Article III. Judicial Department |
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ARTICLE III
__________
JUDICIAL DEPARTMENT
__________
CONTENTS
Page
Section 1. Judicial Power, Courts, Judges................. 597
Organization of Courts, Tenure, and Compensation of Judges 597
One Supreme Court................................. 598
Inferior Courts................................... 599
Abolition of Courts....................... 600
Compensation...................................... 600
Diminution of Salaries.................... 600
Courts of Specialized Jurisdiction................ 602
Legislative Courts: The Canter Case............... 604
Power of Congress Over Legislative Courts. 605
Review of Legislative Courts by Supreme
Court................................. 606
The ``Public Rights'' Distinction......... 607
Constitutional Status of the Court of
Claims and the Court of Customs and
Patent Appeals........................ 610
Status of Courts of the District of
Columbia.............................. 611
Bankruptcy Courts......................... 613
Agency Adjudication....................... 615
Noncourt Entities in the Judicial Branch.......... 617
Judicial Power............................................ 618
Characteristics and Attributes of Judicial Power.......... 618
``Shall Be Vested''............................... 619
Finality of Judgment as an Attribute of Judicial Power.... 620
Award of Execution................................ 621
Ancillary Powers of Federal Courts........................ 623
The Contempt Power........................................ 623
Categories of Contempt............................ 623
The Act of 1789................................... 625
An Inherent Power................................. 625
First Amendment Limitations on the Contempt Power. 627
Due Process Limitations on Contempt Power: Right
to Notice and to a Hearing Versus Summary
Punishment.................................... 629
Due Process Limitations on Contempt Power: Right
to Jury Trial................................. 630
Due Process Limitations on Contempt Power:
Impartial Tribunal............................ 631
Contempt by Disobedience of Orders................ 634
Contempt Power in Aid of Administrative Power..... 634
Sanctions Other than Contempt............................. 635
Power to Issue Writs: The Act of 1789..................... 636
Common Law Powers of District of Columbia Courts.. 637
Habeas Corpus: Congressional and Judicial Control. 638
Habeas Corpus: The Process of the Writ............ 639
Congressional Limitation of the Injunctive Power.......... 641
Injunctions Under the Emergency Price Control Act
of 1942....................................... 643
The Rule-Making Power and Powers Over Process............. 644
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Limitations to This Power......................... 645
Appointment of Referees, Masters, and Special Aids 646
Power to Admit and Disbar Attorneys............... 646
Section 2. Judicial Power and Jurisdiction................ 647
Clause 1. Cases and Controversies; Grants of Jurisdiction. 647
Judicial Power and Jurisdiction--Cases and
Controversies................................. 648
The Two Classes of Cases and Controversies 649
Adverse Litigants......................... 651
Collusive and Feigned Suits....... 652
Stockholder Suits................. 653
Substantial Interest: Standing............ 654
Citizens Suits.................... 655
Taxpayer Suits.................... 656
Constitutional Standards: Injury
in Fact and Causation......... 658
Prudential Standing Rules......... 661
Standing to Assert the
Constitutional Rights of
Others........................ 662
Organizational Standing........... 665
Standing of States to Represent
Their Citizens................ 665
Standing of Members of Congress... 666
Standing to Challenge
Nonconstitutional Governmental
Action........................ 668
The Requirement of a Real Interest........ 670
Advisory Opinion.................. 671
Declaratory Judgment.............. 673
Ripeness.......................... 676
Mootness.......................... 679
Retroactivity versus Prospectivity 683
Political Questions....................... 687
Origins and Development........... 688
The Doctrine Before Baker v. Carr. 689
Baker v. Carr..................... 693
Powell v. McCormack............... 694
The Doctrine Reappears............ 696
Judicial Review................................... 698
The Establishment of Judicial Review...... 698
Marbury v. Madison................ 701
Judicial Review and National
Supremacy..................... 703
Limitations on the Exercise of Judicial
Review................................ 705
Constitutional Interpretation..... 705
Prudential Considerations......... 706
The Doctrine of ``Strict
Necessity''................... 707
The Doctrine of Clear Mistake..... 708
Exclusion of Extra-Constitutional
Tests......................... 709
Presumption of Constitutionality.. 710
Disallowance by Statutory
Interpretation................ 710
Stare Decisis in Constitutional
Law........................... 711
Conclusion........................ 712
Jurisdiction of Supreme Court and Inferior Federal
Courts........................................ 713
Cases Arising Under the Constitution,
Laws, and Treaties of the United
States................................ 713
Development of Federal Question
Jurisdiction.................. 713
When a Case Arises Under.......... 714
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Removal From State Court to
Federal Court................. 716
Corporations Chartered by Congress 717
Federal Questions Resulting from
Special Jurisdictional Grants. 718
Civil Rights Act Jurisdiction..... 719
Pendent Jurisdiction.............. 721
Protective Jurisdiction........... 722
Supreme Court Review of State
Court Decisions............... 723
Suits Affecting Ambassadors, Other Public
Ministers, and Consuls................ 726
Cases of Admiralty and Maritime
Jurisdiction.......................... 728
Power of Congress to Modify
Maritime Law.................. 728
Admiralty and Maritime Cases...... 732
Admiralty Proceedings............. 735
Territorial Extent of Admiralty
and Maritime Jurisdiction..... 736
Admiralty and Federalism.......... 737
Cases to Which the United States Is a
Party................................. 743
Right of the United States to Sue. 743
Suits Against States.............. 745
Immunity of the United States From
Suit.......................... 746
Suits Against United States
Officials..................... 748
Suits Against Government
Corporations.................. 751
Suits Between Two or More States.......... 752
Boundary Disputes: The Law Applied 752
Modern Types of Suits Between
States........................ 753
Cases of Which the Court Has
Declined Jurisdiction......... 755
The Problem of Enforcement:
Virginia v. West Virginia..... 756
Controversies Between a State and Citizens
of Another State...................... 757
Jurisdiction Confined to Civil
Cases......................... 758
The State's Real Interest......... 758
The State as Parens Patriae....... 759
Controversies Between Citizens of
Different States...................... 761
The Meaning of ``State'' and the
District of Columbia Problem.. 762
Citizenship of Natural Persons.... 763
Citizenship of Corporations....... 764
Manufactured Diversity............ 766
The Law Applied in Diversity Cases 767
Controversies Between Citizens of the Same
State Claiming Land Under Grants of
Different States...................... 773
Controversies Between a State, Or the
Citizens Thereof, and Foreign States,
Citizens, or Subjects................. 774
Suits by Foreign States........... 774
Indian Tribes..................... 775
Narrow Construction of the
Jurisdiction.................. 776
Clause 2. Original and Appellate Jurisdiction; Exceptions
and Regulations of Appellate Jurisdiction............. 776
The Original Jurisdiction of the Supreme Court.... 776
Power of Congress to Control the Federal Courts... 779
The Theory of Plenary Congressional
Control............................... 779
Appellate Jurisdiction............ 780
Jurisdiction of the Inferior
Federal Courts................ 782
Congressional Control Over Writs
and Processes................. 785
The Theory Reconsidered................... 786
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Express Constitutional
Restrictions on Congress...... 791
Conclusion........................ 792
Federal-State Court Relations..................... 792
Problems Raised by Concurrency............ 792
The Autonomy of State Courts.............. 794
Noncompliance With and
Disobedience of Supreme
Court's Orders by State Courts 794
Use of State Courts in Enforcement
of Federal Law................ 795
State Interference with Federal
Jurisdiction.................. 797
Conflicts of Jurisdiction: Rules of
Accommodation......................... 798
Comity............................ 798
Abstention........................ 798
Exhaustion of State Remedies...... 800
Anti-Injunction Statute........... 801
Res Judicata...................... 802
Three-Judge Court Act............. 803
Conflicts of Jurisdiction: Federal Court
Interference with State Courts........ 803
Federal Restraint of State Courts
by Injunctions................ 804
Habeas Corpus..................... 809
Removal........................... 819
Clause 3. Trial by Jury................................... 821
Section 3. Treason........................................ 821
Clause 1. Definition and Limitations...................... 821
Treason........................................... 821
Levying War............................... 822
The Burr Trial.................... 823
Aid and Comfort to the Enemy.............. 824
The Cramer Case................... 824
The Haupt Case.................... 824
The Kawakita Case................. 826
Doubtful State of the Law of Treason Today 827
Clause 2. Punishment...................................... 827
Corruption of the Blood and Forfeiture............ 827
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ARTICLE III
JUDICIAL DEPARTMENT
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.
ORGANIZATION OF COURTS, TENURE, AND COMPENSATION OF JUDGES
The Constitution is almost completely silent concerning the
organization of the federal judiciary. ``That there should be a national
judiciary was readily accepted by all.''\1\ But whether it was to
consist of one high court at the apex of a federal judicial system or a
high court exercising appellate jurisdiction over state courts that
would initially hear all but a minor fraction of cases raising national
issues was a matter of considerable controversy.\2\ The Virginia Plan
provided for a ``National judiciary [to] be established to consist of
one or more supreme tribunals, and of inferior tribunals to be chosen by
the National Legislature. . . . ''\3\ In the Committee of the Whole, the
proposition ``that a national judiciary be established'' was unanimously
adopted,\4\ but the clause ``to consist of One supreme tribunal, and of
one or more inferior tribunals''\5\ was first agreed to, then
reconsidered, and the provision for inferior tribunals stricken out, it
being argued that state courts could adequately adjudicate all necessary
matters while the supreme tribunal would protect the national interest
and assure uniformity.\6\
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Wilson and Madison thereupon moved to authorize Congress ``to appoint
inferior tribunals,''\7\ which carried the implication that Congress
could in its discretion either designate the state courts to hear
federal cases or create federal courts. The word ``appoint'' was adopted
and over the course of the Convention changed into phrasing that
suggests something of an obligation on Congress to establish inferior
federal courts.\8\ The ``good behavior'' clause excited no
controversy,\9\ while the only substantial dispute with regard to
denying Congress the power to intimidate judges through actual or
threatened reduction of salaries came on Madison's motion to bar
increases as well as decreases.\10\
\1\M. Farrand, The Framing of the Constitution of the United
States (New Haven: 1913), 79.
