Chapter LIII: 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.

Characteristics and Attributes of Judicial Power

"JUDICIAL POWER"

Judicial power, as Justice Miller defined it in 1891, 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";[1] or in the words of the Court in Muskrat _v._ United States,[2] it is "the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction."[3] 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,[4] or as the "power to entertain the suit, consider the merits and render a binding decision thereon,"[5] the cases and commentaries support and, for that matter, necessitate 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.[6] Included with the general power to decide cases are the ancillary powers of courts to punish for contempts of their authority,[7] to issue writs in aid of jurisdiction when authorized by statute;[8] to make rules governing their process in the absence of statutory authorizations or prohibitions;[9] inherent equitable powers over their own process to prevent abuse, oppression and injustice, and to protect their own jurisdiction and officers in the protection of property in custody of law;[10] the power to appoint masters in chancery, referees, auditors, and other investigators;[11] and to admit and disbar attorneys.[12]

"SHALL BE VESTED"

The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words "shall be vested." Whereas all of the judicial power of the United States is vested in the Supreme Court and the lower federal judiciary, neither has ever been vested with all the jurisdiction they are capable of receiving under article III. Except for the original jurisdiction of the Supreme Court, which flows directly from the Constitution,[13] two prerequisites to jurisdiction must be present. First, the Constitution must have given the courts the capacity to receive it; second, an act of Congress must have conferred it.[14]

FINALITY OF JUDGMENT

Since 1792 the federal courts have emphasized finality of judgment as an essential attribute of judicial _power_. In Hayburn's Case[15] a motion for mandamus was filed in the Supreme Court to direct the Circuit Court for the District of Pennsylvania to act upon a petition for a pension under the pensions act which placed the administration of pensions in the judges of the federal courts, but which made the action of the courts on application subject to review by Congress and the Secretary of War. The Court took the case under advisement, but Congress changed the law by the act of February 28, 1793, before decision was rendered. In view of the attitude of the circuit courts of the United States for the districts of New York, North Carolina and Pennsylvania there can be no doubt what the decision would have been. The judges of the circuit courts in each of these districts refused to administer the pensions, because the revisory powers of Congress and the Secretary of War were regarded as making the administration of the law nonjudicial in nature. At the time of this episode, Chief Justice Jay and Justice Cushing were members of the Circuit Court in the New York district, Justices Wilson and Blair in Pennsylvania and Justice Iredell in North Carolina.

The Taney Doctrine

On these foundations Chief Justice Taney posthumously erected finality into a judicial absolute.[16] The original act creating the Court of Claims provided for an analogous procedure with appeals 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 the payment of private claims. However, section 14 of the act provided that no money should be paid out of the Treasury for any claims "till after an appropriation therefor shall be estimated by the Secretary of the Treasury." In Gordon _v._ United States,[17] the Court refused to hear an appeal, probably for the reasons given in Chief Justice Taney's opinion which he did not deliver because of his death before the Court reconvened but which was published many year later.[18] In any event the reiteration of Taney's opinion in subsequent cases made much of it good law. Because the judgment of the Court of Claims and the Supreme Court depended for execution upon future action of the Secretary of the Treasury and of Congress, the Chief Justice regarded it as nothing more than a certificate of opinion and in no sense a judicial judgment. Congress, therefore, could not authorize the Supreme Court to take appeals from an auditor or require it to express an opinion 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. The Chief Justice then proceeded to formulate a rule, repeated in many subsequent cases until modified in 1927 and reversed in 1933, to the effect that the award of execution is a part and an essential part of every judgment passed by a court exercising judicial powers; it was no judgment in the legal sense of the term without it.[19] This rule was given rigid application in Liberty Warehouse Co. _v._ Grannis,[20] where the Supreme Court sustained a district court in refusing to entertain a declaratory proceeding for lack of jurisdiction because such a proceeding was regarded as nonjudicial. One year later, the Court applied the extreme of the rule in Liberty Warehouse _v._ Burley Tobacco Growers Association,[21] when it ruled that it could exercise no appellate jurisdiction in a declaratory proceeding in a State court.

