The Supreme Court Vesting Clause

The judicial Power of the United States shall be vested in one supreme Court. . . .

—Judge John K. Bush, Brennan Mancil, & Erica Shuler

Introduction

Article III, Section 1 creates “one supreme Court” and authorizes it, along with “such inferior Courts as the Congress may from time to time ordain and establish,” to exercise the “judicial Power of the United States.” The Supreme Court Vesting Clause ensures, among other things, that a single body separate from Congress and the President has the ultimate federal judicial authority, although Congress has constitutional power to regulate certain aspects of the Court.

History Before 1787

In Great Britain, the House of Lords served as the court of last resort,¹ which meant that English judicial opinions were “subject to correction” by that legislative body.² The judiciaries of the American colonies also were not without oversight by a political body.³ Colonial courts generally resembled the English judicial structure, and “appeals lay from each colony to the Privy Council in London.”⁴

The appeal structure in the colonies changed when they became states. Most of the new states “committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men.”⁵ On the national level, the Articles of Confederation authorized a separate judiciary only for certain maritime cases and disputes between states.⁶

The Constitutional Convention

The Virginia Plan called for a “National Judiciary . . . to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature.”⁷ On the same day that Edmund Randolph introduced the Virginia Plan,⁸ Charles Pinckney of South Carolina proposed that Congress should establish federal courts “as shall be necessary” and that “[o]ne of these Courts shall be termed the Supreme Court.”⁹ Similarly, William Paterson’s New Jersey Plan called for the creation of “a supreme Tribunal.”¹⁰

Without recorded debate, the delegates unanimously approved the creation of one supreme tribunal.¹¹ This single judicial body, John Rutledge of South Carolina remarked, would hear appeals to “secure the national rights & uniformity of Judgm[en]ts.”¹² The arrangement would help to ensure that federal law, particularly the Constitution, remained supreme.¹³

By vesting the ultimate exercise of judicial power in an independent Supreme Court, the delegates sought at the national level to keep the federal judiciary separate from both the executive and legislative branches. They rejected a “Council of Revision to be selected out of the ex[ecutive] and jud[iciary] Departments” with veto power over statutes from state or national legislatures.¹⁴ The Framers also refused to adopt a “Council of State” that would have included the Chief Justice to “assist the President in conducting the Public affairs[.]”¹⁵

The Ratification Debates

Anti-Federalists objected to the guarantee of “one supreme Court” that would not be subject to revision by any other governmental body. According to Brutus, for example, “[f]rom this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort.”¹⁶ Supreme Court Justices who were “independent of the people, of the legislature, and of every power under heaven” would “generally soon feel themselves independent of heaven itself.”¹⁷

There also was concern that a Supreme Court authorized to adjudicate questions of law, equity, and fact would exercise unchecked power, trampling individual rights. Federal Farmer wrote that he could “not see a spark of freedom” in a judicial system in which the powers to review questions of law, equity, and fact were “blended in the same hands.”¹⁸ Brutus warned that a written constitution would not effectively limit the Court’s authority, as Justices empowered to “decide questions arising upon the meaning of the constitution in law, but also in equity” could interpret the document “according to the reasoning spirit of it, without being confined to the words or letter.”¹⁹ He further warned that creation of a Supreme Court could deprive citizens of their right to a jury trial because the Court would have authority to “re-examine the whole merits of the case, both with respect to the facts and the law which may arise under it, without the intervention of a jury.”²⁰

Not so, said Alexander Hamilton in Federalist No. 78. He argued that “the judiciary is beyond comparison the weakest of the three departments of power” and “can never attack with success either of the other two.” Further, under a written constitution, the Court may disregard legislative authority only “where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the Constitution.”

