Gorsuch, J., concurring in judgment
But what happens when the factors point in different directions, some in favor and others against immediate judicial review? No one knows. You get to guess.[1]
II
Putting aside these problems with the Thunder Basin project serves only to expose others. We are told that consulting so many disparate factors is essential if we are to divine and give effect to “implici[t]” congressional “inten[tions]” to divest district courts of jurisdiction in favor of certain agency proceedings. Ante, at 7 (internal quotation marks omitted). But what gives courts authority to engage in this business of jurisdiction-stripping-by-implication?
The answer, of course, is nothing. Under our Constitution, “Congress, and not the Judiciary, defines the scope of federal jurisdiction.” New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 359 (1989). Federal courts “have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J., for the Court). That is why we have called it the “true rule” that “statutes clearly defining the jurisdiction of the courts … must control … in the absence of subsequent legislation equally express.” Rosencrans v. United States, 165 U. S. 257, 262 (1897). And why we have said that “jurisdiction conferred by 28 U. S. C. §1331,” in particular, “should hold firm against mere implication[s]” from other laws. Mims v. Arrow Financial Services, LLC, 565 U. S. 368, 383 (2012) (internal quotation marks omitted).
Thunder Basin defies these foundational rules. Maybe
- ↑ See Tr. of Oral Arg. in No. 21–86, p. 81 (“Justice Alito: … Does Axon have to win on all three? Do you have to win on all three? Or can either of you win if one or more factors go in one direction and the other factor or factors go in the other direction? [Deputy Solicitor General]: … I’m not trying to be obstreperous, but I think it would depend …”).
