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ARTICLE III
JUDICIAL DEPARTMENT
CONTENTS
Section 1. Judicial Power, Courts, Judges—Continued
Section 2. Judicial Power and Jurisdiction—Continued
- Section 1. Judicial Power, Courts, Judges Page
- Organization of Courts, Tenure, and Compensation of Judges
- One Supreme Court
- Inferior Courts
- Compensation
- Courts of Specialized Jurisdiction
- Legislative Courts
- Power of Congress Over Legislative Courts
- Review of Legislative Courts by Supreme Court
- The “Public Rights” Distinction
- Patent Appeals Constitutional Status of the Court of Claims and the Courts of Customs and
- Status of Courts of the District of Columbia
- Bankruptcy Courts
- Agency Adjudication
- Noncourt Entities in the Judicial Branch
- Judicial Power
- Characteristics and Attributes of Judicial Power
- Finality of Judgment as an Attribute of Judicial Power
- Judicial Immunity from Suit
- Ancillary Powers of Federal Courts
- The Contempt Power
- Categories of Contempt
- The Act of
- An Inherent Power
- First Amendment Limitations on the Contempt Power
- ing Versus Summary Punishment Due Process Limitations on Contempt Power: Right to Notice and to a Hear-
- Due Process Limitations on Contempt Power: Right to Jury Trial
- Due Process Limitations on Contempt Powers: Impartial Tribunal
- Contempt by Disobedience of Orders
- Contempt Power in Aid of Administrative Power
- Sanctions Other Than Contempt
- Power to Issue Writs: The Act of
- Common Law Powers of District of Columbia Courts
- Habeas Corpus: Congressional and Judicial Control
- Habeas Corpus: The Process of the Writ
- Congressional Limitation of the Injunctive Power
- Injunctions Under the Emergency Price Control Act of
- The Rule-Making Power and Powers Over Process Ancillary Powers of Federal Courts—Continued
- Limitations to The Rule Making Power
- Appointment of Referees, Masters, and Special Aids
- Power to Admit and Disbar Attorneys
- Section 2. Judicial Power and Jurisdiction
- Clause 1. Cases and Controversies; Grants of Jurisdiction
- Judicial Power and Jurisdiction-Cases and Controversies
- The Two Classes of Cases and Controversies
- Adverse Litigants - Collusive and Feigned Suits - Stockholder Suits
- Substantial Interest: Standing - Generalized or Widespread Injuries - Taxpayer Suits - Redressability Constitutional Standards: Injury in Fact, Causation, and - Prudential Standing Rules - Standing to Assert the Rights of Others - Organizational Standing - Standing of States to Represent Their Citizens - Standing of Members of Congress - Standing to Challenge Lawfulness of Governmental Action
- The Requirement of a Real Interest - Advisory Opinions - Declaratory Judgments - Ripeness - Mootness - Retroactivity Versus Prospectivity
- Political Questions - Origins and Development - The Doctrine Before Baker v. Carr - Baker v. Carr - Powell v. McCormack - The Doctrine Reappears
- Judicial Review
- The Establishment of Judicial Review - Marbury v. Madison - Judicial Review and National Supremacy
- Limitations on the Exercise of Judicial Review - Constitutional Interpretation - Prudential Considerations - The Doctrine of “Strict Necessity” - The Doctrine of Clear Mistake - Exclusion of Extra-Constitutional Tests - Presumption of Constitutionality - Disallowance by Statutory Interpretation - Stare Decisis in Constitutional Law - Conclusion
- Jurisdiction of Supreme Court and Inferior Federal Courts - United States Cases Arising Under the Constitution, Laws, and Treaties of the - Development of Federal Question Jurisdiction Clause 1. Cases and Controversies; Grants of Jurisdiction—Continued - When a Case Arises Under - Removal From State Court to Federal Court - Corporations Chartered by Congress - Federal Questions Resulting from Special Jurisdictional Grants - Civil Rights Act Jurisdiction - Pendent Jurisdiction - Protective Jurisdiction - Supreme Court Review of State Court Decisions
- Suits Affecting Ambassadors, Other Public Ministers, and Consuls
- Cases of Admiralty and Maritime Jurisdiction - Power of Congress To Modify Maritime Law - Admiralty and Maritime Cases - Admiralty Proceedings - Territorial Extent of Admiralty and Maritime Jurisdiction - Admiralty and Federalism
- Cases to Which the United States Is a Party - Right of the United States to Sue - Suits Against States - Immunity of the United States From Suit - Suits Against United States Officials - Suits Against Government Corporations
