ARTICLE III

JUDICIAL DEPARTMENT

CONTENTS

Page

Section 1. Judicial Power, Courts, Judges ............................................................................... 663

Organization of Courts, Tenure, and Compensation of Judges ...................................... 663

One Supreme Court .................................................................................................... 664

Inferior Courts ............................................................................................................. 665

Abolition of Courts ............................................................................................... 666

Compensation .............................................................................................................. 667

Diminution of Salaries ......................................................................................... 667

Courts of Specialized Jurisdiction ............................................................................. 668

Legislative Courts ....................................................................................................... 670

Power of Congress Over Legislative Courts ...................................................... 672

Review of Legislative Courts by Supreme Court .............................................. 672

The “Public Rights” Distinction .......................................................................... 673

Constitutional Status of the Court of Claims and the Courts of Customs and

Patent Appeals .................................................................................................. 677

Status of Courts of the District of Columbia ..................................................... 678

Bankruptcy Courts ............................................................................................... 680

Agency Adjudication ............................................................................................. 683

Noncourt Entities in the Judicial Branch ................................................................. 685

Judicial Power .................................................................................................................... 686

Characteristics and Attributes of Judicial Power .................................................... 686

“Shall Be Vested” ................................................................................................. 687

Finality of Judgment as an Attribute of Judicial Power ......................................... 688

Award of Execution .............................................................................................. 690

Judicial Immunity from Suit ...................................................................................... 692

Ancillary Powers of Federal Courts .................................................................................. 694

The Contempt Power .................................................................................................. 694

Categories of Contempt ....................................................................................... 694

The Act of 1789 .................................................................................................... 696

An Inherent Power ............................................................................................... 697

First Amendment Limitations on the Contempt Power ................................... 698

Due Process Limitations on Contempt Power: Right to Notice and to a Hearing Versus Summary Punishment .................................................................. 700

Due Process Limitations on Contempt Power: Right to Jury Trial ................. 702

Due Process Limitations on Contempt Powers: Impartial Tribunal ............... 703

Contempt by Disobedience of Orders ................................................................. 705

Contempt Power in Aid of Administrative Power ............................................. 705

Sanctions Other Than Contempt ............................................................................... 706

Power to Issue Writs: The Act of 1789 ...................................................................... 707

Common Law Powers of District of Columbia Courts ...................................... 708

Habeas Corpus: Congressional and Judicial Control ........................................ 709

Habeas Corpus: The Process of the Writ ........................................................... 713

Congressional Limitation of the Injunctive Power ................................................... 715

Injunctions Under the Emergency Price Control Act of 1942 .......................... 717

659
Section 1. Judicial Power, Courts, Judges—Continued

Ancillary Powers of Federal Courts—Continued

The Rule-Making Power and Powers Over Process ................................................. 718

Limitations to The Rule Making Power ............................................................. 719

Appointment of Referees, Masters, and Special Aids .............................................. 720

Power to Admit and Disbar Attorneys ...................................................................... 721

Section 2. Judicial Power and Jurisdiction ............................................................................. 722

Clause 1. Cases and Controversies; Grants of Jurisdiction ........................................... 722

Judicial Power and Jurisdiction-Cases and Controversies ...................................... 722

The Two Classes of Cases and Controversies .................................................... 723

Adverse Litigants ................................................................................................. 725

Collusive and Feigned Suits ........................................................................ 727

Stockholder Suits .......................................................................................... 728

Substantial Interest: Standing ............................................................................ 729

Generalized or Widespread Injuries ............................................................ 730

Taxpayer Suits .............................................................................................. 731

Constitutional Standards: Injury in Fact, Causation, and

Redressability ............................................................................................ 734

Prudential Standing Rules ........................................................................... 743

Standing to Assert the Rights of Others .................................................... 744

Organizational Standing .............................................................................. 747

Standing of States to Represent Their Citizens ........................................ 748

Standing of Members of Congress ............................................................... 749

Standing to Challenge Lawfulness of Governmental Action .................... 752

The Requirement of a Real Interest ................................................................... 755

Advisory Opinions ......................................................................................... 756

Declaratory Judgments ................................................................................ 757

Ripeness ......................................................................................................... 761

Mootness ........................................................................................................ 764

Retroactivity Versus Prospectivity .............................................................. 769

Political Questions ............................................................................................... 773

Origins and Development ............................................................................. 774

The Doctrine Before Baker v. Carr ............................................................. 776

Baker v. Carr ................................................................................................. 779

Powell v. McCormack .................................................................................... 781

The Doctrine Reappears ............................................................................... 782

Judicial Review ............................................................................................................ 785

The Establishment of Judicial Review ............................................................... 785

Marbury v. Madison ...................................................................................... 788

Judicial Review and National Supremacy .................................................. 791

Limitations on the Exercise of Judicial Review ................................................ 792

Constitutional Interpretation ....................................................................... 792

Prudential Considerations ............................................................................ 794

The Doctrine of “Strict Necessity” ............................................................... 795

The Doctrine of Clear Mistake .................................................................... 796

Exclusion of Extra-Constitutional Tests ..................................................... 797

Presumption of Constitutionality ................................................................ 797

Disallowance by Statutory Interpretation .................................................. 798

Stare Decisis in Constitutional Law ........................................................... 798

Conclusion ..................................................................................................... 800

Jurisdiction of Supreme Court and Inferior Federal Courts ................................... 801

Cases Arising Under the Constitution, Laws, and Treaties of the

United States .................................................................................................... 801

660 ART. III—JUDICIAL DEPARTMENT
Section 2. Judicial Power and Jurisdiction—Continued

Clause 1. Cases and Controversies; Grants of Jurisdiction—Continued

Development of Federal Question Jurisdiction .......................................... 801

When a Case Arises Under .......................................................................... 802

Removal From State Court to Federal Court ............................................. 803

Corporations Chartered by Congress .......................................................... 805

Federal Questions Resulting from Special Jurisdictional Grants ............ 806

Civil Rights Act Jurisdiction ........................................................................ 807

Pendent Jurisdiction ..................................................................................... 808

Protective Jurisdiction .................................................................................. 810

Supreme Court Review of State Court Decisions ...................................... 811

Suits Affecting Ambassadors, Other Public Ministers, and Consuls ............... 814

Cases of Admiralty and Maritime Jurisdiction ................................................. 815

Power of Congress To Modify Maritime Law ............................................. 817

Admiralty and Maritime Cases ................................................................... 819

Admiralty Proceedings ................................................................................. 823

Territorial Extent of Admiralty and Maritime Jurisdiction ...................... 824

Admiralty and Federalism ........................................................................... 825

Cases to Which the United States Is a Party ................................................... 831

Right of the United States to Sue ............................................................... 831

Suits Against States ..................................................................................... 833

Immunity of the United States From Suit ................................................. 834

Suits Against United States Officials .......................................................... 836

Suits Against Government Corporations .................................................... 839

Suits Between Two or More States .................................................................... 839

Boundary Disputes: The Law Applied ........................................................ 840

Modern Types of Suits Between States ...................................................... 841

Cases of Which the Court Has Declined Jurisdiction ............................... 843

The Problem of Enforcement: Virginia v. West Virginia ........................... 844

Enforcement Authority Includes Ordering Disgorgement and Reformation of Certain Agreements ...................................................................... 845

Controversies Between a State and Citizens of Another State ....................... 846

Jurisdiction Confined to Civil Cases ........................................................... 846

The State’s Real Interest .............................................................................. 847

The State as Parens Patriae ........................................................................ 847

Controversies Between Citizens of Different States ......................................... 850

The Meaning of “State” and the District of Columbia Problem ............... 851

Citizenship of Natural Persons .................................................................... 852

Citizenship of Corporations .......................................................................... 853

Manufactured Diversity ............................................................................... 854

The Law Applied in Diversity Cases ........................................................... 856

Controversies Between Citizens of the Same State Claiming Land Under Grants

of Different States ............................................................................................ 863

Controversies Between a State, or the Citizens Thereof, and Foreign States,

Citizens, or Subjects ......................................................................................... 863

Suits by Foreign States ................................................................................ 864

Indian Tribes ................................................................................................. 865

Narrow Construction of the Jurisdiction .................................................... 865

Clause 2. Original and Appellate Jurisdiction ................................................................. 866

The Original Jurisdiction of the Supreme Court ..................................................... 866

Power of Congress to Control the Federal Courts ................................................... 869

The Theory of Plenary Congressional Control .................................................. 869

Appellate Jurisdiction ................................................................................... 869

ART. III—JUDICIAL DEPARTMENT 661
Section 2. Judicial Power and Jurisdiction—Continued

Clause 2. Original and Appellate Jurisdiction—Continued

Jurisdiction of the Inferior Federal Courts ................................................ 872

Congressional Control Over Writs and Processes ...................................... 874

The Theory Reconsidered .................................................................................... 876

Express Constitutional Restrictions on Congress ...................................... 880

Conclusion ..................................................................................................... 881

Federal-State Court Relations ................................................................................... 882

Problems Raised by Concurrency ....................................................................... 882

The Autonomy of State Courts ........................................................................... 883

Noncompliance With and Disobedience of Supreme Court Orders by State

Courts ......................................................................................................... 883

Use of State Courts in Enforcement of Federal Law ................................ 885

State Interference with Federal Jurisdiction ............................................. 887

Conflicts of Jurisdiction: Rules of Accommodation ........................................... 888

Comity ............................................................................................................ 888

Abstention ...................................................................................................... 888

Exhaustion of State Remedies ..................................................................... 890

Anti-Injunction Statute ................................................................................ 891

Res Judicata .................................................................................................. 892

Three-Judge Court Act ................................................................................. 893

Conflicts of Jurisdiction: Federal Court Interference with State Courts ........ 894

Federal Restraint of State Courts by Injunctions ...................................... 895

Habeas Corpus: Scope of the Writ ............................................................... 900

Removal ......................................................................................................... 911

Clause 3. Trial By Jury ...................................................................................................... 914

In General .................................................................................................................... 914

Section 3. Treason ...................................................................................................................... 914

Clause 1. Definition and Limitations ............................................................................... 914

Treason ......................................................................................................................... 914

Levying War .......................................................................................................... 915

The Burr Trial ............................................................................................... 916

Aid and Comfort to the Enemy ........................................................................... 917

The Cramer Case .......................................................................................... 917

The Haupt Case ............................................................................................ 917

The Kawakita Case ...................................................................................... 919

Doubtful State of the Law of Treason Today ..................................................... 919

Clause 2. Punishment ........................................................................................................ 920

Corruption of the Blood and Forfeiture .................................................................... 920

662 ART. III—JUDICIAL DEPARTMENT
JUDICIAL DEPARTMENT

ARTICLE III

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.

ORGANIZATION OF COURTS, TENURE, AND

COMPENSATION OF JUDGES

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 Wil1 M. 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 M. Farrand, supra at 21–22. It is possible that this version may not be an

accurate copy, see 3 id. at 593–94.

4 1 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.

663
son 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 Officer 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

One Supreme Court

While the 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

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 Article II, Judges, supra.

