Legislative Court

Author:Kenneth L. Karst
Pages:1589-1590

Page 1589

The term "legislative court" was coined by Chief Justice JOHN MARSHALL to describe the status of courts created by Congress to serve United States TERRITORIES lying outside the boundaries of any state. Congress had not given the judges of the territorial courts the life tenure and salary guarantees that Article III of the Constitution required for judges of CONSTITUTIONAL COURTS, and Marshall needed to explain the anomaly of federal courts outside the contemplation of Article III. In AMERICAN INSURANCE CO. V. CANTER (1828) he concluded that Congress, in exercising its power to govern the territories, could establish courts that did not fit Article III's specifications. Today this concept of legislative courts embraces all courts created by Congress and staffed by judges who do not enjoy constitutional protection of their tenure and salaries. Examples include territorial courts, consular courts, the Tax Court of the United States, the Bankruptcy Court, the Court of Military Appeals, and the courts of local jurisdiction operating in the DISTRICT OF COLUMBIA and the Commonwealth of PUERTO RICO.

Page 1590

Just as a legislative court's judges fall outside Article III's guarantees of independence, so it is capable of handling business outside that Article's definition of "the JUDICIAL POWER OF THE UNITED STATES "?something a constitutional court cannot constitutionally do. A legislative court, for example, can be assigned JURISDICTION to give ADVISORY OPINIONS to the President or Congress. Yet, despite Marshall's OBITER DICTUM in the Canter opinion that a legislative court is "incapable of receiving" jurisdiction lying within the judicial power, it is clear today that such courts, like administrative agencies, can constitutionally be assigned the initial decision of a great many cases within Article III's definition of that power. (See NORTHERN PIPELINE CONSTRUCTION CO. V. MARATHON PIPE LINE CO.) Their decisions on such Article III matters are reviewable by constitutional courts, including the Supreme Court, when Congress so provides.

With some difficulty, the Supreme Court has resolved controversies over the status of several courts. The federal courts formerly serving the District of Columbia were held protected by Article III's guarantees of life tenure and salary protection. In this sense, they were constitutional courts. However, the Court also held that the same courts could constitutionally be given work...

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