Anti-Federalists also feared that the Article III national judiciary would “melt down the states into one entire government, for every purpose as well internal and local, as external and national.”²¹ A related concern was that a single Supreme Court, likely to be located “in the centre of the union,” would pose logistical problems for far-away litigants forced to suffer “great inconveniences and enormous expences” to litigate.²²

Hamilton, on the other hand, argued in Federalist No. 81 that the efficiency and impartiality of a system of inferior courts subject to one Supreme Court far outweighed any resulting limitations on state authority. A Landowner, a supporter of the Constitution, likewise contended that a national Supreme Court was preferable to state courts for interpreting federal law because “[j]udges who owe their appointment and support to one state will be unduly influenced and not reverence the laws of the union.”²³ Hamilton reiterated in Federalist No. 22 that establishing “one SUPREME TRIBUNAL” as a court of last resort in the federal system was necessary to “produce uniformity in [judicial] determinations.” A Landowner wrote similarly that to maintain “[a] perfect uniformity” throughout the Union and prevent “jealousy and unrighteousness,” “one judiciary must pervade the whole.”²⁴

Congress, the President, and Reform Proposals

The Judiciary Act of 1789 provided for a Supreme Court of six members.²⁵ Notably, the First Congress severely limited the Court’s role by curtailing its jurisdiction. Under the Judiciary Act of 1789, “the Supreme Court had no appellate jurisdiction to review state court decisions of federal questions that upheld claims of federal rights, nor did it have appellate jurisdiction over lower federal court decisions in criminal cases.”²⁶

Congress and the President have regulated or attempted to regulate the Supreme Court many times since 1789. Congress changed the number of Justices seven times, for example, with the number ranging from five to ten, before settling on nine in 1869.²⁷

President Franklin D. Roosevelt’s Judicial Procedures Reform Bill of 1937 would have authorized the President to appoint an additional Justice for each sitting Justice over seventy years old.²⁸ At the time, passage of the bill would have enabled Roosevelt to nominate six new Justices, leading to a total of fifteen.²⁹ However, widespread opposition and Justice Owen Roberts’s decision to uphold New Deal legislation led Roosevelt to abandon his effort to expand the Court’s size.³⁰

In 1972, the Study Group on the Caseload of the Supreme Court recommended creating a National Court of Appeals composed of seven active circuit court judges to “screen all petitions for review . . . fielded in the Supreme Court, and hear and decide on the merits many cases of conflicts between circuits.”³¹ Scholars subsequently challenged the proposed National Court of Appeals on constitutional grounds.³² The bill to create that tribunal failed.³³

The Supreme Court Vesting Clause also is relevant to debates surrounding an ethics code for the Supreme Court. Chief Justice John G. Roberts³⁴ and Justice Samuel A. Alito³⁵ questioned Congress’s authority to impose an ethics code. In 2023, the Court voluntarily adopted an ethics code.³⁶ Congressional efforts to create enforcement mechanisms for this code would need to comply with the Supreme Court Vesting Clause.³⁷

Judicial Precedent

The Constitution establishes the Supreme Court as the highest federal court, both by using the term “supreme” in the Supreme Court Clause and by vesting the Supreme Court with appellate jurisdiction over “inferior” federal courts.³⁸ The Marshall Court cemented the Supreme Court’s position within the federal judicial hierarchy by expounding constitutionally grounded concepts of judicial independence in Marbury v. Madison (1803)³⁹ and appellate review of state courts’ decisions involving federal questions in Martin v. Hunter’s Lessee (1813).⁴⁰

Open Questions

• Were Anti-Federalists justified in their concern that the Constitution does not adequately limit the power of Supreme Court Justices?
• Notwithstanding constitutional limitations, how would a congressionally imposed ethics code differ from other ways that Congress shapes the judiciary, like affecting the Supreme Court’s appellate jurisdiction, determining the judiciary’s budget, or even specifying the number of Supreme Court Justices?

Judge Bush acknowledges the assistance of Mark Scalzo in the preparation of this article.