\2\The most complete account of the Convention's consideration
of the judiciary is J. Goebel, Antecedents and Beginnings to 1801,
History of the Supreme Court of the United States, Vol. 1 (New York:
1971), ch. 5.
\3\1 M. Farrand, op. cit., n. 1, 21-22. That this version might
not possibly be an accurate copy, see 3 id., 593-594.
\4\1 id., 95, 104.
\5\Id., 95, 105. The words ``One or more'' were deleted the
following day without recorded debate. Id., 116, 119.
\6\Id., 124-125.
\7\Madison's notes use the word ``institute'' in place of
``appoint'', id., 125, but the latter appears in the Convention Journal,
id., 118, and in Yates' notes, id., 127, and when the Convention took up
the draft reported by the Committee of the Whole ``appoint'' is used
even in Madison's notes. 2 id., 38, 45.
\8\On offering their motion, Wilson and Madison ``observed that
there was a distinction between establishing such tribunals absolutely,
and giving a discretion to the Legislature to establish or not establish
them.'' 1 id., 125. The Committee on Detail provided for the vesting of
judicial power in one Supreme Court ``and in such inferior Courts as
shall, when necessary, from time to time, be constituted by the
legislature of the United States.'' 2 id., 186. Its draft also
authorized Congress ``[t]o constitute tribunals inferior to the Supreme
Court.'' Id., 182. No debate is recorded when the Convention approved
these two clauses, Id. 315, 422-423, 428-430. The Committee on Style
left the clause empowering Congress to ``constitute'' inferior tribunals
as was, but it deleted ``as shall, when necessary'' from the Judiciary
article, so that the judicial power was vested ``in such inferior courts
as Congress may from time to time''--and here deleted ``constitute'' and
substituted the more forceful--``ordain and establish.'' Id., 600.
\9\The provision was in the Virginia Plan and was approved
throughout, 1 id., 21.
\10\Id, 121; 2 id., 44-45, 429-430.
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One Supreme Court
The Convention left up to Congress decision on the size and
composition of the Supreme Court, the time and place for sitting, its
internal organization, save for the reference to the Chief Justice in
the impeachment provision,\11\ and other matters. These details Congress
filled up in the Judiciary Act of 1789, one of the seminal statutes of
the United States.\12\ By the Act, the Court was made to consist of a
Chief Justice and five Associate Justices.\13\ The number was gradually
increased until it reached a total of ten under the act of March 3,
1863.\14\ As one of the Reconstruction Congress' restrictions on
President Andrew Johnson, the number
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was reduced to seven as vacancies should occur.\15\ The number actually
never fell below eight before the end of Johnson's term, and Congress
thereupon made the number nine.\16\
\11\Article I, Sec. 3.
\12\Act of September 24, 1789, 1 Stat. 73. The authoritative
works on the Act and its working and amendments are F. Frankfurter & J.
Landis, The Business of the Supreme Court (New York: 1928); Warren, New
Light on the History of the Federal Judicial Act of 1789, 37 Harv. L.
Rev. 49 (1923); see also J. Goebel, op. cit., n. 2, ch. 11.
\13\Act of September 24, 1789, 1 Stat. 73, Sec. 1.
\14\12 Stat. 794, Sec. 1.
\15\Act of July 23, 1866, 14 Stat. 209, Sec. 1.
\16\Act of April 10, 1869, 16 Stat. 44.
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Proposals have been made at various times for an organization of
the Court into sections or divisions. No authoritative judicial
expression is available, although Chief Justice Hughes in a letter to
Senator Wheeler in 1937 expressed doubts concerning the validity of such
a device and stated that ``the Constitution does not appear to authorize
two or more Supreme Courts functioning in effect as separate
courts.''\17\
\17\Hearings before the Senate Judiciary Committee on S. 1392,
Reorganization of the Judiciary, 75th Congress, 1st sess. (1937), pt. 3,
491. For earlier proposals to have the Court sit in divisions, see F.
Frankfurter & J. Landis, op. cit., n. 12, 74-85.
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Congress has also determined the time and place of sessions of
the Court. It utilized this power once in 1801 to change its terms so
that for fourteen months the Court did not convene, so as to forestall a
constitutional attack on the repeal of the Judiciary Act of 1801.\18\
\18\1 C. Warren, The Supreme Court in United States History
(Boston: rev. ed. 1926), 222-224.
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Inferior Courts
Congress also acted in the Judiciary Act of 1789 to create
inferior courts. Thirteen district courts were constituted to have four
sessions annually,\19\ and three circuit courts were established to
consist jointly of two Supreme Court justices each and one of the
district judges of such districts which were to meet twice annually in
the various districts comprising the circuit.\20\ This system had
substantial faults in operation, not the least of which was the burden
imposed on the Justices who were required to travel thousands of miles
each year under bad conditions.\21\ Despite numerous ef
[[Page 600]]
forts to change this system, it persisted, except for one brief period,
until 1891.\22\ Since then, the federal judicial system has consisted of
district courts with original jurisdiction, intermediate appellate
courts, and the Supreme Court.
\19\Act of September 24, 1789, 1 Stat. 73, Sec. Sec. 2-3.
\20\Id., 74, Sec. Sec. 4-5
\21\Cf. F. Frankfurter & J. Landis, op. cit., n. 12, chs. 1-3:
J. Goebel. op. cit., n. 2, 554-560, 565-569. Upon receipt of a letter
from President Washington soliciting suggestions regarding the judicial
system, Writings of George Washington, J. Fitzpatrick ed., (Washington:
1943), 31, Chief Justice Jay prepared a letter for the approval of the
other Justices, declining to comment on the policy questions but raising
several issues of constitutionality, that the same man should not be
appointed to two offices, that the offices were incompatible, and that
the act invaded the prerogatives of the President and Senate. 2 G.
McRee, Life and Correspondence of James Iredell (New York: 1858), 293-
296. The letter was apparently never forwarded to the President.
Writings of Washington, op. cit., 31-32 n. 58. When the constitutional
issue was raised in Stuart v. Laird, 1 Cr. (5 U.S.) 299, 309 (1803), it
was passed over with the observation that the practice was too
established to be questioned.
\22\Act of March 3, 1891, 26 Stat. 826. The temporary relief
came in the Act of February 13, 1801, 2 Stat. 89, which was repealed by
the Act of March 8, 1802, 2 Stat. 132.
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Abolition of Courts.--That Congress ``may from time to time
ordain and establish'' inferior courts would seem to imply that the
system may be reoriented from time to time and that Congress is not
restricted to the status quo but may expand and contract the units of
the system; but if the judges are to have life tenure what is to be done
with them when the system is contracted? Unfortunately, the first
exercise of the power occurred in a highly politicized situation, and no
definite answer emerged. By the Judiciary Act of February 13, 1801,\23\
passed in the closing weeks of the Adams Administration, the districts
were reorganized, and six circuit courts consisting of three circuit
judges each were created. Adams filled the positions with deserving
Federalists, and upon coming to power the Jeffersonians set in motion
plans to repeal the Act, which were carried out.\24\ No provision was
made for the displaced judges, apparently under the theory that if there
were no courts there could be no judges to sit on them.\25\ The validity
of the repeal was questioned in Stuart v. Laird,\26\ where Justice
Paterson scarcely noticed the argument in rejecting it.
\23\Act of February 13, 1801, 2 Stat. 89.
\24\Act of March 8, 1802, 2 Stat. 132. F. Frankfurter & J.
Landis, op. cit., n. 12, 25-32; 1 C. Warren, op. cit., n. 18, 185-215.
\25\This was the theory of John Taylor of Caroline, upon whom
the Jeffersonians in Congress relied. W. Carpenter, Judicial Tenure in
the United States (New Haven: 1918), 63-64. The controversy is recounted
fully in id., 58-78.
\26\1 Cr. (5 U.S.) 299 (1803).
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Not until 1913 did Congress again utilize its power to abolish a
federal court, this time the unfortunate Commerce Court, which had
disappointed the expectations of most of its friends.\27\ But this time
Congress provided for the redistribution of the Commerce Court judges
among the circuit courts as well as a transfer of its jurisdiction to
the district courts.
\27\The Court was created by the Act of June 18, 1910, 36 Stat.
539, and repealed by the Act of October 22, 1913, 38 Stat. 208, 219. See
F. Frankfurter & J. Landis, op. cit., n. 12, 153-174; W. Carpenter, op.
cit., n. 25, 78-94.
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Compensation
Diminution of Salaries.--``The Compensation Clause has its roots
in the longstanding Anglo-American tradition of an independent
Judiciary. A Judiciary free from control by the Executive and the
Legislature is essential if there is a right to have claims de
[[Page 601]]
cided by judges who are free from potential domination by other branches
of government.''\28\ Thus, once a salary figure has gone into effect,
Congress may not reduce it nor rescind any part of an increase, although
prior to the time of its effectiveness Congress may repeal a promised
increase. This decision was rendered in the context of a statutory
salary plan for all federal officers and employees under which increases
went automatically into effect on a specified date. Four years running,
Congress interdicted the pay increases, but in two instances the
increases had become effective, raising the barrier of this clause.\29\
\28\United States v. Will, 449 U.S. 200, 217-218 (1980).
Hamilton, writing in The Federalist, No. 79 (J. Cooke ed., 1961), 531,
emphasized that ``[i]n the general course of human nature, a power over
a man's subsistence amounts to a power over his will.''
\29\United States v. Will, 449 U.S. 200, 224-230 (1980). In one
year, the increase took effect of October 1, while the President signed
the bill reducing the amount during the day of October 1. The Court held
the increase had gone into effect by the time the reduction was signed.
Will is also authority for the proposition that a general,
nondiscriminatory reduction, affecting judges but not aimed solely at
them, is covered by the clause. Id., 226.