11 Id. 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 BUSISec. 1—Judicial Power, Courts, Judges

664 ART. III—JUDICIAL DEPARTMENT
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,

NESS 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),

Sec. 1—Judicial Power, Courts, Judges

ART. III—JUDICIAL DEPARTMENT 665
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

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).

Sec. 1—Judicial Power, Courts, Judges

666 ART. III—JUDICIAL DEPARTMENT
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.

Compensation

Diminution of Salaries.—“The Compensation Clause has its

roots in the longstanding Anglo-American tradition of an independent Judiciary. A Judiciary free from control by the Executive and

the Legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other

branches of government.” 29 Thus, once a salary figure has gone into

effect, Congress may not reduce it nor rescind any part of an increase, although prior to the time of its effectiveness Congress may

repeal a promised increase. This latter holding was rendered in the

context of a statutory salary plan for all federal officers and employees under which increases went automatically into effect on a specified date. Four years running, Congress interdicted the pay increases, but in two instances the increases had become effective,

raising the barrier of this clause.30

Also implicating this clause was a Depression-era appropriations act reducing “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 a fixed amount.

Although this provision presented no constitutional questions, it required an interpretation as to which judges were excepted. Judges

in the District of Columbia were held protected by Article III,31 but

the salaries of the judges of the Court of Claims, a legislative court,

were held subject to the reduction.32

In Evans v. Gore,

33 the Court invalidated the application of a

1919 income tax law to a sitting federal judge, over the strong dis28 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 United States v. Will, 449 U.S. 200, 217–18 (1980). Hamilton, writing in THE

FEDERALIST, No. 79 (J. Cooke ed., 1961), 531, emphasized that “[i]n the general course

of human nature, a power over a man’s subsistence amounts to a power over his

will.”

30 United States v. Will, 449 U.S. 200, 224–30 (1980). In one year, the increase

took effect on October 1, although the President signed the bill reducing the amount

during the day of October 1. The Court held that the increase had gone into effect

by the time the reduction was signed. Will is also authority for the proposition that

a general, nondiscriminatory reduction, affecting judges but not aimed solely at them,

is covered by the clause. Id. at 226.

31 O’Donoghue v. United States, 289 U.S. 516 (1933).

32 Williams v. United States, 289 U.S. 553 (1933). But see Glidden Co. v. Zdanok,

370 U.S. 530 (1962).

33 253 U.S. 245 (1920).

Sec. 1—Judicial Power, Courts, Judges

ART. III—JUDICIAL DEPARTMENT 667
sent of Justice Holmes, joined by Justice Brandeis. This ruling was

extended in Miles v. Graham 34 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

was in effect overruled in O’Malley v. Woodrough,

35 where the Court

upheld section 22 of the Revenue Act of 1932, 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.36 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.” 37

Formally overruling Evans v. Gore, the Court in United States

v. Hatter reaffirmed the principle that judges should “share the tax

burdens borne by all citizens.” 38 “[T]he potential threats to judicial

independence that underlie [the Compensation Clause] cannot justify a special judicial exemption from a commonly shared tax.” 39

The Medicare tax, extended to all federal employees in 1982, is such

a non-discriminatory tax that may be applied to federal judges, the

Court held. The 1983 extension of a Social Security tax to thensitting judges was “a different matter,” however, because the judges

were required to participate while almost all other federal employees were given a choice about participation.40 Congress had not cured

the constitutional violation by a subsequent enactment that raised

judges’ salaries by an amount greater than the amount of Social

Security taxes that they were required to pay.41

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 Presi34 268 U.S. 501 (1925).

35 307 U.S. 277 (1939).

36 307 U.S. at 278–82.

37 307 U.S. at 282.

38 532 U.S. 557, 571 (2001).

39 532 U.S. at 571.

40 532 U.S. at 572.

41 532 U.S. at 578–81.

Sec. 1—Judicial Power, Courts, Judges

668 ART. III—JUDICIAL DEPARTMENT
dent 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 1910,42 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, 1942.43 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.44

Other specialized courts are the Court of Appeals for the Federal Circuit, which is in many respects like the geographic circuits.

Created in 1982,45 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,

42 Ch. 309, 36 Stat. 539.

43 56 Stat. 23, §§ 31–33.

44 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. 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. 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. 102–572, 106 Stat. 4506.

Another similar specialized court was created by § 209 of the Regional Rail Reorganization Act, Pub. L. 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).

45 By the Federal Courts Improvement Act of 1982, Pub. L. 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.

Sec. 1—Judicial Power, Courts, Judges

ART. III—JUDICIAL DEPARTMENT 669
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

1980.46 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.47

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.48 Even greater specialization was provided by

the special court created by the Ethics in Government Act; 49 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.

Legislative Courts

Legislative courts, so-called because they are created by Congress pursuant to its general legislative powers, have comprised a

significant part of the federal judiciary.50 The distinction between

constitutional courts and legislative courts was first made in American Ins. Co. v. Canter,

51 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. Chief Justice Marshall wrote 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

46 Pub. L. 96–417, 94 Stat. 1727.

47 28 U.S.C. § 1407.

48 Pub. L. 95–511, 92 Stat. 1788, 50 U.S.C. § 1803.

49 Ethics in Government Act, Title VI, Pub. L. 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. 103–270, § 2, 108 Stat. 732 (1994).

50 In Freytag v. Commissioner, 501 U.S. 868 (1991), the Court held Article I courts

to be “Courts of Law” for purposes of the appointments clause. Art. II, § 2, cl. 2. See

id. at 888–892 (majority opinion), and 901–914 (Justice Scalia dissenting).

51 26 U.S. (1 Pet.) 511 (1828).

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670 ART. III—JUDICIAL DEPARTMENT
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 3d 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.” 52 The Court went on to hold that admiralty jurisdiction can be exercised in the states only in those courts that are

established pursuant to 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.” 53

Canter postulated a simple proposition: “Constitutional courts

exercise the judicial power described in Art. III of the Constitution;

legislative courts do not and cannot.” 54 A two-fold difficulty attended this proposition, however. Admiralty jurisdiction is included

within the “judicial power of the United States” specifically in Article III, requiring an explanation how this territorial court could

receive and exercise it. Second, if territorial courts could not exercise Article III power, how might their decisions be subjected to appellate review in the Supreme Court, or indeed in other Article III

courts, which could exercise only Article III judicial power? 55 Moreover, if in fact some “judicial power” may be devolved upon courts

not having the constitutional security of tenure and salary, what

prevents Congress from undermining those values intended to be

protected by Article III’s guarantees by giving jurisdiction to unprotected entities that, being subjected to influence, would be bent to

the popular will?

Attempts to explain or to rationalize the predicament or to provide a principled limiting point have resulted from Canter to the

present in “frequently arcane distinctions and confusing precedents” spelled out in cases comprising “landmarks on a judicial ‘darkling plain’ where ignorant armies have clashed by night, as Justice

52 26 U.S. at 546.

53 26 U.S. at 546. In Glidden Co. v. Zdanok, 370 U.S. 530, 544–45 (1962), Justice Harlan asserted that Chief Justice Marshall in Canter “did not mean to imply

that the case heard by the Key West court was not one of admiralty jurisdiction

otherwise properly justiciable in a Federal District Court sitting in one of the States. . . .

All the Chief Justice meant . . . is that in the territories cases and controversies

falling within the enumeration of Article III may be heard and decided in courts

constituted without regard to the limitations of that article. . . .”

54 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 106

(1982) (Justice White dissenting).

55 That the Supreme Court could review the judgments of territorial courts was

established in Durousseau v. United States, 10 U.S. (6 Cr.) 307 (1810). See also Benner

v. Porter, 50 U.S. (9 How.) 235, 243 (1850); Clinton v. Englebrecht, 80 U.S. (13 Wall.)

434 (1872); Balzac v. Porto Rico, 258 U.S. 298 (1922).

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ART. III—JUDICIAL DEPARTMENT 671
White apparently believes them to be.” 56 Nonetheless, Article I courts

are quite common entities in our judicial system.57

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 diminution of salaries. Congress may limit tenure

to a term of years, as it has done in acts creating territorial courts

and the Tax Court; it may subject the judges of legislative courts

to removal by the President; 58 and it may reduce their salaries during their terms.59 Similarly, it follows that Congress can vest in legislative courts nonjudicial functions of a legislative or advisory nature and deprive their judgments of finality. Thus, in Gordon v. United

States,

60 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,

61 the Court sustained the act conferring powers on the Florida

territorial court to examine claims rising under the Spanish treaty

and to report its decisions and the evidence on which they were

based to the Secretary of the Treasury for subsequent action. “A

power of this description,” the Court 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.” 62

Review of Legislative Courts by Supreme Court.—Chief Justice Taney’s view, which would have been expressed in Gordon,

63

that the judgments of legislative courts could never be reviewed by

56 Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 90, 91

(1982) (Justice Rehnquist concurring).

57 In addition to the local courts of the District of Columbia, the bankruptcy

courts, and the U.S. Court of Federal Claims, considered infra, these include the

United States Tax Court, formerly an independent agency in the Treasury Department, but by the Tax Reform Act of 1969, § 951, 83 Stat. 730, 26 U.S.C. § 7441,

made an Article I court of record, the Court of Veterans Appeals, Act of Nov. 18,

1988, 102 Stat. 4105, 38 U.S.C. § 4051, and the courts of the territories of the United

States. Magistrate judges are adjuncts of the District Courts, see infra, and perform

a large number of functions, usually requiring the consent of the litigants. See Gomez

v. United States, 490 U.S. 858 (1989); Peretz v. United States, 501 U.S. 923 (1991).

The U.S. Court of Military Appeals, strictly speaking, is not part of the judiciary

but is a military tribunal, 10 U.S.C. § 867, although Congress designated it an Article I tribunal and has given the Supreme Court certiorari jurisdiction over its decisions.

58 McAllister v. United States, 141 U.S. 174 (1891).

59 United States v. Fisher, 109 U.S. 143 (1883); Williams v. United States, 289

U.S. 553 (1933).

60 69 U.S. (2 Wall.) 561 (1864).

61 54 U.S. (13 How.) 40 (1852).

62 54 U.S. at 48.

63 The opinion in Gordon v. United States, 69 U.S. (2 Wall.) 561 (1864), had

originally been prepared by Chief Justice Taney, but, following his death and rearguSec. 1—Judicial Power, Courts, Judges

672 ART. III—JUDICIAL DEPARTMENT
the Supreme Court, was tacitly rejected in De Groot v. United States,

64

in which the Court took jurisdiction from a final judgment of the

Court of Claims. Since the decision in this case, the authority of

the 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. The Supreme Court will neither review the

administrative proceedings of legislative courts nor entertain appeals from the advisory or interlocutory decrees of such a body.65

But, in proceedings before a legislative court that are judicial in

nature, admit of a final judgment, and involve the performance of

judicial functions and therefore the exercise of judicial power, the

Court may be vested with appellate jurisdiction.66

The “Public Rights” Distinction.—A major delineation of the

distinction between Article I courts and Article III courts appears

in Murray’s Lessee v. Hoboken Land & Improvement Co.67 At issue

was a summary procedure, without benefit of the courts, for the collection by the United States of moneys claimed to be due from one

of its own customs collectors. It was argued that the assessment

and collection was a judicial act carried out by nonjudicial officers

and was thus invalid under Article III. Accepting that the acts complained of were judicial, the Court nonetheless sustained the act

by distinguishing between any act, “which, from its nature, is the

subject of a suit at the common law, or in equity, or admiralty,” which,

in other words, is inherently judicial, and other acts that Congress

may vest in courts or in other agencies. “[T]here are matters, involving public rights, which may be presented in such form that the

judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not

bring within the cognizance of the courts of the United States, as

it may deem proper.” 68

ment of the case, the Court issued the cited opinion. The Court later directed the

publishing of Taney’s original opinion at 117 U.S. 697. See also United States v. Jones,

119 U.S. 477, 478 (1886), in which the Court noted that the official report of Chief

Justice Chase’s Gordon opinion and the Court’s own record showed differences and

quoted the record.