1. 1 W.S. Holdsworth, A History of English Law 362–65 (3d ed., 1921). ↩︎
2. Storing 2.9.187; 3 Story’s Commentaries § 1576; Federalist No. 47 (Madison). ↩︎
3. Erwin C. Surrency, The Courts in the American Colonies, 11 Am. J. Legal Hist. 253, 253 (1967). ↩︎
4. William S. Swindler, Seedtime of an American Judiciary: From Independence to the Constitution, 17 Wm. & Mary L. Rev. 503, 503–04 (1976); John A. Fairlie, The Doctrine of Stare Decisis in British Courts of Last Resort, 35 Mich. L. Rev. 946, 946 (1973). ↩︎
5. Federalist No. 81 (Hamilton); 3 Story’s Commentaries § 1580; Storing 2.8.16. ↩︎
6. Articles of Confederation, art. IX. ↩︎
7. 1 Farrand’s 21. ↩︎
8. Id. at 23. ↩︎
9. 3 Farrand’s 600. ↩︎
10. 1 Farrand’s 244. ↩︎
11. 2 Farrand’s 37; 3 Story’s Commentaries § 1574; Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. Pa. L. Rev. 741, 767 (1984). ↩︎
12. 1 Farrand’s 124. ↩︎
13. Id. at 221; Laurence Claus, The One Court that Congress Cannot Take Away: Singularity, Supremacy, and Article III, 96 Geo. L.J. 59, 69 (2007). ↩︎
14. 1 Farrand’s 28, 97–98, 108–09; 2 Farrand’s 73–80. ↩︎
15. 2 Farrand’s 335, 342, 344. ↩︎
16. Storing 2.9.138. ↩︎
17. Id. at 2.9.189. ↩︎
18. Id. at 2.8.42. ↩︎
19. Id. at 2.9.137. ↩︎
20. Id. at 2.9.174. ↩︎
21. Id. at 2.9.194. ↩︎
22. Id. at 2.8.16. ↩︎
23. Essays on the Constitution of the United States 159 (Paul Leicester Ford ed., 1892). ↩︎
24. Id. ↩︎
25. Judiciary Act of 1789, ch. 20, §1, 1 Stat. 73. ↩︎
26. Richard H. Fallon, Jr., Jurisdiction-Stripping Reconsidered, 96 Va. L. Rev. 1043, 1088 (2010). ↩︎
27. Federal Judicial Center, Congress and the Courts: Landmark Legislation, https://perma.cc/W7J6-DJCX. ↩︎
28. Joanna R. Lampe, Cong. Rsrch. Serv., LSB10562, “Court Packing”: Legislative Control over the Size of the Supreme Court 3 (2020). ↩︎
29. Id. ↩︎
30. Id. ↩︎
31. Federal Judicial Center, Report on the Study Group on the Caseload of the Supreme Court 18–19 (1972), https://perma.cc/3FNP-4MLL. ↩︎
32. Charles L. Black, The National Court of Appeals: An Unwise Proposal, 83 Yale L.J. 883, 885–88 (1974). ↩︎
33. Jake Kobrick & Daniel S. Holt, Debates on the Federal Judiciary: A Documentary History, Volume III: 1939–2005, at 58–59, https://perma.cc/Y4JE-8DRB. ↩︎
34. 2011 Year-End Report on the Federal Judiciary 6, 8–9, https://perma.cc/Y6K9-E3RE. ↩︎
35. David B. Rivkin & James Taranto, Samuel Alito, the Supreme Court’s Plain-Spoken Defender, Wall St. J. (Jul. 28, 2023), https://perma.cc/S3S4-EWA3. ↩︎
36. Code of Conduct for Justices of the Supreme Court of the United States 3 (Nov. 13, 2023), https://perma.cc/3AUN-N9VG. ↩︎
37. Joanna R. Lampe, Cong. Rsrch. Serv., LSB11078, The Supreme Court Adopts a Code of Conduct 3 (2023). ↩︎
38. Art. III, §§ 1–2. ↩︎
39. 5 U.S. (1 Cranch) 137 (1803). ↩︎
40. 14 U.S. (1 Wheat) 603 (1813). ↩︎