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Also implicating this clause was a Depression-era appropriations
act reducing ``the salaries and retired pay of all judges (except judges
whose compensation may not, under the Constitution, be diminished during
their continuance in office),'' by a fixed amount. While this provision
presented no questions of its own constitutionality, it did require an
interpretation of which judges the clause applied to in order to prevent
the reductions. Judges in the District of Columbia were held protected
by Article III,\30\ while, on the other hand, salaries of the judges of
the Court of Claims, that being a legislative court, were held subject
to the reduction.\31\
\30\O'Donoghue v. United States, 289 U.S. 516 (1933).
\31\Williams v. United States, 289 U.S. 553 (1933). But see
Glidden Company v. Zdanok, 370 U.S. 530 (1962).
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In Evans v. Gore,\32\ the Court invalidated the application of
the income tax law to a federal judge, over the strong dissent of
Justice Holmes, who was joined by Justice Brandeis. This ruling was
extended, in Miles v. Graham,\33\ to exempt the salary of a judge of the
Court of Claims appointed subsequent to the enactment of the taxing act.
Evans v. Gore was disapproved, and Miles v. Graham was in effect
overruled in O'Malley v. Woodrough,\34\ where the Court upheld section
22 of the Revenue Act of 1932, which extended the application of the
income tax to salaries of judges taking office after June 6, 1932. Such
a tax was regarded neither as an unconstitutional diminution of the
compensation of
[[Page 602]]
judges nor as an encroachment on the independence of the judiciary.\35\
To subject judges who take office after a stipulated date to a
nondiscriminatory tax laid generally on an income, said the Court ``is
merely to recognize that judges are also citizens, and that their
particular function in government does not generate an immunity from
sharing with their fellow citizens the material burden of the government
whose Constitution and laws they are charged with administering.''\36\
\32\253 U.S. 245 (1920).
\33\268 U.S. 501 (1925).
\34\307 U.S. 277 (1939).
\35\Id., 278-282.
\36\Id., 282.
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Courts of Specialized Jurisdiction
By virtue of its power ``to ordain and establish'' courts,
Congress has occasionally created courts under Article III to exercise a
specialized jurisdiction. These tribunals are like other Article III
courts in that they exercise ``the judicial power of the United
States,'' and only that power, that their judges must be appointed by
the President and the Senate and must hold office during good behavior
subject to removal by impeachment only, and that the compensation of
their judges cannot be diminished during their continuance in office.
One example of such courts was the Commerce Court created by the Mann-
Elkins Act of 1910,\37\ which was given exclusive jurisdiction of all
cases to enforce orders of the Interstate Commerce Commission except
those involving money penalties and criminal punishment, of cases
brought to enjoin, annul, or set aside orders of the Commission, of
cases brought under the act of 1903 to prevent unjust discriminations,
and of all mandamus proceedings authorized by the act of 1903. This
court actually functioned for less than three years, being abolished in
1913, as was mentioned above.
\37\36 Stat. 539.
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Another court of specialized jurisdiction, but created for a
limited time only, was the Emergency Court of Appeals organized by the
Emergency Price Control Act of January 30, 1942.\38\ By the terms of the
statute, this court consisted of three or more judges designated by the
Chief Justice from the judges of the Untied States district courts and
circuit courts of appeal. The Court was vested with jurisdiction and
powers of a district court to hear appeals filed within thirty days
against denials of protests by the Price Administrator and with
exclusive jurisdiction to set aside regulations, orders, or price
schedules, in whole or in part, or to remand the proceeding, but the
court was tightly constrained in its treatment of regulations. There was
interplay with the district
[[Page 603]]
courts, which were charged with authority to enforce orders issued under
the Act, although only the Emergency Court had jurisdiction to determine
the validity of such orders.\39\
\38\56 Stat. 23, Sec. Sec. 31-33.
\39\In Lockerty v. Phillips, 319 U.S. 182 (1943), the
limitations on the use of injunctions, except the prohibition against
interlocutory decrees, was unanimously sustained.
A similar court was created to be utilized in the enforcement of
the economic controls imposed by President Nixon in 1971. P.L. 92-210,
85 Stat. 743, 211(b). Although controls ended in 1974, see 12 U.S.C.
Sec. 1904 note, Congress continued the Temporary Emergency Court of
Appeals and gave it new jurisdiction. Emergency Petroleum Allocation Act
of 1973, P.L. 93-159, 87 Stat. 633, 15 U.S.C. Sec. 754, incorporating
judicial review provisions of the Economic Stabilization Act. The Court
was abolished, effective March 29, 1993, by P. L. 102-572, 106 Stat.
4506.
Another similar specialized court was created by Sec. 209 of the
Regional Rail Reorganization Act, P. L. 93-226, 87 Stat. 999, 45 U.S.C.
Sec. 719, to review the final system plan under the Act. Regional Rail
Reorganization Act Cases(Blanchette v. Connecticut Gen. Ins. Corp.), 419
U.S. 102 (1974).
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Other specialized courts are the Court of Appeals for the
Federal Circuit, which is in many respects like the geographic circuits.
Created in 1982,\40\ this court has exclusive jurisdiction to hear
appeals from the United States Court of Federal Claims, from the Federal
Merit System Protection Board, the Court of International Trade, the
Patent Office in patent and trademark cases, and in various contract and
tort cases. The Court of International Trade, which began life as the
Board of General Appraisers, became the United States Customs Court in
1926, and was declared an Article III court in 1956, came to its present
form and name in 1980.\41\ The Judicial Panel on Multidistrict
Litigation, staffed by federal judges from other courts, is authorized
to transfer actions pending in different districts to a single district
for trial.\42\
\40\By the Federal Courts Improvement Act of 1982, P. L. 97-164,
96 Stat. 37, 28 U.S.C. Sec. 1295. Among other things, this Court assumed
the appellate jurisdiction of the Court of Claims and the Court of
Customs and Patent Appeals.
\41\Act of Oct. 10, 1980, 94 Stat. 1727.
\42\28 U.S.C. Sec. 1407.
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To facilitate the gathering of foreign intelligence information,
through electronic surveillance, search and seizure, as well as other
means, Congress authorized in 1978 a special court, composed of seven
regular federal judges appointed by the Chief Justice, to receive
applications from the United States and to issue warrants for
intelligence activities.\43\
\43\P. L. 95-511,92 Stat. 1788, 50 U.S.C. Sec. 1803.
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Even greater specialization is provided by the special court
created by the Ethics in Government Act;\44\ the court is charged, upon
[[Page 604]]
the request of the Attorney General, with appointing an independent
counsel to investigate and prosecute charges of illegality in the
Executive Branch. The court also has certain supervisory powers over the
independent counsel.
\44\Ethics in Government Act, Title VI, P. L. 95-521, 92 Stat.
1867, as amended, 28 U.S.C. Sec. Sec. 591-599. The court is a ``Special
Division'' of the United States Court of Appeals for the District of
Columbia; composed of three regular federal judges, only one of whom may
be from the D. C. Circuit, who are designated by the Chief Justice. 28
U.S. C. Sec. 49. The constitutionality of the Special Division was
upheld in Morrison v. Olson, 487 U.S. 654, 670-685 (1988).
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Legislative Courts: The Canter Case
Legislative courts, so-called because they are created by
Congress in pursuance of its general legislative powers, have comprised
a significant part of the federal judiciary.\45\ The distinction between
constitutional courts and legislative courts was first made in American
Ins. Co. v. Canter,\46\ which involved the question of the admiralty
jurisdiction of the territorial court of Florida, the judges of which
were limited to a four-year term in office. Said Chief Justice Marshall
for the Court: ``These courts, then, are not constitutional courts, in
which the judicial power conferred by the Constitution on the general
government, can be deposited. They are incapable of receiving it. They
are legislative courts, created in virtue of the general right of
sovereignty which exists in the government, or in virtue of that clause
which enables Congress to make all needful rules and regulations,
respecting the territory belonging to the United States. The
jurisdiction with which they are invested, is not a part of that
judicial power which is defined in the 3rd article of the Constitution,
but is conferred by Congress, in the execution of those general powers
which that body possesses over the territories of the United
States.''\47\ The Court went on to hold that admiralty jurisdiction can
be exercised in the States only in those courts which are established in
pursuance of Article III but that the same limitation does not apply to
the territorial courts, for in legislating for them ``Congress exercises
the combined powers of the general, and of a state government.''\48\
\45\In Freytag v. CIR, 501 U.S. 868 (1991), a controverted
decision held Article I courts to be ``Courts of Law'' for purposes of
the appointments clause. Art. II, Sec. 2, cl. 2. See id., 888-892
(majority opinion), and 901-914 (Justice Scalia dissenting).
\46\1 Pet. (26 U.S.) 511 (1828).
\47\Id., 546.
\48\In Glidden Co. v. Zdanok, 370 U.S. 530, 544-545 (1962),
Justice Harlan asserted that Chief Justice Marshall in the Canter case
``did not mean to imply that the case heard by the Key West court was
not one of admiralty jurisdiction otherwise properly justiciable in a
Federal District Court sitting in one of the States. . . . All the Chief
Justice meant . . . is that in the territories cases and controversies
falling within the enumeration of Article III may be heard and decided
in courts constituted without regard to the limitations of that article.
. . .''
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Canter postulated a simple proposition: ``Constitutional courts
exercise the judicial power described in Art. III of the Constitution;
legislative courts do not and cannot.''\49\ A two-fold difficulty at
[[Page 605]]
tended this proposition, however. Admiralty jurisdiction is included
within the ``judicial power of the United States'' specifically in
Article III, requiring an explanation how this territorial court could
receive and exercise it. Second, if territorial courts could not
exercise Article III power, how might their decisions be subjected to
appellate review in the Supreme Court, or indeed in other Article III
courts, which could exercise only Article III judicial power?\50\
Moreover, if in fact some ``judicial power'' may be devolved upon courts
not having the constitutional security of tenure and salary, what
prevents Congress from undermining those values intended to be protected
by Article III's guarantees by giving jurisdiction to nonprotected
entities that, being subjected to influence, would be bent to the
popular will?
\49\Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458
U.S. 50, 106 (1982) (Justice White dissenting).
\50\That the Supreme Court could review the judgments of
territorial courts was established in Durousseau v. United States, 6 Cr.