- Suits Between Two or More States - Boundary Disputes: The Law Applied - Modern Types of Suits Between States - Cases of Which the Court Has Declined Jurisdiction - The Problem of Enforcement: Virginia v. West Virginia - tion of Certain Agreements Enforcement Authority Includes Ordering Disgorgement and Reforma-
- Controversies Between a State and Citizens of Another State - Jurisdiction Confined to Civil Cases - The State’s Real Interest - The State as Parens Patriae
- Controversies Between Citizens of Different States - The Meaning of “State” and the District of Columbia Problem - Citizenship of Natural Persons - Citizenship of Corporations - Manufactured Diversity - The Law Applied in Diversity Cases
- of Different States Controversies Between Citizens of the Same State Claiming Land Under Grants
- Citizens, or Subjects Controversies Between a State, or the Citizens Thereof, and Foreign States,
- Suits by Foreign States
- Indian Tribes
- Narrow Construction of the Jurisdiction
- Clause 2. Original and Appellate Jurisdiction
- The Original Jurisdiction of the Supreme Court
- Power of Congress to Control the Federal Courts
- The Theory of Plenary Congressional Control - Appellate Jurisdiction - Jurisdiction of the Inferior Federal Courts Clause 2. Original and Appellate Jurisdiction—Continued - Congressional Control Over Writs and Processes
- The Theory Reconsidered
- Express Constitutional Restrictions on Congress
- Conclusion
- Federal-State Court Relations
- Problems Raised by Concurrency
- The Autonomy of State Courts - Courts Noncompliance With and Disobedience of Supreme Court Orders by State
- Use of State Courts in Enforcement of Federal Law
- State Interference with Federal Jurisdiction
- Conflicts of Jurisdiction: Rules of Accommodation
- Comity
- Abstention
- Exhaustion of State Remedies
- Anti-Injunction Statute
- Res Judicata
- Three-Judge Court Act
- Conflicts of Jurisdiction: Federal Court Interference with State Courts
- Federal Restraint of State Courts by Injunctions
- Habeas Corpus: Scope of the Writ
- Removal
- Clause 3. Trial By Jury
- Section 3. Treason
- Clause 1. Definition and Limitations
- Treason
- Levying War
- Aid and Comfort to the Enemy
- The Cramer Case
- The Haupt Case
- The Kawakita Case
- Doubtful State of the Law of Treason Today
- Clause 2. Punishment
- Corruption of the Blood and Forfeiture
JUDICIAL DEPARTMENT
ARTICLE III
SECTION 1. The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish. The Judges,
both of the supreme and inferior Courts, shall hold their Offices
during good Behaviour, and shall, at stated Times, receive for
their Services, a Compensation, which shall not be diminished
during their Continuance in Office.
ORGANIZATION OF COURTS, TENURE, AND
COMPENSATION OF JUDGES
The Constitution is almost completely silent concerning the or-
ganization of the federal judiciary. “That there should be a national
judiciary was readily accepted by all.” 1 But whether it was to con-
sist of one high court at the apex of a federal judicial system or a
high court exercising appellate jurisdiction over state courts that
would initially hear all but a minor fraction of cases raising na-
tional issues was a matter of considerable controversy.^2 The Vir-
ginia Plan provided for a “National judiciary [to] be established to
consist of one or more supreme tribunals, and of inferior tribunals
to be chosen by the National Legislature... .” 3 In the Committee
of the Whole, the proposition “that a national judiciary be estab-
lished” was unanimously adopted,^4 but the clause “to consist of One
supreme tribunal, and of one or more inferior tribunals” 5 was first
agreed to, then reconsidered. The provision for inferior tribunals was
ultimately stricken out, it being argued that state courts could ad-
equately adjudicate all necessary matters while the supreme tribu-
nal would protect the national interest and assure uniformity.^6 Wil-
1 M. FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES 79 (1913).
(^2) The most complete account of the Convention’s consideration of the judiciary is J. GOEBEL, ANTECEDENTS AND BEGINNINGS TO 1801, HISTORY OF THE SUPREME COURT OF THE UNITED STATES, VOL. 1 ch. 5 (1971). (^3) 1 M. Farrand, supra at 21–22. It is possible that this version may not be an accurate copy, see 3 id. at 593–94. (^4) 1 id. at 95, 104. (^5) Id. at 95, 105. The words “One or more” were deleted the following day with- out recorded debate. Id. at 116, 119. (^6) Id. at 124–25.
