More Stories of Jurisdiction-Stripping and Executive Power: The Supreme Court's Recent Prison Litigation Reform Act (PLRA) Cases
The “War on Terror” cases have raised important issues regarding separation of powers, jurisdiction-stripping, and the limits of executive authority. Another recent series of cases involving these same themes has garnered much less media and scholarly attention—the Prison Litigation Reform Act (PLRA) exhaustion cases of 2006 and 2007, Woodford v. Ngo and Jones v. Bock. Woodford concluded that the PLRA exhaustion requirement incorporated a procedural default component, which bars courts from hearing an inmate’s federal law claims if he or she fails to comply with all the technical requirements of a prison grievance system created and administered by the civil rights defendants. Jones confirms that the courts must enforce the rules of prison grievance systems in determining whether a prisoner has exhausted his or her claim. In this article, Shay and Kalb argue that Woodford and Jones exemplify “jurisdiction-stripping by consent,” in which courts relinquish jurisdiction over disfavored categories of cases by adopting facially neutral procedural rules. In these cases, the rules adopted make prison authorities the gate-keepers to courts, which fundamentally changes the nature of 42 U.S.C. § 1983, a civil rights vehicle designed to permit federal courts to enforce federal rights in the face of abusive state power. The authors argue that the Supreme Court’s recent decisions unreasonably restrict prisoners’ access to courts, regardless of the merit of their claims—and create rigid rules which prevent courts from asserting authority in significant cases.