Award of Execution

Meanwhile in 1927 the Supreme Court began to qualify its insistence upon an award of execution, holding in Fidelity National Bank and Trust Co. _v._ Swope[22] that an award of execution is not an indispensable adjunct of the judicial process. This ruling prepared the way for Nashville, Chattanooga and St. Louis R. Co. _v._ Wallace[23] which reversed the decision in the Grannis case, sustained an appeal from a State court to the Supreme Court in a declaratory proceeding, and effectively interred the rule that award of execution is essential to judicial power. Regardless, nevertheless, of the fate of an award of execution, the rule that finality of judgment is an essential attribute of judicial power remains unimpaired.

Ancillary Powers

THE CONTEMPT POWER; 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.[24] By the latter part of the eighteenth century summary power to punish was extended to all contempts whether committed in or out of court.[25] In the United States, the Judiciary Act of 1789 in section 17[26] 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.[27]

An Inherent Power

The validity of the act of 1831 was sustained forty-three years later in Ex parte Robinson,[28] where Justice Field for the Court propounded 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 enforcement 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 become possessed of this power." Expressing doubts concerning the validity of the act as to the Supreme Court, he declared, however, 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."[29] 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. 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.[30] In Michaelson _v._ United States[31] the Supreme Court intentionally placed a narrow interpretation upon those sections of the Clayton Act[32] relating to punishment for contempt of court by disobedience to injunctions in labor disputes. The sections in question provided for a jury trial 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 that 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 contempts 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.[33]

The Contempt Power Exalted

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[34] 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 of 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."[35] In Craig _v._ Hecht[36] 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.

Recession of the Doctrine

The decision in the Toledo Newspaper case 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[37] and the theory of constructive contempt based on the "reasonable tendency" rule 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.

Bridges _v._ California

Although Nye _v._ United States is exclusively a case of statutory construction, it is significant from a constitutional point of view in that its reasoning is 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,[38] though dealing with the power of State courts to punish contempts, in the face of the due process clause of the Fourteenth Amendment, is significant 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.

Summary Punishment of Contempt; Misbehavior of Counsel

There have been three notable cases within the last half century raising questions concerning the power of a trial judge to punish counsel summarily for alleged misbehavior in the course of a trial. In _ex parte_ Terry,[39] 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,[40] however, decided in 1925, 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."[41] The Chief Justice then added: "Another feature of this case seems to call for remark. The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. Cornish _v._ United States, 299 F. 283, 285; Toledo Newspaper Co. _v._ United States, 237 F. 986, 988. The case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows."[42]

Contempt Power: Punishment of Counsel; Sacher Case

This case[43] is an outgrowth of the trial of the eleven Communists,[44] in which Sacher et al. were counsel for the defense. The facts of the case were as follows: On receiving the verdict of conviction of the defendants, trial Judge Medina at once issued a certificate under Rule 42 (a) of Federal Rules of Criminal Procedure, finding counsel guilty of criminal contempt and imposing various jail terms up to six months. The immediate question raised was whether the contempt charged was one which the judge was authorized to determine for himself, or one which under Rule 42 (b) could only be passed upon by another judge and after notice and hearing; but behind this issue loomed the same constitutional issue which was dealt with by the Court in the Cooke case, of the requirements of due process of law. The Court sustained the Circuit Court of Appeals in affirming the convictions and sentences, at the same time, however, reversing some of Judge Medina's specifications of contempt, one of these being the charge that the petitioners entered into an agreement deliberately to "impair my health." "We hold," said Justice Jackson, speaking for the majority, "that Rule 42 allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power. * * * We are not unaware or unconcerned that persons identified with unpopular causes may find it difficult to enlist the counsel of their choice. But we think it must be ascribed to causes quite apart from fear of being held in contempt, for we think few effective lawyers would regard the tactics condemned here as either necessary or helpful to a successful defense. That such clients seem to have thought these tactics necessary is likely to contribute to the bar's reluctance to appear for them rather more than fear of contempt. But that there may be no misunderstanding, we make clear that this Court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. But it will not equate contempt with courage or insults with independence. It will also protect the processes of orderly trial, which is the supreme object of the lawyer's calling."[45]

