ANCILLARY POWERS OF FEDERAL COURTS
The Contempt Power
Categories of Contempt.

Crucial to an understanding of the history of the law governing the courts’ powers of contempt is an awareness of the various kinds of contempt. With a few notable exceptions,185 the Court has consistently distinguished between criminal and civil contempt, the former being a vindication of the authority of the courts and latter being the preservation and enforcement of the rights of the parties. A civil contempt has been traditionally viewed as the refusal of a person in a civil case to obey a mandatory order. It is incomplete in nature, may be purged by obedience to the court order, and does not involve a sentence for a definite period of time. The classic criminal contempt is one where the act of contempt has been completed, punishment is imposed to vindicate the authority of the court, and a person cannot by subsequent action purge himself of such contempt.186

The issue of whether a certain contempt is civil or criminal can be of great importance. For instance, criminal contempt, unlike civil contempt, implicates procedural rights attendant to prosecutions.187 Or, in Ex parte Grossman,188 while holding that the President may pardon a criminal contempt, Chief Justice Taft noted in dicta that such pardon power did not extend to civil contempt. Notwithstanding the importance of distinguishing between the two, there have been instances where defendants have been charged with both civil and criminal contempt for the same act.189

Long-standing doctrine regarding how courts should distinguish between civil and criminal contempt remains influential. In Shillitani v. United States,190 defendants were sentenced by their respective District Courts to two years imprisonment for contempt of court, but the sentences contained a purge clause providing for the unconditional release of the contemnors upon agreeing to testify before a grand jury. On appeal, the Supreme Court held that the defendants were in civil contempt, notwithstanding their sentence for a definite period of time, on the grounds that the test for determining whether the contempt is civil or criminal is what the court primarily seeks to accomplish by imposing sentence.191 Here, the purpose was to obtain answers to the questions for the grand jury, and the court provided for the defendants’ release upon compliance; whereas, “a criminal contempt proceeding would be characterized by the imposition of an unconditional sentence for punishment or deterence.”192

In International Union, UMW v. Bagwell,193 however, the Court formulated a new test for drawing the distinction between civil and criminal contempt in certain cases. Henceforth, the imposition of non-compensatory contempt fines for the violation of any complex injunction will require criminal proceedings. This case, as have so many, involved the imposition of large fines (here, $52 million) upon a union in a strike situation for violations of an elaborate court injunction restraining union activity during the strike. The Court was vague with regard to the standards for determining when a court order is “complex” and thus requires the protection of criminal proceedings.194

The Court has also recognized a second, but more subtle distinction between types of contempt, and that is the difference between direct and indirect contempt. Direct contempt results when the contumacious act is committed “in the presence of the Court or so near thereto as to obstruct the administration of justice,”195 while indirect contempt is behavior that the Court did not itself witness.196 The nature of the contumacious act, i.e., whether it is direct or indirect, is important because it determines the appropriate procedure for charging the contemnor. As will be seen in the following discussion, the history of the contempt powers of the American judiciary is marked by two trends: a shrinking of the court’s power to punish a person summarily and a multiplying of the due process requirements that must otherwise be met when finding an individual to be in contempt.197

The Act of 1789.

The summary power of the courts of the United States to punish contempts of their authority had its origin in the law and practice of England where disobedience of court orders was regarded as contempt of the King himself and attachment was a prerogative process derived from presumed contempt of the sovereign.198 By the latter part of the eighteenth century, summary power to punish was extended to all contempts whether committed in or out of court.199 In the United States, the Judiciary Act of 1789200 conferred power on all courts of the United States “to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same.” The only limitation placed on this power was that summary attachment was made a negation of all other modes of punishment. The abuse of this extensive power led, following the unsuccessful impeachment of Judge James H. Peck of the Federal District Court of Missouri, to the passage of the Act of 1831 limiting the power of the federal courts to punish contempts to misbehavior in the presence of the courts, “or so near thereto as to obstruct the administration of justice,” to the misbehavior of officers of courts in their official capacity, and to disobedience or resistance to any lawful writ, process or order of the court.201

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.

First Amendment Limitations on the Contempt Power.

The phrase, “in the presence of the Court or so near thereto as to obstruct the administration of justice,” was interpreted so broadly in Toledo Newspaper Co. v. United States210 as to uphold the action of a district court judge in punishing a newspaper for contempt for publishing spirited editorials and cartoons issues raised in an action challenging a street railway’s rates. A majority of the Court held that the test to be applied in determining the obstruction of the administration of justice is not the actual obstruction resulting from an act, but “the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty.” Similarly, the test whether a particular act is an attempt to influence or intimidate a court is not the influence exerted upon the mind of a particular judge but “the reasonable tendency of the acts done to influence or bring about the baleful result . . . without reference to the consideration of how far they may have been without influence in a particular case.”211 In Craig v. Hecht,212 these criteria were applied to sustain the imprisonment of the comptroller of New York City for writing and publishing a letter to a public service commissioner criticizing the action of a United States district judge in receivership proceedings.

The decision in Toledo Newspaper, however, did not follow earlier decisions interpreting the act of 1831 and was grounded on historical error. For these reasons, it was reversed in Nye v. United States,213 and the theory of constructive contempt based on the “reasonable tendency” rule was rejected. The defendants in the civil suit, by persuasion and the use of liquor, had induced a plaintiff feeble in mind and body to ask for dismissal of the suit he had brought against them. The events in the episode occurred more than 100 miles from where the court was sitting and were held not to put the persons responsible for them in contempt of court. Although Nye v. United States was exclusively a case of statutory construction, it was significant from a constitutional point of view because its reasoning was contrary to that of earlier cases narrowly construing the act of 1831 and asserting broad inherent powers of courts to punish contempts independently of, and contrary to, congressional regulation of this power. Bridges v. California214 was noteworthy for the dictum of the majority that the contempt power of all courts, federal as well as state, is limited by the guaranty of the First Amendment against interference with freedom of speech or of the press.215

A series of cases involving highly publicized trials and much news media attention and exploitation,216 however, caused the Court to suggest that the contempt and other powers of trial courts should be used to stem the flow of publicity before it can taint a trial. Thus, Justice Clark, speaking for the majority in Sheppard v. Maxwell,217 wrote, “If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. . . . Neither prosecutors, counsel for defense, the accused, witness, court staff nor law enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.” Though the regulation the Justice had in mind was presumably to be of the parties and related persons rather than of the press, the potential for conflict with the First Amendment is obvious, as well as is the necessity for protection of the equally important right to a fair trial.218

Due Process Limitations on Contempt Power: Right to Notice and to a Hearing Versus Summary Punishment.

Misbehavior in the course of a trial may be punished summarily by the trial judge. In Ex parte Terry,219 the Court denied habeas corpus relief to a litigant who had been jailed for assaulting a United States marshal in the presence of the court. In Cooke v. United States,220 however, the Court remanded for further proceedings a judgment jailing an attorney and his client for presenting the judge a letter which impugned his impartiality with respect to their case, still pending before him. Distinguishing the case from that of Terry, Chief Justice Taft, speaking for the unanimous Court, said: “The important distinction . . . is that this contempt was not in open court. . . . To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court’s dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law.”221

As to the timeliness of summary punishment, the Court, in Sacher v. United States,222 at first construed Rule 42(a) of the Federal Rules of Criminal Procedure, which was designed to afford judges clearer guidelines as to the exercise of their contempt power, to allow “the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power.”223 Subsequently, however, interpreting the Due Process Clause and thus binding both federal and state courts, the Court held that, although the trial judge may summarily and without notice or hearing punish contemptuous conduct committed in his presence and observed by him, if he does choose to wait until the conclusion of the proceeding, he must afford the alleged contemnor at least reasonable notice of the specific charge and opportunity to be heard in his own defense. Apparently, a “full scale trial” is not contemplated.224

Curbing the judge’s power to consider conduct as occurring in his presence, the Court, in Harris v. United States,225 held that summary contempt proceedings in aid of a grand jury probe, achieved through swearing the witness and repeating the grand jury’s questions in the presence of the judge, did not constitute contempt “in the actual presence of the court” for purposes of Rule 42(a); rather, the absence of a disturbance in the court’s proceedings or of the need to immediately vindicate the court’s authority makes the witness’ refusal to testify an offense punishable only after notice and a hearing.226 Moreover, when it is not clear that the judge was fully aware of the contemptuous behavior when it occurred, notwithstanding the fact that it occurred during the trial, “a fair hearing would entail the opportunity to show that the version of the event related to the judge was inaccurate, misleading, or incomplete.”227

Due Process Limitations on Contempt Power: Right to Jury Trial.

