Characteristics and Attributes of Judicial Power

Judicial power is the power “of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.”139 It is “the right to determine actual controversies arising between diverse litigants, duly instituted in courts of proper jurisdiction.”140 The terms “judicial power” and “jurisdiction” are frequently used interchangeably, with “jurisdiction” defined as the power to hear and determine the subject matter in controversy between parties to a suit141 or as the “power to entertain the suit, consider the merits and render a binding decision thereon.”142 The cases and commentary however, support, indeed require, a distinction between the two concepts.

Jurisdiction is the authority of a court to exercise judicial power in a specific case and is, of course, a prerequisite to the exercise of judicial power, which is the totality of powers a court exercises when it assumes jurisdiction and hears and decides a case.143 Judicial power confers on federal courts the power to decide a case and to render a judgment that conclusively resolves a case. Included within the general judicial power are the ancillary powers of courts to punish for contempt of their authority,144 to issue writs in aid of jurisdiction when authorized by statute,145 to make rules governing their process in the absence of statutory authorizations or prohibitions,146 to order their own process so as to prevent abuse, oppression, and injustice, and to protect their own jurisdiction and officers in the protection of property in custody of law,147 to appoint masters in chancery, referees, auditors, and other investigators,148 and to admit and disbar attorneys.149

As judicial power is the authority to render dispositive judgments, Congress violates the separation of powers when it purports to alter final judgments of Article III courts.150 Once such instance arose when the Court unexpectedly recognized a statute of limitations for certain securities actions that was shorter than what had been recognized in many jurisdictions, resulting in the dismissal of several suits, which then become final because they were not appealed. Congress subsequently enacted a statute that, though not changing the limitations period prospectively, retroactively extended the time for suits that had been dismissed and provided for the reopening of these final judgments. In Plaut v. Spendthrift Farm, Inc.,151 the Court invalidated the statute, holding it impermissible for Congress to disturb a final judgment. “Having achieved finality, . . . a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.”152 In Miller v. French,153 by contrast, the Court ruled that the Prison Litigation Reform Act’s automatic stay of ongoing injunctions remedying violations of prisoners’ rights did not amount to an unconstitutional legislative revision of a final judgment. Rather, the automatic stay merely altered “the prospective effect” of injunctions, and it is well established that such prospective relief “remains subject to alteration due to changes in the underlying law.”154

“Shall Be Vested”.

The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words “shall be vested” in § 1. Whereas all the judicial power of the United States is vested in the Supreme Court and the inferior federal courts created by Congress, neither has ever been vested with all the jurisdiction which could be granted and, Justice Story to the contrary,155 the Constitution has not been read to require that Congress confer the entire jurisdiction it might.156 Thus, except for the original jurisdiction of the Supreme Court, which flows directly from the Constitution, two prerequisites to jurisdiction must be present: first, the Constitution must have given the courts the capacity to receive it,157 and, second, an act of Congress must have conferred it.158 The fact that federal courts are of limited jurisdiction means that litigants in them must affirmatively establish that jurisdiction exists and may not confer nonexistent jurisdiction by consent or conduct.159

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.

Judicial Immunity from Suit

Under common law—the Supreme Court has not elevated judicial immunity from suit to a constitutional principle—judges “are responsible to the people alone for the manner in which they perform their duties. If faithless, if corrupt, if dishonest, if partial, if oppressive or arbitrary, they may be called to account by impeachment, and removed from office. . . . But responsible they are not to private parties in civil actions for the judicial acts, however injurious may be those acts, and however much they may deserve condemnation, unless perhaps where the acts are palpably in excess of the jurisdiction of the judges, and are done maliciously or corruptly.”175 Three years later, the Court qualified this exception to judges’ immunity: the phrase beginning “unless, perhaps,” the Court wrote, was “not necessary to a correct statement of the law, and . . . judges . . . are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter,” with judges subject to liability only in the latter instance.176