Contempt by Disobedience of Orders

Disobedience of injunction orders, particularly in labor disputes, has been a fruitful source of cases dealing with contempt of court. In United States _v._ United Mine Workers[46] the Court held that disobedience of a temporary restraining order issued for the purpose of maintaining existing conditions, pending the determination of the court's jurisdiction, is punishable as criminal contempt where the issue is not frivolous but substantial. Secondly, the Court held that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings, even though the statute under which the order is issued is unconstitutional. Thirdly, on the basis of United States _v._ Shipp,[47] it was held that violations of a court's order are punishable as criminal contempt even though the order is set aside on appeal as in excess of the court's jurisdiction or though the basic action has become moot. Finally, the Court held that conduct can amount to both civil and criminal contempt, and the same acts may justify a court in resorting to coercive and to punitive measures, which may be imposed in a single proceeding.

Criminal Versus Civil Contempts

Prior to the United Mine Workers Case, the Court had 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 consists of the refusal of a person in a civil case to obey a mandatory order. It is incomplete in nature and may be purged by obedience to the Court order. In criminal contempt, however, 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.[48] In a dictum in Ex parte Grossman,[49] Chief Justice Taft, while holding for the Court on the main issue that the President may pardon a criminal contempt, declared that he may not pardon a civil contempt. 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.[50]

Judicial Power Aids Administrative Power

Proceedings to enforce the orders of administrative agencies and subpoenas issued by them to appear and produce testimony have become increasingly common since the leading case of Interstate Commerce Commission _v._ Brimson,[51] where it was held that the contempt power of the courts might by statutory authorization be utilized in aid of the Interstate Commerce Commission in enforcing compliance with its orders. In 1947 a proceeding to enforce a _subpoena duces tecum_ issued by the Securities and Exchange Commission during the Course of an investigation was ruled to be civil in character on the ground that the only sanction was a penalty designed to compel obedience. The Court then enunciated the principle that where a fine or imprisonment imposed on the contemnor is designed to coerce him to do what he has refused to do, the proceeding is one for civil contempt.[52]

POWER TO ISSUE WRITS; THE ACT OF 1789

From the beginning of government under the Constitution of 1789 Congress has assumed under the necessary and proper clause, its power to establish inferior courts, its power to regulate the jurisdiction of federal courts and the power to regulate the issuance of writs. The Thirteenth section of the Judiciary Act of 1789 authorized the circuit courts to issue writs of prohibition to the district courts, and the Supreme Court to issue such writs to the circuit courts. The Supreme Court was also empowered to issue writs of mandamus "in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."[53] Section 14 provided that all courts of the United States should "have power to issue writs of _scire facias_, _habeas corpus_, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law."[54] Issuance of the writ of _habeas corpus_ was limited in that it was to extend only to persons in custody under or by color of authority of the United States. Although the act of 1789 left the power over writs subject largely to the common law, it is significant as a reflection of the belief, in which the courts have on the whole concurred, that an act of Congress is necessary to confer judicial power to issue writs.

Common Law Powers of the District of Columbia Courts

That portion of section 13 which authorized the Supreme Court to issue writs of mandamus in the exercise of its original jurisdiction was held invalid in Marbury _v._ Madison,[55] as an unconstitutional enlargement of the Supreme Court's original jurisdiction. After two more futile efforts to obtain a writ of mandamus, in cases in which the Court found that power to issue the writ had not been vested by statute in the courts of the United States except in aid of already existing jurisdiction,[56] a litigant was successful in Kendall _v._ United States ex rel. Stokes[57] in finding a court which would take jurisdiction in a mandamus proceeding. This was the circuit court of the United States for the District of Columbia which was held to have jurisdiction, on the theory that the common law, in force in Maryland when the cession of that part of the State which became the District of Columbia was made to the United States, remained in force in the District. At an early time, therefore, the federal courts established the rule that mandamus can be issued only when authorized by a constitutional statute and within the limits imposed by the common law and the separation of powers.

