Creating the Federal Judicial SystemThis Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to deveducation programs for judicial branch employees. The views expressed are those of the authors and not necesFederal Judicial Center.Federal Judicial Center1994Russell R. Wheeler and Cynthia HarrisonSecond Edition
ii
Contents

About This Publication v

Establishing the Federal Judicial System 2

The Judiciary Act and the Bill of Rights 2

The Judiciary Act’s Provisions 4

A Political Compromise 6

From the Founding to the Evarts Act 9

Reorganizing the Federal Courts 12

The Federal Courts Today 23

Conclusion 25

Notes 27
iv
The first edition of this publication was prepared as a referencework for the use of federal court personnel during the bicentennial year of the federal judicial system. We have revised and reissued it because of substantial interest from court personnel andstudents of American judicial history and politics.* Russell Wheeleris primarily responsible for the text. Cynthia Harrison, with theassistance of Deirdre Golash and Geoff Erwin, is primarily responsible for the maps.

The authors thank Prof. Kermit Hall, now of the University of

Tulsa, for his helpful suggestions on the first edition. For assistance on the maps, the authors thank the Division of Archives andHistory, North Carolina Department of Cultural Resources. Population estimates are from the U.S. Census Bureau.

The maps illustrate the changing configuration of the districts

and circuits of the federal courts in the states over time. They donot address the development of the federal courts in the territo-

*A separate Center publication traces the development of the federal courts’ administrative apparatus: Russell R. Wheeler, Origins of the Elements of Federal Court Governance

(Federal Judicial Center 1992).About This Publication

ries, nor the judicial authority over Indian cerning judgeships, districts, and circuits Statutes at Large, 1789 to 1989; Erwin CFederal Courts (New York: Oceana PubliFederal District Court Judges and the History 139 (1966); U.S. Senate Comm. on the Sess., Legislative History of the United Statand the Judges Who Served During the P1972 (Comm. Print 1972); and Analysis atistics Division, Administrative Office of of the Authorization of Federal Judgeships Standards Used in Conducting Judgeship S

Data about county boundaries are from William Dollarhide, Map Guide to the U.S

1920 (Genealogical Publishing Co., 1987

Creatin

ith the Judiciary Act of 1789,1 Congress first implementedthe constitutional provision that “[t]he judicial power ofthe United States, shall be vested in one supreme court,

and in such inferior courts as the Congress may from time to timeordain and establish.” Although subsequent legislation altered manyof the 1789 Act’s specific provisions, and the 1891 Circuit Courtsof Appeals Act effected a major change, the basic design established by the 1789 Act has endured: a supreme appellate court tointerpret the federal Constitution and laws; a system of lower federal courts, separated geographically by state boundaries and exercising basically the same jurisdiction; and reliance on state courts

to handle the bulk of adjudication in the III and its implementing legislation also disagreements over the optimal extent othe optimal federal court structure to acction. By studying the Judiciary Act of 1legislation, we learn why the federal judictoday.

Moreover, the history of the federal cou

of the current provisions and proposed csible now will appear as quaint and curiothose proposed and adopted by our ance

W
Creating the Federal Judicial System

2

In many states, supporters of the Constitution persuaded opponents to vote for its ratification by promising to seek amendments

to it as soon as the government went into operation. The changemost frequently sought was an itemization of rights that would beprotected from intrusion by the new national government.

But many Americans also voiced concern over the potential danger of the federal court system authorized by Article III. By one

count, 19 of the 103 amendments proposed by the state ratifyingconventions called for changes in Article III.2 Indeed, AntiFederalists sought limits on Article III for much the same reasonthey sought a bill of rights (especially those protections relating tojudicial procedures): They feared that courts—especially courts ofthe new and powerful national government—could become instruments of tyranny. Elbridge Gerry, who refused to sign the Constitution, said that his principal objection was “that the judicialEstablishing the Federal Judicial SystemThe Constitutional Convention’s decisions in 1787 about the national government’s court system were few but important. The

framers agreed that there would be a separate federal judicial powerand that to exercise it there would be a Supreme Court and therecould be other federal courts. They specified the jurisdiction thosecourts could exercise, subject to congressional exceptions. Theyprescribed the appointment procedure for Supreme Court judges,and they sought to protect all federal judges from reprisals forunpopular decisions: Judges’ compensation could not be reduced,and judges could not be removed from office other than by legislative impeachment and conviction.

Putting flesh on this skeleton fell to the First Congress. The

The Judiciary Act and the Bill of Rights

same forces that contended over the writiConstitution in 1787 and 1788 sparred 1789 over the nation’s judicial system. Fported the Constitution and the policies oadministration, and they wanted to estabciary. Anti-Federalists opposed the Constisignificant changes in it—and favored at federal judiciary. After the Constitution 

outright opposition to it diminished Republicans, or “Jeffersonians,” emerged eralists in power.department will be oppressive.”3 The star 

history lingered in some people’s minds, bered how state courts issued judgmentthe economic turmoil under the Articles oWarren identified four main changes that Constitution’s judiciary provisions: guarcriminal trial juries, restricting federal questions of law, eliminating or radically authority to establish lower federal couauthorization for federal diversity jurisdi

Many who had supported the Constitu

federal court system was necessary but doof rights. To them, the Constitution, in H“is itself, in every rational sense, and to evof rights.”6 The Constitution as ratified c
Creatin

tions on the national government (e.g., Article III’s provision forcriminal jury trials), and in a broader sense, it established an energetic national government, extending over a large republic, thatwould be capable of protecting people from the oppression of local factions.

Courts would also protect rights. As Chief Justice John Jay later

told the grand juries of the Eastern Circuit, “nothing but a stronggovernment of laws irresistibly bearing down [upon] arbitrarypower and licentiousness can defend [liberty] against those twoformidable enemies.”7 To many Federalists, state courts under theArticles of Confederation had too easily yielded to popular pressures; the Federalists believed that a separate set of federal courtswas necessary to achieve “a strong government of laws.”

