Article III, Section 1 — Congressional Power to Establish Article III Courts

ArtIII.S1.8.1 Overview of Establishment of Article III Courts

The Constitution established one federal court: the U.S. Supreme Court.¹ 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,”² and authorized Congress, in its discretion, to “constitute Tribunals inferior to the [S]upreme Court.”³ 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.⁴ All of these courts, sometimes called “Article III courts” or “constitutional courts,” share three key attributes.⁵ First, they exercise the “judicial power of the United States” to resolve “cases” and “controversies” falling within the constitutional grant of federal court jurisdiction.⁶ Second, they are staffed by judges who hold their offices “during good Behaviour,”⁷ which the Supreme Court has interpreted to guarantee life tenure “subject only to removal by impeachment.”⁸ Third, Article III judges’ compensation cannot be “diminished during their Continuance in Office.”⁹

The following essays discuss Congress’s power to establish and abolish¹⁰ Article III courts, including the lower courts¹¹ and courts of special jurisdiction,¹² and Congress’s power to structure the Supreme Court.¹³ Other essays explore Congress’s authority to establish non-Article III courts¹⁴ and Congress’s authority to regulate the existing federal courts.¹⁵

ArtIII.S1.8.2 Historical Background on Establishment of Article III Courts

Before the Founding, each state had its own system of courts, while the Articles of Confederation did not provide for an independent Federal Judiciary.¹ 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.² The Framers generally accepted that state courts would play a significant role in interpreting and applying federal law.³ But, in light of concerns about whether state courts would apply federal law correctly, uniformly, and without bias,⁴ the Framers provided for a federal Supreme Court with the power to review state judicial decisions involving issues of federal statutory or constitutional law.⁵

However, the Framers debated whether the Constitution should also provide for the existence of lower federal courts.⁶ 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.”⁷ In the Committee of the Whole, the proposal to establish a national Judiciary was adopted unanimously.⁸ 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.⁹ 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.¹⁰

Madison and James Wilson then moved to authorize Congress to “appoint inferior tribunals.”¹¹ That proposal, sometimes called the Madisonian Compromise,¹² carried the implication that Congress could, in its discretion, either designate the state courts to hear federal cases or create federal courts.¹³ 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.”¹⁴ Beyond that provision, the Constitution imposes few specific requirements related to the organization of the federal Judiciary.¹⁵

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.¹⁶ 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.¹⁷

ArtIII.S1.8.3 Supreme Court and Congress

The Constitution provides for a Judicial Branch including “one supreme Court.”¹ 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.² 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 1789.³ Under the 1789 act, the Court comprised one Chief Justice and five Associate Justices.⁴ 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.”⁵ Congress repealed the 1801 law before any vacancy occurred, leaving the size of the Court at six Justices.⁶

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.⁷ 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.⁸ 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.⁹ 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.¹⁰ In 1869, under a new presidential administration, Congress expanded the Court to include nine Justices.¹¹ 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.¹² 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.¹³ 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.¹⁴ 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.”¹⁵ 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.¹⁶ 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.¹⁷ 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,”¹⁸ and the Court has held that its jurisdiction over such cases flows directly from the Constitution.¹⁹ 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.”²⁰ Supreme Court decisions establish that the Exceptions Clause grants Congress broad power to regulate the Court’s appellate jurisdiction.²¹

ArtIII.S1.8.4 Establishment of Inferior Federal Courts

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.¹ 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.²

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.³ The 1789 Act created thirteen judicial districts, each of which had one district judge.⁴ 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.⁵

As the Nation grew, the Federal Judiciary also expanded, with each new state receiving a judicial district.⁶ Congress reorganized the Federal Judiciary into six judicial circuits in 1801,⁷ and thereafter periodically added new circuits to encompass new states.⁸ In 1869, Congress enacted legislation creating circuit court judgeships.⁹ 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.¹⁰ 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.

ArtIII.S1.8.5 Congressional Power to Abolish Federal Courts

The Constitution provides that the judicial power shall be vested, at least in part, in “one supreme Court.”¹ Thus, although Congress possesses substantial authority to structure the Supreme Court,² 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.³ Moreover, having left to Congress the decision whether to establish lower federal courts,⁴ 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.⁵ The Supreme Court has interpreted the Good Behavior Clause to grant Article III judges life tenure, unless they resign voluntarily or are impeached.⁶ 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.⁷

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.⁸ 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 1801.⁹ 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.¹⁰

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.¹¹ Once the Court reconvened, it rejected a challenge to the repeal in the 1803 case Stuart v. Laird.¹² 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.¹³ The Stuart Court did not directly address the issue of the displaced judges.¹⁴

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.¹⁵ The 1891 Act authorized sitting circuit judges, who had previously heard cases on the circuit courts, to hear cases on the new appellate courts.¹⁶ Congress again exercised its power to abolish a federal court in 1913, eliminating the short-lived Commerce Court.¹⁷ The 1913 legislation provided for redistribution of the Commerce Court judges among the federal appeals courts.¹⁸ 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.¹⁹ The statute provided for judges from the eliminated courts to serve instead on the Federal Circuit.²⁰

ArtIII.S1.8.6 Courts of Specialized Jurisdiction and Congress

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.¹ 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.² 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.³

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 1910,⁴ which was given exclusive jurisdiction to enforce certain orders of the Interstate Commerce Commission.⁵ Another court of specialized jurisdiction was the Emergency Court of Appeals established by the Emergency Price Control Act of January 30, 1942.⁶ 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.”⁷ Congress created another specialized court through the Ethics in Government Act.⁸ 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.⁹

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 1982.¹⁰ 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.¹¹ 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.¹²

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 1978.¹³ 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.¹⁴