Habeas Corpus

Although the writ of _habeas corpus_ has something of a special status by virtue of article I, section 9, paragraph 2, the power of a specific court to issue the writ has long been held to have its authorization only in written law.[58] In Ex parte Yerger,[59] where the petitioner was held in custody by the military authorities under the Reconstruction Acts, the Court, referring to the prohibition against the suspension of the writ of _habeas corpus_, clearly indicated that Congress is not bound to provide for the protection of federal rights by investing the federal courts with jurisdiction to protect them. Furthermore, the case also incorporates the rule that power to issue the writ may be withdrawn even in pending cases.[60] The rules pertaining to mandamus and _habeas corpus_ are applicable to the other common law and statutory writs, the power to issue which, though judicial in nature, must be derived from the statutes and cannot go beyond them.

Congress Limits the Inquisition Power

Although the speculations of some publicists and some judicial dicta[61] support the idea of an inherent power of the federal courts sitting in equity to issue injunctions independently of statutory limitations, neither the course taken by Congress nor the specific rulings of the Supreme Court support any such principle. Congress has repeatedly exercised its power to limit the use of the injunction in the federal courts. The first limitation on the equity jurisdiction of the federal courts is to be found in section 16 of the Judiciary Act of 1789, which provided that no equity suit should be maintained where there was a full and adequate remedy at law. Although this provision did no more than declare a pre-existing rule long applied in chancery courts,[62] it did assert the power of Congress to regulate the equity powers of the federal courts. The act of March 2, 1793,[63] prohibited the issuance of any injunction by any court of the United States to stay proceedings in State courts except where such injunctions may be authorized by any law relating to bankruptcy proceedings. In subsequent statutes Congress has prohibited the issuance of injunctions in the federal courts to restrain the collection of taxes;[64] provided for a three-judge court, as a prerequisite to the issuance of injunctions to restrain the enforcement of State statutes for unconstitutionality,[65] for enjoining federal statutes for unconstitutionality,[66] and for enjoining orders of the Interstate Commerce Commission;[67] limited the power to issue injunctions restraining rate orders of State public utility commissions,[68] and the use of injunctions in labor disputes;[69] and placed a very rigid restriction of the power to enjoin orders of the administrator under the Emergency Price Control Act.[70]

All of these restrictions have been sustained by the Supreme Court as constitutional and applied with varying degrees of thoroughness. The Court has made exceptions to the application of the prohibition against the stay of proceedings in State courts,[71] but has on the whole adhered to the statute. The exceptions raise no constitutional issues, and the later tendency is to contract the scope of the exceptions.[72]

In Duplex Printing Company _v._ Deering,[73] the Supreme Court placed a narrow construction upon the labor provisions of the Clayton Act and thereby contributed in part to the more extensive restriction by Congress of the use of injunctions in labor disputes in the Norris-LaGuardia Act of 1932 which has not only been declared constitutional,[74] but has been applied liberally,[75] and in such a manner as to repudiate the notion of an inherent power to issue injunctions contrary to statutory provisions.

Injunctions Under the Emergency Price Control Act of 1942

Lockerty _v._ Phillips[76] justifies the same conclusion. Here the validity of the special appeals procedure of the Emergency Price Control Act of 1942 was sustained. This act provided for a special Emergency Court of Appeals which, subject to review by the Supreme Court, was given exclusive jurisdiction to determine the validity of regulations, orders, and price schedules issued by the Office of Price Administration. The Emergency Court and the Emergency Court alone was permitted to enjoin regulations or orders of OPA, and even it could enjoin such orders only after finding that the order was not in accordance with law, or was arbitrary or capricious. The Emergency Court was expressly denied power to issue temporary restraining orders or interlocutory decrees; and in addition the effectiveness of any permanent injunction it might issue was to be postponed for thirty days. If review was sought in the Supreme Court by certiorari, effectiveness was to be postponed until final disposition. A unanimous court speaking through Chief Justice Stone declared that there "is nothing in the Constitution which requires Congress to confer equity jurisdiction on any particular inferior federal court." All federal courts, other than the Supreme Court, it was asserted, derive their jurisdiction solely from the exercise of the authority to ordain and establish inferior courts conferred on Congress by article III, Sec. 1, of the Constitution. This power, which Congress is left free to exercise or not, was held to include the power "'of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.'"[77] Although the Court avoided passing upon the constitutionality of the prohibition against interlocutory decrees, the language of the Court was otherwise broad enough to support it, as was the language of Yakus _v._ United States[78] which sustained a different phase of the special procedure for appeals under the Emergency Price Control Act.

