Finality of Judgment as an Attribute of Judicial Power
Since 1792, the federal courts have emphasized finality of judgment as an essential attribute of judicial power. In that year, Congress authorized Revolutionary War veterans to file pension claims in circuit courts of the United States, directed the judges to certify to the Secretary of War the degree of a claimant’s disability and their opinion with regard to the proper percentage of monthly pay to be awarded, but empowered the Secretary to withhold judicially certified claimants from the pension list if he suspected “imposition or mistake.”160 The Justices then on circuit almost immediately forwarded objections to the President, contending that the statute was unconstitutional because the judicial power was constitutionally committed to the judicial department, the duties imposed by the act were not judicial, and the subjection of a court’s opinions to revision or control by an officer of the executive or the legislature was not authorized by the Constitution.161
Attorney General Randolph, upon the refusal of the circuit courts to act under the new statute, filed a motion for mandamus in the Supreme Court to direct the Circuit Court in Pennsylvania to proceed on a petition filed by one Hayburn seeking a pension. Although the Court heard argument, it put off decision until the next term, presumably because Congress was already acting to delete the objectionable features of the act. Upon enactment of the new law, the Court dismissed the action.162 Although the Court’s opinion contained little analysis, Hayburn’s Case has since been cited by the Court to reject efforts to give it and the lower federal courts jurisdiction over cases in which judgment would be subject to executive or legislative revision.163 Thus, in a 1948 case, the Court held that an order of the Civil Aeronautics Board denying to a citizen air carrier a certificate of convenience and necessity for an overseas and foreign air route was, despite statutory language to the contrary, not reviewable by the courts. Because Congress had also deemed such an order subject to discretionary review and revision by the President, the lower court found, and the Supreme Court affirmed, that the courts did not have the authority to review the President’s decision. While the lower Court had then attempted to reconcile the statutory scheme by permitting presidential review of the order after judicial review, the Court rejected this interpretation. “[I]f the President may completely disregard the judgment of the court, it would be only because it is one the courts were not authorized to render. Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government.”164 More recently, the Court avoided a similar situation by a close construction of a statute.165
Award of Execution.
The adherence of the Court to this propo- sition, however, has not extended to a rigid rule formulated by Chief Justice Taney, given its fullest expression in a posthumously published opinion.166 In Gordon v. United States,167 the Court refused to hear an appeal from a decision of the Court of Claims; the act establishing the Court of Claims provided for appeals to the Supreme Court, after which judgments in favor of claimants were to be referred to the Secretary of the Treasury for payments out of the general appropriation for payment of private claims. But the act also provided that no funds should be paid out of the Treasury for any claims “till after an appropriation therefor shall be estimated for by the Secretary of the Treasury.”168 The opinion of the Court merely stated that the implication of power in the executive officer and in Congress to revise all decisions of the Court of Claims requiring payment of money denied that court the judicial power from the exercise of which “alone” appeals could be taken to the Supreme Court.169
In his posthumously published opinion, Chief Justice Taney, because the judgment of the Court of Claims and the Supreme Court depended for execution upon future action of the Secretary and of Congress, regarded any such judgment as nothing more than a certificate of opinion and in no sense a judicial judgment. Congress could not therefore authorize appeals to the Supreme Court in a case where its judicial power could not be exercised, where its judgment would not be final and conclusive upon the parties, and where processes of execution were not awarded to carry it into effect. Taney then enunciated a rule that was rigorously applied until 1933: the award of execution is an essential part of every judgment passed by a court exercising judicial powers and no decision is a legal judgment without an award of execution.170 The rule was most significant in barring the lower federal courts from hearing proceedings for declaratory judgments171 and in denying appellate jurisdiction in the Supreme Court from declaratory proceedings in state courts.172 But, in 1927, the Court began backing away from its absolute insistence upon an award of execution. Unanimously holding that a declaratory judgment in a state court was res judicata in a subsequent proceeding in federal court, the Court admitted that, “[w]hile ordinarily a case or judicial controversy results in a judgment requiring award of process of execution to carry it into effect, such relief is not an indispensable adjunct to the exercise of the judicial function.”173 Then, in 1933, the Court interred the award-of-execution rule in its rigid form and accepted an appeal from a state court in a declaratory proceeding.174 Finality of judgment, however, remains the rule in determining what is judicial power, without regard to the demise of Chief Justice Taney’s formulation.
- Act of March 23, 1792, 1 Stat. 243.