of a Chief Justice and five Associate Justices.^14 The number was
gradually increased until it reached a total of ten under the act of
March 3, 1863.^15 As one of the Reconstruction Congress’s restric-
tions on President Andrew Johnson, the number was reduced to seven
as vacancies should occur.^16 The number actually never fell below
eight before the end of Johnson’s term, and Congress thereupon made
the number nine.^17
Proposals have been made at various times for an organization
of the Court into sections or divisions. No authoritative judicial ex-
pression is available, but Chief Justice Hughes, in a letter to Sena-
tor Wheeler in 1937, expressed doubts concerning the validity of
such a device and stated that “the Constitution does not appear to
authorize two or more Supreme Courts functioning in effect as sepa-
rate courts.” 18 Congress has also determined the time and place of
sessions of the Court. It exercised this power once to change the
Court’s term to forestall a constitutional attack on the repeal of the
Judiciary Act of 1801, with the result that the Court did not con-
vene for fourteen months.^19
Inferior Courts
Congress also provided in the Judiciary Act of 1789 for the cre-
ation of courts inferior to the Supreme Court. Thirteen district courts
were constituted to have four sessions annually,^20 and three circuit
courts were established. The circuit courts were to consist of two
Supreme Court justices each and one of the district judges of such
districts, and were to meet twice annually in the various districts
comprising the circuit.^21 This system had substantial faults in op-
eration, not the least of which was the burden imposed on the Jus-
tices, who were required to travel thousands of miles each year un-
der bad conditions.^22 Despite numerous efforts to change this system,
NESS OF THE SUPREME COURT (1928); Charles Warren, New Light on the History of the Federal Judicial Act of 1789 , 37 HARV. L. REV. 49 (1923); see also J. Goebel, supra at ch. 11. (^14) Act of September 24, 1789, 1 Stat. 73, § 1. (^15) 12 Stat. 794, § 1. (^16) Act of July 23, 1866, 14 Stat. 209, § 1. (^17) Act of April 10, 1869, 16 Stat. 44. (^18) Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judi- ciary Committee , 75th Congress, 1st Sess. (1937), pt. 3, 491. For earlier proposals to have the Court sit in divisions, see F. Frankfurter & J. Landis, supra at 74–85. (^19) 1 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 222–224 (rev. ed. 1926). (^20) Act of September 24, 1789, 1 Stat. 73, §§ 2–3. (^21) Id. at 74, §§ 4– (^22) Cf. Frankfurter & Landis, supra at chs. 1–3; J. Goebel, supra at 554–560, 565–
- Upon receipt of a letter from President Washington soliciting suggestions re- garding the judicial system, WRITINGS OF GEORGE WASHINGTON, (J. Fitzpatrick ed., 1943),
Sec. 1—Judicial Power, Courts, Judges
it persisted, except for one brief period, until 1891.^23 Since then,
the federal judicial system has consisted of district courts with origi-
nal jurisdiction, intermediate appellate courts, and the Supreme Court.
Abolition of Courts. —That Congress “may from time to time
ordain and establish” inferior courts would seem to imply that the
system may be reoriented from time to time and that Congress is
not restricted to the status quo but may expand and contract the
units of the system. But if the judges are to have life tenure, what
is to be done with them when the system is contracted? Unfortu-
nately, the first exercise of the power occurred in a highly politi-
cized situation, and no definite answer emerged. By the Judiciary
Act of February 13, 1801,^24 passed in the closing weeks of the Adams
Administration, the districts were reorganized, and six circuit courts
consisting of three circuit judges each were created. Although Adams
appointed deserving Federalists to these so-called “midnight judge”
positions just before the change in administration, the Jef-
fersonians soon set in motion plans to repeal the Act, which were
carried out.^25 No provision was made for the displaced judges, how-
ever, apparently under the theory that if there were no courts there
could be no judges to sit on them.^26 The validity of the repeal was
questioned on related grounds in Stuart v. Laird ,^27 but Justice Paterson
rejected the challenge without directly addressing the issue of the
displaced judges.
Not until 1913 did Congress again exercise its power to abolish
a federal court, this time the unfortunate Commerce Court, which
31, Chief Justice Jay prepared a letter for the approval of the other Justices, declin- ing to comment on the policy questions but raising several issues of constitutional- ity, that the same man should not be appointed to two offices, that the offices were incompatible, and that the act invaded the prerogatives of the President and Sen- ate. 2 G. MCREE, LIFE AND CORRESPONDENCE OF JAMES IREDELL 293–296 (1858). The letter was apparently never forwarded to the President. Writings of Washington, supra at 31–32 n.58. When the constitutional issue was raised in Stuart v. Laird, 5 U.S. ( Cr.) 299, 309 (1803), it was passed over with the observation that the practice was too established to be questioned. (^23) Act of March 3, 1891, 26 Stat. 826. The temporary relief came in the Act of February 13, 1801, 2 Stat. 89, which was repealed by the Act of March 8, 1802, 2 Stat. 132. (^24) Act of February 13, 1801, 2 Stat. 89. (^25) Act of March 8, 1802, 2 Stat. 132. Frankfurter & Landis, supra at 25–32; 1 C. Warren, supra at 185–215. (^26) This was the theory of John Taylor of Caroline, upon whom the Jeffersonians in Congress relied. W. CARPENTER, JUDICIAL TENURE IN THE UNITED STATES 63–64 (1918). The controversy is recounted fully in id. at 58–78. (^27) 5 U.S. (1 Cr.) 299 (1803) (sustaining both the transfer of suits between cir- cuits and the sitting of Supreme Court Justices on circuit courts without confirma- tion to those courts).
