The Inferior Courts Clause

The Congress shall have Power . . . To constitute Tribunals inferior to the supreme Court. . . .

—Judge David R. Stras & Andy Hessick

Introduction

The Inferior Courts Clause empowers Congress to create a federal court system subordinate to the Supreme Court. The design of the federal judiciary was a point of major contention during the Constitutional Convention. There was no dispute about the need for a federal judiciary to enforce federal rights and ensure uniformity in federal law, but there was significant disagreement about how to structure it. Some argued that the federal judiciary should consist of a single supreme court; others argued for a more robust judicial system that included “inferior tribunals.”¹

In 1789, and still today, “inferior tribunals” suggests a judicial hierarchy with higher appellate courts reviewing the decisions of the lower trial courts. Through the Judiciary Act of 1789, the First Congress promptly created the inferior federal courts. In modern times, Congress has relied on the Inferior Tribunals Clause to create the federal district courts, the federal circuit courts, and other Article III courts.

History Before 1787

Sir William Blackstone used the term “inferior” to describe the system of English courts, which resembled a pyramid.² At the bottom were the courts piepoudre, which had limited jurisdiction to decide disputes in local fairs and markets. Each successive layer of this pyramid was a superior court with “larger jurisdiction” and “greater power,” capable of hearing a broader swath of disputes and “correct[ing] the errors of the inferior” courts.³ By the 1700s, however, the English judicial system no longer resembled a perfect pyramid. The lines between superior and inferior courts had blurred as the jurisdiction of courts had changed over time. Some superior courts exercised concurrent jurisdiction with inferior courts, and not all decisions of inferior courts were reviewable by superior courts.⁴

By the time of the Constitutional Convention, most states had hierarchical judiciaries with higher courts reviewing the decisions of lower courts. The precise arrangement, however, differed by state. Virginia, for example, had county and town courts and three courts with statewide jurisdiction: a General Court that had some appellate jurisdiction over local courts and original jurisdiction in some matters; a High Court of Chancery; and a Court of Admiralty.⁵ Delaware, by contrast, had “common pleas and orphans’ courts” in each county, a “judge of admiralty,” a “supreme court,” and a “court of appeals” that could review the decisions of the “supreme court.”⁶

As in England, however, the state judicial hierarchies did not form perfect pyramids. In most states, the superior courts often acted as trial courts, not appellate courts, and heard cases that were more significant than those heard by inferior courts. Some commentators have described certain state judiciaries as having a horizontal instead of a vertical arrangement.⁷ Georgia did not even have a statewide hierarchy; there was a supreme court in each county, and those courts operated only as trial courts.⁸

The Constitutional Convention

During the Constitutional Convention, Edmund Randolph of Virginia proposed a resolution that would establish a supreme court as well as “inferior tribunals to be chosen by the National Legislature.”⁹ The proposal, in effect, would have mandated Congress to establish inferior federal courts. Randolph’s proposal met significant opposition, led by John Rutledge of South Carolina and Roger Sherman of Connecticut. Sherman argued that constitutionally mandated inferior federal courts would be an unnecessary expense because state courts could hear federal cases.¹⁰ Rutledge focused on state sovereignty. He argued that establishing inferior federal courts would “encroach[] on the jurisdiction” of state courts.¹¹ “State Tribunals,” in his view, could “decide in all cases in the first instance.”¹² In response to the concern that state courts might be biased against federal law, he thought that “the right of appeal to the supreme national tribunal [was] sufficient to secure the national rights [and] uniformity” of judgments.¹³

James Madison of Virginia led the defense of inferior federal courts. He argued that leaving trials to state judiciaries with review by one federal Supreme Court would be an inadequate guard against biased or prejudiced judgments. Although the Supreme Court could vacate biased judgments on appeal, the process would serve “no purpose” because the state courts could simply reenter them on remand.¹⁴ Nor would it be practical to order new trials in the Supreme Court because that would require “the parties to bring up their witnesses, tho’ ever so distant from the seat of the Court.”¹⁵ In Madison’s view, the federal system needed inferior courts, not just a single Supreme Court. Consistent with English practice, the inferior federal courts could have “final jurisdiction in many cases” to prevent “appeals” that “would be multiplied to a most oppressive degree.”¹⁶

Madison’s efforts to mandate the creation of inferior federal courts proved to be unpersuasive. Rutledge made a motion, seconded by Sherman, to strike out the provision requiring the creation of inferior tribunals. That motion carried by a vote of 5 to 4 with two states divided.¹⁷

Having failed to guarantee inferior courts in the Constitution, Madison proposed a compromise that gave discretion to “the National Legislature . . . to institute” inferior courts.¹⁸ Madison repeated his earlier argument that inferior tribunals were essential to ensuring an effective federal judiciary. The compromise still faced opposition, including from Pierce Butler of South Carolina. He argued that the mere possibility of inferior courts would be seen as an “encroachment” on the state. In the end, Madison’s compromise was approved by a vote of 8 to 2 with one state divided.¹⁹