(10 U.S.) 307 (1810). See also Benner v. Porter, 9 How. (50 U.S.) 235,
243 (1850); Clinton v. Englebrecht, 13 Wall. (80 U.S.) 434 (1872);
Balzac v. Porto Rico, 258 U.S. 298, 312-313 (1922).
---------------------------------------------------------------------------
Attempts to explain or to rationalize the predicament or to
provide a principled limiting point have from Canter to the present
resulted in ``frequently arcane distinctions and confusing precedents''
spelled out in cases comprising ``landmarks on a judicial `darkling
plain' where ignorant armies have clashed by night''.\51\ Nonetheless,
Article I courts are quite usual entities in our judicial system.\52\
\51\Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458
U.S. 50, 90, 91 (1982) (Justice Rehnquist concurring). The ``darkling
plain'' language is his attribution to Justice White's historical
summary.
\52\In addition to the local courts of the District of Columbia,
the bankruptcy courts, and the U. S. Court of Federal Claims, considered
infra, these include the United States Tax Court, formerly an
independent agency in the Treasury Department, but by the Tax Reform Act
of 1969, Sec. 951, 83 Stat. 730, 26 U.S.C. Sec. 7441, made an Article I
court of record, the Court of Veterans Appeals, Act of Nov. 18, 1988,
102 Stat. 4105, 38 U.S.C. Sec. 4051, and the courts of the territories
of the United States. Magistrate judges are adjuncts of the District
Courts, see infra, n. 105, and perform a large number of functions,
usually requiring the consent of the litigants. See Gomez v. United
States, 490 U.S. 858 (1989); Peretz v. United States, 501 U.S. 923
(1991). The U. S. Court of Military Appeals, strictly speaking, is not
part of the judiciary but is a military tribunal, 10 U.S.C. Sec. 867,
although Congress designated it an Article I tribunal and has recently
given the Supreme Court certiorari jurisdiction over its decisions.
---------------------------------------------------------------------------
Power of Congress Over Legislative Courts.--In creating
legislative courts, Congress is not limited by the restrictions imposed
in Article III concerning tenure during good behavior and the
prohibition against diminution of salaries. Congress may limit tenure to
a term of years, as it has done in acts creating territorial courts and
the Tax Court, and it may subject the judges of legislative courts to
removal by the President,\53\ or it may reduce their
[[Page 606]]
salaries during their terms.\54\ Similarly, it follows that Congress can
vest in legislative courts nonjudicial functions of a legislative or
advisory nature and deprive their judgments of finality. Thus, in Gordon
v. United States,\55\ there was no objection to the power of the
Secretary of the Treasury and Congress to revise or suspend the early
judgments of the Court of Claims. Likewise, in United States v.
Ferreira,\56\ the Court sustained the act conferring powers on the
Florida territorial court to examine claims rising under the Spanish
treaty and to report its decisions and the evidence on which they were
based to the Secretary of the Treasury for subsequent action. ``A power
of this description,'' it was said, ``may constitutionally be conferred
on a Secretary as well as on a commissioner. But [it] is not judicial in
either case, in the sense in which judicial power is granted by the
Constitution to the courts of the United States.''\57\
\53\McAllister v. United States, 141 U.S. 174 (1891).
\54\United States v. Fisher, 109 U.S. 143 (1883); Williams v.
United States, 289 U.S. 553 (1933).
\55\2 Wall. (69 U.S.) 561 (1864).
\56\13 How. (54 U.S.) 40 (1852).
\57\Id., 48.
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Review of Legislative Courts by Supreme Court.--Chief Justice
Taney's view, that would have been expressed in Gordon,\58\ that the
judgments of legislative courts could never be reviewed by the Supreme
Court, was tacitly rejected in DeGroot v. United States,\59\ in which
the Court took jurisdiction from a final judgment of the Court of
Claims. Since the decision in this case, the authority of the Court to
exercise appellate jurisdiction over legislative courts has turned not
upon the nature or status of such courts but rather upon the nature of
the proceeding before the lower court and the finality of its judgment.
The Supreme Court will neither review the administrative proceedings of
legislative courts nor entertain appeals from the advisory or
interlocutory decrees of such a body.\60\ But in proceedings before a
legislative court which are judicial in nature, admit of a final
judgment, and involve the per
[[Page 607]]
formance of judicial functions and therefore the exercise of judicial
power, the Court may be vested with appellate jurisdiction.\61\
\58\The opinion in Gordon v. United States, 2 Wall. (69 U.S.)
561 (1864), had originally been prepared by Chief Justice Taney, but
following his death and reargument of the case the opinion cited was
issued. The Court later directed the publishing of Taney's original
opinion at 117 U.S. 697. See also United States v. Jones, 119 U.S. 477,
478 (1886), in which the Court noted that the official report of Chief
Justice Chase's Gordon opinion and the Court's own record showed
differences and quoted the record.
\59\5 Wall. (72 U.S.) 419 (1867). See also United States v.
Jones, 119 U.S. 477 (1886).
\60\E.g., Postum Cereal Co. v. California Fig Nut Co., 272 U.S.
693 (1927); Federal Radio Comm. v. General Elec. Co., 281 U.S. 464
(1930); D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). See
Glidden Co. v. Zdanok, 370 U.S. 530, 576, 577-579 (1962).
\61\Pope v. United States, 323 U.S. 1, 14 (1944); D. C. Court of
Appeals v. Feldman, 460 U.S. 462 (1983).
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The ``Public Rights'' Distinction.--A major delineation of the
distinction between Article I courts and Article III courts was
attempted in Murray's Lessee v. Hoboken Land & Improvement Co.\62\ In
this case was challenged a summary procedure, without benefit of the
courts, for the collection by the United States of moneys claimed to be
due from one of its customs collectors. It was objected that the
assessment and collection was a judicial act carried out by nonjudicial
officers and thus invalid under Article III. Accepting that the acts
complained of were judicial, the Court nonetheless sustained the act by
distinguishing between any act, ``which, from its nature, is the subject
of a suit at the common law, or in equity, or admiralty,'' which, in
other words, is inherently judicial, and other acts which Congress may
vest in courts or in other agencies. ``[T]here are matters, involving
public rights, which may be presented in such form that the judicial
power is capable of acting on them, and which are susceptible of
judicial determination, but which congress may or may not bring within
the cognizance of the courts of the United States, as it may deem
proper.''\63\ The distinction was between those acts which historically
had been determined by courts and those which historically had been
resolved by executive or legislative acts and comprehended those matters
that arose between the government and others. Thus, Article I courts
``may be created as special tribunals to examine and determine various
matters, arising between the government and others, which from their
nature do not require judicial determination and yet are susceptible of
it. The mode of determining matters of this class is completely within
congressional control.''\64\
\62\18 How. (59 U.S.) 272 (1856).
\63\Id., 284.
\64\Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929).
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Among the matters susceptible of judicial determination, but not
requiring it, are claims against the United States,\65\ the disposal of
public lands and claims arising therefrom,\66\ questions concerning
membership in the Indian tribes,\67\ and questions arising out of the
administration of the customs and internal revenue
[[Page 608]]
laws.\68\ Other courts similar to territorial courts, such as consular
courts and military courts martial, may be justified on like
grounds.\69\
\65\Gordon v. United States, 117 U.S. 697 (1864); McElrath v.
United States, 102 U.S. 426 (1880); Williams v. United States, 289 U.S.
553 (1933). On the status of the then-existing Court of Claims, see
Glidden Co. v. Zdanok, 370 U.S. 530 (1962).
\66\United States v. Coe, 155 U.S. 76 (1894) (Court of Private
Land Claims).
\67\Wallace v. Adams. 204 U.S. 415 (1907); Stephens v. Cherokee
Nation, 174 U.S. 445 (1899) (Choctaw and Chickasaw Citizenship Court).
\68\Old Colony Trust Co. v. CIR, 279 U.S. 716 (1929); Ex Parte
Bakelite Corp., 279 U.S. 438 (1929).
\69\See In re Ross, 140 U.S. 453 (1891) (consular courts in
foreign countries). Military courts may, on the other hand, be a
separate entity of the military having no connection to Article III.
Dynes v. Hoover, 20 How. (61 U.S.) 65, 79 (1857).
---------------------------------------------------------------------------
The ``public rights'' distinction appears today to be a
description without a significant distinction. Thus, in Crowell v.
Benson,\70\ the Court approved an administrative scheme for
determination, subject to judicial review, of maritime employee
compensation claims, although it acknowledged that the case involved
``one of private right, that is, of the liability of one individual to
another under the law as defined.''\71\ This scheme was permissible, the
Court said, because in cases arising out of congressional statutes, an
administrative tribunal could make findings of fact and render an
initial decision of legal and constitutional questions, as long as there
is adequate review in a constitutional court.\72\ The ``essential
attributes'' of decision must remain in an Article III court, but so
long as it does, Congress may utilize administrative decisionmakers in
those private rights cases that arise in the context of a comprehensive
federal statutory scheme.\73\ That the ``public rights'' distinction
marked a dividing line between those matters that could be assigned to
legislative courts and to administrative agencies and those matters ``of
private right'' that could not be was reasserted in Marathon, but there
was much the Court plurality did not explain.\74\
\70\285 U.S. 22 (1932).
\71\Id. 51. On the constitutional problems of assignment to an
administrative agency, see Atlas Roofing Co. v. OSHRC, 430 U.S. 442
(1977); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937).
\72\Id., 51-65.
\73\Id., 50, 51, 58-63. Thus, Article III concerns were
satisfied by a review of the agency fact finding upon the administrative
record. Id., 63-65. The plurality opinion denied the validity of this
approach in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458
U.S. 50, 86 n. 39 (1982), although Justice white in dissent accepted it.
Id., 115. The plurality, rather, rationalized Crowell and subsequent
cases on an analysis seeking to ascertain whether agencies or Article I
tribunals were ``adjuncts'' of Article III courts, that is, whether
Article III courts were sufficiently in charge to protect constitutional
values. Id., 76-87.
