Article III of the United States Constitution, the judicial article, establishes the broad outlines of a federal judicial system and leaves many of the particulars to Congress. Article III establishes one Supreme Court and confers original and appellate jurisdiction on that Court as the head of the judicial branch, but it does not establish lower federal courts. Instead, it authorizes Congress to constitute such courts, if it chooses, or to rely on the state courts instead. Similarly, Article III describes the outer limits or “exten[t]” of federal jurisdiction but does not assign specific cases to the lower federal courts. Thus Article III extends the “judicial power” to “cases” arising under the Constitution, laws, and treaties of the United States and to “controversies” between designated opponents, such as the citizens of different states. Article III provides for a jury trial in criminal cases and establishes procedural protections for treason prosecutions.
Central to its provision for an independent federal judiciary, Article III provides that all judges of the federal courts shall enjoy tenure in office during “good behavior,” meaning that they serve for life unless impeached and removed from office for “high crimes and misdemeanors.” Judges also enjoy protections against any reduction in their salary. Together, the tenure and salary protections ensure that the judges can resolve cases without fear of political reprisals from Congress or the president. The protections also tend to channel political responses to judicial decisions into the formal lawmaking process; political actors dissatisfied with a judicial decision must obtain a statutory change or constitutional amendment or win elections that will enable them to appoint future judges. At the time of the framing, some states similarly provided for life-tenured judges, but most states have since switched to some form of popular election or retention. Since the early Republic, political actors have worked to balance their own desire to preserve the rule of law and an impartial judiciary and their often conflicting desire to exercise political control over judicial decisions that touch on large questions of public policy.
Among its most consequential acts, the nation's first Congress adopted the Judiciary Act of 1789, establishing lower federal courts and staffing the Supreme Court with six justices ( ch. 20, 1 Stat. 73  ). The act established a federal district court in every state, typically in a maritime center of commerce, and invested the district courts with jurisdiction over admiralty and maritime matters, modest federal criminal offenses, and the collection of customs revenue. In addition to district courts, the act established circuit courts in each state staffed with the district judge and two circuit-riding justices of the Supreme Court. The circuit courts were authorized to hear federal criminal offenses and significant commercial disputes between citizens of different states and aliens. Circuit riding persisted until 1891, when Congress created permanent circuit courts with an appellate docket and their own judges, a structure that remains in place today. Finally, the 1789 act conferred original, appellate, and supervisory jurisdiction on the Supreme Court, thus empowering it to hear controversies involving the states as parties and appeals from the federal courts and from state court decisions that rejected a federal claim of right. Today, the Court exercises discretionary control over the great bulk of its docket, deciding some eighty cases a year after briefing and argument.
Issues of judicial independence quickly appeared on the Supreme Court's docket. In The Correspondence of the Justices ( 1793 ), the Court declined to offer advisory opinions on a series of legal questions posed by the Washington administration ( for an account of the episode, see Jay 1997; for the text of the justices' letter, see Fallon 1997 ). The justices observed that the Washington administration was perfectly capable of hiring its own lawyers and, moreover, that the “lines of separation” drawn in the Constitution, being in a sense a check on the departments, coupled with “our being judges of a court in the last resort,” afforded “strong arguments against the propriety of our extra-judicially answering the questions” ( Fallon 1997, 52 ). The Court was to expound the law in the context of litigated disputes, where it would speak with finality rather than in an advisory capacity. Similar concerns with finality animated the justices' refusal to pass on the pension claims of disabled war veterans; the justices were called upon to make those decisions at the circuit court level, but the statute provided that their decisions were subject to review both by the secretary of war and by Congress, a violation of the requirement of judicial finality. ( See Hayburn's Case, 2 U.S. [2 Dall.] 409 ; for a discussion of the case and its implications for the exercise of judicial power in benefit cases, see Pfander 2004 ).
The federal judicial system attracted early criticisms, particularly from the Anti-Federalists who had opposed ratification of the Constitution and were especially fearful of a distant federal judicial system. Opponents of the new system pressed, unsuccessfully, to prevent the congressional institution of lower federal courts. They also successfully sought a constitutional amendment to guarantee the right to trial by jury in civil matters and to limit appellate review of jury verdicts. Events quickly seemed to confirm the fears of opponents. British merchants brought a raft of suits against southern debtors in the new federal circuit courts, thereby reviving debts that many had expected to avoid in the wake of national independence ( see Ware v. Hylton, 3 U.S. [3 Dall.] 199, 239  ).