64 72 U.S. (5 Wall.) 419 (1867). See also United States v. Jones, 119 U.S. 477

(1886).

65 E.g., Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927); Federal Radio Comm’n v. General Elec. Co., 281 U.S. 464 (1930); D. C. Court of Appeals

v. Feldman, 460 U.S. 462 (1983). See Glidden Co. v. Zdanok, 370 U.S. 530, 576, 577–

579 (1962).

66 Pope v. United States, 323 U.S. 1, 14 (1944); D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).

67 59 U.S. (18 How.) 272 (1856).

68 59 U.S. at 284.

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ART. III—JUDICIAL DEPARTMENT 673
In essence, the Court distinguished between those acts that historically had been determined by courts and those that had both

been historically resolved by executive or legislative acts and comprehended matters that arose between the government and others.

Thus, Article I courts “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.” 69 Among the matters susceptible of judicial determination, but

not requiring it, are claims against the United States,70 the disposal of public lands and claims arising therefrom,71 questions concerning membership in the Indian tribes,72 and questions arising

out of the administration of the customs and internal revenue laws.73

Other courts similar to territorial courts, such as consular courts

and military courts martial, may be justified on like grounds.74

The impact of the “public rights” distinction, however, has varied dramatically over time. In Crowell v. Benson,

75 the Court approved an administrative scheme for determining, subject to judicial review, maritime employee compensation claims, although it

acknowledged that the case involved “one of private right, that is,

of the liability of one individual to another under the law as defined.” 76 This scheme was permissible, the Court said, because in

cases arising out of congressional statutes, an administrative tribunal could make findings of fact and render an initial decision on

legal and constitutional questions, as long as there is adequate review in a constitutional court.77 The “essential attributes” of decisions must remain in an Article III court, but so long as it does,

Congress may use administrative decisionmakers in those private

rights cases that arise in the context of a comprehensive federal

69 Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929).

70 Gordon v. United States, 117 U.S. 697 (1864) (published 1885); McElrath v.

United States, 102 U.S. 426 (1880); Williams v. United States, 289 U.S. 553 (1933).

On the status of the then-existing Court of Claims, see Glidden Co. v. Zdanok, 370

U.S. 530 (1962).

71 United States v. Coe, 155 U.S. 76 (1894) (Court of Private Land Claims).

72 Wallace v. Adams, 204 U.S. 415 (1907); Stephens v. Cherokee Nation, 174 U.S.

445 (1899) (Choctaw and Chickasaw Citizenship Court).

73 Old Colony Trust Co. v. Commissioner, 279 U.S. 716 (1929); Ex parte Bakelite Corp., 279 U.S. 438 (1929).

74 See In re Ross, 140 U.S. 453 (1891) (consular courts in foreign countries). Military courts may, on the other hand, be a separate entity of the military having no

connection to Article III. Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1858).

75 285 U.S. 22 (1932).

76 285 U.S. at 51. On the constitutional problems of assignment to an administrative agency, see Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977); NLRB v. Jones

& Laughlin Steel Corp., 301 U.S. 1, 48 (1937).

77 301 U.S. at 51–65.

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674 ART. III—JUDICIAL DEPARTMENT
statutory scheme.78 In Northern Pipeline Constr. Co. v. Marathon

Pipe Line Co., discussed infra, the Court reasserted that the distinction between “public rights” and “private rights” was still important in determining which matters could be assigned to legislative

courts and administrative agencies and those that could not be, but

there was much the Court plurality did not explain.79

The Court continued to waver with respect to the importance

of the public rights/private rights distinction. In two cases following Marathon, it rejected the distinction as “a bright line test,” and

instead focused on “substance”—i.e., on the extent to which the particular grant of jurisdiction to an Article I court threatened judicial

integrity and separation of powers principles.80 Nonetheless, the Court

indicated that the distinction may be an appropriate starting point

for analysis. Thus, the fact that private rights traditionally at the

core of Article III jurisdiction are at stake leads the Court to a “searching” inquiry as to whether Congress is encroaching inordinately on

judicial functions, whereas the concern is not so great where “public” rights are involved.81

However, in a subsequent case, Granfinanciera, S.A. v. Nordberg,

the distinction was pronounced determinative not only of the issue

whether a matter could be referred to a non-Article III tribunal,

but whether Congress could dispense with civil jury trials.82 In so

78 301 U.S. at 50, 51, 58–63. Thus, Article III concerns were satisfied by a review of the agency fact finding upon the administrative record. Id. at 63–65. The

plurality opinion denied the validity of this approach in Northern Pipeline Constr.

Co. v. Marathon Pipe Line Co., 458 U.S. 50, 86 n.39 (1982), although Justice White

in dissent accepted it. Id. at 115. The plurality, rather, rationalized Crowell and subsequent cases on an analysis seeking to ascertain whether agencies or Article I tribunals were “adjuncts” of Article III courts, that is, whether Article III courts were

sufficiently in charge to protect constitutional values. Id. at 76–87.

79 458 U.S. 50, 67–70 (1982) (plurality opinion). Thus, Justice Brennan observes that “a matter of public rights must at a minimum arise ‘between the government and others,’ ” but “that the presence of the United States as a proper party to

the proceeding is a necessary but not sufficient means of distinguishing ‘private rights’

from ‘public rights.’ ” Id. at 69 & n.23. Crowell v. Benson, however, remained an embarrassing presence.

80 Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568 (1985); CFTC v.

Schor, 478 U.S. 833 (1986). The cases also abandoned the principle that the Federal

Government must be a party for the case to fall into the “public rights” category.

Thomas, 473 U.S. at 586; see also id. at 596–99 (Justice Brennan concurring).

81 “In essence, the public rights doctrine reflects simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that

‘could be conclusively determined by the Executive and Legislative Branches,’ the

danger of encroaching on the judicial powers is reduced.” Thomas v. Union Carbide

Agric. Products Co., 473 U.S. 568, 589 (1985) (quoting Northern Pipeline, 458 U.S.

at 68 (plurality opinion)).

82 492 U.S. 33, 51–55 (1989). A Seventh Amendment jury-trial case, the decision

is critical to the Article III issue as well, because, as the Court makes clear what

was implicit before, whether Congress can submit a legal issue to an Article I tribunal and whether it can dispense with a civil jury on that legal issue must be anSec. 1—Judicial Power, Courts, Judges

ART. III—JUDICIAL DEPARTMENT 675
doing, however, the Court vitiated much of the core content of “private” rights as a concept and left resolution of the central issue to

a balancing test. That is, “public” rights are, strictly speaking, those

in which the cause of action inheres in or lies against the Federal

Government in its sovereign capacity, the understanding since Murray’s Lessee. However, to accommodate Crowell v. Benson, Atlas Roofing, and similar cases, seemingly private causes of action between

private parties will also be deemed “public” rights when Congress,

acting for a valid legislative purpose pursuant to its Article I powers, fashions a cause of action that is analogous to a common-law

claim and integrates it so closely into a public regulatory scheme

that it becomes a matter appropriate for agency resolution with limited involvement by the Article III judiciary.83

In Stern v. Marshall,

84 the Court shifted away from the functionalism of previous cases and back towards the formalism of Northern Pipeline. Specifically, the Stern Court held that Article III prohibited a bankruptcy court from exercising jurisdiction over a common

law fraudulent interference with a gift claim because it did not fall

under the public rights exception.85 The Court limited the public

rights exception to claims deriving from a “federal regulatory scheme”

or claims in which “an expert government agency is deemed essential to a limited regulatory objective.” 86 In rejecting the application

of the public rights exception to the fraudulent interference claim,

the Court observed that the claim was not one that could be “pursued only by grace of the other branches” or could have been “determined exclusively” by the executive or legislative branches.87 Additionally, the underlying claim did not “flow from a federal regulatory

scheme” and was not limited to a “particularized area of law.”

88 Because the claim involved the “most prototypical exercise of judicial

power,” adjudication of a common law cause of action not created

swered by the same analysis. “[T]he question whether the Seventh Amendment permits Congress to assign its adjudication to a tribunal that does not employ juries as

factfinders requires the same answer as the question whether Article III allows Congress to assign adjudication of that cause of action to a non-Article III tribunal . . . .”

Id. at 52–53.

83 492 U.S. at 52–54. The Court reiterated that the government need not be a

party as a prerequisite to a matter being of “public right.” Id. at 54. Concurring,

Justice Scalia argued that public rights historically were and should remain only

those matters to which the Federal Government is a party. Id. at 65. See also Stern

v. Marshall, 564 U.S. ___, No. 10–179, slip op. at 25 (2011) (“[W]hat makes a right

‘public’ rather than private is that the right is integrally related to particular Federal Government action”).

84 See 564 U.S. ___, No. 10–179, slip op. (2011).

85 Id. at 22.

86 Id. at 25.

87 Id. at 27.

88 Id.

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676 ART. III—JUDICIAL DEPARTMENT
by federal law, the Court rejected the bankruptcy courts’ exercise

of jurisdiction over the claim as violating Article III.89

Constitutional Status of the Court of Claims and the Courts

of Customs and Patent Appeals.—Although the Supreme Court

long accepted the Court of Claims as an Article III court,90 it later

ruled that court to be an Article I court and its judges without constitutional protection of tenure and salary.91 Then, in the 1950s, Congress statutorily declared that the Court of Claims, the Customs

Court, and the Court of Customs and Patent Appeals were Article

III courts,92 a questionable act under the standards the Court had

used to determine whether courts were legislative or constitutional.93 In Glidden Co. v. Zdanok,

94 however, five of seven participating Justices united to find that indeed the Court of Claims and

the Court of Customs and Patent Appeals, at least, were constitutional courts and their judges eligible to participate in judicial business in other constitutional courts. Three Justices would have overruled Bakelite and Williams and would have held that the courts

in question were constitutional courts.95 Whether a court is an Article III tribunal depends largely upon whether legislation establishing it is in harmony with the limitations of that Article, specifically, “whether . . . its business is the federal business there specified

and its judges and judgments are allowed the independence there

expressly or impliedly made requisite.” When a court is created “to

carry into effect [federal] powers . . . over subject matter . . . and

not over localities,” a presumption arises that the status of such a

tribunal is constitutional rather than legislative.96 The other four

Justices expressly declared that Bakelite and Williams should not

be overruled,97 but two of them thought that the two courts had

89 Id. at 29.

90 De Groot v. United States, 72 U.S. (5 Wall.) 419 (1866); United States v. Union

Pacific Co., 98 U.S. 569, 603 (1878); Miles v. Graham, 268 U.S. 501 (1925).

