Is Jurisdiction Jurisdictional

I. INTRODUCTION Does Supreme Court claim power to enforce federal law only because it has been granted subject matter jurisdiction over a case in which federal law is at stake? Or does a desire to vindicate federal interests, in and of itself, lead Court to claim judicial power to act? Convention and Court's own rhetoric answer yes to first question, and to second. As early as 1868,1 and as recently as 1999,2 Supreme Court has always declared that subject matter jurisdiction-the authority granted a federal court to reach and decide merits of a dispute-is an absolutely necessary precondition to exercise of judicial power by Article III courts: Without jurisdiction court cannot proceed at all in any cause. Jurisdiction is power to declare law, and when it ceases to exist, only function remaining to court is that of announcing fact and dismissing cause.3 But in significant cases, forming a competing tradition with its own deep roots, Court has exchanged this formal, jurisdiction-first view for a more malleable approach that dispenses federal judicial power based on how important Court considers federal interests at stake, on merits, and how necessary Court considers it to provide a federal remedy where those interests are impaired. This merits-first tendency has led Court to claim judicial power to act even where constitutional or statutory obstacles seriously compromise subject matter jurisdiction. And although Court has never explicitly endorsed bending jurisdictional rules to make sure that important federal interests are enforced in federal and not state court, this competing tradition suggests that jurisdiction, as a formal constraint on federal judicial power, may matter less to Court than its rhetoric insists. The Court's tension between these two competing traditions reflects a fundamental ambivalence about nature of federal judiciary itself. On one hand, Constitution created a Supreme Court and authorized inferior federal courts that were brand new and cut out of whole cloth,4 making judiciary entirely dependent for its powers on Constitution that gave it life and on a Congress given authority to regulate it thereafter.5 This paints federal judiciary as an institution whose powers are quite limited and whose jurisdiction depends entirely on affirmative licenses from some external authority, whether Constitution or Congress.6 But at same time, Article III was written with other, preexisting judicial institutions in mind, including English courts of equity.7 Far from being courts of limited jurisdiction conferred by an external authority, English equity courts developed their own subject matter jurisdiction incrementally, through case-by-case decision making that worked out, over time, which controversies fell within equity's control.8 Indeed, equity courts' subject matter jurisdiction depended primarily on substantive right a case involved, on merits; equity jurisdiction followed from cause of action pursued and remedy sought.9 When Supreme Court disregards its jurisdiction-first rhetoric and instead dispenses federal judicial power based on how important it considers federal interests at stake, on merits, Court acts like a pre-constitutional court of equity-not creature of a limited and limiting Article III. Not surprisingly, then, equity tradition plays a starTing role in an example that most dramatically demonstrates Court's two competing jurisdictional traditions. Recently, Court has developed Constitution's state sovereign immunity principle as a bedrock constraint limiting Congress's use of Article III courts to enforce federal law against recalcitrant states. In Seminole Tribe of Florida v. Florida10--squarely following its jurisdiction-first tradition-the Court held that Article III embodies a state sovereign immunity principle that so constrains the entire judicial power granted by Constitution11 that it absolutely prohibits Congress from giving federal courts jurisdiction over private-plaintiff lawsuits to enforce Article I legislation against unconsenting states,12 no matter what important federal interests that legislation protects. …