Originally, the right to a jury trial was not available in crimi- nal contempt cases.228 But the Court held in Cheff v. Schnackenberg,229 that a defendant is entitled to trial by jury when the punishment in a criminal contempt case in federal court is more than the sentence for a petty offense, traditionally six months. Although the ruling was made pursuant to the Supreme Court’s supervisory powers and was thus inapplicable to state courts and presumably subject to legislative revision, two years later the Court held that the Constitution also requires jury trials in criminal contempt cases in which the offense was more than a petty one.230 Whether an offense is petty or not is determined by the maximum sentence authorized by the legislature or, in the absence of a statute, by the sentence actually imposed. Again the Court drew the line between petty offenses and more serious ones at six months’ imprisonment. Although this case involved an indirect criminal contempt (willful petitioning to admit to probate a will known to be falsely prepared) the majority in dictum indicated that even in cases of direct contempt a jury will be required in appropriate instances. “When a serious contempt is at issue, considerations of efficiency must give way to the more fundamental interest of ensuring the even-handed exercise of judicial power.”231 Presumably, there is no equivalent right to a jury trial in civil contempt cases,232 although one could spend much more time in jail pursuant to a judgment of civil contempt than one could for most criminal contempts.233 The Court has, however, expanded the right to jury trials in federal civil cases on nonconstitutional grounds.234

Due Process Limitations on Contempt Powers: Impartial Tribunal.

In Cooke v. United States,235 Chief Justice Taft uttered some cautionary words to guide trial judges in the use of their contempt powers. “The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. Cornish v. The United States, 299 Fed. 283, 285; Toledo Company v. The United States, 237 Fed. 986, 988. The case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows.”236

Sacher v. United States237 grew out of a tempestuous trial of eleven Communist Party leaders in which Sacher and others were counsel for the defense. Upon the conviction of the defendants, the trial judge at once found counsel guilty of criminal contempt and imposed jail terms of up to six months. At issue directly was whether the contempt charged was one that the judge was authorized to determine for himself or whether it was one that under Rule 42(b) could be passed upon only by another judge and only after notice and hearing, but behind this issue loomed the applicability and nature of due process requirements, in particular whether the defense attorneys were constitutionally entitled to trial before a different judge. A divided Court affirmed most of the convictions, set aside others, and denied that due process required a hearing before a different judge. “We hold that Rule 42 allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion, he may do so without extinguishing his power. . . . We are not unaware or unconcerned that persons identified with unpopular causes may find it difficult to enlist the counsel of their choice. But we think it must be ascribed to causes quite apart from fear of being held in contempt, for we think few effective lawyers would regard the tactics condemned here as either necessary or helpful to a successful defense. That such clients seem to have thought these tactics necessary is likely to contribute to the bar’s reluctance to appear for them rather more than fear of contempt. But that there may be no misunderstanding, we make clear that this Court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. But it will not equate contempt with courage or insults with independence. It will also protect the processes of orderly trial, which is the supreme object of the lawyer’s calling.”238

In Offutt v. United States,239 acting under its supervisory powers over the lower federal courts, the Court set aside a criminal contempt conviction imposed on a lawyer after a trial marked by highly personal recriminations between the trial judge and the lawyer. In a situation in which the record revealed that the contumacious conduct was the product of both lack of self-restraint on the part of the contemnor and a reaction to the excessive zeal and personal animosity of the trial judge, the majority felt that any contempt trial must be held before another judge. This holding, that when a judge becomes personally embroiled in the controversy with an accused he must defer trial of his contempt citation to another judge, which was founded on the Court’s supervisory powers, was constitutionalized in Mayberry v. Pennsylvania,240 in which a defendant acting as his own counsel engaged in quite personal abuse of the trial judge. The Court appeared to leave open the option of the trial judge to act immediately and summarily to quell contempt by citing and convicting an offender, thus empowering the judge to keep the trial going,241 but if he should wait until the conclusion of the trial he must defer to another judge.

Contempt by Disobedience of Orders.

Disobedience of in- junctive orders, particularly in labor disputes, has been a fruitful source of cases dealing with contempt of court. In United States v. United Mine Workers,242 the Court held, first, that disobedience of a temporary restraining order issued for the purpose of maintaining existing conditions, pending the determination of the court’s jurisdiction, is punishable as criminal contempt where the issue is not frivolous, but substantial.243 Second, the Court held that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings, even though the statute under which the order is issued is unconstitutional.244 Third, on the basis of United States v. Shipp,245 the Court held that violations of a court’s order are punishable as criminal contempt, even if the order is set aside on appeal as in excess of the court’s jurisdiction and even if the basic action has become moot.246 Finally, the Court held that conduct can amount to both civil and criminal contempt, and the same acts may justify a court in resorting to coercive and punitive measures, which may be imposed in a single proceeding.247

Contempt Power in Aid of Administrative Power.

Proceedings to enforce the orders of administrative agencies and subpoenas issued by them to appear and produce testimony have become increasingly common since the leading case of ICC v. Brimson,248 which held that the contempt power of the courts might by statutory authorization be used to aid the Interstate Commerce Commission in enforcing compliance with its orders. In 1947 a proceeding to enforce a subpoena duces tecum issued by the Securities and Exchange Commission during the course of an investigation was ruled to be civil in character on the ground that the only sanction was a penalty designed to compel obedience. The Court then enunciated the principle that, where a fine or imprisonment imposed on the contemnor is designed to coerce him to do what he has refused to do, the proceeding is one for civil contempt.249 Notwithstanding the power of administrative agencies to cite an individual for contempt, however, such bodies must be acting within the authority that has been lawfully delegated to them.250

Sanctions Other Than Contempt

Long recognized by the courts as inherent powers are those authorities that are necessary to the administration of the judicial system itself, of which the contempt power just discussed is only the most controversial.251 Courts, as elements of an independent and coequal branch of government, once they are created and their jurisdiction established, have the authority to do what courts have traditionally done in order to accomplish their assigned tasks.252 Of course, these inherent powers may be limited by statutes and by rules,253 but, just as noted above in the discussion of the same issue with respect to contempt, the Court asserts both the power to act in areas not covered by statutes and rules and the power to act unless Congress has not only provided regulation of the exercise of the power, but also has unmistakably enunciated its intention to limit the courts’ inherent powers.254

Thus, in Chambers v. NASCO, Inc., the Court upheld the imposition of monetary sanctions against a litigant and his attorney for bad-faith litigation conduct in a diversity case. Some of the conduct was covered by a federal statute and several sanction provisions of the Federal Rules of Civil Procedure, but some was not, and the Court held that, absent a showing that Congress had intended to limit the courts, they could use their inherent powers to impose sanctions for the entire course of conduct, including shifting attorneys’ fees, which is ordinarily against the common-law American rule.255 Nonetheless, the Court has clarified that because a court’s order directing a sanctioned litigant to reimburse the legal fees and costs incurred by the wronged party as a result of bad faith conduct is compensatory, rather than punitive, in nature, a fee award may go no further than to redress the wronged party “for losses sustained.”256 In another case, a party failed to comply with discovery orders and a court order concerning a schedule for filing briefs. The Supreme Court held that the attorneys’ fees statute did not allow assessment of such fees in that situation, but it remanded for consideration of sanctions under both a Federal Rule of Civil Procedure and the trial court’s inherent powers, subject to a finding of bad faith.257 But bad faith is not always required for the exercise of some inherent powers. Thus, courts may dismiss an action for an unexplained failure of the moving party to prosecute it.258

Power to Issue Writs: The Act of 1789

From the beginning of government under the Constitution of 1789, Congress has assumed, under the Necessary and Proper Clause, its power to establish inferior courts, its power to regulate the jurisdiction of federal courts, and its power to regulate the issuance of writs.259 Section 13 of the Judiciary Act of 1789 authorized the Supreme Court “to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.”260 Section 14 provided that all “courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.”261

Although the Act of 1789 left the power over writs subject largely to the common law, it is significant as a reflection of the belief, in which the courts have on the whole concurred, that an act of Congress is necessary to confer judicial power to issue writs.262 Whether Article III itself is an independent source of the power of federal courts to fashion equitable remedies for constitutional violations or whether such remedies must fit within congressionally authorized writs or procedures is often left unexplored. In Missouri v. Jenkins,263 for example, the Court, rejecting a claim that a federal court exceeded judicial power under Article III by ordering local authorities to increase taxes to pay for desegregation remedies, declared that “a court order directing a local government body to levy its own taxes” is plainly a judicial act within the power of a federal court.264 In the same case, the Court refused to rule on “the difficult constitutional issues” presented by the state’s claim that the district court had exceeded its constitutional powers in a prior order directly raising taxes, instead ruling that this order had violated principles of comity.265

Common Law Powers of District of Columbia Courts.