91 Williams v. United States, 289 U.S. 553 (1933); cf. Ex parte Bakelite Corp.,

279 U.S. 438, 450–455 (1929).

92 67 Stat. 226, § 1, 28 U.S.C. § 171 (Court of Claims); 70 Stat. 532. § 1, 28 U.S.C.

§ 251 (Customs Court); 72 Stat. 848, § 1, 28 U.S.C. § 211 (Court of Customs and

Patent Appeals).

93 In Ex parte Bakelite Corp., 279 U.S. 438. 459 (1929), Justice Van Devanter

refused to give any weight to the fact that Congress had bestowed life tenure on the

judges of the Court of Customs Appeals because that line of thought “mistakenly

assumes that whether a court is of one class or the other depends on the intention

of Congress, whereas the true test lies in the power under which the court was created and in the jurisdiction conferred.”

94 370 U.S. 530 (1962).

95 Glidden Co. v. Zdanok, 370 U.S. 530, 531 (1962) (Justices Harlan, Brennan,

and Stewart).

96 370 U.S. at 548, 552.

97 370 U.S. at 585 (Justice Clark and Chief Justice Warren concurring), 589 (Justices Douglas and Black dissenting).

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ART. III—JUDICIAL DEPARTMENT 677
attained constitutional status by virtue of the clear manifestation

of congressional intent expressed in the legislation.98 Two Justices

maintained that both courts remained legislative tribunals.99 Although the result is clear, no standard for pronouncing a court legislative rather than constitutional obtained the adherence of a majority of the Court.100

Status of 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,

101

the Court sustained an act of Congress which conferred revisory

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 revisory powers in the same court over rates fixed by a public utilities commission.102 Not long after this the same rule was

applied to the revisory powers of the District Supreme Court over

orders of the Federal Radio Commission.103 These rulings were based

on the assumption, express or implied, that the courts of the District were legislative courts, created by Congress pursuant to its

plenary power to govern the District of Columbia. In dictum in Ex

parte Bakelite Corp.,

104 while reviewing the history and analyzing

the nature of the legislative courts, the Court stated that the courts

of the District were legislative courts.

In 1933, nevertheless, the Court abandoned all previous dicta

on the subject and found the courts of the District of Columbia to

be constitutional courts exercising the judicial power of the United

States,105 with the result that it assumed the task of reconciling

the performance of nonjudicial functions by such courts with the

98 370 U.S. at 585 (Justice Clark and Chief Justice Warren).

99 370 U.S. at 589 (Justices Douglas and Black). The concurrence thought that

the rationale of Bakelite and Williams was based on a significant advisory and reference business of the two courts, which the two Justices now thought insignificant,

but what there was of it they thought nonjudicial and the courts should not entertain it. Justice Harlan left that question open. Id. at 583.

100 Aside from doctrinal matters, Congress in 1982 created the United States

Court of Appeals for the Federal Circuit, giving it, inter alia, the appellate jurisdiction of the Court of Claims and the Court of Customs and Patent Appeals. 96 Stat.

25, title 1, 28 U.S.C. § 41. At the same time Congress created the United States

Claims Court, now the United States Court of Federal Claims, as an Article I tribunal, with the trial jurisdiction of the old Court of Claims. 96 Stat. 26, as amended,

§ 902(a)(1), 106 Stat. 4516, 28 U.S.C. §§ 171–180.

101 112 U.S. 50 (1884).

102 Keller v. Potomac Elec. Co., 261 U.S. 428 (1923).

103 Federal Radio Comm’n v. General Elec. Co., 281 U.S. 464 (1930).

104 279 U.S. 438, 450–455 (1929).

105 O’Donoghue v. United States, 289 U.S. 516 (1933).

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678 ART. III—JUDICIAL DEPARTMENT
rule that constitutional courts can exercise only the judicial power

of the United States. This task was accomplished by the argument

that, in establishing courts for the District, Congress performs dual

functions pursuant to 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, § 1, limits this latter power with respect to tenure and compensation, but not with respect 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.” 106

In 1970, Congress formally recognized two sets of courts in the

District: federal courts (the United States District Court for the District of Columbia and the United States Court of Appeals for the

District of Columbia, created pursuant to Article III), and courts

equivalent to state and territorial courts (including the District of

Columbia Court of Appeals), created pursuant to Article I.107 Congress’s action was sustained in Palmore v. United States.

108 When

legislating for the District, the Court held, Congress has the power

of a local legislature and may, pursuant to Article I, § 8, cl. 17, vest

jurisdiction to hear matters of local law and local concerns in courts

not having Article III characteristics. The defendant’s claim that he

was denied his constitutional right to be tried before an Article III

judge was denied on the basis that it was not absolutely necessary

that every proceeding in which a charge, claim, or defense based

on an act of Congress or a law made under its authority need be

conducted in an Article III court. State courts, after all, could hear

cases involving federal law as could territorial and military courts.

“[T]he requirements of Art. III, which are applicable where laws of

national applicability and affairs of national concern are at stake,

must in proper circumstances give way to accommodate plenary grants

of power to Congress to legislate with respect to specialized areas

having particularized needs and warranting distinctive treatment.” 109

106 289 U.S. at 545. Chief Justice Hughes in dissent argued that Congress’s power

over the District was complete in itself and the power to create courts there did not

derive at all from Article III. Id. at 551. See the discussion of this point of O’Donoghue

in National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). Cf. Hobson

v. Hansen, 265 F. Supp. 902 (D.D.C. 1967) (three-judge court).

107 Pub. L. 91–358, 84 Stat. 475, D.C. Code § 11–101.

108 411 U.S. 389 (1973).

109 411 U.S. at 407–08. See also Pernell v. Southall Realty Co., 416 U.S. 363,

365–365 (1974); Swain v. Pressley, 430 U.S. 372 (1977); Key v. Doyle, 434 U.S. 59

(1978). Under Swain, provision for hearing of motions for post-judgement relief by

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Bankruptcy Courts.—After extended and lengthy debate, Congress in 1978 revised the bankruptcy act and created a bankruptcy

court as an “adjunct” of the district courts. The court was composed of judges vested with practically all the judicial power of the

United States, serving for 14-year terms, subject to removal for cause

by the judicial councils of the circuits, and with salaries subject to

statutory change.110 The bankruptcy courts were given jurisdiction

over not only civil proceedings arising under the bankruptcy code,

but all other proceedings arising in or related to bankruptcy cases,

with review in Article III courts under a clearly erroneous standard.

This broad grant of jurisdiction, however, brought into question

what kinds of cases could be heard by an Article I court. In Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., a case in which

a company petitioning for reorganization made a claim against another company for breaches of contract and warranty—purely state

law claims—the Court held that the conferral of jurisdiction upon

Article I judges to hear state claims regarding traditional common

law actions such as existed at the time of the drafting of the Constitution was unconstitutional.111 Although the holding was extremely narrow, a plurality of the Court sought to rationalize and

limit the Court’s jurisprudence of Article I courts.

According to the plurality, a fundamental principle of separation of powers requires the judicial power of the United States to

be exercised by courts having the attributes prescribed in Article

III. Congress may not evade the constitutional order by allocating

this judicial power to courts whose judges lack security of tenure

and compensation. Only in three narrowly circumscribed instances

may judicial power be distributed outside the Article III framework: in territories and the District of Columbia, that is, geographical areas in which no state operated as sovereign and Congress exercised the general powers of government; courts martial, that is,

the establishment of courts under a constitutional grant of power

historically understood as giving the political branches extraordinary control over the precise subject matter; and the adjudication

convicted persons in the District, the present equivalent of habeas for federal convicts, is placed in Article I courts. That there are limits to Congress’s discretion is

asserted in dictum in Territory of Guam v. Olsen, 431 U.S. 195, 201–202, 204 (1977).

110 Bankruptcy Act of 1978, Pub. L. 95–598, 92 Stat. 2549, codified in titles 11,

28. The bankruptcy courts were made “adjuncts” of the district courts by § 201(a),

28 U.S.C. § 151(a). For citation to the debate with respect to Article III versus Article I status for these courts, see Northern Pipeline Constr. Co. v. Marathon Pipe

Line Co., 458 U.S. 50, 61 n.12 (1982) (plurality opinion).

111 The statement of the holding is that of the two concurring Justices, 458 U.S.

at 89 (Justices Rehnquist and O’Connor), with which the plurality agreed “at the

least,” while desiring to go further. Id. at 87 n.40.

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of “public rights,” that is, the litigation of certain matters that historically were reserved to the political branches of government and

that were between the government and the individual.112 In bankruptcy legislation and litigation not involving any of these exceptions, the plurality would have held, the judicial power to process

bankruptcy cases could not be assigned to the tribunals created by

the act.113

The dissent argued that, although on its face Article III provided that judicial power could only be assigned to Article III entities, the history since Canter belied that simplicity. Rather, the precedents clearly indicated that there is no difference in principle between

the work that Congress may assign to an Article I court and that

which must be given to an Article III court. Despite this, the dissent contended that Congress did not possess plenary discretion in

choosing between the two systems; rather, in evaluating whether

jurisdiction was properly reposed in an Article I court, the Supreme Court must balance the values of Article III against both the

strength of the interest Congress sought to further by its Article I

investiture and the extent to which Article III values were undermined by the congressional action. This balancing would afford the

Court, the dissent believed, the power to prevent Congress, were it

moved to do so, from transferring jurisdiction in order to emasculate the constitutional courts of the United States.114

No majority could be marshaled behind a principled discussion

of the reasons for and the limitation upon the creation of legislative courts, not that a majority opinion, or even a unanimous one,

would necessarily presage the settling of the law.115 But the breadth

of the various opinions not only left unclear the degree of discretion left in Congress to restructure the bankruptcy courts, but also

placed in issue the constitutionality of other legislative efforts to

112 458 U.S. at 63–76 (Justice Brennan, joined by Justices Marshall, Blackmun,

and Stevens).

113 The plurality also rejected an alternative basis, a contention that as “adjuncts” of the district courts, the bankruptcy courts were like United States magistrates or like those agencies approved in Crowell v. Benson, 285 U.S. 22 (1932), to

which could be assigned fact-finding functions subject to review in Article III courts,

the fount of the administrative agency system. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76–86 (1982). According to the plurality, the act

vested too much judicial power in the bankruptcy courts to treat them like agencies, and it limited the review of Article III courts too much.

114 458 U.S. at 92, 105–13, 113–16 (Justice White, joined by Chief Justice Burger

and Justice Powell).

115 Ex parte Bakelite Corp., 279 U.S. 438 (1929), was, after all, a unanimous

opinion and did not long survive.