THE RULE-MAKING POWER AND POWERS OVER PROCESS

Among the incidental powers of courts is that of making all necessary rules governing their process and practice and for the orderly conduct of their business.[79] However, this power too is derived from the statutes and cannot go beyond them. The landmark case is Wayman _v._ Southard[80] which sustained the validity of the process acts of 1789 and 1792 as a valid exercise of authority under the necessary and proper clause. Although Chief Justice Marshall regarded the rule-making power as essentially legislative in nature, he ruled that Congress could delegate to the courts the power to vary minor regulations in the outlines marked out by the statute. Fifty-seven years later in Fink _v._ O'Neil,[81] in which the United States sought to enforce by summary process the payment of a debt, the Supreme Court ruled that under the process acts the law of Wisconsin was the law of the United States and hence the Government was required to bring a suit, obtain a judgment, and cause execution to issue. Justice Matthews for a unanimous Court declared that the courts have "no inherent authority to take any one of these steps, except as it may have been conferred by the legislative department; for they can exercise no jurisdiction, except as the law confers and limits it."

Limits to the Power

The principal function of court rules is that of regulating the practice of courts as regards forms, the operation and effect of process, and the mode and time of proceedings. However, rules are sometimes employed to state in convenient form principles of substantive law previously established by statutes or decisions. But no such rule "can enlarge or restrict jurisdiction. Nor can a rule abrogate or modify the substantive law." This rule is applicable equally to courts of law, equity, and admiralty, to rules prescribed by the Supreme Court for the guidance of lower courts, and to rules "which lower courts make for their own guidance under authority conferred."[82] As incident to the judicial power, courts of the United States possess inherent authority to supervise the conduct of their officers, parties, witnesses, counsel, and jurors by self-preserving rules for the protection of the rights of litigants and the orderly administration of justice.[83]

The courts of the United States possess inherent equitable powers over their process to prevent abuse, oppression and injustice, and to protect their jurisdiction and officers in the protection of property in the custody of law.[84] Such powers are said to be essential to and inherent in the organization of courts of justice.[85] The courts of the United States also possess inherent power to amend their records, correct the errors of the clerk or other court officers, and to rectify defects or omissions in their records even after the lapse of a term, subject, however, to the qualification that the power to amend records conveys no power to create a record or re-create one of which no evidence exists.[86]

APPOINTMENT OF REFEREES, MASTERS, AND SPECIAL AIDS

The administration of insolvent enterprises, investigations into the reasonableness of public utility rates, and the performance of other judicial functions often require the special services of masters in chancery, referees, auditors, and other special aids. The practice of referring pending actions to a referee was held in Heckers _v._ Fowler[87] to be coeval with the organization of the federal courts. In the leading case of Ex parte Peterson[88] a United States district court appointed an auditor with power to compel the attendance of witnesses and the production of testimony. The Court authorized him to conduct a preliminary investigation of facts and file a report thereon for the purpose of simplifying the issues for the jury. This action was neither authorized nor prohibited by statute. In sustaining the action of the district judge, Justice Brandeis, speaking for the Court, declared: "Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties. * * * This power includes authority to appoint persons unconnected with the Court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause."[89] The power to appoint auditors by federal courts sitting in equity has been exercised from their very beginning, and here it was held that this power is the same whether the Court sits in law or equity.

THE POWER TO ADMIT AND DISBAR ATTORNEYS

Subject to general statutory qualifications for attorneys, the power of the federal courts to admit and disbar attorneys rests on the common law from which it was originally derived. According to Chief Justice Taney, it was well settled by the common law that "it rests exclusively with the Court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed." Such power, he made clear, however, "is not an arbitrary and despotic one, to be exercised at the pleasure of the Court, or from passion, prejudice, or personal hostility; but it is the duty of the Court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the Court, as the right and dignity of the Court itself."[90] The Test-Oath Act of July 2, 1862, which purported to exclude former Confederates from the practice of law in the federal courts, was invalidated in Ex parte Garland.[91] In the course of his opinion for the Court, Justice Field discussed generally the power to admit and disbar attorneys. The exercise of such a power, he declared, is judicial power. The attorney is an officer of the Court and though Congress may prescribe qualifications for the practice of law in the federal courts, it may not do so in such a way as to inflict punishment contrary to the Constitution or to deprive a pardon of the President of its legal effect.[92]

