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, 1801,24 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. Although Adams appointed deserving Federalists to these so-called “midnight judge” positions just before the change in administration, the Jeffersonians soon set in motion plans to repeal the Act, which were carried out.25 No provision was made for the displaced judges, however, apparently under the theory that if there were no courts there could be no judges to sit on them.26 The validity of the repeal was questioned on related grounds in Stuart v. Laird,27 but Justice Paterson rejected the challenge without directly addressing the issue of the displaced judges.
Not until 1913 did Congress again exercise its power to abolish a federal court, this time the unfortunate Commerce Court, which had disappointed the expectations of most of its friends.28 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.
- Act of February 13, 1801, 2 Stat. 89. [Back to text]
- Act of March 8, 1802, 2 Stat. 132. Frankfurter & Landis, supra at 25–32; 1 C. Warren, supra at 185–215. [Back to text]
- This was the theory of John Taylor of Caroline, upon whom the Jeffersonians in Congress relied. W. CARPENTER, JUDICIAL TENURE IN THE UNITED STATES 63–64 (1918). The controversy is recounted fully in id. at 58–78. [Back to text]
- 5 U.S. (1 Cr.) 299 (1803) (sustaining both the transfer of suits between circuits and the sitting of Supreme Court Justices on circuit courts without confirmation to those courts). [Back to text]
- The Court was created by the Act of June 18, 1910, 36 Stat. 539, and repealed by the Act of October 22, 1913, 38 Stat. 208, 219.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 Frankfurter & Landis, supra at 153–174; W. Carpenter, supra at 78–94. [Back to text]