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establish adjudicative systems outside a scheme involving the creation of life-tenured judges.116

Congress responded to Marathon by enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984.117 Bankruptcy courts were maintained as Article I entities, and overall their

powers as courts were not notably diminished. However, Congress

did establish a division between “core proceedings,” which could be

heard and determined by bankruptcy courts, subject to lenient review, and other proceedings, which, though initially heard and decided by bankruptcy courts, could be reviewed de novo in the district court at the behest of any party, unless the parties had consented

to bankruptcy-court jurisdiction in the same manner as core proceedings. A safety valve was included, permitting the district court

to withdraw any proceeding from the bankruptcy court on cause

shown.118

Notice, however, that in Granfinanciera, S.A. v. Nordberg 119 the

Court, evaluating the related issue of when a jury trial is required

under the Seventh Amendment,120 found that a cause of action to

avoid a fraudulent money transfer was founded on state law, and,

although denominated a core proceeding by Congress, was actually

a private right. Similarly, the Court in Stern v. Marshall 121 held

that a counterclaim of tortuous interference with a gift, although

made during a bankruptcy proceeding and statutorily deemed a core

proceeding, was a state common law claim that did not fall under

any of the public rights exceptions.122 Nonetheless, as the Court recently held in Wellness International v. Sharif,

123 a bankruptcy court

may adjudicate with finality a so-called Stern claim—that is, a core

claim that does not fall within the public rights exception—if the

116 In particular, the Federal Magistrates Act of 1968, under which judges may

refer certain pretrial motions and the trial of certain matters to persons appointed

to a specific term, was threatened. Pub. L. 90–578, 82 Stat. 1108, as amended, 28

U.S.C. §§ 631–639. See United States v. Radios, 447 U.S. 667 (1980); Mathews v.

Weber, 423 U.S. 261 (1976).

117 Pub. L. 98–353, 98 Stat. 333, judiciary provisions at 28 U.S.C. §§ 151 et seq.

118 See 28 U.S.C. § 157.

119 492 U.S. 33 (1989).

120 See Seventh Amendment, Cases at Common law, infra.

121 564 U.S. ___, No. 10–179, slip op. (2011).

122 The Court noted that the claim “. . . is not a matter that can be pursued

only by grace of the other branches . . . or one that ‘historically could have been

determined exclusively by’ those branches . . . . It does not ‘depend[] on the will of

Congress’s . . . ; Congress has nothing to do with it. [It] . . . does not flow from a

federal statutory scheme . . . . [And it] is not ‘completely dependent upon’ adjudication of a claim created by federal law . . . . ” 564 U.S. ___, No. 10–179, slip op. at

27 (2011) (citations omitted). The Court also noted that filing of a claim in bankruptcy court (here, a defamation claim) did not constitute consent to a counterclaim, as the claimant had nowhere else to go to obtain recovery. Id.

123 575 U.S. ___, No. 13–935, slip op. (2015).

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parties have provided knowing and voluntary consent, arguably limiting the ultimate impact of Stern for federal bankruptcy law.124

Agency Adjudication.—In two decisions subsequent to Marathon involving legislative courts, Thomas v. Union Carbide Agric.

Products Co.125 and CFTC v. Schor,

126 the Court clearly suggested

that the majority was now closer to the balancing approach of the

Marathon dissenters than to the Marathon plurality’s position that

Congress may confer judicial power on legislative courts only in very

limited circumstances. Subsequently, however, Granfinanciera, S.A.

v. Nordberg,

127 a reversion to the fundamentality of Marathon, with

an opinion by the same author, Justice Brennan, cast some doubt

on this proposition.

In Union Carbide, the Court upheld a provision of a pesticide

law which required binding arbitration, with limited judicial review, of compensation due one registrant by another for mandatory

sharing of registration information pursuant to federal statutory law.

And in Schor, the Court upheld conferral on the agency of authority, in a reparations adjudication under the Act, to also adjudicate

“counterclaims” arising out of the same transaction, including those

arising under state common law. Neither the fact that the pesticide

case involved a dispute between two private parties nor the fact

that the CFTC was empowered to decide claims traditionally adjudicated under state law proved decisive to the Court’s analysis.

In rejecting a “formalistic” approach and analyzing the “substance” of the provision at issue in Union Carbide, Justice O’Connor‘s

opinion for the Court pointed to several considerations.128 The right

to compensation was not a purely private right, but “bears many of

the characteristics of a ‘public’ right,” because Congress was “authoriz[ing] an agency administering a complex regulatory scheme to

allocate costs and benefits among voluntary participants in the program. . . .” 129 Also deemed important was not “unduly constrict-

[ing] Congress’s ability to take needed and innovative action pursuant to its Article I powers”; 130 arbitration seen as “a pragmatic solution

to [a] difficult problem.” 131 The limited nature of judicial review was

seen as a plus in the sense that “no unwilling defendant is sub124 See id. at 20.

125 473 U.S. 568 (1985).

126 478 U.S. 833 (1986).

127 492 U.S. 33 (1989).

128 Contrast the Court’s approach to Article III separation of powers issues with

the more rigid approach enunciated in INS v. Chadha and Bowsher v. Synar, involving congressional incursions on executive power.

129 473 U.S. at 589.

130 CFTC v. Schor, 478 U.S. at 851 (summarizing the Thomas rule).

131 Thomas, 473 U.S. at 590.

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jected to judicial enforcement power.” On the other hand, availability of limited judicial review of the arbitrator’s findings and determination for fraud, misconduct, or misrepresentation, and for due

process violations, preserved the “ ‘appropriate exercise of the judicial function.’ ” 132 Thus, the Court concluded, Congress in exercise

of Article I powers “may create a seemingly ‘private’ right that is

so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by

the Article III judiciary.” 133

In Schor, the Court described Art. III, § 1 as serving a dual purpose: to protect the role of an independent judiciary and to safeguard the right of litigants to have claims decided by judges free

from potential domination by the other branches of government. A

litigant’s Article III right is not absolute, the Court determined, but

may be waived. This the litigant had done by submitting to the administrative law judge’s jurisdiction rather than independently seeking relief as he was entitled to and then objecting only after adverse rulings on the merits. But the institutional integrity claim,

not being personal, could not be waived, and the Court reached the

merits. The threat to institutional independence was “weighed” by

reference to “a number of factors.” The conferral on the CFTC of

pendent jurisdiction over common law counterclaims was seen as

more narrowly confined than was the grant to bankruptcy courts

at issue in Marathon, and as more closely resembling the “model”

approved in Crowell v. Benson. The CFTC’s jurisdiction, unlike that

of bankruptcy courts, was said to be confined to “a particularized

area of the law;” the agency’s orders were enforceable only by order

of a district court,134 and reviewable under a less deferential standard, with legal rulings being subject to de novo review; and the

agency was not empowered, as had been the bankruptcy courts, to

exercise “all ordinary powers of district courts.” 135

132 Thomas, 473 U.S. at 591, 592 (quoting Crowell v. Benson, 285 U.S. 22, 54

(1932)).

133 473 U.S. at 594.

134 Cf. Union Carbide, 473 U.S. at 591 (fact that “FIFRA arbitration scheme incorporates its own system of internal sanctions and relies only tangentially, if at all,

on the Judicial Branch for enforcement” cited as lessening danger of encroachment

on “Article III judicial powers”).

135 See CFTC v. Schor, 478 U.S. 833, 853 (1986). Notwithstanding Schor’s efforts to distinguish between the context presented in that case and the bankruptcy

context, the Court, in Wellness International v. Sharif, extended Schor’s holding to

adjudications of private right claims by bankruptcy courts. See 575 U.S. ___, No.

13–935, slip op. (2015). Specifically, the Wellness International Court utilized the balancing approach employed by Schor to conclude that allowing bankruptcy courts to

decide a fraudulent conveyance claim by consent would not “impermissibly threaten

the institutional integrity of the Judicial Branch,” id. at 12 (quoting Schor, 478 U.S.

at 851), because (1) the underlying class of claims that was being adjudicated by

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Granfinanciera followed analysis different from that in Schor,

although it preserved Union Carbide through its concept of “public

rights.” State law and other legal claims founded on private rights

could not be remitted to non-Article III tribunals for adjudication

unless Congress, in creating an integrated public regulatory scheme,

has so taken up the right as to transform it. It may not simply relabel a private right and place it into the regulatory scheme. The

Court is hazy with respect to whether the right itself must be a

creature of federal statutory action. The general descriptive language suggests that, but the Court seemingly goes beyond this point

in its determination whether the right at issue in the case, the recovery of preferential or fraudulent transfers in the context of a bankruptcy proceeding, is a “private right” that carries with it a right

to jury trial. Though a statutory interest, the actions were identical to state-law contract claims brought by a bankrupt corporation

to augment the estate.136 Schor was distinguished solely on the waiver

part of the decision, relating to the individual interest, without considering the part of the opinion deciding the institutional interest

on the merits and utilizing a balancing test.137 Thus, although the

Court has made some progress in reconciling its growing line of disparate cases, doctrinal harmony has not yet been achieved.

Noncourt Entities in the Judicial Branch

Passing on the constitutionality of the establishment of the Sentencing Commission as an “independent” body in the judicial branch,

the Court acknowledged that the Commission is not a court and

does not exercise judicial power. Rather, its function is to promulgate binding sentencing guidelines for federal courts. It acts, therefore, legislatively, and its membership of seven is composed of three

judges and three nonjudges. But the standard of constitutionality,

the Court held, is whether the entity exercises powers that are more

appropriately performed by another branch or that undermine the

integrity of the judiciary. Because the imposition of sentences is a

function traditionally exercised within congressionally prescribed limits by federal judges, the Court found the functions of the Commission could be located in the judicial branch. Nor did performance of

its functions contribute, in any meaningful way, to a weakening of

the non-Article III court was “narrow” in nature, resulting in a “de minimis” intrusion on the federal judiciary; (2) the bankruptcy court was ultimately supervised

and overseen by a constitutional court and not Congress; and (3) the Court found

“no indication” that Congress, in allowing bankruptcy courts to decide with finality

certain private right claims, was acting in “an effort to aggrandize itself or humble

the Judiciary.” Id. at 13–14.

136 Granfinanciera, 492 U.S. at 51–55, 55–60.

137 492 U.S. at 59 n.14.

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ART. III—JUDICIAL DEPARTMENT 685
the judiciary or an aggrandizement of power, the Court observed.138

JUDICIAL POWER

Characteristics and Attributes of Judicial Power

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.” 139 It is “the right to determine

actual controversies arising between diverse litigants, duly instituted in courts of proper jurisdiction.” 140 The terms “judicial power”

and “jurisdiction” are frequently used interchangeably, with “jurisdiction” defined as the power to hear and determine the subject matter in controversy between parties to a suit 141 or as the “power to

entertain the suit, consider the merits and render a binding decision thereon.” 142 The cases and commentary however, 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.143 Judicial power

confers on federal courts the power to decide a case and to render

a judgment that conclusively resolves a case. Included within the

general judicial power are the ancillary powers of courts to punish

for contempt of their authority,144 to issue writs in aid of jurisdiction when authorized by statute,145 to make rules governing their

process in the absence of statutory authorizations or prohibitions,146 to order their own process so as to prevent abuse, oppression, and injustice, and to protect their own jurisdiction and offi138 Mistretta v. United States, 488 U.S. 361, 384–97 (1989). Clearly, some of the

powers vested in the Special Division of the United States Court of Appeals for the

District of Columbia Circuit under the Ethics in Government Act in respect to the

independent counsel were administrative, but because the major nonjudicial power,

the appointment of the independent counsel, was specifically authorized in the appointments clause, the additional powers were miscellaneous and could be lodged

there by Congress. Implicit in the Court’s analysis was the principle that a line exists that Congress may not cross. Morrison v. Olson, 487 U.S. 654, 677–685 (1988).

