Constitution of the United States/Art. III/Section 1 Vesting Clause

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Constitutional Law Treatise
Table of Contents
US Constitution.jpg
Constitutional Law Outline
Introduction
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Religion
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article III Judicial Branch

Section 1 Vesting Clause

Clause Text
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.

Overview of Judicial Vesting Clause[edit | edit source]

Article III, Section 1 of the Constitution vests the "judicial Power of the United States" in the federal courts.[1] Associate Justice Samuel Miller described judicial power as "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."[2] The Supreme Court has explained that judicial power is "the right to determine actual controversies arising between diverse litigants, duly instituted in courts of proper jurisdiction."[3] Judicial power thus confers on federal courts the power to decide cases and to render a judgment that conclusively resolves each case.

While the Constitution provides that the judicial power "shall be vested" in the federal courts, the vesting of most of the judicial power is neither automatic nor mandatory. The Supreme Court exercises original jurisdiction over a limited class of cases, meaning that such cases may be filed directly in the Supreme Court rather than reaching the Court on appeal.[4] That original jurisdiction has been deemed to arise directly from the Constitution.[5] Outside the limited category of cases subject to original jurisdiction, the federal courts' authority to hear cases depends on both constitutional text and implementing statutes. Two prerequisites must be present before the federal courts may hear a case: first, the Constitution must have given the courts the capacity to receive jurisdiction, and, second, an act of Congress must have conferred it.[6] Congress has never vested in the federal courts all the jurisdiction that the Constitution would allow it to grant,[7] and the Supreme Court has not interpreted the Constitution to require that Congress confer the entire jurisdiction it might.[8]

One key feature of the federal judicial power is the power of judicial review, the authority of the federal courts to declare that federal or state government actions violate the Constitution. The two essays that follow discuss the historical background of judicial review and Supreme Court doctrine related to judicial review, particularly the seminal case Marbury v. Madison.[9]

The general judicial power also includes certain ancillary powers of courts such as the authority to punish for contempt of their authority,[10] to issue writs in aid of jurisdiction when authorized by statute,[11] to make rules governing their process in the absence of statutory authorizations or prohibitions,[12] to order their own process so as to prevent abuse, oppression, and injustice, and to protect their own jurisdiction and officers in the protection of property in custody of law,[13] to appoint masters in chancery, referees, auditors, and other investigators,[14] and to admit and disbar attorneys.[15] The inherent powers of the federal courts are discussed in more detail in later essays.[16]

Historical Background on Judicial Review[edit | edit source]

One key feature of the federal judicial power is the power of judicial review, the authority of federal courts to declare that federal or state government actions violate the Constitution. While judicial review is now one of the distinctive features of United States constitutional law, the Constitution does not expressly grant federal courts power to declare government actions unconstitutional. However, the historical record from the Founding and the early years of the Republic suggests that those who framed and ratified the Constitution were aware of judicial review, and that some favored granting courts that power.

The concept of judicial review was already established at the time of the Founding. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters.[17] There were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions.[18] Practically all of the Framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation.[19] Alexander Hamilton argued in favor of the doctrine in the Federalist Papers.[20] In enacting the Judiciary Act of 1789, Congress explicitly provided for the exercise of the power,[21] and in other legislative debates questions of constitutionality and of judicial review were prominent.[22] Early Supreme Court Justices seem to have assumed the existence of judicial review.[23]

The Supreme Court first formally embraced the doctrine of judicial review in the 1803 case Marbury v. Madison.[24] Since Marbury, judicial review has become a core feature of American constitutional law.[25] While the doctrine is well established, some legal commentators have criticized judicial review, and some who support it debate its doctrinal basis or how it should be applied.[26]

Marbury v. Madison and Judicial Review[edit | edit source]

Judicial review is one of the distinctive features of United States constitutional law. However, the Constitution does not expressly grant the federal courts the power to declare government actions unconstitutional. Instead, the Supreme Court established the doctrine in the 1803 case Marbury v. Madison.[27]

Marbury arose from a dispute over a government commission. Plaintiff William Marbury and others were appointed as justices of the peace while President John Adams was in office, and their commissions were signed but not delivered. When President Thomas Jefferson took office, the commissions were withheld on Jefferson's express instruction. Marbury sued Secretary of State James Madison in the Supreme Court, seeking a writ of mandamus compelling delivery of the commission. He invoked the Supreme Court's original jurisdiction under Section 13 of the Judiciary Act of 1789.[28] The Supreme Court, in an opinion by Chief Justice John Marshall, agreed with Marbury that Section 13 authorized the Court to issue writs of mandamus in suits in its original jurisdiction. However, the Court declined to issue the writ, concluding instead that the Section 13 authorization was an attempt by Congress to expand the Court's original jurisdiction beyond its constitutional limits and was therefore void.[29]

Chief Justice Marshall began his discussion of judicial review by opining, "The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest."[30] In answering the question in the affirmative, Chief Justice Marshall first recognized certain fundamental principles. The people had come together to establish a government. They provided for its organization, assigned powers to its various departments, and established certain limits not to be transgressed by those departments. The limits were expressed in a written constitution, which would serve no purpose "if these limits may, at any time, be passed by those intended to be restrained[.]"[31] Because the Constitution is "a superior paramount law, unchangeable by ordinary means, . . . a legislative act contrary to the constitution is not law."[32]

The Chief Justice then asked, "If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?"[33] The answer, thought the Chief Justice, was clear: "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."[34] If a statute and the Constitution both apply to a single case, and conflict with one another, "the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty."[35] Because "the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply."[36] To declare otherwise, Chief Justice Marshall said, would be to permit the legislature to "pass[ ] at pleasure the limits imposed on its powers by the Constitution."[37]

The Chief Justice then turned from the philosophical justification for judicial review as arising from the very concept of a written constitution, to specific clauses of the Constitution. The judicial power, he observed, was extended to "all cases arising under the constitution."[38] It was "too extravagant to be maintained that the Framers had intended that a case arising under the constitution should be decided without examining the instrument under which it arises."[39] Suppose, he said, that Congress laid a duty on an article exported from a state or passed a bill of attainder or an ex post facto law or provided that treason should be proved by the testimony of one witness. Would the courts enforce such a law in the face of an express constitutional provision? They would not, he continued, because their oath required by the Constitution obligated them to support the Constitution and to enforce such laws would violate the oath.[40] Finally, the Chief Justice noted that the Supremacy Clause[41] gave the Constitution precedence over laws and treaties, providing that only laws "which shall be made in pursuance of the constitution shall be the supreme law of the land."[42]

Marbury v. Madison involved federal court review of a federal statute. Since the decision in Marbury, the Supreme Court has exercised its power of judicial review to examine the constitutionality of state statutes and federal and state executive actions.[43] State courts also have the authority to hear federal constitutional claims,[44] and may consider the validity of state action under the federal Constitution, subject to discretionary review by the U.S. Supreme Court.[45]

As Marbury's doctrine of judicial review became settled law in federal court, state courts also embraced the doctrine, with state court judicial review under state constitutions established in all states by 1850.[46] The decision in Marbury v. Madison has never been disturbed. Although commentators have debated the merits and scope of judicial review throughout the Nation's history,[47] the Supreme Court continues to review the constitutionality of statutes and other government actions.[48]

Inherent Powers of Federal Courts[edit | edit source]

Overview of Inherent Powers of Federal Courts[edit | edit source]

Since the early years of the Republic, the Supreme Court has held that the federal courts possess certain inherent powers that are necessary for the courts to conduct their business and serve their constitutional function. In the 1812 case United States v. Hudson, the Court described inherent judicial powers as "certain implied powers [that] must necessarily result to our Courts of justice from the nature of their institution . . . which cannot be dispensed with in a Court, because they are necessary to the exercise of all others."[49] These powers are not expressly enumerated in the Constitution, nor are they "immediately derived from statute."[50] In 1821, in Anderson v. Dunn, the Court explained, "Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates."[51]

Multiple Supreme Court cases have recognized inherent powers of the federal courts,[52] including the power to manage court proceedings,[53] to issue sanctions or hold parties in contempt for failure to comply with court orders,[54] and to issue and vacate judgments.[55] The following essays discuss each of those inherent powers in more detail.

Inherent Powers Over Judicial Procedure[edit | edit source]

The Constitution divides the authority to set court procedures between the legislative and Judicial Branches. Congress enjoys substantial authority to make procedural rules for the courts. That authority is not expressly granted in the Constitution. Instead, the Supreme Court has explained that the power arises from Congress's authority to structure the federal court system, supplemented by the Necessary and Proper Clause.[56] In the 1825 case Wayman v. Southard, the Court held it to be "completely self-evident" that Congress has the authority to establish procedural rules for the federal courts.[57] The Court has approved procedural statutes that left some discretion to the federal courts, but has held that the courts do not have the inherent authority to expand their jurisdiction or to issue or execute judgments beyond what Congress has authorized.[58]

In 1934, recognizing the limited competence of the legislature to regulate court procedure and acknowledging the inherent power of courts to regulate the conduct of their business, Congress enacted the Rules Enabling Act.[59] The Act authorizes the Supreme Court to "prescribe general rules of practice and procedure and rules of evidence" for cases in the federal courts.[60] Such rules may not "abridge, enlarge or modify any substantive right."[61] Procedural rules also may not alter the jurisdiction or venue of federal courts.[62] Subject to those limitations, the Court has rejected constitutional challenges to rules promulgated under the Rules Enabling Act.[63]

In addition to the legislative power to regulate court procedures, some of which Congress has delegated to the Judicial Branch, the courts themselves possess inherent equitable powers over their procedures. This inherent power serves to prevent abuse, oppression, and injustice, and to protect the courts' jurisdiction and officers.[64] The Supreme Court has explained that such power is essential to and inherent in the organization of courts of justice.[65]

While the Court has not precisely delineated the outer boundaries of the federal courts' inherent powers to manage their own internal affairs, the Court has recognized two limits on the exercise of such authority.[66] First, a court, in exercising its inherent powers over its own processes, must act reasonably in response to a specific problem or issue confronting the court's fair administration of justice.[67] Second, any exercise of an inherent power cannot conflict with any express grant of or limitation on the district court's power as contained in a statute or rule, such as the Federal Rules of Civil Procedure.[68] Thus, as with rules promulgated under the Rules Enabling Act, no court-made rule can enlarge or restrict jurisdiction or abrogate or modify the substantive law. This limit applies equally to courts of law, equity, and admiralty, to rules prescribed by the Supreme Court for the guidance of lower courts, and to rules that lower courts make for their own guidance.[69]

Applying the foregoing standards, the Supreme Court has recognized that a federal district court, as an exercise of its inherent powers, can, in limited circumstances, rescind an order to discharge a jury and recall that jury in a civil case.[70] The Court has also acknowledged that federal courts possess the inherent power to control other aspects of regulating internal court proceedings, hearing a motion in limine;[71] dismissing a case for the convenience of the parties or witnesses because of the availability of an alternative forum;[72] and staying proceedings pending the resolution of parallel actions in other courts.[73] The federal courts also possess inherent power to amend their records, correct the errors of the clerk or other court officers, and rectify defects or omissions in their records.[74] The exercise of an inherent power can, at times, allow for departures from even long-established, judicially crafted common law rules; however, courts are not generally free to discover new inherent powers that are contrary to civil practice as recognized in the common law.[75]

Incident to the judicial power, federal courts possess inherent authority to supervise the conduct of their officers, parties, witnesses, counsel, and jurors by imposing rules to protect the rights of litigants and the orderly administration of justice.[76] Such supervision may be accomplished through a number of different means, including promulgation of general procedural rules as discussed in this essay, oversight of admission to the bar, imposition of contempt or sanctions for parties or attorney who disobey court orders or engage in misconduct, or case-by-case decisions to exclude individuals from the courtroom.[77]

Inherent Powers Over Contempt and Sanctions[edit | edit source]

The Supreme Court has repeatedly held that federal courts possess inherent authority to punish contempt--i.e., disobedience of a court order or obstruction of justice--and to impose other sanctions on parties or attorneys who engage in misconduct.

The Court's contempt decisions have often distinguished between criminal and civil contempt.[78] Whether a contempt is civil or criminal can be of great importance. For instance, criminal contempt implicates procedural rights attendant to prosecutions, while civil contempt does not.[79] In Ex parte Grossman, while holding that the President may pardon a criminal contempt, Chief Justice William Howard Taft noted in dicta that the pardon power did not extend to civil contempt.[80] In Turner v. Rogers, the Court held that the Due Process Clause does not grant an indigent defendant a right to state-appointed counsel at a civil contempt proceeding.[81] Notwithstanding the importance of distinguishing between the two types of contempt, there have been instances where defendants have been charged with both civil and criminal contempt for the same act.[82]

The history of the contempt powers of the American Judiciary is marked by two trends: a shrinking of the courts' power to punish a person summarily and a multiplying of the due process requirements that must be met when finding an individual to be in contempt.[83] The 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.[84] By the latter part of the eighteenth century, summary power to punish was extended to all contempts whether committed in or out of court.[85] In the United States, the Judiciary Act of 1789 broadly conferred power on all courts of the United States "to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same."[86] The abuse of this extensive power led to the passage of the Act of 1831, which limited the power of the federal courts to punish contempts to misbehavior in the presence of the courts "or so near thereto as to obstruct the administration of justice," misbehavior of officers of courts in their official capacity, and disobedience or resistance to any lawful writ, process or order of the court.[87]

Writing for the Court to sustain the Act of 1831 in Ex parte Robinson, Justice Stephen Field described the nature of the contempt power as follows:

The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power. 86 U.S. (19 Wall.) 505, 510 (1874).

While he expressed doubts concerning the validity of the 1831 Act as applied to the Supreme Court, Justice Field declared that there could be no question of its validity as applied to the lower courts because they are created by Congress and their "powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction."[88] With the passage of time, later adjudications, especially after 1890, came to place more emphasis on the inherent power of courts to punish contempts than upon the power of Congress to regulate summary attachment.

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.[89] In Michaelson v. United States, the Court narrowly interpreted sections of the Clayton Act relating to punishment for contempt of court by disobedience of injunctions in labor disputes.[90] The sections in question provided for a jury upon the demand of the accused in contempt cases where the acts committed in violation of district court orders also constituted a crime. Although Justice George Sutherland reaffirmed earlier rulings establishing the authority of Congress to regulate the contempt power, he went on to qualify this authority and declared that "the attributes which inhere in the power [to punish contempt] and are inseparable from it can neither be abrogated nor rendered practically inoperative."[91] The Court mentioned specifically "the power to deal summarily with contempt committed in the presence of the courts or so near thereto as to obstruct the administration of justice," and the power to enforce mandatory decrees by coercive means.[92] The Court has held that this latter power to enforce includes the authority to appoint private counsel to prosecute a criminal contempt.[93]

Although the contempt power may be inherent, it is not unlimited. In Spallone v. United States, the Court held that a district court had abused its discretion by imposing contempt sanctions on individual members of a city council for refusing to vote to implement a consent decree remedying housing discrimination by the city.[94] The Court held that, "in view of the 'extraordinary' nature of the imposition of sanctions against the individual councilmembers," the proper remedy was to proceed first with contempt sanctions against the city, and only if that course failed should it proceed against the council members individually.[95]

In addition to the contempt power discussed above, the federal courts possess other inherent authorities to deter and punish misconduct.[96] The Supreme Court has explained that courts are elements of an independent and coequal branch of government, so once they are created and their jurisdiction established, they have the authority to do what courts have traditionally done in order to accomplish their assigned tasks.[97] Those inherent powers may be limited by statutes and by rules.[98] Nonetheless, the Court has asserted the power to act in areas not covered by statutes and rules and has held that Congress may regulate the courts' inherent sanctions power only by unmistakably enunciating its intention to limit the courts' inherent powers.[99]

Thus, in Chambers v. NASCO, Inc., the Court upheld the imposition of monetary sanctions against a litigant and his attorney for bad-faith litigation conduct in a diversity case.[100] 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. The Court held that, absent a showing that Congress had intended to limit the courts, they could use their inherent powers to impose sanctions for the entire course of conduct, including shifting attorneys' fees, which is ordinarily against the common-law American rule.[101] In another case, a party failed to comply with discovery orders and a court order concerning a schedule for filing briefs. The Supreme Court held that the attorneys' fees statute did not allow assessment of such fees in that situation, but it remanded for consideration of sanctions under both a Federal Rule of Civil Procedure and the trial court's inherent powers, subject to a finding of bad faith.[102] However, bad faith is not always required for the exercise of some inherent powers. For instance, courts may dismiss an action for an unexplained failure of the moving party to prosecute it.[103]

Inherent Power to Issue Judgments[edit | edit source]

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, but empowered the Secretary to withhold judicially certified claimants from the pension list if he suspected "imposition or mistake."[104] The Justices then on circuit almost immediately forwarded objections to the President, contending that the statute was unconstitutional because the judicial power was constitutionally committed to the Judicial department, the duties imposed by the act were not judicial, and the subjection of a court's opinions to revision or control by an officer of the Executive or the Legislature was not authorized by the Constitution.[105]

In addition to the power to issue judgments, each federal court also possesses an inherent power to "to vacate its own judgment upon proof that a fraud has been perpetrated upon the court" or enforcement of the judgment would otherwise create inequity, and to "conduct an independent investigation in order to determine whether it has been the victim of fraud."[106] By contrast, the Court has held that Congress may not enact legislation that directs courts to reopen a final judgment.[107]

Federal courts also have authority to issue writs, though it is not clear whether the courts have any inherent power in this area absent statutory authorization by Congress. Since the Founding, Congress has assumed--under its power to establish inferior courts, its power to regulate the jurisdiction of federal courts, and the Necessary and Proper Clause--the power to regulate the issuance of writs.[108] Section 13 of the Judiciary Act of 1789 authorized the Supreme Court "to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."[109] Section 14 provided that all "courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law."[110]

Although the Act of 1789 left the power to issues writs subject largely to the common law, it is significant as a reflection of the belief, in which the courts have generally concurred, that an act of Congress is necessary to confer judicial power to issue writs.[111] Whether Article III itself is an independent source of the power of federal courts to fashion equitable remedies for constitutional violations or whether such remedies must fit within congressionally authorized writs or procedures is often left unexplored. In Missouri v. Jenkins, for example, the Court, rejecting a claim that a federal court exceeded judicial power under Article III by ordering local authorities to increase taxes to pay for desegregation remedies, declared that a court order directing a local government body to levy its own taxes is plainly a judicial act within the power of a federal court.[112] In the same case, the Court refused to rule on the difficult constitutional issues presented by the state's claim that the district court had exceeded its constitutional powers in a prior order directly raising taxes, instead ruling that the order had violated principles of comity.[113]

Congressional Control Over Judicial Power[edit | edit source]

Overview of Congressional Control Over Judicial Power[edit | edit source]

The Framers structured the Constitution to promote the separation of powers and, in particular, to protect the Judiciary from undue influence by Congress and the Executive Branch.[114] Nonetheless, the Constitution does not impose complete separation between the Judiciary and the political branches. Congress possesses substantial authority to regulate how the federal courts exercise judicial power, albeit subject to certain constitutional limitations.

For instance, the Supreme Court rejected a separation of powers challenge to legislation establishing the U.S. Sentencing Commission as an independent agency within the Judicial Branch.[115] On the other hand, while Congress can change the substantive law courts must apply and alter the jurisdiction of the federal courts, sometimes even with respect to pending cases,[116] it cannot direct the courts to reopen final judicial decisions.[117] The following essays discuss those two issues. Other issues related to congressional control over the Federal Judiciary, including Congress's power to establish federal courts,[118] create court procedural rules,[119] set federal court jurisdiction,[120] and alter federal judges' tenure in office,[121] are discussed elsewhere in this volume.

Reopening Final Judicial Decisions[edit | edit source]

The core of the judicial power is the authority to render dispositive judgments. Accordingly, the Supreme Court has held that Congress violates the separation of powers when it purports to alter, or allow the Executive Branch to alter, final judgments of Article III courts.[122]

In 1792, in Hayburn's Case, the Supreme Court considered a petition for a writ of mandamus to direct a federal circuit court to proceed on a claim seeking a federal pension.[123] The petitioner argued that the courts had failed to give effect to an act of Congress. The Court noted, however, that "the reasons assigned by the judges," including Supreme Court Justices sitting on the circuit courts, "for declining to execute the . . . act of Congress, involve a great constitutional question."[124] Specifically, those judges contended that pension decisions under the Act were not judicial duties that Congress could constitutionally assign to the courts because the act rendered such decisions subject to review by the political branches.[125] The Court heard argument on the mandamus petition but postponed its decision until the next term. While the case remained pending, Congress enacted legislation providing an alternative means of relief for the pensioners; the Court then dismissed the mandamus petition without deciding the underlying constitutional question.[126]

Although the Court in Hayburn's Case did not decide the constitutionality of legislation subjecting court judgments to review by the political branches, the Court has since cited that decision to reject efforts to give federal courts jurisdiction over cases in which judgment would be subject to Executive or Legislative revision.[127] For example, in the 1948 case Chicago & Southern Air Lines v. Waterman S.S. Corp., the Court held that an order of the Civil Aeronautics Board denying a certificate of convenience and necessity was not reviewable by the courts, despite statutory language to the contrary.[128] Congress had also rendered such an order subject to discretionary review and revision by the President, but the Supreme Court agreed with a lower federal court that the Judiciary did not have the authority to review the President's decision.[129] While the lower court had attempted to reconcile the statutory scheme by permitting presidential review of the order after judicial review, the Supreme Court rejected that interpretation, stating: "[I]f the President may completely disregard the judgment of the court, it would be only because it is one the courts were not authorized to render. Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government."[130]

In the 1995 case Plaut v. Spendthrift Farm, Inc., the Court held that legislation that directs courts to reopen a final judgment unconstitutionally intrudes on the Judiciary.[131] Plaut involved an amendment to the Securities Exchange Act of 1934 that Congress enacted after a pair of Supreme Court opinions announced a time limit for bringing certain civil actions seeking damages under the Act.[132] The amended statute, Section 27A of the Securities Exchange Act, directed courts (upon a timely filed petition) to reinstate cases that had been dismissed because of the Court's rulings but that would have been timely under the governing statute of limitations when initially filed.[133] In Plaut, the Supreme Court held that Section 27A's reopening provision violated the doctrine of separation of powers.[134] The Court explained that, by applying retroactively to final decisions, Section 27A "reverses a determination once made, in a particular case."[135] The Court distinguished the command in Section 27A from other retroactive laws that mandate "an appellate court [to] apply [the new] law in reviewing judgments still on appeal that were rendered before the law was enacted."[136] The Court emphasized the difference between attempting to alter a final judgment--one rendered by a court and either not appealed or affirmed on appeal--and legislatively amending a statute as applied to a decision that was on appeal or otherwise not final at the time a federal court reviewed the determination below. A court must apply the law as revised when it considers a case on appeal. However, the Court reasoned that "[h]aving 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."[137] Thus, in directing courts to reopen nonpending, previously decided cases, Congress violates the separation of powers by "depriving judicial judgments of the conclusive effect that they had when they were announced."[138]

While Congress cannot require courts to reopen final judgments, it can "alter[ ] the prospective effect of injunctions entered by Article III courts."[139] Thus, in Miller v. French, the Court upheld a provision of the Prison Litigation Reform Act of 1995 that requires courts to stay a court-ordered injunction automatically for a specified period upon receiving a motion to terminate the injunction.[140] The Court ruled that the automatic stay provision did not amount to an unconstitutional legislative revision of a final judgment.[141] Rather, it merely altered the prospective effect of injunctions, and it is well established that such prospective relief "remains subject to alteration due to changes in the underlying law."[142]

Imposing Non-Adjudicatory Functions on Courts[edit | edit source]

The Supreme Court has struck down congressional attempts to reassign constitutional functions from one branch of government to another branch, but has "upheld statutory provisions that to some degree commingle the functions of the Branches, but that pose no danger of either aggrandizement or encroachment."[143] In Mistretta v. United States, the Supreme Court rejected a separation of powers challenge to legislation establishing the U.S. Sentencing Commission.[144] Through the Sentencing Reform Act of 1984, Congress created the Sentencing Commission as an independent agency in the Judicial Branch tasked with promulgating sentencing guidelines for federal judges to use when sentencing convicted offenders.[145] Under the Act, three Sentencing Commission members must be Article III judges. The President appoints all seven Commission members and can remove any member for cause.[146] In Mistretta, a criminal defendant sought to have the Sentencing Guidelines the Commission promulgated ruled unconstitutional, arguing in part that the Commission was constituted in violation of the doctrine of separation of powers.[147]

Upholding the constitutionality of establishing 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.[148] Rather, its membership includes both judges and nonjudges, and its work has a "significantly political nature."[149] However, the Court held that the question of the Commission's constitutionality turns not on formal distinctions between "political" and "judicial" functions, but rather on a practical inquiry whether the agency's structure "undermin[es] the integrity of the Judicial Branch" or "expand[s] the powers of the Judiciary beyond constitutional bounds."[150] The Court held that "the placement of the Sentencing Commission in the Judicial Branch has not increased the Branch's authority" because, "[p]rior to the passage of the Act, the Judicial Branch . . . decided precisely the questions assigned to the Commission: what sentence is appropriate to what criminal conduct under what circumstances."[151] The Court also rejected the challenger's contention that participating in policymaking would inevitably weaken the Judiciary. The Court noted that "Congress placed the Commission in the Judicial Branch precisely because of the Judiciary's special knowledge and expertise" with respect to sentencing, and concluded that this arrangement could not "possibly be construed as preventing the Judicial Branch 'from accomplishing its constitutionally assigned functions.'"[152] The Court further held that "the principle of separation of powers does not absolutely prohibit Article III judges from serving on [non-judicial] commissions" such as the Sentencing Commission or from sharing power on the Commission with members who are not judges.[153]

Federal and State Courts[edit | edit source]

Overview of Relationship Between Federal and State Courts[edit | edit source]

The Constitution's Supremacy Clause provides that the Constitution, federal statutes, and treaties "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."[154] The Supremacy Clause thus presumes that state courts will interpret--and be bound by--federal law.[155]

Under modern practice, both state and federal courts play an important role in interpreting and applying the Constitution and federal law.[156] However, at the time of the Founding it was not initially clear how that power would be divided between federal and state courts.[157]

In the years since the Founding, Supreme Court decisions have established that federal courts, particularly the Supreme Court, are the final authority on interpreting federal law, and federal courts possess the constitutional authority to review state court decisions that allegedly conflict with the Constitution or federal law.[158] Various statutory and court-made rules govern when such review is available, however. In some circumstances, a complainant bringing a claim under federal law is required to exhaust available state legislative or administrative remedies before seeking relief in federal court; by contrast, exhaustion of state judicial remedies--for example, by first bringing related state law claims in state court--is not generally required.[159] There are also circumstances in which the federal courts have the power to assert jurisdiction over a case but decline to do so out of respect for the sovereign authority of state courts.[160]

As for state courts, they are generally authorized to hear claims involving federal law, except in areas where the federal courts possess exclusive jurisdiction.[161] Moreover, subject to limited exceptions, state courts are usually required to hear cases arising under federal law over which they have jurisdiction.[162] State courts generally lack the authority to enjoin proceedings in federal court or prevent the enforcement of federal court judgments.[163]

Historical Background on Relationship Between Federal and State Courts[edit | edit source]

At the time of the Founding, each state had its own system of courts, while the Articles of Confederation did not provide for an independent Federal Judiciary.[164] The delegates to the Constitutional Convention agreed early on that the new Constitution should establish a federal Judicial Branch including a Supreme Court; however, they debated other questions about how to balance federal and state judicial power.

The Framers generally accepted that state courts would play a significant role in interpreting and applying federal law.[165] However, some of the Framers also entertained concerns about whether state courts would apply federal law correctly, uniformly, and without bias. Then, as now, the specific structure of state courts varied significantly from state to state. State court judges often did not enjoy the safeguards that were afforded federal judges, such as life tenure during good behavior and salary protection. Certain delegates to the Constitutional Convention expressed concerns as to whether state court judges might therefore be subject to political pressures that could affect their decision-making.[166] Others raised the prospect of disputes between states, noting that a state court might issue decisions that were biased in favor of its home state.[167] Some Founders worried that the multiple state courts could interpret federal law differently, undermining the interest in having uniform federal laws.[168]

To mitigate those concerns, the Framers provided for a federal Supreme Court with the power to review state judicial decisions involving issues of federal statutory or constitutional law.[169] Debate arose, however, on the question of whether lower federal courts were also necessary. Some delegates argued that establishing lower federal courts would encroach on the power of the states.[170] Some argued that a right of appeal from state court to a federal appellate court would suffice to ensure uniformity and prevent bias.[171] Other delegates countered that a right to appeal would provide less effective protection of federal rights than the right to consideration by an impartial tribunal in the first instance.[172] The Convention discussed whether creating lower federal courts would lessen the burden on the Supreme Court and prevent it from being overwhelmed by numerous appeals.[173] Some delegates voiced an interest in flexibility, contending that lower federal courts might be needed in the future even if they were not immediately necessary.[174]

Ultimately, the Framers left the decision of whether to create lower federal courts to Congress. Article III of the Constitution provides for "one supreme Court, and . . . such inferior Courts as the Congress may from time to time ordain and establish."[175] The first Congress exercised its authority promptly, creating lower federal courts in the Judiciary Act of 1798, the first legislation related to the Federal Judiciary.[176]

Doctrine on Federal and State Courts[edit | edit source]

By specifying the extent of the "judicial Power," the Constitution authorized the creation of federal courts with limited subject matter jurisdiction. Article III identifies several categories of cases over which the Supreme Court possesses original jurisdiction.[177] In addition, the Constitution generally authorizes federal courts to hear "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority," as well as admiralty cases, cases between citizens of different states, and cases between citizens of a state and a foreign state or its citizens.[178]

Within those broad categories, Congress has traditionally been understood to exercise significant discretion to decide which cases particular federal courts have jurisdiction to hear. The Constitution sets the maximum possible extent of federal court jurisdiction. Congress cannot expand such jurisdiction beyond the applicable constitutional limits, but is free to grant the federal courts authority over only a subset of constitutionally permissible cases. In practice, Congress has always granted the federal courts less expansive jurisdiction than the Constitution authorizes.[179] The first Judiciary Act granted the federal courts exclusive jurisdiction over matters including federal criminal cases, admiralty cases, and certain cases involving seizures of property under federal law.[180] The Act also granted the federal and state courts concurrent jurisdiction over other classes of cases, including certain tort suits brought by foreign nationals and common law suits brought by the United States government.[181] Since that time, Congress has periodically expanded the scope of federal court jurisdiction,[182] but has never provided for federal court jurisdiction in all possible cases that would be authorized under the Constitution's jurisdictional limits.[183]

In contrast to the federal system, the states operate courts of general jurisdiction, which are not subject to the constitutional jurisdictional limits placed on federal courts.[184] As part of such general jurisdiction, state courts have concurrent jurisdiction to hear most cases that raise issues under the Constitution or federal law.[185] Congress may enact legislation providing that certain claims arising under federal law may only be heard in federal court.[186] However, unless Congress provides for exclusive federal court jurisdiction, a case raising federal law claims may proceed in either state or federal court.[187]

If a plaintiff files in state court a case over which the federal courts could exercise jurisdiction, the defendant may elect to remove the case to federal court pursuant to federal statute.[188] In addition, a party may seek Supreme Court review of a decision of a state's highest court in cases where a state law, executive action, or judicial interpretation allegedly conflicts with the Constitution or a federal law or treaty.[189]

As the following sections discuss in more detail, other interactions between federal and state courts may occur as cases move through the judicial system. For example, because the federal Constitution, statutes, and treaties are the "the supreme Law of the Land," and federal courts are the final authority on the interpretation of federal law, state courts applying federal law are bound by controlling decisions of the federal courts.[190] Relatedly, federal courts may sometimes enjoin proceedings in state court,[191] and federal courts can hear challenges to state criminal convictions pursuant to petitions for a writ of habeas corpus.[192] By contrast, state courts have much more limited power to enjoin or otherwise affect federal proceedings.[193] Nonetheless, as a matter of federal-state comity,[194] federal courts will sometimes abstain from hearing cases raising novel questions of state law, and in some cases may require litigants to exhaust available remedies under state law before filing suit in federal court.[195]

State Court Jurisdiction to Enforce Federal Law[edit | edit source]

Unless the federal courts possess exclusive jurisdiction over a matter, state courts may hear cases over which federal courts would have also had jurisdiction.[196] However, it does not necessarily follow from the fact that state courts are authorized to hear claims arising under federal law that the state courts must agree to hear federal claims. In deciding multiple cases on this issue, the Supreme Court has ruled that state courts generally must hear federal law claims unless state law bars a state court from hearing a federal claim through a "neutral rule of judicial administration" that does not improperly burden claims arising under federal law.[197]

In the 1876 case Claflin v. Houseman, the Supreme Court held that state courts could hear cases arising under federal bankruptcy law.[198] The Court reasoned:

The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. The United States is not a foreign sovereignty as regards the several States, but is a concurrent, and, within its jurisdiction, paramount sovereignty.93 U.S. at 136.

