Judicial Power

• Author: David P. Currie
• Pages: 1463-1470

Page 1463

"[T]he legislative, executive, and judicial powers, of every well constructed government," said JOHN MARSHALL in OSBORN V. BANK OF THE UNITED STATES (1824), "are co-extensive with each other; ? [t]he executive department may constitutionally execute every law which the Legislature may constitutionally make, and the judicial department may receive from the legislature the power of construing every such law." The ARTICLES OF CONFEDERATION fell far short of this model. Not only was there no federal executive with authority to enforce congressional measures against individuals, but, apart from a cumbersome procedure for resolving interstate disputes, Congress was authorized to establish courts only for the trial of crimes committed at sea and for the determination of "appeals in all cases of captures." The remedy for these shortcomings was one of the major accomplishments of the Constitution adopted in 1789. As Article II gave the country a President with the obligation to "take care that the Laws be faithfully executed," Article III provided for a system of federal courts that more than satisfied Marshall's conditions for a "well constructed government."

Article III consists of three brief sections. The first describes the tribunals that are to exercise federal judicial power and prescribes the tenure and compensation of their judges. The second lists the types of disputes that may be entrusted to federal courts, specifies which of these matters are to be determined by the SUPREME COURT in the first instance, and guarantees TRIAL BY JURY in criminal cases. The third defines and limits the crime of TREASON.

"The judicial Power of the United States," Article III declares, "shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The text itself indicates that the Supreme Court was the only tribunal the Constitution required to be established, and the debates of the CONSTITUTIONAL CONVENTION demonstrate that the latter words embodied a deliberate compromise.

In fact, however, Congress created additional courts at the very beginning, in the JUDICIARY ACT OF 1789. Since 1911 the basic system has consisted of the UNITED STATES DISTRICT COURTS?at least one in every state?in which most cases are first tried; a number of regional appellate courts now called the UNITED STATES COURTS OF APPEALS; and the Supreme Court itself, which functions largely as a court of last resort. From time to time, moreover, Congress has created specialized courts with JURISDICTION to determine controversies involving relatively limited subjects. All this lies well within Congress's broad discretion under Article III to determine what lower courts to create and how to allocate judicial business among them. Specialization at the highest level, however, seems precluded; Congress can no more divide the powers of "one Supreme Court" among two or more bodies than abolish it altogether.

"The Judges, both of the supreme and inferior Courts," section 1 continues, "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." Under the second section of Article II the judges have always been appointed by the President subject to Senate confirmation; under the fourth section of that article they may be removed from office on IMPEACHMENT and conviction of "Treason, Bribery, or other high Crimes and Misdemeanors." The central purpose of the tenure and salary provisions, as ALEXANDER HAMILTON explained in THE FEDERALIST #78, was to assure judicial independence.

The Supreme Court has repeatedly enforced the tenure and salary provisions. In EX PARTE MILLIGAN (1867), for example, the Court held even the Civil War no excuse for submitting civilians to military trials in states where the civil courts were open, and in O'Donoghue v. United States (1933), it held that the Great Depression did not justify reducing judicial salaries.

On a number of occasions, however, the Court has permitted matters within the judicial power to be determined by LEGISLATIVE COURTS whose judges do not possess tenure

Page 1464

and salary guarantees. State courts may decide Article III cases, as the Framers of the Constitution clearly contemplated; the tenure and salary provisions do not apply to the TERRITORIES or to the DISTRICT OF COLUMBIA, where there is no SEPARATION OF POWERS requirement; Article III did not abolish the traditional COURTMARTIAL for military offenses; federal magistrates may make initial decisions in Article III cases provided they are subject to unlimited reexamination by tenured judges.

Early in the twentieth century the Supreme Court appeared to give judicial blessing to the numerous quasi-judicial bodies that have grown up since the creation of the Interstate Commerce Commission in 1887, although scholars have debated heatedly whether there is any satisfactory way to distinguish them from the nontenured trial courts plainly forbidden by Article III. That these developments did not mean the effective end of the tenure and salary requirements, however, was made clear in 1982, when the Court in NORTHERN PIPE LINE CONSTRUCTION CO. V. MARATHON PIPE LINE CO. invalidated a statute empowering judges with temporary commissions to exercise virtually the entire jurisdiction of the district courts in BANKRUPTCY cases. Where to draw this line promises to be a continuing problem.

The power to be vested in federal courts is the "judicial power," and the various categories of matters that fall within this power are all described as CASES OR CONTROVERSIES?"Cases," for example, "arising under this Constitution," and "Controversies to which the United States shall be a Party." From the beginning the Supreme Court has taken this language as a limitation: federal courts may not resolve anything but "cases" and "controversies," and those terms embrace only judicial functions.

Thus, for example, when President GEORGE WASHINGTON asked the Justices for legal advice respecting the United States' neutrality during hostilities between England and France, they declined to act "extra-judicially"; and when Congress directed them to advise the war secretary concerning veterans' pensions, five Justices sitting on circuit refused, saying the authority conferred was "not of a judicial nature" (HAYBURN ' SCASE, 1792). Washington's request for advice did not begin to resemble the ordinary lawsuit, but later decisions have invoked the "case" or "controversy" limitation to exclude federal court consideration of matters far less remote from the normal judicial function. The essential requirement, the Court has emphasized, is a live and actual dispute between adversary parties with a real stake in the outcome.

One dimension of this principle is the doctrine of RIPENESS or prematurity: the courts are not to give advice on the mere possibility that it might be of use in the future. Occasionally the Court has appeared to require a person to violate a law in order to test its constitutionality?causing one commentator to remark that "the only way to determine whether the subject is a mushroom or a toadstool, is to eat it." The DECLARATORY JUDGMENT ACT, passed to mitigate this hardship, has generally been applied to allow preenforcement challenges when the intentions of the parties are sufficiently firm, and it has been held consistent with the "Case" or "Controversy" requirement.

At the opposite end of the spectrum is the MOOTNESS doctrine, which ordinarily forbids litigation after death or other changed circumstances deprive the issue of any further impact on the parties. A series of debatable decisions essentially dating from Moore v. Ogilvie (1969), however, has relaxed the mootness doctrine especially in CLASS ACTIONS, so as to permit persons with no remaining interest to continue litigating issues deemed "capable of repetition, yet evading review."

The "case or controversy" requirement has also been held to forbid the decision of COLLUSIVE SUITS, and to preclude the courts from exercising the discretion of an administrator, as by reviewing de novo the decision to grant a broadcasting license. The most important remaining element of that requirement, however, is the constitutional dimension of the doctrine of STANDING to sue.

While standing has been aptly characterized as one of the most confused areas of federal law, its constitutional component was simply stated in Warth v. Seldin (1975): "[t]he Article III power exists only to redress or otherwise to protect against injury to the complaining party." Injury in this context is hardly self-defining, but it plainly requires something more than intellectual or emotional "interest in a problem." This principle puts under a serious cloud the periodic congressional attempts to authorize "any person" to obtain judicial relief against violations of environmental or other laws. On the other hand, other aspects of the standing doctrine are not of constitutional dimension and thus do not preclude Congress from conferring standing on anyone injured by governmental action.

One of the principal points of contention of the law of standing has been the right of federal taxpayers to challenge the constitutionality of federal spending programs. When a taxpayer attacked expenditures for maternal health on the ground that they exceeded the powers granted Congress by Article I, the Court in FROTHINGHAM V. MELLON (1923) found no standing: "the taxpayer's interest in the moneys of the treasury ? is shared with millions of others, is comparatively minute and indeterminable, and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating, and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of EQUITY."

Although the apparent reference to equitable discretion made it...