Over the last three decades, the Rehnquist and Roberts Courts have carried out a quiet revolution in the nature and meaning of jurisdiction. Historically, federal courts generally treated procedural requirements, like filing deadlines and exhaustion prerequisites, as presumptively "jurisdictional. "In case after case, the modern Court has reversed course. The result has been an unobtrusive but seminal redefinition of what jurisdiction means to begin with: the adjudicatory authority of the federal courts. This shift is momentous, but it has been obscured by the Court's erstwhile imposition of a clear statement requirement. For courts to find a statutory requirement jurisdictional, Congress must have clearly said so. Scholars have applauded this new interpretive technique, yet even though the Court's more precise definition of jurisdiction is a welcome development, the Court's emphasis on the clear statement rule is a mistake. To begin, the Supreme Court's application of its clear statement rule is inconsistent. As a result, the Court's decisions are unpredictable, and Congress is left to guess how "clear" a clear statement must be. Second, the rule may not clarify dialogue between the courts and Congress because the Court has imposed it retroactively. Third, the Court has not tied its command to the protection of an important constitutional value, and there is a strong argument to be made that the rule unconstitutionally augments the Court's authority at the expense of Congress's unquestioned power over the scope of Article III jurisdiction. Ultimately, the Court's turn to a clear statement rule is unnecessary. A close analysis of the Supreme Court's recent cases reveals it is the Court's quiet redefinition of jurisdiction that has been doing the work. The Court is right to demand precision as to jurisdiction. But the clear statement rule is a problematic and unnecessary attempt to carry that mandate into effect. This Article argues that the Court should jettison its clear statement requirement and focus on what it really wants to ask, and should have been asking all along: Did Congress intend this provision to oust the federal courts of their power to adjudicate this case?
Erin Morrow Hawley, The Supreme Court's Quiet Revolution: Redefining the Meaning of Jurisdiction, 56 Wm. & Mary L. Rev. 2027 (2015)