The portion of § 13 of the Judiciary Act of 1789 that authorized the Supreme Court to issue writs of mandamus in the exercise of its original jurisdiction was held invalid in Marbury v. Madison,266 as an unconstitutional enlargement of the Supreme Court’s original jurisdiction. After two more futile efforts to obtain a writ of mandamus, in cases in which the Court found that power to issue the writ had not been vested by statute in the courts of the United States except in aid of already existing jurisdiction,267 a litigant was successful in Kendall v. United States ex rel. Stokes,268 in finding a court that would take jurisdiction in a mandamus proceeding. This was the circuit court of the United States for the District of Columbia, which was held to have jurisdiction, on the theory that the common law, in force in Maryland when the cession of that part of the state that became the District of Columbia was made to the United States, remained in force in the District. At an early time, therefore, the federal courts established the rule that mandamus can be issued only when authorized by a constitutional statute and within the limits imposed by the common law and the separation of powers.269

Habeas Corpus: Congressional and Judicial Control.

The writ of habeas corpus270 has a special status because its suspension is forbidden, except in narrow circumstances, by Article I, § 9, cl. 2. The writ also has a venerable common law tradition, long antedating its recognition by the first Congress in the Judiciary Act of 1789,271 as a means “to relieve detention by executive authorities without judicial trial.”272 Nowhere in the Constitution, however, is the power to issue the writ vested in the federal courts, which raises the question of whether Congress could suspend the writ de facto by declining to authorize its issuance. In other words, is a statute needed to make the writ available or does the right to habeas corpus stem by implication from the Suspension Clause or from the grant of judicial power?273

Since Chief Justice Marshall’s opinion in Ex parte Bollman,274 it was generally275 accepted that “the power to award the writ by any of the courts of the United States, must be given by written law.”276 As Marshall explained, however, the suspension clause was an “injunction,” an “obligation” to provide “efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted.”277 And so it has been understood since,278 with only a few judicial voices raised to suggest that what Congress could not do directly (by suspension) it could not do by omission (by failing to provide for habeas).279 But, because statutory authority had always existed authorizing the federal courts to grant the relief they deemed necessary under habeas corpus, the Court did not need to face the question.280

Having determined in Bollman that a statute was necessary before the federal courts had power to issue writs of habeas corpus, Chief Justice Marshall pointed to § 14 of the Judiciary Act of 1789 as containing the necessary authority.281 As the Chief Justice read it, the authorization was limited to persons imprisoned under federal authority. It was not until 1867, with two small exceptions,282 that legislation specifically empowered federal courts to inquire into the imprisonment of persons under state authority.283 Pursuant to this authorization, the Court then expanded the use of the writ into a major instrument to reform procedural criminal law in both federal and state jurisdictions.

However, the question then arose as to what aspects of this broader habeas are protected against suspension. Noting that the statutory writ of habeas corpus has been expanded dramatically since the First Congress, the Court has written that it “assume[s] . . . that the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789.”284 This statement, however, appears to be in tension with the theory of congressionally defined habeas found in Bollman, unless one assumes that a habeas right, once created, cannot be diminished. The Court, however, in reviewing provisions of the Antiterrorism and Effective Death Penalty Act285 that limited habeas, passed up an opportunity to delineate Congress’s permissive authority over habeas, finding that none of the limitations to the writ in that statute raised questions of constitutional import.286

For practical purposes, the issue appears to have been resolved by Boumediene v. Bush,287 in which the Court held that Congress’s attempt to eliminate all federal habeas jurisdiction over “enemy combatant” detainees held at Guantanamo Bay288 violated the Suspension Clause. Although the Court did not explicitly identify whether the underlying right to habeas that was at issue arose from statute, common law, or the Constitution itself, it did decline to infer “too much” from the lack of historical examples of habeas being extended to enemy aliens held overseas.289 In Boumediene, the Court instead emphasized a “functional” approach that considered the citizenship and status of the detainee, the adequacy of the process through which the status determination was made, the nature of the sites where apprehension and detention took place, and any practical obstacles inherent in resolving the prisoner’s entitlement to the writ.290

In further determining that the procedures afforded to the detainees to challenge their detention in court were not adequate substitutes for habeas, the Court noted the heightened due process concerns when a detention is based principally on Executive Branch proceedings—here, Combatant Status Review Tribunals or (CSRTs)— rather than proceedings before a court of law.291 The Court also expressed concern that the detentions had, in some cases, lasted as long as six years without significant judicial oversight.292 The Court further noted the limitations at the CSRT stage on a detainee’s ability to find and present evidence to challenge the government’s case, the unavailability of assistance of counsel, the inability of a detainee to access certain classified government records which could contain critical allegations against him, and the admission of hearsay evidence. While reserving judgment as to whether the CSRT process itself comports with due process, the Court found that the appeals process for these decisions, assigned to the United States Court of Appeals for the District of Columbia, did not contain the means necessary to correct errors occurring in the CSRT process.293

Habeas Corpus: The Process of the Writ.

A petition for a writ of habeas corpus is filed by or on behalf of a person in “custody,” a concept which has been expanded so much that it is no longer restricted to actual physical detention in jail or prison.294 The writ acts upon the custodian, not the prisoner, so the issue under the jurisdictional statute is whether the custodian is within the district court’s jurisdiction.295 Traditionally, the proceeding could not be used to secure an adjudication of a question which if determined in the petitioner’s favor would not result in his immediate release, since a discharge from custody was the only function of the writ,296 but this restraint too the Court has abandoned in an emphasis upon the statutory language directing the habeas court to “dispose of the matter as law and justice require.”297 Thus, even if a prisoner has been released from jail, the presence of collateral consequences flowing from his conviction gives the court jurisdiction to determine the constitutional validity of the conviction.298

Petitioners seeking federal habeas relief must first exhaust their state remedies, a limitation long settled in the case law and codified in 1948.299 Prisoners are required to present their claims in state court only once, either on appeal or collateral attack, and they need not return time and again to raise their issues before coming to federal court.300 In addition, “[w]hen a state court declines to review the merits of a petitioner’s claim on the ground that it has done so already, it creates no bar to federal habeas review. . . . A claim is procedurally barred when it has not been fairly presented to the state courts for their initial consideration—not when the claim has been presented more than once.”301

Although they were once required to petition the Supreme Court on certiorari to review directly their state convictions, prisoners have been relieved of this largely pointless exercise,302 but, if the Supreme Court has taken and decided a case, then its judgment is conclusive in habeas on all issues of fact or law actually adjudicated.303 A federal prisoner in a § 2255 proceeding will file his motion in the court that sentenced him;304 a state prisoner in a federal habeas action may file either in the district of the court in which he was sentenced or in the district in which he is in custody.305

Habeas corpus is not a substitute for an appeal.306 It is not a method to test ordinary procedural errors at trial or violations of state law but only to challenge alleged errors which if established would go to make the entire detention unlawful under federal law.307 If, after appropriate proceedings, the habeas court finds that on the facts discovered and the law applied the prisoner is entitled to relief, it must grant it, ordinarily ordering the government to release the prisoner unless he is retried within a certain period.308

Congressional Limitation of the Injunctive Power

Although some judicial dicta309 support the idea of an inherent power of the federal courts sitting in equity to issue injunctions independently of statutory limitations, neither the course taken by Congress nor the specific rulings of the Supreme Court support any such principle. Congress has repeatedly exercised its power to limit the use of the injunction in federal courts. The first limitation on the equity jurisdiction of the federal courts is to be found in § 16 of the Judiciary Act of 1789, which provided that no equity suit should be maintained where there was a full and adequate remedy at law. Although this provision did no more than declare a pre-existing rule long applied in chancery courts,310 it did assert the power of Congress to regulate the equity powers of the federal courts. The Act of March 2, 1793,311 prohibited the issuance of any injunction by any court of the United States to stay proceedings in state courts except where such injunctions may be authorized by any law relating to bankruptcy proceedings. In subsequent statutes, Congress prohibited the issuance of injunctions in the federal courts to restrain the collection of taxes,312 provided for a three-judge court as a prerequisite to the issuance of injunctions to restrain the enforcement of state statutes for unconstitutionality,313 for enjoining federal statutes for unconstitutionality,314 and for enjoining orders of the Interstate Commerce Commission,315 limited the power to issue injunctions restraining rate orders of state public utility commissions,316 and the use of injunctions in labor disputes,317 and placed a very rigid restriction on the power to enjoin orders of the Administrator under the Emergency Price Control Act.318

Perhaps pressing its powers further than prior legislation, Congress has enacted the Prison Litigation Reform Act of 1996.319 Essentially, the law imposes a series of restrictions on judicial remedies in prison-conditions cases. Thus, courts may not issue prospective relief that extends beyond that necessary to correct the violation of a federal right that they have found, that is narrowly drawn, is the least intrusive, and that does not give attention to the adverse impact on public safety. Preliminary injunctive relief is limited by the same standards. Consent decrees may not be approved unless they are subject to the same conditions, meaning that the court must conduct a trial and find violations, thus cutting off consent decrees. If a decree was previously issued without regard to the standards now imposed, the defendant or intervenor is entitled to move to vacate it. No prospective relief is to last longer than two years if any party or intervenor so moves. Finally, a previously issued decree that does not conform to the new standards imposed by the Act is subject to termination upon the motion of the defendant or an intervenor. After a short period (30 or 60 days, depending on whether there is “good cause” for a 30-day extension), such a motion operates as an automatic stay of the prior decree pending the court’s decision on the merits. The Court upheld the termination and automatic stay provisions in Miller v. French,320 rejecting the contention that the automatic stay provision offends separation of powers principles by legislative revision of a final judgment. Rather, Congress merely established new standards for the enforcement of prospective relief, and the automatic stay provision “helps to implement the change in the law.”321 A number of constitutional challenges can be expected respecting Congress’s power to limit federal judicial authority to remedy constitutional violations.