\74\Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458
U.S. 50, 67-70 (1982) (plurality opinion). Thus, Justice Brennan states
that at a minimum a matter of public right must arise ```between the
government and others''' but that the presence of the United States as a
proper party to the proceeding is a necessary but not sufficient means
to distinguish ``private rights.'' Id., 69 & n. 23. Crowell v. Benson,
however, remained an embarrassing presence.
---------------------------------------------------------------------------
The Court continued to waver with respect to the importance to
decision-making of the public rights/private rights distinction. In
[[Page 609]]
two cases following Marathon, it rejected the distinction as ``a bright
line test,'' and instead focused on ``substance''--i.e., on the extent
to which the particular grant of jurisdiction to an Article I court
threatened judicial integrity and separation of powers principles.\75\
Nonetheless, the Court indicated that the distinction may be an
appropriate starting point for analysis. Thus, the fact that private
rights traditionally at the core of Article III jurisdiction are at
stake leads the Court to ``searching'' inquiry as to whether Congress is
encroaching inordinately on judicial functions, while the concern is not
so great where ``public'' rights are involved.\76\
\75\Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568
(1985); CFTC v. Schor, 478 U.S. 833 (1986). The cases also abandoned the
principle that the Federal Government must be a party for the case to
fall into the ``public rights'' category. Thomas, supra, 586; and see
id., 596-599 (Justice Brennan concurring).
\76\``In essence, the public rights doctrine reflects simply a
pragmatic understanding that when Congress selects a quasi-judicial
method of resolving matters that `could be conclusively determined by
the Executive and Legislative Branches,' the danger of encroaching on
the judicial powers is reduced.'' Thomas v. Union Carbide Agric.
Products Co., 473 U.S. 568, 589 (1985) (quoting Northern Pipeline,
supra, 458 U.S., 68 (plurality opinion)).
---------------------------------------------------------------------------
However, in a subsequent case, the distinction was pronounced
determinative not only of the issue whether a matter could be referred
to a non-Article III tribunal but whether Congress could dispense with
civil jury trials.\77\ In so doing, however, the Court vitiated much of
the core content of ``private'' rights as a concept and left resolution
of the central issue to a balancing test. That is, ``public'' rights
are, strictly speaking, those in which the cause of action inheres in or
lies against the Federal Government in its sovereign capacity, the
understanding since Murray's Lessee. However, to accommodate Crowell v.
Benson, Atlas Roofing, and similar cases, seemingly private causes of
action between private parties will also be deemed ``public'' rights,
when Congress, acting for a valid legislative purpose pursuant to its
Article I powers, fashions a cause of action that is analogous to a
common-law claim and so closely integrates it into a public regulatory
scheme that it becomes a matter appropriate for agency resolution with
limited involvement by the Article III judiciary.\78\ Nonetheless,
despite its fixing by Congress as a ``core proceeding'' suitable for an
Article I bankruptcy court adjudication, the Court held the particular
cause of ac
[[Page 610]]
tion at issue was a private issue as to which the parties were entitled
to a civil jury trial (and necessarily which Congress could not commit
to an Article I tribunal, save perhaps through the consent of the
parties).\79\
\77\Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 51-55 (1989).
A seventh Amendment jury-trial case, the decision is critical to the
Article III issue as well, because, as the Court makes clear what was
implicit before, whether Congress can submit a legal issue to an Article
I tribunal and whether it can dispense with a civil jury on that legal
issue must be answered by the same analysis. Id., 52-53.
\78\Id., 52-54. The Court reiterated that the Government need
not be a party as a prerequisite to a matter being of ``public right.''
Id., 54. Concurring, Justice Scalia argued that public rights
historically were and should remain only those matters to which the
Federal Government is a party. Id, 65.
\79\Id., 55-64. The Court reserved the question whether, a jury
trial being required, a non-Article III bankruptcy judge could oversee
such a jury trial. Id., 64. That question remains unresolved, both as a
matter, first, of whether there is statutory authorization for
bankruptcy judges to conduct jury trials, and, second, if there is,
whether they may constitutionally do so. E.g., In re Ben Cooper, Inc.,
896 F.2d 1394 (2d Cir. 1990), cert. granted, 497 U.S. 1023, vacated and
remanded for consideration of a jurisdictional issue, 498 U.S. 964
(1990), reinstated, 924 F.2d 36 (2d Cir.), cert. den., 500 U.S. 928
(1991); In re Grabill Corp., 967 F.2d 1152 (7th Cir. 1991), pet. for
reh. en banc den., 976 F.2d 1126 (7th Cir. 1992).
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Constitutional Status of the Court of Claims and the Courts of
Customs and Patent Appeals.--Though the Supreme Court for a long while
accepted the Court of Claims as an Article III court,\80\ it later ruled
that court to be an Article I court and its judges without
constitutional protection of tenure and salary.\81\ 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,\82\ a questionable act under the standards the Court had
utilized to determine whether courts were legislative or
constitutional.\83\ But in Glidden Co. v. Zdanok,\84\ 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.\85\ 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
[[Page 611]]
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.\86\ The other four Justices expressly declared that
Bakelite and Williams should not be overruled,\87\ but two of them
thought the two courts had attained constitutional status by virtue of
the clear manifestation of congressional intent expressed in the
legislation.\88\ Two Justices maintained that both courts remained
legislative tribunals.\89\ While the result is clear, no standard for
pronouncing a court legislative rather than constitutional has obtained
the adherence of a majority of the Court.\90\
\80\De Groot v. United States, 5 Wall. (72 U.S.) 419 (1866);
United States v. Union Pacific Co., 98 U.S. 569, 603 (1878); Miles v.
Graham, 268 U.S. 501 (1925).
\81\Williams v. United States, 289 U.S. 553 (1933); cf. Ex Parte
Bakelite Corp., 279 U.S. 438, 450-455 (1929).
\82\67 Stat. 226, Sec. 1, 28 U.S.C. Sec. 171 (Court of Claims);
70 Stat. 532. Sec. 1, 28 U.S.C. Sec. 251 (Customs Court); 72 Stat. 848,
Sec. 1, 28 U.S.C. Sec. 211 (Court of Customs and Patent Appeals).
\83\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.''
\84\370 U.S. 530 (1962).
\85\Glidden Co. v. Zdanok, 370 U.S. 530, 531 (1962) (Justices
Harlan, Brennan, and Stewart).
\86\Id., 548, 552.
\87\Id., 585 (Justice Clark and Chief Justice Warren
concurring); 589 (Justices Douglas and Black dissenting).
\88\Id., 585 (Justice Clark and Chief Justice Warren).
\89\Id., 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., 583.
\90\Aside from doctrinal matters, in 1982, Congress 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. Sec. 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, Sec. 902(a)(1), 106 Stat. 4516, 28 U.S.C. Sec. Sec. 171-180.
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Status of Courts of the District of Columbia.--Through a long
course of decisions, the courts of the District of Columbia were
regarded as legislative courts upon which Congress could impose
nonjudicial functions. In Butterworth v. United States ex rel. Hoe,\91\
the Court sustained an act of Congress which conferred revisory powers
upon the Supreme Court of the District in patent appeals and made its
decisions binding only upon the Commissioner of Patents. Similarly, the
Court later sustained the authority of Congress to vest revisory powers
in the same court over rates fixed by a public utilities commission.\92\
Not long after this, the same rule was applied to the revisory powers of
the District Supreme Court over orders of the Federal Radio
Commission.\93\ These rulings were based on the assumption, express or
implied, that the courts of the District were legislative courts,
created by Congress in pursuance of its plenary power to govern the
District of Columbia. In dictum in Ex parte Bakelite Corp.,\94\ while
reviewing the history and ana
[[Page 612]]
lyzing the nature of the legislative courts, the Court stated that the
courts of the District were legislative courts.
\91\112 U.S. 50 (1884).
\92\Keller v. Potomac Elec. Co., 261 U.S. 428 (1923).
\93\Federal Radio Comm. v. General Elec. Co., 281 U.S. 464
(1930).
\94\279 U.S. 438, 450-455 (1929).
---------------------------------------------------------------------------
In 1933, nevertheless, the Court, abandoning all previous dicta
on the subject, found the courts of the District of Columbia to be
constitutional courts exercising judicial power of the United
States,\95\ with the result that it assumed the task of reconciling the
performance of nonjudicial functions by such courts with the rule that
constitutional courts can exercise only the judicial power of the United
States. This task was accomplished by the argument that in establishing
courts for the District, Congress is performing dual functions in
pursuance of two distinct powers, the power to constitute tribunals
inferior to the Supreme Court, and its plenary and exclusive power to
legislate for the District of Columbia. However, Article III, Sec. 1,
limits this latter power with respect to tenure and compensation, but
not with regard to vesting legislative and administrative powers in such
courts. Subject to the guarantees of personal liberty in the
Constitution, ``Congress has as much power to vest courts of the
District with a variety of jurisdiction and powers as a State
legislature has in conferring jurisdiction on its courts.''\96\
\95\O'Donoghue v. United States, 289 U.S. 516 (1933).
\96\Id., 535-546. Chief Justice Hughes in dissent argued that
Congress' power over the District was complete in itself and the power
to create courts there did not derive at all from Article III. Id., 551.
See the discussion of this point of O'Donoghue in National Mutual Ins.
Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). Cf. Hobson v.
Hansen, 265 F. Supp. 902 (D.C.D.C. 1967) (three-judge court).
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In 1970, Congress formally recognized two sets of courts in the
District, federal courts, district courts and a Court of Appeals for the
District of Columbia, created pursuant to Article III, and courts
equivalent to state and territorial courts, created pursuant to Article
I.\97\ Congress' action was sustained in Palmore v. United States.\98\
When legislating for the District, the Court held, Congress has the
power of a local legislature and may, pursuant to Article I, Sec. 8, cl.
17, vest jurisdiction to hear matters of local law and local concerns in
courts not having Article III characteristics. The defendant's claim
that he was denied his constitutional right to be tried before an
Article III judge was denied on the basis that it was not absolutely
necessary that every proceeding in which a charge, claim, or defense
based on an act of Congress or a law made under its authority need be
conducted in an Article III court. State courts, after all, could hear
cases involving federal law as could territorial and military courts.