The Court thus held that "the State courts have concurrent jurisdiction whenever, by their own constitution, they are competent to take it."[199] While Claflin concerned when state courts may exercise jurisdiction over federal claims, a number of subsequent cases have cited Claflin when considering when state courts may validly decline jurisdiction over federal claims.

In several cases, the Supreme Court has upheld state courts' refusal to hear federal claims, finding that state law provided a "valid excuse" to decline jurisdiction. For instance, in Douglas v. New York, N.H. & H.R. Co., the Court upheld a state law that allowed state courts to decline jurisdiction over both state and federal law claims when neither party was a resident of the State.[200] The Supreme Court noted that there was nothing in the federal statute at issue "that purports to force a duty" to hear cases on state courts "as against an otherwise valid excuse."[201] In Howlett v. Rose, the Court summarized cases like Douglas, where states had validly declined to hear federal claims, as involving "neutral rule[s] of judicial administration."[202]

By contrast, in Mondou v. New York, N.H. & H.R. Co., a Connecticut court declined to hear a case arising under federal law, in part because the state court held it was "at liberty to decline cognizance of actions to enforce rights arising under [the federal] act, because . . . the policy manifested by it is not in accord with the policy of the state."[203] The Supreme Court rejected that proposition and held that the state court must hear the case. In so holding, the Court emphasized that the case did not involve "any attempt by Congress to enlarge or regulate the jurisdiction of state courts, or to control or affect their modes of procedure," but only a question of when state courts must hear federal claims that fall within their "ordinary jurisdiction, as prescribed by local laws."[204]

Similarly, in Testa v. Katt, the Rhode Island Supreme Court declined to enforce a federal statute containing a punitive damages provision, finding that the law was penal in nature and the "state need not enforce the penal laws of a government which is 'foreign in the international sense.'"[205] The U.S. Supreme Court reversed, holding that the Rhode Island court must enforce the federal statute, and that a state policy of not enforcing penal statutes of other sovereigns was not a "valid excuse" under Douglas.[206] Among other things, the Court explained that "[i]t cannot be assumed, the supremacy clause considered, that the responsibilities of a state to enforce the laws of a sister state are identical with its responsibilities to enforce federal laws."[207]

In the 2009 case Haywood v. Drown, the Supreme Court considered a state statute that divested New York state courts of jurisdiction over suits under 42 U.S.C. § 1983 seeking money damages from corrections officers, as well as similar state law claims against corrections officers.[208] The Court held that the New York law violated the Supremacy Clause. Writing for the majority, Justice John Paul Stevens explained, "we have emphasized that only a neutral jurisdictional rule will be deemed a 'valid excuse' for departing from the default assumption" that state courts will hear federal claims.[209] Although the New York statute removed jurisdiction over both state and federal claims, the Court held, "equality of treatment" between state and federal claims "does not ensure that a state law will be deemed . . . a valid excuse for refusing to entertain a federal cause of action."[210] Rather, by distinguishing between Section 1983 claims against corrections officers and all other Section 1983 suits, New York undermined the federal policy of making relief under Section 1983 broadly available. The Court held that this was impermissible: "having made the decision to create courts of general jurisdiction that regularly sit to entertain analogous suits, New York is not at liberty to shut the courthouse door to federal claims that it considers at odds with its local policy."[211]

The question of state court enforcement of federal law is related to, but distinct from, the anti-commandeering doctrine.[212] In Printz v. United States, the Supreme Court distinguished between federal control over state courts and commandeering of the political branches of state government. Justice Antonin Scalia's majority opinion surveyed federal legislation from early Congresses that required state courts to take certain actions, such as recording applications for citizenship, but noted that state courts are bound by the Supremacy Clause, which expressly requires them to apply federal law. The Court thus concluded, "we do not think the early statutes imposing obligations on state courts imply a power of Congress to impress the state executive into its service."[213]

Supreme Court Review of State Court Interpretations of Federal Law[edit | edit source]

As a substantive matter, state courts interpreting federal law are bound by applicable federal court precedents and subject to review by the Supreme Court. This rule dates back to Section 25 of Judiciary Act of 1789, which authorized the U.S. Supreme Court to review certain decisions of the states' highest courts involving the construction of the Constitution, a treaty, or federal law.[214]

The Supreme Court considered a constitutional challenge to Section 25 in the 1816 case Martin v. Hunter's Lessee.[215] In that case, litigation involving title to land in Virginia was appealed to the U.S. Supreme Court, which held that a treaty between the United States and Britain controlled the dispute. On remand, the Virginia state court of appeals refused to honor the Supreme Court's judgment, opining that "the appellate power of the supreme court of the United States does not extend to this court under a sound construction of the constitution of the United States," and that Section 25 was unconstitutional in that it "extends the appellate jurisdiction of the supreme court to this court."[216] The case returned to the U.S. Supreme Court, which upheld Section 25. Justice Joseph Story's majority opinion emphasized that the Constitution vests in the Supreme Court the authority to hear all cases subject to the federal judicial power, explaining that "the constitution not only contemplated, but meant to provide for cases within the scope of the judicial power of the United States, which might yet depend before state tribunals."[217]

Similarly, in Cohens v. Virginia, individuals convicted under Virginia state criminal law for selling lottery tickets argued that their convictions violated federal law. On appeal to the Supreme Court, the state argued that while the Virginia courts were constitutionally obliged to prefer federal law over conflicting state laws, the state courts, as courts of a separate sovereign, were bound only by their own interpretation of the supreme law.[218] The state further contended that the judicial power of the United States extended only to cases brought in the first instance in federal court. Chief Justice John Marshall's majority opinion rejected this narrow interpretation, holding that the words of the Constitution "give to the Supreme Court appellate jurisdiction in all cases arising under the constitution, laws, and treaties of the United States. The words are broad enough to comprehend all cases of this description, in whatever Court they may be decided."[219]

Limits on State Court Control of Federal Proceedings[edit | edit source]

State courts have limited authority to issue orders that would affect the federal courts.[220] For instance, state courts cannot prevent the effectuation of federal court judgments.[221] Nor do state courts have the power to issue writs of habeas corpus ordering the release of persons in federal custody or writs of mandamus requiring action by federal officials.[222]

In addition, state courts generally lack the power to enjoin federal court proceedings.[223] One exception to that rule occurs in cases in which a state court has custody of property subject to proceedings in rem or quasi in rem:[224] in such cases, where the state court has exclusive jurisdiction to proceed, it may enjoin the parties from further action in federal court.[225]

Federal Non-Interference with State Jurisdiction and Abstention[edit | edit source]

Perhaps the fullest expression of the concept of comity may be found in the abstention doctrine.[226] The abstention doctrine instructs federal courts to abstain from exercising jurisdiction if applicable state law, which would be dispositive to the controversy, is unclear and a state court's interpretation of the state law might make resolving a federal constitutional issue unnecessary.[227] Abstention is not proper, however, where the relevant state law is settled,[228] or where it is clear that the state statute or action challenged is unconstitutional no matter how the state court construes state law.[229] Federal jurisdiction is not ousted by abstention; rather it is postponed.[230] The Supreme Court has said that abstention can serve interests of federal-state comity by avoiding "a result in 'needless friction with state policies,'"[231] and can spare "the federal courts of unnecessary constitutional adjudication."[232]

During the 1960s, the Supreme Court disfavored the abstention doctrine, rejecting it in numerous cases, most of which concerned civil rights and civil liberties.[233] The Court cited time-consuming delays[234] and piecemeal resolution of important questions[235] as too-costly consequences of the doctrine. In addition to actions brought under civil rights statutes,[236] the Court, for a while, appeared to shelter cases involving First Amendment expression guarantees from the abstention doctrine, but this is no longer the rule.[237] Younger v. Harris[238] and its progeny signaled a trend toward the Court applying the absention doctrine more robustly.

As an alternative to abstention, the Supreme Court has sometimes encouraged or required lower federal courts to use certification procedures where they are available.[239] While this process is not grounded in the federal constitution, certification may allow federal courts to avoid relying on the abstention doctrine. Most states have adopted rules that allow federal courts to "certify," or refer, unsettled questions of state law to state courts.[240] The Court has sometimes required lower federal courts to certify to state courts questions which concern "novel issues of state law peculiarly calling for the exercise of judgment by the state courts," and involve construing a state law that is being challenged as unconstitutional.[241] The Court has also noted that certification may be appropriate where abstention would lead to undue "delay and expense"--although such concerns may not be sufficient to require a federal court to employ certification rather than abstention.[242]

Exhaustion Doctrine and State Law Remedies[edit | edit source]

In some circumstances, when a person seeking to bring a claim under federal law also has a remedy available under state law, that person will be required to exhaust state law remedies before proceeding in federal court. For instance, as discussed further in the next section, prisoners challenging their detention by state authorities must generally exhaust state law remedies before seeking a writ of habeas corpus in federal court.[243]

As another example, a person seeking to challenge state legislative action must await completion of the state legislative process before suing in federal court.[244] In Prentis v. Atlantic Coast Line Co., the Supreme Court declined to hear a claim that certain railroad rates that a state agency planned to promulgate were confiscatory in violation of the Fourteenth Amendment.[245] Writing for the majority, Justice Oliver Wendell Holmes noted that the Virginia state constitution allowed the railroads to challenge the new rates before the state Supreme Court of Appeals before they went into effect and explained that determination of rates, including review by the state court, amounted to a legislative process rather than a judicial one. Because completion of that legislative process might result in different rates and obviate the constitutional challenge, the Court concluded, the challengers "should make sure that the State in its final legislative action would not respect what they think their rights to be, before resorting to the courts of the United States."[246] Justice Holmes also emphasized that the Court's decision was grounded not in mandatory jurisdictional limits but rather in prudential considerations such as comity and efficiency.[247]

While complainants must generally exhaust available state legislative and administrative remedies before proceeding in federal court, they are not ordinarily required to seek a judicial remedy in state court before filing a claim in federal court.[248] Thus, in Bacon v. Rutland R.R., the Supreme Court held that the federal courts could hear a Fourteenth Amendment challenge to an order of the Public Service Commission of Vermont concerning a passenger railway station.[249] Justice Holmes, again writing for the majority, distinguished the Virginia system in Prentis, where "the [state] court was given legislative powers," and the Vermont system, which did "not attempt to confer legislative powers upon the court" but instead created a remedy that was "purely judicial."[250] Likewise, in Lane v. Wilson, the court held that a Black man denied voter registration in Oklahoma could challenge the denial in federal court without first pursuing a state law challenge that "has all the indicia of a conventional judicial proceeding and does not confer upon the Oklahoma courts any of the discretionary or initiatory functions that are characteristic of administrative agencies."[251]

Subject to limited exceptions, exhaustion of state remedies is not required before a person may seek relief under federal civil rights statutes such as 42 U.S.C. § 1983.[252] In Monroe v. Pape, the Supreme Court held that plaintiffs need not exhaust state judicial remedies before seeking relief in federal court under Section 1983.[253] In McNeese v. Board of Education, the Court extended that holding to state administrative remedies, holding that plaintiffs who sought to challenge school segregation need not first seek relief through a state administrative process.[254] In Patsy v. Florida Board of Regents, the Court reaffirmed that "exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983."[255]

Habeas Review[edit | edit source]

Federal courts can hear challenges to state criminal convictions pursuant to petitions for a writ of habeas corpus. While early Supreme Court cases interpreted that authority narrowly, subsequent cases allowed for broader federal review of state court convictions. More recently, however, the Court has adopted a more limited approach to habeas review, and Congress has also enacted legislation limiting federal habeas review of state convictions.

At English common law, the writ of habeas corpus was available to attack pretrial detention and confinement by executive order; it could not be used to question the conviction of a person pursuant to the judgment of a court with jurisdiction over the person. In early cases, the Supreme Court applied the common law understanding of the writ.[256] After the Civil War, the Court adopted a broader view of when a court lacked jurisdiction over a petitioner. Thus, in the 1874 case, Ex Parte Lange, a person who had already completed one sentence on a conviction was released from custody on a second sentence on the ground that the court had lost jurisdiction upon completion of the first sentence.[257] In the 1880s, the Court held that the constitutionality of the statute upon which a charge was based could be examined on habeas, because an unconstitutional statute was said to deprive the trial court of its jurisdiction.[258] Other cases expanded the want-of-jurisdiction rationale.[259]

The Court started developing its modern approach to the writ of habeas corpus in the 1915 case Frank v. Mangum,[260] in which the Court reviewed on habeas a murder conviction in a trial in which there was substantial evidence of mob domination of the judicial process. This issue had been considered and rejected by the state appeals court. The Supreme Court indicated that, though it might initially have had jurisdiction, the trial court could have lost it if mob domination rendered the proceedings lacking in due process. The Court further held that, in order to determine if there had been a denial of due process, a habeas court should examine the totality of the process, including the appellate proceedings. Because the state appellate court had reviewed fully and rejected Frank's claim of mob domination, the Court held he had been afforded an adequate corrective process for any denial of rights, and his custody did not violate the Constitution.[261] Eight years later, in Moore v. Dempsey,[262] a case involving another conviction in a trial in which the court was alleged to have been influenced by a mob and in which the state appellate court had heard and rejected Moore's contentions, the Court directed that the federal district judge himself determine the merits of the petitioner's allegations.

In later cases, the Court abandoned its emphasis upon want of jurisdiction and held that the writ was available to consider constitutional claims as well as questions of jurisdiction.[263] The landmark case was Brown v. Allen,[264] in which the Court laid down several principles of statutory construction of the habeas statute. First, all federal constitutional questions raised by state prisoners are cognizable in federal habeas. Second, a federal court is not bound by state court judgments on federal questions, even though the state courts may have fully and fairly considered the issues. Third, a federal habeas court may inquire into issues of fact as well as of law, although the federal court may defer to the state court if the prisoner received an adequate hearing. Fourth, new evidentiary hearings must be held when there are unusual circumstances, when there is a "vital flaw" in the state proceedings, or when the state court record is incomplete or otherwise inadequate.

The Supreme Court authorized almost plenary federal habeas review of state court convictions in its famous "1963 trilogy."[265] First, in Townsend v. Sain, the Court dealt with the established principle that a federal habeas court is empowered, where a prisoner alleges facts which if proved would entitle him to relief, to relitigate facts, to receive evidence and try the facts anew, and sought to lay down broad guidelines as to when district courts must hold a hearing and find facts.[266] The Court stated: "Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding."[267] To "particularize" this general test, the Court further held that an evidentiary hearing must take place when (1) the state hearing did not resolve the merits of the factual dispute; (2) the record as a whole does not fairly support the state factual determination; (3) the state court's fact finding procedure did not afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state hearing; or (6) the state trier of fact did not appear to afford the habeas applicant a full and fair fact hearing.[268]

Second, Sanders v. United States[269] dealt with two interrelated questions: how to address successive petitions for the writ, when the second or subsequent application presented grounds previously asserted or not previously raised. Emphasizing that "[c]onventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged,"[270] the Court established generous standards for considering successive claims. As to previously asserted grounds, the Court held that courts may give controlling weight to a prior denial of relief if (1) the court had previously found against the applicant on the applicant's ground for relief, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by revisiting the determination,[271] so that the habeas court might but was not obligated to deny relief without considering the claim on the merits.[272] With respect to grounds not previously asserted, a federal court considering a successive petition could refuse to hear the new claim if it decided the petitioner had deliberately not raised it in the prior proceeding; if not, the Court noted, "[n]o matter how many prior applications for federal collateral relief a prisoner has made," the court must consider the merits of the new claim.[273]

Third, in Fay v. Noia,[274] the Court considered the issue of state defaults--that is, the effect on habeas when a defendant in a state criminal trial has failed to raise, in accordance with state procedure, a claim that he subsequently wants to raise on habeas. If, for example, a defendant fails to object to the admission of certain evidence on federal constitutional grounds in accordance with state procedure and within state time constraints, the state courts may therefore simply refuse to address the merits of the claim, and the state's "independent and adequate state ground" bars direct federal review of the claim.[275] Whether a similar result was required in habeas proceedings divided the Court in Brown v. Allen,[276] in which the majority held that a prisoner, whose appeal a state court had refused to hear because his papers had been filed a day late, could not be heard on habeas because of his state procedural default. The Court reached a different result in Fay v. Noia, holding that the adequate and independent state ground doctrine limited the Court's appellate review, but not its habeas review. A federal court has power to consider any claim that has been procedurally defaulted in state courts.[277] Still, the Court recognized that the states had legitimate interests that were served by their procedural rules, and that it was important that state courts have the opportunity to afford a claimant relief to which he might be entitled. Thus, a federal court had discretion to deny a habeas petitioner relief if it found that he had deliberately bypassed state procedure and intentionally waived his right to pursue his state remedy.[278]

Liberalization of the writ thus made it possible for convicted persons who had fully litigated their claims at state trials and on appeal, who had lacked the opportunity to have their claims reviewed due to procedural default, or who had been heard at least once on federal habeas, to have the chance to present their grounds for relief to a federal habeas judge. In addition to opportunities to relitigate the facts and the law relating to their convictions, prisoners could also take advantage of new constitutional decisions that were retroactive. The filings in federal courts increased year by year, but the numbers of prisoners who in fact obtained either release or retrial remained quite small. However, expansion of the writ generated opposition from state judges and state law enforcement officials and stimulated many efforts in Congress to enact restrictive habeas amendments.[279] The efforts were unsuccessful and, following changes in the composition of the Supreme Court, the Court adopted a more limited view of when habeas relief should be available.

In the 1977 case Wainwright v. Sykes, then-Justice William Rehnquist emphasized that the Court has significant discretion whether to award habeas relief.[280] After reviewing the case law on the 1867 statute, Justice Rehnquist remarked that the history "illustrates this Court's historic willingness to overturn or modify its earlier views of the scope of the writ, even where the statutory language authorizing judicial action has remained unchanged."[281] From early on, the Court has emphasized the equitable nature of the habeas remedy and the Judiciary's responsibility to guide the exercise of that remedy in accordance with equitable principles; thus, time and again, the Court has underscored that the federal courts have plenary power under the statute to implement it to the fullest while the Court's decisions may deny them discretion to exercise the power.[282]

Supreme Court cases since the 1970s have made several changes to the law related to habeas corpus relief. These cases generally reflect a departure from the 1963 trilogy and a narrowing view of when federal courts should undertake habeas review of state law criminal convictions.

First, the Court in search and seizure cases has returned to the standard of Frank v. Mangum, holding that where the state courts afford a criminal defendant the opportunity for a full and adequate hearing on his Fourth Amendment claim, his only avenue of relief in the federal courts is to petition the Supreme Court for review and that he cannot raise those claims again in a habeas petition.[283] Grounded as it is in the Court's dissatisfaction with the exclusionary rule, the case has not been extended to other constitutional grounds,[284] but the rationale of the opinion suggests the likelihood of reaching other exclusion questions.[285]

Second, the Court has formulated a "new rule" exception to habeas cognizance. That is, subject to two exceptions,[286] a case decided after a petitioner's conviction and sentence became final may not be the predicate for federal habeas relief if the case announces or applies a "new rule."[287] A decision announces a new rule "if the result was not dictated by precedent existing at the time the defendant's conviction became final."[288] Explaining this the court noted that if a rule "was susceptible to debate among reasonable minds," it could not have been dictated by precedent, and therefore it must be classified as a "new rule."[289]

Third, the Court has largely maintained the standards of Townsend v. Sain, as embodied in somewhat modified form in statute, with respect to when federal judges must conduct an evidentiary hearing. However, the Court has overturned one Townsend factor, not expressly set out in the statute, in order to bring the case law into line with other decisions. Townsend had held that a hearing was required if the material facts were not adequately developed at the state-court hearing. If the defendant had failed to develop the material facts in the state court, however, the Court held that, unless he had "deliberately bypass[ed]" that procedural outlet, he was still entitled to the hearing.[290] In Keeney v. Tamayo-Reyes, the Court overruled that point and substituted a much stricter "cause-and-prejudice" standard.[291]

Fourth, the Court has significantly stiffened the standards governing when a federal habeas court should entertain a second or successive petition filed by a state prisoner--a question at issue in Sanders v. United States.[292] A successive petition may be dismissed if the same ground was determined adversely to petitioner previously, the prior determination was on the merits, and "the ends of justice" would not be served by reconsideration. It is with the latter element that the Court has become more restrictive. A plurality in Kuhlmann v. Wilson[293] argued that the "ends of justice" standard would be met only if a petitioner supplemented her constitutional claim with a colorable showing of factual innocence. While the Court has not expressly adopted this standard, a later capital case utilized it, holding that a petitioner sentenced to death could escape the bar on successive petitions by demonstrating "actual innocence" of the death penalty by showing by clear and convincing evidence that no reasonable juror would have found the prisoner eligible for the death penalty under applicable state law.[294]

Even if the subsequent petition alleges new and different grounds, a habeas court may dismiss the petition if the prisoner's failure to assert those grounds in the prior, or first, petition constitutes "an abuse of the writ."[295] Following the 1963 trilogy and especially Sanders, the federal courts had generally followed a rule excusing the failure to raise claims in earlier petitions unless the failure was a result of "inexcusable neglect" or of deliberate relinquishment. In McClesky v. Zant,[296] the Court construed the "abuse of the writ" language to require a showing of both "cause and prejudice" before a petitioner may allege in a second or later petition a ground or grounds not alleged in the first. In other words, to avoid subsequent dismissal, a petitioner must allege in his first application all the grounds he may have, unless he can show cause, some external impediment, for his failure and some actual prejudice from the error alleged. If he cannot show cause and prejudice, the petitioner may be heard only if she shows that a "fundamental miscarriage of justice" will occur, which means she must make a "colorable showing of factual innocence."[297]

Fifth, the Court abandoned the rules of Fay v. Noia, although it was not until 1991 that it expressly overruled the case.[298] Fay raised the question of when a petitioner may present a claim in federal habeas proceedings that was not properly raised during state proceedings. The answer in Fay was that the federal court always had power to review the claim but that it had discretion to deny relief to a habeas claimant if it found that the prisoner had intentionally waived his right to pursue his state remedy through a "deliberate bypass" of state procedure.

That is no longer the law. Instead the Court has now held,

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Fay was based on a conception of federal/state relations that undervalued the importance of state procedural rules.Coleman v. Thompson, 501 U.S. 722, 750 (1991). The standard has been developed in a long line of cases. Davis v. United States, 411 U.S. 233 (1973) (under federal rules); Francis v. Henderson, 425 U.S. 536 (1976); Engle v. Isaac, 456 U.S. 107 (1982); Murray v. Carrier, 477 U.S. 478 (1986); Harris v. Reed, 489 U.S. 255 (1989). Coleman arose because the defendant's attorney had filed his appeal in state court three days late. Wainwright v. Sykes involved the failure of defendant to object to the admission of inculpatory statements at the time of trial. Engle v. Isaac involved a failure to object at trial to jury instructions.

The "miscarriage-of-justice" element is probably limited to cases in which actual innocence or actual impairment of a guilty verdict can be shown.[299] The concept of "cause" excusing failure to observe a state rule is extremely narrow; "the existence of cause for procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule."[300] As for the "prejudice" factor, it is an undeveloped concept, but the Court's only case establishes a high barrier.[301]

The Court continues, with some modest exceptions, to construe habeas jurisdiction restrictively; Congress has also enacted legislation restricting the availability of habeas relief. In Herrera v. Collins,[302] the Court appeared to take the position that, although a showing of actual innocence is required to permit a claimant to bring a successive or abusive petition, a claim of innocence alone is not sufficient to enable a claimant to obtain review of his conviction on habeas. Petitioners are entitled in federal habeas courts to show that they are imprisoned in violation of the Constitution, not to seek to correct errors of fact. But a claim of innocence does not bear on the constitutionality of a person's conviction or detention, and the execution of a person claiming actual innocence would not, by this reasoning, violate the Constitution.[303] In a subsequent part of the opinion, however, the Court assumed for the sake of argument that "a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional," and it imposed a high standard for making this showing.[304]

In Schlup v. Delo,[305] the Court adopted the plurality opinion of Kuhlmann v. Wilson and held that, absent a sufficient showing of "cause and prejudice," a claimant filing a successive or abusive petition must, as an initial matter, make a showing of "actual innocence" so as to fall within the narrow class of cases implicating a fundamental miscarriage of justice. The Court divided, however, with respect to the showing a claimant must make. The dissenters argued for one standard, which would require that "to show 'actual innocence' one must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty."[306] The Court adopted a second standard, under which the petitioner must demonstrate that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." To meet this burden, a claimant "must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence."[307]

In the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),[308] Congress imposed tight new restrictions on successive or abusive petitions, including making the circuit courts "gate keepers" in permitting or denying the filing of such petitions, with bars to appellate review of these decisions. The Supreme Court rejected a constitutional challenge to portions of AEDPA in Felker v. Turpin.[309] One important restriction in AEDPA bars a federal habeas court from granting a writ to any person in custody under a judgment of a state court "with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."[310] The Court has made the significance of this restriction plain: Instead of assessing whether federal law was correctly applied de novo, as would be the course under direct review of a federal district court decision, the proper approach for federal habeas relief under AEDPA is the more deferential one of determining whether the Court has established clear precedent on the issue contested and, if so, whether the state's application of the precedent was reasonable, i.e., whether a fairminded jurist could find that the state acted in accord with the Court's established precedent.[311]

Supreme Court Rulings[edit | edit source]

Overview of Supreme Court Rulings[edit | edit source]

Along with the Constitution and federal statutes, rulings of the Supreme Court are a key source of the law of the United States. In the view of many judges and commentators, Supreme Court decisions do not make law, which is the province of the Legislative Branch, but instead interpret and apply the Constitution and statutes.[312] Chief Justice John Marshall famously stated in the 1803 case Marbury v. Madison, "It is emphatically the province and duty of the judicial department to say what the law is."[313] Over two centuries later, when nominated to be Chief Justice, then-Judge John Roberts likened the role of a Justice to the role of a baseball umpire who does not make the rules or play the game but instead simply applies the rules "to call balls and strikes."[314]

Nonetheless, as a practical matter, Supreme Court decisions may change the legal landscape by resolving open legal questions, striking down unconstitutional laws or government actions, or overruling prior judicial decisions. Court-created legal doctrines determine the scope and effect of those changes. For instance, the doctrine of stare decisis counsels against the Court overruling its past decisions absent special justification to depart from precedent.[315] In addition, a number of Supreme Court cases have addressed the extent to which Court decisions announcing new rules of law apply retroactively.[316]

Stare Decisis[edit | edit source]

Historical Background on Stare Decisis Doctrine[edit | edit source]

Stare decisis, Latin for "to stand by things decided,"[317] is a judicial doctrine under which a court follows the principles, rules, or standards of its prior decisions (or decisions of higher tribunals) when deciding a case with arguably similar facts.[318] The doctrine of stare decisis has "horizontal" and "vertical" aspects. A court adhering to the principle of horizontal stare decisis will follow its own prior decisions absent exceptional circumstances (e.g., the Supreme Court follows a precedent unless it has become too difficult for lower courts to apply).[319] By contrast, vertical stare decisis binds lower courts to follow strictly the decisions of higher courts within the same jurisdiction (e.g., a federal court of appeals must follow the decisions of the U.S. Supreme Court, the federal court of last resort).[320]

The doctrine of stare decisis in American jurisprudence has its roots in eighteenth-century English common law. In 1765, the English jurist William Blackstone described the doctrine of English common law precedent as establishing a strong presumption that judges, to promote stability in the law, would "abide by former precedents, where the same points come again in litigation" unless such precedents were "flatly absurd or unjust."[321] At least some of the Constitution's Framers favored judges' adherence to judicial precedent because it limited judges' discretion to interpret ambiguously worded provisions of law. For example, writing in the Federalist No. 78 during the debates over adoption of the Constitution in an essay addressing concerns about judicial power, Alexander Hamilton argued that courts should apply precedent to prevent judges from having unbounded discretion to interpret ambiguous legal texts.[322]

During Chief Justice John Marshall's tenure in the early 1800s, the newly created Supreme Court combined a strong preference for adhering to precedent with a "limited notion of error correction" when precedents had been eroded by subsequent decisions[323] or were "premised on an incomplete factual record."[324] The early Court was reluctant to overrule prior decisions when doing so would upset commercial reliance interests (e.g., precedents concerning matters of property or contract law).[325]

Stare Decisis Doctrine Generally[edit | edit source]

In the modern era, the Supreme Court has applied the doctrine of stare decisis by following the rules of its prior decisions unless there is a "special justification"--or, at least, "strong grounds"--to overrule precedent.[326] This justification must amount to more than a disagreement with a prior decision's reasoning.[327] In adopting this approach, the Court has rejected a strict view of stare decisis that would require it to adhere to its prior decisions regardless of those decisions' merits or the practical implications of retaining or discarding precedent.[328] Instead, while the Court has stated that its precedents are entitled to respect and deference,[329] the Court considers the principle of stare decisis to be a discretionary "principle of policy" to be weighed and balanced along with the Court's views about a prior decision's merits, along with several pragmatic considerations, when determining whether to retain precedent in interpreting the Constitution[330] or deciding whether to hear a case.[331] Notably, the Court may avoid having to decide whether to overrule precedent if it can distinguish the law or facts of a prior decision from the case before it, or limit the prior decision's holding so it is inapplicable to the instant case.[332]

The Supreme Court has established special rules for applying stare decisis in constitutional cases. During the twentieth century,[333] the Court adopted a weaker form of stare decisis when deciding cases that implicated a prior constitutional interpretation, rather than a previous interpretation of a federal statute.[334] The Court has sought to justify this approach on the grounds that Congress may amend federal laws to address what it deems to be erroneous judicial statutory interpretations, whereas amending the Constitution to overturn a Supreme Court precedent is much more difficult.[335] In fact, in the history of the United States, only five Supreme Court precedents have been overturned through constitutional amendment.[336] Despite the Court's assertion that it applies a weaker form of stare decisis in constitutional cases, the Court still requires a "special justification" or at least "strong grounds" for overruling constitutional precedents.[337]

Stare Decisis Factors[edit | edit source]

There are several factors the Supreme Court weighs when determining whether to reaffirm or overrule a prior decision interpreting the Constitution.[338] First, the Supreme Court may consider the quality of the decision's reasoning.[339] Another factor that the Supreme Court has considered when determining whether to overrule a precedent is whether a rule or standard that the prior case establishes for determining the constitutionality of a government action is too difficult for lower federal courts or other interpreters to apply and is thus "unworkable."[340] A third factor the Supreme Court may consider is whether the precedent departs from the Court's other decisions on similar constitutional questions, either because the precedent's reasoning has been eroded by later decisions,[341] or because the precedent is a recent outlier when compared to other decisions.[342]

The Supreme Court has also indicated that changes in how the Justices and society understand a decision's underlying facts may undermine a precedent's authoritativeness, leading the Court to overrule it.[343] Finally, the Supreme Court may consider whether it should retain a precedent, even if flawed, because overruling the decision would result in hardship to individuals, companies, or organizations;[344] society as a whole;[345] or Legislative,[346] Executive,[347] or Judicial Branch officers,[348] who relied on the decision's guidance as to which actions and practices comport with the Constitution.[349]

It is difficult to predict when the Supreme Court will overrule precedent because the Court has not provided an exhaustive list of the factors it uses to determine whether a decision should be overruled, or explained how it weighs them. Although much about how the Supreme Court views precedent remains unclear, the Court's factors for determining whether to retain or overrule precedent provides the Justices with significant discretion.[350] If the Court is unable to distinguish a precedent from the case before it, the Justices generally attempt to strike a delicate balance between maintaining a stable jurisprudence on which parties can rely,[351] while preserving sufficient flexibility to correct errors.[352]

Retroactivity of Supreme Court Decisions[edit | edit source]

Overview of Retroactivity of Supreme Court Decisions[edit | edit source]

Under English common law, from which much of the American judicial system is derived, judicial decisions applied retroactively. The Supreme Court has explained that the common law approach was motivated by the belief that "the duty of the court was not to 'pronounce a new law, but to maintain and expound the old one.'"[353] Applying judicial decisions retroactively can create practical difficulties, however: regulated parties must rely on the law as they understand it in making decisions and shaping their conduct, but court decisions may change the legal landscape by resolving open legal questions, striking down unconstitutional laws or government actions, or overruling prior judicial decisions. Early American cases generally followed the common law approach and held that Supreme Court decisions applied retroactively.[354] By contrast, starting in the 1960s, the Court has at times limited the retroactive application of judicial decisions announcing new rules of law in light of regulated entities' reliance on the prior rule.[355]

The Court's retroactivity jurisprudence distinguishes between criminal and civil cases. The following essays discuss the extent to which the Court has applied its decisions retroactively in criminal[356] and civil[357] litigation.