In Stump v. Sparkman, the Court upheld the immunity of a judge who approved a petition from the mother of a 15-year-old girl to have the girl sterilized without her knowledge (she was told that she was to have her appendix removed).177 In a 5-to-3 opinion, the Court found that there was not the “clear absence of all jurisdiction” that is required to hold a judge civilly liable. The judge had jurisdiction “in all cases at law and in equity whatsoever,” except where exclusive jurisdiction is “conferred by law upon some other court, board, or officer,” and no statute or case law prohibited the judge from considering a petition for sterilization.178 The Court also rejected the argument that the judge’s approving the petition had not constituted a “judicial” act. The Court found “that the factors determining whether an act by a judge is a ‘judicial’ one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity. . . . Judge Stump performed the type of act normally performed only by judges and . . . he did so in his capacity as a [judge].”179

Although judges are generally immune from suits for damages, the Court has held that a judge may be enjoined from enforcing a court rule, such as a restriction on lawyer advertising that violates the First Amendment.180 Similarly, a state court magistrate may be enjoined from “imposing bail on persons arrested for nonjailable offenses under Virginia law and . . . incarcerating those persons if they could not meet the bail. . . .”181 But what if the prevailing party, as it did in these two cases, seeks an award of attorneys’ fees under the Civil Rights Attorney’s Fees Awards Act of 1976?182 The Court found that “Congress intended to permit attorney’s fees awards in cases in which prospective relief was properly awarded against defendants who would be immune from damage awards.”183 In fact, “Congress’s intent could hardly be more plain. Judicial immunity is no bar to the award of attorney’s fees under 42 U.S.C. § 1988.”184