Madison was not writing on a blank slate. Some states had expressly left the design of state courts to their legislatures. The Massachusetts constitution, for example, conferred power on the legislature to “erect and constitute” courts.²⁰ The same was true for New Hampshire.²¹

Despite Madison’s compromise, delegates continued to view inferior federal courts with suspicion, largely because of the widespread availability of state courts and the primacy of state interests. Luther Martin of Maryland said the inferior courts would “create jealousies . . . as the Country becomes more populous.”²²

Madison’s compromise ultimately was adopted as Article I, Section 8, Clause 9. The Inferior Tribunals Clause authorizes Congress “[t]o constitute Tribunals inferior to the supreme Court.” The compromise also found its way into Article III, which provides that 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.”²³

The Ratification Debates

Many of the arguments about the Madisonian compromise that were advanced during the Convention made their way into the ratification debates. Proponents of the compromise argued that inferior federal courts were necessary to prevent an overwhelming number of appeals to the Supreme Court. In Federalist No. 81, for example, Alexander Hamilton wrote that the power to create “local courts subordinate to the supreme court” would “obviate the necessity of having recourse to the supreme court in every case of federal cognizance.”

Opponents reiterated that inferior federal courts were unnecessary, state courts already being available, and would expand federal power at the expense of the states.²⁴ Anti-Federalist Brutus summed up the opposition when he said that he feared that inferior federal courts would “swallow up all the powers of the courts in the respective states.”²⁵

Little was said about Congress’s power to regulate the jurisdiction of any inferior courts that it created. The assumption appeared to be that Congress could limit their jurisdiction. For example, in Federalist No. 81, Hamilton suggested that Congress had power to regulate the geographic jurisdiction of the courts and could divide the country into several regions, each with its own inferior court. Edmund Pendleton told the Virginia ratifying convention that the country should “expect that there will be an inferior court in each state.”²⁶

The Judiciary Act of 1789

Following ratification, Congress promptly exercised its power to establish inferior courts. On September 24, 1789, during the first session of the First Congress, the Judiciary Act of 1789 was enacted. This law created thirteen federal district courts, one for each state, and allocated a single district judge to each district.²⁷ These federal district courts acted as trial courts of first instance in many cases.

The act also established three circuit courts, which had both original and appellate jurisdiction. The Eastern Circuit included the districts of New Hampshire, Massachusetts, Connecticut, and New York; the Middle Circuit included the districts of New Jersey, Pennsylvania, Delaware, Maryland, and Virginia; and the Southern Circuit included the districts of South Carolina and Georgia. However, the Judiciary Act did not establish separate judges to staff the circuit courts.²⁸ Instead, Congress directed that each circuit court should consist of three judges. One would be the district judge of the district in which that circuit court sat. The other two would be Supreme Court Justices, who were expected to “ride circuit” twice a year.²⁹

The constitutionality of circuit riding was tested in Stuart v. Laird (1803).³⁰ Stuart challenged a judgment that had been rendered against him by a circuit court. He argued that because Congress had established the circuit courts separately from the Supreme Court, circuit riding fell outside a Justice’s office. The Supreme Court upheld circuit riding, but it did not address Stuart’s argument. Instead, the Court simply declared that circuit riding was too well established to declare the practice illegal: “practice and acquiescence under it, for a period of several years commencing with the organization of the judicial system, affords an irresistible answer.”³¹ But by affirming the practice, the Court implicitly rejected Stuart’s argument. To this day, Justices may still sit on lower federal courts.

The text of the Inferior Tribunals Clause expressly authorized Congress to create inferior courts, but the Judiciary Act of 1789 did far more than establish the tribunals. The law fixed the location of those courts, when they would meet, the number of judges they would have, and what their salaries would be. In this early statute, the First Congress probably relied on its powers under the Necessary and Proper Clause to work out these details.

Limiting the Jurisdiction of the Inferior Courts

Article I gives Congress the plenary power to constitute inferior tribunals. Article III, Section 1 arguably vests the entire judicial power of the United States in the inferior federal courts by extending it to nine categories of cases and controversies. But there is no constitutional provision that specifically allows Congress to limit the jurisdiction of the inferior federal courts as it can for the Supreme Court. The question then becomes: Can Congress limit the jurisdiction of the inferior courts and thus limit the types of cases they can hear?

In United States v. Hudson (1812), the Court answered this question in the affirmative: “[T]he power which congress possess to create Courts of inferior jurisdiction, necessarily implies the power to limit the jurisdiction of those Courts to particular objects.”³² This decision was consistent with the Madisonian compromise, which was an effort to give Congress the authority to determine where, and in what circumstances, federal courts were necessary. To do so, Congress had to have the ability to determine the contours of their jurisdiction, including the proper division between state and federal courts.

