The Judicial Vesting Clause

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.

—Judge Britt C. Grant & John Acton

Introduction

For many years, the federal judiciary has had a three-tiered structure: district courts, courts of appeals, and the Supreme Court. To a lawyer or court watcher, this structure might seem inevitable. But the question of whether the United States would have federal courts at all was contested at the Founding. And even today, the U.S. Supreme Court is the only constitutionally required federal court; the Constitution’s text leaves the rest of the details to Congress.

History Before 1787

The Articles of Confederation contained only narrow grants of judicial power, instead authorizing limited tribunals for specific types of controversies and specifying that members of Congress could not be appointed to any of these courts.¹ The Articles authorized Congress to create one national court—the Court of Appeals in Cases of Capture, which dealt with the capture of enemy ships and cargo.² But that body was not truly independent from Congress, which both constrained the court’s powers and interfered in its disposition of particular cases.³

Beyond this single, limited court, the Articles authorized Congress to resolve disputes through two types of ad hoc tribunals. First, Congress could “appoint” state courts to adjudicate piracies and felonies committed on the high seas, but because these tribunals obviously depended on the state courts’ cooperation, they were not independent federal entities.⁴ Second, the Articles authorized ad hoc tribunals to handle disputes between the states, with the judges selected either by Congress or by the consent of the parties.⁵ Even that process was used only once.⁶ All in all, it became clear that these “courts” lacked the necessary independence and scope of authority to ensure that federal law was followed throughout the country.⁷

The Constitutional Convention

Delegates to the Constitutional Convention widely agreed that the United States needed a national judicial power, including a Supreme Court.⁸ But the decision to create lower federal courts became fraught with controversy.

The Convention initially, and unanimously, approved a clause specifying that the national judiciary would “consist of One supreme tribunal, and of one or more inferior tribunals.”⁹ But that unanimity did not last—the next day, John Rutledge of South Carolina moved to reconsider the establishment of inferior tribunals.¹⁰ He argued that Supreme Court review of state court decisions would ensure national uniformity in federal law and that the lower federal courts would encroach on the states’ authority.¹¹ James Madison of Virginia countered that Rutledge’s approach would create too many appeals to the Supreme Court.¹² Madison added that a Supreme Court with only appellate jurisdiction would be insufficient to root out systematic biases in the state judicial systems.¹³ In a closely divided vote, the Convention agreed with Rutledge.¹⁴

Madison, together with James Wilson of Pennsylvania, immediately responded with a compromise proposal allowing, but not requiring, Congress to establish inferior federal courts.¹⁵ Even giving Congress that option was controversial, but this “Madisonian compromise” had staying power. It won a divided vote and survived a final push to eliminate lower federal courts entirely.¹⁶ The Committee on Style wrote the final language of the Judicial Vesting Clause that was ratified.¹⁷

The Ratification Debates

During ratification, the inferior federal courts were just as controversial as Rutledge and other delegates had predicted. In fact, the Anti-Federalist Brutus latched on to the issue in his very first essay against the Constitution. He warned that lower federal courts would “eclipse the dignity, and take away from the respectability, of the state courts.”¹⁸

Brutus showed an even greater hostility toward the Supreme Court, warning that the judges on the Supreme Court would “not confine themselves to any fixed or established rules” when interpreting the Constitution, but instead follow what they viewed as “the reason and spirit of the constitution.”¹⁹ Brutus also drew a negative contrast between the proposed Constitution, in which legislative appeals were unavailable, and the English system, in which judicial decisions could be modified by the House of Lords. This unchecked judicial authority, he said, would encourage a complete consolidation of power in the federal government at the expense of the states.²⁰

In Federalist No. 81, Alexander Hamilton directly addressed Brutus’s criticisms, assuring his readers that there was “not a syllable” in the Constitution “which directly empowers national courts to construe the laws according to the spirit of the constitution” or “gives them any greater latitude in this respect, than the court of every state.” And in Federalist No. 78, Hamilton praised the “wisdom” of separating the judiciary and the legislature: “liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.” Hamilton further reasoned that, because federal judges “should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them,” the judiciary would be a relatively weak branch. He also reminded his readers that while the legislature could always impeach judges, judges did not have the same authority over legislators. Meanwhile, Hamilton reiterated Madison’s concern that federal courts were necessary because state judges would be “too little independent” from the state legislatures to “be relied upon for an inflexible execution of the national laws.”

Early Federal Judiciary

Following the Constitution’s ratification, the First Congress made the federal judiciary a reality when it enacted the Judiciary Act of 1789.²¹ The Act set the Supreme Court at six Justices.²² Congress also took the nationalist side of the Madisonian compromise, exercising its discretion to create lower federal courts.²³

The structure of the original lower courts was convoluted. There were “district courts” not unlike today’s district courts with individual judges presiding over cases.²⁴ But “the circuit courts” (Eastern, Middle, and Southern) did not have their own judges; instead, they had three-judge panels made up of one district court judge and two Supreme Court Justices.²⁵ Their caseload was also a mix because they both reviewed district court decisions and sat as trial courts in the first instance.²⁶ Defenders of this system thought that having Supreme Court Justices “ride circuit” would save money, keep the Court connected to the day-to-day administration of justice, and expose the whole country to America’s most distinguished jurists.²⁷ But the Justices hated being, in the words of Justice James Iredell, “traveling postboys.”²⁸

According to Madison’s Convention notes, it was “generally supposed” that the federal courts’ jurisdiction “was constructively limited to cases of a Judiciary nature.”²⁹ Hamilton famously opined in Federalist No. 78 that the judiciary “may truly be said to have neither Force nor Will, but merely judgment.” But many practical questions about what judges and courts can and cannot do remained unanswered.