Muskrat v. United States, 219 U.S. 346, 361 (1911). [Back to text]
United States v. Arrendondo, 31 U.S. (6 Pet.) 691 (1832). [Back to text]
General Investment Co. v. New York Central R.R., 271 U.S. 228, 230 (1926). [Back to text]
Williams v. United States, 289 U.S. 553, 566 (1933); Yakus v. United States, 321 U.S. 414, 467–68 (1944) (Justice Rutledge dissenting). [Back to text]
Michaelson v. United States, 266 U.S. 42 (1924). [Back to text]
McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807). [Back to text]
Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825). [Back to text]
Gumbel v. Pitkin, 124 U.S. 131 (1888). [Back to text]
Ex parte Peterson, 253 U.S. 300 (1920). [Back to text]
Ex parte Garland, 71 U.S. (4 Wall.) 333, 378 (1867). [Back to text]
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218–19 (1995). The Court was careful to delineate the difference between attempting to alter a final judgment, one rendered by a court and either not appealed or affirmed on appeal, and legislatively amending a statute so as to change the law as it existed at the time a court issued a decision that was on appeal or otherwise still alive at the time a federal court reviewed the determination below. A court must apply the law as revised when it considers the prior interpretation. Id. at 226–27. Article III creates or authorizes Congress to create not a collection of unconnected courts, but a judicial department composed of “inferior courts” and “one Supreme Court.” “Within that hierarchy, the decision of an inferior court is not (unless the time for appeal has expired) the final word of the department as a whole.” Id. at 227. [Back to text]
514 U.S. 211 (1995). [Back to text]
514 U.S. at 227 (emphasis supplied by Court). [Back to text]
530 U.S. 327 (2000). [Back to text]
530 U.S. at 344. [Back to text]
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 328–331 (1816). See also3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (1833) 1584–1590. [Back to text]
See, e.g., Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799) (Justice Chase). A recent, sophisticated attempt to resurrect the core of Justice Story’s argument appears in Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B. U. L. REV. 205 (1985); see also Amar, Meltzer, and Redish, Symposium: Article III and the Judiciary Act of 1789, 138 U. PA. L. REV. 1499 (1990). Professor Amar argues from the text of Article III, § 2, cl. 1, that the use of the word “all” in each of the federal question, admiralty, and public ambassador subclauses means that Congress must confer the entire judicial power to cases involving those issues, whereas it has more discretion in the other six categories. [Back to text]
Which was, of course, the point of Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803), once the power of the Court to hold legislation unconstitutional was established. [Back to text]
The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1868); Cary v. Curtis, 44 U.S. (3 How.) 236 (1845); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850); United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 33 (1812); Kline v. Burke Constr. Co., 260 U.S. 226 (1922). Some judges, however, have expressed the opinion that Congress’s authority is limited by provisions of the Constitution such as the Due Process Clause, so that a limitation on jurisdiction that denied a litigant access to any remedy might be unconstitutional. Cf. Eisentrager v. Forrestal, 174 F.2d 961, 965–966 (D.C. Cir. 1949), rev’d on other grounds sub nom, Johnson v. Eisentrager, 339 U.S. 763 (1950); Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948), cert. denied, 335 U.S. 887 (1948); Petersen v. Clark, 285 F. Supp. 700, 703 n.5 (N.D. Calif. 1968); Murray v. Vaughn, 300 F. Supp. 688, 694–695 (D.R.I. 1969). The Supreme Court has had no occasion to consider the question. [Back to text]
Turner v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799); Bingham v. Cabot, 3 U.S. (3 Dall.) 382 (1798); Jackson v. Ashton, 33 U.S. (8 Pet.) 148 (1834); Mitchell v. Maurer, 293 U.S. 237 (1934). [Back to text]
Act of March 23, 1792, 1 Stat. 243. [Back to text]
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). [Back to text]
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). [Back to text]
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). [Back to text]
Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948). [Back to text]
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. [Back to text]
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). [Back to text]
69 U.S. (2 Wall.) 561 (1865). [Back to text]
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. [Back to text]
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). [Back to text]
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). [Back to text]
Liberty Warehouse Co. v. Grannis, 273 U.S. 70 (1927). [Back to text]
Liberty Warehouse Co. v. Burley Growers’ Coop. Marketing Ass’n, 276 U.S. 71 (1928). [Back to text]
Fidelity Nat’l Bank & Trust Co. v. Swope, 274 U.S. 123, 132 (1927). [Back to text]
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. §§ 22012202, 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). [Back to text]
Randall v. Brigham, 74 U.S. 523, 537 (1869). Judicial immunity “is a general principle of the highest importance to the proper administration of justice . . . . Liability . . . would destroy that independence without which no judiciary can be either respectable or useful. . . . Nor can this exemption of the judges from civil liability be affected by the motives with which their judicial acts are performed.” Bradley v. Fisher, 80 U.S. 335, 347 (1872). [Back to text]
Bradley v. Fisher, 80 U.S. 335, 351 (1872). The Court offered a hypothetical example of the distinction. A judge of a probate court who held a criminal trial would act in clear absence of all jurisdiction over the subject matter, whereas a judge of a criminal court who held a criminal trial for an offense that was not illegal would act merely in excess of his jurisdiction. Id. at 352. [Back to text]
435 U.S. 349 (1978). [Back to text]
435 U.S. at 357, 358. The defendant was an Indiana state court judge, but the suit was in federal court under 42 U.S.C. § 1983. The Court noted that it had held in Pierson v. Ray, 386 U.S. 547 (1967), that there was no indication that, in enacting this statute, Congress had intended to abolish the principle of judicial immunity established in Bradley v. Fisher, supra. [Back to text]
435 U.S. at 362. Justice Stewart’s dissent, joined by Justices Marshall and Powell, concluded that what Judge Stump did “was beyond the pale of anything that could sensibly be called a judicial act.” Id. at 365. Indiana law, Justice Stewart wrote, provided for administrative proceedings for the sterilization of certain people who were institutionalized (which the girl in this case was not), and what Judge Stump did “was in no way an act ‘normally performed by a judge.’ ” Id. at 367. [Back to text]
Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719 (1980). [Back to text]
Pulliam v. Allen, 466 U.S. 522, 524–25 (1984). [Back to text]
42 U.S.C. § 1988(b). Under this statute, “suits brought against individual officers for injunctive relief are for all practical purposes suits against the State itself,” and, therefore, the state must “bear the burden of the counsel fees award.” Hutto v. Finney, 437 U.S. 678, 700 (1978). [Back to text]
Consumers Union, 446 U.S. at 738–39. This is not the case, however, when judges are sued in their legislative capacity for having issued a rule. Id. at 734. [Back to text]
Pulliam, 466 U.S. at 544. In 1996, Public Law 104–317, § 309, amended § 1988(b) to preclude the award of attorneys’ fees in a suit against a judicial officer unless the officer’s action “was clearly in excess of such officer’s jurisdiction.” [Back to text]