Non–Article III Tribunals

Over time, Congress has created a vast number of non-judicial tribunals. Falling into this category are adjudicatory bodies of administrative agencies such as the Internal Revenue Service and the Social Security Administration. These tribunals do not exercise the judicial power. Rather, they make executive decisions—for example, what taxes to assess and whether a particular person is entitled to welfare benefits. To create these non-judicial tribunals, Congress could not rely on its power to “constitute Tribunals inferior to the supreme Court.” This clause only authorizes Congress to create judicial tribunals, and non-judicial tribunals are not inferior to the Supreme Court. To establish non-judicial tribunals, Congress relied on its other powers.³³

Congress also has established judicial tribunals outside of Article III. The judges on these tribunals do not have the salary and tenure guarantees of Article III. In the early nineteenth century, the constitutionality of those tribunals was called into question based on the argument that the judicial power of the United States “shall be vested” in one Supreme Court and any inferior courts created by Congress. But American Insurance Co. v. Canter (1828) held that Congress could create territorial courts under the Territories Clause in Article IV, Section 3, Clause 2.³⁴ (See Essay No. 144.) Since that time, the Supreme Court has upheld the validity of non–Article III tribunals, ranging from military tribunals to bankruptcy courts.

Today, federal tribunals cover a variety of subject matters and come in all different forms. For example, the U.S. Court of Federal Claims is considered an Article I tribunal. Its judges serve terms of fifteen years.

Open Questions

One of the most significant questions is whether there are any limits on Congress’s power to regulate the jurisdiction of the lower courts. Since 1789, it has been understood that Congress’s ability to establish inferior tribunals includes the power to regulate jurisdiction. For example, the Judiciary Act of 1789 significantly limited the geographic jurisdiction of each district court to the district in which it sat. The Supreme Court explicitly recognized Congress’s power to regulate inferior court jurisdiction in Sheldon v. Sill (1850).³⁵ Twenty-two years later, United States v. Klein (1872) held that Congress could not restrict jurisdiction in a way that effectively dictates how cases are resolved.³⁶ Although subsequent decisions have limited Klein to its facts, several Justices have suggested that they agree with its conclusion.³⁷

Another significant question is the extent to which there are limitations on Congress’s power to create judicial tribunals outside of Article III. Although the Court upheld Congress’s power to create such tribunals more than two hundred years ago, the proliferation of non–Article III tribunals and their increasing displacement of Article III courts could prompt the Court to revisit the issue.

1. 1 Farrand’s 21. ↩︎
2. 3 Blackstone 30. ↩︎
3. Id. at 31. ↩︎
4. Id. at 31, 32–37. ↩︎
5. Va. Const. of 1776; David E. Engdahl, What’s in a Name? The Constitutionality of Multiple “Supreme” Courts, 66 Ind. L.J. 457, 469 (1991). ↩︎
6. Del. Const. of 1776, arts. XII, XVII, XX. ↩︎
7. Wilfred J. Ritz, Rewriting the History of the Judiciary Act of 1789, at 44 (Wythe Holt & L.H. LaRue eds., 1990). ↩︎
8. Ga. Const. of 1777, art. XL. ↩︎
9. 1 Farrand’s 21. ↩︎
10. Id. at 125. ↩︎
11. Id. at 124. ↩︎
12. Id. at 119. ↩︎
13. Id. at 124. ↩︎
14. Id. ↩︎
15. Id. ↩︎
16. Id. ↩︎
17. Id. ↩︎
18. Id. at 125. ↩︎
19. Id. ↩︎
20. Mass. Const. of 1780, pt. 2, ch. I, § 1, art. III. ↩︎
21. N.H. Const. of 1784, pt. 2. ↩︎
22. 2 Farrand’s 45–46. ↩︎
23. Art. III, § 1. ↩︎
24. 3 Farrand’s App. A. at 207. ↩︎
25. Storing 2.9.7, 2.9.139. ↩︎
26. 3 Elliot’s 547. ↩︎
27. The Judiciary Act of 1789, ch. 20, §§ 2–3, 1 Stat. 73, 73. ↩︎
28. Id., § 4, at 74. ↩︎
29. Id. at 74–75. ↩︎
30. 5 U.S. (1 Cranch) 299 (1803). ↩︎
31. Id. at 309. ↩︎
32. 11 U.S. 32, 33 (1812). ↩︎
33. Ex Parte Bakelite Corp., 279 U.S. 438, 458 (1929). ↩︎
34. 26 U.S. (1 Pet.) 511 (1828). ↩︎
35. 49 U.S. 441 (1850). ↩︎
36. 13 Wall. 128 (1872). ↩︎
37. Patchak v. Zinke, 583 U.S. 244, 274 (2018) (Roberts, C.J., dissenting). ↩︎