A Good Candidate For SCOTUS Jurisdiction Stripping

Article III, Section 2, Clause 2 of the United States Constitution provides that:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The U.S. Supreme Court also has broad supervisory jurisdiction over the lower federal courts apart from its appellate jurisdiction and its jurisdiction to hear cases in its original jurisdiction under the All Writs Act, adopted by the first Congress in 1789 and currently codified at 28 U.S.C. § 1651 which states:

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

One of the things that the power to issue writs granted to the U.S. Supreme Court can be used for is to rule on interlocutory appeals (i.e. appeals of orders entered while a case is currently pending, rather than following its conclusion with a "final order") in extraordinary cases.

Justice Clarence Thomas recently did this to intervene in a grand jury investigation in a federal district court seeking testimony from a U.S. Senator in connection with alleged improprieties related to the 2020 Presidential election. 

Justice Thomas stayed an order for Lindsey Graham to testify before a Georgia grand jury investigating the 2020 election. The October 24, 2022 order of Justice Thomas acting as a duty judge for the relevant judicial circuit states (in full):

Supreme Court of the United States No. 22A337 

LINDSEY GRAHAM, UNITED STATES SENATOR, Applicant 

v. 

FULTON COUNTY SPECIAL PURPOSE GRAND JURY O R D E R 

UPON CONSIDERATION of the application of counsel for the applicant, IT IS ORDERED that the August 15, 2022 order of the United States District Court for the Northern District of Georgia, case No. 1:22-CV-03027, as modified by the district court’s September 1, 2022 order, is hereby stayed pending further order of the undersigned or of the Court. 

Clarence Thomas 

Associate Justice of the Supreme Court of the United States

There is a very sensible argument that Congress should prevent this kind of intervention in trial court proceedings by removing the authority of the U.S. Supreme Court to issue writs in the nature of interlocutory appeals in U.S. District Courts. 

Congress could instead limit that authority to the U.S. Courts of Appeals, which are the intermediate courts of appeal in the U.S. Court system, at least in the first instance as opposed to in appeals from another court's order in such an appeal.

This is what happens the vast majority of the time anyway. Justice Thomas' decision to intervene in this matter is extraordinary, even if it isn't entirely unprecedented.

Prior to the creation of intermediate federal appellate courts in the 1890s, when the federal court system was vastly smaller than it is today, this kind of intervention was fairly common and necessary because there was no one else to supervise trial court proceedings in this way. But in a vastly larger country with a vastly larger federal court system, this kind of meddling in the day to day workings of the federal trial courts starts to tarnish the U.S. Supreme Court as a political tool, as opposed to a forum focused on consistently upholding federal law in lower courts.

The U.S. Supreme Court should not be the court of first resort in trial court evidentiary and discovery disputes.