139 JUSTICE SAMUEL MILLER, ON THE CONSTITUTION 314 (1891).

140 Muskrat v. United States, 219 U.S. 346, 361 (1911).

141 United States v. Arrendondo, 31 U.S. (6 Pet.) 691 (1832).

142 General Investment Co. v. New York Central R.R., 271 U.S. 228, 230 (1926).

143 Williams v. United States, 289 U.S. 553, 566 (1933); Yakus v. United States,

321 U.S. 414, 467–68 (1944) (Justice Rutledge dissenting).

144 Michaelson v. United States, 266 U.S. 42 (1924).

145 McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); Ex parte Bollman, 8 U.S. (4 Cr.)

75 (1807).

146 Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825).

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686 ART. III—JUDICIAL DEPARTMENT
cers in the protection of property in custody of law,147 to appoint

masters in chancery, referees, auditors, and other investigators,148

and to admit and disbar attorneys.149

As judicial power is the authority to render dispositive judgments, Congress violates the separation of powers when it purports to alter final judgments of Article III courts.150 Once such instance arose when the Court unexpectedly recognized a statute of

limitations for certain securities actions that was shorter than what

had been recognized in many jurisdictions, resulting in the dismissal of several suits, which then become final because they were

not appealed. Congress subsequently enacted a statute that, though

not changing the limitations period prospectively, retroactively extended the time for suits that had been dismissed and provided for

the reopening of these final judgments. In Plaut v. Spendthrift Farm,

Inc.,

151 the Court invalidated the statute, holding 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.” 152 In Miller v. French,

153 by contrast, the Court ruled that

the Prison Litigation Reform Act’s automatic stay of ongoing injunctions remedying violations of prisoners’ rights did not amount to

an unconstitutional legislative revision of a final judgment. Rather,

the automatic stay merely altered “the prospective effect” of injunctions, and it is well established that such prospective relief “remains subject to alteration due to changes in the underlying law.” 154

“Shall Be Vested”.—The distinction between judicial power and

jurisdiction is especially pertinent to the meaning of the words “shall

147 Gumbel v. Pitkin, 124 U.S. 131 (1888).

148 Ex parte Peterson, 253 U.S. 300 (1920).

149 Ex parte Garland, 71 U.S. (4 Wall.) 333, 378 (1867).

150 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.

151 514 U.S. 211 (1995).

152 514 U.S. at 227 (emphasis supplied by Court).

153 530 U.S. 327 (2000).

154 530 U.S. at 344.

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be vested” in § 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,155 the Constitution has not been read to require that Congress

confer the entire jurisdiction it might.156 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,157 and, second, an act of Congress must have conferred it.158 The

fact that federal courts are of limited jurisdiction means that litigants in them must affirmatively establish that jurisdiction exists

and may not confer nonexistent jurisdiction by consent or conduct.159

Finality of Judgment as an Attribute of Judicial Power

Since 1792, the federal courts have emphasized finality of judgment as an essential attribute of judicial power. In that year, Congress authorized Revolutionary War veterans to file pension claims

in circuit courts of the United States, directed the judges to certify

to the Secretary of War the degree of a claimant’s disability and

155 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 328–331 (1816). See also

3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (1833) 1584–1590.

156 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 appears in Amar, A Neo-Federalist View of Article III: Separating the Two

Tiers of Federal Jurisdiction, 65 B. U. L. REV. 205 (1985); see also Amar, Meltzer,

and Redish, Symposium: Article III and the Judiciary Act of 1789, 138 U. PA. L.

REV. 1499 (1990). Professor Amar argues from the text of Article III, § 2, cl. 1, that

the use of the word “all” in each of the 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.

157 Which was, of course, the point of Marbury v. Madison, 5 U.S. (1 Cr.) 137

(1803), once the power of the Court to hold legislation unconstitutional was established.

158 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 Constr. Co., 260

U.S. 226 (1922). Some judges, however, have expressed the opinion that Congress’s

authority is limited by provisions of the Constitution such as the Due Process Clause,

so that a limitation on jurisdiction that denied a litigant access to any remedy might

be unconstitutional. Cf. Eisentrager v. Forrestal, 174 F.2d 961, 965–966 (D.C. Cir.

1949), rev’d 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. 1948), cert. denied,

335 U.S. 887 (1948); Petersen v. Clark, 285 F. Supp. 700, 703 n.5 (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.

159 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).

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their opinion with regard to the proper percentage of monthly pay

to be awarded, but empowered the Secretary to withhold judicially

certified claimants from the pension list if he suspected “imposition

or mistake.” 160 The Justices then on circuit almost immediately forwarded objections to the President, contending that the statute was

unconstitutional because the judicial power was constitutionally committed to the judicial department, the duties imposed by the act

were not judicial, and the subjection of a court’s opinions to revision or control by an officer of the executive or the legislature was

not authorized by the Constitution.161

Attorney General Randolph, upon the refusal of the circuit courts

to act under the new statute, filed a motion for mandamus in the

Supreme Court to direct the Circuit Court in Pennsylvania to proceed on a petition filed by one Hayburn seeking a pension. Although the Court heard argument, it put off decision until the next

term, presumably because Congress was already acting to delete the

objectionable features of the act. Upon enactment of the new law,

the Court dismissed the action.162 Although the Court’s opinion contained little analysis, Hayburn’s Case has since been cited by the

Court to reject efforts to give it and the lower federal courts jurisdiction over cases in which judgment would be subject to executive

or legislative revision.163 Thus, in a 1948 case, the Court held that

an order of the Civil Aeronautics Board denying to a citizen air carrier a certificate of convenience and necessity for an overseas and

foreign air route was, despite statutory language to the contrary,

not reviewable by the courts. Because Congress had also deemed

such an order subject to discretionary review and revision by the

160 Act of March 23, 1792, 1 Stat. 243.

161 1 AMERICAN STATE PAPERS: MISCELLANEOUS DOCUMENTS, LEGISLATIVE AND EXECUTIVE,

OF THE CONGRESS OF THE UNITED STATES 49, 51, 52 (1832). President Washington transmitted the remonstrances to Congress. 1 MESSAGES AND PAPERS OF THE PRESIDENTS 123,

133 (J. Richardson comp., 1897). The objections are also appended to the order of

the Court in Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 (1792). Note that some of the

Justices declared their willingness to perform under the act as commissioners rather

than as judges. Cf. United States v. Ferreira, 54 U.S. (13 How.) 40, 52–53 (1852).

The assumption by judges that they could act in some positions as individuals while

remaining judges, an assumption many times acted upon, was approved in Mistretta

v. United States, 488 U.S. 361, 397–408 (1989).

162 Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792). The new pension law was the

Act of February 28, 1793, 1 Stat. 324. The reason for the Court’s inaction may, on

the other hand, have been doubt about the proper role of the Attorney General in

the matter, an issue raised in the opinion. See Marcus & Teir, Hayburn’s Case: A

Misinterpretation of Precedent, 1988 WIS. L. REV. 4; Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There was Pragmatism, 1989 DUKE L. J. 561, 590–618. Notice the Court’s discussion in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218, 225–26 (1995).

163 See United States v. Ferreira, 54 U.S. (13 How.) 40 (1852); Gordon v. United

States, 69 U.S. (2 Wall.) 561 (1865); In re Sanborn, 148 U.S. 222 (1893); cf. McGrath

v. Kritensen, 340 U.S. 162, 167–168 (1950).

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President, the lower court found, and the Supreme Court affirmed,

that the courts did not have the authority to review the President’s

decision. While the lower Court had then attempted to reconcile the

statutory scheme by permitting presidential review of the order after judicial review, the Court rejected this interpretation. “[I]f the

President may completely disregard the judgment of the court, it

would be only because it is one the courts were not authorized to

render. Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government.” 164 More recently, the Court avoided a similar situation

by a close construction of a statute.165

Award of Execution.—The adherence of the Court to this proposition, however, has not extended to a rigid rule formulated by Chief

Justice Taney, given its fullest expression in a posthumously published opinion.166 In Gordon v. United States,

167 the Court refused

to hear an appeal from a decision of the Court of Claims; the act

establishing the Court of Claims provided for 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 payment of private claims. But the

act also provided that no funds should be paid out of the Treasury

for any claims “till after an appropriation therefor shall be estimated for by the Secretary of the Treasury.” 168 The opinion of the

Court merely stated that the implication of power in the executive

officer and in Congress to revise all decisions of the Court of Claims

requiring payment of money denied that court the judicial power

164 Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948).

165 Connor v. Johnson, 402 U.S. 690 (1971). Under § 5 of the Voting Rights Act

of 1965, 79 Stat. 437, 42 U.S.C. § 1973e, no state may “enact or seek to administer”

any change in election law or practice different from that in effect on a particular

date without obtaining the approval of the Attorney General or the district court in

the District of Columbia, a requirement interpreted to reach reapportionment and

redistricting. Allen v. State Bd. of Elections, 393 U.S. 544 (1969); Perkins v. Matthews, 400 U.S. 379 (1971). The issue in Connor was whether a districting plan drawn

up and ordered into effect by a federal district court, after it had rejected a legislatively drawn plan, must be submitted for approval. Unanimously, on the papers without oral argument, the Court ruled that, despite the statute’s inclusive language, it

did not apply to court-drawn plans.

166 Gordon v. United States, 117 U.S. 697 (1865) (published 1885). See United

States v. Jones, 119 U.S. 477 (1886). The Chief Justice’s initial effort was in United

States v. Ferreira, 54 U.S. (13 How.) 40 (1852).

167 69 U.S. (2 Wall.) 561 (1865).