Retroactivity of Criminal Decisions[edit | edit source]

The Supreme Court's retroactivity jurisprudence distinguishes between criminal and civil cases.[358] On the criminal side, there may be further distinctions based on whether a criminal defendant has allegedly engaged in criminal conduct but has not yet been tried, has been convicted at trial and is pursuing a direct appeal, or has exhausted all direct appeals but can still seek collateral relief via a petition for a writ of habeas corpus. The general rule prior to 1965 was that the Court's constitutional decisions involving criminal law applied retroactively, subject to limited exceptions.[359] The Court changed its approach in the 1965 case Linkletter v. Walker, in which it held that, with respect to new constitutional interpretations involving criminal rights, "the Constitution neither prohibits nor requires retrospective effect."[360]

In Linkletter and a case from the following year, the Court held that its decisions applied retroactively to all cases in which judgments of conviction were not yet final.[361] Later, however, the Court adopted a balancing process that resulted in different degrees of retroactivity in different cases.[362] Generally, in cases where the Court declared a rule that was "a clear break with the past," it denied retroactivity to all defendants, sometimes with the exception of the challenger before the Court.[363] By contrast, in certain cases where a new rule was intended to overcome an impairment of the truth-finding function of a criminal trial[364] or cases where the Court found that a constitutional doctrine barred the conviction or punishment of someone,[365] the Court granted its decisions full retroactivity, even for habeas claimants.

The Court's retroactivity jurisprudence later distinguished between criminal cases pending on direct review and cases pending on collateral review. For cases on direct review, the Court held, "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past."[366] A plurality of the Court first endorsed a new standard for collateral review in Teague v. Lane,[367] and a majority of the Court adopted it in Penry v. Lynaugh.[368] In contrast to cases on direct appeal, for collateral review in federal courts of state court criminal convictions, the Court held that it generally will not give retroactive effect to "new rules" of constitutional interpretation--that is, rules "not 'dictated by precedent existing at the time the defendant's conviction became final.'"[369] The Court held that a new rule may apply retroactively in a collateral proceeding "only if (1) the rule is substantive or (2) the rule is a 'watershed rul[e] of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding."[370] As the Teague plurality explained, the Court will apply a new rule in a collateral proceeding only if it places certain kinds of conduct "beyond the power of the criminal law-making authority to prescribe" or constitutes a "new procedure[ ] without which the likelihood of an accurate conviction is seriously diminished."[371]

Since Teague, the Court has consistently held that new substantive constitutional rules apply retroactively. The Court has described a substantive rule as one that alters the range of conduct that the law punishes, or that prohibits "a certain category of punishment for a class of defendants because of their status or offense."[372] Thus, the Court has held that the first Teague exception is constitutionally based, as substantive rules set forth categorical guarantees that place certain laws and punishments beyond a state's power, making "the resulting conviction or sentence . . . by definition . . . unlawful."[373] In Montgomery v. Louisiana, the Court extended the holding of Teague beyond the context of federal habeas review, holding that when a new substantive rule of constitutional law controls the outcome of a case, state collateral review courts must give retroactive effect to that rule in the same manner as federal courts engaging in habeas review.[374]

In contrast, the Court has never invoked the second Teague exception for "watershed" procedural rules to hold that a new rule of criminal procedure must apply retroactively. The Court has explained that procedural rules simply regulate the manner of determining the defendant's guilt, so if a defendant does not receive the benefit of a new procedural rule, the underlying conviction or sentence may "still be accurate" and the "defendant's continued confinement may still be lawful" under the Constitution.[375] The court has explained that, under the second Teague exception, it is not enough "to say that a new rule is aimed at improving the accuracy of a trial. . . . A rule that qualifies under this exception must not only improve accuracy, but also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding."[376] In the 2021 case Edwards v. Vannoy, the Court noted that the Teague Court itself had stated it was "unlikely" that new watershed rules would emerge and, "in the 32 years since Teague, . . . the Court has never found that any new procedural rule actually satisfies that purported exception."[377] The Court thus concluded, "New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund."[378]

Retroactivity of Civil Decisions[edit | edit source]

As in criminal cases,[379] a civil case announcing a new legal rule might in theory apply retroactively in all instances, might apply purely prospectively, or might apply with "selective prospectivity" such that the prevailing party in the case obtains the retroactive benefit of a new rule but no one else does. In some civil cases, the Court has declined to apply new rules retroactively, sometimes even with respect to the prevailing party in the case.[380] In Chevron Oil Co. v. Huson, the Court held that the question of retroactivity was to be determined by balancing the equities, considering whether a decision announced a new principle of law, whether retroactive application would advance or hinder the purpose of the rule in question, and whether retroactive application would cause injustice or hardship that could be avoided through purely prospective application.[381]

In two cases from the 1990s, the Court revealed itself to be deeply divided on whether judicial decisions should, or must, apply retroactively. First, in American Trucking Assn's, Inc. v. Smith, the Court considered whether to give retroactive effect to a prior case holding unconstitutional the state's application of a highway tax.[382] The Court held that the decision did not apply retroactively. A four-Justice plurality applied the Chevron Oil test to reach that conclusion. Justice Antonin Scalia concurred in the judgment but disagreed with the plurality's reasoning.[383] The following year, in James B. Beam Distilling Co. v. Georgia, the Court considered whether a company could claim a tax refund under an earlier ruling holding unconstitutional the imposition of certain taxes upon its products.[384] A fractured Court held that the company could seek a refund.[385]

In the 1993 case Harper v. Virginia Dep't of Taxation, a bare majority of the Court departed from the Chevron Oil balancing test and announced a new rule to determine the retroactive effect of civil cases.[386] The Court held: "When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule."[387]

Congressional Power to Establish Article III Courts[edit | edit source]

Overview of Establishment of Article III Courts[edit | edit source]

The Constitution established one federal court: the U.S. Supreme Court.[388] In lieu of mandating the creation other adjudicative bodies through the nation's founding document, the Framers vested the federal judicial power in the Supreme Court and "such inferior Courts as the Congress may from time to time ordain and establish,"[389] and authorized Congress, in its discretion, to "constitute Tribunals inferior to the [S]upreme Court."[390] In the years following the ratification of the Constitution, Congress has regularly exercised its power to create different federal tribunals that adjudicate a variety of legal disputes.

As authorized by the Constitution, Congress has established federal district and appellate courts and structured the Supreme Court. Congress has also periodically created courts under Article III to exercise specialized jurisdiction over specific categories of cases.[391] All of these courts, sometimes called "Article III courts" or "constitutional courts," share three key attributes.[392] First, they exercise the "judicial power of the United States" to resolve "cases" and "controversies" falling within the constitutional grant of federal court jurisdiction.[393] Second, they are staffed by judges who hold their offices "during good Behaviour,"[394] which the Supreme Court has interpreted to guarantee life tenure "subject only to removal by impeachment."[395] Third, Article III judges' compensation cannot be "diminished during their Continuance in Office."[396]

The following essays discuss Congress's power to establish and abolish[397] Article III courts, including the lower courts[398] and courts of special jurisdiction,[399] and Congress's power to structure the Supreme Court.[400] Other essays explore Congress's authority to establish non-Article III courts[401] and Congress's authority to regulate the existing federal courts.[402]

Historical Background on Establishment of Article III Courts[edit | edit source]

Before the Founding, each state had its own system of courts, while the Articles of Confederation did not provide for an independent Federal Judiciary.[403] At the Constitutional Convention, the delegates agreed early on to depart from existing practice and establish an independent federal Judicial Branch including a Supreme Court.[404] The Framers generally accepted that state courts would play a significant role in interpreting and applying federal law.[405] But, in light of concerns about whether state courts would apply federal law correctly, uniformly, and without bias,[406] the Framers provided for a federal Supreme Court with the power to review state judicial decisions involving issues of federal statutory or constitutional law.[407]

However, the Framers debated whether the Constitution should also provide for the existence of lower federal courts.[408] James Madison's proposal for the new government, known as the Virginia 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."[409] In the Committee of the Whole, the proposal to establish a national Judiciary was adopted unanimously.[410] A clause providing that the Judicial Branch would "consist of One supreme tribunal, and of one or more inferior tribunals" was initially agreed to, but later reconsidered.[411] Critics of the provision argued that state courts could adequately adjudicate all necessary matters in the first instance, while appellate review the supreme tribunal would protect national interests and assure uniformity, and the provision for inferior tribunals was ultimately stricken out.[412]

Madison and James Wilson then moved to authorize Congress to "appoint inferior tribunals."[413] That proposal, sometimes called the Madisonian Compromise,[414] carried the implication that Congress could, in its discretion, either designate the state courts to hear federal cases or create federal courts.[415] Over the course of the Convention, the phrasing of the provision evolved into its present form, which vests federal judicial power in the "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."[416] Beyond that provision, the Constitution imposes few specific requirements related to the organization of the federal Judiciary.[417]

The first Congress exercised its discretion to create lower federal courts promptly in the Judiciary Act of 1789, the first legislation related to the Federal Judiciary.[418] Since that time, the Federal Judiciary has always consisted of one Supreme Court and multiple inferior federal courts, though Congress has periodically enacted legislation to change the size of the Supreme Court and the size and structure of the lower courts.[419]

Supreme Court and Congress[edit | edit source]

The Constitution provides for a Judicial Branch including "one supreme Court."[420] It also appears to assume that the Supreme Court will include a Chief Justice, stipulating that "the Chief Justice shall preside" over any Presidential impeachment trial in the Senate.[421] However, the Constitution is silent on other matters such as the size and composition of the Supreme Court, the time and place for sitting, and the Court's internal organization, leaving those questions to Congress.

Congress first enacted legislation to structure the Supreme Court in the Judiciary Act of 1789.[422] Under the 1789 act, the Court comprised one Chief Justice and five Associate Justices.[423] Congress enacted legislation to change the size of the Court multiple times during the nineteenth century. In 1801, Congress reduced the size of the Court to five Justices. The 1801 statute did not eliminate an occupied seat on the Court; instead, it provided that the change would take effect "after the next vacancy."[424] Congress repealed the 1801 law before any vacancy occurred, leaving the size of the Court at six Justices.[425]

In the early years of the Republic, Supreme Court Justices were required to "ride circuit," spending part of their time hearing Supreme Court cases in the capital and part of each year traveling to hear cases in the lower federal circuit courts.[426] For a time during the 1800s, the number of Supreme Court Justices tracked the number of judicial circuits, facilitating the division of circuit-riding duties.[427] At its largest, during the Civil War, the Court had ten Justices, with the addition of the tenth seat on the Court coinciding with the establishment of the Tenth Circuit.[428] In 1866, Congress reduced the size of the Court to seven Justices, a change widely viewed as one of the Reconstruction Congress's restrictions on President Andrew Johnson.[429] In 1869, under a new presidential administration, Congress expanded the Court to include nine Justices.[430] The 1869 legislation was the last time Congress changed the size of the Supreme Court.

A notable unsuccessful attempt to enlarge the Court occurred in 1937, when President Franklin Delano Roosevelt's Administration proposed court expansion legislation that many regarded as an effort to make the Court more favorable to President Roosevelt's New Deal policies.[431] Congress declined to act on the proposal, with the Senate Judiciary Committee expressing concerns that it impermissibly infringed on the principle of judicial independence enshrined in Article III of the Constitution.[432] Proposals related to Supreme Court expansion also emerged following the death of Justice Ruth Bader Ginsburg and the confirmation of Justice Amy Coney Barrett in the weeks leading up to the 2020 presidential election.[433] While no provision of the Constitution expressly prohibits legislative changes to the size of the Supreme Court, and Congress has changed the size of the Court multiple times in the past, some commentators debated whether the proposals were inconsistent with constitutional norms. The proposals were not enacted, and the Supreme Court has had no occasion to consider their constitutionality.

Proposals have been made at various times to organize the Court into sections or divisions. No authoritative judicial analysis of those proposals is available, but Chief Justice Charles Evans Hughes, in a letter to Senator Burton 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."[434] Other proposals would alter the size of the Court while also changing the Court's structure or composition, for example by seeking to impose partisan balance on the Court.[435] As with the foregoing proposals, the Supreme Court has not considered the constitutionality of these proposals.

In addition to setting the size of the Supreme Court, Congress also determines the time and place of the Court's sessions. Congress once exercised that power 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 convene for fourteen months.[436] Congress also has significant authority to determine what cases the Court has jurisdiction to hear. The Constitution grants the Supreme Court original jurisdiction over the relatively narrow categories of "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,"[437] and the Court has held that its jurisdiction over such cases flows directly from the Constitution.[438] In "all the other Cases" subject to federal jurisdiction, Article III grants the Court "appellate Jurisdiction . . . with such Exceptions, and under such Regulations as the Congress shall make."[439] Supreme Court decisions establish that the Exceptions Clause grants Congress broad power to regulate the Court's appellate jurisdiction.[440]

Establishment of Inferior Federal Courts[edit | edit source]

By vesting judicial power in "such inferior Courts as the Congress may from time to time ordain and establish," the Framers allowed Congress to decide whether to establish lower federal courts.[441] Because Congress has the authority to decide whether the lower federal courts should exist, the legislature is also understood to enjoy broad power to structure the lower courts, make procedural rules for them, and regulate their jurisdiction.[442]

From the beginning, Congress has answered the question of whether there should be inferior federal courts in the affirmative. The first Congress exercised its discretion to create lower federal courts in the Judiciary Act of 1789, the first legislation related to the Federal Judiciary.[443] The 1789 Act created thirteen judicial districts, each of which had one district judge.[444] Single judge, trial-level district courts were to hold four sessions per year in each district. The Act further divided the country into three judicial circuits. It established "circuit courts," which were three-judge panels comprised of one district judge and two Supreme Court Justices. One noteworthy feature of the new Judiciary was that Supreme Court Justices were required to "ride circuit" and travel to the districts within their assigned circuits to hear cases--a burdensome requirement, given the transportation technology of the eighteenth and nineteenth centuries, particularly for Justices who were old or unhealthy or were assigned to outlying circuits.[445]

As the Nation grew, the Federal Judiciary also expanded, with each new state receiving a judicial district.[446] Congress reorganized the Federal Judiciary into six judicial circuits in 1801,[447] and thereafter periodically added new circuits to encompass new states.[448] In 1869, Congress enacted legislation creating circuit court judgeships.[449] The new circuit court judges presided over cases within their circuits, limiting the need for Supreme Court Justices to ride circuit. Then, in 1891, Congress created intermediate appellate courts, known as the United States Courts of Appeals, abolishing the circuit courts and removing any requirement the Supreme Court Justices ride circuit.[450] Since then, the federal judicial system has consisted of trial-level district courts with original jurisdiction over most federal cases, intermediate appellate courts, and the Supreme Court.

Congressional Power to Abolish Federal Courts[edit | edit source]

The Constitution provides that the judicial power shall be vested, at least in part, in "one supreme Court."[451] Thus, although Congress possesses substantial authority to structure the Supreme Court,[452] Congress cannot abolish the high court.

With respect to the lower federal courts, the constitutional authorization for Congress to "from time to time ordain and establish" inferior courts may imply that Congress can alter the system it establishes, including by eliminating exiting federal courts.[453] Moreover, having left to Congress the decision whether to establish lower federal courts,[454] it would be anomalous for the Constitution to provide that, once a court was established, Congress could never eliminate it. Historical practice suggests that Congress may abolish lower federal courts, though the Constitution may limit its ability to unseat current federal judges in doing so.

The Constitution provides that federal judges "shall hold their Offices during good Behaviour" and shall not have their compensation decreased while in office.[455] The Supreme Court has interpreted the Good Behavior Clause to grant Article III judges life tenure, unless they resign voluntarily or are impeached.[456] Thus, if Congress elects to eliminate an existing Article III court, it may raise the question of what should happen to the judges on that court.[457]

The first instance of Congress eliminating lower federal courts did not provide a clear answer to that question. The Judiciary Act of February 13, 1801, passed in the closing weeks of John Adams's presidency, made major structural changes to the federal courts.[458] Among other things, the act reorganized the existing three judicial circuits into six circuits and established six circuit courts consisting of three circuit judges each. President Adams appointed judges to many of the newly created seats, and those so-called "Midnight Judges" were confirmed by the Senate. However, in 1802, following a change in control of both the Executive and Legislative Branches, Congress repealed the Judiciary Act of 1801.[459] No provision was made for the displaced judges, apparently under the theory that if there were no courts there could be no judges to sit on them.[460]

Congress enacted legislation 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 convene for fourteen months.[461] Once the Court reconvened, it rejected a challenge to the repeal in the 1803 case Stuart v. Laird.[462] That case involved a judgment of the U.S. court for the fourth circuit in the eastern district of Virginia, which was created by the 1801 Act and then abolished by the 1802 Act. A challenger argued that the judgment was void because the court that had issued it no longer existed. The Supreme Court disagreed, holding that Congress has "constitutional authority to establish from time to time such inferior tribunals as they may think proper; and to transfer a cause from one such tribunal to another," and that the present case involved "nothing more than the removal of the suit" from the defunct court to a new one.[463] The Stuart Court did not directly address the issue of the displaced judges.[464]

On subsequent occasions when Congress eliminated Article III courts, the legislation provided for judges from the abolished courts to continue to serve on other Article III courts. In 1891, Congress enacted legislation creating new intermediate appellate courts and eliminating the then-existing federal circuit courts.[465] The 1891 Act authorized sitting circuit judges, who had previously heard cases on the circuit courts, to hear cases on the new appellate courts.[466] Congress again exercised its power to abolish a federal court in 1913, eliminating the short-lived Commerce Court.[467] The 1913 legislation provided for redistribution of the Commerce Court judges among the federal appeals courts.[468] In 1982, Congress enacted legislation abolishing the Article III Court of Claims and U.S. Court of Customs and Patent Appeals, instead establishing the Article I Court of Federal Claims and the Article III U.S. Court of Appeals for the Federal Circuit.[469] The statute provided for judges from the eliminated courts to serve instead on the Federal Circuit.[470]

Courts of Specialized Jurisdiction and Congress[edit | edit source]

Pursuant to its power to "ordain and establish" inferior federal courts, Congress has periodically created courts under Article III to exercise specialized jurisdiction over limited categories of cases. Those tribunals are like other Article III courts in that they exercise "the judicial power of the United States," and only that power.[471] In addition, judges on such courts must be appointed by the President and confirmed by the Senate, must hold office during good behavior subject to removal only by impeachment, and may not have their compensation diminished during their continuance in office.[472] While judges on specialized courts must enjoy life tenure on the federal bench during good behavior, like all Article III judges, judges holding lifetime appointments to the U.S. district courts or courts of appeals may serve for limited terms on courts of specialized jurisdiction.[473]

Several Article III courts of specialized jurisdiction are no longer in operation, either because they were established for a limited time or because they were deemed not to have fulfilled their purposes. An example of the latter was the Commerce Court created by the Mann-Elkins Act of 1910,[474] which was given exclusive jurisdiction to enforce certain orders of the Interstate Commerce Commission.[475] Another court of specialized jurisdiction was the Emergency Court of Appeals established by the Emergency Price Control Act of January 30, 1942.[476] The Emergency Court of Appeals was established during World War II and was designed to operate temporarily to adjudicate matters related to wage and price controls. Composed of selected sitting judges of the United States district courts and circuit courts of appeal, the court was vested with the powers of a district court and granted "exclusive jurisdiction to set aside such regulation, order, or price schedule, in whole or in part, to dismiss the complaint, or to remand the proceeding."[477] Congress created another specialized court through the Ethics in Government Act.[478] That court, a "Special Division" of the U.S. Court of Appeals for the District of Columbia, was charged with appointing an independent counsel to investigate and prosecute charges of illegality in the Executive Branch, upon the request of the Attorney General. It also had certain supervisory powers over the independent counsel.[479]

Perhaps the most prominent modern example of a specialized Article III court is the U.S. Court of Appeals for the Federal Circuit, established in 1982.[480] In many respects, the Federal Circuit resembles the geographic circuit courts of appeals; however, rather than hearing appeals from district courts in a certain area of the country, it has exclusive jurisdiction to hear appeals from the United States Court of Federal Claims, the Federal Merit System Protection Board, the Court of International Trade, the Patent Office in patent and trademark cases, and in various contract and tort cases. One of those bodies, the Court of International Trade, is also an Article III specialty court.[481] The Judicial Panel on Multidistrict Litigation, staffed by federal judges from other courts, is another Article III court of specialized jurisdiction authorized to transfer related civil actions pending in different judicial districts to a single district for trial.[482]

To facilitate the gathering of foreign intelligence information through electronic surveillance, search and seizure and other means, Congress authorized a specialized court in the Foreign Intelligence Surveillance Act of 1978.[483] Known as the FISA Court, this tribunal is composed of seven regular federal judges appointed by the Chief Justice for limited terms and receives applications from the United States and to issue warrants for intelligence activities. Another specialized court, the Alien Terrorist Removal Court, was established to review ex parte applications from the Department of Justice to order removal of certain aliens from the United States based on classified information.[484]

Congressional Power to Establish Non-Article III Courts[edit | edit source]

Overview of Congressional Power to Establish Non-Article III Courts[edit | edit source]

Article III of the Constitution provides that "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."[485] A literal interpretation of that language might require that every case that falls within the "judicial Power of the United States" must be adjudicated, if at all, in Article III courts staffed by judges with constitutional protections.[486] Notwithstanding the foregoing text, however, Congress has assigned the authority to adjudicate a large swath of cases that would seemingly fall within the federal judicial power to non-Article III tribunals--forums with judicial officers who do not enjoy Article III protections. Those tribunals are often called "Article I courts" or "legislative courts," because they are created by Congress pursuant to its general legislative powers. They include specialized stand-alone courts, administrative agencies, and magistrate judges who serve under Article III judges.

Congress has periodically created Article I courts since the early years of the Republic.[487] Over the years, the Supreme Court has recognized certain limits on which matters may be heard by Article I courts instead of Article III courts. The case law in this area can be difficult to parse,[488] but generally identifies four key circumstances in which Congress may authorize non-Article III courts to hear cases: (1) District of Columbia and territorial courts,[489] (2) military courts,[490] (3) courts hearing cases involving "public rights," which often arise between the government and private parties,[491] and (4) adjuncts to Article III courts.[492] Additionally, in some instances, non-Article III courts can hear certain matters based on the consent of the litigants.[493] The following essays first discuss Congress's authority to structure non-Article III courts and the Supreme Court's power to review such courts' decisions.[494] They then survey Supreme Court case law considering the different types of cases that may proceed in Article I courts.

Congressional Power to Structure Legislative Courts[edit | edit source]

The issue of what matters Congress can entrust to Article I courts may raise important constitutional questions. The Supreme Court first distinguished between constitutional courts and legislative courts in its 1828 decision in American Ins. Co. v. Canter.[495] Justice Byron White later read Canter as raising the "simple" proposition that "[c]onstitutional courts exercise the judicial power described in Art. III of the Constitution; legislative courts do not and cannot."[496] A two-fold difficulty attended that proposition, however. First, the territorial court in Canter had issued a decision in admiralty, a subject specifically included within the grant of federal judicial power in Article III, raising the question of how a non-Article III court could receive and exercise that power.[497] Second, if territorial courts could not exercise Article III power, how could their decisions be subject to appellate review in the Supreme Court, or in any Article III court, which could exercise only Article III judicial power? Subsequent Supreme Court cases have clarified that Congress may in some cases allow non-Article III tribunals to hear matters that would fall within the scope of the federal judicial power, subject to appellate review by Article III courts.[498]

While Article I courts' jurisdiction may raise vexing legal questions, in other ways Congress enjoys ample authority to structure those courts. First, in creating legislative courts, Congress is not limited by the provisions of Article III requiring that federal judges hold their offices during good behavior and prohibiting Congress from reducing their compensation.[499] Congress may limit tenure on an Article I tribunal to a term of years, as it has done in acts creating magistrate judgeships and the Tax Court.[500] It may also subject the judges of legislative courts to removal by the President[501] or reduce judges' salaries during their terms.[502]

In addition, Congress can vest in Article I courts nonjudicial functions of a legislative or advisory nature, meaning those courts may make rules or issue non-binding decisions.[503] And, while Congress cannot disturb final judgment of Article III courts, it can deprive legislative court judgments of finality.[504] Thus, in Gordon v. United States, the Court did not object to the power of the Secretary of the Treasury and Congress to revise or suspend the early judgments of the Court of Claims.[505] Likewise, in United States v. Ferreira, the Court sustained an act conferring on the Florida territorial court the non-judicial power to examine claims arising under the treaty with Spain and report its findings to the Secretary of the Treasury for subsequent action.[506]

Supreme Court Review of Legislative Court Decisions[edit | edit source]

In American Ins. Co. v. Canter, the Supreme Court suggested that constitutional courts exercise the judicial power described in Article III of the Constitution, while legislative courts do not and cannot.[507] That proposition might be understood to mean that the judgments of legislative courts could never be reviewed by the Supreme Court or another Article III court.[508] However, the Court tacitly rejected that view in De Groot v. United States, taking jurisdiction to review a final judgment of the Court of Claims.[509]

Since the decision in De Groot, the authority of the Court to exercise appellate jurisdiction over legislative courts has turned not upon the nature or status of such courts but rather upon the nature of the proceeding before the lower court and the finality of its judgment. The Supreme Court has declined to review the administrative proceedings of legislative courts or entertain appeals from the advisory or interlocutory decrees of such a body.[510] But, in proceedings before a legislative court that are judicial in nature, subject to final judgment, and involve the performance of judicial functions and therefore the exercise of judicial power, the Court has accepted appellate jurisdiction.[511]

District of Columbia and Territorial Courts[edit | edit source]

Article IV of the Constitution empowers Congress to "make all needful Rules and Regulations respecting the territory or other Property belonging to the United States."[512] Congress has periodically invoked that authority to establish courts in U.S. territories. The Supreme Court's first opportunity to address the use of territorial courts came in the 1828 case Florida in American Insurance Co. v. Canter.[513] In Canter, the Court assessed the constitutionality of courts established in the territory of Florida. Challengers to the territorial court's jurisdiction argued that it could not properly hear cases arising under admiralty law, which instead must be heard in Article III courts.[514] Chief Justice John Marshall, writing for the Court, disagreed, explaining that territorial courts "are not constitutional courts, in which the judicial power conferred by the constitution on the general government, can be deposited. They are incapable of receiving it." Instead, the Florida courts were "created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States." Thus, he held, the courts' jurisdiction "is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States."[515] The Court noted that while, in the states, admiralty jurisdiction can be exercised only in courts established pursuant to Article III, the same limitation does not apply to the territorial courts, for "[i]n legislating for them Congress exercises the combined powers of the general, and of a state government."[516] Florida's territorial courts were abolished when the territory became a state. Currently, the district courts in the federal territories of Guam,[517] the Virgin Islands,[518] and the Northern Mariana Islands[519] are legislative courts.[520]

A similar constitutional authority allows Congress to establish courts in the District of Columbia. Under Article I, Congress has the authority to "exercise exclusive Legislation in all Cases whatsoever" over the District of Columbia.[521] A series of early Supreme Court decisions treated the District of Columbia courts as legislative courts upon which Congress could impose nonjudicial functions. In Butterworth v. United States ex rel. Hoe, the Court sustained an act of Congress that conferred revisory powers upon the Supreme Court of the District of Columbia in patent appeals and made its decisions binding upon the Commissioner of Patents.[522] The Court later sustained the authority of Congress to vest revisory powers in the same court over rates fixed by a public utilities commission[523] and orders of the Federal Radio Commission.[524] Those rulings were based on the assumption, express or implied, that the courts of the District were legislative courts, created by Congress pursuant to its plenary power to govern the District of Columbia. Similarly, in dictum in Ex parte Bakelite Corp., while reviewing the history and analyzing the nature of the legislative courts, the Court stated that the courts of the District were legislative courts.[525]

In the 1933 case O'Donoghue v. United States, the Court departed from its prior statements on the subject and held that the courts of the District of Columbia were constitutional courts exercising the judicial power of the United States.[526] Thus, the Court concluded, a federal law seeking to reduce judicial salaries could not apply to judges on the Supreme Court of the District of Columbia and the District of Columbia Court of Appeals. Having decided that the D.C. courts were Article III courts, the Supreme Court had to reconcile the fact that such courts performed nonjudicial functions with the rule that constitutional courts can exercise only the judicial power of the United States. The Court did so by holding that, in establishing courts for the District, Congress performs dual functions pursuant to two distinct powers: its power to constitute tribunals inferior to the Supreme Court, and its plenary and exclusive power to legislate for the District of Columbia. The Court held that Article III, Section 1, limits the latter power with respect to tenure and compensation but not with respect to vesting legislative and administrative powers in such courts. Subject to the guarantees of personal liberty in the Constitution, the Court concluded, "Congress has as much power to vest courts of the District with a variety of jurisdiction and powers as a state legislature has in conferring jurisdiction on its courts."[527]

At the time the Court decided O'Donoghue, the D.C. courts had both local jurisdiction over District matters, similar to that of state courts, and also federal jurisdiction equivalent to that of other inferior federal courts. In 1970, Congress replaced the previous D.C. court system with two sets of courts: federal courts created pursuant to Article III (the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the District of Columbia), and local courts similar to state and territorial courts, created pursuant to Article I (including the District of Columbia Court of Appeals).[528] In Palmore v. United States, a criminal defendant challenged the constitutionality of the District's Article I courts, arguing that charges under the D.C. criminal code amounted to a prosecution under federal law, and he was therefore entitled to consideration before an Article III court.[529] The Supreme Court rejected the argument, explaining that it was not necessary that every proceeding involving an act of Congress or a law made under its authority be conducted in an Article III court. State courts, after all, could hear cases involving federal law, as could territorial and military courts. Thus, "the requirements of Art. III, which are applicable where laws of national applicability and affairs of national concern are at stake, must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment."[530]

Non-Article III Military Courts[edit | edit source]

Article I grants Congress the authority "[t]o make Rules for the Government and Regulation of the land and naval forces."[531] In the 1858 case Dynes v. Hoover, the Supreme Court upheld the use of this authority to create military courts.[532] In that case, the Court observed that "Congress has the power to provide for the trial and punishment of the military and naval offences," and that power "is given without any connection between it and the 3d article of the Constitution defining the judicial power of the United States; indeed, . . . the two powers are entirely independent of each other."[533]

Although Congress has broad authority to create and implement military courts, the Supreme Court has set some substantive limits on those courts' jurisdiction. For instance, military courts cannot be used to try civilians,[534] including the spouses of military members.[535] Additionally, the Court has held that military courts have jurisdiction over members of the military only when they are still in service.[536] However, military courts are able to try non-service related crimes while the defendant is still in the service.[537] Currently, the U.S. Court of Appeals for the Armed Forces, an Article I court, sits at the apex of the military justice system.[538] Judges of that court sit for fifteen-year terms and can be removed by the President for neglect of duty, misconduct, or mental or physical disability. Another example of military courts are the military tribunals established by President George W. Bush by Executive Order shortly after the September 11, 2001, attacks.[539]

Legislative Courts Adjudicating Public Rights[edit | edit source]

The Supreme Court has held that Article I courts can adjudicate cases involving "public rights"--cases that arise between a private actor and the government. The public rights theory can be traced back to the Court's 1855 ruling in Murray's Lessee v. Hoboken Land & Improvement Co.[540] In that case, Justice Joseph Story explained that, although Congress cannot withdraw from federal courts the jurisdiction to hear suits at common law, equity, or admiralty, "there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper."[541] In essence, the Court distinguished between matters that historically had been decided by courts and matters that arose between the government and others and had been historically resolved by executive or legislative acts. Thus, under Murray's Lessee, certain matters arising between the government and others that might be susceptible to judicial determination may also be referred to Article I courts. Congress does not have sole discretion to determine what matters fall within that class. In subsequent cases, the Court has held that matters susceptible of judicial determination, but not requiring it, include claims against the United States;[542] the disposal of public lands and claims arising therefrom;[543] questions concerning membership in Indian tribes;[544] and questions arising out of the administration of the customs and internal revenue laws.[545] Courts such as consular courts and military courts martial may be justified on similar grounds.[546]

The Supreme Court has offered several rationales for why public rights cases can be handled in Article I courts. The first is based on the doctrine of sovereign immunity and postulates that, because Congress need not allow suits against the government at all, the legislature is free to attach conditions to the federal government being sued, including what type of forum the claims can be brought in.[547] The second major rationale is that, historically, these cases were conclusively determined by the Executive and Legislative Branches, "and that as a result there can be no constitutional objection to Congress's employing the less drastic expedient of committing their determination to a legislative court or an administrative agency."[548]

As a general matter, the Court has broadly defined public rights cases as those that arise "between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments."[549] At the core of the public rights doctrine are cases involving claims for benefits against the government.[550] Private rights cases, by contrast, pertain to the "liability of one individual to another under the law as defined."[551] Beyond these general definitions, the Supreme Court has not articulated the exact parameters of the public rights doctrine. As Chief Justice John Roberts has noted, "our discussion of the public rights exception . . . has not been entirely consistent, and the exception has been the subject of some debate."[552] However, a series of Supreme Court cases have attempted to draw the line between public and private rights.

