Constitutional Status of the Court of Claims and the Courts of Customs and Patent Appeals.

Although the Supreme Court long accepted the Court of Claims as an Article III court,90 it later ruled that court to be an Article I court and its judges without constitutional protection of tenure and salary.91 Then, in the 1950s, Congress statutorily declared that the Court of Claims, the Customs Court, and the Court of Customs and Patent Appeals were Article III courts,92 a questionable act under the standards the Court had used to determine whether courts were legislative or constitutional.93 In Glidden Co. v. Zdanok,94 however, five of seven participating Justices united to find that indeed the Court of Claims and the Court of Customs and Patent Appeals, at least, were constitutional courts and their judges eligible to participate in judicial business in other constitutional courts. Three Justices would have overruled Bakelite and Williams and would have held that the courts in question were constitutional courts.95 Whether a court is an Article III tribunal depends largely upon whether legislation establishing it is in harmony with the limitations of that Article, specifically, “whether . . . its business is the federal business there specified and its judges and judgments are allowed the independence there expressly or impliedly made requisite.” When a court is created “to carry into effect [federal] powers . . . over subject matter . . . and not over localities,” a presumption arises that the status of such a tribunal is constitutional rather than legislative.96 The other four Justices expressly declared that Bakelite and Williams should not be overruled,97 but two of them thought that the two courts had attained constitutional status by virtue of the clear manifestation of congressional intent expressed in the legislation.98 Two Justices maintained that both courts remained legislative tribunals.99 Although the result is clear, no standard for pronouncing a court legislative rather than constitutional obtained the adherence of a majority of the Court.100

Footnotes

90
De Groot v. United States, 72 U.S. (5 Wall.) 419 (1866); United States v. Union Pacific Co., 98 U.S. 569, 603 (1878); Miles v. Graham, 268 U.S. 501 (1925). [Back to text]
91
Williams v. United States, 289 U.S. 553 (1933); cf. Ex parte Bakelite Corp., 279 U.S. 438, 450–455 (1929). [Back to text]
92
67 Stat. 226, § 1, 28 U.S.C. § 171 (Court of Claims); 70 Stat. 532. § 1, 28 U.S.C. § 251 (Customs Court); 72 Stat. 848, § 1, 28 U.S.C. § 211 (Court of Customs and Patent Appeals). [Back to text]
93
In Ex parte Bakelite Corp., 279 U.S. 438. 459 (1929), Justice Van Devanter refused to give any weight to the fact that Congress had bestowed life tenure on the judges of the Court of Customs Appeals because that line of thought “mistakenly assumes that whether a court is of one class or the other depends on the intention of Congress, whereas the true test lies in the power under which the court was created and in the jurisdiction conferred.” [Back to text]
94
370 U.S. 530 (1962). [Back to text]
95
Glidden Co. v. Zdanok, 370 U.S. 530, 531 (1962) (Justices Harlan, Brennan, and Stewart). [Back to text]
96
370 U.S. at 548, 552. [Back to text]
97
370 U.S. at 585 (Justice Clark and Chief Justice Warren concurring), 589 (Justices Douglas and Black dissenting). [Back to text]
98
370 U.S. at 585 (Justice Clark and Chief Justice Warren). [Back to text]
99
370 U.S. at 589 (Justices Douglas and Black). The concurrence thought that the rationale of Bakelite and Williams was based on a significant advisory and reference business of the two courts, which the two Justices now thought insignificant, but what there was of it they thought nonjudicial and the courts should not entertain it. Justice Harlan left that question open. Id. at 583. [Back to text]
100
Aside from doctrinal matters, Congress in 1982 created the United States Court of Appeals for the Federal Circuit, giving it, inter alia, the appellate jurisdiction of the Court of Claims and the Court of Customs and Patent Appeals. 96 Stat. 25, title 1, 28 U.S.C. § 41. At the same time Congress created the United States Claims Court, now the United States Court of Federal Claims, as an Article I tribunal, with the trial jurisdiction of the old Court of Claims. 96 Stat. 26, as amended, § 902(a)(1), 106 Stat. 4516, 28 U.S.C. §§ 171180. [Back to text]