Organization of Courts, Tenure and Compensation of Judges

"ONE SUPREME COURT"

The Constitution is almost completely silent concerning the organization of the federal judiciary. Although it provides for one Supreme Court, it makes no reference to the size and composition of the Court, the time or place for sitting, or its internal organization save for the reference to the Chief Justice in the impeachment provision of article I, Sec. 3, relating to impeachment of the President. All these matters are therefore confided to Congressional determination. Under the terms of the Judiciary Act of 1789, the Court consisted of a Chief Justice and five Associate Justices. This number was gradually increased until it reached a total of ten judges under the act of March 3, 1863. Due to the exigencies of Reconstruction and the tension existing between Congress and the President the number was reduced to seven as vacancies should occur, by the act of April 16, 1866. The number never actually fell below eight, and on April 10, 1869, with Andrew Johnson out of the White House, Congress restored the number to nine, where it has since remained. There have been proposals 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 of March 21, 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."[93] Congress has also determined the time and place of sessions of the Court, going so far in 1801 as to change its terms so that for fourteen months, between December, 1801 and February, 1803 the Court did not convene.

INFERIOR COURTS MADE AND ABOLISHED

By article I, Sec. 8, paragraph 9, Congress is expressly declared to have the power to constitute tribunals inferior to the Supreme Court, and the power is repeated in a different formula in article III, Sec. 1, when provision is also made for tenure during good behavior and for a compensation which shall not be diminished. Since 1789 Congress, with repeated judicial acquiescence and concurrence, has interpreted both of these sections as leaving it free to establish inferior courts or not, as it deems fit in the exercise of a boundless discretion. By the Judiciary Act of 1789, Congress constituted thirteen district courts which were to have four sessions annually[94] and three circuit courts which were to consist jointly of the Supreme Court judges and the district judge of such districts which were to meet annually at the time and places designated by the statute.[95] By the Judiciary Act of February 13, 1801, passed in the closing weeks of the Adams Administration, the number of judges of the Supreme Court was to be reduced to five after the next vacancy, the districts were reorganized, and six circuit courts consisting of three judges each and organized independently of the Supreme Court and the district courts were created.[96] Whatever merits this plan of organization possessed were lost in the fierce partisanship of the period, which led the expiring Federalist Administration to appoint Federalists almost exclusively to the new judgeships to the dismay of the Jeffersonians who, upon coming into power, set plans in motion to repeal the act. In a bitter debate the major constitutional issue to emerge centered about the abolition of courts once they were created in the light of the provision for tenure during good behavior. Suffice it to say, the repeal bill was passed and approved by the President on March 8, 1802[97] without any provision for the displaced judges. The validity of the act of 1802 was questioned in Stuart _v._ Laird,[98] where Justice Paterson in a terse opinion, which hardly touched Charles Lee's argument that Congress lacked power to abolish or destroy courts and judges, held for the Court that Congress has the power to establish inferior courts from time to time as it may think proper and to transfer a cause from one tribunal to another. In answer to the argument that Supreme Court Justices could not constitutionally sit as circuit judges, he pointed to practice and acquiescence contemporaneous with the Constitution as an interpretation too strong and obstinate to be shaken or controlled.

