior tribunals within the judicial department. While the Constitution leaves Congress with the option of creating or not creating lower federal courts, it does not give Congress the option of creating or designating lower federal courts over which the Supreme Court does not, at the end of the day, have the last word.

Original languageEnglish (US)
Pages (from-to)1002-1048
Number of pages47
JournalColumbia Law Review
Issue number4
StatePublished - May 1 2007

ASJC Scopus subject areas

  • Law


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