One example arose in 1793 when Secretary of State Thomas Jefferson asked the Supreme Court for its opinion on twenty-nine specific questions of law relating to United States–France relations and port management. He noted that the questions were “often presented under circumstances which do not give a cognizance of them to the tribunal of the country” and that President Washington “would . . . be much relieved” if the Court would answer them.³⁰

This might sound like a reasonable request. After all, would it not be better if the President could ensure that he is following the law before taking action? But Chief Justice John Jay and his colleagues wrote to President Washington that the judicial power did not extend to “extrajudicially deciding the questions alluded to.”³¹ This refusal is an early example of modern justiciability doctrines—rules that federal courts use to ensure that they are exercising the judicial power rather than some sort of extrajudicial authority. Similar doctrines include standing, which broadly speaking refers to whether the parties have enough of a stake to be before the court; mootness, which asks whether there is still a live case to decide; and so-called political questions, which are issues that, although they may arise in litigation, are better decided by the political branches.

The Road to the Modern Federal Judiciary

As the country expanded westward, Congress created new circuits, and as the number of circuits increased, Congress established new Justices to ride those circuits. By 1869, Congress settled on nine Justices, and the Court has had nine Justices ever since.³² In 1891, Congress created the modern federal intermediate circuit courts of appeals and made circuit riding optional for Justices.³³ The original “circuit courts” were formally retired in 1911.³⁴

As the population continued to grow and caseloads increased, Congress expanded federal jurisdiction and increased the number of district and circuit judges.³⁵ Today, federal district courts hear hundreds of thousands of cases every year.³⁶ These cases can either be civil or criminal and are generally heard by a single judge.³⁷ The federal circuit courts of appeals, in turn, hear tens of thousands of appeals from district court decisions, considering both factual findings and legal determinations, albeit under different standards of review.³⁸ Twelve separate courts of appeals cover twelve different regions, or “circuits,” across the United States and decide most appeals in three-judge panels.³⁹ A subset of cases including patent appeals are consolidated in the Federal Circuit.⁴⁰

At the top, the Supreme Court uses, for the most part, a discretionary process called certiorari to hear a comparatively small number of cases from the courts of appeals each year.⁴¹ These cases usually involve issues of particular national importance or questions of federal law that have divided lower courts.⁴² In addition, because it is the only federal court whose decisions have precedential effect in state courts, the Supreme Court plays a special role in ensuring the nationwide uniformity of federal law.

Open Questions

• Does the “judicial power” include the power to strike down or set aside laws?
• Does the “judicial power” include the doctrine of stare decisis?
• When does adjudication of controversies by Article II federal agencies infringe on the Article III judicial power?
• Are judicial concurrences that opine on matters beyond those presented by the case at issue consistent with the judicial power?

1. Articles of Confederation, art. IX, § 1. ↩︎
2. Id. ↩︎
3. Richard H. Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts and the Federal System 8 n.36 (7th ed., 2015). ↩︎
4. Articles of Confederation, art. IX, § 1; Hart & Wechsler, supra at 6 & n.35. ↩︎
5. Articles of Confederation, art. IX, § 2. ↩︎
6. Hart & Wechsler, supra at 8 n.34. ↩︎
7. Hart & Wechsler, supra at 7–8. ↩︎
8. 1 Farrand’s 95, 104; Hart & Wechsler, supra at 6; id. at 7 & n.38. ↩︎
9. 1 Farrand’s 95, 104. ↩︎
10. Id. at 124. ↩︎
11. Id. ↩︎
12. Id. ↩︎
13. Id. ↩︎
14. Id. ↩︎
15. Id. ↩︎
16. Hart & Wechsler, supra at 7 n.39, 7–8; 2 Farrand’s 45–46. ↩︎
17. Hart & Wechsler, supra at 9. ↩︎
18. Storing 2.9.7. ↩︎
19. Id. at 2.9.138. ↩︎
20. Id. at 2.9.187 et seq. ↩︎
21. Act of Sept. 24, 1789, 1 Stat. 73 [hereinafter Judiciary Act]. ↩︎
22. Id. § 1. ↩︎
23. Russell R. Wheeler & Cynthia Harrison, Creating the Federal Judicial System 6–7 (3d ed., 2005). ↩︎
24. Judiciary Act § 3. ↩︎
25. Id. § 4. ↩︎
26. Hart & Wechsler, supra at 22. ↩︎
27. Wheeler & Harrison, supra at 7–8. ↩︎
28. Id. at 8. ↩︎
29. 2 Farrand’s 430. ↩︎
30. Letter from Thomas Jefferson to the Justices of the Supreme Court (July 18, 1793), https://perma.cc/JN62-WVSA. ↩︎
31. Letter from Justices of the Supreme Court to George Washington (Aug. 8, 1793), https://perma.cc/4MGY-ZEKF. ↩︎
32. Hart & Wechsler, supra at 9–11, 19. ↩︎
33. Id. at 16–18. ↩︎
34. Id. at 18. ↩︎
35. Id. at 21. ↩︎
36. 28 U.S.C. §§ 81–131; 2022 Year-End Report on the Federal Judiciary 6–7, https://perma.cc/E3EM-GPWA. ↩︎
37. 28 U.S.C. § 132. ↩︎
38. 2022 Year-End Report on the Federal Judiciary, supra at 5–6. ↩︎
39. 28 U.S.C. § 41. ↩︎
40. Id. ↩︎
41. 28 U.S.C. § 1. ↩︎
42. 28 U.S.C. § 2101; Supreme Court Rule 10. ↩︎