Abolition of the Commerce Court

Since 1802 Congress has many times exercised its power to constitute inferior courts, but not until 1913 did it again abolish a court. This was the unfortunately launched Commerce Court from which so much was expected and so little came. Again, as in 1802, there was a constitutional debate on the power of Congress to abolish courts without providing for the displaced judges, but unlike the act of 1802 the act of 1913[99] provided for the redistribution of the Commerce Court judges among the Circuit Courts of Appeals and the transfer of its jurisdiction to the district courts.[100]

COMPENSATION

The prohibition against the diminution of judicial salaries has presented very little litigation. In 1920 in Evans _v._ Gore[101] the Court invalidated the application of the Income Tax as applied 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[102] 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 in effect overruled in O'Malley, Collector of Internal Revenue _v._ Woodrough,[103] where the Court upheld section 22 of the Revenue Act of 1932 (now 26 U.S.C.A. 22 (a)) 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 judges nor as an encroachment on the independence of the judiciary.[104] 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."[105]

Diminution of Salaries

The Appropriations Act of 1932 reduced "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 8-1/3 per cent if below $10,000, or to $10,000 if above that figure. While this provision presented no questions of its own constitutionality, it did raise the question of what judges' salaries could be constitutionally reduced. In O'Donoghue _v._ United States[106] the section was held inapplicable to the salaries of judges of the courts of the District of Columbia on the ground that as to their organization and tenure and compensation, Congress was limited by the provisions of article III. In Williams _v._ United States,[107] on the other hand, it was ruled that the reduction was applicable to the salaries of the judges of the Court of Claims, that being a legislative court created in pursuance of the power of Congress to pay the debts of the United States and to consent to suits against the United States. As such it is not within the provisions of article III respecting the tenure and compensation of judges.

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. Otherwise 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,[108] 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.

The Emergency Court of Appeals of 1942

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.[109] By the terms of the statute this court consisted of three or more judges designated by the Chief Justice from the judges of the United States district courts and circuit courts of appeal. The Chief Justice was authorized to designate one of the judges as chief judge, to designate additional judges from time to time, and to revoke designations. The chief judge in turn was authorized to divide the Court into divisions of three or more members each, with any such division empowered to render judgment as the judgment of the Court. 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 no regulation or price schedule could be set aside or enjoined unless the Court was satisfied that it was contrary to law or was arbitrary or capricious. Even then the effectiveness of a restraining order was to be suspended for thirty days and, if appealed to the Supreme Court within thirty days, until its final disposition. Although the act deprived the district courts of the power to enjoin the enforcement of orders and price schedules, it vested them with jurisdiction to enforce the act and orders issued thereunder in actions brought by the Administrator to enjoin violations and to try criminal prosecutions brought by the Attorney General. Since the Emergency Court of Appeals, subject to review by the Supreme Court, was given exclusive jurisdiction to determine the validity of any order issued under the act, it resulted that the district courts were deprived of the power to inquire into the validity of orders involved in civil or criminal proceedings in which they had jurisdiction.[110]

Judicial Review Restrained

In Yakus _v._ United States[111] the Court held in an opinion by Chief Justice Stone that there is "no principle of law or provision of the Constitution which precludes Congress from making criminal the violation of an administrative regulation, by one who has failed to avail himself of an adequate separate procedure for the adjudication of its validity, or which precludes the practice, in many ways desirable, of splitting the trial for violations of an administrative regulation by committing the determination of the issue of its validity to the agency which created it, and the issue of violation to a court which is given jurisdiction to punish violations. Such a requirement presents no novel constitutional issue."[112] In a dissent Justice Rutledge took issue with this holding, saying: "It is one thing for Congress to withhold jurisdiction. It is entirely another to confer it and direct that it be exercised in a manner inconsistent with constitutional requirements or, what in some instances may be the same thing, without regard to them. Once it is held that Congress can require the courts criminally to enforce unconstitutional laws or statutes, including regulations, or to do so without regard for their validity, the way will have been found to circumvent the supreme law and, what is more, to make the courts parties to doing so. This Congress cannot do. There are limits to the judicial power. Congress may impose others. And in some matters Congress or the President has final say under the Constitution. But whenever the judicial power is called into play, it is responsible directly to the fundamental law and no other authority can intervene to force or authorize the judicial body to disregard it. The problem therefore is not solely one of individual right or due process of law. It is equally one of the separation and independence of the powers of government and of the constitutional integrity of the judicial process, more especially in criminal trials."[113]