Sec. 1—Judicial Power, Courts, Judges
sent of Justice Holmes, joined by Justice Brandeis. This ruling was
extended in Miles v. Graham^34 to exempt the salary of a judge of
the Court of Claims appointed subsequent to the enactment of the
taxing act. Evans v. Gore was disapproved and Miles v. Graham
was in effect overruled in O’Malley v. Woodrough ,^35 where the Court
upheld section 22 of the Revenue Act of 1932, which extended the
application of the income tax to salaries of judges taking office af-
ter June 6, 1932. Such a tax was regarded neither as an unconsti-
tutional diminution of the compensation of judges nor as an encroach-
ment on the independence of the judiciary.^36 To subject judges who
take office after a stipulated date to a nondiscriminatory tax laid
generally on an income, said the Court, “is merely to recognize that
judges are also citizens, and that their particular function in gov-
ernment does not generate an immunity from sharing with their
fellow citizens the material burden of the government whose Con-
stitution and laws they are charged with administering.” 37
Formally overruling Evans v. Gore , the Court in United States
v. Hatter reaffirmed the principle that judges should “share the tax
burdens borne by all citizens.” 38 “[T]he potential threats to judicial
independence that underlie [the Compensation Clause] cannot jus-
tify a special judicial exemption from a commonly shared tax.” 39
The Medicare tax, extended to all federal employees in 1982, is such
a non-discriminatory tax that may be applied to federal judges, the
Court held. The 1983 extension of a Social Security tax to then-
sitting judges was “a different matter,” however, because the judges
were required to participate while almost all other federal employ-
ees were given a choice about participation.^40 Congress had not cured
the constitutional violation by a subsequent enactment that raised
judges’ salaries by an amount greater than the amount of Social
Security taxes that they were required to pay.^41
Courts of Specialized Jurisdiction
By virtue of its power “to ordain and establish” courts, Con-
gress has occasionally created courts under Article III to exercise a
specialized jurisdiction. These tribunals are like other Article III courts
in that they exercise “the judicial power of the United States,” and
only that power, that their judges must be appointed by the Presi-
34 268 U.S. 501 (1925).
35 307 U.S. 277 (1939).
(^36) 307 U.S. at 278–82. (^37) 307 U.S. at 282. (^38) 532 U.S. 557, 571 (2001). (^39) 532 U.S. at 571. (^40) 532 U.S. at 572. (^41) 532 U.S. at 578–81.
Sec. 1—Judicial Power, Courts, Judges
dent and the Senate and must hold office during good behavior sub-
ject to removal by impeachment only, and that the compensation of
their judges cannot be diminished during their continuance in of-
fice. One example of such a court was the Commerce Court created
by the Mann-Elkins Act of 1910,^42 which was given exclusive juris-
diction to enforce, inter alia , orders of the Interstate Commerce Com-
mission (except those involving money penalties and criminal pun-
ishment). This court actually functioned for less than three years,
being abolished in 1913.
Another court of specialized jurisdiction, but created for a lim-
ited time only, was the Emergency Court of Appeals organized by
the Emergency Price Control Act of January 30, 1942.^43 By the terms
of the statute, this court consisted of three or more judges desig-
nated by the Chief Justice from the judges of the United States dis-
trict courts and circuit courts of appeal. The Court was vested with
jurisdiction and the powers of a district court to hear appeals filed
within thirty days against denials of protests by the Price Adminis-
trator. The Court had exclusive jurisdiction to set aside regula-
tions, orders, or price schedules, in whole or in part, or to remand
the proceeding, but the court was tightly constrained in its treat-
ment of regulations. There was interplay with the district courts,
which were charged with authority to enforce orders issued under
the Act, although only the Emergency Court had jurisdiction to de-
termine the validity of such orders.^44
Other specialized courts are the Court of Appeals for the Fed-
eral Circuit, which is in many respects like the geographic circuits.
