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 suprem...
Organization of Courts, Tenure, and Compensation of Judges
The Constitution is almost completely silent concerning the organization of the federal judiciary. "That there should be a national judiciary was readily accepted by all."
The "good behavior" clause excited no controversy,
One Supreme Court
The Convention left up to Congress decision on the size and composition of the Supreme Court, the time and place for sitting, its internal organization, save for the reference to the Chief Justice in the impeachment provision,
Proposals have been made at various times for an organization of the Court into sections or divisions. No authoritative judicial expression is available, although Chief Justice Hughes in a letter to Senator 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 separate courts."
Congress has also determined the time and place of sessions of the Court. It utilized this power once in 1801 to change its terms so that for fourteen months the Court did not convene, so as to forestall a constitutional attack on the repeal of the Judiciary Act of 1801.
Congress also acted in the Judiciary Act of 1789 to create inferior courts. Thirteen district courts were constituted to have four sessions annually,
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? Unfortunately, the first exercise of the power occurred in a highly politicized situation, and no definite answer emerged. By the Judiciary Act of February 13, 1801,
Not until 1913 did Congress again utilize its power to abolish a federal court, this time the unfortunate Commerce Court, which had disappointed the expectations of most of its friends.
Diminution of Salaries.-"The Compensation Clause has its roots in the longstanding Anglo-American tradition of an independent Judiciary. A Judiciary free from control by the Executive and the Legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government."
Also implicating this clause was a Depression-era appropriations act reducing "the salaries and retired pay of all judges (except judges whose compensation may not, under the Constitution, be diminished during their continuance in office)," by a fixed amount. While this provision presented no questions of constitutionality, it did require an interpretation as to which judges were excepted. Judges in the District of Columbia were held protected by Article III,
In Evans v. Gore,
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."
Courts of Specialized Jurisdiction
By virtue of its power "to ordain and establish" courts, Congress 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 President and the Senate and must hold office during good behavior subject to removal by impeachment only, and that the compensation of their judges cannot be diminished during their continuance in office. One example of such courts was the Commerce Court created by the Mann-Elkins Act of 1910,
Another court of specialized jurisdiction, but created for a limited time only, was the Emergency Court of Appeals organized by the Emergency Price Control Act of January 30, 1942.
Other specialized courts are the Court of Appeals for the Federal Circuit, which is in many respects like the geographic circuits. Created in 1982,
To facilitate the gathering of foreign intelligence information, through electronic surveillance, search and seizure, as well as other means, Congress authorized in 1978 a special court, composed of seven regular federal judges appointed by the Chief Justice, to receive applications from the United States and to issue warrants for intelligence activities.
Even greater specialization was provided by the special court created by the Ethics in Government Act;
Legislative courts, so-called because they are created by Congress in pursuance of its general legislative powers, have comprised a significant part of the federal judiciary.
Canter postulated a simple proposition: "Constitutional courts exercise the judicial power described in Art. III of the Constitution; legislative courts do not and cannot."
Attempts to explain or to rationalize the predicament or to provide a principled limiting point have from Canter to the present resulted in "frequently arcane distinctions and confusing precedents" spelled out in cases comprising "landmarks on a judicial 'darkling plain' where ignorant armies have clashed by night."
Power of Congress Over Legislative Courts.-In creating legislative courts, Congress is not limited by the restrictions imposed in Article III concerning tenure during good behavior and the prohibition 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, and it may subject the judges of legislative courts to removal by the President,
Review of Legislative Courts by Supreme Court.-Chief Justice Taney's view, that would have been expressed in Gordon,
The "Public Rights" Distinction.-A major delineation of the distinction between Article I courts and Article III courts was attempted in Murray's Lessee v. Hoboken Land & Improvement Co.
Among the matters susceptible of judicial determination, but not requiring it, are claims against the United States,
The "public rights" distinction appears today to be a description without a significant distinction. Thus, in Crowell v. Benson,
The Court continued to waver with respect to the importance to decision-making of the public rights/private rights distinction. In two cases following Marathon, it rejected the distinction as "a bright line test," and instead focused on "substance"-i.e., on the extent to which the particular grant of jurisdiction to an Article I court threatened judicial integrity and separation of powers principles.
However, in a subsequent case, 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.
Constitutional Status of the Court of Claims and the Court of Customs and Patent Appeals.-Though the Supreme Court for a long while accepted the Court of Claims as an Article III court,
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,
In 1933, nevertheless, the Court, abandoning all previous dicta on the subject, found the courts of the District of Columbia to be constitutional courts exercising judicial power of the United States,
In 1970, Congress formally recognized two sets of courts in the District, federal courts, district courts and a Court of Appeals for the District of Columbia, created pursuant to Article III, and courts equivalent to state and territorial courts, created pursuant to Article I.
Bankruptcy Courts.-After extended and lengthy debate, Congress in 1978 revised the bankruptcy act and created as an "adjunct" of the district courts a bankruptcy court composed of judges, vested with practically all the judicial power of the United States, serving for 14-year terms, subject to removal for cause by the judicial councils of the circuits, and with salaries subject to statutory change.