Thus, the First Congress faced these interrelated questions: What

provisions should a bill of rights contain? Should Article III’s provisions governing federal judicial organization and jurisdiction bealtered? How should Article III be implemented? From April toSeptember of 1789, the First Congress addressed them all.

Early in the first session of the House of Representatives, James

Madison, the principal architect of the Constitution, put togethera proposed bill of rights drawn from state proposals and constitutional provisions. Madison had opposed a bill of rights a year earlier, claiming that “parchment barriers” were no protection against“the encroaching spirit of power,”8 but he knew the importance ofhonoring commitments made in the ratification debates. Moreover, he told the House, if a bill of rights is incorporated into theConstitution, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights.”9 Madison guided his proposed amendments through legislative revisionsand around colleagues who thought they were unnecessary or unwise, and he eluded other legislators who wanted to add provisions to curtail severely the contemplated federal judicial system.

Meanwhile, the Senate quickly took u

jurisdiction of the federal courts. The prBill 1 were three lawyers: Oliver EllsWilliam Paterson of New Jersey, and Casetts. Ellsworth and Paterson had served in vention, and Ellsworth served on the comtal Congress that heard appeals in prize appreciation of the role that a federal jututed, might serve. (Ellsworth and Paterthe U.S. Supreme Court, Ellsworth as C

On September 24, 1789, Washington s

lish the Federal Courts of the United Stations for the first federal judges to the Sthe House accepted the conference reporRights. The Senate followed suit the nexments went to the states for ratification. Tof the Constitution in 1791.10
Creating the Federal Judicial System

4

The Judiciary Act’s boldest stroke was simply to create a system

of lower federal courts to exist alongside the courts already established by each state. (Indeed, more than 200 years later, few countries with federal forms of government have lower national courts

to enforce the law of the national government.) There was considerable sentiment in 1789 for leaving trial adjudication to the statecourts, perhaps with a small corps of federal admiralty judges.

The Act provided for two types of trial courts—district courts

and circuit courts—and gave the circuit courts a limited appellatejurisdiction. It made specific provision for the Supreme Court created by the Constitution. It defined federal jurisdiction. It authorized the courts to appoint clerks12 and to prescribe their procedural rules.13 It authorized the President to appoint marshals,14 U.S.

attorneys, and an attorney general.15

The Act created thirteen district courts: one for each of the eleven

states that had ratified the Constitution, plus separate district courtsfor Maine and Kentucky, which were then parts of Massachusettsand Virginia. Each district was authorized one district judge. Section 3 of the Act directed each court to hold four sessions eachyear, in either one or two specified cities in each district. The district courts served mainly as courts for admiralty, for forfeituresand penalties, for petty federal crimes, and for minor U.S. plaintiffcases. Congress authorized differing salaries for the district judgesto reflect the wide variations in federal caseload from one state toanother. The judge in Delaware received an annual salary of $800,

but his counterpart in South Carolina, with its longer coastlineand presumably greater admiralty caseload, received $1,800.16

The Act placed each district, except Kentucky and Maine, into

one of three circuits: an Eastern, a Middle, and a Southern, following the administrative divisions used in the first year of theThe Judiciary Act’s Provisions11

Revolutionary War.17 Circuit courts were 

either one or two specified cities of each deach circuit session, the judges were to be justices assigned to that circuit and the These circuit courts were the nation’s cozenship cases (concurrent with state courmoval provision), major federal crimes, cases. (There was no provision for suits agThe circuit courts were also courts of appcivil and admiralty cases in the district co

Maine district courts exercised the jurisdexercised.

The Act established the size of the Sup

tice and five associate justices. Section 13 

original jurisdiction as delineated in the Cvision of section 13 that the Court later din Marbury v. Madison.19 The Act spelled jurisdiction: review of circuit court deccerning matters over $2,000 (for some sen

the salary of the Chief Justice was $4,000

was not given general criminal appella1890s.21 The Act’s famous section 25 aut

view state supreme court decisions that inor treaties or that declared state statutes of a claim to the contrary.
Creatin

Vermont was 

admitted to the 

Union as the 

fourteenth state 

in March 1791

Rhode Island did not ratify the Constitution until May 1790

North Carolina did not ratify the Constitution until November 1789

District of Kentucky 

Population 3.9 millionStates 11Districts 13District Judgeships 13Circuits 3Supreme Court Justices 

Territories

S

M

September 24, 1789

Territories

District of Maine

E

The First Judiciary Act created thirteen districts and placed eleven of them in three circuits: the Eastern, Middle, and Southern. Each district had a single district judge and primarily admiralty jurisdiction. A circuit court also met in each district of the circuit and was composed of the district judge The circuit courts exercised primarily diversity and criminal jurisdiction and heard appeals from the district courts in some cases. The districts of Mstates of Massachusetts and Virginia, respectively) were part of no circuit; their district courts exercised both district and circuit court jurisdiction.
Creating the Federal Judicial System

6

The Federalists made important concessions to get a federal judicial system. The Judiciary Act bowed to the Anti-Federalists in

two general ways: It restricted federal jurisdiction more than theConstitution required, and it tied the federal courts to the legaland political cultures of the states.Federal Courts’ Jurisdiction

The Act limited federal trial court jurisdiction mainly to admiralty, diversity, and U.S. plaintiff cases, and to federal criminal cases.There was little dispute about the need to create national admiralty courts. Even opponents of the Constitution recognized the

importance of maritime commerce and the government’s inabilityunder the Articles of Confederation to provide an adequate judicial forum for resolving admiralty disputes. (Pursuant to an authorization in the Articles of Confederation, the Continental Congress in 1780 had established a U.S. Court of Appeals in Cases ofCapture, but that court had been undermined by widespread refusal to honor its mandates.) When proposals to abolish Congress’sArticle III authority to establish federal courts were made in thestate ratifying conventions and in the First Congress, there wasusually an exception for courts of admiralty.

