CRS Annotated Constitution

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Section 1. 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.


The Constitution is almost completely silent concerning the organization of the federal judiciary. “That there should be a national judiciary was readily accepted by all.”1 But whether it was to consist of one high court at the apex of a federal judicial system or a high court exercising appellate jurisdiction over state courts that would initially hear all but a minor fraction of cases raising national issues was a matter of considerable controversy.2 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. . . . ”3 In the Committee of the Whole, the proposition “that a national judiciary be established” was unanimously adopted,4 but the clause “to consist of One supreme tribunal, and of one or more inferior tribunals”5 was first agreed to, then reconsidered, and the provision for inferior tribunals stricken out, it being argued that state courts could adequately adjudicate all necessary matters while the supreme tribunal would protect the national interest and assure uniformity.6 [p.598]Wilson and Madison thereupon moved to authorize Congress “to appoint inferior tribunals,”7 which carried the implication that Congress could in its discretion either designate the state courts to hear federal cases or create federal courts. The word “appoint” was adopted and over the course of the Convention changed into phrasing that suggests something of an obligation on Congress to establish inferior federal courts.8 The “good behavior” clause excited no controversy,9 while the only substantial dispute with regard to denying Congress the power to intimidate judges through actual or threatened reduction of salaries came on Madison’s motion to bar increases as well as decreases.10

One Supreme Court

The Convention left up to Congress decision on the size and composition of the Supreme Court, the time and place for sitting, its internal organization, save for the reference to the Chief Justice in the impeachment provision,11 and other matters. These details Congress filled up in the Judiciary Act of 1789, one of the seminal statutes of the United States.12 By the Act, the Court was made to consist of a Chief Justice and five Associate Justices.13 The number was gradually increased until it reached a total of ten under the act of March 3, 1863.14 As one of the Reconstruction Congress’ restrictions on President Andrew Johnson, the number[p.599]was reduced to seven as vacancies should occur.15 The number actually never fell below eight before the end of Johnson’s term, and Congress thereupon made the number nine.16

Proposals have been made at various times for an organization of the Court into sections or divisions. No authoritative judicial expression is available, although Chief Justice Hughes in a letter to Senator 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.”17

Congress has also determined the time and place of sessions of the Court. It utilized this power once in 1801 to change its terms so that for fourteen months the Court did not convene, so as to forestall a constitutional attack on the repeal of the Judiciary Act of 1801.18

Inferior Courts

Congress also acted in the Judiciary Act of 1789 to create inferior courts. Thirteen district courts were constituted to have four sessions annually,19 and three circuit courts were established to consist jointly of two Supreme Court justices each and one of the district judges of such districts which were to meet twice annually in the various districts comprising the circuit.20 This system had substantial faults in operation, not the least of which was the burden imposed on the Justices who were required to travel thousands of miles each year under bad conditions.21 Despite numerous ef[p.600]forts to change this system, it persisted, except for one brief period, until 1891.22 Since then, the federal judicial system has consisted of district courts with original jurisdiction, intermediate appellate courts, and the Supreme Court.

Abolition of Courts.—That Congress “may from time to time ordain and establish” inferior courts would seem to imply that the system may be reoriented from time to time and that Congress is not restricted to the status quo but may expand and contract the units of the system; but if the judges are to have life tenure what is to be done with them when the system is contracted? Unfortunately, the first exercise of the power occurred in a highly politicized situation, and no definite answer emerged. By the Judiciary Act of February 13, 1801,23 passed in the closing weeks of the Adams Administration, the districts were reorganized, and six circuit courts consisting of three circuit judges each were created. Adams filled the positions with deserving Federalists, and upon coming to power the Jeffersonians set in motion plans to repeal the Act, which were carried out.24 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.25 The validity of the repeal was questioned in Stuart v. Laird,26 where Justice Paterson scarcely noticed the argument in rejecting it.

Not until 1913 did Congress again utilize its power to abolish a federal court, this time the unfortunate Commerce Court, which had disappointed the expectations of most of its friends.27 But this time Congress provided for the redistribution of the Commerce Court judges among the circuit courts as well as a transfer of its jurisdiction to the district courts.


