The following notes have been taken from Van Alstyne, A Critical Guide to Ex Parte McCardle, 15 Arizona L. Rev. 229 (1973):
1. McCardle was the editor of the Vicksburg Times, and he was arrested by General Gillem "acting pursuant to the Military Reconstruction Act" and "was charged with disturbing the peace, inciting to insurrection and disorder, libel, and impeding reconstruction, solely on the basis of several vituperative, anti-reconstructionist editorials he had authored and published in the Times." Id. at 236. So McCardle was a civilian being prosecuted by the military for political speech published in a newspaper.
2. After the lower federal court denied McCardle's application for a writ of habeas corpus, he appealed to the Supreme Court pursuant to the Habeas Corpus Act of 1867. Id. at 237.
3. Congress then passed the Repealer Act to repeal that portion of the Habeas Corpus Act granting the Supreme Court appellate jurisdiction. "The Repealer Act was intended to prevent the Court from determining whether McCardle was being held in military custody in violation of the Bill of Rights and to preclude the possibility that the Military Reconstruction Act of March 2, 1867, imposing martial rule [in the Southern states] would be declared unconstitutional." Id. at 240-241.
4. "[W]hereas Marbury would be read to declare that 'while we are under a Constitution, the Constituion is what the judges say it is,' Ex Parte McCardle appeared to lay down a very sobering afterthought: Congress may prevent the Supreme Court from saying anything at all, at least where its appellate jurisdiction is concerned." Id. at 244.
5. "The power to make exceptions to Supreme Court appellate jurisdiction is a plenary power. It is given in express terms and without limitation, regardless of the more modest uses that might have been anticipated and, hopefully, generally to be respected by Congress as a matter of enlightened policy once the power was granted, as it was, to the fullest extent. In short, the clause is complete exactly as it stands: the appellate jurisdiction of the Supreme Court is subject to 'such Exceptions and under such Regulations as the Congress shall make." Id. at 26.
6. Prof. Gunther doesn't think this is a big deal. As he puts it, Article III "grants a very broad discretion to Congress in assigning federal question litigation to state or federal courts....In doing so, Congress merely relies on the state courts to enforce federal rights, part of their traditional, originally contemplated role and one that they often have handled with independence...."
7. Hmmm. Perhaps you could argue that the "exceptions" clause in Art. III, Sect. 2 means that Congress may make exceptions to the Supreme Court's appellate jurisdiction only by shifting the jurisdiction to the Supreme Court's original jurisdiction. In other words, the Supreme Court could still exercise jurisdiction over the excepted class of cases, but original jurisdiction rather than appellate jurisdiction. What do you think of this argument? Does it substitute one problem for another?
8. Suppose Congress passes a law that denies all jurisdiction to lower federal courts over any law enacted by Congress and denies appellate jurisdiction the the Supreme Court over any law enacted by Congress. Is this jurisdiction-stripping law constitutional? Who would decide?