Created in 1982,^45 this court has exclusive jurisdiction to hear ap-
peals from the United States Court of Federal Claims, from the Fed-
eral Merit System Protection Board, the Court of International Trade,
(^42) Ch. 309, 36 Stat. 539. (^43) 56 Stat. 23, §§ 31–33. (^44) In Lockerty v. Phillips, 319 U.S. 182 (1943), the limitations on the use of in- junctions, except the prohibition against interlocutory decrees, was unanimously sus- tained. A similar court was created to be used in the enforcement of the economic con- trols imposed by President Nixon in 1971. Pub. L. 92–210, 85 Stat. 743, 211(b). Al- though controls ended in 1974, see 12 U.S.C. § 1904 note, Congress continued the Temporary Emergency Court of Appeals and gave it new jurisdiction. Emergency Petroleum Allocation Act of 1973, Pub. L. 93–159, 87 Stat. 633, 15 U.S.C. § 754, incorporating judicial review provisions of the Economic Stabilization Act. The Court was abolished, effective March 29, 1993, by Pub. L. 102–572, 106 Stat. 4506. Another similar specialized court was created by § 209 of the Regional Rail Re- organization Act, Pub. L. 93–226, 87 Stat. 999, 45 U.S.C. § 719, to review the final system plan under the Act. Regional Rail Reorganization Act Cases (Blanchette v. Connecticut Gen. Ins. Corp.), 419 U.S. 102 (1974). (^45) By the Federal Courts Improvement Act of 1982, Pub. L. 97–164, 96 Stat. 37, 28 U.S.C. § 1295. Among other things, this Court assumed the appellate jurisdiction of the Court of Claims and the Court of Customs and Patent Appeals.
Sec. 1—Judicial Power, Courts, Judges
virtue of that clause which enables Congress to make all needful
rules and regulations, respecting the territory belonging to the United
States. The jurisdiction with which they are invested, is not a part
of that judicial power which is defined in the 3d article of the con-
stitution, but is conferred by congress, in the execution of those gen-
eral powers which that body possesses over the territories of the
United States.” 52 The Court went on to hold that admiralty juris-
diction can be exercised in the states only in those courts that are
established pursuant to Article III, but that the same limitation does
not apply to the territorial courts, for in legislating for them “Con-
gress exercises the combined powers of the general, and of a state
government.” 53
Canter postulated a simple proposition: “Constitutional courts
exercise the judicial power described in Art. III of the Constitution;
legislative courts do not and cannot.” 54 A two-fold difficulty at-
tended this proposition, however. Admiralty jurisdiction is included
within the “judicial power of the United States” specifically in Ar-
ticle III, requiring an explanation how this territorial court could
receive and exercise it. Second, if territorial courts could not exer-
cise Article III power, how might their decisions be subjected to ap-
pellate review in the Supreme Court, or indeed in other Article III
courts, which could exercise only Article III judicial power? 55 More-
over, if in fact some “judicial power” may be devolved upon courts
not having the constitutional security of tenure and salary, what
prevents Congress from undermining those values intended to be
protected by Article III’s guarantees by giving jurisdiction to unpro-
tected entities that, being subjected to influence, would be bent to
the popular will?
Attempts to explain or to rationalize the predicament or to pro-
vide a principled limiting point have resulted from Canter to the
present in “frequently arcane distinctions and confusing prec-
edents” spelled out in cases comprising “landmarks on a judicial ‘dark-
ling plain’ where ignorant armies have clashed by night, as Justice
(^52) 26 U.S. at 546. (^53) 26 U.S. at 546. In Glidden Co. v. Zdanok, 370 U.S. 530, 544–45 (1962), Jus- tice Harlan asserted that Chief Justice Marshall in Canter “did not mean to imply that the case heard by the Key West court was not one of admiralty jurisdiction otherwise properly justiciable in a Federal District Court sitting in one of the States.... All the Chief Justice meant... is that in the territories cases and controversies falling within the enumeration of Article III may be heard and decided in courts constituted without regard to the limitations of that article... .” (^54) Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 106 (1982) (Justice White dissenting). (^55) That the Supreme Court could review the judgments of territorial courts was established in Durousseau v. United States, 10 U.S. (6 Cr.) 307 (1810). See also Benner v. Porter, 50 U.S. (9 How.) 235, 243 (1850); Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434 (1872); Balzac v. Porto Rico, 258 U.S. 298 (1922).