``[T]he requirements of Article III, which are applicable where laws of
national applicability and affairs of na
[[Page 613]]
tional concern are at stake, must in proper circumstances give way to
accommodate plenary grants of power to Congress to legislate with
respect to specialized areas having particularized needs and warranting
distinctive treatment.''\99\
\97\P.L. 91-358, 84 Stat. 475, D.C. Code Sec. 11-101.
\98\411 U.S. 389 (1973)
\99\Id., 407-408. See also Pernell v. Southall Realty Co., 416
U.S. 363, 365-365 (1974); Swain v. Pressley, 430 U.S. 372 (1977); Key v.
Doyle, 434 U.S. 59 (1978). Under Swain, provision for hearing of motions
for postjudgment relief by convicted persons in the District, the
present equivalent of habeas for federal convicts, is placed in Article
I courts. That there are limits to Congress' discretion is asserted in
dictum in Territory of Guam v. Olsen, 431 U.S. 195, 201-202, 204 (1977).
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Bankruptcy Courts.--After extended and lengthy debate, Congress
in 1978 revised the bankruptcy act and created as an ``adjunct'' of the
district courts a bankruptcy court composed of judges, vested with
practically all the judicial power of the United States, serving for 14
year terms, subject to removal for cause by the judicial councils of the
circuits, and with salaries subject to statutory change.\100\ The
bankruptcy courts were given jurisdiction over all civil proceedings
arising under the bankruptcy code or arising in or related to bankruptcy
cases, with review in Article III courts under a clearly erroneous
standard. In a case in which a claim was made against a company for
breaches of contract and warranty, purely state law claims, the Court
held unconstitutional the conferral upon judges not having the Article
III security of tenure and compensation of jurisdiction to hear state
law claims of traditional common law actions of the kind existing at the
time of the drafting of the Constitution.\101\ While the holding was
extremely narrow, a plurality of the Court sought to rationalize and
limit the Court's jurisprudence of Article I courts. According to the
plurality, as a fundamental principle of separation of powers, the
judicial power of the United States must be exercised by courts having
the attributes prescribed in Article III. Congress may not evade the
constitutional order by allocating this judicial power to courts whose
judges lack security of tenure and compensation. Only in three narrowly
circumscribed instances may judicial power be distributed outside the
Article III framework: in territories and the District of Columbia, that
is, geographical areas in which no State operated as sovereign and
Congress exercised the general powers of government; courts martial,
that is, the establishment of courts under a constitutional grant of
power historically understood as giving the
[[Page 614]]
political branches extraordinary control over the precise subject
matter; and the adjudication of ``public rights,'' that is, the
litigation of certain matters that historically were reserved to the
political branches of government and that were between the government
and the individual.\102\ In bankruptcy legislation and litigation not
involving any of these exceptions, the plurality would have held, the
judicial power to process bankruptcy cases could not be assigned to the
tribunals created by the act.\103\
\100\Bankruptcy Act of 1978, P.L. 95-598, 92 Stat. 2549,
codified in titles 11, 28. The bankruptcy courts were made ``adjuncts''
of the district courts by Sec. 201(a), 28 U.S.C. Sec. 151(a). For
citation to the debate with respect to Article III versus Article I
status for these courts, see Northern Pipeline Const. Co. v. Marathon
Pipe Line Co., 458 U.S. 50, 61 n. 12 (1982) (plurality opinion).
\101\The statement of the holding is that of the two concurring
Justices, id., 89 (Justices Rehnquist and O'Connor), with which the
plurality agreed ``at the least,'' while desiring to go further. Id., 87
n. 40.
\102\Id., 63-76 (Justice Brennan, joined by Justices Marshall,
Blackmun, and Stevens).
\103\The plurality also rejected an alternative basis, a
contention that as ``adjuncts'' of the district courts, the bankruptcy
courts were like United States magistrates or like those agencies
approved in Crowell v. Benson, 285 U.S. 22 (1932), to which could be
assigned factfinding functions subject to review in Article III courts,
the fount of the administrative agency system. Northern Pipeline Const.
Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76-86 (1982). According to
the plurality, the act vested too much judicial power in the bankruptcy
courts to treat them like agencies, and it limited the review of Article
III courts too much.
---------------------------------------------------------------------------
The dissent argued that, while on its face Article III provided
for exclusivity in assigning judicial power to Article III entities, the
history since Canter belied that simplicity. Rather, the precedents
clearly indicated that there is no difference in principle between the
work that Congress may assign to an Article I court and that which must
be given to an Article III court. Despite this, the dissent contended
that Congress did not possess plenary discretion in choosing between the
two systems; rather, in evaluating whether jurisdiction was properly
reposed in an Article I court, the Supreme Court must balance the values
of Article III against both the strength of the interest Congress sought
to further by its Article I investiture and the extent to which Article
III values were undermined by the congressional action. This balancing
would afford the Court, the dissent believed, the power to prevent
Congress, were it moved to do so, from transferring jurisdiction in
order to emasculate the constitutional courts of the United States.\104\
\104\Id., 92, 105-113, 113-116 (Justice White, joined by Chief
Justice Burger and Justice Powell).
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Again, no majority could be marshaled behind a principled
discussion of the reasons for and the limitation upon the creation of
legislative courts, not that a majority opinion, or even a unanimous
one, would necessarily presage the settling of the law.\105\ But the
breadth of the various opinions left unclear not only the degree of
discretion left in Congress to restructure the bankruptcy courts, but
placed in issue the constitutionality of other legislative efforts
[[Page 615]]
to establish adjudicative systems outside a scheme involving the
creation of life-tenured judges.\106\
\105\Ex parte Bakelite Corp., 279 U.S. 438 (1929), was, after
all, a unanimous opinion and did not long survive.
\106\In particular, the Federal Magistrates Act of 1968, under
which judges may refer certain pretrial motions and the trial of certain
matters to persons appointed to a specific term, was threatened. P.L.
90-578, 82 Stat. 1108, as amended, 28 U.S.C. Sec. Sec. 631-639. See
United States v. Raddatz, 447 U.S. 667 (1980); Mathews v. Weber, 423
U.S. 261 (1976).
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Congress responded to Marathon by enactment of the Bankruptcy
Amendments and Federal Judgeship Act of 1984.\107\ Bankruptcy courts
were maintained as Article I entities, and overall their powers as
courts were not notably diminished. However, Congress did establish a
division between ``core proceedings,'' which bankruptcy courts could
hear and determine, subject to lenient review, and other proceedings,
which, though the bankruptcy courts could initially hear and decide, any
party could have de novo review in the district court, unless the
parties consented to bankruptcy-court jurisdiction in the same manner as
core proceedings. A safety valve was included, permitting the district
court to withdraw any proceeding from the bankruptcy court on cause
shown.\108\ Notice that in Granfinanciera, S.A. v. Nordberg,\109\ the
Court found that a cause of action founded on state law, though
denominated a core proceeding, was a private right.
\107\P. L. 98-353, 98 Stat. 333, judiciary provisions at 28
U.S.C. Sec. 151 et seq.
\108\See 28 U.S.C. Sec. 157.
\109\492 U.S. 33 (1989).
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Agency Adjudication.--The Court in two decisions following
Marathon involving legislative courts clearly suggested that the
majority was now closer to the balancing approach of the Marathon
dissenters than to the position of the Marathon plurality that Congress
may confer judicial power on legislative courts in only very limited
circumstances. Subsequently, however, Granfinanciera, S.A. v.
Nordberg,\110\ a reversion to the fundamentality of Marathon, with an
opinion by the same author, Justice Brennan, cast some doubt on this
proposition. In Thomas v. Union Carbide Agric. Products Co.,\111\ the
Court upheld a provision of the pesticide law requiring binding
arbitration, with limited judicial review, of compensation due one
registrant by another for mandatory sharing of registration information,
the right arising from federal statutory law. And in CFTC v. Schor,\112\
the Court upheld conferral on the agency of authority, in a reparations
adjudication under the Act, also to adjudicate ``counterclaims'' arising
out of the same transaction, including those arising under state common
law. Neither the fact that the pesticide case involved a dispute between
two pri
[[Page 616]]
vate parties nor the fact that the CFTC was empowered to decide claims
traditionally adjudicated under state law proved decisive to the Court's
analysis.
\110\Id.
\111\473 U.S. 568 (1985).
\112\478 U.S. 833 (1986).
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In rejecting a ``formalistic'' approach and analyzing the
``substance'' of the provision at issue in Union Carbide, Justice
O'Connor`s opinion for the Court pointed to several considerations.\113\
The right to compensation was not a purely private right, but ``bears
many of the characteristics of a `public' right,'' since Congress was
``authoriz[ing] an agency administering a complex regulatory scheme to
allocate costs and benefits among voluntary participants in the
program.''\114\ Also important was not ``unduly constrict[ing] Congress
in its ability to take needed and innovative action pursuant to its
Article I powers;''\115\ arbitration was ``a pragmatic solution to [a]
difficult problem.'' The limited nature of judicial review was seen as a
plus in the sense that ``no unwilling defendant is subjected to judicial
enforcement power;'' on the other hand, availability of limited judicial
review of the arbitrator's findings and determination for fraud,
misconduct, or misrepresentation, and for due process violations,
preserved the ```appropriate exercise of the judicial function.'''\116\
Thus, the Court concluded, Congress in exercise of Article I powers
``may create a seemingly `private' right that is so closely integrated
into a public regulatory scheme as to be a matter appropriate for agency
resolution with limited involvement by the Article III judiciary.''\117\
\113\Contrast the Court's approach to Article III separation of
powers issues with the more rigid approach enunciated in INS v. Chadha
and Bowsher v. Synar, involving congressional incursions on executive
power.
\114\Id., 473 U.S., 589.
\115\CFTC v. Schor, supra, 478 U.S., 851 (summarizing the Thomas
rule).
\116\Thomas, supra, 473 U.S., 591, 592(quoting Crowell v.
Benson, 285 U.S. 22, 54 (1932)).
\117\473 U.S., 594.
