The Inferior Courts 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 David R. Stras & Andy Hessick

Introduction

Article III, Section 1 of the Constitution 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.” During the Constitutional Convention, there was broad agreement on the need for a single Supreme Court but vigorous disagreement about the need for inferior federal courts. To bridge the gap between the two camps, James Madison proposed a compromise under which Congress would have the discretion to establish inferior courts. The Inferior Courts Clause enshrines this so-called Madisonian compromise, and the First Congress relied on this power to establish the lower federal courts in the Judiciary Act of 1789.

History Before 1787

Sir William Blackstone explained that under the “antient constitution,” there were “as many courts of judicature [in England] as there [were] manors and townships in the kingdom.”¹ These “little courts” at the base of the pyramid “communicated with others of a larger jurisdiction, and those with others of a still greater power.”2 Appeals would “ascend[] gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones.”² Blackstone observed that this hierarchical system was similar to that “established in the Jewish republic by Moses.”³ Although the lines between superior and inferior courts had blurred by the eighteenth century, the English judiciary retained its basic hierarchical structure.⁴

Hierarchical judiciaries were common in the American colonies as well.⁵ In Virginia, county and corporate courts heard local matters with appeals taken to a “general court.”⁶ After independence, most states had hierarchical judiciaries, but the precise arrangements varied. Some states followed a relatively strict hierarchy. Delaware, for example, established a supreme court as a court of first instance with appeals taken to a “court of appeals.”⁷ Others had looser hierarchies. Virginia limited review of lower-court decisions and empowered the superior courts to operate as trial courts.⁸ Georgia did not have any appellate courts; all judicial matters were resolved by local courts.⁹

As John Marshall indicated in a speech to the Virginia Convention, the Articles of Confederation lacked a robust national judiciary.¹⁰ Congress could only establish courts with jurisdiction over piracy, capture, and disputes involving state borders.¹¹ There were no national courts to hear interstate disputes or interpret laws enacted by Congress; state courts adjudicated most claims, including those arising under congressionally enacted laws; and there was no hierarchy that included lower national courts.

This arrangement had two major shortcomings. First, the protection of national interests was inadequate. State judges were more inclined to favor state interests over national ones. Second, without a single, final judicial body, there was a lack of uniformity in the interpretation and enforcement of national laws.

The Constitutional Convention

A central goal of the Constitutional Convention was the establishment of a federal judiciary that would correct the shortcomings of the Articles of Confederation.¹² The Framers broadly agreed that one Supreme Court was necessary to ensure the uniform interpretation of federal laws and to protect federal interests, but the need for inferior federal courts was controversial.

Two major proposals captured the disagreement: the Virginia Plan and New Jersey Plan. Virginia proposed the establishment of one Supreme Court and other “inferior tribunals to be chosen by the National Legislature.”¹³ This hierarchical structure with a system of inferior courts subordinate to a Supreme Court was common in the states. The New Jersey plan, by contrast, proposed the creation of a Supreme Court but no inferior courts.¹⁴

John Rutledge of South Carolina and Roger Sherman of Connecticut led the opposition to the establishment of inferior federal courts. Rutledge stated that state courts could adjudicate claims “in the first instance” and that “the right of appeal to the supreme national tribunal [was] sufficient to secure the national rights & uniformity.”¹⁵ He added that inferior federal courts would “encroach[] on the jurisdiction” of state courts.17 Sherman warned about the “supposed expensiveness of having a new set of Courts, when the existing State Courts would answer the same purpose.”¹⁶

James Madison, who drafted the Virginia Plan, was the key proponent of inferior federal courts. He argued that they were necessary because state judges might be biased against federal interests. Supreme Court review was insufficient, he said, because the sheer number of “appeals” filed “would be multiplied to a most oppressive degree.”¹⁷ Madison also argued that appeals of state court judgments would often serve “no purpose.”¹⁸ Although the Supreme Court could vacate biased state court judgments, they could be reentered on remand.¹⁹ The Supreme Court could order a new trial, but that remedy would require “the parties to bring up their witnesses, tho’ ever so distant from the seat of the Court.”²⁰

Madison’s view failed by a vote of 5 to 4 with two states divided.²¹ Undeterred, Madison promptly proposed a compromise that would confer “discretion” on “the Legislature . . . to establish or not establish” inferior courts.²² This compromise garnered more support and passed by a vote of 8 to 2 with only one state divided.²³ Still, objections continued to be voiced throughout the Convention.²⁴ Eventually, however, even its most ardent opponents, like Roger Sherman, were “willing to give the power to the Legislature but wished them to make use of the State Tribunals whenever it could be done with safety to the general interest.”²⁵