Sec. 1—Judicial Power, Courts, Judges
White apparently believes them to be.” 56 Nonetheless, Article I courts
are quite common entities in our judicial system.^57
Power of Congress Over Legislative Courts. —In creating leg-
islative courts, Congress is not limited by the restrictions imposed
in Article III concerning tenure during good behavior and the pro-
hibition against diminution of salaries. Congress may limit tenure
to a term of years, as it has done in acts creating territorial courts
and the Tax Court; it may subject the judges of legislative courts
to removal by the President; 58 and it may reduce their salaries dur-
ing their terms.^59 Similarly, it follows that Congress can vest in leg-
islative courts nonjudicial functions of a legislative or advisory na-
ture and deprive their judgments of finality. Thus, in Gordon v. United
States ,^60 there was no objection to the power of the Secretary of
the Treasury and Congress to revise or suspend the early judg-
ments of the Court of Claims. Likewise, in United States v. Fer-
reira ,^61 the Court sustained the act conferring powers on the Florida
territorial court to examine claims rising under the Spanish treaty
and to report its decisions and the evidence on which they were
based to the Secretary of the Treasury for subsequent action. “A
power of this description,” the Court said, “may constitutionally be
conferred on a Secretary as well as on a commissioner. But [it] is
not judicial in either case, in the sense in which judicial power is
granted by the Constitution to the courts of the United States.” 62
Review of Legislative Courts by Supreme Court. —Chief Jus-
tice Taney’s view, which would have been expressed in Gordon ,^63
that the judgments of legislative courts could never be reviewed by
(^56) Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 90, 91 (1982) (Justice Rehnquist concurring). (^57) In addition to the local courts of the District of Columbia, the bankruptcy courts, and the U.S. Court of Federal Claims, considered infra , these include the United States Tax Court, formerly an independent agency in the Treasury Depart- ment, but by the Tax Reform Act of 1969, § 951, 83 Stat. 730, 26 U.S.C. § 7441, made an Article I court of record, the Court of Veterans Appeals, Act of Nov. 18, 1988, 102 Stat. 4105, 38 U.S.C. § 4051, and the courts of the territories of the United States. Magistrate judges are adjuncts of the District Courts, see infra, and perform a large number of functions, usually requiring the consent of the litigants. See Gomez v. United States, 490 U.S. 858 (1989); Peretz v. United States, 501 U.S. 923 (1991). The U.S. Court of Military Appeals, strictly speaking, is not part of the judiciary but is a military tribunal, 10 U.S.C. § 867, although Congress designated it an Ar- ticle I tribunal and has given the Supreme Court certiorari jurisdiction over its de- cisions. (^58) McAllister v. United States, 141 U.S. 174 (1891). (^59) United States v. Fisher, 109 U.S. 143 (1883); Williams v. United States, 289 U.S. 553 (1933). (^60) 69 U.S. (2 Wall.) 561 (1864). (^61) 54 U.S. (13 How.) 40 (1852). (^62) 54 U.S. at 48. (^63) The opinion in Gordon v. United States, 69 U.S. (2 Wall.) 561 (1864), had originally been prepared by Chief Justice Taney, but, following his death and reargu-
Sec. 1—Judicial Power, Courts, Judges
In essence, the Court distinguished between those acts that his-
torically had been determined by courts and those that had both
been historically resolved by executive or legislative acts and com-
prehended matters that arose between the government and others.
Thus, Article I courts “may be created as special tribunals to exam-
ine and determine various matters, arising between the govern-
ment and others, which from their nature do not require judicial
determination and yet are susceptible of it. The mode of determin-
ing matters of this class is completely within congressional con-
trol.” 69 Among the matters susceptible of judicial determination, but
not requiring it, are claims against the United States,^70 the dis-
posal of public lands and claims arising therefrom,^71 questions con-
cerning membership in the Indian tribes,^72 and questions arising
out of the administration of the customs and internal revenue laws.^73
Other courts similar to territorial courts, such as consular courts
and military courts martial, may be justified on like grounds.^74
The impact of the “public rights” distinction, however, has var-
ied dramatically over time. In Crowell v. Benson ,^75 the Court ap-
proved an administrative scheme for determining, subject to judi-
cial review, maritime employee compensation claims, although it
acknowledged that the case involved “one of private right, that is,
of the liability of one individual to another under the law as de-
fined.” 76 This scheme was permissible, the Court said, because in
cases arising out of congressional statutes, an administrative tribu-
nal could make findings of fact and render an initial decision on
legal and constitutional questions, as long as there is adequate re-
view in a constitutional court.^77 The “essential attributes” of deci-
sions must remain in an Article III court, but so long as it does,
Congress may use administrative decisionmakers in those private
rights cases that arise in the context of a comprehensive federal
(^69) Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929). (^70) Gordon v. United States, 117 U.S. 697 (1864) (published 1885); McElrath v. United States, 102 U.S. 426 (1880); Williams v. United States, 289 U.S. 553 (1933). On the status of the then-existing Court of Claims, see Glidden Co. v. Zdanok, 370 U.S. 530 (1962). (^71) United States v. Coe, 155 U.S. 76 (1894) (Court of Private Land Claims). (^72) Wallace v. Adams, 204 U.S. 415 (1907); Stephens v. Cherokee Nation, 174 U.S. 445 (1899) (Choctaw and Chickasaw Citizenship Court). (^73) Old Colony Trust Co. v. Commissioner, 279 U.S. 716 (1929); Ex parte Bake- lite Corp., 279 U.S. 438 (1929). (^74) See In re Ross, 140 U.S. 453 (1891) (consular courts in foreign countries). Mili- tary courts may, on the other hand, be a separate entity of the military having no connection to Article III. Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1858). (^75) 285 U.S. 22 (1932). (^76) 285 U.S. at 51. On the constitutional problems of assignment to an adminis- trative agency, see Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937). (^77) 301 U.S. at 51–65.