In 1932, in Crowell v. Benson, the Court approved an administrative scheme for evaluating maritime employee compensation claims, subject to judicial review, although the case involved a matter of private right.[553] The scheme was permissible, the Court said, because in cases arising out of congressional statutes, an administrative tribunal could make findings of fact and render an initial decision on legal and constitutional questions, as long as there was adequate review in a constitutional court.[554] The "essential attributes" of decisions must remain in an Article III court, but so long as they do, Congress may use administrative decisionmakers in those private rights cases that arise in the context of a comprehensive federal statutory scheme.[555]

In the 1982 case Northern Pipeline Const. Co. v. Marathon Pipeline Co., the Court addressed whether Article I bankruptcy courts could adjudicate common law contract and tort claims.[556] Acknowledging that the "distinction between public and private rights has not been definitely explained" in the Court's precedents, Justice William J. Brennan, writing for a plurality of the Court, traced three historical exceptions to the literal command of Article III: territorial courts, military courts, and courts and agencies that adjudicate public rights.[557] Disposing of the first two categories as clearly inapplicable, the plurality also rejected the public rights argument as the underlying case did not arise between government and a private party, but involved a state-created claim between two private parties.[558]

In two cases following Northern Pipeline, the Court rejected a bright line test for the distinction between public and private rights. It instead focused on substance--that is, on the extent to which a particular grant of jurisdiction to an Article I court threatened judicial integrity and separation of powers principles. First, in Thomas v. Union Carbide Agricultural Products Co., the Court adopted a functional approach for determining when Congress may use non-Article III forums.[559] The statute in question created a system of binding arbitration, subject to limited judicial review, for determining the amount of compensation due to pesticide manufacturers whose data had been used by other manufacturers to register their products.[560] Justice Sandra Day O'Connor, writing for the majority, asserted that "substance rather than doctrinaire reliance on formal categories should inform application of Article III."[561] Because the arbitration scheme (1) was created by federal statute, (2) was a "pragmatic solution to the difficult problem of spreading [ ] costs," and (3) did not "preclude review of the arbitration proceeding by an Article III court," the Court found that it "did not threaten the independent role the Judiciary in our constitutional scheme."[562] Two years later, in Commodity Futures Trading Commission (CFTC) v. Schor, the Court reaffirmed Thomas's functional approach and held that the CFTC was empowered to hear common law counterclaims related to violations of the Commodities Exchange Act or CFTC regulations.[563]

In a subsequent case, Granfinanciera, S.A. v. Nordberg, the Court held that the distinction between public and private rights determined both whether a matter could be referred to a non-Article III tribunal and whether Congress could dispense with a civil jury trial.[564] Granfinanciera suggests that seemingly private causes of action between private parties will also be deemed public rights when Congress, acting for a valid legislative purpose pursuant to its Article I powers, fashions a cause of action that is analogous to a common law claim and integrates it so closely into a public regulatory scheme that it becomes a matter appropriate for agency resolution with limited involvement by the Article III Judiciary.[565]

In the 2011 case Stern v. Marshall, the Court shifted away from the functionalism of Thomas and Schor and back towards the formalism of Northern Pipeline.[566] In Stern, the issue was whether a bankruptcy court could adjudicate a common law claim for fraudulent interference with a gift. In a 5-4 decision authored by Chief Justice John Roberts, the Court held that Article III prohibited the bankruptcy court's exercise of jurisdiction because the common law claim did not fall under the public rights exception. The Court acknowledged that Thomas and Schor had declined to limit the public rights exception to actions involving the government as a party, but it concluded that the Court had continued to limit the exception to claims deriving from a "federal regulatory scheme" or in which "an expert Government agency is deemed essential to a limited regulatory objective."[567] In rejecting applying the public rights exception to the fraudulent interference counterclaim, the Court observed that the claim was not one that could be "pursued only by grace of the other branches" or could have been "determined exclusively" by the Executive or Legislative Branches.[568] Additionally, the underlying claim did not "flow from a federal regulatory scheme" and was not limited to a "particularized area of law."[569] Because the counterclaim involved the "most prototypical exercise of judicial power," adjudication of a common law cause of action not created by federal law, the Court rejected the bankruptcy courts' exercise of jurisdiction over the counterclaim as a breach of Article III.[570]

Subsequently, in Oil States Energy Services, LLC v. Greene's Energy Group, LLC, the Court noted that it has not "definitively explained" the distinction between public and private rights, and its precedents applying the public-rights doctrine have "not been entirely consistent."[571] The Court observed, however, that its "precedents have given Congress significant latitude to assign adjudication of public rights to entities other than Article III courts."[572] In Oil States, the Court addressed whether inter partes review, a type of patent validity proceeding conducted by the U.S. Patent and Trademark Office (PTO), violates Article III. The Court held that such proceedings "fall[ ] squarely within the public-rights doctrine" and therefore could constitutionally be conducted by a non-Article III tribunal.[573] In so holding, the Court described the public-rights doctrine as "cover[ing] matters 'which arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.'"[574]

Article I Adjuncts to Article III Courts[edit | edit source]

The Supreme Court has held that Congress may create non-Article III forums where "adjuncts" to Article III courts adjudicate federal questions.[575] An "adjunct" is an adjudicator--most commonly an administrative agency or a magistrate judge--that does not function as an independent court but instead acts as a subordinate to the federal courts. Adjuncts have become highly important in the modern era, handling many cases involving public benefits and assisting Article III judges with their heavy caseload.

Support for the adjunct theory can be traced to the 1932 case Crowell v. Benson.[576] Crowell involved a challenge to the Longshoreman's and Harbor Workers' Compensation Act, which required that claims for injuries sustained while working on the navigable waters of the United States be filed with the U.S. Employees' Compensation Commission.[577] That agency was to conduct fact-finding and make initial findings of law.[578] An employer appealed an award of damages by the Commission, claiming that the grant of jurisdiction to the Commission violated Article III. In upholding the act, the Supreme Court delineated the proper role of the use of adjuncts in relation to Article III courts. The Court observed that "there is no requirement that, in order to maintain the essential attributes of the judicial power, all determinations of fact in constitutional courts shall be made by judges."[579] Instead, an adjunct may make findings of fact and initial legal determinations, but questions of law must be subject to de novo review in an Article III court.[580] Questions of jurisdictional fact--that is, facts that pertain to the jurisdiction of the agency itself--and constitutional fact are also subject to a more searching review by a constitutional court.[581] In sum, Crowell instructs that for Article III courts to retain the "essential attributes of the judicial power," adjuncts must act as subordinates to the Article III courts and not as independent adjudicators.

The framework established in Crowell provided the blueprint for the modern administrative state, starting with the New Deal and expanding throughout the twentieth and twenty-first centuries.[582] Administrative agencies perform a host of functions including making policy, promulgating rules, and adjudicating questions arising under federal law.[583] Many disputes that come before federal agencies concern public rights cases, with a large share of cases concerning the right to various government entitlements. For instance, the Social Security Administration (SSA), a federal agency that administers various government benefits including old age and disability benefits, has a complex adjudication process for determining who is entitled to these benefits, including several tiers of administrative review and review by both a federal district court and a circuit court of appeal.[584] Judicial review of SSA decisions closely follows the Crowell model: while factual findings made by an administrative law judge are subject to the highly deferential "substantial evidence" standard,[585] legal determinations "receive no deference" from either the district court or court of appeals.[586] While administrative law judges do not receive constitutionally protected life tenure or salary protection, there are statutory protections regarding their appointment, tenure, and compensation.

The second major subcategory of adjuncts is federal magistrate judges. In 1968, Congress enacted the Federal Magistrates Act, seeking to "reform the first echelon of the Federal Judiciary into an effective component of a modern scheme of justice by establishing a system of U.S. magistrates."[587] Magistrate judges are not appointed and confirmed like Article III judges and do not enjoy life tenure and salary protection. Instead, they are selected by district court judges and can be removed for good cause or if the Judicial Conference "determines that the services performed by his office are no longer needed."[588] Initially, magistrate judges were assigned a somewhat circumscribed role but, over the last several decades, Congress has expanded the role of magistrate judges to include the power to decide various motions, hear evidence, and try both criminal and civil cases. With the ever-burgeoning federal docket, magistrate judges have been deemed "nothing less than indispensable" in the federal judicial process.[589]

The Supreme Court's first occasion to consider the Magistrates Act came in Wingo v. Wedding.[590] In that case, the Court addressed whether the act permitted magistrate judges to hold evidentiary hearings in habeas corpus proceedings without the defendant's consent. The Court construed the statute to avoid potential Article III problems by interpreting the term "additional duties" in the act to not include the authority of a magistrate to hold evidentiary hearings, but instead allowing the magistrate simply to propose to the district court judge whether such a hearing should be held.[591] Two years later in Mathews v. Weber, the Court was tasked with interpreting whether "additional duties" could be read to permit referral of Social Security benefit cases to magistrate judges for preliminary review of the administrative record and preparation of a recommended ruling.[592] While the Court again avoided the potential Article III issues, it echoed the adjunct theory by observing that a district judge is free to follow or wholly reject a magistrate's recommendation and that the "authority--and the responsibility--to make informed, final determination . . . remains with the judge."[593] As a statutory matter, because the district judge was still free to follow or wholly ignore the magistrate's recommendation, the Court upheld the magistrate's "preliminary-review function" as one of the "additional duties" permitted under the act.[594]

In the 1980 case United States v. Raddatz, the Court finally addressed head-on the unresolved constitutional questions surrounding the Magistrates Act.[595] In Raddatz, a defendant challenged magistrates' statutory and constitutional authority to hear motions to suppress evidence in a criminal proceeding. Under the Act, magistrate judges could "hear and determine" any pretrial matter before the court, except for certain motions including motions to suppress evidence in criminal cases.[596] For those excluded motions, the district court judge could "designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition" of the motions.[597] If either party objected to the proposed findings or recommendations, the district court judge was then required to make a "de novo determination" of the issues and could "accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate."[598] The defendant in Raddatz contended that these provisions required the district court judge to rehear the testimony on which the magistrate based his findings. The Court rejected that argument, holding that the district court need only make a de novo determination of the disputed findings and recommendations and not hold a de novo hearing.[599] With respect to the Article III challenge, the Court upheld the act, observing that the "ultimate decision" is reserved for the district court judge and that magistrates "are constantly subject to the court's control."[600]

Congress amended the Magistrates Act in 1979, further enlarging and clarifying magistrates' authority.[601] Under the new statute, upon designation by the district court judge and with consent of the parties, magistrate judges were authorized to preside over and enter final judgments in civil trials, including jury trials and misdemeanor criminal prosecutions.[602]

In Gomez v. United States, the Court addressed whether overseeing the selection of jurors in a felony criminal prosecution was among the "additional duties" envisioned in the Act.[603] The defendant in that case objected to the assignment of a magistrate judge both the before and after the magistrate judge selected the jury.[604] The Court agreed, and held that the Magistrates Act did not permit such an assignment. Applying the constitutional avoidance doctrine,[605] the Court focused on the statutory question of whether Congress would have intended magistrates to oversee this "critical stage of the criminal proceeding."[606] Speaking for a unanimous Court, Justice John Paul Stevens noted that, while a literal reading of the additional duties provision would allow magistrates to oversee felony trials, the "carefully defined grant of authority to conduct trials of civil matters and of minor criminal cases should be construed as an implicit withholding of the authority to preside at a felony trial."[607] Ultimately, the Court held that the "absence of a specific reference to jury selection in the statute, or, indeed, in the legislative history, persuades us that Congress did not intend the additional duties clause to embrace this function."[608]

Bankruptcy Courts as Adjuncts to Article III Courts[edit | edit source]

In 1978, Congress revised the Bankruptcy Act and created bankruptcy courts as adjuncts of the district courts.[609] The courts were composed of judges vested with practically all the judicial power of the United States; however, the judges served for fourteen-year terms, subject to removal for cause by the judicial councils of the circuits, and with salaries subject to statutory change. The bankruptcy courts were given jurisdiction over not only civil proceedings arising under the bankruptcy code, but also all other proceedings arising in or related to bankruptcy cases. Review was available in Article III courts, but decisions could be reversed only if clearly erroneous.

This broad grant of jurisdiction brought into question what kinds of cases could be heard by an Article I court. In Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., a plurality of the Supreme Court held that the conferral of jurisdiction upon Article I judges to hear state claims regarding traditional common law actions was unconstitutional.[610] In a narrow holding, a plurality of the Court sought to rationalize and limit the Court's jurisprudence on Article I courts. According to the plurality, a fundamental principle of separation of powers requires the judicial power of the United States to be exercised by courts having the attributes prescribed in Article III. Congress may not evade the constitutional order by allocating judicial power to courts whose judges lack security of tenure and compensation. Only in three narrowly circumscribed instances may judicial power be distributed outside the Article III framework: in territories and the District of Columbia; courts-martial; and the adjudication of public rights.[611] In bankruptcy litigation not involving any of these exceptions, the plurality concluded, the judicial power cases could not be assigned to the tribunals created by the Act.[612]

The lack of a majority in Northern Pipeline left unclear the degree of discretion left in Congress to restructure the bankruptcy courts and placed in question the constitutionality of other legislative efforts to establish non-Article III tribunals. Congress responded to Northern Pipeline by enacting the Bankruptcy Amendments and Federal Judgeship Act of 1984.[613] Under the Act, bankruptcy courts remained as Article I entities, and overall their powers as courts were not notably diminished. However, Congress established a division between core proceedings, which could be heard and determined by bankruptcy courts, subject to lenient review, and other proceedings, which, though initially heard and decided by bankruptcy courts, could be reviewed de novo in the district court at the behest of any party, unless the parties consented to bankruptcy court jurisdiction. A safety valve was included, permitting the district court to withdraw any proceeding from the bankruptcy court on cause shown.[614]

In Granfinanciera, S.A. v. Nordberg, the Court considered whether a jury trial was required under the Seventh Amendment for a claim by a Chapter 11 bankruptcy trustee to void an allegedly fraudulent money transfer.[615] The Court found that the cause of action was founded on state law and, although denominated a core proceeding by Congress, was actually a private right.[616] Similarly, the Court in Stern v. Marshall held that a counterclaim of tortious interference with a gift, although made during a bankruptcy proceeding and statutorily deemed a core proceeding, was a state common law claim that did not fall under any of the public rights exceptions.[617] By contrast, in Executive Benefits Ins. Agency v. Arkison, the Court held that when the Constitution does not permit a bankruptcy court to enter final judgment on a bankruptcy-related claim, both the statute and the Constitution are satisfied if the bankruptcy court treats the matter as a non-core claim and issues proposed findings of fact and conclusions of law to be reviewed de novo by the district court.[618] And, as the Court later held in Wellness International v. Sharif, a bankruptcy court may adjudicate with finality a so-called Stern claim--that is, a core claim that does not fall within the public rights exception--if the parties have provided knowing and voluntary consent.[619]

Consent to Article I Court Jurisdiction[edit | edit source]

Congress has from time to time enacted legislation allowing non-Article III courts to adjudicate matters that would ordinarily proceed in Article III court based on the parties' consent.[620] The Supreme Court has upheld some such arrangements, but at times has invalidated them on separation of powers grounds.

The Supreme Court has identified two distinct rationales for the constitutional limitations on the creation of non-Article III tribunals. First, the Court has noted that Article III provides a personal right to individual litigants, preserving "their interest in an impartial and independent federal adjudication of claims."[621] Second, the Court has held that Article III safeguards structural principles, preserving the "role of the Judicial Branch" in our system of government by preventing Congress from transferring jurisdiction to non-Article III tribunals en-masse.[622] The Court has explained that, while individual rights can be waived, "notions of consent and waiver cannot be dispositive" with respect to Article III's structural protections because those "limitations serve institutional interests that the parties cannot be expected to protect"--separation of powers principles protecting the Judicial Branch from encroachment by the political branches.[623] When examining the structural component of Article III protections in consent cases, the Court has assessed the constitutionality of different judicial schemes using ad hoc balancing tests that rely on seemingly disparate principles, leaving open questions about when Congress can provide an alternative forum to an Article III court in which consenting parties can resolve their disputes.[624]

For example, in Commodities Futures Trading Commission (CFTC) v. Schor, the Supreme Court, in assessing the structural component of Article III's constitutional protections, rested its decision primarily on the breadth of matters adjudicated by the non-Article III tribunal at issue in that case.[625] Specifically, the Court upheld a law that allowed the CFTC to adjudicate common law claims that were "incidental to" and "completely dependent upon adjudication by the Commission of [public rights] claims created by federal law" and arose "out of the same transaction or occurrence" as the federal law claim.[626] For the Court, allowing an administrative agency to adjudicate such a "narrow class of common law claims" amounted to only a de minimis intrusion on the Judicial Branch.[627] Nonetheless, in noting the narrow nature of its holding, the Schor Court emphasized that Congress could not "create[ ] a phalanx of non-Article III tribunals equipped to handle the entire business of the Article III courts without any Article III supervision or control and without evidence of valid and specific legislative necessities," even if parties consented to adjudicate before such a forum.[628]

Five years later, in Peretz v. United States, the Court approached the issue of Article III's structural protections in a slightly different manner.[629] In Peretz, a criminal defendant who had failed to demand the presence of an Article III judge during the selection of his jury argued that having a magistrate judge oversee voir dire proceedings implicated the structural protections provided by Article III.[630] As in Schor, the Court rejected the idea that a judicial scheme granting a legislative court responsibilities traditionally exercised by a constitutional court ran counter to the institutional interests preserved by Article III.[631] But, while the Court in Schor focused on the narrow nature of the claims adjudicated by administrative agency in that case, the Court in Peretz focused on the degree of control exercised by a constitutional court over the non-Article III court's work. The Court held that, "[b]ecause 'the entire [jury selection] process takes place under the district court's total control and jurisdiction,' there is no danger that use of the magistrate involves a 'congressional attempt'" to undermine the power of constitutional courts.[632]

In Stern v, Marshall, the Supreme Court held that the Bankruptcy Court lacked authority to enter judgment on a common law tort counterclaim.[633] The Court held that the parties had consented to having the Bankruptcy Court hear the counterclaim, but while such consent satisfied the requirements of the relevant statute, it could not overcome applicable constitutional limits.[634] In the wake of Stern, questions arose about the constitutionality of allowing consenting parties to proceed before a non-Article III court. In the 2015 case Wellness International v. Sharif, the Court held that Article III permits bankruptcy courts to adjudicate with finality Stern claims--claims designated for final adjudication in the bankruptcy court as a statutory matter, but prohibited from proceeding in that way as a constitutional matter--if the parties have provided knowing and voluntary consent.[635] In so holding, the Court used the ad hoc balancing test from Schor and Peretz to conclude that allowing bankruptcy courts to decide Stern claims by consent would not "impermissibly threaten the institutional integrity of the Judicial Branch."[636] Following Wellness International, questions remain about the exact scope of Congress's power to authorize non-Article III adjudication by litigant consent, but it appears that legislation that allows a relatively narrow class of claims to be adjudicated before a non-Article III tribunal with the parties' consent and provides Article III courts with some oversight of the legislative court's activities is likely to pass constitutional muster.

Federal Judiciary Protections[edit | edit source]

Overview of Federal Judiciary Protections[edit | edit source]

The Framers of the Constitution established the Federal Judiciary as an independent branch of government, alongside the Executive and Legislative Branches. While the Framers generally sought to structure the Constitution to ensure the separation of powers, they expressed particular concern about potential interference with the Judiciary by the political branches. James Wilson remarked at the Constitutional Convention that judges "would be in a bad situation if made to depend on every gust of faction which might prevail" in the political branches.[637] Likewise, in the Federalist Papers, Alexander Hamilton famously opined that, of the three branches, the Judiciary "will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them."[638]

Two key mechanisms that the Framers adopted to protect the Judiciary from political influence are the Good Behavior Clause and the Compensation Clause. The Good Behavior Clause provides that Supreme Court Justices and other federal judges "shall hold their Offices during good Behaviour."[639] The Supreme Court has interpreted the Clause to grant federal judges life tenure, unless they resign voluntarily or are impeached.[640] The Compensation Clause provides that federal judges shall be compensated for their service, and that such compensation "shall not be diminished during their Continuance in Office."[641] Together, the two provisions prevent the political branches from seeking to influence the Judiciary by retaliating against disfavored court decisions by removing the judges responsible or docking their pay.[642] The following essays briefly outline the history of the Good Behavior Clause and the Compensation Clause, then survey the Supreme Court's decisions applying the two provisions.[643]

Good Behavior[edit | edit source]

Overview of Good Behavior Clause[edit | edit source]

Article III, Section 1 provides that federal judges hold their offices "during good behavior."[644] This standard, borrowed from English law, ensures that federal judges hold their seats for life, rather than set terms or at the will of a superior.[645] The applicability of the Good Behavior Clause to the removal of federal judges has been the subject of debate; in particular, whether the phrase elucidates a distinct standard for removal apart from the "high crimes and misdemeanors" standard applicable to the impeachment of other federal officers.[646] While this question has not been definitively resolved, historical practice indicates an understanding that the Good Behavior Clause protects federal judges from removal for congressional disagreement with legal or political opinions.[647]

Historical Background on Good Behavior Clause[edit | edit source]

Just as the phrase "high crimes and misdemeanors" for impeachments was borrowed from English practice,[648] so too was the term "good behavior" borrowed from English law concerning the duration of a judge's tenure.[649] Prior to 1701, the tenure of judges in England was established by the Crown, which often reserved the right to remove them.[650] In 1701 Parliament passed legislation barring the Crown from removing judges, providing that they served "Quamdiu se bene gesserint,"[651] and reserved for itself the authority to remove judges.[652] The standard of good behavior and insulation from removal by the Crown was mirrored in the constitutions of many American colonies[653] and was advanced by various proposals at the Constitutional Convention.[654]

The Framers considered the provision that federal judges maintain their seats during good behavior an "excellent barrier" against the risk of a legislature seeking to expand its power.[655] Rather than serving at the pleasure of the President or Congress, the protection of judges' seats and salary for life ensured an independent Judiciary that would not be unduly pressured by the political branches.[656] Insulating federal judges from removal was crucial because the Judiciary lacks the "sword" of the Executive power and the "purse" of the Legislature.[657] Rather, the judicial power consists of the reasoning and "judgements" of its officers.[658] As the Federal Judiciary is in some ways the least powerful branch of the government, ensuring judges' "permanency in office" was deemed essential to establishing an independent Judiciary.[659]

Further, this independence armed the Judiciary with the ability to defend and preserve a "limited constitution against legislative encroachments" against the rights of citizens.[660] In the Federalist Papers, Alexander Hamilton argued that federal judges must "guard the constitution and the rights of individuals" against the possibility of laws that oppress political minorities.[661] Likewise, federal judges must ensure that the law is applied justly and evenly to all citizens. If judges could be removed at will or were appointed for specified periods, judges would be tempted to consider popular opinion in their rulings to the detriment of the Constitution and the rights of political minorities.[662]

Good Behavior Clause Doctrine[edit | edit source]

The meaning of the Good Behavior Clause has been the subject of long-standing debate. Some have argued that the phrase denotes an alternative standard of removal for federal judges beyond "high crimes and misdemeanors" that normally may give rise to the impeachment of federal officers.[663] Others have rejected this notion,[664] reading the "good behavior" phrase simply to make clear that federal judges retain their office for life unless they are removed via a proper constitutional mechanism. However, while one might find some support in early twentieth-century practice for the idea that the Clause constitutes an additional ground for removal of a federal judge,[665] the modern view of Congress appears to be that "good behavior" does not establish an independent standard for impeachable conduct.[666] In other words, the Good Behavior Clause simply indicates that judges are not appointed to their seats for set terms and cannot be removed at will; removing a federal judge requires impeachment and conviction for a high crime or misdemeanor.

Nevertheless, even if the Good Behavior Clause does not delineate a standard for impeachment and removal for federal judges, as a practical matter, the history of impeachments in the United States might indicate that the range of conduct meriting removal differs between judges and Executive Branch officials due to the distinct nature of each office. The Senate has never voted to remove the President or an Executive Branch official, but has done so to eight federal judges.[667] The conduct meriting impeachment and removal for federal judges has ranged from intoxication on the bench,[668] to abandoning the office and joining the Confederacy,[669] to various types of corruption. Congress has also impeached and removed federal judges for perjury and income tax evasion,[670] although it is unclear whether such behavior would necessarily be considered impeachable behavior for an Executive Branch official.[671]

Further, leaving aside whether the Good Behavior Clause establishes a separate standard for removal independent from high crimes and misdemeanors, historical conflicts between Congress and the Judiciary may inform the outer limits of what the Good Behavior Clause entails. For instance, in 1804 Jeffersonian Republicans attempted to remove Supreme Court Chief Justice Samuel Chase, who they viewed as openly partisan and biased against their party.[672] The allegations against Chief Justice Chase included that he acted in an "arbitrary, oppressive, and unjust manner" at trial, misapplied the law, and expressed partisan political views to a grand jury.[673] The attempt failed, and Congress has never removed a federal judge for disagreement with the law's application or because of difference in political views. Based on this historical practice, the good behavior standard arguably guards against the removal of a federal judge for disagreement with the law's interpretation or political disagreements.

That said, the Good Behavior Clause and the attendant clauses expressly dealing with impeachment do not insulate federal judges from criminal prosecutions.[674] For instance, Judge Harry E. Claiborne, before being impeached and removed from office as a federal judge, challenged his indictment and prosecution as unconstitutional.[675] Specifically, he argued that the Constitution's vesting of the impeachment power in Congress precludes the criminal prosecution of an Article III judge unless he is first impeached and removed from office.[676] The U.S. Court of Appeals for the Ninth Circuit rejected this argument, concluding that the Constitution's distinction between impeachment and criminal liability was meant to ensure that no individual who had been impeached and removed could claim double jeopardy as a shield against subsequent criminal prosecution.[677] Further, a criminal conviction does not "remove" an individual from office; Congress retains exclusive power to do so through the constitutional mechanism of impeachment.[678] Likewise, the Ninth Circuit rejected Claiborne's argument that it violates separation of powers for the Executive Branch to possess authority to bring criminal prosecutions against sitting Article III judges.[679] The court noted that potential defendants receive the same protections that ordinary citizens do, and criminal behavior is not part of a government official's duties.[680] Further, insulating federal judges from criminal liability would elevate them above the requirements of the very law they are entrusted with adjudicating fairly.[681]

Compensation[edit | edit source]

Historical Background on Compensation Clause[edit | edit source]

The Supreme Court has stated, "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."[682] Before the Revolutionary War, American colonists recognized the role of judicial compensation in maintaining the independence of the Judiciary. Among other things, the Declaration of Independence objected to the fact that the King had "made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries."[683]

From the beginning of the Constitutional Convention, the Framers embraced salary protection as one means of bolstering judicial independence. The first resolution on the Judiciary introduced at the Convention provided that judges would "receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution."[684] Following debate, the prohibition on judicial salary increases was removed to allow Congress to adapt judicial pay to changing circumstances, but the prohibition on decreasing judicial salaries remained.[685] Alexander Hamilton highlighted the Compensation Clause in the Federalist Papers, asserting that, "next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support," because, "[i]n the general course of human nature, a power over a man's subsistence amounts to a power over his will."[686] Chief Justice John Marshall later asserted that judges must have the independence to protect the poor and unpopular, and that the "greatest scourge" was an "ignorant, a corrupt, or a dependent Judiciary."[687]

Compensation Clause Doctrine[edit | edit source]

The Compensation Clause allows Congress to increase judicial salaries, but not to decrease them. During the Great Depression, Congress enacted appropriations legislation 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.[688] The statute avoided constitutional issues by expressly incorporating the limits of the Compensation Clause, but it sparked Supreme Court litigation to determine which federal judges were subject to the salary reduction. Ultimately, the Court held that judges of the District of Columbia courts were Article III judges who enjoyed constitutional salary protection and could not be subject to the statute.[689] On the other hand, the Court held that judges of the Court of Claims, a legislative court, could have their salaries reduced.[690]

Once a judicial salary increase has gone into effect, the Compensation Clause bars Congress from reducing or rescinding any part of the increase. However, Congress may alter a promised future increase before it becomes effective. Thus, in United States v. Will, the Court held that Congress could repeal or modify a statutorily defined formula for annual cost-of-living increases to the compensation of federal judges, but must act with respect to any particular increase before the increase takes effect.[691] To illustrate, in one of the years at issue in Will, a planned salary increase took effect on October 1, but the President signed a bill reducing the amount that same day. The Court held that the increase had gone into effect by the time the reduction was signed, rendering the reduction invalid.[692] Moreover, although the salary reductions in Will applied to various officials in all three branches of government, the Court further held that even a general, nondiscriminatory salary reduction, affecting judges but not aimed solely at them, is covered by the Compensation Clause.[693]

A separate question that has sparked Supreme Court litigation is whether the Compensation Clause limits Congress's power to increase the amount of federal income tax Article III judges pay. In Evans v. Gore, the Court invalidated the application of a 1919 income tax law to a sitting federal judge.[694] The Court extended that ruling in Miles v. Graham to exempt the salary of a judge of the Court of Claims appointed after the enactment of the relevant tax law.[695] In the 1939 case O'Malley v. Woodrough, the court disapproved of Evans and effectively overruled Miles, upholding a provision of the Revenue Act of 1932 that extended application of the income tax to salaries of judges taking office after June 6, 1932.[696] The Court regarded the tax neither as an unconstitutional diminution of the compensation of judges nor as an encroachment on the independence of the Judiciary.[697] To subject judges who take office after a stipulated date to a nondiscriminatory income tax, said the Court, "is merely to recognize that judges are also citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering."[698]

The Court formally overruled Evans in the 2001 case United States v. Hatter.[699] The Hatter Court reaffirmed the principle that judges should "share the tax burdens borne by all citizens,"[700] holding that "the potential threats to judicial independence that underlie [the Compensation Clause] cannot justify a special judicial exemption from a commonly shared tax."[701] The Court held that the Medicare tax, which was extended to all federal employees in 1982, was a non-discriminatory tax that could be applied to federal judges.[702] By contrast, the Court ruled that the 1983 extension of a Social Security tax to then-sitting judges violated the Compensation Clause, because judges were required to participate while almost all other federal employees were given a choice about participation.[703] Nor had Congress 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.[704]