All of these restrictions have been sustained by the Supreme Court as constitutional and applied with varying degrees of thoroughness. The Court has made exceptions to the application of the prohibition against the stay of proceedings in state courts,322 but it has on the whole adhered to the statute. The exceptions raise no constitutional issues, and the tendency has been alternately to contract and to expand the scope of the exceptions.323

In Duplex Printing Press Co. v. Deering,324 the Supreme Court placed a narrow construction upon the labor provisions of the Clayton Act and thereby contributed in part to the more extensive restriction by Congress on the use of injunctions in labor disputes in the Norris-LaGuardia Act of 1932, which has not only been declared constitutional325 but has been applied liberally326 and in such a manner as to repudiate the notion of an inherent power to issue injunctions contrary to statutory provisions.

Injunctions Under the Emergency Price Control Act of 1942.

Lockerty v. Phillips327 justifies the same conclusion. Here the validity of the special appeals procedure of the Emergency Price Control Act of 1942 was sustained. This act provided for a special Emergency Court of Appeals, which, subject to review by the Supreme Court, was given exclusive jurisdiction to determine the validity of regulations, orders, and price schedules issued by the Office of Price Administration. The Emergency Court and the Emergency Court alone was permitted to enjoin regulations or orders of OPA, and even it could enjoin such orders only after finding that the order was not in accordance with law or was arbitrary or capricious. The Emergency Court was expressly denied power to issue temporary restraining orders or interlocutory decrees, and in addition the effectiveness of any permanent injunction it might issue was to be postponed for thirty days. If review was sought in the Supreme Court by certiorari, effectiveness was to be postponed until final disposition. A unanimous Court, speaking through Chief Justice Stone, declared that there “is nothing in the Constitution which requires Congress to confer equity jurisdiction on any particular inferior federal court.” All federal courts, other than the Supreme Court, it was asserted, derive their jurisdiction solely from the exercise of the authority to ordain and establish inferior courts conferred on Congress by Article III, § 1, of the Constitution. This power, which Congress is left free to exercise or not, was held to include the power “ ‘of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.’ ”328 Although the Court avoided passing upon the constitutionality of the prohibition against interlocutory decrees, the language of the Court was otherwise broad enough to support it, as was the language of Yakus v. United States,329 which sustained a different phase of the special procedure for appeals under the Emergency Price Control Act.330

The Rule-Making Power and Powers Over Process

Among the incidental powers of courts is that of making all necessary rules governing their process and practice and for the orderly conduct of their business.331 However, this power too is derived from the statutes and cannot go beyond them. The landmark case is Wayman v. Southard,332 which sustained the validity of the Process Acts of 1789 and 1792 as a valid exercise of authority under the necessary and proper clause. Although Chief Justice Marshall regarded the rule-making power as essentially legislative in nature, he ruled that Congress could delegate to the courts the power to vary minor regulations in the outlines marked out by the statute. Fifty-seven years later, in Fink v. O’Neil,333 in which the United States sought to enforce by summary process the payment of a debt, the Supreme Court ruled that under the process acts the law of Wisconsin was the law of the United States, and hence the government was required to bring a suit, obtain a judgment, and cause execution to issue. Justice Matthews for a unanimous Court declared that the courts have “no inherent authority to take any one of these steps, except as it may have been conferred by the legislative department; for they can exercise no jurisdiction, except as the law confers and limits it.”334 Conceding, in 1934, the limited competence of legislative bodies to establish a comprehensive system of court procedure, and acknowledging the inherent power of courts to regulate the conduct of their business, Congress authorized the Supreme Court to prescribe rules for the lower federal courts not inconsistent with the Constitution and statutes.335 Their operation being restricted, in conformity with the proviso attached to the congressional authorization, to matters of pleading and practice, the Federal Rules of Civil Procedure thus judicially promulgated neither affect the substantive rights of litigants336 nor alter the jurisdiction337 of federal courts and the venue of actions therein338 and, thus circumscribed, have been upheld as valid.

Limitations to The Rule Making Power.

The principal func- tion of court rules is that of regulating the practice of courts as regards forms, the operation and effect of process, and the mode and time of proceedings. However, rules are sometimes employed to state in convenient form principles of substantive law previously established by statutes or decisions. But no such rule “can enlarge or restrict jurisdiction. Nor can a rule abrogate or modify the substantive law.” This rule is applicable equally to courts of law, equity, and admiralty, to rules prescribed by the Supreme Court for the guidance of lower courts, and to rules “which lower courts make for their own guidance under authority conferred.”339 As incident to the judicial power, courts of the United States possess inherent authority to supervise the conduct of their officers, parties, witnesses, counsel, and jurors by self-preserving rules for the protection of the rights of litigants and the orderly administration of justice.340

The courts of the United States possess inherent equitable powers over their process to prevent abuse, oppression, and injustice, and to protect their jurisdiction and officers in the protection of property in the custody of law.341 Such powers are said to be essential to and inherent in the organization of courts of justice.342 While the Court has not “precisely delineated the outer boundaries” of a federal court’s inherent powers to manage its own internal affairs, the Court has recognized two limits on the exercise of such authority.343 First, a court, in exercising its inherent powers over its own processes, must act reasonably in response to a specific problem or issue “confronting the court’s fair administration of justice.”344 Second, any exercise of an inherent power cannot conflict with any express grant of or limitation on the district court’s power as contained in a statute or rule, such as the Federal Rules of Civil Procedure.345 In applying these two standards, the Court has recognized that a district court, as an exercise of its inherent powers, can in limited circumstances rescind an order to discharge a jury and recall that jury in a civil case.346 The Supreme Court has also acknowledged that federal courts possess the inherent power to control other aspects of regulating internal court proceedings, including having the inherent power to (1) hear a motion in limine;347 (2) dismiss a case for the convenience of the parties or witnesses because of the availability of an alternative forum348 ; and (3) stay proceedings pending the resolution of parallel actions in other courts.349 The courts of the United States also possess inherent power to amend their records, correct the errors of the clerk or other court officers, and to rectify defects or omissions in their records even after the lapse of a term, subject, however, to the qualification that the power to amend records conveys no power to create a record or re-create one of which no evidence exists.350 Nonetheless, while the exercise of an inherent power can, at times, allow for departures from even long-established, judicially crafted common law rules,351 courts are not “generally free to discover new inherent powers that are contrary to civil practice as recognized in the common laws.”352

Appointment of Referees, Masters, and Special Aids

The administration of insolvent enterprises, investigations into the reasonableness of public utility rates, and the performance of other judicial functions often require the special services of masters in chancery, referees, auditors, and other special aids. The practice of referring pending actions to a referee was held in Heckers v. Fowler353 to be coequal with the organization of the federal courts. In the leading case of Ex parte Peterson,354 a United States district court appointed an auditor with power to compel the attendance of witnesses and the production of testimony. The court authorized him to conduct a preliminary investigation of facts and file a report thereon for the purpose of simplifying the issues for the jury. This action was neither authorized nor prohibited by statute. In sustaining the action of the district judge, Justice Brandeis, speaking for the Court, declared: “Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties. . . . This power includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause.”355 The power to appoint auditors by federal courts sitting in equity has been exercised from their very beginning, and here it was held that this power is the same whether the court sits in law or equity.