A major concession to the Anti-Federalists concerned jurisdiction over cases arising under the federal Constitution or laws: For

the most part, unless diversity was present, such federal-questioncases could be filed only in state court. The Act made some specific grants to federal courts: the admiralty jurisdiction, for example,and jurisdiction over treaty rights cases.22 Section 14 authorized

federal judges to issue writs of habeas corpus concerning the legality of federal detentions. Congress added incrementally to federalcourts’ federal-question jurisdiction—starting in 1790 with cerA Political Compromise tain patent cases23—but it didn’t grant 

federal-question jurisdiction until 1875. T

meant less in 1789 than it would mean tfederal statutory law was so limited in th

Other provisions of the Act reflected th

ing judicial procedures that was reflected example, to alleviate fears that citizens wofrom long distances, section 

3 specified p

ing court in each district, and section 11 

must be filed in the defendant’s district and 12 protected the right to civil and crimand circuit courts, as the Sixth and Sevelater do, and section 29 shielded juror selfrom federal judicial control by directing ods of their respective states. Sections 2

verdicts from appellate review; these sectous attacks on Article III’s qualified grant “appellate jurisdiction, both as to law and lier, section 14 authorized federal judges corpus to inquire into instances of federa

A major nationalist victory in the Act w

the constitutional authorization of jurisdcitizens of different States” and cases invtion 11, the circuit courts, like the state when “an alien is a party, or the suit is State where the suit is brought, and a cit

Why did the Federalists want this feder

jurisdiction? It was not simply—perhaps fear that state courts would be biased agaiRather, Federalists worried about the p
Creatin

judges by state legislatures, which selected judges in most statesand had the authority to remove them in more than half the states.Given the influence of debtor interests in state legislatures, theFederalists worried that state judges might be reluctant to enforceunpopular contracts or generally to foster the stable legal conditions necessary for commercial growth. Diversity jurisdiction wasnecessary to avoid a return to the conditions under the Articles ofConfederation.25

Anti-Federalists fought the diversity of citizenship jurisdiction;

they believed it “would involve the people of these States in themost ruinous and distressing law suits.”26 To quiet these fears, theAct established a jurisdictional minimum of $500, so that defendants would not have to travel long distances in relatively minor

cases, and made state laws the rules of decision in the absence ofapplicable federal law.27

Federal Courts’ Ties to the States

The Federalists achieved their goal of establishing a federal trial

judiciary rather than leaving all trials in the state courts. But thefederal courts that the Act created were not designed to be completely free of the influence of their states’ politics and legal culture. The federal judiciary’s fierce independence in protecting national legal rights against occasional state encroachment has beensustained by factors other than the geographic structure of thenational court system.

It seems axiomatic today that no district or circuit boundary

should cross a state line, because (with one minor exception28) none

does. The 1789 Judiciary Act set this precedent, just as it requiredthe district judges to reside in their districts.29 These requirements

create inevitable relationships between federal courts and the statesin which they are located.

But state boundaries are not the only way that federal court

boundaries could be defined. The creatomight have established separate judicial that would ensure roughly equal allocatiobe subject to realignment to maintain th

In 1800, a last-gasp Federalist bill to re

would have divided the United States into nine districts, each district with a distinctdirect relation to state boundaries. For epart of what is now the Second Circuit thdistrict of Champlain, and in the western Fourth Circuit would have been the dWhatever administrative sense this arrangit ran counter to the strong preference thto the states in which they are located.Circuit Riding

To observers today, the most curious 

ciary Act was Congress’s decision to crecourt but not to create any separate judgrected the two Supreme Court justices atravel to the designated places of holding there by the district judge. This requiremSupreme Court caseload in the early perSupreme Court justices spent most of tjudges.

Circuit riding was common in the st

Congress for three reasons. First, it savcorps of judges would require. In 1792, tjudge reported that Congress declined tjudgeships partly because “the public mimpressed with the importance of a steaadministration of justice,” and partly beca
Creating the Federal Judicial System

8so strong a hold on the thoughts and personal feelings of men,that everything else seems little in comparison.”31 Second, circuitriding exposed the justices to the state laws they would interpreton the Supreme Court and to legal practices around the country—it let them “mingle in the strife of jury trials,”32 as a defender ofcircuit riding said in 1864. Third, it contributed to what today wecall “nation building.” It would, according to Attorney GeneralEdmund Randolph, “impress the citizens of the United States favorably toward the general government, should the most distinguished judges visit every state.”33 (In fact, they did more than visit.

The justices’ grand jury charges explained the new regime to prominent citizens all over the country, winning praise from the Federalist press and barbs from the Jeffersonian press.34)

Whatever logic supported circuit riding, the justices themselves

set about almost immediately to abolish it. They saw themselves as

“traveling postboys.”35 They doubted, ially, “that riding rapidly from one end of the best way to study law.”36 FurthermorWashington, trial judges who serve also sometimes required to “correct in one cthey themselves may have committed in unfriendly to impartial justice.”37 The 17

judges from voting as circuit judges in apcourt decisions38 but placed no similar 

Court justices. The justices themselves agfrom appeals from their own decisions unl(a rare occurrence). Congress’s only respwas a 1793 statute reducing to one the nsary for a circuit court quorum.40
Creatin

From 1789 to 1855, the number of states increased to thirtyone, and U.S. territorial possessions grew as well. The logic of the

1789 Judiciary Act dictated that new states and territories havetheir own district and circuit courts. The justices, however, foundthe travel burden of even the existing circuits to be too great. Congress thus created new circuits and gradually increased the size ofthe Supreme Court to provide justices for them. The expansionwas not a smooth process. Creating a new seat on the SupremeCourt became entwined with the politics of filling the seat. Thus,new states were often left in limbo, and the district courts exercised both district and circuit court jurisdiction. Not until the CivilWar was every district within a circuit served by Supreme Courtjustices.

