Judicial power 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.'' 122 It is ''the right to determine actual controversies arising between diverse litigants, duly instituted in courts of proper jurisdiction.'' 123 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 124 or as the ''power to entertain the suit, consider the merits and render a binding decision thereon,'' 125 the cases and commentary support, indeed require, 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. 126
Judicial power confers on federal courts the power to decide a case, to render a judgment conclusively resolving a case. Judicial power is the authority to render dispositive judgments, and Congress violates the separation of powers when it purports to alter final judgments of Article III courts. Supp.1 In this controversy, the Court had unexpectedly fixed on a shorter statute of limitations to file certain securities actions than that believed to be the time in many jurisdictions. Resultantly, several suits that had been filed later than the determined limitations had been dismissed and had become final because they were not appealed. Congress enacted a statute, which, while not changing the limitations period prospectively, retroactively extended the time for suits dismissed and provided for the reopening of the final judgments rendered in the dismissals of suits.
Holding the congressional act invalid, the Court held it impermissible for Congress to disturb a final judgment. ''Having achieved finality, . . . a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.'' Supp.2
Included within the general power to decide cases are the ancillary powers of courts to punish for contempts of their authority, 127 to issue writs in aid of jurisdiction when authorized by statute, 128 to make rules governing their process in the absence of statutory authorizations or prohibitions, 129 to order their own process so as to prevent abuse, oppression, and injustice and to protect their own jurisdiction and officers in the protection of property in custody of law, 130 to appoint masters in chancery, referees, auditors, and other investigators, 131 and to admit and disbar attorneys. 132
''Shall Be Vested.'' --The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words ''shall be vested'' in Sec. 1. Whereas all the judicial power of the United States is vested in the Supreme Court and the inferior federal courts created by Congress, neither has ever been vested with all the jurisdiction which could be granted and, Justice Story to the contrary, 133 the Constitution has not been read to mandate Congress to confer the entire jurisdiction it might. 134 Thus, except for the original jurisdiction of the Supreme Court, which flows directly from the Constitution, two prerequisites to jurisdiction must be present: first, the Constitution must have given the courts the capacity to receive it, 135 and, second, an act of Congress must have conferred it. 136 The fact that federal courts are of limited jurisdic tion means that litigants in them must affirmatively establish that jurisdiction exists and may not confer nonexistent jurisdiction by consent or conduct. 137
[Footnote 122] Justice Samuel Miller, On the Constitution (New York: 1891), 314.
[Footnote 1 (1996 Supplement)] Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995). The Court was careful to delineate the difference between attempting to alter a final judgment, one rendered by a court and either not appealed or affirmed on appeal, and legislatively amending a statute so as to change the law as it existed at the time a court issued a decision that was on appeal or otherwise still alive at the time a federal court reviewed the determination below. A court must apply the law as revised when it considers the prior interpretation. Id. at 226-27.
Article III creates or authorizes Congress to create not a collection of unconnected courts, but a judicial department composed of ''inferior courts'' and ''one Supreme Court.'' ''Within that hierarchy, the decision of an inferior court is not (unless the time for appeal has expired) the final word of the department as a whole.'' Id. at 227.
[Footnote 2 (1996 Supplement)] Id. at 227 (emphasis by Court).
[Footnote 132] Ex parte Garland, 4 Wall. (71 U.S. ) 333, 378 (1867).
[Footnote 134] See, e.g., Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799) (Justice Chase). A recent, sophisticated attempt to resurrect the core of Justice Story's argument is Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B. U. L. Rev. 205 (1985); and see Symposium: Article III and the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990) (with articles by Amar, Meltzer, and Redish). Briefly, the matter is discussed more fully infra, Professor Amar argues, in part, from the text of Article III, Sec. 2, cl. 1, that the use of the word ''all'' in each of federal question, admiralty, and public ambassador subclauses means that Congress must confer the entire judicial power to cases involving those issues, whereas it has more discretion in the other six categories.
[Footnote 136] The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1868); Cary v. Curtis, 44 U.S. (3 How.) 236 (1845); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850); United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 33 (1812); Kline v. Burke Construction Co., 260 U.S. 226 (1922). It should be noted, however, that some judges have expressed the opinion that Congress' authority is limited to some degree by the Constitution, such as by the due process clause, so that a limitation on jurisdiction which denied a litigant access to any remedy might be unconstitutional. Cf. Eisentrager v. Forrestal, 174 F. 2d 961, 965-966 (D.C.Cir. 1949), revd. on other grounds sub nom, Johnson v. Eisentrager, 339 U.S. 763 (1950); Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir.), cert. den., 335 U.S. 887 (1948); Petersen v. Clark, 285 F. Supp. 700. 703 n. 5 (D.N.D. Calif. 1968); Murray v. Vaughn, 300 F. Supp. 688. 694- 695 (D.R.I. 1969). The Supreme Court has had no occasion to consider the question.
[Footnote 137] Turner v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799); Bingham v. Cabot, 3 U.S. (3 Dall.) 382 (1798); Jackson v. Ashton, 33 U.S. (8 Pet.) 148 (1834); Mitchell v. Maurer, 293 U.S. 237 (1934).