The Madisonian compromise ultimately became enshrined in Article III. The Inferior Courts Clause 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.”²⁶ The clause establishes a hierarchical judiciary with inferior courts subordinate to the Supreme Court. In other words, Congress had the power to create inferior courts and give them the jurisdiction to resolve certain cases. This grant of power reflects Madison’s view that the inferior courts should have final say in some cases to prevent an overwhelming number of appeals to the Supreme Court.²⁷

The Ratification Debates

Many of the same arguments against the Madisonian compromise reappeared in the ratification debates. Anti-Federalist Luther Martin of Maryland said that inferior federal courts were unnecessary because state courts were widely available.²⁸ Brutus feared that federal courts would “swallow up all the powers of the courts in the respective states.”²⁹

Proponents of the compromise repeated Madison’s argument 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 stated that “[t]he power of constituting inferior courts” would “obviate the necessity of having recourse to the supreme court, in every case of federal cognizance.”

There was also some discussion of how the inferior courts would be structured. At the Virginia Ratifying Convention, Edmund Pendleton stated that the country should “expect that there will be an inferior court in each state.”³⁰ Hamilton likewise observed in Federalist No. 81 that Congress could divide the country into several “districts,” each with its own inferior court.³¹

Early Practice

The Judiciary Act of 1789, passed during the first session of the First Congress, created thirteen federal district courts, one for each state, and allocated a single district judge to each district.³² It also established three regional circuit courts with several districts in each.³³ The circuit courts sat in each district twice a year. The Act did not create circuit judgeships. Instead, each circuit court consisted of three judges: two Supreme Court Justices and the district judge of the district in which the circuit court sat.³⁴ There appears to have been no doubt that Congress could create inferior federal courts based on geography.

Congress’s Power to Limit Inferior Courts’ Jurisdiction

Article III, Section 2 empowers Congress to make “Regulations” about the Supreme Court’s “appellate Jurisdiction,” but Article III does not mention Congress’s authority to regulate the jurisdiction of the inferior federal courts. Nevertheless, Congress’s power to regulate the inferior courts has never been seriously doubted. For example, under so-called diversity jurisdiction, Article III empowers federal courts to resolve any dispute “between Citizens of different states,” but the Judiciary Act of 1789 limited federal jurisdiction in diversity cases to disputes exceeding $500.³⁵ Under Article III, the “judicial Power” also extends to all cases “arising under” the Constitution or federal laws—in other words, to cases that present a question of federal or constitutional law—but the Judiciary Act of 1789 withheld jurisdiction over many cases presenting federal or constitutional questions from federal courts.³⁶ In fact, Congress has never conferred the full extent of Article III jurisdiction on inferior federal courts.

The Supreme Court has consistently recognized Congress’s ability to limit the jurisdiction of inferior courts. United States v. Hudson (1812) accepted that “the power which congress possess to create Courts of inferior jurisdiction, necessarily implies the power to limit the jurisdiction of those Courts to particular objects.”³⁷

Congress’s Power to Abolish Inferior Courts

Article III gives Congress the power to “ordain and establish” inferior courts but is silent about the power to eliminate them. The Madisonian compromise itself, however, is inconsistent with a permanent, unalterable, inferior judiciary. For the compromise to work, Congress needed the power to eliminate inferior courts, especially those that had become obsolete.

Since the early Republic, Congress has abolished and reorganized inferior federal courts many times. For example, the Judiciary Act of 1801, known as the Midnight Judges Act, doubled the number of federal circuit courts from three to six³⁸ and established fifteen circuit judge positions.³⁹ One year later, Congress reversed course and abolished the three new circuits and eliminated all of the new judgeships.⁴⁰

Congress’s Power to Create Non–Article III Tribunals

Article III provides that the judicial power “shall be vested” only in the Supreme Court and in any inferior courts that Congress may “ordain and establish.” This text leaves no room for other bodies to exercise this power. Since the early Republic, however, Congress has created non–Article III tribunals with judges that lack salary and tenure guarantees, and the Supreme Court has upheld the validity of these tribunals.⁴¹ American Insurance Co. v. Canter (1828) recognized that Congress has plenary regulatory authority over the territories under the Article IV Territories Clause (see Essay No. 144), which necessarily gives Congress the power to create non–Article III territorial courts.⁴² Kendall v. United States ex rel. Stokes (1838) upheld Congress’s power to create non–Article III courts in the District of Columbia based on Congress’s power over the “seat of government.”⁴³

