Chief Justice John Roberts Jr. Credit: Photo by Diego M. Radzinschi / NATIONAL LAW JOURNAL

As evident in many of his opinions, Chief Justice John Roberts Jr. cares a lot about the Constitution's structure and the division of power among the three federal branches. So perhaps to no surprise, Roberts during an argument Tuesday turned to what some consider to be one of the most influential casebooks ever written.

“It seems that we've been replicating what, among lawyers anyway, is a famous dialogue between Professors Wechsler and Hart about whether Congress can achieve unconstitutional objectives by preventing federal courts from adjudicating claims that those provisions are unconstitutional,” Roberts, addressing Scott Gant of Boies Schiller Flexner, said during the argument in the separation of powers case Patchak v. Zinke.

Roberts was referring to the landmark casebook by Henry Hart and Herbert Wechsler—”The Federal Courts and The Federal System”—that was first published in 1953. The casebook contains Hart's Harvard Law Review article, “The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic,” which itself is considered the best known example of the Socratic method.

In a foreword to a law review article about academic influence on the Supreme Court, Hogan Lovells appellate partner Neal Katyal noted that the justices cited Hart's dialogue 11 times between 1968 and 2011.

The question of the power of Congress to regulate the jurisdiction of the federal courts was the centerpiece Tuesday in Patchak. David Patchak had sued the secretary of the U.S. Department of the Interior, challenging the secretary's authority to take certain land into trust for an Indian tribe in Michigan. The tribe planned to build a casino on the land, which was near Patchak's property.

In 2012, Patchak won a U.S. Supreme Court decision saying he had standing to pursue his claim. But before he could go back to the district court, Congress enacted the Gun Lake Trust Land Reaffirmation Act. The new law reaffirmed the Interior Department's trust decision and directed that any action relating to the land “shall not be filed or maintained in a federal court and shall be promptly dismissed.”

The justices struggled during the arguments with whether the law's language on actions relating to the land was one of two things. Was it jurisdiction-stripping, which the court has said many times that Congress has the power to do within certain limits and even may apply to pending cases? Or was the language directing the outcome of a case, which the Supreme Court has ruled is a separation of powers violation.

Gant, representing Patchak, agreed with Roberts that his characterization of the argument was the same as Hart's position in the famous dialogue. Congress was not engaged in jurisdiction-stripping, Gant argued, but instead was using an indirect way to achieve an unconstitutional result.

The government and the tribe's counsel, Pratik Shah, co-chairman of the Supreme Court and appellate practice at Akin Gump Strauss Hauer & Feld, argued that the Gun Lake Act was a constitutional limit on the jurisdiction of the federal courts.

The Patchak case is the second time in two terms that the high court has examined whether congressional action has intruded on the role of the judiciary by directing the outcome of a case.

Last term, the justices in Bank Markazi v. Peterson upheld a federal law that made certain assets of the central bank of Iran available to plaintiffs who won money judgments and awards against Iran for sponsoring terrorism. In that case—Theodore Olson argued for the terror victims, and Jeffrey Lamken for the central bank of Iran—the Supreme Court found that Congress changed the law by establishing new substantive standards for courts to apply. The justices said Congress did not direct the outcome of the cases against the bank.

Still, the “promptly dismiss” language in the Gun Lake Act clearly troubled a number of justices. Plaintiffs and their lawyers would seem to be without any avenues of relief in other situations if the high court approves the type of language Congress used in the act.

And whether Wechsler and Hart's dialogue helps the court to a solution, only the decision will tell.

Chief Justice John Roberts Jr. Credit: Photo by Diego M. Radzinschi / NATIONAL LAW JOURNAL

As evident in many of his opinions, Chief Justice John Roberts Jr. cares a lot about the Constitution's structure and the division of power among the three federal branches. So perhaps to no surprise, Roberts during an argument Tuesday turned to what some consider to be one of the most influential casebooks ever written.

“It seems that we've been replicating what, among lawyers anyway, is a famous dialogue between Professors Wechsler and Hart about whether Congress can achieve unconstitutional objectives by preventing federal courts from adjudicating claims that those provisions are unconstitutional,” Roberts, addressing Scott Gant of Boies Schiller Flexner, said during the argument in the separation of powers case Patchak v. Zinke.

Roberts was referring to the landmark casebook by Henry Hart and Herbert Wechsler—”The Federal Courts and The Federal System”—that was first published in 1953. The casebook contains Hart's Harvard Law Review article, “The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic,” which itself is considered the best known example of the Socratic method.

In a foreword to a law review article about academic influence on the Supreme Court, Hogan Lovells appellate partner Neal Katyal noted that the justices cited Hart's dialogue 11 times between 1968 and 2011.

The question of the power of Congress to regulate the jurisdiction of the federal courts was the centerpiece Tuesday in Patchak. David Patchak had sued the secretary of the U.S. Department of the Interior, challenging the secretary's authority to take certain land into trust for an Indian tribe in Michigan. The tribe planned to build a casino on the land, which was near Patchak's property.

In 2012, Patchak won a U.S. Supreme Court decision saying he had standing to pursue his claim. But before he could go back to the district court, Congress enacted the Gun Lake Trust Land Reaffirmation Act. The new law reaffirmed the Interior Department's trust decision and directed that any action relating to the land “shall not be filed or maintained in a federal court and shall be promptly dismissed.”

The justices struggled during the arguments with whether the law's language on actions relating to the land was one of two things. Was it jurisdiction-stripping, which the court has said many times that Congress has the power to do within certain limits and even may apply to pending cases? Or was the language directing the outcome of a case, which the Supreme Court has ruled is a separation of powers violation.

Gant, representing Patchak, agreed with Roberts that his characterization of the argument was the same as Hart's position in the famous dialogue. Congress was not engaged in jurisdiction-stripping, Gant argued, but instead was using an indirect way to achieve an unconstitutional result.

The government and the tribe's counsel, Pratik Shah, co-chairman of the Supreme Court and appellate practice at Akin Gump Strauss Hauer & Feld, argued that the Gun Lake Act was a constitutional limit on the jurisdiction of the federal courts.

The Patchak case is the second time in two terms that the high court has examined whether congressional action has intruded on the role of the judiciary by directing the outcome of a case.

Last term, the justices in Bank Markazi v. Peterson upheld a federal law that made certain assets of the central bank of Iran available to plaintiffs who won money judgments and awards against Iran for sponsoring terrorism. In that case—Theodore Olson argued for the terror victims, and Jeffrey Lamken for the central bank of Iran—the Supreme Court found that Congress changed the law by establishing new substantive standards for courts to apply. The justices said Congress did not direct the outcome of the cases against the bank.

Still, the “promptly dismiss” language in the Gun Lake Act clearly troubled a number of justices. Plaintiffs and their lawyers would seem to be without any avenues of relief in other situations if the high court approves the type of language Congress used in the act.

And whether Wechsler and Hart's dialogue helps the court to a solution, only the decision will tell.