The dissent argued that, while on its face Article III provided for exclusivity in assigning judicial power to Article III entities, the history since Canter belied that simplicity. Rather, the precedents clearly indicated that there is no difference in principle between the work that Congress may assign to an Article I court and that which must be given to an Article III court. Despite this, the dissent contended that Congress did not possess plenary discretion in choosing between the two systems; rather, in evaluating whether jurisdiction was properly reposed in an Article I court, the Supreme Court must balance the values of Article III against both the strength of the interest Congress sought to further by its Article I investiture and the extent to which Article III values were undermined by the congressional action. This balancing would afford the Court, the dissent believed, the power to prevent Congress, were it moved to do so, from transferring jurisdiction in order to emasculate the constitutional courts of the United States.
Again, no majority could be marshaled behind a principled discussion of the reasons for and the limitation upon the creation of legislative courts, not that a majority opinion, or even a unanimous one, would necessarily presage the settling of the law.
Congress responded to Marathon by enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984.
Agency Adjudication.-The Court in two decisions following Marathon involving legislative courts clearly suggested that the majority was now closer to the balancing approach of the Marathon dissenters than to the position of the Marathon plurality that Congress may confer judicial power on legislative courts in only very limited circumstances. Subsequently, however, Granfinanciera, S.A. v. Nordberg,
In rejecting a "formalistic" approach and analyzing the "substance" of the provision at issue in Union Carbide, Justice O'Connor's opinion for the Court pointed to several considerations.
In Schor, the Court described Art. III, § 1 as serving a dual purpose: to protect the role of an independent judiciary and to safeguard the right of litigants to have claims decided by judges free from potential domination by the other branches of government. A litigant's Article III right is not absolute, the Court determined, but may be waived. This the litigant had done by submitting to the administrative law judge's jurisdiction rather than independently seeking relief as he was entitled to and then objecting only after adverse rulings on the merits. But the institutional integrity claim, not being personal, could not be waived, and the Court reached the merits. The threat to institutional independence was "weighed" by reference to "a number of factors." The conferral on the CFTC of pendent jurisdiction over common law counterclaims was seen as more narrowly confined than was the grant to bankruptcy courts at issue in Marathon, and as more closely resembling the "model" approved in Crowell v. Benson. The CFTC's jurisdiction, unlike that of bankruptcy courts, was said to be confined to "a particularized area of the law;" the agency's orders were enforceable only by order of a district court,
Granfinanciera followed analysis different from that in Schor, although it preserved Union Carbide through its concept of "public rights." State law and other legal claims founded on private rights could not be remitted to non-Article III tribunals for adjudication unless Congress in creating an integrated public regulatory scheme has so taken up the right as to transform it. It may not simply relabel a private right and place it into the regulatory scheme. The Court is hazy with respect to whether the right itself must be a creature of federal statutory action. The general descriptive language suggests that, but in its determination whether the right at issue in the case, the recovery of preferential or fraudulent transfers in the context of a bankruptcy proceeding, is a "private right," the Court seemingly goes beyond this point. Though a statutory interest, the actions were identical to state-law contract claims brought by a bankrupt corporation to augment the estate.
Thus, while the Court has made some progress in reconciling its growing line of disparate cases, doctrinal harmony has not yet been achieved.
Noncourt Entities in the Judicial Branch
Passing on the constitutionality of the establishment of the Sentencing Commission as an "independent" body in the judicial branch, the Court acknowledged that the Commission is not a court and does not exercise judicial power. Rather, its function is to promulgate binding sentencing guidelines for federal courts. It acts, therefore, legislatively, and its membership of seven is composed of three judges and three nonjudges. But the standard of constitutionality, the Court held, is whether the entity exercises powers that are more appropriately performed by another branch or that undermine the integrity of the judiciary. Because the imposition of sentences is a function traditionally exercised within congressionally prescribed limits by federal judges, the Court found the functions of the Commission could be located in the judicial branch. Nor did performance of its functions contribute to a weakening of the judiciary, or an aggrandizement of power either, in any meaningful way, the Court observed.
Characteristics and Attributes of Judicial Power
Judicial power is the power "of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision."
Judicial power confers on federal courts the power to decide a case, to render a judgment conclusively resolving a case. Judicial power is the authority to render dispositive judgments, and Congress violates the separation of powers when it purports to alter final judgments of Article III courts.
Holding the statute invalid, the Court held it impermissible for Congress to disturb a final judgment. "Having achieved finality, . . . a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was."
Included within the general power to decide cases are the ancillary powers of courts to punish for contempts of their authority,
"Shall Be Vested".-The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words "shall be vested" in § 1. Whereas all the judicial power of the United States is vested in the Supreme Court and the inferior federal courts created by Congress, neither has ever been vested with all the jurisdiction which could be granted and, Justice Story to the contrary,
Finality of Judgment as an Attribute of Judicial Power
Since 1792, the federal courts have emphasized finality of judgment as an essential attribute of judicial power. In that year, Congress authorized Revolutionary War veterans to file pension claims in circuit courts of the United States, directed the judges to certify to the Secretary of War the degree of a claimant's disability and their opinion with regard to the proper percentage of monthly pay to be awarded, and empowered the Secretary to withhold judicially certified claimants from the pension list if he suspected "imposition or mistake."