The number of circuits reached its nineteenth-century high point

in 1855. To deal with a large number of land disputes in California, Congress that year created a separate, tenth, circuit, called the

California Circuit, for the state’s two districts and, for the first time,authorized a separate circuit judge rather than adding a tenth justice to the Supreme Court.44 The Supreme Court reached its largIn 1801, as their era drew to a close, the Federalists brought to passage a bill that President John Adams had proposed two years earlier. It established six circuits and separate circuit court judge- ships for them, and it expanded federal court jurisdiction to all categories of cases authorized by Article III.41 The incoming Jeffersonians repealed the statute the next year,42 abolished the judgeships it created, and then passed a new judiciary act.43 The new act again created six circuits, but it reestablished the justices’ circuit-riding responsibilities—one justice per circuit, to hold one

From the Founding to the Evarts ActWestward Expansion

circuit court session each year in each dHowever, because a quorum of one judvene the circuit court, the justices’ respondiminished.

This slight restriction on circuit obliga

porary relief. With time, the federal courtas caseloads swelled. A political stalemate courts should play in national life postpotion of the dispute over the proper structest size in 1863, when Stephen Field of Cthe Court as the justice for the newly creareplaced the California Circuit and inclCalifornia.45 (Although the Court had ten the ten never sat as a group because of the Taney in 1863–1864 and of Justices Caterm.46) An 1866 statute47 sought to reduc

bidding replacement nominations until the members. Although often described as adent Andrew Johnson’s power, in fact the signed chiefly to produce a Court of mormake it easier for Congress to raise judihad nine members after Justice Catron members from Justice Wayne’s death in 

when Justice Bradley was appointed pursute that raised the Court’s authorized siz
Creating the Federal Judicial System

10Upon taking control of the government, Jeffersonian Republicans repealed the 1801 Judiciary Act, a Federalist measure that had created six cir

eliminating circuit riding for justices. The 1802 Act kept the enlarged number of circuits, but restored the Supreme Court justices’ circuit-riding obl

less burdensome manner.

District of Maine

District of Kentucky 

WesternDistrictTenn.

 Eastern DistrictTenn. District of Cape Fear

District of Pamptico

District of Albemarle

Territories

6

Population States 16Districts 20District JudgCircuits 6Supreme Cou

Territories 4

Indian Lands

3

2

1802

5

1
Creatin

Congress created the Seventh Circuit, which comprised Kentucky, Tennessee, and Ohio (admitted as a new state in 1803). The number of justices on from six to seven, and the seventh was assigned to this new circuit.

District of Kentucky 

WesternDistrictTenn.

 Eastern DistrictTenn.

District 

Dis

Di

Indian Lands

2

3

5

7

6

Population 6.6 millionStates 17Districts 21District Judgeships 18Circuits 7Supreme Court Justices 7

1807

Territories

Territories

Louisiana Purchase

4
Creating the Federal Judicial System

12

From the Civil War period until 1891, the nation engaged in an

extended debate over how to reorganize the federal courts. Thedebate took place in the context of a broader argument over theproper role of the federal judiciary in national life.

In 1861, in his first message to Congress on the state of the union,

President Lincoln warned that “the country has outgrown ourpresent judicial system.”50 The problem as he saw it was that the

circuit system as established in 1789 could not accommodate the

growth of the country. In 1861, eight recently admitted states had

never had “circuit courts attended by supreme judges.” Addingenough justices to the Supreme Court to accommodate all the circuit courts that were needed would make the Supreme Court “altogether too numerous for a judicial body of any sort.” Lincoln’ssolution: Fix the Supreme Court at a “convenient number,” irrespective of the number of circuits. Then divide the country “intocircuits of convenient size,” to be served either by the SupremeCourt justices and as many separate circuit judges as might be necessary, or by separate circuit judges only. Or abolish the circuitcourts.

Reorganizing the circuit system was not the only problem Lincoln sought to resolve. He noted also that many federal statutes

“have been drawn in haste and without sufficient caution . . . as torender it very difficult for even the best informed persons to ascertain precisely what the statute law really is.” Furthermore, althoughLincoln did not mention it, the Supreme Court and the circuitand district courts had increasing backlogs of cases.

Before the Civil War, a growing economy and the emergence of

the business corporation increased the federal courts’ workload astheir decisions created the legal conditions for growth and expansion in maritime trade and in domestic commercial activity.51 ConReorganizing the Federal Courts gress steadily expanded the Supreme Co

the Civil War came statutes to promote growth, the enforcement of which fell tthe diversity jurisdiction or pursuant to diction. Other laws expanded the federimplement Reconstruction and to enfoAmendments.53 The budget offers one mfederal court business. In 1850, the U$500,000 on the federal courts; in 1875, 

Federal court business grew even more 

1875,55 which did essentially what the Fedin 1789: It established general federal-qufederal trial courts for cases involving $50

on the same day as the 1875 Civil Righ

server has said, the two statutes together mate expression of Republican reconstruognized a national obligation to confer citizenship to the freedman. The other the party’s nationalizing impulse and comthe national market.”57 Although the 18

invalidated by the Supreme Court eight y

diciary Act made the federal trial courts, in words, “the primary and powerful relianright given by the Constitution, the laws, States.”59 The vastly expanded federal court jur

established by the 1875 Judiciary Act, haterm, it established the federal courts’ prtors of constitutional and statutory rightterpreters of the growing mass of federal 
Creatin

W.D.La. E.D.

 La.

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E.D.