- 1 AMERICAN STATE PAPERS: MISCELLANEOUS DOCUMENTS, LEGISLATIVE AND EXECUTIVE, OF THE CONGRESS OF THE UNITED STATES 49, 51, 52 (1832). President Washington transmitted the remonstrances to Congress. 1 MESSAGES AND PAPERS OF THE PRESIDENTS 123, 133 (J. Richardson comp., 1897). The objections are also appended to the order of the Court in Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 (1792). Note that some of the Justices declared their willingness to perform under the act as commissioners rather than as judges. Cf. United States v. Ferreira, 54 U.S. (13 How.) 40, 52–53 (1852). The assumption by judges that they could act in some positions as individuals while remaining judges, an assumption many times acted upon, was approved in Mistretta v. United States, 488 U.S. 361, 397–408 (1989).
- Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792). The new pension law was the Act of February 28, 1793, 1 Stat. 324. The reason for the Court’s inaction may, on the other hand, have been doubt about the proper role of the Attorney General in the matter, an issue raised in the opinion. See Marcus & Teir, Hayburn’s Case: A Misinterpretation of Precedent, 1988 WIS. L. REV. 4; Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There was Pragmatism, 1989 DUKE L. J. 561, 590–618. Notice the Court’s discussion in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218, 225–26 (1995).
- See United States v. Ferreira, 54 U.S. (13 How.) 40 (1852); Gordon v. United States, 69 U.S. (2 Wall.) 561 (1865); In re Sanborn, 148 U.S. 222 (1893); cf. McGrath v. Kritensen, 340 U.S. 162, 167–168 (1950).
- Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948).
- Connor v. Johnson, 402 U.S. 690 (1971). Under § 5 of the Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. § 1973e, no state may “enact or seek to administer” any change in election law or practice different from that in effect on a particular date without obtaining the approval of the Attorney General or the district court in the District of Columbia, a requirement interpreted to reach reapportionment and redistricting. Allen v. State Bd. of Elections, 393 U.S. 544 (1969); Perkins v. Matthews, 400 U.S. 379 (1971). The issue in Connor was whether a districting plan drawn up and ordered into effect by a federal district court, after it had rejected a legislatively drawn plan, must be submitted for approval. Unanimously, on the papers without oral argument, the Court ruled that, despite the statute’s inclusive language, it did not apply to court-drawn plans.
- Gordon v. United States, 117 U.S. 697 (1865) (published 1885). See United States v. Jones, 119 U.S. 477 (1886). The Chief Justice’s initial effort was in United States v. Ferreira, 54 U.S. (13 How.) 40 (1852).
- 69 U.S. (2 Wall.) 561 (1865).
- Act of February 24, 1855, 10 Stat. 612, as amended, Act of March 3, 1963, 12 Stat. 737, as paraphrased in Gordon v. United States, 117 U.S. at 698.
- Gordon v. United States, 69 U.S. (2 Wall.) 561 (1865). Following repeal of the objectionable section, Act of March 17, 1866, 14 Stat. 9, the Court accepted appellate jurisdiction. United States v. Jones, 119 U.S. 477 (1886); De Groot v. United States, 72 U.S. (5 Wall.) 419 (1867). But note that execution of the judgments was still dependent upon congressional appropriations. On the effect of the requirement for appropriations at a time when appropriations had to be made for judgments over $100,000, see Glidden Co. v. Zdanok, 370 U.S. 530, 568–571 (1962). Cf. Regional Rail Reorganization Act Cases (Blanchette v. Connecticut General Ins. Corp.), 419 U.S. 102, 148–149 & n.35 (1974).
- Gordon v. United States, 117 U.S. 697 (1865) (published 1885). Subsequent cases accepted the doctrine that an award of execution as distinguished from finality of judgment was an essential attribute of judicial power. See In re Sanborn, 148 U.S. 122, 226 (1893); ICC v. Brimson, 154 U.S. 447, 483 (1894); La Abra Silver Mining Co. v. United States, 175 U.S. 423, 457 (1899); Frasch v. Moore, 211 U.S. 1 (1908); Muskrat v. United States, 219 U.S. 346, 355, 361–362 (1911); Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927).
- Liberty Warehouse Co. v. Grannis, 273 U.S. 70 (1927).
- Liberty Warehouse Co. v. Burley Growers’ Coop. Marketing Ass’n, 276 U.S. 71 (1928).
- Fidelity Nat’l Bank & Trust Co. v. Swope, 274 U.S. 123, 132 (1927).
- Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933). The decisions in Swope and Wallace removed all constitutional doubts previously shrouding a proposed federal declaratory judgment act, which was enacted in 1934, 48 Stat. 955, 28 U.S.C. §§ 2201–2202, and unanimously sustained in Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). Wallace and Haworth were cited with approval in Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007) (“Article III’s limitation of federal courts’ jurisdiction to ‘Cases’ and ‘Controversies,’ reflected in the ‘actual controversy’ requirement of the Declaratory Judgment Act, 28 U.S.C. § 2201(a), [does not] require[ ] a patent licensee to terminate or be in breach of its license agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed,” id. at 120–21).