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How Are Courts Established Under the Constitution?

The Constitution only mentions the United States Supreme Court. But it does grant Congress the power to create "lesser courts" as needed. Through this power, we've developed a network of federal courts from local district courts, to the regional circuit courts of appeals, to the court of last resort - the Supreme Court. 

Congressional Power to Create Federal Courts

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The Constitution is almost completely silent concerning the organization of the federal judiciary. "That there should be a national judiciary was readily accepted by all."1 But whether it was to consist of one high court at the apex of a federal judicial system or a high court exercising appellate jurisdiction over state courts that would initially hear all but a minor fraction of cases raising national issues was a matter of considerable controversy.2

The Virginia Plan provided for a "National judiciary [to] be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature."3 In the Committee of the Whole, the proposition "that a national judiciary be established" was unanimously adopted,4 but the clause "to consist of One supreme tribunal, and of one or more inferior tribunals"5 was first agreed to, then reconsidered. The provision for inferior tribunals was ultimately stricken out, it being argued that state courts could adequately adjudicate all necessary matters while the supreme tribunal would protect the national interest and assure uniformity.6 Wilson and Madison thereupon moved to authorize Congress "to appoint inferior tribunals,"7 which carried the implication that Congress could in its discretion either designate the state courts to hear federal cases or create federal courts. The word "appoint" was then adopted, but over the course of the Convention the phrasing was changed again so as to suggest somewhat more of an obligation to vest such powers in inferior federal courts.8

The requirement that judges hold their office during "good behavior" excited no controversy during the Convention,9 although the lack of an enforcement mechanism for this provision resulted in impeachment under Article II becoming the primary mechanism for removal of a federal judge.10 And finally, the only substantial dispute that arose regarding the denial to Congress of the power to reduce judicial salaries (a power which could be used to intimidate judges) came on Madison's motion to bar increases as well as decreases.11

The Supreme Court

While the Constitutional Convention specified that the Chief Justice of the Supreme Court would preside over any Presidential impeachment trial in the Senate,12 decisions on the size and composition of the Supreme Court, the time and place for sitting, its internal organization, and other matters were left to the Congress. The Congress soon provided these details in the Judiciary Act of 1789, one of the seminal statutes of the United States.13 Originally, the Court consisted of a Chief Justice and five Associate Justices.14 The number was gradually increased until it reached a total of ten under the act of March 3, 1863.15 As one of the Reconstruction Congress's restrictions on President Andrew Johnson, the number was reduced to seven as vacancies should occur.16 The number actually never fell below eight before the end of Johnson's term, and Congress thereupon made the number nine.17

Proposals have been made at various times for an organization of the Court into sections or divisions. No authoritative judicial expression is available, but Chief Justice Hughes, in a letter to Senator Wheeler in 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."18 Congress has also determined the time and place of sessions of the Court. It exercised this power once to change the Court's term to forestall a constitutional attack on the repeal of the Judiciary Act of 1801, with the result that the Court did not convene for fourteen months.19

Inferior Courts

Congress also provided in the Judiciary Act of 1789 for the creation of courts inferior to the Supreme Court. Thirteen district courts were constituted to have four sessions annually,20 and three circuit courts were established. The circuit courts were to consist of two Supreme Court justices each and one of the district judges of such districts, and were to meet twice annually in the various districts comprising the circuit.21 This system had substantial faults in operation, not the least of which was the burden imposed on the Justices, who were required to travel thousands of miles each year under bad conditions.22 Despite numerous efforts to change this system, it persisted, except for one brief period, until 1891.23 Since then, the federal judicial system has consisted of district courts with original jurisdiction, intermediate appellate courts, and the Supreme Court.

Abolition of Courts

That Congress "may from time to time ordain and establish inferior courts" would seem to imply that the system may be reoriented from time to time and that Congress is not restricted to the status quo but may expand and contract the units of the system. But if the judges are to have life tenure, what is to be done with them when the system is contracted? Unfortunately, the first exercise of the power occurred in a highly politicized situation, and no definite answer emerged. By the Judiciary Act of February 13, 1801,24 passed in the closing weeks of the Adams Administration, the districts were reorganized, and six circuit courts consisting of three circuit judges each were created. Although Adams appointed deserving Federalists to these so-called "midnight judge" positions just before the change in administration, the Jeffersonians soon set in motion plans to repeal the Act, which were carried out.25 No provision was made for the displaced judges, however, apparently under the theory that if there were no courts there could be no judges to sit on them.26 The validity of the repeal was questioned on related grounds in Stuart v. Laird,27 but Justice Paterson rejected the challenge without directly addressing the issue of the displaced judges.