Power to Admit and Disbar Attorneys

Subject to general statutory qualifications for attorneys, the power of the federal courts to admit and disbar attorneys rests on the common law from which it was originally derived. According to Chief Justice Taney, it was well settled by the common law that “it rests exclusively with the Court to determine who is qualified to become one of its officers, as an attorney and counselor, and for what cause he ought to be removed.” Such power, he made clear, however, “is not an arbitrary and despotic one, to be exercised at the pleasure of the Court, or from passion, prejudice, or personal hostility; but it is the duty of the Court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the Court, as the right and dignity of the Court itself.”356 The Test-Oath Act of July 2, 1862, which purported to exclude former Confederates from the practice of law in the federal courts, was invalidated in Ex parte Garland.357 In the course of his opinion for the Court, Justice Field discussed generally the power to admit and disbar attorneys. The exercise of such a power, he declared, is judicial power. The attorney is an officer of the court, and though Congress may prescribe qualifications for the practice of law in the federal courts, it may not do so in such a way as to inflict punishment contrary to the Constitution or to deprive a pardon of the President of its legal effect.358

Footnotes

185
E.g., United States v. United Mine Workers, 330 U.S. 258 (1947). [Back to text]
186
Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441–443 (1911); Ex parte Grossman, 267 U.S. 87 (1925). See also Bessette v. W.B. Conkey Co., 194 U.S. 324, 327–328 (1904). [Back to text]
187
In Robertson v. United States ex rel. Watson, the Court had granted certiorari to consider a District of Columbia law that allowed a private individual to bring a criminal contempt action in the congressionally established D.C. courts based on a violation of a civil protective order. 560 U.S. ___, No. 08–6261, slip op. (2010). The Court subsequently issued a per curiam order dismissing the writ of certiorari as having been improvidently granted, but four Justices dissented. Writing in dissent, Chief Justice Roberts thought it imperative to make clear that “[t]he terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought of behalf of the government.” 560 U.S. ___, No. 08–6261, slip op. at 1 (2010) (Roberts, C.J., dissenting). Of particular concern was how various protections in the Bill of Rights against government action would play out in a privately brought action. Id. at 5–6. [Back to text]
188
267 U.S. 87, 119–120 (1925). In an analogous case, the Court was emphatic in a dictum that Congress cannot require a jury trial where the contemnor has failed to perform a positive act for the relief of private parties, Michaelson v. United States ex rel. Chicago, S.P., M. & Ry. Co., 266 U.S. 42, 65–66 (1924). But see Bloom v. Illinois, 391 U.S. 194, 202 (1968). [Back to text]
189
See United States v. United Mine Workers, 330 U.S. 258, 299 (1947). [Back to text]
190
384 U.S. 364 (1966). [Back to text]
191
384 U.S. at 370. [Back to text]
192
384 U.S. at 370 n.6. See Hicks v. Feiock, 485 U.S. 624 (1988) (remanding for determination whether payment of child support arrearages would purge a determinate sentence, the proper characterization critical to decision on a due process claim). [Back to text]
193
512 U.S. 821 (1994). [Back to text]
194
512 U.S. at 832–38. Relevant is the fact that the alleged contempts did not occur in the presence of the court and that determinations of violations require elaborate and reliable fact-finding. See esp. id. at 837–38. [Back to text]
195
Act of March 2, 1831, ch. 99, § 1, 4 Stat. 488. Cf. Rule 42(a), FRCrP, which provides, “A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.” See also Beale, Contempt of Court, Civil and Criminal, 21 HARV. L. REV. 161, 171–172 (1908). [Back to text]
196
See Fox, The Nature of Contempt of Court, 37 L.Q. REV. 191 (1921). [Back to text]
197
Many of the limitations placed on the inferior federal courts have been issued on the basis of the Supreme Court’s supervisory power over them rather than upon a constitutional foundation, while, of course, the limitations imposed on state courts necessarily are on constitutional dimensions. Indeed, it is often the case that a limitation, which is applied to an inferior federal court as a superintending measure, is then transformed into a constitutional limitation and applied to state courts. Compare Cheff v. Schnackenberg, 384 U.S. 373 (1966), with Bloom v. Illinois, 391 U.S. 194 (1968). In the latter stage, the limitations then bind both federal and state courts alike. Therefore, in this section, Supreme Court constitutional limitations on state court contempt powers are cited without restriction for equal application to federal courts. [Back to text]
198
Fox, The King v. Almon, 24 L.Q. REV. 184, 194–195 (1908). [Back to text]
199
Fox, The Summary Power to Punish Contempt, 25 L.Q. REV. 238, 252 (1909). [Back to text]
200
1 Stat. 83, § 17 (1789). [Back to text]
201
18 U.S.C. § 401. For a summary of the Peck impeachment and the background of the act of 1831, 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, 1024–1028 (1924). [Back to text]
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]
210
247 U.S. 402 (1918). [Back to text]
211
247 U.S. at 418–21. [Back to text]
212
263 U.S. 255 (1923). [Back to text]
213
313 U.S. 33, 47–53 (1941). [Back to text]
214
314 U.S. 252, 260 (1941). [Back to text]
215
See also Wood v. Georgia, 370 U.S. 375 (1962), further clarifying the limitations imposed by the First Amendment upon this judicial power and delineating the requisite serious degree of harm to the administration of law necessary to justify exercise of the contempt power to punish the publisher of an out-of-court statement attacking a charge to the grand jury, absent any showing of actual interference with the activities of the grand jury. It is now clearly established that courtroom conduct to be punishable as contempt “must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.” Craig v. Harney, 331 U.S. 367, 376 (1947); In re Little, 404 U.S. 553, 555 (1972). [Back to text]
216
E.g., Estes v. Texas, 381 U.S. 532 (1965); Marshall v. United States, 360 U.S. 310 (1959); Sheppard v. Maxwell, 384 U.S. 333 (1966). [Back to text]
217
384 U.S. 333, 363 (1966). [Back to text]
218
For another approach, bar rules regulating the speech of counsel and the First Amendment standard, see Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). [Back to text]
219
128 U.S. 289 (1888). [Back to text]
220
267 U.S. 517 (1925). [Back to text]
221
267 U.S. at 535, 534. [Back to text]
222
343 U.S. 1 (1952). [Back to text]
223
343 U.S. at 11. [Back to text]
224
Taylor v. Hayes, 418 U.S. 488 (1974). In a companion case, the Court observed that, although its rule conceivably encourages a trial judge to proceed immediately rather than awaiting a calmer moment, “[s]ummary convictions during trials that are unwarranted by the facts will not be invulnerable to appellate review.” Codispoti v. Pennsylvania, 418 U.S. 506, 517 (1974). [Back to text]
225
382 U.S. 162 (1965), overruling Brown v. United States, 359 U.S. 41 (1959). [Back to text]
226
But see Green v. United States, 356 U.S. 165 (1958) (noncompliance with order directing defendants to surrender to marshal for execution of their sentence is an offense punishable summarily as a criminal contempt); Reina v. United States, 364 U.S. 507 (1960). [Back to text]
227
Johnson v. Mississippi, 403 U.S. 212, 215 (1971) (citing In re Oliver, 333 U.S. 257, 275–276 (1948)). [Back to text]
228
See Green v. United States, 356 U.S. 165 (1958); United States v. Barnett, 376 U.S. 681 (1964), and cases cited. The dissents of Justices Black and Douglas in those cases prepared the ground for the Court’s later reversal. On the issue, 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, 1042–1048 (1924). [Back to text]
229
384 U.S. 373 (1966). [Back to text]
230
Bloom v. Illinois, 391 U.S. 194 (1968). See also International Union, UMW v. Bagwell, 512 U.S. 821 (1994) (refining the test for when contempt citations are criminal and thus require jury trials). [Back to text]
231
391 U.S. at 209. In Codispoti v. Pennsylvania, 418 U.S. 506 (1974), the Court held a jury trial to be required when the trial judge awaits the conclusion of the proceeding and then imposes separate contempt sentences in which the total aggregated more than six months even though no sentence for more than six months was imposed for any single act of contempt. For a tentative essay at defining a petty offense when a fine is levied, see Muniz v. Hoffman, 422 U.S. 454, 475–77 (1975). In International Union, UMW v. Bagwell, 512 U.S. 821, 837 n.5 (1994), the Court continued to reserve the question of the distinction between petty and serious contempt fines, because of the size of the fine in that case. [Back to text]
232
The Sixth Amendment is applicable only to criminal cases and the Seventh to suits at common law, but the due process clause is available if needed. [Back to text]
233
Note that under 28 U.S.C. § 1826 a recalcitrant witness before a grand jury may be imprisoned for the term of the grand jury, which can be 36 months. 18 U.S.C. § 3331(a). [Back to text]