The Supreme Court has also recognized a complicated patchwork of other exceptions.⁴⁴ One prominent example relates to military tribunals.⁴⁵ Another is the consent exception, which permits a non–Article III court to decide a dispute if the parties consent as long as an Article III court maintains some degree of supervision.⁴⁶ A third is the public rights exception, under which non–Article III tribunals may adjudicate disputes if the United States is a party or if the dispute involves a statutorily created right closely related to a federal regulatory scheme.⁴⁷

Open Questions

• Is senatorial advice and consent required for the appointment of judges of inferior courts?⁴⁸ Or are inferior court judges “inferior officers” who could be appointed by the President alone or by the Courts of Law?⁴⁹ Although all inferior court judges have been appointed with senatorial advice and consent, whether the Constitution requires senatorial approval for those appointments is debatable.
• To what extent can Congress authorize non–Article III tribunals to adjudicate disputes? The Supreme Court has recognized a number of exceptions to Article III’s command that the judicial power be allocated in the Supreme Court and inferior Article III courts. However, the contours of these exceptions are not well-defined.

1. 3 Blackstone 30. ↩︎
2. Id. ↩︎
3. Id. at 31. ↩︎
4. Id. at 24, 32–37. ↩︎
5. Erwin C. Surrey, The Courts in the American Colonies, 11 Am. J. Legal Hist. 253, 261 (1967). ↩︎
6. David E. Engdahl, What’s in a Name? The Constitutionality of Multiple “Supreme” Courts, 66 Ind. L.J. 457, 468–69 (1991). ↩︎
7. Del. Const. of 1776, art. XVII. ↩︎
8. Appendix to 4 W. Blackstone, Commentaries, With Notes of Reference, To the Constitution and Laws, Of the Federal Government of the United States; And of the Commonwealth of Virginia 9–22 (St. George Tucker ed. 1803); Engdahl, supra at 469. ↩︎
9. Ga. Const. of 1777, art. XL. ↩︎
10. 3 Elliot’s 551. ↩︎
11. Articles of Confederation, art. IX, §§ 2–3. ↩︎
12. Edward J. Larson and Michael P. Winship, The Constitutional Convention: A Narrative History from the Notes of James Madison 27 (2005). ↩︎
13. 1 Farrand’s 21. ↩︎
14. Id. at 244. ↩︎
15. Id. at 124. ↩︎
16. Id. ↩︎
17. Id. ↩︎
18. Id. ↩︎
19. Id. ↩︎
20. Id. ↩︎
21. Id. ↩︎
22. Id. at 125. ↩︎
23. Id. ↩︎
24. 2 Farrand’s 45–46. ↩︎
25. Id. at 46. ↩︎
26. Art. III, § 1. ↩︎
27. 1 Farrand’s 124. ↩︎
28. 3 Farrand’s 207. ↩︎
29. Storing 2.9.7; id. at 2.9.139. ↩︎
30. 3 Elliot’s 547. ↩︎
31. Federalist No. 81. ↩︎
32. Judiciary Act of 1789, ch. 20, §§ 2–3, 1 Stat. 73. ↩︎
33. Id. § 4, at 74–75. ↩︎
34. Id. ↩︎
35. Id. § 4, at 74–75. ↩︎
36. Id. § 11, at 78–79. ↩︎
37. 11 U.S. 32, 33 (1812). ↩︎
38. Act of Feb. 13, 1801, ch. 4, § 6, 2 Stat. 89. ↩︎
39. Id., ch. 4. ↩︎
40. Act of Mar. 8, 1802, ch. 8, 2 Stat. 132. ↩︎
41. William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511 (2020). ↩︎
42. 1 Pet. 511 (1828). ↩︎
43. 37 U.S. (12 Pet.) 524, 619 (1838); U.S. Const. Art. I, § 8, cl. 17. ↩︎
44. F. Andrew Hessick, Federalism Limits on Non-Article III Adjudication, 46 Pepp. L. Rev. 725, 729–31 (2019). ↩︎
45. Solorio v. United States, 483 U.S. 435, 436 (1987); Ex parte Quirin, 317 U.S. 1, 48 (1942). ↩︎
46. Wellness Int’l Network, Ltd. v. Sharif, 575 U.S. 665, 678 (2015). ↩︎
47. Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 584 U.S. 325, 334–35 (2018); Thomas v. Union Carbide Agric. Prods. Co.,473 U.S. 568 (1985). ↩︎
48. Weiss v. United States, 510 U.S. 163, 191 n.7 (1994) (Souter, J., concurring); Josh Blackman & Seth Barrett Tillman, Offices and Officers of the Constitution, Part II: The Four Approaches, 61 S. Tex. L. Rev. 321, 390 n.251 (2022). ↩︎
49. Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205, 235 n.103 (1985). ↩︎