  1. Art. III, Section 1 Vesting Clause.
  2. Justice Samuel Miller, On the Constitution 314 (1891).
  3. Muskrat v. United States, 219 U.S. 346, 361 (1911)
  4. Art. III, Sec. 2, Clause 2 Supreme Court Jurisdiction
  5. See Art. III, Sec. 2, Cl. 2: Supreme Court Original Jurisdiction.
  6. The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1868); Cary v. Curtis, 44 U.S. (3 How.) 236 (1845); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850); United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 33 (1812); Kline v. Burke Constr. Co., 260 U.S. 226 (1922). Some judges have expressed the opinion that Congress's authority is limited by provisions of the Constitution such as the Due Process Clause, so that a limitation on jurisdiction that denied a litigant access to any remedy might be unconstitutional. Cf. Eisentrager v. Forrestal, 174 F.2d 961, 965-966 (D.C. Cir. 1949), rev'd on other grounds sub nom, Johnson v. Eisentrager, 339 U.S. 763 (1950); Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948), cert. denied, 335 U.S. 887 (1948); Petersen v. Clark, 285 F. Supp. 700, 703 n.5 (N.D. Calif. 1968); Murray v. Vaughn, 300 F. Supp. 688, 694-695 (D.R.I. 1969). The Supreme Court has had no occasion to consider the question.
  7. For discussion of constitutional and statutory grants of federal court jurisdiction in two key areas, see Art. III, Sec. 2, Cl. 1: Overview of Federal Question Jurisdiction and Art. III, Sec. 2, Cl. 1: Overview of Diversity Jurisdiction.
  8. See, e.g., Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799) (Justice Chase). But see Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 328-331 (1816); 3 J. Story, Commentaries on the Constitution of the United States (1833) 1584-1590; Akhil Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205 (1985).
  9. 5 U.S. (1 Cr.) 137 (1803). See Art. III, Sec. 1: Historical Background on Judicial Review and Art. III, Sec. 1: Marbury v. Madison and Judicial Review.
  10. Michaelson v. United States, 266 U.S. 42 (1924).
  11. McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).
  12. Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825).
  13. Gumbel v. Pitkin, 124 U.S. 131 (1888).
  14. Ex parte Peterson, 253 U.S. 300 (1920).
  15. Ex parte Garland, 71 U.S. (4 Wall.) 333, 378 (1867).
  16. See Art. III, Sec. 1: Overview of Inherent Powers of Federal Courts.
  17. Julius Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States 60-95 (1971).
  18. Id. at 96-142.
  19. 1 Max Farrand, The Framing of the Constitution of the United States 97-98 (1913) (Gerry), 109 (King); 2 Max Farrand, The Framing of the Constitution of the United States 28 (1913) (Morris and perhaps Sherman), 73 (Wilson), 75 (Strong, but the remark is ambiguous), 76 (Martin), 78 (Mason), 79 (Gorham, but ambiguous), 80 (Rutledge), 92-93 (Madison), 248 (Pinckney), 299 (Morris), 376 (Williamson), 391 (Wilson), 428 (Rutledge), 430 (Madison), 440 (Madison), 589 (Madison); 3 Max Farrand, The Framing of the Constitution of the United States 220 (1913) (Martin). The only expressed opposition to judicial review came from Mercer with a weak seconding from Dickinson. "Mr. Mercer . . . disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable." 2 Max Farrand, The Framing of the Constitution of the United States 298 (1913). "Mr. Dickinson was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute." Id. at 299. Of course, the debates in the Convention were not available when the state ratifying conventions acted, so that the delegates could not have known these views about judicial review in order to have acted knowingly about them. Views, were, however, expressed in the ratifying conventions recognizing judicial review, some of them being uttered by Framers. 2 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 131 (1836) (Samuel Adams, Massachusetts), 196-97 (Ellsworth, Connecticut), 348, 362 (Hamilton, New York): 445-46. 478 (Wilson, Pennsylvania); 3 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 324-25, 539 , 541 (1836) (Henry, Virginia), 480 (Mason, Virginia), 532 (Madison, Virginia), 570 (Randolph, Virginia); 4 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 71 (1836) (Steele, North Carolina), 156-57 (Davie, North Carolina). In the Virginia convention, Chief Justice John Marshall observed if Congress "were to make a law not warranted by any of the powers enumerated, it would be considered by the judge as an infringement of the Constitution which they are to guard . . . They would declare it void . . . . To what quarter will you look for protection from an infringement on the constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection." 3 id. at 553-54. Both Madison and Hamilton similarly asserted the power of judicial review in their campaign for ratification. The Federalist No. 39 (James Madison); id. Nos. 78, 81 (Alexander Hamilton). The persons supporting or at least indicating they thought judicial review existed did not constitute a majority of the Framers, but the absence of controverting statements, with the exception of the Mercer-Dickinson comments, indicates at least acquiescence if not agreements by the other Framers.
  20. The Federalist No. 78 (Alexander Hamilton) ("The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.").
  21. In enacting the Judiciary Act of 1789, 1 Stat. 73, Congress chose not to vest "federal question" jurisdiction in the federal courts but to leave to the state courts the enforcement of claims under the Constitution and federal laws. In Section 25 of the Judiciary Act (1 Stat. 85), Congress provided for review by the Supreme Court of final judgments in state courts (1) "where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity;" (2) "where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of their validity;" or (3) "where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed" thereunder. Id. § 25, 1 Stat. 73, 85-86.
  22. See in particular the debate on the President's removal powers, discussed in Art. II, Sec. 2, Cl. 2: Overview of Removal of Executive Branch Officers with statements excerpted in R. Berger, Congress v. The Supreme Court 144-150 (1969). Debates on the Alien and Sedition Acts and on the power of Congress to repeal the Judiciary Act of 1801 similarly saw recognition of judicial review of acts of Congress. C. Warren, supra at 107-124.
  23. Thus, the Justices on circuit refused to administer a pension act on the grounds of its unconstitutionally, see Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792) , and Art. III, Sec. 1: Inherent Power to Issue Judgments. Chief Justice Jay and other Justices wrote that the imposition of circuit duty on Justices was unconstitutional, although they never mailed the letter in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), a feigned suit, the constitutionality of a federal law was argued before the Justices and upheld on the merits, in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), a state law was overturned, and dicta in several opinions asserted the principle. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (Justice Iredell), and several Justices on circuit, quoted in Julius Goebel, supra note here, at 589-592.
  24. 5 U.S. (1 Cr.) 137 (1803).
  25. See Art. III, Sec. 1: Marbury v. Madison and Judicial Review.
  26. See, e.g., G. Gunther, Constitutional Law 1-38 (12th ed. 1991); For expositions on the legitimacy of judicial review, see L. Hand, The Bill of Rights (1958); H. Wechsler, Principles, Politics, and Fundamental Law: Selected Essays 1-15 (1961); A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 1-33 (1962); R. Berger, Congress v. The Supreme Court (1969). For an extensive historical attack on judicial review, see 2 W. Crosskey, Politics and the Constitution in the History of the United States chs. 27-29 (1953), with which compare Hart, Book Review, 67 Harv. L. Rev. 1456 (1954). A brief review of the ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate Over Judicial Review, 1790-1961, in C. Beard, The Supreme Court and the Constitution 1-34 (1962 reissue of 1938 ed.), and bibliography at 133-149. While much of the debate focuses on judicial review of acts of Congress, the similar review of state acts has occasioned much controversy as well.
  27. 5 U.S. (1 Cr.) 137 (1803).
  28. 1 Stat. 73, 80.
  29. 5 U.S. (1 Cr.) at 173-80.
  30. Id. at 176.
  31. Id.
  32. Id. at 177.
  33. Id.
  34. Id.
  35. Id. at 178.
  36. Id. at 177-78.
  37. Id. at 178.
  38. Id. at 178 (citing Art. III, Sec. 2, Clause 1 Cases or Controversies).
  39. Id. at 179.
  40. Id. at 179-80.
  41. Article VI Supreme Law.
  42. 5 U.S. (1 Cr.) at 180.
  43. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810); Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804); Cooper v. Aaron, 358 U.S. 1 (1958).
  44. See Art. III, Sec. 1: State Court Jurisdiction to Enforce Federal Law.
  45. See, e.g., New York Times v. Sullivan, 376 U.S. 254 (1964) (U.S. Supreme Court case involving a First Amendment challenge to a state law libel claim that was originally litigated in the Alabama courts); Lawrence v. Texas, 539 U.S. 558 (2003) (challenge to a state law banning consensual sexual activity between people of the same sex before the U.S. Supreme Court on appeal from a state criminal conviction).
  46. E. Corwin, The Doctrine of Judicial Review 75-78 (1914); Nelson, Changing Conceptions of Judicial Review: The Evolution of Constitution Theory in the State, 1790-1860, 120 U. Pa. L. Rev. 1166 (1972).
  47. See, e.g., G. Gunther, Constitutional Law 1-38 (12th ed. 1991); For expositions on the legitimacy of judicial review, see L. Hand, The Bill of Rights (1958); H. Wechsler, Principles, Politics, and Fundamental Law: Selected Essays 1-15 (1961); A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 1-33 (1962); R. Berger, Congress v. The Supreme Court (1969). For an extensive historical attack on judicial review, see 2 W. Crosskey, Politics and the Constitution in the History of the United States chs. 27-29 (1953), with which compare Hart, Book Review, 67 Harv. L. Rev. 1456 (1954). A brief review of the ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate Over Judicial Review, 1790-1961, in C. Beard, The Supreme Court and the Constitution 1-34 (1962 reissue of 1938 ed.), and bibliography at 133-149. While much of the debate focuses on judicial review of acts of Congress, the similar review of state acts has occasioned much controversy as well.
  48. See, e.g., Iancu v. Brunetti, 139 S. Ct. 2294, 588 U.S. ___ (2019); Matal v. Tam, 137 S. Ct. 1744, 582 U.S. ___ (2017).
  49. 11 U.S. 32, 34 (1812).
  50. Id. See also Link v. Wabash R. Co., 370 U.S. 626, 630-631 (1962) (Inherent powers are "governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.").
  51. 19 U.S. 204, 227 (1821)
  52. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991) (collecting cases and surveying inherent powers).
  53. See Art. III, Sec. 1: Inherent Powers Over Judicial Procedure.
  54. See Art. III, Sec. 1: Inherent Powers Over Contempt and Sanctions.
  55. See Art. III, Sec. 1: Inherent Power to Issue Judgments.
  56. Hanna v. Plumer, 380 U.S. 460, 472 (1965).
  57. 23 U.S. (10 Wheat.) 1, 4 (1825).
  58. Fink v. O'Neil, 106 U.S. 272, 278, 280 (1882).
  59. 28 U.S.C. §§ 2071-2077.
  60. Id. § 2072(a).
  61. Id. § 2072(b). The Rules Enabling Act requires the Court to notify Congress of proposed amendments to procedural rules for the lower federal courts, but amendments take effect automatically unless Congress enacts legislation to reject or modify a proposed change. Id. §§ 2073, 2074. The Act also empowers the Supreme Court to create its own procedural rules, which need not be submitted to Congress before they take effect. Id. § 2071(a).
  62. United States v. Sherwood, 312 U.S. 584, 589-590 (1941); Mississippi Pub. Corp. v. Murphree, 326 U.S. 438 (1946).
  63. E.g., Sibbach v. Wilson, 312 U.S. 1, 14 (1941).
  64. Gumbel v. Pitkin, 124 U.S. 131 (1888); Covell v. Heyman, 111 U.S. 176 (1884); Buck v. Colbath, 70 U.S. (3 Wall.) 334 (1866).
  65. Eberly v. Moore, 65 U.S. (24 How.) 147 (1861); Arkadelphia Co. v. St. Louis S.W. Ry., 249 U.S. 134 (1919).
  66. See Dietz v. Bouldin, 579 U.S. ___, No. 15-458, slip op. at 4 (2016).
  67. Id. at 4-5.
  68. Id. at 4.
  69. Washington-Southern Nav. Co. v. Baltimore & P.S.B.C. Co., 263 U.S. 629, 635, 636 (1924). The Supreme Court does not prescribe how Courts of Appeals should exercise discretion vested in them. As long as a lower court keeps within the bounds of judicial discretion, its action is not reviewable. In re Burwell, 350 U.S. 521 (1956).
  70. Dietz v. Bouldin, No. 15-458, slip op. at 5-7 (acknowledging that while it is reasonable to allow a jury to reconvene after a formal discharge to correct an error and while such an exercise of authority does not conflict with a rule or statute, the exercise of the inherent power to rescind a discharge order needs to be carefully circumscribed to guarantee the existence of an impartial jury). The rule provided in Dietz extends only to civil cases, as additional constitutional concerns--namely, the attachment of the double jeopardy bar--might arise if a court were to recall a jury after discharge in a criminal case. See id. at 10.
  71. See Luce v. United States, 469 U.S. 38, 41 n.4 (1984). A motion in limine is a preliminary motion resolved by a court prior to trial and generally regards the admissibility of evidence. See Black's Law Dictionary 1171 (10th ed. 2014).
  72. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-08 (1947). This doctrine is called forum non conveniens. See Black's Law Dictionary 770 (10th ed. 2014).
  73. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).
  74. Gagnon v. United States, 193 U.S. 451, 456-59 (1904). The power to amend records conveys no power to create a record or recreate one of which no evidence exists. Id.
  75. See Dietz, slip op. at 12.
  76. McDonald v. Pless, 238 U.S. 264, 266 (1915); Griffin v. Thompson, 43 U.S. (2 How.) 244, 257 (1844). See Thomas v. Arn, 474 U.S. 140 (1985) (appeals court rule conditioning appeal on having filed with the district court timely objections to a master's report). In Rea v. United States, 350 U.S. 214, 218 (1956), the Court, citing McNabb v. United States, 318 U.S. 332 (1943), asserted that this supervisory power extends to policing the requirements of the Court's rules with respect to the law enforcement practices of federal agents. But compare United States v. Payner, 447 U.S. 727 (1980).
  77. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991) (collecting cases and surveying inherent powers). For further discussion of the contempt and sanctions powers, see Art. III, Sec. 1: Inherent Powers Over Contempt and Sanctions.
  78. But see United States v. United Mine Workers, 330 U.S. 258 (1947). A civil contempt has been traditionally viewed as the refusal of a person in a civil case to obey a mandatory order. It is incomplete in nature, may be purged by obedience to the court order, and does not involve a sentence for a definite period. The classic criminal contempt is one where the act of contempt has been completed, punishment is imposed to vindicate the authority of the court, and a person cannot by subsequent action purge himself of such contempt. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-443 (1911); Ex parte Grossman, 267 U.S. 87 (1925). See also Bessette v. W.B. Conkey Co., 194 U.S. 324, 327-328 (1904).
  79. International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821 (1994); Shillitani v. United States, 384 U.S. 364 (1966).
  80. 267 U.S. 87, 119-120 (1925). In an analogous case, the Court was emphatic in a dictum that Congress cannot require a jury trial where the contemnor has failed to perform a positive act for the relief of private parties. Michaelson v. United States ex rel. Chicago, S.P., M. & Ry., 266 U.S. 42, 65-66 (1924). But see Bloom v. Illinois, 391 U.S. 194, 202 (1968).
  81. 564 U.S. 431 (2011); cf. Hicks v. Feiock, 485 U.S. 624 (1988) (holding that a state may place the burden of proving inability to pay child support on a defendant faced with civil contempt).
  82. See United States v. United Mine Workers, 330 U.S. 258, 299 (1947).
  83. Many of the limitations placed on the inferior federal courts have been issued on the basis of the Supreme Court's supervisory power over them rather than upon a constitutional foundation, while, of course, the limitations imposed on state courts necessarily are on constitutional dimensions. Indeed, it is often the case that a limitation that is applied to an inferior federal court as a superintending measure is then transformed into a constitutional limitation and applied to state courts. Compare Cheff v. Schnackenberg, 384 U.S. 373 (1966), with Bloom v. Illinois, 391 U.S. 194 (1968). The limitations then bind both federal and state courts alike. Therefore, in this section, Supreme Court constitutional limitations on state court contempt powers are cited without restriction for equal application to federal courts.
  84. Fox, The King v. Almon, 24 L.Q. Rev. 184, 194-195 (1908).
  85. Fox, The Summary Power to Punish Contempt, 25 L.Q. Rev. 238, 252 (1909).
  86. 1 Stat. 83, § 17 (1789).
  87. 18 U.S.C. § 401. Judge James H. Peck of the Federal District Court of Missouri was impeached for abuse of the contempt power, but was acquitted by the Senate. For a summary of the Peck impeachment and the background of the Act of 1831, see Felix Frankfurter & James Landis, Power of Congress Over Procedure in Criminal Contempts in 'Inferior' Federal Courts: A Study in Separation of Powers, 37 Harv. L. Rev. 1010, 1024-1028 (1924).
  88. Id. at 511.
  89. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911). See also In re Debs, 158 U.S. 564, 595 (1895).
  90. 266 U.S. 42 (1924).
  91. Id. at 66.
  92. Id. at 65-66.
  93. Young v. United States ex rel. Vuitton, 481 U.S. 787, 793-801 (1987). However, the Court, invoking its supervisory power, instructed the lower federal courts first to request the United States Attorney to prosecute a criminal contempt and only if refused should they appoint a private lawyer. Id. at 801-802. Still using its supervisory power, the Court held that the district court had erred in appointing counsel for a party that was the beneficiary of the court order; disinterested counsel had to be appointed. Id. at 802-08. Justice Antonin Scalia contended that the power to prosecute is not comprehended within Article III judicial power and that federal judges had no power, inherent or otherwise, to initiate a prosecution for contempt or to appoint counsel to pursue it. Id. at 815. See also United States v. Providence Journal Co., 485 U.S. 693 (1988), which involved the appointment of a disinterested private attorney. The Supreme Court dismissed the writ of certiorari after granting it, however, holding that only the Solicitor General representing the United States could bring the petition to the Court. See 28 U.S.C. § 518.
  94. 493 U.S. 265 (1990).
  95. Id. at 280.
  96. United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 34 (1812) ("Certain implied powers must necessarily result to our courts of justice, from the nature of their institution. . . . To fine for contempt, imprison for contumacy, enforce the observance of order, &c., are powers which cannot be dispensed with in a court, because they are necessary to the exercise of all others: and so far our courts, no doubt, possess powers not immediately derived from statute.").
  97. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227 (1821); Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1874); Link v. Wabash R.R., 370 U.S. 626, 630-631 (1962); Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991); id. at 58 (Scalia, J., dissenting); id. at 60, 62-67 (Kennedy, J., dissenting).
  98. Chambers, 501 U.S. at 47.
  99. Id. at 46-51.
  100. Id. at 35.
  101. Id. at 49-51. Nonetheless, the Court has clarified that because a court's order directing a sanctioned litigant to reimburse the legal fees and costs incurred by the wronged party as a result of bad faith conduct is compensatory, rather than punitive, in nature, a fee award may go no further than to redress the wronged party for losses sustained. See Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. ___, No. 15-1406, slip op. at 5-6 (2017) (holding that a court, "when using its inherent sanctioning authority," must "establish a causal link--between the litigant's misbehavior and legal fees paid by the opposing party").
  102. Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980).
  103. Link v. Wabash R.R., 370 U.S. 626 (1962).
  104. Act of March 23, 1792, 1 Stat. 243.
  105. 1 American State Papers: Miscellaneous Documents, Legislative and Executive, of the Congress of the United States 49, 51, 52 (1832). President Washington transmitted the remonstrances to Congress. 1 Messages and Papers of the Presidents 123, 133 (J. Richardson comp., 1897). The objections are also appended to the order of the Court in Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 (1792). Note that some of the Justices declared their willingness to perform under the Act as commissioners rather than as judges. Cf. United States v. Ferreira, 54 U.S. (13 How.) 40, 52-53 (1852). The assumption by judges that they could act in some positions as individuals while remaining judges, an assumption many times acted upon, was approved in Mistretta v. United States, 488 U.S. 361, 397-408 (1989).
  106. Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944); Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580 (1946)); see also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 234 (1995).
  107. Plaut, 514 U.S. 211; see also Art. III, Sec. 1: Reopening Final Judicial Decisions.
  108. Frankfurter & Landis, Power of Congress Over Procedure in Criminal Contempts in 'Inferior' Federal Courts--A Study in Separation of Powers, 37 Harv. L. Rev. 1010, 1016-1023 (1924).
  109. 1 Stat. 73, 81. "Section 13 was a provision unique to the Court, granting the power of prohibition as to district courts in admiralty and maritime cases." Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4005, p. 98 (1996). See also R. Fallon, et al., Hart and Wechsler's The Federal Courts and the Federal System (6th ed. 2009), Ch. III, p. 268. In Marbury v. Madison, the Supreme Court limited the authority of Congress to empower the Court to issue writs, striking down Section 13. See 5 U.S. (1 Cr.) 137 (1803) (holding that Section 13 was an attempt by Congress to expand the Court's original jurisdiction beyond its constitutional limits and was therefore void).
  110. 1 Stat. 73, 81-82. See also United States v. Morgan, 346 U.S. 502 (1954) (holding that the All Writs section of the Judicial Code, 28 U.S.C. § 1651(a), gives federal courts the power to employ the ancient writ of coram nobis).
  111. See, e.g., Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34 (1985) (holding that a federal district court lacked authority to order U.S. marshals to transport state prisoners, such authority not being granted by the relevant statutes). While the Court has held that statutory authorization to issue writs is necessary, it has also held that such authorizing legislation is not effective if it exceeds constitutional limits on the federal courts' jurisdiction. See Marbury, 5 U.S. (1 Cr.) 137 (1803).
  112. 495 U.S. 33, 55 (1990) (citing Griffin v. Prince Edward County School Bd., 377 U.S. 218, 233-34 (1964)) (An order that local officials "exercise the power that is theirs" to levy taxes in order to open and operate a desegregated school system is "within the court's power if required to assure . . . petitioners that their constitutional rights will no longer be denied them.").
  113. Id. at 50-52.
  114. See, e.g., 1 The Records of the Federal Convention of 1787, at 44 (Max Farrand ed., 1911) (discussion of how salary protection for judges could support judicial independence); id. at 429 (statement of Mr. Wilson in discussion of the Good Behavior Clause that "Judges would be in a bad situation if made to depend on every gust of faction which might prevail in the two branches of our Govt."); cf. The Federalist No. 78 (Alexander Hamilton).
  115. See Art. III, Sec. 1: Imposing Non-Adjudicatory Functions on Courts.
  116. See Art. III, Sec. 2, Cl. 2: Exceptions Clause and Congressional Control over Appellate Jurisdiction.
  117. See Art. III, Sec. 1: Reopening Final Judicial Decisions.
  118. See Art. III, Sec. 1: Overview of Establishment of Article III Courts.
  119. See Art. III, Sec. 1: Overview of Inherent Powers of Federal Courts
  120. See, e.g., Art. III, Sec. 2, Cl. 1: Overview of Federal Question Jurisdiction; Art. III, Sec. 2, Cl. 2: Overview of Supreme Court Jurisdiction; Art. III, Sec. 2, Cl. 2: Supreme Court Original Jurisdiction; Art. III, Sec. 2, Cl. 2: Exceptions Clause and Congressional Control over Appellate Jurisdiction.
  121. See Art. III, Sec. 1: Overview of Good Behavior Clause.
  122. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995). Congress also cannot legislate to "prescribe a rule for the decision of a cause in a particular way." United States v. Klein, 80 U.S. 128 (1871); see also Bank Markazi v. Peterson, 578 U.S. 212, 231 (2016) (Congress may not enact legislation "that directs, in 'Smith v. Jones,' 'Smith wins.'"). However, Congress possesses substantial authority to amend substantive laws or alter federal court jurisdiction in ways that affect pending litigation. See, e.g., Robertson v. Seattle Audubon Soc., 503 U.S. 429, 441 (1992); Patchak v. Zinke, 138 S. Ct. 897 (2018); see also Art. III, Sec. 2, Cl. 2: Exceptions Clause and Congressional Control over Appellate Jurisdiction.
  123. 2 U.S. (2 Dall.) 409 (1792).
  124. Id. at 410, footnote.
  125. Id. (noting objections that the statute "subjects the decisions of these courts . . . first to the consideration and suspension of the secretary at war, and then to the revision of the legislature").
  126. Id.
  127. See United States v. Ferreira, 54 U.S. (13 How.) 40 (1852); Gordon v. United States, 69 U.S. (2 Wall.) 561 (1865); In re Sanborn, 148 U.S. 222 (1893); cf. McGrath v. Kritensen, 340 U.S. 162, 167-168 (1950).
  128. 333 U.S. 103 (1948).
  129. Id. at 111.
  130. Id. at 113.
  131. 514 U.S. 211 (1995).
  132. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 364 (1991); James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544 (1991).
  133. See Federal Deposit Insurance Improvement Act of 1991, § 476, P.L. 102-242, 105. Stat. 2236.
  134. 514 U.S. at 240.
  135. Id. at 225.
  136. Id. at 226.
  137. Id. at 227.
  138. Id. at 227-28.
  139. Id. at 222 (citing State of Pennsylvania v. The Wheeling & Belmont Bridge Co., 59 U.S. 421 (1855)).
  140. 530 U.S. 327 (2000); see also 18 U.S.C. § 3626(e)(2).
  141. 530 U.S. at 342.
  142. Id. at 344.
  143. Mistretta v. United States, 488 U.S. 361, 383 (1989).
  144. 488 U.S. 361.
  145. The Sentencing Reform Act was enacted as chapter II of the Comprehensive Crime Control Act, Title II of P.L. 98-473, 98 Stat. 1976 (1984).
  146. 28 U.S.C. § 991.
  147. 488 U.S. at 370. The challenger also asserted that Congress delegated excessive authority to the Commission to structure the Guidelines. See id. For additional discussion of Mistretta, see Art. I, Sec. 1: Functional and Formalist Approaches to Separation of Powers; Art. I, Sec. 1: Criminal Statutes and Nondelegation Doctrine.
  148. Id. at 384-85.
  149. Id. at 393.
  150. Id. at 393.
  151. Id. at 395.
  152. Id. at 395-96 (quoting Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977)).
  153. Id. at 404, 408.
  154. Article VI Supreme Law.
  155. See, e.g., Martin v. Hunter's Lessee, 14 U.S. 304, 342 (1816).
  156. See Art. III, Sec. 1: Doctrine on Federal and State Courts.
  157. See Art. III, Sec. 1: Historical Background on Relationship Between Federal and State Courts.
  158. See id.; see also Art. III, Sec. 1: State Court Jurisdiction to Enforce Federal Law; Art. III, Sec. 1: Habeas Review.
  159. See Art. III, Sec. 1: Exhaustion Doctrine and State Law Remedies; but see Art. III, Sec. 1: Habeas Review (exhaustion of state judicial remedies is required before filing a federal habeas corpus petition).
  160. See Art. III, Sec. 1: Federal Non-Interference with State Jurisdiction and Abstention.
  161. See Art. III, Sec. 1: State Court Jurisdiction to Enforce Federal Law.
  162. See Art. III, Sec. 1: State Court Jurisdiction to Enforce Federal Law.
  163. See Art. III, Sec. 1: State Court Jurisdiction to Enforce Federal Law.
  164. Article IX of the Articles of Confederation authorized Congress to "appoint[ ] courts for the trial of piracies and felonies committed on the high seas; and establish[ ] courts; for receiving and determining finally appeals in all cases of captures." The same Article further provided that Congress would be "the last resort on appeal, in all disputes and differences now subsisting, or that hereafter may arise between two or more states" and could appoint commissioners or judges to constitute a court to resolve such disputes.
  165. See, e.g., 1 The Records of the Federal Convention of 1787, at 243 (Max Farrand ed., 1911) [hereinafter, Convention Records]. For example, the Convention considered proposals that would require federal questions to be decided first in state court, but with a right of appeal to federal courts. See id. at 243, 424. Likewise, during the debate over ratification, Alexander Hamilton wrote that "the State courts will RETAIN the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes. . . . [Thus,] the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited." The Federalist No. 83 (Alexander Hamilton).
  166. James Madison expressed concern at the Convention about "improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge," and "disliked the election of the Judges by the Legislature or any numerous body" due to "the danger of intrigue and partiality" and the fact that legislators lacked the "requisite qualifications" to select suitable judges. Convention Records, supra note here, at 120, 124. See also The Federalist No. 81 (Alexander Hamilton) ("State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws.").
  167. E.g., Convention Records, supra note here, at 124 (statement of Madison expressing concern about "the local prejudices of an undirected jury"); The Federalist No. 80 (Alexander Hamilton) ("[T]he most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes.").
  168. As Hamilton wrote, "The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed." The Federalist No. 80 (Alexander Hamilton).
  169. Article III Judicial Branch; 1 Stat. 73, 85; Martin v. Hunter's Lessee, 14 U.S. 304 (1816). Cf. Oliver Wendell Holmes, Collected Legal Papers 295-296 (1921) ("I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as the laws of the several States.").
  170. See, e.g., Convention Records, supra note here, at 124-25.
  171. For example, John Rutledge argued that "State Tribunals might and ought to be left in all cases to decide in the first instance" and that lower federal courts would be "an unnecessary encroachment on the jurisdiction of the States, and creating unnecessary obstacles to their adoption of the new system." Id. at 124.
  172. See, e.g., id. at 124-125 (statements of Madison, Wilson, & Dickinson); see also 25 The Papers of Alexander Hamilton 486 (Harold C. Syrett et al. ed 1977) ("The right of appeal is by no means equal to the right of applying, in the first instance, to a Tribunal agreeable to the suitor.").
  173. Madison observed at the Convention that without federal trial courts, appeals from state court "would be multiplied to a most oppressive degree." Convention Records, supra note here, at 124. Even if a federal appeals court ordered a new trial, he asked, how could that provide an effective remedy when the case would be retried "under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury? To remand the cause for a new trial would answer no purpose." Id. In a similar vein, another delegate argued that "the establishment of inferior tribunals [would] cost infinitely less than the appeals that would be prevented by them." Id. at 125; but see id. (statement of Sherman focused on "the supposed expensiveness of having a new set of Courts, when the existing State Courts would answer the same purpose").
  174. See, e.g., id. at 125 (statement of Dickinson).
  175. Art. III, Section 1 Vesting Clause; cf. Convention Records, supra note here, at 125 ("Mr. Wilson & Mr. Madison then moved . . . to add . . . the words following 'that the National Legislature be empowered to institute inferior tribunals'. They observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them.").
  176. 1 Stat. 73.
  177. Art. III, Sec. 2, Clause 1 Cases or Controversies.
  178. Id.
  179. See, e.g., Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 807 (1986) ("Although the constitutional meaning of 'arising under' may extend to all cases in which a federal question is 'an ingredient' of the action, . . . we have long construed the statutory grant of federal-question jurisdiction as conferring a more limited power.") (internal citation omitted).
  180. 1 Stat. 73, 77.
  181. Id.
  182. For example, Congress amended the current federal question statute, 28 U.S.C § 1331, in 1976 and 1980 to eliminate the jurisdictional amount requirement. Pub. L. No. 94-574, 90 Stat. 2721; Pub. L. No. 96-486, 94 Stat. 2369. On the other hand, Congress has also limited federal court jurisdiction by periodically raising the amount in controversy requirement for diversity suits. See, e.g., Pub. L. 104-317 (104th Cong. 1996) (raising amount in controversy requirement from $50,000 to $75,000).
  183. For further discussion of the jurisdiction of the federal courts, see Art. III, Sec. 2, Cl. 1: Overview of Diversity Jurisdiction.
  184. Court of General Jurisdiction, Black's Law Dictionary (11th ed. 2019) ("A court having unlimited or nearly unlimited trial jurisdiction in both civil and criminal cases."). States may also establish specialty courts with limited jurisdiction, such as family courts or land courts, but each state also has courts of general jurisdiction.