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Dist

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Population 15.8 millionStates 26Districts 34District Judgeships 29Circuits 9Supreme Court Justices 9 

Indian Lands

Te

3

5

2

4

6

8

7

Territories

1837

By 1837, nine new states had been admitted to the Union. Congress created two new circuits—the Eighth and the Ninth—and added two new justices 

in them. With this change, every state in the Union was part of a circuit, although Louisiana’s Western District was not; its district court exercised bojurisdiction.
Creating the Federal Judicial System

14

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E.D. La. 5

District o

Distr

Distr

Population 18.3 millionStates 26Districts 37District Judgeships 29Circuits 9Supreme Court Justices 9 

9 5

Territ

6

2

8

4

7

Territories

3

1842

Congress reorganized the circuits to relieve the workload of Justice John McKinley, who covered the four states of the former Ninth Circuit. Congresof Arkansas and Mississippi and joined Alabama and Louisiana in the new Fifth Circuit, the only time continental states in a circuit were not contig
Creatin

District ofWisconsin

District ofIowa

District of

Texas

N.D.Fla.

SF

W E

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W.D.Ark.

E.D.Ark.

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Population 27.4 millionStates 31Districts 48District Judgeships 39Circuits 10Circuit Judgeships 1Supreme Court Justices 9 

5

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7

3

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6

Territories

2

9

1855

In 1855, Congress created a separate judicial circuit, “constituted in and for the state of California, to be known as the circuit court of the United Stat

with the same jurisdiction as the numbered circuits. Rather than increasing the number of Supreme Court justices, Congress authorized a circuit ju
Creating the Federal Judicial System

16tive regulations. In the short term, however, these significant jurisdictional increases for a court system conceived in 1789 createdserious delay in the administration of federal justice. In fact, Hartand Wechsler referred to the post-Civil War period as “the nadirof federal judicial administration.”60 Even in such a condition, however, the courts performed a “unifying function” in promoting

commercial growth during the period.61

Numerous proposals to revamp the system led only to tinkering

with the number, size, and terms of the federal courts. As a result,the nation lost much of its dwindling federal appellate capacity.Appellate review was statutorily foreclosed in many classes of cases.The decisions of the circuit courts were final in almost all criminalcases and in all civil cases involving less than $5,000.62 Even withthese limitations, the Supreme Court’s docket grew steeply. In 1860,

the Court had 310 cases on its docket. By 1890, it had 1,816 cases,including 623 new cases filed that year.63

The Court was years behind in its work and, unlike the Court

today, it was obliged to decide almost all the cases brought to it.Consequently, decisions of federal trial courts were, for practicalpurposes, almost unreviewable. Moreover, those courts had theirown workload problems. Even with a partial restriction on diversity jurisdiction in 1887,64 cases pending rose 86% from 1873 to1890, from 29,000 to 54,000.65 The number of district and circuitjudges grew only by 11%, from 62 in 1873 to 69 in 1890.66 In 1869,Congress had created nine circuit judgeships, realizing that theSupreme Court justices could attend but a fraction of the circuitcourt sessions. These nine judgeships were far too few to accommodate the increase in filings. In addition, the 1875 Act shiftedsome of the original jurisdiction of the circuit courts to the districtcourts and broadened the circuit courts’ appellate jurisdiction. Inthe 1870s, single district judges handled about two-thirds of thecircuit court caseload. In the next decade, the figure was much

closer to 90%, and often the district judfrom their own decisions, thus making “to a considerable extent ultimate courts o

The federal courts’ growing post-Civil 

modate this increased jurisdiction can be inability of the bench and bar and legislative scheme of judicial organization. The organized so that they could accommodatpreserving such values as occasional conthe everyday judicial business of the counwere offered. Some proposed an intermechoing bills introduced even before the ing the reorganization of 1891. Others sSome proposed an eighteen-member Sujudges serving on the circuits through scheme. Others suggested that the Suprethree panels to hear common-law, equityenue cases, and that constitutional cases g

The inability to agree on a new form 

more basic conflict. As Frankfurter and L

The reorganization of the federal judiciamerely technical questions of judicial organthe concern only of lawyers. Beneath the surversy lay passionate issues of power as betwthe Federal Government, involving sectiosectional susceptibilities. . . . Stubborn politicstrong interests were at stake which made commodation long and precarious. 69

The conflicts that had pitted Federalist

in the 1790s resurfaced toward the end group, based mainly in the House of Repstrength mainly from the South and the 
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District ofIowa

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Population 34 millionStates 35Districts 54District Judgeships 45Circuits 10Supreme Court Justices 10 

9

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Territories

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1863

In 1862, Congress added the states that had been admitted since 1842 to existing circuits. The following year, Congress abolished the Circuit Cou

Tenth Circuit, consisting of California and Oregon. One justice was added to the Supreme Court for this circuit.
Creating the Federal Judicial System

18the traditional form of the federal courts but restrict their jurisdiction. This group believed, not without some evidence, that thefederal courts were too sympathetic to commercial interests, tooeager to frustrate state legislative efforts designed to help farmersand workers. An Illinois congressman argued that the post-CivilWar “increase of . . . jurisdiction . . . grew out of the then anomalous conditions of the country and was largely influenced by thepassions and prejudices of the times.” To regard “Federal courts...[as] the safeguards of the rights of the people . . . is a great mistakeand . . . lessens respect for State courts, State rights, and Stateprotection.”70

Another coalition, with strength in the Senate and based in the

East, wanted to broaden the federal courts’ capacity, so that theycould exercise the expanded jurisdiction created in the wave ofnationalist sentiment after the Civil War. One proponent cited“prejudice” by state courts against corporations and “in the West...granger laws and granger excitements that have led people to commit enormities in legislation. . . . Capital . . . will not be risked inthe perils of sectional bitterness, narrow prejudices, or local indifference to integrity and honor.” The solution: “Let us stand by thenational courts; let us preserve their power.”71

The culmination of this controversy was the Circuit Court of

Appeals Act of 1891,72 the handiwork mainly of Senate Judiciary

Committee Chairman William Evarts of New York. According toHenry Adams, Evarts prided himself on his ability to do the thingshe didn’t like to do.73 He had resisted the idea of separate courts of

appeals for a long time. In accepting the concept, Evarts fashionedlegislation that resolved the crisis in favor of the nationalists, although there were modest concessions to those who favored theold form of the federal courts.