Not until 1913 did Congress again exercise its power to abolish a federal court, this time the unfortunate Commerce Court, which had disappointed the expectations of most of its friends.28 But this time Congress provided for the redistribution of the Commerce Court judges among the circuit courts as well as a transfer of its jurisdiction to the district courts.

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. 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 a court was the Commerce Court created by the Mann-Elkins Act of 1910,29 which was given exclusive jurisdiction to enforce, inter alia, orders of the Interstate Commerce Commission (except those involving money penalties and criminal punishment). This court actually functioned for less than three years, being abolished in 1913.

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, 1942.30 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 Court was vested with jurisdiction and the powers of a district court to hear appeals filed within thirty days against denials of protests by the Price Administrator. The Court had exclusive jurisdiction to set aside regulations, orders, or price schedules, in whole or in part, or to remand the proceeding, but the court was tightly constrained in its treatment of regulations. There was interplay with the district courts, which were charged with authority to enforce orders issued under the Act, although only the Emergency Court had jurisdiction to determine the validity of such orders.31

Other specialized courts are the Court of Appeals for the Federal Circuit, which is in many respects like the geographic circuits. Created in 1982,32 this court has exclusive jurisdiction to hear appeals from the United States Court of Federal Claims, from the Federal Merit System Protection Board, the Court of International Trade, the Patent Office in patent and trademark cases, and in various contract and tort cases. One of those courts, the Court of International Trade, began life as the Board of General Appraisers, became the United States Customs Court in 1926, was declared an Article III court in 1956, and came to its present form and name in 1980.33 Finally, the Judicial Panel on Multidistrict Litigation, staffed by federal judges from other courts, is authorized to transfer actions pending in different districts to a single district for trial.34

To facilitate the gathering of foreign intelligence information, through electronic surveillance, search and seizure, as well as other means, Congress in 1978 authorized a special court, composed of seven regular federal judges appointed by the Chief Justice, to receive applications from the United States and to issue warrants for intelligence activities.35 Even greater specialization was provided by the special court created by the Ethics in Government Act;36 the court was charged, upon the request of the Attorney General, with appointing an independent counsel to investigate and prosecute charges of illegality in the Executive Branch. The court also had certain supervisory powers over the independent counsel.