What is more, the Supreme Court agreed to hear an individual's suit against the state of Georgia, despite the Federalists' assurances during the ratification debates that Article III posed no such threat to state sovereignty and solvency ( see Chisholm v. Georgia, 2 U.S. [2 Dall.] 419 ; for an account, see Pfander 1998 ). Finally, the federal circuit court in North Carolina issued a peremptory writ of certiorari to a state court, thereby assuming control of a state court action to enjoin enforcement of a state court judgment ( see Pfander and Nazemi 2014 ). All these developments seemed to confirm the dire predictions of Anti-Federalist opponents of a federal judiciary; important litigation involving foreign debts and state obligations was moving steadily away from trusted local institutions to distant and potentially hostile federal courts.
The political branches quickly responded to these developments. Following the lead of the senators from Massachusetts, a heavily indebted state, Congress proposed and the states quickly ratified the Eleventh Amendment to the Constitution, declaring that the “judicial power” shall not be construed to extend to suits brought against the states by foreign subjects or citizens of a different state. After the amendment took effect, the Court dismissed a variety of pending suits against the states from its docket ( see Hollingsworth v. Virginia, 3 U.S. [3 Dall.] 378  ). Similarly, in 1793 Congress adopted the Anti-Injunction Act, forbidding federal courts from issuing writs of injunction to stay proceedings in state courts and thus assuring the states a measure of autonomy in the handling of disputes that fell within the concurrent jurisdiction of the two systems ( ch. 22, § 5, 1 Stat. 333, 334–35 ; on the importance of the anti-suit injunction, see Pfander and Nazemi 2013 ).
One tool of political control, House impeachment and Senate trial and removal of activist judges, was rejected early in the nation's history. In March 1801, during a lame-duck session held in the waning days of the John Adams administration, Congress established a new, more elaborate judiciary, with new circuit judges. Adams, for his part, set about filling these positions with judges sympathetic to his own Federalist party. These “midnight judges” were so named to mark the fact that the Adams administration worked into the wee hours of his last day in office to complete commissions that would officially invest the new judges in office. Thomas Jefferson ( 1743–1826 ), the incoming president, refused to honor some midnight judicial appointments, thereby touching off a running conflict between the political branches and the judiciary.
THE MARBURY CASE
The skirmishing left landmark decisions in its wake. Congress under Jefferson's leadership repealed the new judiciary legislation, thus eliminating the offices of the new Article III judges and returning to the judicial structure of 1789. One disappointed appointee to a non– Article III position, as justice of the peace in the District of Columbia, was William Marbury. He petitioned the Supreme Court for installation in office by way of a writ of mandamus directed to the secretary of state, James Madison. Although the Court issued an order to show cause, directing further consideration of the petition, it ultimately refused to grant Marbury any relief. In doing so, however, the famous opinion of the new chief justice, John Marshall, in Marbury v. Madison, 5 U.S. 137 ( 1803 ), proclaimed that federal courts were empowered to oversee executive actions for compliance with law and to refuse to give effect to acts of Congress deemed unconstitutional. In the end, Marshall declared one jurisdictional provision unconstitutional for having conferred original authority on the Court to supervise executive action in violation of Article III's constitutional limits on the scope of such authority. Marshall suggested, in effect, that the action should proceed in another court. ( On the political context of the decision, see Pfander 2001 .)
Meanwhile, Jefferson quietly encouraged the impeachment and removal from office of federal judges. The first such proceeding succeeded in cashiering an apparently deranged district judge from New England. The second, and far more significant, proceeding named a sitting Supreme Court justice, Samuel Chase ( 1741–1811 ). Although a major target of Jeffersonian ire, Chase mounted a vigorous defense in the Senate, and escaped conviction and removal from office by a narrow vote. Had the vote been to convict, historians believe that Jefferson's allies would have next pursued Marshall and other Federalist justices. The threat seemed quite real to the Court; Marshall himself suggested as an alternative to impeachment that the Constitution be amended to give Congress the final say on constitutional questions (much the way, in England, the House of Lords conducted review of judicial decisions). Eventually, though, the threat passed and with it any change in the judiciary's constitutional role ( Ellis 1971 ).
For the next few decades, political conflicts arose with state courts reluctant to accede to the Court's appellate role. Section 25 of the Judiciary Act conferred power on the Supreme Court to review the final decisions of state courts, apparently in keeping with Article III's provision for the Court to exercise appellate jurisdiction over a wide range of proceedings. Litigants thus had access to the Court's appellate docket whenever they felt that a state court had mistakenly rejected a federal title, interest, claim, or defense.