234
E.g., Beacon Theatres v. Westover, 359 U.S. 500 (1959); Dairy Queen v. Wood, 369 U.S. 469 (1962); Ross v. Bernhard, 396 U.S. 531 (1970). However, the Court’s expansion of jury trial rights may have halted with McKeiver v. Pennsylvania, 403 U.S. 528 (1971). [Back to text]
235
267 U.S. 517, 539 (1925). [Back to text]
236
The Toledo Company case that the Court cited was affirmed in Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918). [Back to text]
237
343 U.S. 1 (1952). See Dennis v. United States, 341 U.S. 494 (1951). [Back to text]
238
343 U.S. at 11, 13–14. [Back to text]
239
348 U.S. 11 (1954). [Back to text]
240
400 U.S. 455 (1971). See also Johnson v. Mississippi, 403 U.S. 212 (1971); Holt v. Virginia, 381 U.S. 131 (1965). Even in the absence of a personal attack on a judge that would tend to impair his detachment, the judge may still be required to excuse himself and turn a citation for contempt over to another judge if the response to the alleged misconduct in his courtroom partakes of the character of “marked personal feelings” being abraded on both sides, so that it is likely the judge has felt a “sting” sufficient to impair his objectivity. Taylor v. Hayes, 418 U.S. 488 (1974). [Back to text]
241
400 U.S. at 463. See Illinois v. Allen, 397 U.S. 337 (1970), in which the Court affirmed that summary contempt or expulsion may be used to keep a trial going. [Back to text]
242
330 U.S. 258 (1947). See also International Union, UMW v. Bagwell, 512 U.S. 821 (1994). [Back to text]
243
330 U.S. at 292–93. [Back to text]
244
330 U.S. at 293. See Walker v. City of Birmingham, 388 U.S. 307 (1967). [Back to text]
245
203 U.S. 563 (1906). [Back to text]
246
330 U.S. at 290–92. [Back to text]
247
330 U.S. at 299. But see Cheff v. Schnackenberg, 384 U.S. 273 (1966), and “Due Process Limitations on Contempt Power: Right to Jury Trial,” supra. [Back to text]
248
154 U.S. 447 (1894). [Back to text]
249
Penfield Co. v. SEC, 330 U.S. 585 (1947). Note the dissent of Justice Frankfurter. For delegations of the subpoena power to administrative agencies and the use of judicial process to enforce them, see also McCrone v. United States, 307 U.S. 61 (1939); Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946). [Back to text]
250
Gojack v. United States, 384 U.S. 702 (1966). See also Sanctions of the Investigatory Power: Contempt, supra, for a discussion of Congress’s power to cite an individual for contempt by virtue of its investigatory duties, which is applicable, at least by analogy, to administrative agencies. [Back to text]
251
“Certain implied powers must necessarily result to our courts of justice, from the nature of their institution. . . . To fine for contempt, imprison for contumacy, enforce the observance of order, &c., are powers which cannot be dispensed with in a court, because they are necessary to the exercise of all others: and so far our courts, no doubt, possess powers not immediately derived from statute . . . .” United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 34 (1812). [Back to text]
252
See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227 (1821); Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1874); Link v. Wabash R.R., 370 U.S. 626, 630–631 (1962); Chambers v. NASCO, Inc., 501 U.S. 32, 43–46 (1991); and id. at 58 (Justice Scalia dissenting), 60, 62–67 (Justice Kennedy dissenting). [Back to text]
253
Chambers v. NASCO, Inc., 501 U.S. at 47. [Back to text]
254
Id. at 46–51. [Back to text]
255
Id. at 49–51. [Back to text]
256
See Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. ___, No. 15–1406, slip op. at 5–6 (2017) (holding that a court, “when using its inherent sanctioning authority,” must “establish a causal link—between the litigant’s misbehavior and legal fees paid by the opposing party”). [Back to text]
257
Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). [Back to text]
258
Link v. Wabash R.R., 370 U.S. 626 (1962). [Back to text]
259
Frankfurter & Landis, Power of Congress Over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts—A Study in Separation of Powers, 37 HARV. L. REV. 1010, 1016–1023 (1924). [Back to text]
260
1 Stat. 73, 81. “Section 13 was a provision unique to the Court, granting the power of prohibition as to district courts in admiralty and maritime cases . . . .” WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION [Back to text]
261
1 Stat. 73, 81–82. See also United States v. Morgan, 346 U.S. 502 (1954), holding that the All Writs section of the Judicial Code, 28 U.S.C. § 1651(a), gives federal courts the power to employ the ancient writ of coram nobis. [Back to text]
262
This proposition was recently reasserted in Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34 (1985) (holding that a federal district court lacked authority to order U.S. marshals to transport state prisoners, such authority not being granted by the relevant statutes). [Back to text]
263
495 U.S. 33 (1990). [Back to text]
264
495 U.S. at 55, citing Griffin v. Prince Edward County School Bd., 377 U.S. 218, 233–34 (1964) (an order that local officials “exercise the power that is theirs” to levy taxes in order to open and operate a desegregated school system “is within the court’s power if required to assure . . . petitioners that their constitutional rights will no longer be denied them”). [Back to text]
265
495 U.S. at 50–52. [Back to text]
266
5 U.S. (1 Cr.) 137 (1803). Cf. Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321 (1796). [Back to text]
267
McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); McClung v. Silliman, 19 U.S. (6 Wheat.) 598 (1821). [Back to text]
268
37 U.S. (12 Pet.) 524 (1838). [Back to text]
269
In 1962, Congress conferred upon all federal district courts the same power to issue writs of mandamus as was exercisable by federal courts in the District of Columbia. 76 Stat. 744, 28 U.S.C. § 1361. [Back to text]
270
Reference to the “writ of habeas corpus” is to the “Great Writ,” habeas corpus ad subjiciendum, by which a court would inquire into the lawfulness of a detention of the petitioner. Ex parte Bollman, 8 U.S. (4 Cr.) 75, 95 (1807). For other uses, see Carbo v. United States, 364 U.S. 611 (1961); Price v. Johnston, 334 U.S. 266 (1948). Technically, federal prisoners no longer utilize the writ of habeas corpus in seeking post-conviction relief, now the largest office of the writ, but proceed under 28 U.S.C. § 2255, on a motion to vacate judgment. Intimating that if § 2255 afforded prisoners a less adequate remedy than they would have under habeas corpus, it would be unconstitutional, the Court in United States v. Hayman, 342 U.S. 205 (1952), held the two remedies to be equivalent. Cf. Sanders v. United States, 373 U.S. 1, 14 (1963). The claims cognizable under one are cognizable under the other. Kaufman v. United States, 394 U.S. 217 (1969). Therefore, the term habeas corpus is used here to include the § 2255 remedy. There is a plethora of writings about the writ. See, e.g., Hart & Wechsler (6th ed), supra at 1153–1310; Developments in the Law: Federal Habeas Corpus, 83 HARV. L. REV. 1038 (1970). [Back to text]
271
Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82. [Back to text]
272
INS v. St. Cyr, 533 U.S. 289, 301 (2001), quoted in Rasul v. Bush, 542 U.S. 466, 474 (2004). [Back to text]
273
Professor Chafee contended that by the time of the Constitutional Convention the right to habeas corpus was so well established no affirmative authorization was needed. The Most Important Human Right in the Constitution, 32 B.U.L. REV. 143, 146 (1952). But compare Collins, Habeas Corpus for Convicts: Constitutional Right or Legislative Grace?, 40 CALIF. L. REV. 335, 344–345 (1952). [Back to text]
274
8 U.S. (4 Cr.) 75 (1807). [Back to text]
275
8 U.S. at 94. See also Ex parte Dorr, 44 U.S. (3 How.) 103 (1845). [Back to text]
276
8 U.S. at 64. [Back to text]
277
8 U.S. at 95. In quoting the clause, Marshall renders “shall not be suspended” as “should not be suspended.” [Back to text]
278
See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). Cf. Carbo v. United States, 364 U.S. 611, 614 (1961). [Back to text]
279
E.g., Eisentrager v. Forrestal, 174 F.2d 961, 966 (D.C. Cir. 1949), revd. on other grounds sub nom., Johnson v. Eisentrager, 339 U.S. 763 (1950) (holding that habeas exists as an inherent common law right); see also Justice Black’s dissent, id. at 791, 798: “Habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by courts cannot in my judgment be constitutionally abridged by Executive or by Congress.” And, in Jones v. Cunningham, 371 U.S. 236, 238 (1963), the Court said: “The habeas corpus jurisdictional statute implements the constitutional command that the writ of habeas corpus be made available.” (Emphasis added). [Back to text]
280
Cf. Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). [Back to text]
281
Ex parte Bollman, 8 U.S. (4 Cr.) 75, 94 (1807). See Fay v. Noia, 372 U.S. 391, 409 (1963). [Back to text]
282
Act of March 2, 1833, § 7, 4 Stat. 634 (federal officials imprisoned for enforcing federal law); Act of August 29, 1842, 5 Stat. 539 (foreign nationals detained by a state in violation of a treaty). See also Bankruptcy Act of April 4, 1800,§ 38, 2 Stat. 19, 32 (habeas corpus for imprisoned debtor discharged in bankruptcy), repealed by Act of December 19, 1803, 2 Stat. 248. [Back to text]