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In Schor, the Court described Art. III, Sec. 1, as serving a
dual purpose: to protect the role of an independent judiciary and to
safeguard the right of litigants to have claims decided by judges free
from potential domination by the other branches of government. A
litigant's Article III right is not absolute, the Court determined, but
may be waived. This the litigant had done by submitting to the
administrative law judge's jurisdiction rather than independently
seeking relief as he was entitled to and then objecting only after
adverse rulings on the merits. But the institutional integrity claim,
not being personal, could not be waived and the Court reached the
merits. The threat to institutional independence was ``weighed'' by
reference to ``a number of factors.'' The conferral on the CFTC of
pendent jurisdiction over common law counterclaims was seen as
[[Page 617]]
more narrowly confined than was the grant to bankruptcy courts at issue
in Marathon, and as more closely resembling the ``model'' approved in
Crowell v. Benson. The CFTC's jurisdiction, unlike that of bankruptcy
courts, was said to be confined to ``a particularized area of the law;''
the agency's orders were enforceable only by order of a district
court,\118\ and reviewable under a less deferential standard, with legal
rulings being subject to de novo review; and the agency was not
empowered, as had been the bankruptcy courts, to exercise ``all ordinary
powers of district courts.''
\118\Cf. Union Carbide, supra, 473 U.S., 591 (fact that ``FIFRA
arbitration scheme incorporates its own system of internal sanctions and
relies only tangentially, if at all, on the Judicial Branch for
enforcement'' cited as lessening danger of encroachment on ``Article III
judicial powers'').
---------------------------------------------------------------------------
Granfinanciera followed analysis different from that in Schor,
although it preserved Union Carbide through its concept of ``public
rights.'' State law and other legal claims founded on private rights
could not be remitted to non-Article III tribunals for adjudication
unless Congress in creating an integrated public regulatory scheme has
so taken up the right as to transform it. It may not simply relabel a
private right and place it into the regulatory scheme. The Court is hazy
with respect to whether the right must be itself a creature of federal
statutory action. The general descriptive language suggests that, but in
its determination whether the right at issue in the case, the recovery
of preferential or fraudulent transfers in the context of a bankruptcy
proceeding, the Court seemingly goes beyond this point. Though a
statutory interest, the actions were identical to state-law contract
claims brought by a bankrupt corporation to augment the estate.\119\
Schor was distinguished solely on the waiver part of the decision,
relating to the individual interest, without considering the part of the
opinion deciding the institutional interest on the merits and utilizing
a balancing test.\120\
\119\Granfinanciera, supra, 492 U.S., 51-55, 55-60.
\120\Id., 59 n. 14.
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Thus, while the Court has made some progress in reconciling its
growing line of disparate cases, doctrinal harmony has not yet been
achieved.
Noncourt Entities in the Judicial Branch
Passing on the constitutionality of the establishment of the
Sentencing Commission as an ``independent'' body in the judicial branch,
the Court acknowledged that the Commission is not a court and does not
exercise judicial power. Rather, its function is to promulgate binding
sentencing guidelines for federal courts. It acts, therefore,
legislatively, and its membership of seven is composed of three judges
and three nonjudges. But the standard of constitu
[[Page 618]]
tionality, the Court held, is whether the entity exercises powers that
are more appropriately performed by another branch or that undermine the
integrity of the judiciary. Because the imposition of sentences is a
function traditionally exercised within congressionally prescribed
limits by federal judges, the Court found the functions of the
Commission could be located in the judicial branch. Nor did performance
of its functions contribute to a weakening of the judiciary, or an
aggrandizement of power either, in any meaningful way, the Court
observed.\121\
\121\Mistretta v. United States, 488 U.S. 361, 384-97 (1989).
Clearly, some of the powers vested in the Special Division of the United
States Court of Appeals for the District of Columbia Circuit under the
Ethics in Government Act in respect to the independent counsel were
administrative, but because the major nonjudicial power, the appointment
of the independent counsel, was specifically authorized in the
appointments clause, the additional powers were miscellaneous and could
be lodged there by Congress. Implicit in the Court's analysis was the
principle that a line exists that Congress could not cross over.
Morrison v. Olson, 487 U.S. 654, 677-685 (1988).
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JUDICIAL POWER
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.''\122\ It is ``the right to
determine actual controversies arising between diverse litigants, duly
instituted in courts of proper jurisdiction.''\123\ Although the terms
``judicial power'' and ``jurisdiction'' are frequently used
interchangeably and jurisdiction is defined as the power to hear and
determine the subject matter in controversy between parties to a
suit\124\ or as the ``power to entertain the suit, consider the merits
and render a binding decision thereon,''\125\ the cases and commentary
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.\126\ Included
within the general power to decide cases are the ancillary powers of
courts to punish for contempts of their authority,\127\ to issue writs
[[Page 619]]
in aid of jurisdiction when authorized by statute,\128\ to make rules
governing their process in the absence of statutory authorizations or
prohibitions,\129\ 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,\130\ to
appoint masters in chancery, referees, auditors, and other
investigators,\131\ and to admit and disbar attorneys.\132\
\122\Justice Samuel Miller, On the Constitution (New York:
1891), 314.
\123\Muskrat v. United States, 219 U.S. 346, 361 (1911).
\124\United States v. Arrendondo, 6 Pet. (31 U.S.) 691 (1832).
\125\General Investment Co. v. New York Central R. Co., 271 U.S.
228, 230 (1926).
\126\William v. United States, 289 U.S. 553, 566 (1933) ; Yakus
v. United States, 321 U.S. 414, 467-468 (1944) (Justice Rutledge
dissenting).
\127\Michaelson v. United States, 266 U.S. 42 (1924).
\128\McIntire v. Wood, 7 Cr. (11 U.S.) 504 (1813); Ex parte
Bollman, 4 Cr. (8 U.S.) 75 (1807).
\129\Wayman v. Southard, 10 Wheat. (23 U.S.) 1 (1825).
\130\Gumble v. Pitkin, 124 U.S. 131 (1888).
\131\Ex parte Peterson, 253 U.S. 300 (1920).
\132\Ex parte Garland, 4 Wall. (71 U.S. ) 333, 378 (1867).
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``Shall Be Vested.''--The distinction between judicial power and
jurisdiction is especially pertinent to the meaning of the words ``shall
be vested'' in Sec. 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,\133\ the Constitution has not been read to mandate Congress to
confer the entire jurisdiction it might.\134\ 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,\135\ and, second, an act of Congress must have conferred
it.\136\ The fact that federal courts are of limited jurisdic
[[Page 620]]
tion means that litigants in them must affirmatively establish that
jurisdiction exists and may not confer nonexistent jurisdiction by
consent or conduct.\137\
\133\Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304, 328-331
(1816). See also 3 J. Story, Commentaries on the Constitution of the
United States (Boston: 1833), 1584-1590.
\134\See, e.g., Turner v. Bank of North America, 4 Dall. (4
U.S.) 8, 10 (1799) (Justice Chase). A recent, sophisticated attempt to
resurrect the core of Justice Story's argument is Amar, A Neo-Federalist
View of Article III: Separating the Two Tiers of Federal Jurisdiction,
65 B. U. L. Rev. 205 (1985); and see Symposium: Article III and the
Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990) (with articles by
Amar, Meltzer, and Redish). Briefly, the matter is discussed more fully
infra, Professor Amar argues, in part, from the text of Article III,
Sec. 2, cl. 1, that the use of the word ``all'' in each of 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.
\135\Which was, of course, the point of Marbury v. Madison, 1
Cr. (5 U.S.) 137 (1803), once the power of the Court to hold legislation
unconstitutional was established.
\136\The Mayor v. Cooper, 6 Wall. (73 U.S.) 247, 252 (1868);
Cary v. Curtis, 3 How. (44 U.S.) 236 (1845); Sheldon v. Sill, 8 How. (49
U.S.) 441 (1850); United States v. Hudson & Goodwin, 7 Cr. (11 U.S.) 32,
33 (1812); Kline v. Burke Construction Co., 260 U.S. 226 (1922). It
should be noted, however, that some judges have expressed the opinion
that Congress' authority is limited to some degree by the Constitution,
such as by the due process clause, so that a limitation on jurisdiction
which denied a litigant access to any remedy might be unconstitutional.
Cf. Eisentrager v. Forrestal, 174 F. 2d 961, 965-966 (D.C.Cir. 1949),
revd. 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.),
cert. den., 335 U.S. 887 (1948); Petersen v. Clark, 285 F. Supp. 700.
703 n. 5 (D.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.
\137\Turner v. Bank of North America, 4 Dall. (4 U.S.) 8 (1799);
Bingham v. Cabot, 3 Dall. (3 U.S.) 382 (1798); Jackson v. Ashton, 8 Pet.
(33 U.S.) 148 (1834); Mitchell v. Maurer, 293 U.S. 237 (1934).
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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, and empowered the Secretary to withhold judicially certified
claimants from the pension list if he suspected ``imposition or
mistake.''\138\ 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 a separate department and the duties imposed by the act
were not judicial and because 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.\139\ 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, and upon
enactment of a new law the Court dismissed the action.\140\
\138\Act of March 23, 1792, 1 Stat. 243.
\139\1 American State Papers: Miscellaneous Documents,
Legislative and Executive, of the Congress of the United States
(Washington : 1832), 49, 51, 52. President Washington transmitted the
remonstrances to Congress. 1 J. Richardson, (comp.), Messages and Papers
of the Presidents (Washington : 1897), 123, 133. The objections are also
appended to the order of the Court in Hayburn's Case, 2 Dall. (2 U.S.)
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, 13 How. (54 U.S.) 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).
\140\Hayburn's Case, 2 Dall. (2 U.S.) 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.