  1. Max Farrand, The Framing of the Constitution of the United States 79 (1913).
  2. The most complete account of the Convention's consideration of the judiciary is J. Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States, Vol. 1 ch. 5 (1971).
  3. 1 Farrand, supra at 21–22. It is possible that this version may not be an accurate copy, see 3 id. at 593–94.
  4. id. at 95, 104.
  5. Id. at 95, 105. The words "One or more" were deleted the following day without recorded debate. Id. at 116, 119.
  6. Id. at 124–25.
  7. Madison's notes use the word "institute" in place of "appoint," id. at 125, but the latter appears in the Convention Journal, id. at 118, and in Yates' notes, id. at 127, and when the Convention took up the draft reported by the Committee of the Whole "appoint" is used even in Madison's notes. 2 id. at 38, 45.
  8. On offering their motion, Wilson and Madison "observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them." 1 id. at 125. The Committee on Detail provided for the vesting of judicial power in one Supreme Court "and in such inferior Courts as shall, when necessary, from time to time, be constituted by the legislature of the United States." 2 id. at 186. Its draft also authorized Congress "[t]o constitute tribunals inferior to the Supreme Court." Id. at 182. No debate is recorded when the Convention approved these two clauses, Id. at 315, 422–23, 428–30. The Committee on Style left the clause empowering Congress to "constitute" inferior tribunals as was, but it deleted "as shall, when necessary" from the Judiciary article, so that the judicial power was vested "in such inferior courts as Congress may from time to time"—and here deleted "constitute" and substituted the more forceful—"ordain and establish." Id. at 600.
  9. The provision was in the Virginia Plan and was approved throughout, 1 id. at 21.
  10. See supra Article II, Judges.
  11. Farrand, supra at 121; 2 id. at 44–45, 429–430.
  12. Article I, § 3, cl. 6.
  13. Act of September 24, 1789, 1 Stat. 73. The authoritative works on the Act and its working and amendments are Felix Frankfurter & James Landis, The Business of the Supreme Court (1928); Charles Warren, New Light on the History of the Federal Judicial Act of 1789, 37 Harv. L. Rev. 49 (1923); see also J. Goebel, supra at ch. 11.
  14. Act of September 24, 1789, 1 Stat. 73, § 1.
  15. 12 Stat. 794, § 1.
  16. Act of July 23, 1866, 14 Stat. 209, § 1.
  17. Act of April 10, 1869, 16 Stat. 44.
  18. Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judiciary Committee, 75th Congress, 1st Sess. (1937), pt. 3, 491. For earlier proposals to have the Court sit in divisions, see F. Frankfurter & J. Landis, supra at 74–85.
  19. 1 Charles Warren, The Supreme Court in United States History 222–224 (rev. ed. 1926).
  20. Act of September 24, 1789, 1 Stat. 73, §§ 2–3.
  21. Id. at 74, §§ 4–5.
  22. Cf. Frankfurter & Landis, supra at chs. 1–3; J. Goebel, supra at 554–560, 565–569. Upon receipt of a letter from President Washington soliciting suggestions regarding the judicial system, Writings of George Washington, (J. Fitzpatrick ed., 1943), 31, Chief Justice Jay prepared a letter for the approval of the other Justices, declining to comment on the policy questions but raising several issues of constitutionality, that the same man should not be appointed to two offices, that the offices were incompatible, and that the act invaded the prerogatives of the President and Senate. 2 G. McRee, Life and Correspondence of James Iredell 293–296 (1858). The letter was apparently never forwarded to the President. Writings of Washington, supra at 31–32 n.58. When the constitutional issue was raised in Stuart v. Laird, 5 U.S. (1 Cr.) 299, 309 (1803), it was passed over with the observation that the practice was too established to be questioned.
  23. Act of March 3, 1891, 26 Stat. 826. The temporary relief came in the Act of February 13, 1801, 2 Stat. 89, which was repealed by the Act of March 8, 1802, 2 Stat. 132.
  24. Act of February 13, 1801, 2 Stat. 89.
  25. Act of March 8, 1802, 2 Stat. 132. Frankfurter & Landis, supra at 25–32; 1 C. Warren, supra at 185–215.
  26. This was the theory of John Taylor of Caroline, upon whom the Jeffersonians in Congress relied. W. Carpenter, Judicial Tenure in the United States 63–64 (1918). The controversy is recounted fully in id. at 58–78.
  27. 5 U.S. (1 Cr.) 299 (1803) (sustaining both the transfer of suits between circuits and the sitting of Supreme Court Justices on circuit courts without confirmation to those courts).
  28. The Court was created by the Act of June 18, 1910, 36 Stat. 539, and repealed by the Act of October 22, 1913, 38 Stat. 208, 219. See Frankfurter & Landis, supra at 153–174; W. Carpenter, supra at 78–94.
  29. Ch. 309, 36 Stat. 539.
  30. 56 Stat. 23, §§ 31–33.
  31. In Lockerty v. Phillips, 319 U.S. 182 (1943), the limitations on the use of injunctions, except the prohibition against interlocutory decrees, was unanimously sustained.A similar court was created to be used in the enforcement of the economic controls imposed by President Nixon in 1971. Pub. L. No. 92-210, 85 Stat. 743, 211(b). Although controls ended in 1974, see 12 U.S.C. § 1904 note, Congress continued the Temporary Emergency Court of Appeals and gave it new jurisdiction. Emergency Petroleum Allocation Act of 1973, Pub. L. No. 93-159, 87 Stat. 633, 15 U.S.C. § 754, incorporating judicial review provisions of the Economic Stabilization Act. The Court was abolished, effective March 29, 1993, by Pub. L. No. 102–572, 106 Stat. 4506.Another similar specialized court was created by § 209 of the Regional Rail Reorganization Act, Pub. L. No. 93-226, 87 Stat. 999, 45 U.S.C. § 719, to review the final system plan under the Act. Regional Rail Reorganization Act Cases (Blanchette v. Connecticut Gen. Ins. Corp.), 419 U.S. 102 (1974).
  32. By the Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, 96 Stat. 37, 28 U.S.C. § 1295. Among other things, this Court assumed the appellate jurisdiction of the Court of Claims and the Court of Customs and Patent Appeals.
  33. Pub. L. No. 96-417, 94 Stat. 1727.
  34. 28 U.S.C. § 1407.
  35. Pub. L. No. 95-511, 92 Stat. 1788, 50 U.S.C. § 1803.
  36. Ethics in Government Act, Title VI, Pub. L. No. 95-521, 92 Stat. 1867, as amended, 28 U.S.C. §§ 591–599. The court is a Special Division of the United States Court of Appeals for the District of Columbia; composed of three regular federal judges, only one of whom may be from the D. C. Circuit, who are designated by the Chief Justice. 28 U.S.C. § 49. The constitutionality of the Special Division was upheld in Morrison v. Olson, 487 U.S. 654, 670–85 (1988). Authority for the court expired in 1999 under a sunset provision. Pub. L. No. 103-270, § 2, 108 Stat. 732 (1994).
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