Award of Execution - The adherence of the Court to this proposition, however, has not extended to a rigid rule formulated by Chief Justice Taney, given its fullest expression in a post-humously-published opinion.
In his posthumously-published opinion, Chief Justice Taney, because the judgment of the Court of Claims and the Supreme Court depended for execution upon future action of the Secretary and of Congress, regarded any such judgment as nothing more than a certificate of opinion and in no sense a judicial judgment. Congress could not therefore authorize appeals to the Supreme Court in a case where its judicial power could not be exercised, where its judgment would not be final and conclusive upon the parties, and where processes of execution were not awarded to carry it into effect. Taney then proceeded to enunciate a rule which was rigorously applied until 1933: the award of execution is a part and an essential part of every judgment passed by a court exercising judicial powers and no decision was a legal judgment without an award of execution.
Ancillary Powers of Federal Courts
The Contempt Power
Categories of Contempt.-Crucial to an understanding of the history of the law governing the courts' powers of contempt is an awareness of the various kinds of contempt. With a few notable exceptions,
A second but more subtle distinction, with regard to the categories of contempt, is the difference between direct and indirect contempt-whether civil or criminal in nature. Direct contempt results when the contumacious act is committed "in the presence of the Court or so near thereto as to obstruct the administration of justice;"
The Act of 1789 - The summary power of the courts of the United States to punish contempts of their authority had its origin in the law and practice of England where disobedience of court orders was regarded as contempt of the King himself and attachment was a prerogative process derived from presumed contempt of the sovereign.
An Inherent Power.-The validity of the act of 1831 was sustained forty-three years later in Ex parte Robinson,
By 1911, the Court was saying that the contempt power must be exercised by a court without referring the issues of fact or law to another tribunal or to a jury in the same tribunal.
First Amendment Limitations on the Contempt Power.- The phrase "in the presence of the Court or so near thereto as to obstruct the administration of justice" was interpreted so broadly in Toledo Newspaper Co. v. United States
It is now clearly establihsed that courtroom conduct to be punishable as contempt "must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil." Craig v. Harney, 331 U.S. 367 , 376 (1947); In re Little, 404 U.S. 553 , 555 (1972).
A series of cases involving highly publicized trials and much news media attention and exploitation,
Due Process Limitations on Contempt Power: Right to Notice and to a Hearing versus Summary Punishment.-Included among the notable cases raising questions concerning the power of a trial judge to punish summarily for alleged misbehavior in the course of a trial is Ex parte Terry,
As to the timeliness of summary punishment, the Court at first construed Rule 42(a) of the Federal Rules of Criminal Procedure, which was designed to afford judges clearer guidelines as to the exercise of their contempt power, in Sacher v. United States,
Curbing the judge's power to consider conduct as occurring in his presence, the Court, in Harris v. United States,
Due Process Limitations on Contempt Power: Right to Jury Trial.-Originally the right to a jury trial was not available in criminal contempt cases.
Due Process Limitations on Contempt Powers: Impartial Tribunal.-In Cooke v. United States,
Sacher v. United States
In Offutt v. United States,
Contempt by Disobedience of Orders.-Disobedience of injunctive orders, particularly in labor disputes, has been a fruitful source of cases dealing with contempt of court. In United States v. United Mine Workers,
Contempt Power in Aid of Administrative Power.-Proceedings to enforce the orders of administrative agencies and subpoenas issued by them to appear and produce testimony have become increasingly common since the leading case of ICC v. Brimson,
Frankfurter. For delegations of the subpoena power to administrative agencies and the use of judicial process to enforce them, see also McCrone v. United States, 307 U.S. 61(1939); Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).
Sanctions Other Than Contempt
Long recognized by the courts as inherent powers are those authorities that are necessary to the administration of the judicial system itself, of which the contempt power just discussed is only the most controversial.
Thus, in the cited Chambers case, the Court upheld the imposition of monetary sanctions against a litigant and his attorney for bad-faith litigation conduct in a diversity case. Some of the conduct was covered by a federal statute and several sanction provisions of the Federal Rules of Civil Procedure, but some was not, and the Court held that, absent a showing that Congress had intended to limit the courts, they could utilize inherent powers to sanction for the entire course of conduct, including shifting attorney fees, ordinarily against the American rule.
Power to Issue Writs: The Act of 1789
From the beginning of government under the Constitution of 1789, Congress has assumed, under the necessary and proper clause, its power to establish inferior courts, its power to regulate the jurisdiction of federal courts and the power to regulate the issuance of writs.
Common Law Powers of District of Columbia Courts.- That portion of § 13 of the Judiciary Act of 1789 which authorized the Supreme Court to issue writs of mandamus in the exercise of its original jurisdiction was held invalid in Marbury v. Madison,
Habeas Corpus: Congressional and Judicial Control.-The writ of habeas corpus