  185. E.g., Claflin v. Houseman, 93 US 130, 136 (1876) ("[I]f exclusive jurisdiction be neither express nor implied, the State courts have concurrent jurisdiction whenever, by their own constitution, they are competent to take it."); Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507 (1962) ("We start with the premise that nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law.").
  186. See, e.g., 18 U.S.C. § 3231 (granting the federal district courts "original jurisdiction, exclusive of the courts of the States," over federal criminal proceedings); 28 U.S.C. § 1334 (granting district courts jurisdiction over bankruptcy cases); id. § 1337 (granting district courts jurisdiction over antitrust cases).
  187. See Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477-84 (1981); Tafflin v. Levitt, 493 U.S. 455 (1990); Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990). Federal courts have exclusive jurisdiction over the federal antitrust laws, even though Congress has not spoken expressly or impliedly. See General Investment Co. v. Lake Shore & Michigan Southern Ry., 260 U.S. 261, 287 (1922). For discussion of when state courts must hear federal claims, see Art. III, Sec. 1: State Court Jurisdiction to Enforce Federal Law.
  188. 28 U.S.C. § 1441. See also Art. III, Sec. 2, Cl. 1: Removal from State Court to Federal Court.
  189. 28 U.S.C. § 1257.
  190. See Art. III, Sec. 1: State Court Jurisdiction to Enforce Federal Law.
  191. See Art. III, Sec. 1: Federal Non-Interference with State Jurisdiction and Abstention.
  192. See Art. III, Sec. 1: Habeas Review.
  193. See Art. III, Sec. 1: Limits on State Court Control of Federal Proceedings.
  194. Comity is a self-imposed rule of judicial restraint whereby independent tribunals of concurrent or coordinate jurisdiction act to moderate the stresses of coexistence and to avoid collisions of authority. The Supreme Court has explained that comity is not a binding rule of law but "one of practice, convenience, and expediency," which persuades but does not command. Mast, Foos & Co. v. Stover Manufacturing Co., 177 U.S. 458, 488 (1900).
  195. See Art. III, Sec. 1: Federal Non-Interference with State Jurisdiction and Abstention; Art. III, Sec. 1: Exhaustion Doctrine and State Law Remedies; Art. III, Sec. 1: Habeas Review.
  196. See, e.g., Claflin v. Houseman, 93 U.S. 130, 136 (1876); Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507 (1962); Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477-84 (1981).
  197. Howlett v. Rose, 496 U.S. 356, 374 (1990).
  198. 93 U.S. 130 (1876). Currently, federal law grants the federal courts exclusive jurisdiction over bankruptcy cases, 28 U.S.C. § 1334, but that was not true at the time of the events at issue in Claflin.
  199. Id.
  200. 279 U.S. 377 (1929). See also Herb v. Pitcairn, 324 U.S. 117 (1945) (upholding state court's application of state venue laws to dismiss for want of jurisdiction of an action brought under federal law because the cause of action arose outside the city court's territorial jurisdiction); Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1 (1950) (holding that a state's application of the forum non conveniens doctrine to bar adjudication of a federal claim brought by nonresidents was constitutional as long as the policy was enforced impartially); Johnson v. Fankell, 520 U.S. 911 (1997) (holding that a state rule limiting interlocutory jurisdiction did not discriminate against federal claims). A related question is whether federal procedural rules apply in state courts when they hear federal claims. The Supreme Court rejected that proposition in Minneapolis & St. L. R. Co. v. Bombolis, in which it declined to apply the Seventh Amendment's jury trial requirement to state courts enforcing a federal statute. 241 U.S. 211. The rule that state courts must entertain federal claims, the Court explained, did not imply that "for the purpose of enforcing the right, the state court was to be treated as a Federal court." Id. at 222.
  201. 279 U.S. at 388.
  202. 496 U.S. 356, 374 (1990).
  203. 223 U.S. 1, 55 (1912).
  204. Id. at 56-57. See also McKnett v. St. Louis & S.F. Ry., 292 U.S. 230, 233-34 (1934) ("[T]he Federal Constitution prohibits state courts of general jurisdiction from refusing to do so solely because the suit is brought under a federal law.").
  205. 330 U.S. 386, 388 (1947).
  206. Id. at 393.
  207. Id. at 389.
  208. 556 U.S. 729 (2009).
  209. Id. at 735.
  210. Id. at 738.
  211. Id. at 740.
  212. For further discussion of the anti-commandeering doctrine, see Tenth Amend.: Anti-Commandeering Doctrine.
  213. 521 U.S. 898, 907 (1997).
  214. 1 Stat. 73, 85. The current statute authorizing Supreme Court review of "[f]inal judgments or decrees rendered by the highest court of a State" in cases arising under the Constitution or federal laws or treaties is 28 U.S.C. § 1257.
  215. 14 U.S. 304 (1816).
  216. Id. at 323-24.
  217. Id. at 342. See also id. at 351 ("[T]he appellate power of the United States does extend to cases pending in the state courts; and . . . the 25th section of the judiciary act, which authorizes the exercise of this jurisdiction in the specified cases, by a writ of error, is supported by the letter and spirit of the constitution.").
  218. 19 U.S. 264 (1821).
  219. Id. at 416. See also Ableman v. Booth, 62 U.S. (21 How.) 506 (1859); Williams v. Bruffy, 102 U.S. 248 (1880).
  220. By contrast, federal courts may under certain circumstances enjoin actions in state courts. See Art. III, Sec. 1: Federal Non-Interference with State Jurisdiction and Abstention.
  221. McKim v. Voorhies, 11 U.S. 279, 281 (1812) ("the State Court had no jurisdiction to enjoin a judgment of the Circuit Court of the United States"). Cf. Riggs v. Johnson County, 73 U.S. 166, 195-96 (1868).
  222. Ableman v. Booth, 62 U.S. (21 How.) 506, 523 (1859) (when a prisoner is in federal custody, "neither the writ of habeas corpus, nor any other process issued under State authority, can pass over the line of division between the two sovereignties"); Tarble's Case, 80 U.S. 397 (1872); McClung v. Sillman, 19 U.S. 598 (1821) (holding that a state court could not issue a writ of mandamus to an officer of the United States).
  223. Donovan v. City of Dallas, 377 U.S. 408 (1964); General Atomic Co. v. Felter, 434 U.S. 12 (1977) (per curiam).
  224. In rem and quasi in rem proceedings involve the determination of property rights with respect to a thing within the court's jurisdiction. See In Rem, Black's Law Dictionary (11th ed. 2019).
  225. Princess Lida v. Thompson, 305 U.S. 456 (1939).
  226. For a definition and discussion of comity, see Art. III, Sec. 2, Cl. 1: Suits Involving Foreign States.
  227. C. Wright, Handbook of the Law of Federal Courts 13 (4th ed. 1983). The basic doctrine was formulated by Justice Felix Frankfurter for the Court in Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941). Another feature of the doctrine is that a federal court should refrain from exercising jurisdiction in order to avoid needless conflict with a state's administration of its own affairs, Burford v. Sun Oil Co., 319 U.S. 315 (1943); Alabama Public Service Comm'n v. Southern Ry., 341 U.S. 341 (1951); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943); Martin v. Creasy, 360 U.S. 219 (1959); Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983); New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350 (1989) (carefully reviewing the scope of the doctrine), especially where state law is unsettled. Meredith v. City of Winter Haven, 320 U.S. 228 (1943); County of Allegheny v. Frank Mashuda Co., 360 U.S. 185 (1959); Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959). See also Clay v. Sun Insurance Office Ltd., 363 U.S. 207 (1960). Also, although the sole fact that an action is pending in state court will not ordinarily cause a federal court to abstain, there are "exceptional" circumstances in which it should. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976); Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1978); Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983). But, in Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996), an exercise in Burford abstention, the Court held that federal courts have power to dismiss or remand cases based on abstention principles only where relief being sought is equitable or otherwise discretionary but may not do so in common-law actions for damages.
  228. City of Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958); Zwickler v. Koota, 389 U.S. 241, 249-51 (1967). See Babbitt v. United Farm Workers Nat'l. Union, 442 U.S. 289, 306 (1979) (quoting Harman v. Forssenius, 380 U.S. 528, 534-35 (1965)).
  229. Harman v. Forssenius, 380 U.S. 528, 534-35 (1965); Babbitt v. United Farm Workers Nat'l., 442 U.S. 289, 305-12 (1979). Abstention is not proper simply to afford a state court the opportunity to hold that a state law violates the federal Constitution. Wisconsin v. Constantineau, 400 U.S. 433 (1971); Zablocki v. Redhail, 434 U.S. 374, 379 n.5 (1978); Douglas v. Seacoast Products, Inc., 431 U.S. 265, 271 n.4 (1977); City of Houston v. Hill, 482 U.S. 451 (1987) ("A federal court may not properly ask a state court if it would care in effect to rewrite a statute"). But if the statute is clear and there is a reasonable possibility that the state court would find it in violation of a distinct or specialized state constitutional provision, abstention may be proper, Harris County Comm'rs Court v. Moore, 420 U.S. 77 (1975); Reetz v. Bozanich, 397 U.S. 82 (1970), although not if the state and federal constitutional provisions are alike. Examining Bd. v. Flores de Otero, 426 U.S. 572, 598 (1976).
  230. American Trial Lawyers Ass'n v. New Jersey Supreme Court, 409 U.S. 467, 469 (1973); Harrison v. NAACP, 360 U.S. 167 (1959). Dismissal may be necessary if the state court will not accept jurisdiction while the case is pending in federal court. Harris County Comm'rs v. Moore, 420 U.S. 77, 88 n.14 (1975).
  231. La. Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 33 (1959) (quoting R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941)).
  232. Harrison v. NAACP, 360 U.S. 167, 177 (1959).
  233. McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963); Griffin v. School Board, 377 U.S. 218 (1964); Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324 (1964); Baggett v. Bullitt, 377 U.S. 360 (1964); Davis v. Mann, 377 U.S. 678 (1964); Dombrowski v. Pfister, 380 U.S. 479 (1965); Harman v. Forssenius, 380 U.S. 528 (1965); Zwickler v. Koota, 389 U.S. 241 (1967); Wisconsin v. Constanineau, 400 U.S. 433 (1971).
  234. England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 426 (1964) (Douglas, J., concurring). See C. Wright, Handbook of the Law of Federal Courts 305 (4th ed. 1983).
  235. Baggett v. Bullitt, 377 U.S. 360, 378-379 (1964).
  236. Compare Harrison v. NAACP, 360 U.S. 167 (1959), with McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963).
  237. Compare Baggett v. Bullitt, 377 U.S. 360 (1964), and Dombrowski v. Pfister, 380 U.S. 479 (1965), with Younger v. Harris, 401 U.S. 37 (1971), and Samuels v. Mackell, 401 U.S. 66 (1971). See Babbitt v. United Farm Workers, 442 U.S. 289, 305-312 (1979).
  238. 401 U.S. 37 (1971). There is room to argue whether the Younger line of cases represents the abstention doctrine at all, but the Court continues to refer to it in those terms. E.g., Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992); Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. ___, No. 12-815, slip op. (2013).
  239. E.g., Mckesson v. Doe, No. 19-1108, slip op. at 5 (U.S. Nov. 2, 2020); Bellotti v. Baird, 428 U.S. 132, 151 (1976); Lehman Brothers v. Schein, 416 U.S. 386, 390-91 (1974); Clay v. Sun Insurance Office Ltd., 363 U.S. 207, 212 (1960).
  240. See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 79 (1997) (describing certification and concluding that a federal appeals court erred when it "blend[ed]" the abstention inquiry with the certification inquiry).
  241. Mckesson, slip op. at 4-5; see also Arizonans for Official English, 520 U.S. at 79.
  242. Houston v. Hill, 482 U.S. 451, 470-71 (1987). Cf., e.g., Expressions Hair Design v. Schneiderman, No. 15-1391, slip op. at 6-10 (U.S. Mar. 29, 2017) (Sotomayor, J., concurring) (comparing abstention with certification, and concluding that the lower court abused its discretion when it decided not to certify and instead "chose a convoluted course" by abstaining in part and deciding the question in part).
  243. See Art. III, Sec. 1: Habeas Review.
  244. See, e.g., Porter v. Investors Syndicate, 286 U.S. 461 (1932).
  245. 211 U.S. 210 (1908).
  246. Id. at 230.
  247. Id. at 232 ("[O]ur decision does not go upon a denial of power to entertain the bills at the present stage but upon our views as to what is the most proper and orderly course in cases of this sort when practicable."). Comity is a self-imposed rule of judicial restraint whereby independent tribunals of concurrent or coordinate jurisdiction act to moderate the stresses of coexistence and to avoid collisions of authority. The Court has elsewhere explained that it is not a rule of law but "one of practice, convenience, and expediency," which persuades but does not command. Mast, Foos & Co. v. Stover Manufacturing Co., 177 U.S. 458, 488 (1900).
  248. An exception occurs when a state prisoner petitions in federal court for a writ of habeas corpus. See Art. III, Sec. 1: Habeas Review.
  249. 232 U.S. 134 (1914).
  250. Id. at 137-38. See also City Bank Farmers' Trust Co. v. Schnader, 291 U.S. 24 (1934).
  251. 307 U.S. 268, 274 (1939).
  252. Courts may require exhaustion of state administrative remedies before filing a Section 1983 suit when there are pending state administrative proceedings in which an important state interest is involved. See Ohio Civil Rights Comm'n v. Dayton Christian School, Inc., 477 U.S. 619, 627 n.2 (1986). Under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on racial and other specified grounds, the Equal Employment Opportunity Commission may not consider a claim until a state agency having jurisdiction over employment discrimination complaints has had at least sixty days to resolve the matter. 42 U.S.C. § 2000e-5(c); see Love v. Pullman Co., 404 U.S. 522 (1972). The Civil Rights of Institutionalized Persons Act contains a specific, limited exhaustion requirement for adult prisoners bringing actions pursuant to § 1983. Patsy v. Florida Board of Regents, 457 U.S. 496, 508 (1982).
  253. 365 U.S. 167, 183 (1961) (reversed on other grounds).
  254. 373 U.S. 668 (1963).
  255. 457 U.S. 496, 516 (1982). See also, e.g., King v. Smith, 392 U.S. 309 (1968); Houghton v. Shafer, 392 U.S. 639 (1968); Damico v. California, 389 U.S. 416 (1967).
  256. Ex parte Watkins, 28 U.S. (3 Pet.) 193 (1830) (Marshall, C.J.); cf. Ex parte Parks, 93 U.S. 18 (1876). But see Fay v. Noia, 372 U.S. 391, 404-415 (1963). The expansive language used when Congress in 1867 extended the habeas power of federal courts to state prisoners "restrained of . . . liberty in violation of the constitution, or of any treaty or law of the United States . . . ," 14 Stat. 385, could have encouraged an expansion of the writ to persons convicted after trial.
  257. Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874).
  258. Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Royall, 117 U.S. 241 (1886); Crowley v. Christensen, 137 U.S. 86 (1890); Yick Wo v. Hopkins, 118 U.S. 356 (1886).
  259. Ex parte Wilson, 114 U.S. 417 (1885); In re Nielsen, 131 U.S. 176 (1889); In re Snow, 120 U.S. 274 (1887); but see Ex parte Parks, 93 U.S. 18 (1876); Ex parte Bigelow, 113 U.S. 328 (1885). It is possible that the Court expanded the office of the writ because its reviewing power over federal convictions was closely limited. Frankfurter & Landis, Power of Congress Over Procedure in Criminal Contempts in 'Inferior' Federal Courts--A Study in Separation of Powers, 37 Harv. L. Rev. 1010, 1016-1023 (1924). Once such review was granted, the Court began to restrict the use of the writ. E.g., Glasgow v. Moyer, 225 U.S. 420 (1912); In re Lincoln, 202 U.S. 178 (1906); In re Morgan, 203 U.S. 96 (1906).
  260. 237 U.S. 309 (1915).
  261. Id.
  262. 261 U.S. 86 (1923).
  263. Walker v. Johnston, 312 U.S. 275 (1941). See also Johnson v. Zerbst, 304 U.S. 458 (1938).
  264. 344 U.S. 443 (1953). Brown coincided with the extension of most of the Bill of Rights to the states by way of incorporation and expansive interpretation of federal constitutional rights; previously, there was not a substantial corpus of federal rights to protect through habeas. See Wright v. West, 505 U.S. 277, 297-99 (1992) (O'Connor, J., concurring). In Fay v. Noia, 372 U.S. 391 (1963), Justice William Brennan, for the Court, and Justice John Harlan, in dissent, engaged in a lengthy, informed historical debate about the legitimacy of Brown and its premises. Compare id. at 401-24, with id. at 450-61. See the material gathered and cited in L. Hand, The Bill of Rights (1958); H. Wechsler, Principles, Politics, and Fundamental Law: Selected Essays 1220-1248 (1961).
  265. Sanders v. United States, 373 U.S. 1 (1963); Fay v. Noia, 372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 293 (1963). These cases dealt, respectively, with the treatment to be accorded a habeas petition in the three principal categories in which they come to the federal court: when a state court has rejected petitioner's claims on the merits, when a state court has refused to hear petitioner's claims on the merits because she has failed properly or timely to present them, or when the petition is a second or later petition raising either old or new, or mixed, claims. Of course, as will be demonstrated infra, these cases have now been largely drained of their force.
  266. Townsend v. Sain, 372 U.S. 293, 310-12 (1963). If the district judge concluded that the habeas applicant was afforded a full and fair hearing by the state court resulting in reliable findings, the Court said, he may, and ordinarily should, defer to the state factfinding. Id. at 318. Under the 1966 statutory revision, a habeas court must generally presume correct a state court's written findings of fact from a hearing to which the petitioner was a party. A state finding cannot be set aside merely on a preponderance of the evidence and the federal court granting the writ must include in its opinion the reason it found the state findings not fairly supported by the record or the existence of one or more listed factors justifying disregard of the factfinding. Pub. L. No. 89-711, 80 Stat. 1105, 28 U.S.C. § 2254(d). See Sumner v. Mata, 449 U.S. 539 (1981); Sumner v. Mata, 455 U.S. 591 (1982); Marshall v. Lonberger, 459 U.S. 422 (1983); Patton v. Yount, 467 U.S. 1025 (1984); Parker v. Dugger, 498 U.S. 308 (1991); Burden v. Zant, 498 U.S. 433 (1991). The presumption of correctness does not apply to questions of law or to mixed questions of law and fact. Miller v. Fenton, 474 U.S. 104, 110-16 (1985). However, in Wright v. West, 505 U.S. 277 (1992), the Justices argued inconclusively whether deferential review of questions of law or especially of law and fact should be adopted.
  267. Townsend v. Sain, 372 U.S. 293, 312 (1963). The Court was unanimous on the statement, but it divided 5-4 on application.
  268. 372 U.S. at 313-18. Keeney v. Tamayo-Reyes, 504 U.S. 1, 5 (1992). Keeney formally overruled part of Townsend.
  269. 373 U.S. 1 (1963). Sanders was a § 2255 case, a federal prisoner petitioning for postconviction relief. The Court applied the same liberal rules with respect to federal prisoners as it did for states. See Kaufman v. United States, 394 U.S. 217 (1969). But see Davis v. United States, 411 U.S. 233 (1973); United States v. Frady, 456 U.S. 152 (1982).
  270. 373 U.S. at 8. The statement accorded with the established view that principles of res judicata were not applicable in habeas. E.g., Price v. Johnston, 334 U.S. 266 (1948); Wong Doo v. United States, 265 U.S. 239 (1924); Salinger v. Loisel, 265 U.S. 224 (1924). In 1948, Congress had appeared to adopt some limited version of res judicata for federal prisoners but not for state prisoners, Act of June 25, 1948, 62 Stat. 965, 967, 28 U.S.C. §§ 2244, 2255, but the Court in Sanders held the same standards applicable and denied the statute changed existing case law. 373 U.S. at 11-14. But see id. at 27-28 (Harlan, J., dissenting).
  271. 373 U.S. at 15. In codifying the Sanders standards in 1966, Pub. L. No. 89-711, 80 Stat. 1104, 28 U.S.C. § 2244(b), Congress omitted the "ends of justice" language. Although it was long thought that the omission probably had no substantive effect, this may not be the case. Kuhlmann v. Wilson, 477 U.S. 436 (1986).
  272. Id.
  273. 373 U.S. at 17-19.
  274. 372 U.S. 391 (1963). Fay was largely obliterated over the years, beginning with Davis v. United States, 411 U.S. 233 (1973), a federal-prisoner post-conviction relief case, and Wainwright v. Sykes, 433 U.S. 72 (1977), but it was not formally overruled until Coleman v. Thompson, 501 U.S. 722, 744-51 (1991).
  275. E.g., Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875); Herb v. Pitcairn, 324 U.S. 117 (1945). In the habeas context, the procedural-bar rules are ultimately a function of the requirement that petitioners first exhaust state avenues of relief before coming to federal court.
  276. 344 U.S. 443 (1953).
  277. Fay v. Noia, 372 U.S. 391, 424-34 (1963).
  278. 372 U.S. at 438-40.
  279. In 1961, state prisoner habeas filings totaled 1,020; in 1965, 4,845; in 1970, a high (to date) of 9,063; in 1975, 7,843; in 1980, 8,534; in 1985, 9,045; in 1986. On relief afforded, no reliable figures are available, but estimates indicate that at most 4% of the filings result in either release or retrial. C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure (1988 & supps.), § 4261, at 284-91.
  280. Wainwright v. Sykes, 433 U.S. 72, 81 (1977). Differing from the Court in the 1963 trilogy, the Wainwright Court favored decisions in habeas cases that promote finality, comity, judicial economy, and channeling the resolution of claims into the most appropriate forum. Keeney v. Tamayo-Reyes, 504 U.S. 1, 8-10 (1992). Overall, federalism concerns are critical. See Coleman v. Thompson, 501 U.S. 722, 726 (1991) ("This is a case about federalism." First sentence of opinion). Subsequent cases have drawn on Justice Powell's concurrence in Schneckloth v. Bustamonte, 412 U.S. 218, 250 (1973). He suggested that habeas courts should entertain only those claims that go to the integrity of the fact-finding process, thus raising questions of the value of a guilty verdict, or that only those prisoners able to make a credible showing of "factual innocence" could be heard on habeas. Id. at 256-58, 274-75. As will be evident infra, some form of innocence standard appears in much of the Court's habeas jurisprudence.
  281. Wainwright, 433 U.S. at 81.
  282. 433 U.S. at 83; Stone v. Powell, 428 U.S. 465, 495 n.37 (1976); Francis v. Henderson, 425 U.S. 536, 538 (1976); Fay v. Noia, 372 U.S. 391, 438 (1963). The dichotomy between power and discretion goes all the way back to the case imposing the rule of exhaustion of state remedies. Ex parte Royall, 117 U.S. 241, 251 (1886).
  283. Stone v. Powell, 428 U.S. 465 (1976). The decision is based as much on the Court's dissatisfaction with the exclusionary rule as with its desire to curb habeas. Holding that the purpose of the exclusionary rule is to deter unconstitutional searches and seizures rather than to redress individual injuries, the Court reasoned that no deterrent purpose was advanced by applying the rule on habeas, except to encourage state courts to give claimants a full and fair hearing. Id. at 493-95.
  284. Stone does not apply to a Sixth Amendment claim of ineffective assistance of counsel in litigating a search and seizure claim. Kimmelman v. Morrison, 477 U.S. 365, 382-383 (1986). See also Rose v. Mitchell, 443 U.S. 545 (1979) (racial discrimination in selection of grand jury foreman); Jackson v. Virginia, 443 U.S. 307 (1979) (insufficient evidence to satisfy reasonable doubt standard).
  285. See, e.g., Duckworth v. Eagan, 492 U.S. 195, 205 (1989) (O'Connor, J., concurring); Brewer v. Williams, 430 U.S. 387, 413-14 (1977) (Powell, J., concurring), and id. at 415 (Burger, C.J, dissenting); Wainwright v. Sykes, 433 U.S. 72, 87 n.11 (1977) (reserving Miranda).
  286. The first exception permits the retroactive application on habeas of a new rule if the rule places a class of private conduct beyond the power of the state to proscribe or addresses a substantive categorical guarantee accorded by the Constitution. The rule must, to say it differently, either decriminalize a class of conduct or prohibit the imposition of a particular punishment on a particular class of persons. The second exception would permit the application of "watershed rules of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceeding. Saffle v. Parks, 494 U.S. 484, 494-95 (1990) (citing cases); Sawyer v. Smith, 497 U.S. 227, 241-45 (1990).
  287. Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion); Penry v. Lynaugh, 492 U.S. 302, 313-19 (1989).
  288. Butler v. McKellar, 494 U.S. 407, 412 (1990) (quoting Penry v. Lynaugh, 492 U.S. 302, 314 (1989), which was quoting Teague v. Lane, 489 U.S. 288, 314 (1989). This sentence was quoted again in Whorton v. Bockting, 549 U.S. 406, 416 (2007)).
  289. 494 U.S. at 415. See also Stringer v. Black, 503 U.S. 222, 228-29 (1992). This latter case found that two decisions relied on by petitioner merely drew on existing precedent and so did not establish a new rule. See also O'Dell v. Netherland, 521 U.S. 151 (1997); Lambrix v. Singletary, 520 U.S. 518 (1997); Gray v. Netherland, 518 U.S. 152 (1996). But compare Bousley v. Brooks, 523 U.S. 614 (1998).
  290. Townsend v. Sain, 372 U.S. 293, 313, 317 (1963), imported the "deliberate bypass" standard from Fay v. Noia, 372 U.S. 391, 438 (1963).
  291. Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). This standard is imported from the cases abandoning Fay v. Noia and is discussed infra.
  292. 373 U.S. 1, 15-18 (1963). The standards are embodied in 28 U.S.C. § 2244(b).
  293. 477 U.S. 436 (1986).
  294. Sawyer v. Whitley, 505 U.S. 333 (1992). Language in the opinion suggests that the standard is not limited to capital cases. Id. at 339.
  295. The standard is in 28 U.S.C. § 2244(b), along with the standard that, if a petitioner "deliberately withheld" a claim, the petition can be dismissed. See also 28 U.S.C. § 2254 Rule 9(b) (judge may dismiss successive petition raising new claims if failure to assert them previously was an abuse of the writ).
  296. 499 U.S. 467 (1991).
  297. 499 U.S. at 489-97. The "actual innocence" element runs through the cases under all the headings.
  298. Coleman v. Thompson, 501 U.S. 722, 744-51 (1991).
  299. E.g., Smith v. Murray, 477 U.S. 527, 538-39 (1986); Murray v. Carrier, 477 U.S. 478, 496 (1986). In Bousley v. Brooks, 523 U.S. 614 (1998), a federal post-conviction relief case, petitioner had pled guilty to a federal firearms offense. Subsequently, the Supreme Court interpreted the elements of the offense more narrowly than had the trial court in Bousley's case. The Court held that Bousley by his plea had defaulted, but that he might be able to demonstrate "actual innocence" so as to excuse the default if he could show on remand that it was more likely than not that no reasonable juror would have convicted him of the offense, properly defined.
  300. Murray v. Carrier, 477 U.S. at 488. This case held that ineffective assistance of counsel is not "cause" unless it rises to the level of a Sixth Amendment violation. See also Coleman v. Thompson, 501 U.S. 722, 752-57 (1991) (because petitioner had no right to counsel in state postconviction proceeding where error occurred, he could not claim constitutionally ineffective assistance of counsel). The actual novelty of a constitutional claim at the time of the state court proceeding is "cause" excusing the petitioner's failure to raise it then, Reed v. Ross, 468 U.S. 1 (1984), although the failure of counsel to anticipate a line of constitutional argument then foreshadowed in Supreme Court precedent is insufficient "cause." Engle v. Isaac, 456 U.S. 107 (1982).
  301. United States v. Frady, 456 U.S. 152, 169 (1982) (under federal rules) (with respect to erroneous jury instruction, inquiring whether the error "so infected the entire trial that the resulting conviction violates due process").
  302. 506 U.S. 390 (1993).
  303. 506 U.S. at 398-417.
  304. 506 U.S. at 417-419. Justices Antonin Scalia and Clarence Thomas would have unequivocally held that "[t]here is no basis in text, tradition, or even in contemporary practice . . . for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction." Id. at 427-28 (concurring). However, it is not at all clear that all the Justices joining the Court believe innocence to be nondispositive on habeas. Id. at 419 (O'Connor and Kennedy, JJ., concurring), 429 (White, J., concurring). In House v. Bell, 547 U.S. 518, 554-55 (2006), the Court declined to resolve the issue that in Herrera it had assumed without deciding: that "a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional."
  305. 513 U.S. 298 (1995).
  306. 513 U.S. at 334 (Rehnquist, C.J., dissenting, joined by Kennedy and Thomas, JJ.), 342 (Scalia, J., dissenting, joined by Thomas, J.). This standard was drawn from Sawyer v. Whitley, 505 U.S. 333 (1992).
  307. 513 U.S. at 327. This standard was drawn from Murray v. Carrier, 477 U.S. 478 (1986).
  308. Pub. L. No. 104-132, Title I, 110 Stat. 1217-21, amending 28 U.S.C. §§ 2244, 2253, 2254, and Rule 22 of the Federal Rules of Appellate Procedure.
  309. 518 U.S. 651 (1996).
  310. 28 U.S.C. § 2254(d) (emphasis added). The provision was applied in Bell v. Cone, 535 U.S. 685 (2002). See also Renico v. Lett, 559 U.S. ___, No. 09-338, slip op. 9-12 (2010). For analysis of its constitutionality, see the various opinions in Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320 (1997); Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), cert. denied, 520 U.S. 1107 (1997); Hall v. Washington, 106 F.3d 742 (7th Cir. 1997); O'Brien v. Dubois, 145 F.3d 16 (1st Cir. 1998); Green v. French, 143 F.3d 865 (4th Cir. 1998), cert. denied, 525 U.S. 1090 (1999).
  311. Harrington v. Richter, 562 U.S. 86, 102 (2011) (overturning Ninth Circuit's grant of relief, which was based on ineffective assistance of counsel); accord Premo v. Moore, 562 U.S. 115 (2011) (same) and Cullen v. Pinholster, 563 U.S. 1029 (2011) (same).
  312. See, e.g., Linkletter v. Walker, 381 U.S. 618, 622-23 (1965) (quoting 1 W. Blackstone, Commentaries 69) (stating that, at common law, "the duty of the court was not to 'pronounce a new law, but to maintain and expound the old one'"); but see, e.g., Geoffrey C. Hazard Jr., The Supreme Court as a Legislature, 64 Cornell L. Rev. 1 (1978).
  313. 5 U.S. 137, 177 (1803).
  314. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, Hearings before the Committee on the Judiciary, United States Senate, 109th Cong. 2005.
  315. See Art. III, Sec. 1: Stare Decisis Doctrine Generally.
  316. See Art. III, Sec. 1: Overview of Retroactivity of Supreme Court Decisions.
  317. The full Latin phrase is "stare decisis et non quieta movere--stand by the thing decided and do not disturb the calm." See James C. Rehnquist, Note, The Power That Shall Be Vested in a Precedent: Stare Decisis, The Constitution, and the Supreme Court, 66 B.U. L. Rev. 345, 347 (1986).
  318. Stare Decisis, Black's Law Dictionary 1626 (10th ed. 2014) (defining "stare decisis" as "the doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation"); id. at 1366 (defining "precedent" as "a decided case that furnishes a basis for determining later cases involving similar facts or issues"). This essay does not examine the Supreme Court's reliance on the precedents of state court or foreign tribunals. It also does not examine how the Court determines whether a particular sentence in an opinion is a binding holding necessary to the decision for purposes of stare decisis or, rather, non-binding obiter dictum. See generally Obiter dictum, Black's Law Dictionary 1177 (9th ed. 2009) (defining "obiter dictum" as a "judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive)").
  319. Horizontal stare decisis, Black's Law Dictionary 1537 (10th ed. 2014) (defining "horizontal stare decisis" as "the doctrine that a court . . . must adhere to its own prior decisions, unless it finds compelling reasons to overrule itself").
  320. See id. (defining "vertical stare decisis" as "the doctrine that a court must strictly follow the decisions handed down by higher courts within the same jurisdiction").
  321. 1 William Blackstone Commentaries on the Laws of England 69-70 (describing precedent as "a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments").
  322. Federalist No. 78, at 439 (Clinton Rossiter ed., 1999) ("To avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them . . . ."). Historical sources provide only limited insight into the Founders' views on stare decisis, and it is unclear whether Alexander Hamilton was referring to the presumption that a court should adhere to its own prior decisions or, rather, those of higher tribunals. Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 664 (1999). Other Founders held similar views on the benefits of precedent. See, e.g., 1 Diary and Autobiography of John Adams 167-68 (L.H. Butterfield, ed., 1961) (draft of Nov. 5, 1760) ("[E]very possible Case being thus preserved in Writing, and settled in a Precedent, leaves nothing, or but little to the arbitrary Will or uninformed Reason of Prince or Judge."). See also Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 9 (2001) ("[C]oncern about such discretion was a common theme throughout the antebellum period; in one form or another, it shaped most antebellum explanations of the need for stare decisis."). But see Letter from James Madison to C.E. Haynes (Feb. 25, 1831), reprinted in 9 The Writings of James Madison 443 (Gaillard Hunt ed., 1910) ("That cases may occur which transcend all authority of precedents must be admitted, but they form exceptions which will speak for themselves and must justify themselves.").