168 Act of February 24, 1855, 10 Stat. 612, as amended, Act of March 3, 1963,

12 Stat. 737, as paraphrased in Gordon v. United States, 117 U.S. at 698.

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from the exercise of which “alone” appeals could be taken to the

Supreme Court.169

In his posthumously published opinion, Chief Justice Taney, because the judgment of the Court of Claims and the Supreme Court

depended for execution upon future action of the Secretary and of

Congress, regarded any such judgment as nothing more than a certificate of opinion and in no sense a judicial judgment. Congress

could not therefore authorize appeals to the Supreme Court 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. Taney

then enunciated a rule that was rigorously applied until 1933: the

award of execution is an essential part of every judgment passed

by a court exercising judicial powers and no decision is a legal judgment without an award of execution.170 The rule was most significant in barring the lower federal courts from hearing proceedings

for declaratory judgments 171 and in denying appellate jurisdiction

in the Supreme Court from declaratory proceedings in state courts.172

But, in 1927, the Court began backing away from its absolute insistence upon an award of execution. Unanimously holding that a declaratory judgment in a state court was res judicata in a subsequent proceeding in federal court, the Court admitted that, “[w]hile

ordinarily a case or judicial controversy results in a judgment requiring award of process of execution to carry it into effect, such

relief is not an indispensable adjunct to the exercise of the judicial

function.” 173 Then, in 1933, the Court interred the award-ofexecution rule in its rigid form and accepted an appeal from a state

169 Gordon v. United States, 69 U.S. (2 Wall.) 561 (1865). Following repeal of

the objectionable section, Act of March 17, 1866, 14 Stat. 9, the Court accepted appellate jurisdiction. United States v. Jones, 119 U.S. 477 (1886); De Groot v. United

States, 72 U.S. (5 Wall.) 419 (1867). But note that execution of the judgments was

still dependent upon congressional appropriations. On the effect of the requirement

for appropriations at a time when appropriations had to be made for judgments over

$100,000, see Glidden Co. v. Zdanok, 370 U.S. 530, 568–571 (1962). Cf. Regional Rail

Reorganization Act Cases (Blanchette v. Connecticut General Ins. Corp.), 419 U.S.

102, 148–149 & n.35 (1974).

170 Gordon v. United States, 117 U.S. 697 (1865) (published 1885). Subsequent

cases accepted the doctrine that an award of execution as distinguished from finality of judgment was an essential attribute of judicial power. See In re Sanborn, 148

U.S. 122, 226 (1893); ICC v. Brimson, 154 U.S. 447, 483 (1894); La Abra Silver Mining Co. v. United States, 175 U.S. 423, 457 (1899); Frasch v. Moore, 211 U.S. 1 (1908);

Muskrat v. United States, 219 U.S. 346, 355, 361–362 (1911); Postum Cereal Co. v.

California Fig Nut Co., 272 U.S. 693 (1927).

171 Liberty Warehouse Co. v. Grannis, 273 U.S. 70 (1927).

172 Liberty Warehouse Co. v. Burley Growers’ Coop. Marketing Ass’n, 276 U.S.

71 (1928).

173 Fidelity Nat’l Bank & Trust Co. v. Swope, 274 U.S. 123, 132 (1927).

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court in a declaratory proceeding.174 Finality of judgment, however,

remains the rule in determining what is judicial power, without regard to the demise of Chief Justice Taney’s formulation.

Judicial Immunity from Suit

Under common law—the Supreme Court has not elevated judicial immunity from suit to a constitutional principle—judges “are

responsible to the people alone for the manner in which they perform their duties. If faithless, if corrupt, if dishonest, if partial, if

oppressive or arbitrary, they may be called to account by impeachment, and removed from office. . . . But responsible they are not to

private parties in civil actions for the judicial acts, however injurious may be those acts, and however much they may deserve condemnation, unless perhaps where the acts are palpably in excess of

the jurisdiction of the judges, and are done maliciously or corruptly.” 175 Three years later, the Court qualified this exception to

judges’ immunity: the phrase beginning “unless, perhaps,” the Court

wrote, was “not necessary to a correct statement of the law, and

. . . judges . . . are not liable to civil actions for their judicial acts,

even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must

be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter,” with judges subject to liability only in the latter instance.176

In Stump v. Sparkman, the Court upheld the immunity of a

judge who approved a petition from the mother of a 15-year-old girl

to have the girl sterilized without her knowledge (she was told that

174 Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933). The decisions in

Swope and Wallace removed all constitutional doubts previously shrouding a proposed federal declaratory judgment act, which was enacted in 1934, 48 Stat. 955, 28

U.S.C. §§ 2201–2202, and unanimously sustained in Aetna Life Ins. Co. v. Haworth,

300 U.S. 227 (1937). Wallace and Haworth were cited with approval in Medimmune,

Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007) (“Article III’s limitation of federal

courts’ jurisdiction to ‘Cases’ and ‘Controversies,’ reflected in the ‘actual controversy’

requirement of the Declaratory Judgment Act, 28 U.S.C. § 2201(a), [does not] require[ ] a patent licensee to terminate or be in breach of its license agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed,” id. at 120–21).

175 Randall v. Brigham, 74 U.S. 523, 537 (1869). Judicial immunity “is a general principle of the highest importance to the proper administration of justice . . . .

Liability . . . would destroy that independence without which no judiciary can be

either respectable or useful. . . . Nor can this exemption of the judges from civil

liability be affected by the motives with which their judicial acts are performed.”

Bradley v. Fisher, 80 U.S. 335, 347 (1872).

176 Bradley v. Fisher, 80 U.S. 335, 351 (1872). The Court offered a hypothetical

example of the distinction. A judge of a probate court who held a criminal trial would

act in clear absence of all jurisdiction over the subject matter, whereas a judge of a

criminal court who held a criminal trial for an offense that was not illegal would

act merely in excess of his jurisdiction. Id. at 352.

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she was to have her appendix removed).177 In a 5-to-3 opinion, the

Court found that there was not the “clear absence of all jurisdiction” that is required to hold a judge civilly liable. The judge had

jurisdiction “in all cases at law and in equity whatsoever,” except

where exclusive jurisdiction is “conferred by law upon some other

court, board, or officer,” and no statute or case law prohibited the

judge from considering a petition for sterilization.178 The Court also

rejected the argument that the judge’s approving the petition had

not constituted a “judicial” act. The Court found “that the factors

determining whether an act by a judge is a ‘judicial’ one relate to

the nature of the act itself, i.e., whether it is a function normally

performed by a judge, and to the expectations of the parties, i.e.,

whether they dealt with the judge in his judicial capacity. . . . Judge

Stump performed the type of act normally performed only by judges

and . . . he did so in his capacity as a [judge].” 179

Although judges are generally immune from suits for damages,

the Court has held that a judge may be enjoined from enforcing a

court rule, such as a restriction on lawyer advertising that violates

the First Amendment.180 Similarly, a state court magistrate may be

enjoined from “imposing bail on persons arrested for nonjailable offenses under Virginia law and . . . incarcerating those persons if

they could not meet the bail. . . .” 181 But what if the prevailing party,

as it did in these two cases, seeks an award of attorneys’ fees under the Civil Rights Attorney’s Fees Awards Act of 1976? 182 The Court

found that “Congress intended to permit attorney’s fees awards in

cases in which prospective relief was properly awarded against defendants who would be immune from damage awards.” 183 In fact,

177 435 U.S. 349 (1978).

178 435 U.S. at 357, 358. The defendant was an Indiana state court judge, but

the suit was in federal court under 42 U.S.C. § 1983. The Court noted that it had

held in Pierson v. Ray, 386 U.S. 547 (1967), that there was no indication that, in

enacting this statute, Congress had intended to abolish the principle of judicial immunity established in Bradley v. Fisher, supra.

179 435 U.S. at 362. Justice Stewart’s dissent, joined by Justices Marshall and

Powell, concluded that what Judge Stump did “was beyond the pale of anything that

could sensibly be called a judicial act.” Id. at 365. Indiana law, Justice Stewart wrote,

provided for administrative proceedings for the sterilization of certain people who

were institutionalized (which the girl in this case was not), and what Judge Stump

did “was in no way an act ‘normally performed by a judge.’ ” Id. at 367.

180 Supreme Court of Virginia v. Consumers Union of the United States, 446

U.S. 719 (1980).

181 Pulliam v. Allen, 466 U.S. 522, 524–25 (1984).

182 42 U.S.C. § 1988(b). Under this statute, “suits brought against individual officers for injunctive relief are for all practical purposes suits against the State itself,” and, therefore, the state must “bear the burden of the counsel fees award.”

Hutto v. Finney, 437 U.S. 678, 700 (1978).

183 Consumers Union, 446 U.S. at 738–39. This is not the case, however, when

judges are sued in their legislative capacity for having issued a rule. Id. at 734.

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“Congress’s intent could hardly be more plain. Judicial immunity is

no bar to the award of attorney’s fees under 42 U.S.C. § 1988.” 184

ANCILLARY POWERS OF FEDERAL COURTS

The Contempt Power

Categories of Contempt.—Crucial to an understanding of the

history of the law governing the courts’ powers of contempt is an

awareness of the various kinds of contempt. With a few notable exceptions,185 the Court has consistently distinguished between criminal and civil contempt, the former being a vindication of the authority of the courts and latter being the preservation and enforcement

of the rights of the parties. A civil contempt has been traditionally

viewed as the refusal of a person in a civil case to obey a mandatory order. It is incomplete in nature, may be purged by obedience

to the court order, and does not involve a sentence for a definite

period of time. The classic criminal contempt is one where 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.186

The issue of whether a certain contempt is civil or criminal can

be of great importance. For instance, criminal contempt, unlike civil

contempt, implicates procedural rights attendant to prosecutions.187 Or, in Ex parte Grossman,

188 while holding that the President may pardon a criminal contempt, Chief Justice Taft noted in

184 Pulliam, 466 U.S. at 544. In 1996, Public Law 104–317, § 309, amended § 1988(b)

to preclude the award of attorneys’ fees in a suit against a judicial officer unless the

officer’s action “was clearly in excess of such officer’s jurisdiction.”

185 E.g., United States v. United Mine Workers, 330 U.S. 258 (1947).

186 Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441–443 (1911); Ex parte

Grossman, 267 U.S. 87 (1925). See also Bessette v. W.B. Conkey Co., 194 U.S. 324,

327–328 (1904).

187 In Robertson v. United States ex rel. Watson, the Court had granted certiorari to consider a District of Columbia law that allowed a private individual to bring

a criminal contempt action in the congressionally established D.C. courts based on

a violation of a civil protective order. 560 U.S. ___, No. 08–6261, slip op. (2010). The

Court subsequently issued a per curiam order dismissing the writ of certiorari as

having been improvidently granted, but four Justices dissented. Writing in dissent,

Chief Justice Roberts thought it imperative to make clear that “[t]he terrifying force

of the criminal justice system may only be brought to bear against an individual by

society as a whole, through a prosecution brought of behalf of the government.” 560

U.S. ___, No. 08–6261, slip op. at 1 (2010) (Roberts, C.J., dissenting). Of particular

concern was how various protections in the Bill of Rights against government action

would play out in a privately brought action. Id. at 5–6.

188 267 U.S. 87, 119–120 (1925). 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, Michaelson v. United States

ex rel. Chicago, S.P., M. & Ry. Co., 266 U.S. 42, 65–66 (1924). But see Bloom v. Illinois, 391 U.S. 194, 202 (1968).