LEGISLATIVE COURTS: THE CANTER CASE

Quite distinct from special courts exercising the judicial power of the United States, but at the same time a significant part of the federal judiciary, are the legislative courts, so called because they are created by Congress in pursuance of its general legislative powers. The distinction between constitutional courts and legislative courts was first made in American Insurance Company _v._ Canter,[114] 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."[115] The Court went on to hold that admiralty jurisdiction can be exercised in the States in those courts only 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."[116]

Other Legislative Courts

The distinction made in the Canter case has been repeated with elaborations since 1828, receiving its fullest exposition in Ex parte Bakelite Corporation,[117] which contains a review of the history of legislative courts and the cases supporting the power of Congress to create them. In addition to discussing the derivation of power to establish legislative courts, the Bakelite case ruled that such courts "also 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. Congress may reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals."[118] Among the matters susceptible of judicial determination but not requiring it are claims against the States,[119] the disposal of the public lands and claims arising therefrom,[120] questions concerning membership in the Indian tribes,[121] and questions arising out of the administration of the customs and internal revenue laws.[122] For the determination of these matters Congress has created the Court of Claims, the Court of Private Land Claims, the Choctaw and Chickasaw Citizenship Court, the Court of Customs, the Court of Customs and Patent Appeals, and the Tax Court of the United States (formerly the Board of Tax Appeals).

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 limitation of salaries. Congress may limit tenure to a term of years, as it has done in acts creating territorial courts and the Tax Court of the United States, and it may subject the judges of legislative courts to removal by the President.[123] In McAllister _v._ United States,[124] the removal of a territorial judge was sustained on the basis of the principle that: "The whole subject of the organization of territorial courts, the tenure by which the judges of such courts shall hold their offices, the salary they receive and the manner in which they may be removed or suspended from office, was left, by the Constitution, with Congress under its plenary power over the Territories of the United States."[125] Long afterwards the Court held in Williams _v._ United States[126] that the reduction of the salaries of the judges of the Court of Claims, and inferentially of judges of other legislative courts, to $10,000 per year by the Appropriation Act of June 30, 1932, was constitutional. In so doing the Court rejected dicta in earlier cases which classified the Court of Claims as a constitutional court and silently reversed Miles _v._ Graham,[127] which had held that Congress could not include the salary of a judge of the Court of Claims in his taxable income.

Status of the Court of Claims

It follows, too, that in creating legislative courts, Congress can vest in them nonjudicial functions of a legislative or advisory nature and deprive their judgments of finality. Thus in Gordon _v._ United States[128] 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[129] the Court sustained the act conferring powers on the Florida territorial court to examine claims arising under the Spanish treaty and to report his 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."

A Judicial Paradox

Chief Justice Taney's view in the Gordon case that the judgments of legislative courts could never be reviewed by the Supreme Court was tacitly rejected in De Groot _v._ United States,[130] when the Court took jurisdiction from a final judgment of the Court of Claims. Since the decision of this case in 1867 the authority of the Supreme 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. Consequently in proceedings before a legislative court which are judicial in nature and admit of a final judgment the Supreme Court may be vested with appellate jurisdiction. Thus there arises the workable anomaly that though the legislative courts can exercise no part of the judicial power of the United States and the Supreme Court can exercise only that power, the latter nonetheless can review judgments of the former. However, it should be emphasized that the Supreme Court will neither review the administrative proceedings of legislative courts nor entertain appeals from the advisory or interlocutory decrees of such courts.[131]

STATUS OF THE 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,[132] the Court sustained an act of Congress which conferred revisionary 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 revisionary powers in the same court over rates fixed by a public utilities commission.[133] Not long after this the same rule was applied to the revisionary power of the District Supreme Court over orders of the Federal Radio Commission.[134] 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 an obiter dictum in Ex parte Bakelite Corporation,[135] while reviewing the history and analyzing the nature of legislative courts, the Court stated that the courts of the District were legislative courts.

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,[136] with the result of shouldering 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 easily 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."[137] The effect of the O'Donoghue decision is to confer a dual status on the courts of the District of Columbia. As regards their organization, and the tenure and compensation of their judges they are constitutional courts, as regards jurisdiction and powers they are simultaneously legislative and constitutional courts, and as such can be vested with nonjudicial powers while sharing the judicial power of the United States.[138]

Jurisdiction: Cases and Controversies