Yet the prospect of appellate review and reversal unsettled some state judges, particularly those on Virginia's highest court. In Martin v. Hunter's Lessee, 14 U.S. 304 ( 1816 ), the Court ruled in favor of British heirs to a tract of land and against Virginia's claim that the British title was divested under a state law that authorized the taking of property from British Loyalists. The state supreme court challenged the constitutionality of Section 25, arguing that the Court's constitutional grant of appellate jurisdiction extended only to matters first litigated in the federal courts and not to those first heard in the state courts. Virginia put forward a similar argument in Cohens v. Virginia, 19 U.S. 264 ( 1821 ), arguing that a state criminal conviction lay beyond the reach of the Court's appellate jurisdiction. Chief Justice Marshall wrote for the Court in upholding jurisdiction, and the states failed in their effort to secure a legislative repeal of Section 25.
Slavery and the eventual outbreak of the Civil War tested relations between an independent federal judiciary and a determined executive branch. In the infamous Dred Scott v. Sandford, 60 U.S. 393 ( 1856 ), the Supreme Court ruled that individuals of African descent could not be regarded as citizens for purposes of invoking the diversity jurisdiction of the lower federal courts. Then, reaching beyond the jurisdictional issue, the Court held that slave owners had a due process right to their “property” and cast doubt on the power of Congress to ban slavery in the territories ( Fehrenbacher 1978 ).
Many, including Abraham Lincoln ( 1809–1865 Lincoln's opponent in the 1858 US Senate race ) over the resolving power of judicial decisions. In Lincoln's view the Court was entitled to resolve the particular dispute between Scott and his owner and all must respect that decision. But the Court did not have power finally to resolve the issue of slave power; it was too significant a question and views differed too sharply to require all citizens to simply accede to the Court's stance. The Court was thus supreme and final within the judicial department, but its decisions could not control the political branches as they continued to make policy on the slavery issue. The Court's power to declare the law depended on and was bounded by the contours of the cases actually litigated with the judicial department ( Fehrenbacher 1978 ).
Later, as president, Lincoln would challenge even this departmental conception of judicial finality. At the inception of the Civil War, having concluded that the preservation of the Union required strong action, Lincoln directed his military officers to arrest Southern sympathizers in Maryland. Chief Justice Taney promptly issued a writ of habeas corpus, ordering the military to bring the civilians into court for an assessment of the legality of their detention (and presumably their speedy release). Lincoln directed the military to ignore Taney's order, practically suspending the writ of habeas corpus without first obtaining congressional approval ( see Ex parte Merryman, 17 Fed. Cas. 144 (C.C.D. Md. 1861 ). Congress later enacted legislation, ratifying prior detentions and authorizing Lincoln to impose further unreviewable arrests by executive order.
But Lincoln had crossed a constitutional line. Article II of the Constitution obliges the president to take care that the laws be faithfully executed, a duty that may well require the president to enforce duly issued judgments of the federal courts. In declining to enforce Taney's judgment, Lincoln invoked necessity and constitutional pragmatism: the Constitution seemingly assigned Congress the power to suspend the writ, but it stood to reason that the president was meant to act in cases of invasion and rebellion when Congress could not convene. In any case, Lincoln reasoned, the remedy for such presidential misconduct (if such it were) ultimately lay with the people, who could remove him from office (through the impeachment or the electoral process) if they agreed that the constitutional breach was a serious one ( see Neely 1991 ).
Constitutional politics after the Civil War revealed one more tool of political branch control of the judiciary: legislative restrictions on the scope of the Supreme Court's appellate jurisdiction under a provision of Article III that authorizes Congress to fashion “exceptions and regulations.” During the heyday of Radical Republicanism, Democrats sought ways to challenge the constitutionality of military Reconstruction in the South. They finally maneuvered a habeas corpus case onto the Court's appellate docket, testing the power of the US military to jail an incendiary newsman in Mississippi named McCardle. After the case was briefed and argued, Congress passed a law repealing the Court's appellate jurisdiction in habeas corpus proceedings. Instead of deciding the case on the merits, the Court dismissed on jurisdictional grounds. Noting that Article III seemingly contemplates such “exceptions,” the Court, in Ex parte McCardle, 74 U.S. 506 ( 1867 ), refused to consider the possible motivations of Congress in adopting the restriction ( see Meltzer 2010 ). To some, the Court's acquiescence has suggested that Congress has broad-ranging power to steer highly contested issues away from the federal courts and can thus exercise a measure of political control over its decisions.