  323. See, e.g., Gordon v. Ogden, 28 U.S. (3 Pet.) 33, 34 (1830) (involving statutory construction).
  324. Lee, supra note here, at 681-87, 734. See, e.g., United States v. Percheman, 32 U.S. (7 Pet.) 51, 88-89 (1833).
  325. See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819) ("[A]n exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded."). See also Lee, supra note here, at 691.
  326. See Janus v. Am. Fed. of State, Cnty., & Mun. Emps., No. 16-1466, slip op. at 34 (2018) ("We will not overturn a past decision unless there are strong grounds for doing so."); Arizona v. Rumsey, 467 U.S. 203, 212 (1984) ("Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands special justification."). For a list of Supreme Court decisions on constitutional law questions that the Court has overruled during its more than 225-year history, see Table of Supreme Court Decisions Overruled by Subsequent Decisions, [>https://constitution.congress.gov/resources/decisions-overruled/].Legal scholars continue to debate questions surrounding the doctrine of stare decisis that are beyond the scope of this essay, such as whether the Constitution requires (or even allows) the Supreme Court to follow precedent, and whether Congress could abolish stare decisis in constitutional cases. See, e.g., Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. Rev. 570, 571 (2001); Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535, 1548 (2000).
  327. Kimble v. Marvel Entm't, LLC, 576 U.S. 446, 455 (2015) ("[A]n argument that [the Court] got something wrong--even a good argument to that effect--cannot by itself justify scrapping settled precedent.").
  328. Cf. Super stare decisis, Black's Law Dictionary 1537 (9th ed. 2009) (defining "super stare decisis" as "the theory that courts must follow earlier court decisions without considering whether those decisions were correct"). A court following a prior decision because it was correctly decided is not adhering to stare decisis; it is merely reaffirming precedent. See Fallon, supra note here, at 570 ("If a court believes a prior decision to be correct, it can reaffirm that decision on the merits without reference to stare decisis.").
  329. See, e.g., Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 362 (2010) ("Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error.").
  330. Michael J. Gerhardt, The Role of Precedent in Constitutional Decisionmaking and Theory, 60 Geo. Wash. L. Rev. 68, 73, 134-35 (1991) [hereinafter Gerhardt, The Role of Precedent] (describing the Court's review of its precedents as a "process in which the Justices individually try to balance their respective views on how the Constitution should be interpreted and certain social or institutional values such as the need for stability and consistency in constitutional law"). Sometimes a Justice's judicial philosophy may conflict with precedent, potentially requiring a Justice to choose between following his or her philosophy, or making a pragmatic exception to it in order to maintain stability in the law. For example, some proponents of textualism and original meaning as methods of constitutional interpretation object to the use of judicial precedent that conflicts with the Constitution's text and its original meaning. In their view, this approach to precedent favors the Supreme Court's views over the views of those who ratified the Constitution, thereby allowing mistaken constitutional interpretations to persist. See Henry P. Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 769-70 (1988). Nevertheless, textualists and originalists may adhere to precedent for pragmatic reasons, such as when doing so would promote stability in the law. For example, Justice Antonin Scalia, a textualist and originalist, followed long-standing precedent allowing for the Supreme Court to incorporate rights specifically enumerated in the Bill of Rights against state governments, even though he harbored significant doubts that such incorporation comported with the Constitution's original meaning. See, e.g., McDonald v. City of Chi., 561 U.S. 742, 791 (2010) (Scalia, J., concurring) ("Despite my misgivings about substantive due process as an original matter, I have acquiesced in the Court's incorporation of certain guarantees in the Bill of Rights 'because it is both long established and narrowly limited.'" (citing Albright v. Oliver, 510 U.S. 266, 275 (1994) (Scalia, J., concurring)).
  331. See Citizens United, 558 U.S. at 378 (Roberts, C.J., concurring) ("Stare decisis is . . . a 'principle of policy.' When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right." (citing Helvering v. Hallock, 309 U.S. 106, 119 (1940))); Payne v. Tennessee, 501 U.S. 808, 828 (1991) ("Stare decisis is not an inexorable command; rather, it 'is a principle of policy and not a mechanical formula of adherence to the latest decision.'" (citation omitted)); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-06 (1932) (Brandeis, J., dissenting) ("The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible. Whether it shall be followed or departed from is a question entirely within the discretion of the court, which is again called upon to consider a question once decided. Stare decisis is usually the wise policy, because, in most matters it is more important that the applicable rule of law be settled than that it be settled right." (citations and internal quotation marks omitted)).
  332. The Justices have latitude in how broadly or narrowly they construe their prior decisions. See Gerhardt, The Role of Precedent, supra note here, at 98 ("The Supreme Court can overturn or otherwise weaken precedents through explicit overrulings, overrulings sub silentio, or subsequent decisionmaking that narrows or distinguishes precedents to the point of practical nullification."). For more on the use of judicial precedent as a method of constitutional interpretation, see Introduction: Judicial Precedent and Constitutional Interpretation. The Court has other means of avoiding a decision on whether to overrule precedent, which include the Court's "discretionary jurisdiction" to deny certiorari, the four votes required to grant certiorari, and the Court's rule generally limiting review to the questions presented or "fairly included" in the petition. Amy Coney Barrett, Symposium, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1731-33 (2013).
  333. One study determined that the "notion that the constitutional or statutory nature of a precedent affects its susceptibility to reversal was largely rejected in the founding era and did not gain majority support until well into the twentieth century."). Lee, supra note here, at 735.John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008) ("[S]tare decisis in respect to statutory interpretation has special force, for Congress remains free to alter what we have done." (citations and internal quotation marks omitted)); Smith v. Allwright, 321 U.S. 649, 665 (1944) ("In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions."); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-07 (1932) (Brandeis, J., dissenting) ("[I]n cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions."). The Supreme Court has suggested that stare decisis is at is weakest in cases involving rules of criminal procedure "that implicate fundamental constitutional protections." Alleyne v. United States, 570 U.S. 99, 116 n.5 (2013).
  334. The Supreme Court's belief in Congress's ability to correct the Court's errors through legislation has sometimes motivated the Court to retain precedent in cases in which Congress could enact corrective legislation. These cases encompass some disputes that implicate questions of tribal sovereign immunity, judicially created causes of action, or constraints on state action under the Commerce Clause. See South Dakota v. Wayfair, Inc., No. 17-494, slip op. at 2 (2018) (Roberts, C.J., dissenting) ("The bar [for departing from stare decisis and overturning precedent] is even higher in fields in which Congress 'exercises primary authority' and can, if it wishes, override this Court's decisions with contrary legislation." (citations omitted)).
  335. See supra note here. Professor Michael Gerhardt notes that the political branches have other options for reversing or constraining constitutional precedents outside of amending the Constitution, such as "congressional modifications of the Court's jurisdiction, the President's power to nominate Justices who might agree with her criticisms of certain precedents, the Senate's power to advise and consent to judicial nominations, and impeachment." Gerhardt, The Role of Precedent, supra note here, at 72 n.16.
  336. These former precedents are Oregon v. Mitchell, 400 U.S. 112, 117-18 (1970) (holding that Congress could not establish a voting age of eighteen for state and local elections, but could do so for national elections), superseded by constitutional amendment, Twenty-Sixth Amendment Reduction of Voting Age ("The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."); Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 637 (1895) (holding that a federal income tax violated the Constitution because it was not apportioned among the states based on congressional representation), superseded by constitutional amendment, Sixteenth Amendment Income Tax ("The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 178 (1874) (upholding as constitutional a state law that limited the right of suffrage to men), superseded by constitutional amendment, Nineteenth Amendment Women's Suffrage ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."); Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 452-54 (1857) (holding that former slaves lacked standing to sue in federal court because they were not citizens, and that the federal government lacked the authority to regulate slavery in the territories), superseded by constitutional amendment, U.S. Const. amends. XIII ("Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."), and XIV ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 452 (1793) (holding that federal courts had jurisdiction over civil suits by private citizens against states) superseded by constitutional amendment, Eleventh Amendment Suits Against States ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state, or by Citizens or Subjects of any Foreign state.").
  337. See supra note here.
  338. Some Justices have argued that the Supreme Court's current stare decisis factors are confusing and should be revised to provide a better roadmap for decisionmaking. See, e.g., Ramos v. Louisiana, No. 18-5924, slip op. at 7-8 (2020) (Kavanaugh, J., concurring in part) (describing the Supreme Court's jurisprudence on the stare decisis factors as a "muddle" and identifying three stare decisis factors: the merits of the decision, the precedent's practical consequences, and reliance interests).
  339. See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 636-42 (1943) (overruling the Supreme Court's 3-year-old decision in Minersville School District v. Gobitis, 310 U.S. 586 (1940), which had upheld a state law compelling students to salute the American flag, because of significant disagreements with the Gobitis Court's analysis of the First Amendment, the importance of national unity, and other issues).
  340. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 531 (1985) (overruling Nat'l League of Cities v. Usery, 426 U.S. 833 (1976), because Usery rule for when state activities qualified for immunity from congressional regulation under the Commerce Clause had become unworkable, and the lower courts could not apply it consistently). See also Montejo v. Louisiana, 556 U.S. 778, 792 (2009) ("[T]he fact that a decision has proved 'unworkable' is a traditional ground for overruling it.").
  341. United States v. Gaudin, 515 U.S. 506, 521 (1995) ("And we think stare decisis cannot possibly be controlling when . . . the decision in question has been proved manifestly erroneous, and its underpinnings eroded, by subsequent decisions of this Court.").
  342. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 233-34 (1995) (overruling Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990), because it departed from a long line of precedents holding that the Fifth Amendment does not impose a lesser duty on the federal government than the Fourteenth Amendment's Equal Protection Clause imposes on state governments). See also Michael Stokes Paulsen, Does the Supreme Court's Current Doctrine of Stare Decisis Require Adherence to the Supreme Court's Current Doctrine of Stare Decisis?, 86 N.C. L. Rev. 1165, 1189 (2008) ("[A]ny fair discussion of the remnant-of-abandoned-doctrine factor of the Court's current stare decisis analysis must reckon with the seemingly equal but opposite restoration-of-departed-from doctrine counter-factor."). Occasionally, the Justices disagree over which line of precedent the Court should retain, and which line of precedent it should overrule or ignore. Compare Lawrence v. Texas, 539 U.S. 558, 577-78 (2003) (Kennedy, J., for the majority) (striking down a Texas law that banned private, consensual same-sex sexual activity as violating the Fourteenth Amendment's Due Process Clause and overruling Bowers v. Hardwick, 478 U.S. 186 (1986), in part because Bowers was inconsistent with subsequent Supreme Court precedents that protected personal autonomy to make decisions related to the family and intimate conduct), with Lawrence (Scalia, J., dissenting) (characterizing the precedents that the majority relied upon as outliers whose legal foundations had been eroded by a 1997 case holding that only "fundamental rights" that are "deeply rooted in [the] Nation's history and tradition" qualified for enhanced protection under the Due Process Clause) (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks omitted)).
  343. Casey (plurality opinion) (discussing the inquiry into whether "facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification"). See also, e.g., South Dakota v. Wayfair, No. 17-494, slip op. at 18-19, 23-24 (2018) (overturning two precedents and determining that the Commerce Clause does not restrict states from requiring retailers that lack a physical presence in the state, such as internet retailers, to collect and remit taxes on sales made to state residents). The Wayfair Court noted that the U.S. economy had changed drastically, with a marked increase in the prevalence and power of internet access and concomitant increases in retailers selling goods remotely to consumers. Id. See also West Coast Hotel v. Parrish, 300 U.S. 379, 390, 400 (1937) (overruling Adkins v. Children's Hosp., 261 U.S. 525 (1923), and stating that "the economic conditions which have supervened" during the Great Depression required reconsideration of the "exercise of the protective power of the state" to institute minimum wage laws).
  344. See, e.g., Payne v. Tennessee, 501 U.S. 808, 828 (1991) ("Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved . . . the opposite is true in cases such as the present one involving procedural and evidentiary rules." (citations omitted)); McCulloch v. Maryland, 17 U.S., (4 Wheat.) 316, 401 (1819) ("[A]n exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded."); Lee, supra note here, at 691-703, 734.
  345. See, e.g., Dickerson v. United States, 530 U.S. 428, 431-32, 443 (2000) (declining to overrule the Court's 1966 decision in Miranda v. Arizona because the Miranda decision had "become embedded in routine police practice to the point where the warnings have become part of our national culture").
  346. Some Justices have argued that legislators may rely on the Supreme Court's decisions about the constitutionality of certain types of laws. See, e.g., Lawrence (Scalia, J., dissenting) (arguing that numerous legislators had relied on the Court's decision in Bowers v. Hardwick when enacting laws regulating certain sexual behaviors deemed immoral by the governing majority).
  347. See, e.g., Arizona v. Gant, 556 U.S. 332, 358-59 (2009) (Alito, J., dissenting) (arguing that the majority had effectively overruled New York v. Belton, 453 U.S. 454 (1981), and thereby upset law enforcement officers' reliance on a precedent addressing the permissibility under the Fourth Amendment of searching a vehicle's occupant after arrest).
  348. Judges often rely on precedent, both explicitly by citing to precedent in their opinions, and implicitly, by accepting principles established by precedent, such as the power of judicial review. See, e.g., Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, 576 U.S. 787, 805 (2015) (relying on three cases from the early twentieth century in holding that Arizona voters could remove from the state legislature the authority to redraw the boundaries for legislative districts and vest that authority in an independent commission). See also, e.g., Johnson v. United States, 576 U.S. 591, 606 (2015) (striking down part of a federal law as unconstitutional without citing Marbury v. Madison).
  349. See, e.g., Hubbard v. United States, 514 U.S. 695, 716 (1995) (Scalia, J., concurring in part) (stating that stare decisis "protects the legitimate expectations of those who live under the law"); Hilton v. S.C. Pub. Rys. Comm'n, 502 U.S. 197, 202 (1991) (stating that stare decisis "has added force when the legislature, in the public sphere, and citizens, in the private realm, have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response") See also Randy J. Kozel, Stare Decisis as Judicial Doctrine, 67 Wash. & Lee L. Rev. 411, 452 (2010) ("The universe of reliance interests can be usefully (if roughly) divided into four categories: reliance by specific individuals, groups, and organizations; reliance by governments; reliance by courts; and reliance by society at large.").
  350. Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. To Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 399 (2006) (statement of then-Judge Alito) ("They have said there has to be a special justification for overruling a precedent. There is a presumption that precedents will be followed. But it is not--the rule of stare decisis is not an inexorable command, and I don't think anybody would want a rule in the area of constitutional law that . . . said that a constitutional decision, once handed down, can never be overruled.").
  351. See, e.g., Hilton ("Adherence to precedent promotes stability, predictability, and respect for judicial authority."); Payne v. Tennessee, 501 U.S. 808, 827 (1991) ("Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process."); Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986) ("[T]he important doctrine of stare decisis [is] the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. That doctrine permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact.").
  352. See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989) ("Our precedents are not sacrosanct, for we have overruled prior decisions where the necessity and propriety of doing so has been established."); Smith v. Allwright, 321 U.S. 649, 665 (1944) ("[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.").
  353. Linkletter v. Walker, 381 U.S. 618, 622-23 (1965) (quoting 1 W. Blackstone, Commentaries 69).
  354. E.g., Robinson v. Neil, 409 U.S. 505, 507 (1973) (Prior to 1965, "both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this Court . . . subject to limited exceptions.").
  355. See, e.g., Lemon v. Kurtzman, 411 U.S. 192, 198-99 (1973).
  356. See Art. III, Sec. 1: Retroactivity of Criminal Decisions.
  357. See Art. III, Sec. 1: Retroactivity of Civil Decisions.
  358. For discussion of civil cases, see Art. III, Sec. 1: Retroactivity of Civil Decisions.
  359. Robinson v. Neil, 409 U.S. 505, 507 (1973).
  360. 381 U.S. 618, 629 (1965).
  361. Linkletter, 381 U.S. 618; Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966).
  362. Johnson v. New Jersey, 384 U.S. 719 (1966); Stovall v. Denno, 388 U.S. 293 (1967); Adams v. Illinois, 405 U.S. 278 (1972).
  363. Desist v. United States, 394 U.S. 244, 248 (1969); United States v. Peltier, 422 U.S. 531 (1975); Brown v. Louisiana, 447 U.S. 323, 335-36 (1980) (plurality opinion); Michigan v. Payne, 412 U.S. 47, 55 (1973); United States v. Johnson, 457 U.S. 537, 549-50, 551-52 (1982).
  364. Williams v. United States, 401 U.S. 646, 653 (1971) (plurality opinion); Brown v. Louisiana, 447 U.S. 323, 328-30 (1980) (plurality opinion); Hankerson v. North Carolina, 432 U.S. 233, 243 (1977).
  365. United States v. United States Coin & Currency, 401 U.S. 715, 724 (1971); Moore v. Illinois, 408 U.S. 786, 800 (1972); Robinson v. Neil, 409 U.S. 505, 509 (1973).
  366. Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (cited with approval in Whorton v. Bockting, 549 U.S. 406, 416 (2007)).
  367. 489 U.S. 288 (1989).
  368. 492 U.S. 302 (1989).
  369. Whorton v. Bockting, 549 U.S. 406, 416 (2007). Put another way, it is not enough that a decision is "within the 'logical compass' of an earlier decision, or indeed that it is 'controlled' by a prior decision." A decision announces a "new rule" if its result "was susceptible to debate among reasonable minds" and if it was not "an illogical or even a grudging application" of the prior decision. Butler v. McKellar, 494 U.S. 407, 412-415 (1990). For additional elaboration on "new law," see O'Dell v. Netherland, 521 U.S. 151 (1997); Lambrix v. Singletary, 520 U.S. 518 (1997); Gray v. Netherland, 518 U.S. 152 (1996). But compare Bousley v. Brooks, 523 U.S. 614 (1998).
  370. Whorton v. Bockting, 549 U.S. 406, 416 (2007).
  371. 489 U.S. at 307, 311-313; see also Butler, 494 U.S. at 415-416.
  372. Welch v. United States, 578 U.S. 120, 132 (2016) (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990); see also Schriro v. Summerlin, 542 U.S. 348, 353 (2004); Penry v. Lynaugh, 492 U.S. 302, 330 (1989).
  373. Montgomery v. Louisiana, 577 U.S. 190 (2016)
  374. 577 U.S. 190.
  375. Id. at 201.
  376. Sawyer v. Smith, 497 U.S. 227, 242 (1990) (internal quotations and citations omitted).
  377. 141 S.Ct. 1547, 1557, 1555 (2021). See also id. at 1557 ("The Court has identified only one pre-Teague procedural rule as watershed: the right to counsel recognized in the Court's landmark decision in Gideon v. Wainwright, 372 U.S. 335, 344-345 (1963).").
  378. Id. at 1560.
  379. For discussion of criminal cases, see Art. III, Sec. 1: Retroactivity of Criminal Decisions.
  380. E.g., Cipriano v. City of Houma, 395 U.S. 701 (1969); Allen v. State Board of Elections, 393 U.S. 544 (1969); but see Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481 (1968).
  381. 404 U.S. 97 (1971).
  382. 496 U.S. 167 (1990).
  383. Id. at 200. Four dissenting Justices would have applied the prior case "only where, under state law, the time for challenging the tax has not expired," or in timely-filed challenges to the tax where "the decisions are not yet final." Id. at 224-25.
  384. 501 U.S. 529 (1991).
  385. Two Justices objected to the possibility of "selective prospectivity" noting that, in the earlier decision, the Court had applied the holding to the contesting company, and concluding that once a new rule has been applied retroactively to the litigants in a civil case, considerations of equality and stare decisis compel application to all. Id. at 532-44. Justice Byron White wrote separately to emphasize that it was permissible for the Court to apply its decisions purely prospectively. Id. at 544-47. By contrast, three concurring Justices argued that limiting the retroactive application of judicial decisions, whether through partial or total prospectivity, violates Article III by expanding the jurisdiction of the federal courts beyond true cases and controversies. Id. at 547-49
  386. 509 U.S. 86 (1993).
  387. Id. at 97; see also Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) (setting aside a state court refusal to give retroactive effect to a U.S. Supreme Court invalidation of that state's statute of limitations in certain suits); Ryder v. United States, 515 U.S. 177, 184-85 (1995).
  388. Art. III, Section 1 Vesting Clause.
  389. Id.
  390. Art. I, Sec. 8, Clause 8 Intellectual Property. For additional discussion of the Framers' views on legislative power to establish federal courts, see Art. III, Sec. 1: Historical Background on Establishment of Article III Courts.
  391. In addition, Congress has created non-Article III tribunals, sometimes called "Article I courts" or "legislative courts," staffed by personnel such as administrative law judges, military judges, and federal magistrates. See Art. III, Sec. 1: Overview of Congressional Power to Establish Non-Article III Courts.
  392. When determining whether a court is a constitutional court, the Supreme Court has looked at how Congress structures the court and whether the structure of the court adheres to basic requirements of Article III, rather than relying on how Congress labels the court. See Glidden v. Zdanok, 370 U.S. 530 (1962) (Harlan, J.) (plurality opinion).
  393. Art. III, Section 1 Vesting Clause. The Supreme Court has interpreted the "case or controversy" requirement of Article III to impose certain rules of justiciability, such as a prohibition on advisory opinions, requirements of standing and ripeness, and limitations on the ability of federal courts to decide "political questions." See generally Allen v. Wright, 468 U.S. 737, 750 (1984); see also Art. III, Sec. 2, Cl. 1: Historical Background on Cases or Controversies Requirement.
  394. Art. III, Section 1 Vesting Clause.
  395. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 (1982) (plurality opinion); United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955) (stating that Article III "courts are presided over by judges appointed for life, subject only to removal by impeachment"); see also Art. III, Sec. 1: Overview of Good Behavior Clause.
  396. Art. III, Section 1 Vesting Clause; see also Art. III, Sec. 1: Historical Background on Compensation Clause.
  397. See Art. III, Sec. 1: Congressional Power to Abolish Federal Courts.
  398. See Art. III, Sec. 1: Establishment of Inferior Federal Courts.
  399. See Art. III, Sec. 1: Courts of Specialized Jurisdiction and Congress.
  400. See Art. III, Sec. 1: Supreme Court and Congress.
  401. See Art. III, Sec. 1: Overview of Congressional Power to Establish Non-Article III Courts.
  402. See Art. III, Sec. 1: Overview of Congressional Control Over Judicial Power; Art. III, Sec. 1: Overview of Good Behavior Clause; Art. III, Sec. 2, Cl. 2: Exceptions Clause and Congressional Control over Appellate Jurisdiction.
  403. Article IX of the Articles of Confederation authorized Congress to "appoint[ ] courts for the trial of piracies and felonies committed on the high seas; and establish[ ] courts; for receiving and determining finally appeals in all cases of captures." The same Article further provided that Congress would be "the last resort on appeal, in all disputes and differences now subsisting, or that hereafter may arise between two or more states" and could appoint commissioners or judges to constitute a court to resolve such disputes.
  404. See, e.g., Max Farrand, The Framing of the Constitution of the United States 79 (1913) ("That there should be a national judiciary was readily accepted by all.").
  405. See, e.g., 1 The Records of the Federal Convention of 1787, at 243 (Max Farrand ed., 1911) [hereinafter, Convention Records]. For example, the Convention considered proposals that would require federal questions to be decided first in state court, but with a right of appeal to federal courts. See id. at 243, 424. Likewise, during the debate over ratification, Alexander Hamilton wrote that "the State courts will RETAIN the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes. . . . [Thus,] the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited."The Federalist No. 83 (Alexander Hamilton). For additional discussion of the relationship between federal and state courts, see Art. III, Sec. 1: Overview of Relationship Between Federal and State Courts.
  406. Madison expressed concern at the Convention about "improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge," and "disliked the election of the Judges by the Legislature or any numerous body" due to "the danger of intrigue and partiality" and the fact that legislators lacked the "requisite qualifications" to select suitable judges. 1 Convention Records, supra note here, at 120, 124. See also The Federalist No. 81 (Alexander Hamilton) ("State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws."); 1 Convention Records, supra note here, at 124 (statement of Madison expressing concern about "the local prejudices of an undirected jury"); The Federalist No. 80 (Alexander Hamilton) ("[T]he most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes."); id. ("The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.").
  407. Article III Judicial Branch; 1 Stat. 73, 85; Martin v. Hunter's Lessee, 14 U.S. 304 (1816). Cf. Oliver Wendell Holmes, Collected Legal Papers 295-96 (1921) ("I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as the laws of the several States.").
  408. For additional discussion of the Convention's consideration of the judiciary, see 1 Julius Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States (1971).
  409. 1 Convention Records, supra note here, at 21-22. It is possible that this version may not be an accurate copy. See 3 Convention Recordsid. at 593-94.
  410. 1 Convention Records, supra note here, at 95, 104.
  411. Id. at 95, 105. The words "one or more" were deleted the following day without recorded debate. Id. at 116, 119.
  412. Id. at 124-25.
  413. Id. at 125.
  414. See Richard H. Fallon, Jr. et al, Hart & Wechsler's The Federal Courts and the Federal System 8 (7th ed. 2015).
  415. On offering their motion, Wilson and Madison "observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them." 1 Convention Records, supra note here, at 125.
  416. The Committee on Detail provided for the vesting of judicial power in one Supreme Court "and in such inferior Courts as shall, when necessary, from time to time, be constituted by the legislature of the United States." 2 id. at 186. Its draft also authorized Congress "[t]o constitute tribunals inferior to the Supreme Court." Id. at 182. No debate is recorded when the Convention approved these two clauses. Id. at 315, 422-23, 428-30. The Committee of Style left the clause empowering Congress to "constitute" inferior tribunals, but it deleted "as shall, when necessary" from the Judiciary article, so that the judicial power was vested "in such inferior courts as Congress may from time to time"--and here deleted "constitute" and substituted "ordain and establish." Id. at 600.
  417. Article I appears to assume the existence of a Chief Justice of the United States, providing that "[w]hen the President of the United States is tried, the Chief Justice shall preside." Art. I, Sec. 3, Clause 6 Impeachment Trials. Other provisions govern federal judges' tenure and compensation and set the bounds of federal court jurisdiction. See Art. III, Sec. 1: Overview of Congressional Control Over Judicial Power; Art. III, Sec. 1: Overview of Good Behavior Clause; Art. III, Sec. 2, Cl. 2: Exceptions Clause and Congressional Control over Appellate Jurisdiction. However, the Constitution does not specify the size of the Supreme Court or the number or size of the lower courts.
  418. 1 Stat. 73.
  419. See, e.g., Judiciary Act of 1789, ch. 20, § 1, 1 Stat. 73; Judiciary Act of 1801, ch. 4, § 3, 2 Stat. 89; Act of Mar. 8, 1802, ch. 8, § 1, 2 Stat. 132; Act of Feb. 24, 1807, ch. 16, § 5, 2 Stat. 420; Act of Mar. 3, 1837, ch. 34, § 1, 5 Stat. 176; Circuit Judges Act of 1869, ch. 22, 16 Stat. 44; Act of March 3, 1891, ch. 517, 26 Stat. 826. See also Art. III, Sec. 1: Supreme Court and Congress; Art. III, Sec. 1: Establishment of Inferior Federal Courts; Art. III, Sec. 1: Congressional Power to Abolish Federal Courts.
  420. Art. III, Section 1 Vesting Clause.
  421. Art. I, Sec. 3, Clause 6 Impeachment Trials.
  422. Act of September 24, 1789, 1 Stat. 73. For additional discussion of the Act and its working and amendments, see Frankfurter & Landis, The Business 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 Julius Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States (1971).
  423. Act of September 24, 1789, 1 Stat. 73, § 1.
  424. Judiciary Act of 1801, ch. 4, § 3, 2 Stat. 89, 89.
  425. Act of Mar. 8, 1802, ch. 8, § 1, 2 Stat. 132.
  426. The Supreme Court rejected a constitutional challenge to circuit riding in Stuart v. Laird, 5 U.S. (1 Cr.) 299 (1803). A party challenging the practice argued that Supreme Court justices "have no right to sit as circuit judges, not being appointed as such, or in other words, that they ought to have distinct commissions for that purpose." The Court noted that the objection was "of recent date," and could not overcome "practice and acquiescence . . . for a period of several years, commencing with the organization of the judicial system," which yielded an "irresistible answer" that circuit riding was constitutional. Id. at 309.
  427. See, e.g., Act of Feb. 24, 1807, ch. 16, § 5, 2 Stat. 420 (creating the Seventh Circuit and adding a seventh seat to the Supreme Court); Act of Mar. 3, 1837, ch. 34, § 1, 5 Stat. 176 (creating the Eighth and Ninth Circuits and increasing the size of the Supreme Court to nine Justices).
  428. Act of Mar. 3, 1863, ch. 100, 12 Stat. 794.
  429. Act of July 23, 1866, ch. 210, 14 Stat. 209. Like the 1801 legislation, the 1866 law provided that the Court would decrease in size as vacancies arose rather than eliminating any occupied seats on the bench. The number of Justices did not fall below eight before the end of Johnson's term. The 1866 legislation decoupled the number of judicial circuits from the number of Supreme Court Justices, and since that time there have usually been fewer seats on the Court than judicial circuits.