283
The act of February 5, 1867, 14 Stat. 385, conveyed power to federal courts “to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States. . . .” On the law with respect to state prisoners prior to this statute, see Ex parte Dorr, 44 U.S. (3 How.) 103 (1845); cf. Elkison v. Deliesseline, 8 Fed. Cas. 493 (No. 4366) (C.C.D.S.C. 1823) (Justice Johnson); Ex parte Cabrera, 4 Fed. Cas. 964 (No. 2278) (C.C.D. Pa. 1805) (Justice Washington). [Back to text]
284
Felker v. Turpin, 518 U.S. 651, 663–64 (1996). See INS v. St. Cyr, 533 U.S. 289, 300–01 (2001) (leaving open the question of whether post-1789 legal developments are protected); Swain v. Pressley, 430 U.S. 372 (1977) (finding “no occasion” to define the contours of constitutional limits on congressional modification of the writ). [Back to text]
285
Pub. L. 104–132, §§ 101–08, 110 Stat. 1214, 1217–26, amending, inter alia, 28 U.S.C. §§ 2244, 2253, 2254, 2255, and Fed. R. App. P. 22. [Back to text]
286
Felker v. Turpin, 518 U.S. 651 (1996). [Back to text]
287
128 S. Ct. 2229 (2008). [Back to text]
288
In Rasul v. Bush, 542 U.S. 466 (2004), the Court found that 28 U.S.C. § 2241, the federal habeas statute, applied to these detainees. Congress then removed all court jurisdiction over these detainees under the Detainee Treatment Act of 2005, Pub. L. 109–148, § 1005(e)(1) (providing that “no court . . . shall have jurisdiction to hear or consider . . . an application for . . . habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay).” After the Court decided in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that the Detainee Treatment Act did not apply to detainees whose cases were pending at the time of enactment, it was amended by the Military Commissions Act of 2006, Pub. L. 109–366, to also apply to pending cases where a detainee had been determined to be an enemy combatant. [Back to text]
289
128 S. Ct. at 2251. [Back to text]
290
128 S. Ct. at 2258, 2259. [Back to text]
291
Under the Detainee Treatment Act, Pub. L. 109–148, Title X, Congress granted only a limited appeal right to determination made by the Executive Branch as to “(I) whether the status determination of [a] Combatant Status Review Tribunal . . . was consistent with the standards and procedures specified by the Secretary of Defense . . . and (ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” § 1005(e)(2)(C). [Back to text]
292
128 S. Ct. at 2263, 2275. [Back to text]
293
The Court focused in particular on the inability of the reviewing court to admit and consider relevant exculpatory evidence that was not introduced in the prior proceeding. The Court also listed other potential constitutional infirmities in the review process, including the absence of provisions empowering the D.C. Circuit to order release from detention, and not permitting petitioners to challenge the President’s authority to detain them indefinitely. [Back to text]
294
28 U.S.C. §§ 2241(c), 2254(a). “Custody” does not mean one must be confined; a person on parole or probation is in custody. Jones v. Cunningham, 371 U.S. 236 (1963). A person on bail or on his own recognizance is in custody, Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300–301 (1984); Lefkowitz v. Newsome, 420 U.S. 283, 291 n.8 (1975); Hensley v. Municipal Court, 411 U.S. 345 (1973), and Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), held that an inmate of an Alabama prison was also sufficiently in the custody of Kentucky authorities who had lodged a detainer with Alabama to obtain the prisoner upon his release. [Back to text]
295
Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494–95 (1973) (issue is whether “the custodian can be reached by service of process”). See also Rasul v. Bush, 542 U.S. 466 (2004) (federal district court for District of Columbia had jurisdiction of habeas petitions from prisoners held at U.S. Naval base at Guantanamo Bay, Cuba); Rumsfeld v. Padilla, 542 U.S. 426 (2004) (federal district court in New York lacks jurisdiction over prisoner being held in a naval brig in Charleston, South Carolina; the commander of the brig, not the Secretary of Defense, is the immediate custodian and proper respondent). [Back to text]
296
McNally v. Hill, 293 U.S. 131 (1934); Parker v. Ellis, 362 U.S. 574 (1960). [Back to text]
297
28 U.S.C. § 2243. See Peyton v. Rowe, 391 U.S. 54 (1968). See also Maleng v. Cook, 490 U.S. 488 (1989). [Back to text]
298
Carafas v. LaVallee, 391 U.S. 234 (1968), overruling Parker v. Ellis, 362 U.S. 574 (1960). In Peyton v. Rowe, 391 U.S. 54 (1968), the Court overruled McNally v. Hill, 293 U.S. 131 (1934), and held that a prisoner may attack on habeas the second of two consecutive sentences while still serving the first. See also Walker v. Wainwright, 390 U.S. 335 (1968) (prisoner may attack the first of two consecutive sentences although the only effect of a successful attack would be immediate confinement on the second sentence). Braden v. 30th Judicial Circuit Court , 410 U.S. 484 (1973), held that one sufficiently in custody of a state could use habeas to challenge the state’s failure to bring him to trial on pending charges. [Back to text]
299
28 U.S.C. § 2254(b). See Preiser v. Rodriguez, 411 U.S. 475, 490–497 (1973), and id. at 500, 512–24 (Justice Brennan dissenting); Rose v. Lundy, 455 U.S. 509, 515–21 (1982). If a prisoner submits a petition with both exhausted and unexhausted claims, the habeas court must dismiss the entire petition. Rose v. Lundy, 455 U.S. at 518–519. Exhaustion first developed in cases brought by persons in state custody prior to any judgment. Ex parte Royall, 117 U.S. 241 (1886); Urquhart v. Brown, 205 U.S. 179 (1907). [Back to text]
300
Brown v. Allen, 344 U.S. 443, 447–450 (1953); id. at 502 (Justice Frankfurter concurring); Castille v. Peoples, 489 U.S. 346, 350 (1989). [Back to text]
301
Cone v. Bell, 556 U.S. ___, No. 07–1114, slip op. at 17, 18 (2009). [Back to text]
302
Fay v. Noia, 372 U.S. 391, 435 (1963), overruling Darr v. Burford, 339 U.S. 200 (1950). [Back to text]
303
28 U.S.C. § 2244(c). But an affirmance of a conviction by an equally divided Court is not an adjudication on the merits. Neil v. Biggers, 409 U.S. 188 (1972). [Back to text]
304
28 U.S.C. § 2255. [Back to text]
305
28 U.S.C. § 2241(d). Cf. Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), overruling Ahrens v. Clark, 335 U.S. 188 (1948), and holding that a petitioner may file in the district in which his custodian is located even though the prisoner may be located elsewhere. [Back to text]
306
Glasgow v. Moyer, 225 U.S. 420, 428 (1912); Riddle v. Dyche, 262 U.S. 333, 335 (1923); Eagles v. United States ex rel. Samuels, 329 U.S. 304, 311 (1946). But compare Brown v. Allen, 344 U.S. 443, 558–560 (1953) (Justice Frankfurter dissenting in part). [Back to text]
307
Estelle v. McGuire, 502 U.S. 62 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41–42 (1984). [Back to text]
308
8 U.S.C. § 2244(b). See Whiteley v. Warden, 401 U.S. 560, 569 (1971); Irvin v. Dowd, 366 U.S. 717, 729 (1961). [Back to text]
309
In United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 339 (1906), Justice Brewer, speaking for the Court, approached a theory of inherent equity jurisdiction when he declared: “The principles of equity exist independently of and anterior to all Congressional legislation, and the statutes are either enunciations of those principles or limitations upon their application in particular cases.” It should be emphasized, however, that the Court made no suggestion that it could apply pre-existing principles of equity without jurisdiction over the subject matter. Indeed, the inference is to the contrary. In a dissenting opinion in which Justices McKenna and Van Devanter joined, in Paine Lumber Co. v. Neal, 244 U.S. 459, 475 (1917), Justice Pitney contended that Article III, § 2, “had the effect of adopting equitable remedies in all cases arising under the Constitution and laws of the United States where such remedies are appropriate.” [Back to text]
310
Boyce’s Executors v. Grundy, 28 U.S. (3 Pet.) 210 (1830). [Back to text]
311
1 Stat. 333, 28 U.S.C. § 2283. [Back to text]
312
26 U.S.C. § 7421(a). [Back to text]
313
This provision was repealed in 1976, save for apportionment and districting suits and when otherwise required by an Act of Congress. Pub. L. 94–381, § 1, 90 Stat. 1119, and § 3, 28 U.S.C. § 2284. Congress occasionally provides for such courts, as in the Voting Rights Act, 42 U.S.C. §§ 1971, 1973c. [Back to text]
314
Repealed by Pub. L. 94–381, § 2, 90 Stat. 1119 (1976). Congress occasionally provides for such courts now, in order to expedite Supreme Court consideration of constitutional challenges to critical federal laws. See Bowsher v. Synar, 478 U.S. 714, 719–721 (1986) (3-judge court and direct appeal to Supreme Court in the Balanced Budget and Emergency Deficit Control Act of 1985). [Back to text]
315
Repealed by Pub. L. 93–584, § 7, 88 Stat. 1918. [Back to text]
316
28 U.S.C. § 1342. [Back to text]
317
29 U.S.C. §§ 52, 101–110. [Back to text]
318
56 Stat. 31, 204 (1942). [Back to text]
319
The statute was part of an Omnibus Appropriations Act signed by the President on April 26, 1996. Pub. L. 104–134, §§ 801–10, 110 Stat. 1321–66—1321–77, amending 18 U.S.C. § 3626. [Back to text]