Congress has also aimed jurisdictional restrictions at the lower federal courts, exercising its power under Article III to ordain and establish inferior federal courts “from time to time” and the presumptive jurisdictional control that comes with such authority. One clear example came at the dawn of the New Deal, when Congress adopted the Norris–LaGuardia Act ( 29 U.S.C. § 101 et seq.  ) to put the lower federal courts out of the business of enjoining labor disputes and enforcing yellow dog (anti-union) contracts. ( For background on the forces leading to the act's adoption, see Frankfurter and Greene 1930 .) Norris–LaGuardia proclaimed a new labor policy of respect for the role of unions and a distrust of federal judicial intervention. In addition, the act directed the federal courts to refrain from entertaining specified claims on jurisdictional grounds. Although the Court ultimately upheld some aspects of the jurisdictional restriction, questions remained as to how far Congress can go in procuring substantive changes in law through the adoption of jurisdictional legislation. Constitutional amendments require super-majorities, rather than simple congressional majorities.
The animating goal of Norris–LaGuardia, to keep the federal courts away from social policy, also left its mark on a variety of jurisdictional doctrines set forth by progressive judges ( see Lee 2011 see Brandeis's concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U.S. 288  ). Thus the Court articulated doctrines of standing, ripeness, mootness, and party adverseness all to prevent litigants from too readily procuring a constitutional decision to invalidate government action ( see Pushaw 1996 ). The Court also raised doubts about the power of the federal courts to entertain declaratory judgment actions, proceedings in which the parties present a disputed question of law or fact to the court for relatively speedy resolution ( see Brandeis's opinion in Willing v. Chicago Auditorium Association, 277 U.S. 274  ). Finally, the Court announced a new practice of federal judicial deference to state court articulations of common law rules in private commercial disputes, thereby securing state court primacy and curtailing a major field of federal judicial creativity ( see Erie Railroad v. Tompkins, 304 U.S. 64 , and Purcell 2000 ).
The civil rights revolution, exemplified but not exhausted by Brown v. Board of Education, 347 U.S. 483 ( 1954 ), tested many of these justiciability doctrines. New demands for judicial activism, this time in service of the rights of racial and religious minorities rather than the rights of railroads and other for-profit enterprises, were placed on the federal judiciary. The Warren Court response, broadening individual rights as well as individual access to federal courts, led to a variety of courtcurbing measures in Congress, including proposals to divest the federal judiciary of the power to hear challenges to prayer in school, to order school busing to achieve racial integration, and to consider the right of women to secure an abortion. ( For a summary of Warren Court proposals, see Ross 2002; see generally Nagel 1965 .) Although these bills did not become law, they did foretell a change in the country's mood that would alter the makeup of the Court and lead to more restrictive justiciability rulings.
Congress's authority over the jurisdiction of the Supreme Court and lower federal courts remains unsettled, despite litigation over the validity of the rather substantial jurisdictional restrictions that were adopted in the wake of the attacks on September 11, 2001. President George W. Bush proclaimed by military decree that unlawful combatants captured and housed at the military detention facility at Guantanamo Bay Naval Base were not entitled to judicial review by habeas corpus or otherwise. Congress later wrote this restriction into federal law. After the Court found that its writ did in fact extend to those held at Guantanamo, Congress adopted legislation that expressly sought to limit the scope of such habeas review. In an important decision, Boumediene v. Bush, 553 U.S. 723 ( 2008 ), the Supreme Court ruled that the restrictions went too far in narrowing access to federal court. An important symbol of judicial independence, the decision nonetheless addresses only the power to review the legality of detention. And many question the practical effectiveness of the review that has taken place in the lower courts in the aftermath of the decision ( see Vladeck 2011 ).
Congress continues to consider court-curbing proposals that seek to prevent the federal courts from invalidating particular measures. The challenge, for the courts and the country, lies in distinguishing permissible legislation aimed at the efficient allocation of judicial business from measures that would thwart the enforcement of constitutional rights through jurisdictional manipulation. In the end, Article III's grant of jurisdiction to the Supreme Court and its provisions insulating the justices from political reprisal provide the Third Branch with powerful tools of self-defense. Equally important, perhaps, the country has come to accept the Court's role in settling constitutional controversies and often expresses popular support for the institutional design.
SEE ALSO Constitution ; Constitutional Authority ; Federal Court Jurisdiction ; Judicial Independence ; Judicial Selection ; Marbury v. Madison; Supreme Court of the United States ; Vesting Clause .
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James E. Pfander
Northwestern University School of Law