What did the Act do? Essentially, it shifted the appellate caseload

burden from the Supreme Court to new courts of appeals, and, in

so doing, made the federal district courts courts. It created a new court, the circufor each of the nine circuits. Each court judges and a district judge. The Act providreview of right from the district courts in and from circuit courts of appeals in otdistrict court cases—notably criminal, divenue and patent cases—to the courts of tion. The appellate court could certify qCourt, or the Supreme Court could grThe Act’s effect on the Supreme Court decreased from 623 in 1890 to 379 in 18

Deference to tradition temporarily spar

but the Act abolished their appellate juristhemselves were abolished in 1911,75 the 

rate federal trial courts. The Act did not cuit riding, but made it optional, thus quronism, also in deference to tradition. Thof justices’ circuit riding is 28 U.S.C. § 42to allot its members “as circuit justices,” mmotions from their respective circuits.
Creatin

N

W E

W

E

W

M E

N

S

N

S W

E

W E

W

E

N

M

S

N

S

N

S

N

S

Population 36.5 millionStates 36Districts 54District Judgeships 46Circuits 9Supreme Court Justices 9 

6

7

9

8

Territories

5

1866

After the Civil War, Congress reduced the number of circuits to nine, adding Nevada to the new Ninth Circuit, formerly the Tenth. By law, CongrCourt by prohibiting appointments until the Court reached an authorized size of six associate justices, plus the Chief Justice. Congress restored the S1869, at the same time creating a circuit judge for each of the nine circuits “who shall reside in his circuit, and shall possess the same power and jurisdSupreme Court allotted to the circuit.” From 1867 to 1929, newly admitted states were added to either the Eighth Circuit or the Ninth Circuit.
Creating the Federal Judicial System

20

W

W

E E

N

M

S

N

S

N

S

N

N

S

W

E

N

S

W

E

N

S

W

E 

W 

W

W E

W

M E

N

S

N

S

Territories

5

9

8

7

6

4

PopulStates DistriDistriCircuCircuSupre

9

1891

By the year in which Congress created the Circuit Courts of Appeals, the United States numbered forty-four. Utah, Oklahoma, Arizona, and New Mnext quarter-century, making the continental United States complete. Arizona was added to the Ninth Circuit; the other three states joined the Eabolished the old circuit courts, which had exercised only trial jurisdiction since 1891, and added Hawaii to the Ninth Circuit. Puerto Rico was add
Creatin

1929

N

S

W E

W W E

E

N

S M

N

N

S

N

S

N M

S

S

W 

W

W

W E

W

M E

N

S

W

E

N

S

W

E

N

S

E

W

E

N

W

E

N

S

W

E

PoStaDiDiCiCiSu

9

9

6

10

8

5

7

9

By 1929, the Eighth Circuit had grown to thirteen states. Many plans had been proposed to address the growth of the western circuits; Congress 

Eighth into two, creating a new Tenth Circuit.
Creating the Federal Judicial System

22

1948

W

W E

E

N

M S

N

N

S

N

S

N M

S

S

W

W 

S

W

W

W E

W M E

N

S

W

E

N

S

W

E

N

S

W E

E

N

S

W

E W

E

N

N

S

W E

PSDDCCS

9

9

5 Canal Zone

6

8

10

9

7

5

The recodification of Title 28 regularized many features of the judicial system. The D.C. Circuit was formally specified (the U.S. Court of Appeals been established in 1893). The territories of Alaska, the Virgin Islands, and the Canal Zone were officially added to specific circuits.
Creatin

At the start of their third century, the federal courts differ strikingly in size and structure from their forerunners in 1891, andeven more from those of 1789. An expanding jurisdiction has generated a growing caseload, which in turn has generated a largeincrease in the size of the system. Since 1891, the judiciary has

grown almost tenfold, from 84 judges to 837 judgeships76 (compared with a fivefold increase in the first century from the 19 judges

originally authorized). In 1925, the federal judiciary employed about1,200 persons, including about 180 judges—roughly one out ofsix.77 Since then, the number of supporting personnel has increasedmuch more than the number of judges. In 1992, the federal courts

employed more than 27,000 persons; of those, slightly more than1,000 were district and circuit judges, both active and retired.78

There were also approximately 300 bankruptcy judges and 500

magistrate judges, whose terms are limited and whose positionsdid not even exist in 1925. The table on the following page givessome idea of the change in workload of the federal appellate anddistrict courts in the twentieth century.

