ArtIII.S1.4.3 Inherent Powers Over Contempt and Sanctions

Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The Supreme Court has repeatedly held that federal courts possess inherent authority to punish contempt—i.e., disobedience of a court order or obstruction of justice—and to impose other sanctions on parties or attorneys who engage in misconduct.

The Court’s contempt decisions have often distinguished between criminal and civil contempt.1 Whether a contempt is civil or criminal can be of great importance. For instance, criminal contempt implicates procedural rights attendant to prosecutions, while civil contempt does not.2 In Ex parte Grossman, while holding that the President may pardon a criminal contempt, Chief Justice William Howard Taft noted in dicta that the pardon power did not extend to civil contempt.3 In Turner v. Rogers, the Court held that the Due Process Clause does not grant an indigent defendant a right to state-appointed counsel at a civil contempt proceeding.4 Notwithstanding the importance of distinguishing between the two types of contempt, there have been instances where defendants have been charged with both civil and criminal contempt for the same act.5

The history of the contempt powers of the American Judiciary is marked by two trends: a shrinking of the courts’ power to punish a person summarily and a multiplying of the due process requirements that must be met when finding an individual to be in contempt.6 The 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.7 By the latter part of the eighteenth century, summary power to punish was extended to all contempts whether committed in or out of court.8 In the United States, the Judiciary Act of 1789 broadly 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.” 9 The abuse of this extensive power led to the passage of the Act of 1831, which limited 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,” misbehavior of officers of courts in their official capacity, and disobedience or resistance to any lawful writ, process or order of the court.10

Writing for the Court to sustain the Act of 1831 in Ex parte Robinson, Justice Stephen Field described the nature of the contempt power as follows:

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.11

While he expressed doubts concerning the validity of the 1831 Act as applied to the Supreme Court, Justice Field declared that there could be no question of its validity as applied to the lower courts because they are created by Congress and their “powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction.” 12 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.13 In Michaelson v. United States, the Court narrowly interpreted sections of the Clayton Act relating to punishment for contempt of court by disobedience of injunctions in labor disputes.14 The sections in question provided for a jury upon the demand of the accused in contempt cases where the acts committed in violation of district court orders also constituted a crime. Although Justice George 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.” 15 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.16 The Court has held that this latter power to enforce includes the authority to appoint private counsel to prosecute a criminal contempt.17

Although the contempt power may be inherent, it is not unlimited. In Spallone v. United States, 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.18 The Court held that, “in view of the ‘extraordinary’ nature of the imposition of sanctions against the individual councilmembers,” the proper remedy was to proceed first with contempt sanctions against the city, and only if that course failed should it proceed against the council members individually.19

In addition to the contempt power discussed above, the federal courts possess other inherent authorities to deter and punish misconduct.20 The Supreme Court has explained that courts are elements of an independent and coequal branch of government, so once they are created and their jurisdiction established, they have the authority to do what courts have traditionally done in order to accomplish their assigned tasks.21 Those inherent powers may be limited by statutes and by rules.22 Nonetheless, the Court has asserted the power to act in areas not covered by statutes and rules and has held that Congress may regulate the courts’ inherent sanctions power only by unmistakably enunciating its intention to limit the courts’ inherent powers.23

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.24 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. 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.25 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.26 However, bad faith is not always required for the exercise of some inherent powers. For instance, courts may dismiss an action for an unexplained failure of the moving party to prosecute it.27

But see United States v. United Mine Workers, 330 U.S. 258 (1947). 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. 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. 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
Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821 (1994); Shillitani v. United States, 384 U.S. 364 (1966). back
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., 266 U.S. 42, 65–66 (1924). But see Bloom v. Illinois, 391 U.S. 194, 202 (1968). back
564 U.S. 431 (2011); cf. Hicks v. Feiock, 485 U.S. 624 (1988) (holding that a state may place the burden of proving inability to pay child support on a defendant faced with civil contempt). back
See United Mine Workers, 330 U.S. at 299. back
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 that 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). 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
Fox, The King v. Almon, 24 L.Q. Rev. 184, 194–195 (1908). back
Fox, The Summary Power to Punish Contempt, 25 L.Q. Rev. 238, 252 (1909). back
1 Stat. 83, § 17 (1789). back
18 U.S.C. § 401. Judge James H. Peck of the Federal District Court of Missouri was impeached for abuse of the contempt power, but was acquitted by the Senate. For a summary of the Peck impeachment and the background of the Act of 1831, see Felix Frankfurter & James 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
86 U.S. (19 Wall.) 505, 510 (1874). back
Id. at 511. back
Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911). See also In re Debs, 158 U.S. 564, 595 (1895). back
266 U.S. 42 (1924). back
Id. at 66. back
Id. at 65–66. back
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 Antonin 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 J. 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
493 U.S. 265 (1990). back
Id. at 280. back
United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 34 (1812) ( “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.” ). back
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); id. at 58 (Scalia, J., dissenting); id. at 60, 62–67 (Kennedy, J., dissenting). back
Chambers, 501 U.S. at 47. back
Id. at 46–51. back
Id. at 35. back
Id. at 49–51. 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. 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
Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). back
Link v. Wabash R.R., 370 U.S. 626 (1962). back