Sec. 1—Judicial Power, Courts, Judges
statutory scheme.^78 In Northern Pipeline Constr. Co. v. Marathon
Pipe Line Co. , discussed infra , the Court reasserted that the distinc-
tion between “public rights” and “private rights” was still impor-
tant in determining which matters could be assigned to legislative
courts and administrative agencies and those that could not be, but
there was much the Court plurality did not explain.^79
The Court continued to waver with respect to the importance
of the public rights/private rights distinction. In two cases follow-
ing Marathon , it rejected the distinction as “a bright line test,” and
instead focused on “substance”— i.e. , on the extent to which the par-
ticular grant of jurisdiction to an Article I court threatened judicial
integrity and separation of powers principles.^80 Nonetheless, the Court
indicated that the distinction may be an appropriate starting point
for analysis. Thus, the fact that private rights traditionally at the
core of Article III jurisdiction are at stake leads the Court to a “search-
ing” inquiry as to whether Congress is encroaching inordinately on
judicial functions, whereas the concern is not so great where “pub-
lic” rights are involved.^81
However, in a subsequent case, Granfinanciera, S.A. v. Nordberg ,
the distinction was pronounced determinative not only of the issue
whether a matter could be referred to a non-Article III tribunal,
but whether Congress could dispense with civil jury trials.^82 In so
(^78) 301 U.S. at 50, 51, 58–63. Thus, Article III concerns were satisfied by a re- view of the agency fact finding upon the administrative record. Id. at 63–65. The plurality opinion denied the validity of this approach in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 86 n.39 (1982), although Justice White in dissent accepted it. Id. at 115. The plurality, rather, rationalized Crowell and sub- sequent cases on an analysis seeking to ascertain whether agencies or Article I tri- bunals were “adjuncts” of Article III courts, that is, whether Article III courts were sufficiently in charge to protect constitutional values. Id. at 76–87. (^79) 458 U.S. 50, 67–70 (1982) (plurality opinion). Thus, Justice Brennan ob- serves that “a matter of public rights must at a minimum arise ‘between the govern- ment and others,’ ” but “that the presence of the United States as a proper party to the proceeding is a necessary but not sufficient means of distinguishing ‘private rights’ from ‘public rights.’ ” Id. at 69 & n.23. Crowell v. Benson, however, remained an em- barrassing presence. (^80) Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568 (1985); CFTC v. Schor, 478 U.S. 833 (1986). The cases also abandoned the principle that the Federal Government must be a party for the case to fall into the “public rights” category. Thomas , 473 U.S. at 586; see also id. at 596–99 (Justice Brennan concurring). (^81) “In essence, the public rights doctrine reflects simply a pragmatic understand- ing that when Congress selects a quasi-judicial method of resolving matters that ‘could be conclusively determined by the Executive and Legislative Branches,’ the danger of encroaching on the judicial powers is reduced.” Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 589 (1985) (quoting Northern Pipeline , 458 U.S. at 68 (plurality opinion)). (^82) 492 U.S. 33, 51–55 (1989). A Seventh Amendment jury-trial case, the decision is critical to the Article III issue as well, because, as the Court makes clear what was implicit before, whether Congress can submit a legal issue to an Article I tribu- nal and whether it can dispense with a civil jury on that legal issue must be an-
Sec. 1—Judicial Power, Courts, Judges
action not created by federal law, the Court rejected the bank-
ruptcy courts’ exercise of jurisdiction over the claim as violating Ar-
ticle III.^89
Constitutional Status of the Court of Claims and the Courts
of Customs and Patent Appeals. —Although the Supreme Court
long accepted the Court of Claims as an Article III court,^90 it later
ruled that court to be an Article I court and its judges without con-
stitutional protection of tenure and salary.^91 Then, in the 1950s, Con-
gress statutorily declared that the Court of Claims, the Customs
Court, and the Court of Customs and Patent Appeals were Article
III courts,^92 a questionable act under the standards the Court had
used to determine whether courts were legislative or constitu-
tional.^93 In Glidden Co. v. Zdanok ,^94 however, five of seven partici-
pating Justices united to find that indeed the Court of Claims and
the Court of Customs and Patent Appeals, at least, were constitu-
tional courts and their judges eligible to participate in judicial busi-
ness in other constitutional courts. Three Justices would have over-
ruled Bakelite and Williams and would have held that the courts
in question were constitutional courts.^95 Whether a court is an Ar-