The Supreme Court’s limited certiorari jurisdiction in the 1891

Act has been broadened by successive legislation, the most noteworthy being the Judiciary Act of 1925, and the most recent being

a 1988 act that eliminated most remaining categories of the Court’s

mandatory appellate jurisdiction.79 The number of courts of appeals increased from nine in 1891 to thirteen in 1982. The number of district courts increased from sixty-seven in 1891 to ninetyfour by 1971. The old system of bankruptcy referees was transformed in 1978 and 1984 into bankruptcy courts as units of the

district courts.80 Similarly, the system of U.S. commissioners—

dating back to a 1793 statute authorizing circuit courts to appoint

persons to take bail—was replaced in 1968 with the U.S. magisThe Federal Courts Today trate system.81 A 1925 statute82 created a 

federal courts, and a 1982 statute83 creaservices system. In 1964, Congress authoffices in the judicial districts.84 Permanen

executives have joined the federal courts

Since 1891, the federal courts have ach

tonomy from the executive branch.85 Cbudgetary and personnel responsibility Justice to the newly created AdministrCourts and directed the Administrative the supervision of the Judicial ConferenCircuit councils and conferences were a

These agencies and the creation of the offiand chief circuit judge, as a part of the 19

28, have bolstered the concept of internal tration. In 1967, Congress created the Feagency to provide federal court research anit created the U.S. Sentencing Commissumptive guidelines for the sentences of 
Creating the Federal Judicial System

24Sources: Administrative Office of the U.S. Courts, Statistics Division, Analysis and Reports Branch, History of the Authorization of Federal JudgStandards Used in Conducting Judgeship Surveys (February 1991), Table 7: Number of Authorized Judgeships, 1789–1990. Richard A. Posner, The F350–52 (Cambridge, Mass., Harvard University Press, 1985), Table B.2: Federal Court Case Filings, 1892–1983. U.S. Bureau of the Census, Statisti1992, at 8 (112th ed.) (Washington, D.C., 1992), Tables 1 & 2.

 Population District Court District Court Appellate AppealsYear (in millions) Judgeships Filings Judgeships Filed

191019201930194019501960197019801990

92.4

106.5123.1132.5152.3180.7205.1227.8250.0

94

100142193218245399515649

28,65277,696

135,630

68,13582,80580,891

122,624196,792251,166

1,6721,5232,8743,4462,6783,765

11,44023,15540,858

32324557656897

132167
Creatin

Many things that the First Judiciary Act required have been sweptaside. But other features it provided are so intrinsic to our systemof justice that we rarely give them a second thought: a separate setof courts for the national government, arranged geographicallyaccording to state boundaries, deciding matters of national interest.

When the Act was approaching its third year, Chief Justice John

Jay, sitting as a judge of the Circuit Court for the Eastern Circuit,undertook in his charge to the grand juries of that circuit to deConclusion scribe something of this new system of fe

created the federal courts faced a formibecause “no tribunals of the like kind anexisted in this country.” In that environmJay reminded the grand jurors—and his wter for contemporary efforts—that “the extice, as it were, to every man’s door, was in an expedient manner was far from bei
Creating the Federal Judicial System

26

W

E

N

S

W

E

W

W

W E

W M E

N

S

W

E

N

C

W

E

N

S

E

W 

W 

N

S

M

N

S

W

N

N

M S S

N

S

M

M W

W

E

E

N

N

S

S

M

W

E

N

N

S

W E

E

C

5

3

7 8

6

2

11

10

9

PoStaDiDiCiCiSu

Northern

Mariana

Islands

Guam

9

9

1993

In 1980, Congress renamed the Customs Court as the Court of International Trade, whose nine judges enjoy the tenure and salary protection of Artwas divided into the Fifth and Eleventh Circuits. In 1982, Congress created the Federal Circuit, with its own court of appeals, a jurisdictional rather the Court of Claims and the Court of Customs and Patent Appeals. The Canal Zone district court closed on March 31, 1982.
Creatin

1. Act of Sept. 24, 1789, 1 Stat. 73.

2. Paul M. Bator et al., Hart and Wechsler’s The Federal Courts and the

Federal System 20 (3d ed. 1988) [hereinafter Hart & Wechsler].

3. Quoted in Charles Warren, New Light on the History of the Federal Judiciary

Act of 1789, 37 Harv. L. Rev. 49, 54 (1923).

4. Late eighteenth-century attitudes toward judges and lawyers ran a wide

gamut, including strains of decided hostility. They are explored in Richard E.Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic, ch. 8

(1971).

5. Warren, supra note 3, at 56.

6. The Federalist No. 84 (Modern Lib. ed., 1937).

7. Charge to Grand Juries, in 3 The Public Papers and Correspondence of

John Jay 387, 395 (H. Johnston ed., 1891).

8. The Federalist No. 48 (Modern Lib. ed., 1937).

9. Quoted in Warren, supra note 3, at 115.10. The eleventh, finally ratified in 1992 as the Twenty-Seventh Amendment,

states: “No law, varying the compensation for the services of Senators and Representatives shall take effect, until after an election of Representatives shall haveintervened;” the twelfth, dealing with the number of representatives, has neverbeen ratified.

11. An excellent summary of the evolution of the Judiciary Act can be found

in David Eisenberg et al., The Birth of the Federal Court System, This Constitution, Winter 1987, at 18.

12. Act of Sept. 24, 1789, § 7, 1 Stat. 76.13. Id. § 17, 1 Stat. 83.14. Id. § 27, 1 Stat. 87.15. Id. § 35, 1 Stat. 92–93.

16. Act of Sept. 23, 1789, § 1, 1 Stat. 72.

17. Julius Goebel, Jr., Antecedents and Beginnings to 1801, vol. 1 of The

Oliver Wendell Holmes Devise, The History of the Supreme Court of the UnitedStates 472 (1971).

18. Act of Sept. 24, 1789, §§ 21, 22, 1 Stat. 83–85.

19. 1 Cranch 137 (1803).20. Act of Sept. 23, 1789, § 1, 1 Stat. 72.21. Felix Frankfurter & James Landis, The Business of the Supreme Court

109–13 (1928).

Notes

22. Act of Sept. 24, 1789, § 9, 1 Stat. 76–77.23. Act of Apr. 10, 1790, § 5, 1 Stat. 109, 111.24. Act of Sept. 24, 1789, § 11, 1 Stat. 78–79.

25. See Henry Friendly, The Historic Basis of Di

Rev. 483, especially at 497–99 (1928). For a somJohn Frank, Historical Bases of the Federal Judicial 

Probs. 3, 25 (1948).

