http://friam.383.s1.nabble.com/now-it-s-personal-tp7599139p7599159.html
Holy cow, this is fascinating!
Roberts had written a 27 page Memo on the topic (starting on p. 66). There appears to be no ambiguity that Congress can limit what the federal lower courts can hear. The issue is particularly whether it can limit the ability of SCOTUS to hear cases. Roberts argues strongly that Congress could limit the ability of the SCOTUS to hear issues, effectively making the the state supreme courts the final arbiters on those issues, particularly in the context of 14th Amendment cases (as that Amendment was written in an era where people were pretty pissed at SCOTUS, and therefore it has special language making Congress the final arbiter of relevant issues). However, the context of the article is specifically summarizing a bunch of recent papers and a conference on exactly that topic. As he puts it:
this memorandum is prepared from a standpoint of advocacy of congressional power over the Supreme Court's appellate jurisdiction; it does not purport to be an objective review of the issue, and should therefore not be viewed as such. The memorandum does not consider specific proposals but rather the general question of congressional power
Later Roberts prepared (at request) two versions of letter with different final paragraphs, one arguing that the congress could not limit the Supreme Court and one saything that it could. (page 53-56 in the link below). Both versions said that it was probably a terrible idea for Congress to make the 50 state supreme courts final arbiters of national issues, as surely disagreements would arise.
When the Attorney General issued a final letter, it appeared to draw heavily upon what Roberts had prepared, including the opinion that Congress could not limit the Supreme Court's power. The Attorney General's letter concluded (p. 7):
For reasons which I have developed at some
length, I do not agree and have concluded that S. 1742 is
unconstitutional. Ultimately, however, it is for Congress to
determine what laws to enact and for the Executive Branch to
"take care that the Laws be faithfully executed." It is not
for the Attorney General but for the courts ultimately to rule
on the constitutionality of Congress' enactment. As I have
stated in another context, the Department of Justice must and
shall defend the Acts of Congress "except in the rare case when
the statute either infringes on the constitutional power of the
Executive or when prior precedent overwhelmingly indicates
that the statute is invalid." Accordingly, while I believe
that S. 1742 is unconstitutional, should the Congress believe
otherwise and should I be called upon to defend its constitutionality before the courts, I responsibly could and would do
so with all of the resources at my command.
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