An Inherent Power.

The nature of the contempt power was described Justice Field, writing for the Court in Ex parte Robinson,202 sustaining the act of 1831: “The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.” Expressing doubts concerning the validity of the act as to the Supreme Court, he declared, however, that there could be no question of its validity as applied to the lower courts on the ground that they are created by Congress and that their “powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction.”203 With the passage of time, later adjudications, especially after 1890, came to place more emphasis on the inherent power of courts to punish contempts than upon the power of Congress to regulate summary attachment.

By 1911, the Court was saying that the contempt power must be exercised by a court without referring the issues of fact or law to another tribunal or to a jury in the same tribunal.204 In Michaelson v. United States,205 the Court intentionally placed a narrow interpretation upon those sections of the Clayton Act206 relating to punishment for contempt of court by disobedience of injunctions in labor disputes. The sections in question provided for a jury upon the demand of the accused in contempt cases in which the acts committed in violation of district court orders also constituted a crime under the laws of the United States or of those of the state where they were committed. Although Justice Sutherland reaffirmed earlier rulings establishing the authority of Congress to regulate the contempt power, he went on to qualify this authority and declared that “the attributes which inhere in the power [to punish contempt] and are inseparable from it can neither be abrogated nor rendered practically inoperative.” The Court mentioned specifically “the power to deal summarily with contempt committed in the presence of the courts or so near thereto as to obstruct the administration of justice,” and the power to enforce mandatory decrees by coercive means.207 This latter power, to enforce, the Court has held, includes the authority to appoint private counsel to prosecute a criminal contempt.208 Although the contempt power may be inherent, it is not unlimited. In Spallone v. United States,209 the Court held that a district court had abused its discretion by imposing contempt sanctions on individual members of a city council for refusing to vote to implement a consent decree remedying housing discrimination by the city. The proper remedy, the Court indicated, was to proceed first with contempt sanctions against the city, and only if that course failed should it proceed against the council members individually.

Footnotes

202
86 U.S. (19 Wall.) 505 (1874). [Back to text]
203
86 U.S. at 505–11. [Back to text]
204
Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911). See also In re Debs, 158 U.S. 564, 595 (1895). [Back to text]
205
266 U.S. 42 (1924). [Back to text]
206
38 Stat. 730, 738 (1914). [Back to text]
207
266 U.S. at 65–66. See Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts: A Study in Separation of Powers, 37 HARV. L. REV. 1010 (1924). [Back to text]
208
Young v. United States ex rel. Vuitton, 481 U.S. 787, 793–801 (1987). However, the Court, invoking its supervisory power, instructed the lower federal courts first to request the United States Attorney to prosecute a criminal contempt and only if refused should they appoint a private lawyer. Id. at 801–802. Still using its supervisory power, the Court held that the district court had erred in appointing counsel for a party that was the beneficiary of the court order; disinterested counsel had to be appointed. Id. at 802–08. Justice Scalia contended that the power to prosecute is not comprehended within Article III judicial power and that federal judges had no power, inherent or otherwise, to initiate a prosecution for contempt or to appoint counsel to pursue it. Id. at 815. See also United States v. Providence Journal Co., 485 U.S. 693 (1988), which involved the appointment of a disinterested private attorney. The Supreme Court dismissed the writ of certiorari after granting it, however, holding that only the Solicitor General representing the United States could bring the petition to the Court. See 28 U.S.C. § 518. [Back to text]
209
493 U.S. 265 (1990). The decision was an exercise of the Court’s supervisory power. Id. at 276. Four Justices dissented. Id. at 281. [Back to text]