26. Independent Chronicle, Boston, Sept. 16, 

note 3, at 52.

27. Act of Sept. 24, 1789, §§ 11, 34, 1 Stat. 78

28. The District of Wyoming, in the Tenth C

and Idaho, in the Ninth Circuit, in order to keep one judicial district. 28 U.S.C. § 131.

29. Act of Sept. 24, 1789, § 3, 1 Stat. 73–74. 

U.S.C. § 134(b).

30. Kathryn Turner, Federalist Policy and the Ju

Mary Q. 3, 11 (1965).

31. Letter from Nathanial Pendleton to Jam

Griffith J. McRee, 2 The Life and Correspond(1857).

32. N.Y. Times, Dec. 24, 1865, quoted in Kerm

Crucible for Nationalizing the Lower Federal Courts, P

33. This was Attorney General Randolph’s ch

port on the judicial system (p. 8); his report then r

in Frankfurter & Landis, supra note 21, at 19.

34. A helpful analysis of these charges is provi

preme Court as Republican Schoolmaster, 1967 Sup. 

35. Justice Iredell, quoted in Charles Warren, 1 T

States History 86 (rev. ed. 1926).

36. Gouverneur Morris, in 1802, quoted in Fra

21, at 17.

37. Letter of Nov. 7, 1792, to Congress in 1 Am

Miscellaneous 51–52.

38. Act of Sept. 24, 1789, § 4, 1 Stat. 74–75.39. Justice Iredell explained the practice in Wa

n.2 (1796).
Creating the Federal Judicial System

28

40. Act of Mar. 2, 1793, 1 Stat. 333.

41. Act of Feb. 13, 1801, 2 Stat. 89 (“To Provide for the More Convenient

Organization of the Courts of the United States”).

42. Act of Mar. 5, 1802, 2 Stat. 132.

43. Act of Apr. 29, 1802, 2 Stat. 118 (1802) (“To Amend the Judicial System

of the United States”). The Supreme Court upheld this act in Stuart v. Laird, 1Cranch 299 (1803).

44. Act of Mar. 2, 1855, 10 Stat. 631 (“To Establish a Circuit Court in and for

the State of California”).

45. Act of March 3, 1863, 12 Stat. 794 (1863) (“To provide Circuit Courts for

the Districts of California and Oregon . . . ”).

46. This conclusion is based on the tables of justices and the reporter’s prefatory notes in volumes 1 and 2 of Wallace’s Supreme Court Reports.

47. Act of July 23, 1866, 14 Stat. 209 (“To Fix the Number of Justices of the

Supreme Court of the United States, and to Change Certain Judicial Circuits”).

48. Stanley Kutler, Judicial Power and Reconstruction Politics 49–63 (1968).

49. Act of Apr. 10, 1869, 16 Stat. 44. See also the front pages of volumes 3 to

9 of Wallace’s Supreme Court Reports.

50. Message to Congress of Dec. 3, 1861, in 5 The Works of Abraham Lincoln 41–42 (R. Basler ed., 1953).

51. Tony Freyer, Forums of Order: The Federal Courts and Business in

American History chs. 1–5 (1979); Kermit L. Hall, Circuit Courts, in 1 Encyclopedia of the American Constitution 253–54 (Leonard W. Levy et al. eds., 1986).

52. Specific provisions are in Hart & Wechsler, supra note 2, at 36–37.

53. See generally Harold Hyman & William Wiecek, Equal Justice Under

Law: Constitutional Development, 1835–1875, chs. 8–11 (1982).

54. Freyer, supra note 51, at 125.

55. Act of Mar. 3, 1875, 18 Stat. 470.

56. 18 Stat. 335.

57. Kutler, supra note 48, at 159.

58. Civil Rights Cases, 109 U.S. 3 (1883).

59. Frankfurter & Landis, supra note 21, at 65.

60. Hart & Wechsler, supra note 2, at 37.

61. Freyer, supra note 51, at 114.

62. Act of Feb. 16, 1875.

63. Frankfurter & Landis, supra note 21, at 101–02.

64. Act of Mar. 3, 1887.

65. Frankfurter & Landis, supra note 21, at 60

66. Richard A. Posner, The Federal Courts: C

pp. 354–55 (1985).

67. Frankfurter & Landis, supra note 21, at 79

68. Id. at 82–83.

69. Id. at 85.

70. Congressman Moulton of Illinois, quoted i

71. Congressman Robinson of Massachusetts, 72. Act of Mar. 3, 1891, 26 Stat. 826.

73. Henry Adams, The Education of Henry A74. Frankfurter & Landis, supra note 21, at 10

75. Act of Mar. 3, 1911, § 301, 36 Stat. 1087, 76. Posner, supra note 66, at Table B.3, p. 355

ministrative Office of the U.S. Courts, Annual R

table 17.

77. Posner, supra note 66, at 27.

78. Administrative Office of the U.S. Courts, A

1992, at table 16.

79. Pub L. No. 100-352, codified at 28 U.S.C

80. See 28 U.S.C. §§ 151, 152.

81. Peter McCabe, The Federal Magistrate Act 

342 (1979).

82. Act of Mar. 5, 1925.

83. Pretrial Services Act of 1982, Pub. L. No. 

Stat. 1136.

84. Criminal Justice Act of 1964, Pub. L. No. 8

Stat. 684.

85. The Administrative Office, circuit councils

all created by An Act to Provide for the AdminCourts, and for Other Purposes, 53 Stat. 1223 (19was created in 1922 as the Conference of Senior Ctitle it retained until 1948.

86. See Russell R. Wheeler, Origins of the Ele

ernance (Federal Judicial Center 1992).

87. 28 U.S.C. § 991.

88. Charge to Grand Juries, in 3 The Public P

John Jay 387, 390–91 (H. Johnston ed., 1891).