ticle III tribunal depends largely upon whether legislation establish-
ing it is in harmony with the limitations of that Article, specifi-
cally, “whether... its business is the federal business there specified
and its judges and judgments are allowed the independence there
expressly or impliedly made requisite.” When a court is created “to
carry into effect [federal] powers... over subject matter... and
not over localities,” a presumption arises that the status of such a
tribunal is constitutional rather than legislative.^96 The other four
Justices expressly declared that Bakelite and Williams should not
(^89) Id. (^90) De Groot v. United States, 72 U.S. (5 Wall.) 419 (1866); United States v. Union Pacific Co., 98 U.S. 569, 603 (1878); Miles v. Graham, 268 U.S. 501 (1925). (^91) Williams v. United States, 289 U.S. 553 (1933); cf. Ex parte Bakelite Corp., 279 U.S. 438, 450–455 (1929). (^92) 67 Stat. 226, § 1, 28 U.S.C. § 171 (Court of Claims); 70 Stat. 532. § 1, 28 U.S.C. § 251 (Customs Court); 72 Stat. 848, § 1, 28 U.S.C. § 211 (Court of Customs and Patent Appeals). (^93) In Ex parte Bakelite Corp., 279 U.S. 438. 459 (1929), Justice Van Devanter refused to give any weight to the fact that Congress had bestowed life tenure on the judges of the Court of Customs Appeals because that line of thought “mistakenly assumes that whether a court is of one class or the other depends on the intention of Congress, whereas the true test lies in the power under which the court was cre- ated and in the jurisdiction conferred.” (^94) 370 U.S. 530 (1962). (^95) Glidden Co. v. Zdanok, 370 U.S. 530, 531 (1962) (Justices Harlan, Brennan, and Stewart). (^96) 370 U.S. at 548, 552.
Sec. 1—Judicial Power, Courts, Judges
be overruled,^97 but two of them thought that the two courts had
attained constitutional status by virtue of the clear manifestation
of congressional intent expressed in the legislation.^98 Two Justices
maintained that both courts remained legislative tribunals.^99 Al-
though the result is clear, no standard for pronouncing a court leg-
islative rather than constitutional obtained the adherence of a ma-
jority of the Court.^100
Status of Courts of the District of Columbia. —Through a
long course of decisions, the courts of the District of Columbia were
regarded as legislative courts upon which Congress could impose
nonjudicial functions. In Butterworth v. United States ex rel. Hoe ,^101
the Court sustained an act of Congress which conferred revisory
powers upon the Supreme Court of the District in patent appeals
and made its decisions binding only upon the Commissioner of Pat-
ents. Similarly, the Court later sustained the authority of Congress
to vest revisory powers in the same court over rates fixed by a pub-
lic utilities commission.^102 Not long after this the same rule was
applied to the revisory powers of the District Supreme Court over
orders of the Federal Radio Commission.^103 These rulings were based
on the assumption, express or implied, that the courts of the Dis-
trict were legislative courts, created by Congress pursuant to its
plenary power to govern the District of Columbia. In dictum in Ex
parte Bakelite Corp. ,^104 while reviewing the history and analyzing
the nature of the legislative courts, the Court stated that the courts
of the District were legislative courts.
In 1933, nevertheless, the Court abandoned all previous dicta
on the subject and found the courts of the District of Columbia to
be constitutional courts exercising the judicial power of the United
(^97) 370 U.S. at 585 (Justice Clark and Chief Justice Warren concurring), 589 (Jus- tices Douglas and Black dissenting). (^98) 370 U.S. at 585 (Justice Clark and Chief Justice Warren). (^99) 370 U.S. at 589 (Justices Douglas and Black). The concurrence thought that the rationale of Bakelite and Williams was based on a significant advisory and refer- ence business of the two courts, which the two Justices now thought insignificant, but what there was of it they thought nonjudicial and the courts should not enter- tain it. Justice Harlan left that question open. Id. at 583. (^100) Aside from doctrinal matters, Congress in 1982 created the United States Court of Appeals for the Federal Circuit, giving it, inter alia , the appellate jurisdic- tion of the Court of Claims and the Court of Customs and Patent Appeals. 96 Stat. 25, title 1, 28 U.S.C. § 41. At the same time Congress created the United States Claims Court, now the United States Court of Federal Claims, as an Article I tribu- nal, with the trial jurisdiction of the old Court of Claims. 96 Stat. 26, as amended, § 902(a)(1), 106 Stat. 4516, 28 U.S.C. §§ 171–180. (^101) 112 U.S. 50 (1884). (^102) Keller v. Potomac Elec. Co., 261 U.S. 428 (1923). (^103) Federal Radio Comm’n v. General Elec. Co., 281 U.S. 464 (1930). (^104) 279 U.S. 438, 450–455 (1929).
Sec. 1—Judicial Power, Courts, Judges