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[[Page 621]]
Hayburn's Case has been since followed, so that the Court has
rejected all efforts to give it and the lower federal courts
jurisdiction over cases in which judgment would have been subject to
executive or legislative revision.\141\ Thus, in a 1948 case, the Court
held that an order of the Civil Aeronautics Board denying to one citizen
air carrier and granting to another a certificate of convenience and
necessity for an overseas and foreign air route was not reviewable. Such
an order was subject to review and confirmance or revision by the
President, and the Court decided it could not review the discretion
exercised by him in that situation; the lower court had thought the
matter could be handled by permitting presidential review of the order
after judicial review, but this the Court rejected. ``[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,''\142\ More recently,
the Court avoided a similar situation by a close construction of a
statute.\143\
\141\See United States v. Ferreira, 13 How. (54 U.S.) 40 (1852);
Gordon v. United States, 2 Wall. (69 U.S.) 561 (1865); In re Sanborn,
148 U.S. 222 (1893); cf. McGrath v. Kritensen, 340 U.S. 162, 167-168
(1950).
\142\Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S.
103, 113-114 (1948).
\143\Connor v. Johnson, 402 U.S. 690 (1971). Under Sec. 5 of the
Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. Sec. 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 Board 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.
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Award of Execution.--The adherence of the Court to this
proposition, however, has not extended to a rigid rule formulated by
Chief Justice Taney, given its fullest expression in a posthumously-
published opinion.\144\ In Gordon v. United States,\145\ the Court
refused to hear an appeal from a decision of the Court of Claims; the
act establishing the Court of Claims provided for ap
[[Page 622]]
peals 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 by the
Secretary of the Treasury.''\146\ 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.\147\
\144\The opinion was published in 117 U.S. 697. See infra, n.
58, and text. See United States v. Jones, 119 U.S. 477 (1886). The Chief
Justice's initial effort was in United States v. Ferreira, 13 How. (54
U.S.) 40 (1852).
\145\2 Wall. (69 U.S.) 561 (1865).
\146\Act of February 24, 1855, 10 Stat. 612, as amended, Act of
March 3, 1963, 12 Stat. 737.
\147\Gordon v. United States, 2 Wall. (69 U.S.) 561 (1865).
Following congressional 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,
5 Wall. (72 U.S.) 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).
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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 proceeded to
enunciate a rule which was rigorously applied until 1933: the award of
execution is a part and an essential part of every judgment passed by a
court exercising judicial powers and no decision was a legal judgment
without an award of execution.\148\ The rule was most significant in
barring the lower federal courts from hearing proceedings for
declaratory judgments\149\ and in denying appellate jurisdiction in the
Supreme Court from declaratory proceedings in state courts.\150\
\148\Published at 117 U.S. 697, 703. 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).
\149\Liberty Warehouse Co. v. Grannis, 273 U.S. 70 (1927).
\150\Liberty Warehouse Co. v. Burley Tobacco Growers' Coop.
Marketing Assn., 276 U.S. 71 (1928).
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[[Page 623]]
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.''\151\ 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.\152\ Finality of judgment, however,
remains the rule in determination of what is judicial power without
regard to the demise of Chief Justice Taney's formulation.
\151\Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123,
132 (1927).
\152\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. Sec. Sec. 2201-2202, and
unanimously sustained in Aetna Life Ins. Co. v. Haworth, 300 U.S. 227
(1937).
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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,\153\ the Court has consistently distinguished between
criminal and civil contempts on the basis of the vindication of the
authority of the courts on the one hand and the preservation and
enforcement of the rights of the parties on the other. 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.\154\ In the case of Shillitani v. United
States,\155\ the defendants were sentenced by their respective District
Courts for two years imprisonment for contempt of court; the sentence
contained a purge clause providing for the unconditional release of the
contemnors upon agreeing to testify before a grand jury.
\153\E.g., United States v. United Mine Workers, 330 U.S. 258
(1947).
\154\Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-443
(1911); Ex parte Grossman, 267 U.S. 87 (1925). See also Bassette v. W.
B. Conkey Co., 194 U.S. 324, 327-328 (1904).
\155\384 U.S. 364 (1966).
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[[Page 624]]
Upon 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.\156\ 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 deterrence.''\157\ The issue of whether a certain contempt
is either civil or criminal can be of great importance as demonstrated
in the dictum of Ex parte Grossman,\158\ in which Chief Justice Taft,
while holding for the Court on the main issue that the President may
pardon a criminal contempt, noted that he may not pardon a 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.\159\
\156\Id., 370.
\157\Id., 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).
\158\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, Michalson 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).
\159\See United States v. United Mine Workers, 330 U.S. 258, 299
(1947).
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A second but more subtle distinction, with regard to the
categories of contempt, is the difference between direct and indirect
contempt--albeit civil or criminal in nature. 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;''\160\
indirect contempt is behavior which the Court did not itself
witness.\161\ 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 evidenced 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 multiply
[[Page 625]]
ing of the due process requirements that must otherwise be met when
finding an individual to be in contempt.\162\
\160\Act of March 2, 1831, ch. 99, Sec. 1, 4 Stat. 488. Cf. Rule
42(a), FRCrP, which provides that ``[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).
\161\See Fox, The Nature of Contempt of Court, 37 L.Q. Rev. 191
(1921).
\162\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 of
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.
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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.\163\ By the latter part
of the eighteenth century, summary power to punish was extended to all
contempts whether committed in or out of court.\164\ In the United
States, the Judiciary Act of 1789 in section 17\165\ 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.\166\
\163\Fox, The King v. Almon, 24 L.Q. Rev. 184, 194-195 (1908).
\164\Fox, The Summary Power to Punish Contempt, 25 L.Q. Rev.
238, 252 (1909).
\165\1 Stat. 83 (1789).
\166\18 U.S.C. Sec. 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).
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An Inherent Power.--The validity of the act of 1831 was
sustained forty-three years later in Ex parte Robinson,\167\ in which
Justice Field for the Court expounded principles full of potentialities
for conflict. He declared: ``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 enforce
[[Page 626]]
ment 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.''\168\ 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.
\167\19 Wall. (86 U.S.) 505 (1874).
\168\Id., 505-511.
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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.\169\ In Michaelson
v. United States,\170\ the Court intentionally placed a narrow
interpretation upon those sections of the Clayton Act\171\ 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.\172\ This latter power, to enforce,
the Court has held, includes the authority to appoint private counsel to
prosecute a criminal contempt.\173\
\169\Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450
(1911). See also In re Debs, 158 U.S. 564, 595 (1895).
\170\266 U.S. 42 (1924).
\171\38 Stat. 730, 738 (1914).
\172\266 U.S., 65-66. See, generally, 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).
\173\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., 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., 802-808. 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., 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. Sec. 518.
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[[Page 627]]
While the contempt power may be inherent, it is not unlimited.
In Spallone v. United States,\174\ 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.
\174\493 U.S. 265 (1990). The decision was an exercise of the
Court's supervisory power. Id., 276. Four Justices dissented. Id., 281.
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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 in Toledo Newspaper Co. v.
United States\175\ so broadly as to uphold the action of a district
court judge in punishing for contempt a newspaper for publishing
spirited editorials and cartoons on questions at issue in a contest
between a street railway company and the public over 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.''\176\ In Craig v. Hecht,\177\ 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 which criticized the action of a United States district
judge in receivership proceedings.
\175\247 U.S. 402 (1918).
\176\Id., 418-421.
\177\263 U.S. 255 (1923).
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[[Page 628]]
The decision in the Toledo Newspaper case, 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,\178\ and the theory of constructive contempt based on the
``reasonable tendency'' rule was rejected in a proceeding wherein
defendants in a civil suit, by persuasion and the use of liquor, 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. California\179\ 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.\180\
\178\313 U.S. 33, 47-53 (1941).
\179\314 U.S. 252, 260 (1941).
\180\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).
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A series of cases involving highly publicized trials and much
news media attention and exploitation,\181\ however, caused the Court to
suggest that the contempt and other powers of trial courts should be
utilized to stem the flow of publicity before it can taint a trial.
Thus, Justice Clark, speaking for the majority in Shepard v.
Maxwell,\182\ noted that ``[i]f 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
[[Page 629]]
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.\183\
\181\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).
\182\384 U.S. 333, 363 (1966).
\183\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).
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Due Process Limitations on Contempt Power: Right to Notice and
to a Hearing versus Summary Punishment.--Included among the notable
cases raising questions concerning the power of a trial judge to punish
summarily for alleged misbehavior in the course of a trial is Ex parte
Terry,\184\ decided in 1888. Terry had been jailed by the United States
Circuit Court of California for assaulting in its presence a United
States marshal. The Supreme Court denied his petition for a writ of
habeas corpus. In Cooke v. United States,\185\ however, the Court
remanded for further proceedings a judgment of the United States Circuit
Court of Texas sustaining the judgment of a United States district judge
sentencing to jail 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.''\186\
\184\128 U.S. 289 (1888).
\185\267 U.S. 517 (1925).
\186\Id., 535, 534.
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As to the timeliness of summary punishment, the Court 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, in Sacher v. United States,\187\ as to
[[Page 630]]
allow ``the trial judge, upon the occurrence in his presence of a
contempt, immediately and summarily to punish it, if, in his opinion,
delay [would] prejudice the trial. . . . [On the other hand,] if he
believes the exigencies of the trial require that he defer judgment
until its completion he may do so without extinguishing his
power.''\188\ However, subsequently, 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.\189\
\187\343 U.S. 1 (1952).
\188\Id., 11.
\189\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).
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Curbing the judge's power to consider conduct as occurring in
his presence, the Court, in Harris v. United States,\190\ 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.\191\
Moreover, when it is not clear the judge was fully aware of the
contemptuous behavior when it occurred, notwithstanding the fact 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.''\192\
\190\382 US. 162 (1965), overruling Brown v. United States, 359
U.S. 41 (1959).
\191\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).
\192\Johnson v. Mississippi, 403 U.S. 212, 215 (1971) (citing In
re Oliver, 333 U.S. 257, 275-276 (1948)).
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Due Process Limitations on Contempt Power: Right to Jury
Trial.--Until recently, it was the rule that the right to a jury trial
was not available in criminal contempt cases.\193\ But in Cheff
[[Page 631]]
v. Schnackenberg,\194\ it was held that when the punishment in a
criminal contempt case in federal court is more than the sentence for a
petty offense, the Court drew the traditional line at six months, a
defendant is entitled to trial by jury. 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 did
require jury trials in criminal contempt cases in which the offense was
more than a petty one.\195\ 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 |