1 M. Farrand, The Framing of the Constitution of the United States (New Haven: 1913), 79.
2 The most complete account of the Convention’s consideration of the judiciary is J. Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States, Vol. 1 (New York: 1971), ch. 5.
3 1 M. Farrand, op. cit., n. 1, 21–22. That this version might not possibly be an accurate copy, see 3 id., 593–594.
4 1 id., 95, 104.
5 Id., 95, 105. The words “One or more” were deleted the following day without recorded debate. Id., 116, 119.
6 Id., 124–125.
7 Madison’s notes use the word “institute” in place of “appoint”, id., 125, but the latter appears in the Convention Journal, id., 118, and in Yates’ notes, id., 127, and when the Convention took up the draft reported by the Committee of the Whole “appoint” is used even in Madison’s notes. 2 id., 38, 45.
8 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 id., 125. 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., 186. Its draft also authorized Congress “[t]o constitute tribunals inferior to the Supreme Court.” Id., 182. No debate is recorded when the Convention approved these two clauses, Id. 315, 422–423, 428–430. The Committee on Style left the clause empowering Congress to “constitute” inferior tribunals as was, 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 the more forceful—“ordain and establish.” Id., 600.
9 The provision was in the Virginia Plan and was approved throughout, 1 id., 21.
10 Id, 121; 2 id., 44–45, 429–430.
11 Article I, Sec. 3.
12 Act of September 24, 1789, 1 Stat. 73 . The authoritative works on the Act and its working and amendments are F. Frankfurter & J. Landis, The Business of the Supreme Court (New York: 1928); Warren, New Light on the History of the Federal Judicial Act of 1789, 37 L. Rev.49 (1923); see also J. Goebel, op. cit., n. 2, ch. 11.
13 Act of September 24, 1789, 1 Stat. 73 , Sec. 1.
14 12 Stat. 794 , Sec. 1.
15 Act of July 23, 1866, 14 Stat. 209 , Sec. 1.
16 Act of April 10, 1869, 16 Stat. 44 .
17 Hearings before the Senate Judiciary Committee on S. 1392, Reorganization of the Judiciary, 75th Congress, 1st sess. (1937), pt. 3, 491. For earlier proposals to have the Court sit in divisions, see F. Frankfurter & J. Landis, op. cit., n. 12, 74–85.
18 1 C. Warren, The Supreme Court in United States History (Boston: rev. ed. 1926), 222–224.
19 Act of September 24, 1789, 1 Stat. 73 , §§ 2–3.
20 Id., 74, §§ 4–5
21 Cf. F. Frankfurter & J. Landis, op. cit., n. 12, chs. 1–3: J. Goebel. op. cit., n. 2, 554–560, 565–569. Upon receipt of a letter from President Washington soliciting suggestions regarding the judicial system, Writings of George Washington, J. Fitzpatrick ed., (Washington: 1943), 31, Chief Justice Jay prepared a letter for the approval of the other Justices, declining to comment on the policy questions but raising several issues of constitutionality, that the same man should not be appointed to two offices, that the offices were incompatible, and that the act invaded the prerogatives of the President and Senate. 2 G. McRee, Life and Correspondence of James Iredell (New York: 1858), 293– 296. The letter was apparently never forwarded to the President. Writings of Washington, op. cit., 31–32 n. 58. When the constitutional issue was raised in Stuart v. Laird, 1 Cr. (5 U.S.) 299, 309 (1803), it was passed over with the observation that the practice was too established to be questioned.
22 Act of March 3, 1891, 26 Stat. 826 . The temporary relief came in the Act of February 13, 1801, 2 Stat. 89 , which was repealed by the Act of March 8, 1802, 2 Stat. 132 .
23 Act of February 13, 1801, 2 Stat. 89 .
24 Act of March 8, 1802, 2 Stat. 132 . F. Frankfurter & J. Landis, op. cit., n. 12, 25–32; 1 C. Warren, op. cit., n. 18, 185–215.
25 This was the theory of John Taylor of Caroline, upon whom the Jeffersonians in Congress relied. W. Carpenter, Judicial Tenure in the United States (New Haven: 1918), 63–64. The controversy is recounted fully in id., 58–78.
26 1 Cr. (5 U.S.) 299 (1803).
27 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 . See F. Frankfurter & J. Landis, op. cit., n. 12, 153–174; W. Carpenter, op. cit., n. 25, 78–94.
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