320
530 U.S. 327 (2000). [Back to text]
321
530 U.S. at 348. [Back to text]
322
Freeman v. Howe, 65 U.S. (24 How.) 450 (1861); Gaines v. Fuentes, 92 U.S. 10 (1876); Ex parte Young, 209 U.S. 123 (1908). [Back to text]
323
See, Anti-Injunction Statute, infra. [Back to text]
324
254 U.S. 443 (1921). [Back to text]
325
Lauf v. E. G. Shinner & Co., 303 U.S. 323 (1938); New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938). [Back to text]
326
In addition to Lauf and New Negro Alliance, see Drivers’ Union v. Valley Co., 311 U.S. 91, 100–103 (1940), and compare Sinclair Refining Co. v. Atkinson, 370 U.S. 195 (1962), with Boys Markets v. Retail Clerks Union, 398 U.S. 235 (1970). [Back to text]
327
319 U.S. 182 (1943). [Back to text]
328
319 U.S. at 187 (quoting Cary v. Curtis, 44 U.S. (3 How.) 236, 245 (1845). See South Carolina v. Katzenbach, 383 U.S. 301, 331–332 (1966), upholding a provision of the Voting Rights Act of 1965 that made the district court for the District of Columbia the only avenue of relief for States seeking to remove the coverage of the Act. [Back to text]
329
321 U.S. 414 (1944). But compare Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978) (construing statute in way to avoid the constitutional issue raised in Yakus). In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the Court held that, when judicial review of a deportation order had been precluded, due process required that the alien be allowed to make a collateral challenge to the use of that proceeding as an element of a subsequent criminal proceeding. [Back to text]
330
Ch. 26, 56 Stat. 31, § 204 (1942). [Back to text]
331
Washington-Southern Nav. Co. v. Baltimore & P.S.B.C. Co., 263 U.S. 629 (1924). [Back to text]
332
23 U.S. (10 Wheat.) 1 (1825). [Back to text]
333
106 U.S. 272, 280 (1882). [Back to text]
334
See Miner v. Atlass, 363 U.S. 641 (1960), holding that a federal district court, sitting in admiralty, has no inherent power, independent of any statute or the Supreme Court’s Admiralty Rules, to order the taking of deposition for the purpose of discovery. See also Harris v. Nelson, 394 U.S. 286 (1969), in which the Court found statutory authority in the “All Writs Statute” for a habeas corpus court to propound interrogatories. [Back to text]
335
In the Act of June 19, 1934, 48 Stat. 1064, and contained in 28 U.S.C. § 2072, Congress, in authorizing promulgation of rules of civil procedure, reserved the power to examine and override or amend rules proposed pursuant to the act which it found to be contrary to its legislative policy. See Sibbach v. Wilson, 312 U.S. 1, 14–16 (1941). Congress also has authorized promulgation of rules of criminal procedure, habeas, evidence, admiralty, bankruptcy, and appellate procedure. See Hart & Wechsler (6th ed.), supra at 533–543 (discussing development of rules and citing secondary authority). Congress in the 1970s disagreed with the direction of proposed rules of evidence and of habeas practice, and, first postponing their effectiveness, enacted revised rules. Pub. L. 93–505, 88 Stat. 1926 (1974); Pub. L. 94–426, 90 Stat. 1334 (1976). On this and other actions, see Hart & Wechsler (6th ed.), supra. [Back to text]
336
However, the abolition of old rights and the creation of new ones in the course of litigation conducted in conformance with these judicially prescribed federal rules has been sustained as against the contention of a violation of substantive rights. Sibbach v. Wilson, 312 U.S. 1, 14 (1941). [Back to text]
337
Cf. United States v. Sherwood, 312 U.S. 584, 589–590 (1941). [Back to text]
338
Mississippi Pub. Corp. v. Murphree, 326 U.S. 438 (1946). [Back to text]
339
Washington-Southern Nav. Co. v. Baltimore & P.S.B.C. Co., 263 U.S. 629, 635, 636 (1924). It is not for the Supreme Court to prescribe how the discretion vested in a Court of Appeals should be exercised. As long as the latter court keeps within the bounds of judicial discretion, its action is not reviewable. In re Burwell, 350 U.S. 521 (1956). [Back to text]
340
McDonald v. Pless, 238 U.S. 264, 266 (1915); Griffin v. Thompson, 43 U.S. (2 How.) 244, 257 (1844). See Thomas v. Arn, 474 U.S. 140 (1985) (court of appeal rule conditioning appeal on having filed with the district court timely objections to a master’s report). In Rea v. United States, 350 U.S. 214, 218 (1956), the Court, citing McNabb v. United States, 318 U.S. 332 (1943), asserted that this supervisory power extends to policing the requirements of the Court’s rules with respect to the law enforcement practices of federal agents. But compare United States v. Payner, 447 U.S. 727 (1980). [Back to text]
341
Gumbel v. Pitkin, 124 U.S. 131 (1888); Covell v. Heyman, 111 U.S. 176 (1884); Buck v. Colbath, 70 U.S. (3 Wall.) 334 (1866). [Back to text]
342
Eberly v. Moore, 65 U.S. (24 How.) 147 (1861); Arkadelphia Co. v. St. Louis S.W. Ry., 249 U.S. 134 (1919). [Back to text]
343
See Dietz v. Bouldin, 579 U.S. ___, No. 15–458, slip op. at 4 (2016). [Back to text]
344
Id. at 4–5. [Back to text]
345
Id. at 4. [Back to text]
346
Id. at 5–7 (acknowledging that while it is “reasonable” to allow a jury to reconvene after a formal discharge to correct an error and while such an exercise of authority does not conflict with a rule or statute, the exercise of the inherent power to rescind a discharge order needs to be “carefully circumscribed” to guarantee the existence of an impartial jury); see also id. at 9–10 (holding that a court, in exercising an inherent power to rescind a discharge order, must consider, among other factors, (1) the length of delay between discharge and recall; (2) whether jurors have spoken to anyone after discharge; (3) any reaction to the verdict in the courtroom; and (4) any access jurors may have had to outside materials after discharge). The rule provided in Dietz extends only to civil cases, as additional constitutional concerns— namely, the attachment of the double jeopardy bar—may arise if a court were to recall a jury after discharge in a criminal case. See id. at 10. [Back to text]
347
See Luce v. United States, 469 U.S. 38, 41 n.4 (1984). A motion in limine is a preliminary motion resolved by a court prior to trial and generally regards the admissibility of evidence. See BLACKS LAW DICTIONARY 1171 (10th ed. 2014). [Back to text]
348
See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507–08 (1947). This doctrine is called forum non conveniens. See BLACKS LAW DICTIONARY 770 (10th ed. 2014) (defining forum non conveniens as the “doctrine that an appropriate forum—even though competent under the law—may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place.”). [Back to text]
349
See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). [Back to text]
350
Gagnon v. United States, 193 U.S. 451, 458 (1904). [Back to text]
351
See Dietz, slip op. at 11 (assuming that, even if courts at common law lacked the inherent power to rescind a jury discharge order, a court’s exercise of its inherent powers can depart from the common law). The term “common law” refers to the body of English law that was “adopted as the law of the American colonies and supplemented with local enactments and judgments.” See BLACKS LAW DICTIONARY 334 (10th ed. 2014). [Back to text]
352
See Dietz, slip op. at 12. [Back to text]
353
69 U.S. (2 Wall.) 123, 128–129 (1864). [Back to text]
354
253 U.S. 300 (1920). [Back to text]
355
253 U.S. at 312. [Back to text]
356
Ex parte Secombe, 60 U.S. (19 How.) 9, 13 (1857). In Frazier v. Heebe, 482 U.S. 641 (1987), the Court exercised its supervisory power to invalidate a district court rule respecting the admission of attorneys. See In re Sawyer, 360 U.S. 622 (1959), with reference to the extent to which counsel of record during a pending case may attribute error to the judiciary without being subject to professional discipline. [Back to text]
357
71 U.S. (4 Wall.) 333 (1867). [Back to text]
358
71 U.S. at 378–80. Although a lawyer is admitted to practice in a federal court by way of admission to practice in a state court, he is not automatically sent out of the federal court by the same route, when “principles of right and justice” require otherwise. A determination of a state court that an accused practitioner should be disbarred is not conclusively binding on the federal courts. Theard v. United States, 354 U.S. 278 (1957), citing Selling v. Radford, 243 U.S. 46 (1917). Cf. In re Isserman, 345 U.S. 286, 288 (1953), where it was acknowledged that upon disbarment by a state court, Rule 2, par. 5 of the Rules of the Supreme Court imposes upon the attorney the burden of showing cause why he should not be disbarred in the latter, and upon his failure to meet that burden, the Supreme Court will “follow the finding of the state that the character requisite for membership in the bar is lacking.” In 348 U.S. 1 (1954), Isserman’s disbarment was set aside for reason of noncompliance with Rule 8 requiring concurrence of a majority of the Justices participating in order to sustain a disbarment. See also In re Disbarment of Crow, 359 U.S. 1007 (1959). For an extensive treatment of disbarment and American and English precedents thereon, see Ex parte Wall, 107 U.S. 265 (1883). [Back to text]