  430. Act of April 10, 1869, ch. 22, 16 Stat. 44.
  431. Judicial Procedures Reform Bill of 1937, S. 1392 (75th Cong. 1937).
  432. Reorganization of the Federal Judiciary, S. Rep. No. 75-711, at 20-23 (1937). The Roosevelt Administration eventually abandoned the plan after the Supreme Court began to vote to uphold New Deal legislation. See West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
  433. See, e.g., Judiciary Act of 2021, S. 1141, H.R. 2584 (117th Cong. 2021).
  434. Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judiciary Committee, 75th Cong., 1st Sess. (1937), pt. 3, 491. For earlier proposals to have the Court sit in divisions, see Frankfurter & Landis, supra note here, at 74-85.
  435. See Eric J. Segall, Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, 45 Pepp. L. Rev. 547 (2018); Ganesh Sitaraman and Daniel Epps, How to Save the Supreme Court, 129 Yale L. J. 148 (2019).
  436. 1 Charles Warren, The Supreme Court in United States History 222-224 (rev. ed. 1926).
  437. U.S. Const. art III, § 2, cl. 2.
  438. See Art. III, Sec. 2, Cl. 2: Supreme Court Original Jurisdiction.
  439. U.S. Const. art III, § 2, cl. 2.
  440. See Art. III, Sec. 2, Cl. 2: Exceptions Clause and Congressional Control over Appellate Jurisdiction.
  441. Art. III, Section 1 Vesting Clause; see also Art. I, Sec. 8, Clause 8 Intellectual Property (authorizing Congress, in its discretion, to "constitute Tribunals inferior to the [S]upreme Court."); 1 The Records of the Federal Convention of 1787, at 125 (Max Farrand ed., 1911) (observation of James Wilson and James Madison "that there was a distinction between establishing such [inferior] tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them").
  442. See, e.g., Art. III, Sec. 1: Inherent Powers Over Judicial Procedure; Art. III, Sec. 2, Cl. 2: Exceptions Clause and Congressional Control over Appellate Jurisdiction.
  443. 1 Stat. 73.
  444. The thirteen districts included one for each state that had ratified the Constitution at the time the Judiciary Act of 1789 was enacted, plus districts for Maine and Kentucky, which were then parts of Massachusetts and Virginia, respectively. Id.
  445. See, e.g., Joshua Glick, Comment, On the Road: The Supreme Court and the History of Circuit Riding, 24 Cardozo L. Rev. 1753 (2003).
  446. Some states were eventually divided into multiple judicial districts, and some districts were given more than one district judge. See, e.g., 6 Cong. Ch. 4 (Feb. 13, 1801); 12 Cong. Ch. 71 (Apr. 29, 1812).
  447. Judiciary Act of 1801, ch. 4, § 3, 2 Stat. 89. The Judiciary Act of 1801 was repealed in 1802, Act of Mar. 8, 1802, ch. 8, § 1, 2 Stat. 132, and soon thereafter Congress reorganized the judiciary into six different circuits, Act of Apr. 29, 1802, ch. 31, §§ 4, 5, 2 Stat. 156, 157-58.
  448. See, e.g., Act of Feb. 24, 1807, ch. 16, § 5, 2 Stat. 420; Act of Mar. 3, 1837, ch. 34, § 1, 5 Stat. 176.
  449. Circuit Judges Act of 1869, ch. 22, 16 Stat. 44.
  450. Act of March 3, 1891, 26 Stat. 826.
  451. Art. III, Section 1 Vesting Clause.
  452. See Art. III, Sec. 1: Supreme Court and Congress.
  453. Art. III, Section 1 Vesting Clause.
  454. See Art. III, Sec. 1: Historical Background on Establishment of Article III Courts.
  455. Art. III, Section 1 Vesting Clause.
  456. For additional discussion of the Good Behavior Clause, see Art. III, Sec. 1: Overview of Good Behavior Clause.
  457. In contrast to Article III judges, judges on Article I courts do not enjoy constitutionally mandated life tenure, so the elimination an Article I court does not raise this issue. See Art. III, Sec. 1: Overview of Congressional Power to Establish Non-Article III Courts.
  458. Judiciary Act of 1801, ch. 4, § 3, 2 Stat. 89.
  459. Act of Mar. 8, 1802, ch. 8, § 1, 2 Stat. 132.
  460. 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). For full discussion of the controversy, see id. at 58-78.
  461. 1 Charles Warren, The Supreme Court in United States History 222-224 (rev. ed. 1926).
  462. 5 U.S. (1 Cr.) 299 (1803).
  463. Id. at 309.
  464. Chief Justice John Marshall recused himself from the case and later expressed skepticism about the decision, noting ironically in one letter "the memorable distinction as to tenure of office, between removing the Judge from the office, and removing the office from the Judge." Letter from Chief Justice Marshall to Henry Clay (Dec. 22, 1823), reprinted in Ruth Wedgwood, Cousin Humphrey, 14 Const. Comment 247, 267-69 (1997). For another early example of legislation abolishing federal courts, see Act of March 3, 1863, 12 Stat. 762 (eliminating the then-existing circuit court, district court, and criminal court of the District of Columbia without providing for continued service by the sitting judges).
  465. Act of March 3, 1891, 26 Stat. 826.
  466. Id. § 3.
  467. The Court was created by the Act of June 18, 1910, 36 Stat. 539, and repealed by the Act of October 22, 1913, 38 Stat. 208, 219.
  468. 38 Stat. 208, 219.
  469. See Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, Section 105(a), §§171-77, 96 Stat. 25, 27-28; see also 28 U.S.C. § 171(a) ("The court [of Federal Claims] is declared to be a court established under article I of the Constitution of the United States.").
  470. 96 Stat. 50.
  471. Art. III, Section 1 Vesting Clause
  472. Id.; see also Art. III, Sec. 1: Overview of Good Behavior Clause.
  473. See, e.g., Pub. L. No. 95-511, 92 Stat. 1788, 50 U.S.C. § 1803 (allowing for designation of district court judges to serve nonrenewable seven-year terms on the Foreign Intelligence Surveillance Act Court); 8 U.S.C. §1532(a) (allowing for designation of district court judges to serve five-year terms on the U.S. Alien Terrorist Removal Court).
  474. Ch. 309, 36 Stat. 539.
  475. The Commerce Court operated for less than three years before Congress abolished it in 1913. See Art. III, Sec. 1: Congressional Power to Abolish Federal Courts.
  476. 56 Stat. 23, §§ 31-33.
  477. 56 Stat. 31. The Supreme Court upheld the exclusive grant of jurisdiction to the court in Lockerty v. Philips, 319 U.S. 182 (1943). A similar court was created to be used in the enforcement of the economic controls imposed by President Richard Nixon in 1971. Pub. L. No. 92-210, 85 Stat. 743, 211(b). Although the controls ended in 1974, 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. No. 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. No. 102-572, 106 Stat. 4506. Another similar specialized court was created by Section 209 of the Regional Rail Reorganization Act, Pub. L. No. 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).
  478. Ethics in Government Act, Title VI, Pub. L. No. 95-521, 92 Stat. 1867 (codified as amended at 28 U.S.C. §§ 591-599). The Chief Justice designated three regular federal judges to comprise the court. Only one of the judges could be from the D.C. Circuit. 28 U.S.C. § 49.
  479. The constitutionality of the Special Division was upheld in Morrison v. Olson, 487 U.S. 654, 670-85 (1988). Authority for the court expired in 1999 under a sunset provision. Pub. L. No. 103-270, § 2, 108 Stat. 732 (1994).
  480. Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, 96 Stat. 37, 28 U.S.C. § 1295. Among other things, the Federal Circuit assumed the appellate jurisdiction of the Court of Claims and the Court of Customs and Patent Appeals. See Art. III, Sec. 1: Congressional Power to Abolish Federal Courts.
  481. The Court of International Trade began life as the Board of General Appraisers, became the United States Customs Court in 1926, was declared an Article III court in 1956, and came to its present form and name in 1980. Pub. L. No. 96-417, 94 Stat. 1727.
  482. 28 U.S.C. § 1407.
  483. Pub. L. No. 95-511, 92 Stat. 1788, 50 U.S.C. § 1803. The Foreign Intelligence Surveillance Act of 1978 also established an appellate court called the Foreign Intelligence Surveillance Court of Review, which reviews certain FISA Court orders. See id. § 1803(b).
  484. 8 U.S.C. §1532(a). The U.S. Alien Terrorist Removal Court has yet to conduct any proceedings.
  485. U.S. Const. art III, § 1.
  486. Article III judges hold their jobs during good behavior, a provision that has been interpreted to grant judges life tenure unless they resign voluntarily or are impeached. See Art. III, Sec. 1: Overview of Good Behavior Clause. Article III judges also may not have their compensation reduced while on the bench. See Art. III, Sec. 1: Historical Background on Compensation Clause. In addition, Article III judges must be appointed by the President with the advice and consent of the Senate. See Art. II, Sec. 2, Cl. 2: Appointments of Justices to the Supreme Court. For discussion of Congress's authority to establish Article III courts, see Art. III, Sec. 1: Overview of Establishment of Article III Courts.
  487. See, e.g., Act of September 29, 1789, ch. 24, 1 Stat. 95 (authorizing the executive branch to resolve disputes concerning military pensions); Act of September 1, 1789, ch. 11, 1 Stat. 55 (same for federal customs laws); American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511 (1828) (upholding grant of admiralty jurisdiction to Florida territorial court).
  488. See, e.g., Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 91 (1982) (Rehnquist, J., concurring) (suggesting that another member of the panel believed the Court's cases on Article I courts to be "landmarks on a judicial 'darkling plain' where ignorant armies have clashed by night").
  489. See Art. III, Sec. 1: District of Columbia and Territorial Courts.
  490. See Art. III, Sec. 1: Non-Article III Military Courts.
  491. See Art. III, Sec. 1: Legislative Courts Adjudicating Public Rights.
  492. See Art. III, Sec. 1: Article I Adjuncts to Article III Courts.
  493. See Art. III, Sec. 1: Consent to Article I Court Jurisdiction.
  494. See Art. III, Sec. 1: Congressional Power to Structure Legislative Courts.
  495. 26 U.S. (1 Pet.) 511 (1828).
  496. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 106 (1982) (White, J., dissenting).
  497. U.S. Const. art III, § 2.
  498. Years after Canter, in Glidden Co. v. Zdanok, Justice John Harlan asserted that Chief Justice John 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." 370 U.S. 530, 544-45 (1962). For further discussion of when Congress can confer certain matters on Article I courts, see Art. III, Sec. 1: District of Columbia and Territorial Courts; Art. III, Sec. 1: Non-Article III Military Courts; Art. III, Sec. 1: Legislative Courts Adjudicating Public Rights; Art. III, Sec. 1: Article I Adjuncts to Article III Courts; Art. III, Sec. 1: Bankruptcy Courts as Adjuncts to Article III Courts; Art. III, Sec. 1: Consent to Article I Court Jurisdiction.
  499. See U.S. Const. art III, § 1; Art. III, Sec. 1: Overview of Good Behavior Clause; Art. III, Sec. 1: Historical Background on Compensation Clause.
  500. 28 U.S.C. § 631(e) ("The appointment of any individual as a full-time magistrate judge shall be for a term of eight years, and the appointment of any individuals as a part-time magistrate judge shall be for a term of four years[.]"); 26 U.S.C. § 7443 ("The term of office of any judge of the Tax Court shall expire 15 years after he takes office.").
  501. McAllister v. United States, 141 U.S. 174 (1891).
  502. United States v. Fisher, 109 U.S. 143 (1883); Williams v. United States, 289 U.S. 553 (1933).
  503. For discussion of the prohibition on Article III courts issuing advisory opinions, see Art. III, Sec. 2, Cl. 1: Overview of Advisory Opinions.
  504. For discussion of the finality of judgments of Article III courts, see Art. III, Sec. 1: Reopening Final Judicial Decisions.
  505. 69 U.S. (2 Wall.) 561 (1865).
  506. 54 U.S. (13 How.) 40 (1852).
  507. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 106 (1982) (White, J., dissenting) (discussing Canter, 26 U.S. (1 Pet.) 511 (1828)).
  508. Indeed, Chief Justice Roger B. Taney planned to express this view in Gordon v. United States, 69 U.S. (2 Wall.) 561 (1865). The opinion in Gordon was originally prepared by Chief Justice Roger B. Taney, but, following his death and reargument of the case, the Court issued the cited opinion. The Court later directed the publishing of Chief Justice Roger B. Taney's original opinion at 117 U.S. 697. See also United States v. Jones, 119 U.S. 477, 478 (1886) (noting that the official report of Chief Justice Samuel Chase's Gordon opinion and the Court's own record showed differences).
  509. 72 U.S. (5 Wall.) 419 (1867). See also United States v. Jones, 119 U.S. 477 (1886).
  510. E.g., Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927); Federal Radio Comm'n v. General Elec. Co., 281 U.S. 464 (1930); D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). See Glidden Co. v. Zdanok, 370 U.S. 530, 576, 577-579 (1962).
  511. Pope v. United States, 323 U.S. 1, 14 (1944); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Ortiz v. United States, 138 S. Ct. 2165 (2018).
  512. Art. IV, Sec. 3, Clause 2 Territory and Other Property.
  513. 26 U.S. (1 Pet.) 511 (1828).
  514. Judges of these courts did not enjoy life tenure, but instead sat for four-year terms. Id. at 512.
  515. Id. at 546.
  516. Id.
  517. 48 U.S.C. § 1424, 1424b.
  518. 48 U.S.C. § 1611, 1614.
  519. 48 U.S.C. § 1821.
  520. The federal district court in Puerto Rico is an Article III court. See 28 U.SC. § 119.
  521. Art. I, Sec. 8, Clause 16 Organizing Militias.
  522. 112 U.S. 50 (1884).
  523. Keller v. Potomac Elec. Co., 261 U.S. 428 (1923).
  524. Federal Radio Comm'n v. General Elec. Co., 281 U.S. 464 (1930).
  525. 279 U.S. 438, 450-455 (1929).
  526. 289 U.S. 516, 551 (1933).
  527. Id. at 545.
  528. Pub. L. No. 91-358, 84 Stat. 475, D.C. Code § 11-101.
  529. 411 U.S. 389 (1973).
  530. Id. at 407-08.
  531. Art. I, Sec. 8, Clause 13 Navy.
  532. 61 U.S. (20 How.) 65, 79 (1857).
  533. Id.
  534. Ex parte Milligan, 71 U.S. 2, 121-22 (1867).
  535. Reid v. Covert, 354 U.S. 1, 30 (1957); see also Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 249 (1960).
  536. United States ex rel. Toth v. Quarles, 350 U.S. 11, 14-15 (1955). But see 10 U.S.C. § 802(a).
  537. Solorio v. United States, 483 U.S. 435, 450-51 (1987).
  538. 10 U.S.C. § 941.
  539. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57, 833 (Nov. 13, 2001).
  540. 59 U.S. (18 How.) 272 (1855).
  541. Id. at 284.
  542. Gordon v. United States, 117 U.S. 697 (1865) (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).
  543. United States v. Coe, 155 U.S. 76 (1894) (Court of Private Land Claims).
  544. Wallace v. Adams, 204 U.S. 415 (1907); Stephens v. Cherokee Nation, 174 U.S. 445 (1899) (Choctaw and Chickasaw Citizenship Court).
  545. Old Colony Trust Co. v. Commissioner, 279 U.S. 716 (1929); Ex parte Bakelite Corp., 279 U.S. 438 (1929).
  546. See In re Ross, 140 U.S. 453 (1891) (consular courts in foreign countries). Military 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). But cf. Ortiz v. United States, 138 S. Ct. 2165, 2168 (2018) (noting that the essential character of the military justice system is, "in a word, judicial"). For additional discussion of military courts, see Art. III, Sec. 1: Non-Article III Military Courts.
  547. Northern Pipeline Constr. Co v. Marathon Pipe Line Co., 458 U.S. 50, 67 (1981)
  548. Ex Parte Bakelite, 279 U.S. 438, 451 (1929) ("The mode of determining [public rights cases] . . . is completely within congressional control. Congress may reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals."). Although Congress has generally employed some level of judicial review for public rights cases, it is generally accepted that this is not constitutionally required. See id. at 451; Northern Pipeline, 458 U.S. at 68 n.20; Crowell v. Benson, 285 U.S. 22, 50-51 (1932).
  549. Crowell, 285 U.S. at 50.
  550. For example, the U.S. Tax Court is an Article I court that resolves disputes between taxpayers and the government. Although judges of the Tax Court exercise the "judicial power" of the United States, its judges do not enjoy life tenure, but rather sit for fifteen-year terms. And, unlike Article III judges who are subject to removal only through impeachment, Tax Court judges can be removed by the President for "inefficiency, neglect of duty, or malfeasance in office[.]" 26 U.S.C. §§ 7441-7443.
  551. Crowell, 285 U.S. at 51.
  552. Stern v. Marshall, 131 S. Ct. 2594, 2611 (2011).
  553. 285 U.S. 22.
  554. Id. at 51-65.
  555. Id. at 50, 51, 58-63. For additional discussion of Crowell, see Art. III, Sec. 1: Article I Adjuncts to Article III Courts.
  556. 458 U.S. 50 (1981).
  557. Id. at 69-70.
  558. Id. at 71
  559. 473 U.S. 568 (1984).
  560. Id. at 573-74.
  561. Id. at 587.
  562. Id. at 590.
  563. 478 U.S. 833, 857 (1986). In Schor, the Court described several non-determinative factors for assessing whether the adjudication of traditional Article III cases in a non-Article III forum threatens the institutional integrity of the judicial branch: (1) the "extent to which the 'essential attributes of judicial power' are reserved to Article III courts, and, conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts," (2) "the origins and importance of the right to be adjudicated"; and (3) "the concerns that drove Congress to depart from the requirements of Article III." Id. at 851.
  564. 492 U.S. 33, 51-55 (1989). While Granfinanciera was a Seventh Amendment jury-trial case, the decision is relevant to the Article III issue as well because, as the Court made clear, whether Congress can submit a legal issue to an Article I tribunal and whether it can dispense with a civil jury on that legal issue must be answered by the same analysis. Id. at 52-53 ("[T]he question whether the Seventh Amendment permits Congress to assign its adjudication to a tribunal that does not employ juries as factfinders requires the same answer as the question whether Article III allows Congress to assign adjudication of that cause of action to a non-Article III tribunal.") See also Oil States Energy Servs., LLC v. Greene's Energy Grp., LLC, 138 S. Ct. 1365, 1379 (2018) ("This Court's precedents establish that, when Congress properly assigns a matter to adjudication in a non-Article III tribunal, 'the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder.'" (quoting Granfinanciera, 492 U.S. at 53-54)).
  565. 492 U.S. at 52-54. The Court reiterated that the government need not be a party as a prerequisite to a matter being of public right. Id. at 54. Concurring, Justice Antonin Scalia argued that public rights historically were and should remain only those matters to which the Federal Government is a party. Id. at 65. See also Stern v. Marshall, 564 U.S. 462, 490-91 (2011) ("[W]hat makes a right 'public' rather than private is that the right is integrally related to particular Federal Government action").
  566. 564 U.S. 462.
  567. Id. at 490.
  568. Id. at 493.
  569. Id.
  570. Id. at 494.
  571. 138 S. Ct. 1365, 1373 (2018) (additional citations omitted).
  572. Id.
  573. Id.
  574. Id.
  575. Subject to the limitations discussed below, Congress may assign matters to adjuncts even when one of the three historical exceptions allowing assignment of a matter to a non-Article III tribunal is not applicable.
  576. 285 U.S. 22 (1932).
  577. Id. at 36-37.
  578. Id. at 54.
  579. Id. at 51.
  580. Id.
  581. Id. at 54-57.
  582. See Richard H. Fallon, Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915, 925 (1988).
  583. See Paul M. Bator, The Constitution as Architecture: Legislative and Administrative Courts Under Article III, 65 Ind. L. J. 233, 264 (1990).
  584. 42 U.S.C. § 405(g) ("Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action . . . brought in [a] district court of the United States. . . . The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions."); 28 U.S.C. § 1291 ("The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States.").
  585. 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.").
  586. See, e.g., Hickman v. Bowman, 803 F.2d 1377, 1380 (5th Cir. 1986); Foster v. Astrue, 548 F. Supp. 2d 667, 668 (E.D. Wis. 2008).
  587. Federal Magistrates Act, P.L. 90-578, 82 Stat. 1107; Mathews v. Weber, 423 U.S. 261 (quoting S. Rpt. 371, 90th Cong., 1st Sess., 8 (1967)).
  588. 28 U.S.C. § 631.
  589. Government of Virgin Islands v. Williams, 892 F.2d 305, 308 (3d Cir. 1989).
  590. 418 U.S. 461 (1974).
  591. Id. at 472.
  592. 423 U.S. 261, 271 (1975).
  593. Id. at 271.
  594. Id. at 271-72.
  595. 447 U.S. 667 (1980).
  596. See 28 U.S.C. § 636(b)(1)(A).
  597. Id. § 636(b)(1)(B).
  598. Id.
  599. Raddatz, 447 U.S. at 676.
  600. Id. at 682-83.
  601. Federal Magistrate Act of 1979, P.L. 96-82, 93 Stat. 643.
  602. 93 Stat. 643, 643-46. For discussion of the role of party consent to non-Article III courts' jurisdiction, see Art. III, Sec. 1: Consent to Article I Court Jurisdiction.
  603. 490 U.S. 858 (1989).
  604. Id. at 860-61.
  605. For additional discussion of the constitutional avoidance doctrine, see Art. III, Sec. 2, Cl. 1: Overview of Constitutional Avoidance Doctrine.
  606. Gomez, 490 U.S. at 873.
  607. Id. at 872.
  608. Id. at 875-76. Importantly, in Gomez, the defendant had not given consent to the magistrate to select the jury, illustrating the limits of the adjunct theory when consent is withheld.
  609. Bankruptcy Act of 1978, Pub. L. No. 95-598, 92 Stat. 2549, codified in titles 11, 28. The bankruptcy courts were made adjuncts of the district courts by § 201(a), 28 U.S.C. § 151(a).
  610. 458 U.S. 50 (1982) (plurality opinion).
  611. Id. at 63-76.
  612. The plurality also rejected an alternative contention that, as adjuncts of the district courts, the bankruptcy courts were like United States magistrates or the agencies approved in Crowell v. Benson, 285 U.S. 22 (1932), to which could be assigned fact-finding functions subject to review in Article III courts. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76-86 (1982). According to the plurality, the act vested too much judicial power in the bankruptcy courts to treat them like agencies, and it limited review by Article III courts too much.
  613. Pub. L. No. 98-353, 98 Stat. 333; 28 U.S.C. §§ 151 et seq.
  614. See 28 U.S.C. § 157.
  615. 492 U.S. 33 (1989).
  616. Id. at 55.
  617. 564 U.S. 462 (2011).
  618. 573 U.S. 25 (2014).
  619. 575 U.S. 665 (2015). For additional discussion of the role of consent in determining which claims legislative courts can hear, see Art. III, Sec. 1: Consent to Article I Court Jurisdiction.
  620. For example, under the Federal Magistrates Act, upon the consent of the parties, a magistrate judge "may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case." See 28 U.S.C. § 636(c)(1). Pursuant to the Bankruptcy Amendments and Federal Judgeship Act of 1984, a district court, with the "consent of all parties to the proceeding," is permitted to refer a "proceeding related to a case under title 11 to a bankruptcy judge to hear and determine and to enter appropriate orders and judgments." See 28 U.S.C. § 157(c)(2). Other federal laws may provide for arbitration over discrete legal issues to occur based on the consent of the parties involved. See, e.g., 42 U.S.C. § 4083(a).
  621. Commodities Future Trading Comm'n v. Schor, 478 U.S. 833, 850 (1986).
  622. Id. (quoting National Insurance Co. v. Tidewater Co., 337 U.S. 582, 644 (1949) (Vinson, C.J., dissenting)).
  623. Id. at 851. Indeed, the Supreme Court has likened the structural protections provided by Article III, §1 to the limits on the subject-matter jurisdiction of a federal court imposed by Section 2 of Article III, which cannot be waived through consent. Id. at 850-51
  624. Id. at 848-49; see also Peretz v. United States, 501 U.S. at 930 (1991).
  625. 478 U.S. 833.
  626. Id. at 856.
  627. Id.
  628. Id. at 855.
  629. 501 U.S. at 930.
  630. Id. at 937.
  631. Id.
  632. Id.
  633. 564 U.S. 462 (2011).
  634. Id. at 481-82.
  635. 575 U.S. 665 (2015).
  636. Id. at 678-79 (alterations omitted).
  637. 2 The Records of the Federal Convention of 1787, at 429 (Max Farrand ed., 1911).
  638. The Federalist No. 78 (Alexander Hamilton).
  639. Art. III, Section 1 Vesting Clause.
  640. See, e.g., United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955) (explaining that Article III courts "are presided over by judges appointed for life, subject only to removal by impeachment"); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 (1982) (plurality opinion of Brennan, J.) ("The 'good Behaviour' Clause guarantees that Art[icle] III judges shall enjoy life tenure, subject only to removal by impeachment."); United States v. Hatter, 532 U.S. 557, 567 (2001) (explaining that the Good Behavior Clause grants federal judges "the practical equivalent of life tenure").
  641. Art. III, Section 1 Vesting Clause.
  642. Other aspects of the constitutional system also seek to safeguard the independence of the judiciary. For instance, the Supreme Court has construed Article III to limit Congress's ability to vest judicial functions in non-Article III tribunals on separation of powers grounds. See, e.g., Commodities Future Trading Comm'n v. Schor, 478 U.S. 833, 850 (1986); see also Art. III, Sec. 1: Overview of Congressional Power to Establish Non-Article III Courts.
  643. See Art. III, Sec. 1: Overview of Good Behavior Clause; Art. III, Sec. 1: Historical Background on Compensation Clause.
  644. The Constitution contains a number of provisions that are relevant to the impeachment of federal officials. Article I, Section 2, Clause 5 grants the sole power of impeachment to the House of Representatives; Article I, Section 3, Clause 6 assigns the Senate sole responsibility to try impeachments; Article I, Section 3, Clause 7 provides that the sanctions for an impeached and convicted individual are limited to removal from office and potentially a bar from holding future office, but an impeachment proceeding does not preclude criminal liability; Article II, Section 2, Clause 1 provides that the President enjoys the pardon power, but it does not extend to cases of impeachment; and Article II, Section 4 defines which officials are subject to impeachment and what kinds of misconduct constitute impeachable behavior. Article III does not mention impeachment expressly, but Section 1, which establishes that federal judges shall hold their seats during good behavior, is widely understood to provide the unique nature of judicial tenure. And Article III, Section 2, Clause 3 provides that trials, "except in Cases of Impeachment, shall be by jury."
  645. See Hon. Ruth Bader Ginsburg, Reflections on the Independence, Good Behavior, and Workload of Federal Judges the John R. Coen Lecture Series University of Colorado School of Law, 55 U. Colo. L. Rev. 1, 3 (1983).
  646. See generally Nixon v. United States, 506 U.S. 224, 237-38 (1993).
  647. See Art. III, Sec. 1: Good Behavior Clause Doctrine. Article III, Section 1, also serves the essential purpose of protecting the independence of the judiciary and protecting litigants' rights to have claims adjudicated by an impartial judge free from the influence of another branch of government. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 849 (1986). Further, the clause bars congressional attempts to eliminate the role of constitutional courts by transferring jurisdiction to non-Article III courts, which guards against the aggrandizement of power by one branch of government over another. Id.
  648. For more on the historical background of the impeachment clauses, see Art. I, Sec. 2, Cl. 5: Historical Background on Impeachment; Art. I, Sec. 3, Cl. 6: Historical Background on Impeachment Trials; Art. II, Sec. 4: Historical Background on Impeachable Offenses.
  649. Hon. Ruth Bader Ginsburg, Reflections on the Independence, Good Behavior, and Workload of Federal Judges the John R. Coen Lecture Series University of Colorado School of Law, 55 U. Colo. L. Rev. 1, 3 (1983). ("The phrase 'good Behaviour' was copied by the framers of our Constitution from English law.").
  650. Note, Judicial Disability and the Good Behavior Clause, 85 Yale L.J. 706, 720 (1976).
  651. The Latin phrase is sometimes translated as "so long as they conduct themselves well," Ginsburg, supra note here, at 3 n.10, or "during good behavior." See Judicial Disability and the Good Behavior Clause, supra note here, at 709.
  652. Act of Settlement, 12 & 13 Will. 3, ch. 2, § 3 (1700).
  653. See, e. g., 2 Benjamin P. Poore, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States 1910 (2d ed. 1878).
  654. 1 Records of the Federal Convention of 1787 21 (Max Farrand ed., 1966) (Virginia Plan); id. at 244 (New Jersey Plan); 3 id. at 600 (draft attributed to Charles Pinckney); id. at 621, 625 (Alexander Hamilton).
  655. See The Federalist No. 78 (Alexander Hamilton).
  656. Id.
  657. Id.
  658. Id.
  659. Id.
  660. Id.
  661. Id.
  662. Id.
  663. Raoul Berger, Impeachment: The Constitutional Problems 122-80 (1973) (arguing that the good behavior standard is distinct from "high crimes and misdemeanors" and Congress may remove judges whose "misbehavior" does not constitute a high crime or misdemeanor); Saikrishna Prakash, Steven D. Smith, How to Remove A Federal Judge, 116 Yale L.J. 72, 78 (2006) ("Congress . . . may establish any number of mechanisms for determining whether a judge has forfeited her office through misbehavior. . . . Congress can pass statutes that help implement the federal government's authority to remove federal judges who have misbehaved."); see 3 Lewis Deschler, Precedents of the United States of the House of Representatives, H.R. Doc. No. 94-661, at Ch. 14 § 3.9 (1974), [1].
  664. Judith Rosenbaum et al., A Constitutional Perspective on Judicial Tenure, 61 Judicature 465, 474 (1978) (claiming that the terms were interchangeable for the Framers).
  665. See Staff of H. Comm. on the Judiciary, 93d Cong., Impeachment, Selected Materials 666 (Comm. Print 1973).
  666. See Charles W. Johnson, John V. Sullivan, and Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents and Procedures of the House 608-13 (2017); Impeachment, Selected Materials, supra note here, at 666; Staff of H. Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential Impeachment 17 (Comm. Print 1974); H.R. Rep. No. 105-830, at 110-18.
  667. See Art. I, Sec. 3, Cl. 6: Impeachment Trial Practices and Art. II, Sec. 4: Overview of Impeachable Offenses et seq.
  668. See 12 Annals of Cong. 642 (1803); 13 Annals of Cong. 380 (1803); 13 Annals of Cong. 368 (1804).
  669. 2 Asher C. Hinds, Hinds' Precedents of the House of Representatives of the United States §§ 2385-97 (1907), [2].
  670. 135 Cong. Rec. S14,633-39 (daily ed. Nov. 3, 1989) (removing Judge Walter L. Nixon for lying to a grand jury); 132 Cong. Rec. 29,870-72 (1986) (removing Judge Harry E. Claiborne for providing false statements on his income tax returns).
  671. President Clinton was impeached, but not convicted, for perjury to a grand jury. See discussion in Art. II, Sec. 4: President Bill Clinton and Impeachable Offenses. In the effort to impeach President Nixon, one of the articles of impeachment rejected by the House Judiciary Committee concerned tax evasion. See discussion in Art. II, Sec. 4: President Richard Nixon and Impeachable Offenses.
  672. 13 Annals of Cong. 1180 (1804).
  673. Impeachment, Selected Materials, supra note here, at 133-35.
  674. See generally Chandler v. Judicial Council of Tenth Circuit of U.S., 398 U.S. 74, 140 (1970) (Douglas, J., dissenting) ("Federal judges are entitled, like other people, to the full freedom of the First Amendment. If they break a law, they can be prosecuted. If they become corrupt or sit in cases in which they have a personal or family stake, they can be impeached by Congress.").
  675. United States v. Claiborne, 727 F.2d 842, 849 (9th Cir. 1984). See also United States v. Hastings, 681 F.2d 706, 709-11 (11th Cir. 1982) (rejecting similar claims), stay denied, 459 U.S. 1203 (1982); United States v. Isaacs, 493 F.2d 1124, 1141-44 (7th Cir. 1974) (same), cert. denied sub nom., 417 U.S. 976 (1974).
  676. Claiborne, 727 F.2d at 845-46.
  677. Id. at 846.
  678. Id.
  679. Id. at 849.
  680. Id. at 848.
  681. Id. at 849.
  682. United States v. Will, 449 U.S. 200, 217-18 (1980).
  683. The Declaration of Independence para. 11 (U.S. 1776).
  684. 1 The Records of the Federal Convention of 1787, at 244 (Max Farrand ed., 1911).
  685. 2 id. at 45. See also, e.g., id (statement of Gouverner Morris that "[t]he value of money may not only alter but the State of Society may alter. In this event the same quantity of wheat, the same value would not be the same compensation. The Amount of salaries must always be regulated by the manners & the style of living in a Country").
  686. The Federalist No. 79 (Alexander Hamilton).
  687. United States v. Hatter, 532 U.S. 557 (2001) (quoting Proceedings and Debates of the Virginia State Convention, of 1829-1830, p. 619 (1830)).
  688. Legislative Appropriation Act of June 30, 1932, ch. 314, 47 Stat. 382, 401.
  689. O'Donoghue v. United States, 289 U.S. 516 (1933). Congress later established two sets of courts in the District: federal courts, created pursuant to Article III, and local courts equivalent to state and territorial courts, created pursuant to Article I. For further discussion of the constitutional status of the District of Columbia Courts, see Art. III, Sec. 1: District of Columbia and Territorial Courts.
  690. Williams v. United States, 289 U.S. 553 (1933). But see Glidden Co. v. Zdanok, 370 U.S. 530 (1962).
  691. 449 U.S. 200 (1980).
  692. Id. at 224-25.
  693. Id. at 226.
  694. 253 U.S. 245 (1920).
  695. 268 U.S. 501 (1925).
  696. 307 U.S. 277 (1939).
  697. Id. at 278-82.
  698. Id. at 282.
  699. 532 U.S. 557 (2001).
  700. Id. at 571.
  701. Id.
  702. Id. at 572.
  703. Id.
  704. Id. at 578-81.