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dicta that such pardon power did not extend to civil contempt. Notwithstanding the importance of distinguishing between the two, there

have been instances where defendants have been charged with both

civil and criminal contempt for the same act.189

Long-standing doctrine regarding how courts should distinguish between civil and criminal contempt remains influential. In

Shillitani v. United States,

190 defendants were sentenced by their

respective District Courts to two years imprisonment for contempt

of court, but the sentences contained a purge clause providing for

the unconditional release of the contemnors upon agreeing to testify before a grand jury. On appeal, the Supreme Court held that

the defendants were in civil contempt, notwithstanding their sentence for a definite period of time, on the grounds that the test for

determining whether the contempt is civil or criminal is what the

court primarily seeks to accomplish by imposing sentence.191 Here,

the purpose was to obtain answers to the questions for the grand

jury, and the court provided for the defendants’ release upon compliance; whereas, “a criminal contempt proceeding would be characterized by the imposition of an unconditional sentence for punishment or deterence.” 192

In International Union, UMW v. Bagwell,

193 however, the Court

formulated a new test for drawing the distinction between civil and

criminal contempt in certain cases. Henceforth, the imposition of

non-compensatory contempt fines for the violation of any complex

injunction will require criminal proceedings. This case, as have so

many, involved the imposition of large fines (here, $52 million) upon

a union in a strike situation for violations of an elaborate court injunction restraining union activity during the strike. The Court was

vague with regard to the standards for determining when a court

order is “complex” and thus requires the protection of criminal proceedings.194

The Court has also recognized a second, but more subtle distinction between types of contempt, and that is the difference between

direct and indirect contempt. Direct contempt results when the contumacious act is committed “in the presence of the Court or so near

189 See United States v. United Mine Workers, 330 U.S. 258, 299 (1947).

190 384 U.S. 364 (1966).

191 384 U.S. at 370.

192 384 U.S. at 370 n.6. See Hicks v. Feiock, 485 U.S. 624 (1988) (remanding for

determination whether payment of child support arrearages would purge a determinate sentence, the proper characterization critical to decision on a due process claim).

193 512 U.S. 821 (1994).

194 512 U.S. at 832–38. Relevant is the fact that the alleged contempts did not

occur in the presence of the court and that determinations of violations require elaborate and reliable fact-finding. See esp. id. at 837–38.

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thereto as to obstruct the administration of justice,” 195 while indirect contempt is behavior that the Court did not itself witness.196

The nature of the contumacious act, i.e., whether it is direct or indirect, is important because it determines the appropriate procedure for charging the contemnor. As will be seen in the following

discussion, the history of the contempt powers of the American judiciary is marked by two trends: a shrinking of the court’s power

to punish a person summarily and a multiplying of the due process

requirements that must otherwise be met when finding an individual to be in contempt.197

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.198 By the latter part of the eighteenth century, summary power

to punish was extended to all contempts whether committed in or

out of court.199 In the United States, the Judiciary Act of 1789 200

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

195 Act of March 2, 1831, ch. 99, § 1, 4 Stat. 488. Cf. Rule 42(a), FRCrP, which

provides, “A criminal contempt may be punished summarily if the judge certifies

that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.” See also Beale, Contempt of Court, Civil

and Criminal, 21 HARV. L. REV. 161, 171–172 (1908).

196 See Fox, The Nature of Contempt of Court, 37 L.Q. REV. 191 (1921).

197 Many of the limitations placed on the inferior federal courts have been issued on the basis of the Supreme Court’s supervisory power over them rather than

upon a constitutional foundation, while, of course, the limitations imposed on state

courts necessarily are on constitutional dimensions. Indeed, it is often the case that

a limitation, which is applied to an inferior federal court as a superintending measure, is then transformed into a constitutional limitation and applied to state courts.

Compare Cheff v. Schnackenberg, 384 U.S. 373 (1966), with Bloom v. Illinois, 391

U.S. 194 (1968). In the latter stage, the limitations then bind both federal and state

courts alike. Therefore, in this section, Supreme Court constitutional limitations on

state court contempt powers are cited without restriction for equal application to

federal courts.

198 Fox, The King v. Almon, 24 L.Q. REV. 184, 194–195 (1908).

199 Fox, The Summary Power to Punish Contempt, 25 L.Q. REV. 238, 252 (1909).

200 1 Stat. 83, § 17 (1789).

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misbehavior of officers of courts in their official capacity, and to disobedience or resistance to any lawful writ, process or order of the

court.201

An Inherent Power.—The nature of the contempt power was

described Justice Field, writing for the Court in Ex parte Robinson,

202 sustaining the act of 1831: “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 became possessed of this power.” Expressing doubts

concerning the validity of the act as to the Supreme Court, he declared, however, that 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.” 203 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.204 In Michaelson

v. United States,

205 the Court intentionally placed a narrow interpretation upon those sections of the Clayton Act 206 relating to punishment for contempt of court by disobedience of injunctions in labor disputes. The sections in question provided for a jury 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 the power [to punish contempt] and are inseparable from it can neither be abrogated nor

201 18 U.S.C. § 401. For a summary of the Peck impeachment and the background of the act of 1831, see Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts: A Study in Separation of

Powers, 37 HARV. L. REV. 1010, 1024–1028 (1924).

202 86 U.S. (19 Wall.) 505 (1874).

203 86 U.S. at 505–11.

204 Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911). See also In

re Debs, 158 U.S. 564, 595 (1895).

205 266 U.S. 42 (1924).

206 38 Stat. 730, 738 (1914).

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rendered practically inoperative.” The Court mentioned specifically

“the power to deal summarily with contempt 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.207 This latter power, to enforce, the Court has held,

includes the authority to appoint private counsel to prosecute a criminal contempt.208 Although the contempt power may be inherent, it

is not unlimited. In Spallone v. United States,

209 the Court held that

a district court had abused its discretion by imposing contempt sanctions on individual members of a city council for refusing to vote to

implement a consent decree remedying housing discrimination by

the city. The proper remedy, the Court indicated, was to proceed

first with contempt sanctions against the city, and only if that course

failed should it proceed against the council members individually.

First Amendment Limitations on the Contempt Power.—

The phrase, “in the presence of the Court or so near thereto as to

obstruct the administration of justice,” was interpreted so broadly

in Toledo Newspaper Co. v. United States 210 as to uphold the action of a district court judge in punishing a newspaper for contempt for publishing spirited editorials and cartoons issues raised

in an action challenging a street railway’s 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 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

207 266 U.S. at 65–66. See Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts: A Study in Separation of

Powers, 37 HARV. L. REV. 1010 (1924).

208 Young v. United States ex rel. Vuitton, 481 U.S. 787, 793–801 (1987). However, the Court, invoking its supervisory power, instructed the lower federal courts

first to request the United States Attorney to prosecute a criminal contempt and

only if refused should they appoint a private lawyer. Id. at 801–802. Still using its

supervisory power, the Court held that the district court had erred in appointing

counsel for a party that was the beneficiary of the court order; disinterested counsel

had to be appointed. Id. at 802–08. Justice Scalia contended that the power to prosecute is not comprehended within Article III judicial power and that federal judges

had no power, inherent or otherwise, to initiate a prosecution for contempt or to

appoint counsel to pursue it. Id. at 815. See also United States v. Providence Journal Co., 485 U.S. 693 (1988), which involved the appointment of a disinterested private attorney. The Supreme Court dismissed the writ of certiorari after granting it,

however, holding that only the Solicitor General representing the United States could

bring the petition to the Court. See 28 U.S.C. § 518.

209 493 U.S. 265 (1990). The decision was an exercise of the Court’s supervisory

power. Id. at 276. Four Justices dissented. Id. at 281.

210 247 U.S. 402 (1918).

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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.” 211 In Craig v. Hecht,

212 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 criticizing the action of a United States district judge in receivership proceedings.

The decision in Toledo Newspaper, however, 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,

213 and the theory of constructive contempt based on the “reasonable tendency” rule was rejected. The defendants in the civil suit,

by persuasion and the use of liquor, had 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. Although Nye

v. United States was exclusively a case of statutory construction, it

was significant from a constitutional point of view because its reasoning was 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 214 was noteworthy 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.215

A series of cases involving highly publicized trials and much news

media attention and exploitation,216 however, caused the Court to

suggest that the contempt and other powers of trial courts should

be used to stem the flow of publicity before it can taint a trial. Thus,

211 247 U.S. at 418–21.

212 263 U.S. 255 (1923).

213 313 U.S. 33, 47–53 (1941).

214 314 U.S. 252, 260 (1941).

215 See also Wood v. Georgia, 370 U.S. 375 (1962), further clarifying the limitations imposed by the First Amendment upon this judicial power and delineating the

requisite serious degree of harm to the administration of law necessary to justify

exercise of the contempt power to punish the publisher of an out-of-court statement

attacking a charge to the grand jury, absent any showing of actual interference with

the activities of the grand jury.

It is now clearly established that courtroom conduct to be punishable as contempt “must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.” Craig v. Harney, 331 U.S. 367, 376 (1947); In re Little, 404 U.S. 553,

555 (1972).

216 E.g., Estes v. Texas, 381 U.S. 532 (1965); Marshall v. United States, 360 U.S.

310 (1959); Sheppard v. Maxwell, 384 U.S. 333 (1966).

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Justice Clark, speaking for the majority in Sheppard v. Maxwell,

217

wrote, “If publicity during the proceedings threatens the fairness of

the trial, a new trial should be ordered. But we must remember

that reversals are but palliatives; the cure lies in those remedial

measures that will prevent the prejudice at its inception. . . . Neither prosecutors, counsel for defense, the accused, witness, court staff

nor law enforcement officers coming under the jurisdiction of the

court should be permitted to frustrate its function. Collaboration

between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly

censurable and worthy of disciplinary measures.” Though the regulation the Justice had in mind was presumably to be of the parties

and related persons rather than of the press, the potential for conflict with the First Amendment is obvious, as well as is the necessity for protection of the equally important right to a fair trial.218

Due Process Limitations on Contempt Power: Right to Notice and to a Hearing Versus Summary Punishment.—

Misbehavior in the course of a trial may be punished summarily by

the trial judge. In Ex parte Terry,

219 the Court denied habeas corpus relief to a litigant who had been jailed for assaulting a United

States marshal in the presence of the court. In Cooke v. United

States,

220 however, the Court remanded for further proceedings a

judgment jailing 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.” 221

As to the timeliness of summary punishment, the Court, in Sacher

v. United States,

222 at first construed Rule 42(a) of the Federal Rules

of Criminal Procedure, which was designed to afford judges clearer

217 384 U.S. 333, 363 (1966).

218 For another approach, bar rules regulating the speech of counsel and the

First Amendment standard, see Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).

219 128 U.S. 289 (1888).

220 267 U.S. 517 (1925).

221 267 U.S. at 535, 534.

222 343 U.S. 1 (1952).

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700 ART. III—JUDICIAL DEPARTMENT
guidelines as to the exercise of their contempt power, to allow “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.” 223 Subsequently, however, interpreting the Due Process Clause and thus

binding both federal and state courts, the Court held that, although the trial judge may summarily and without notice or hearing punish contemptuous conduct committed in his presence and

observed by him, if he does choose to wait until the conclusion of

the proceeding, he must afford the alleged contemnor at least reasonable notice of the specific charge and opportunity to be heard in

his own defense. Apparently, a “full scale trial” is not contemplated.224

Curbing the judge’s power to consider conduct as occurring in

his presence, the Court, in Harris v. United States,

225 held that summary contempt proceedings in aid of a grand jury probe, achieved

through swearing the witness and repeating the grand jury’s questions in the presence of the judge, did not constitute contempt “in

the actual presence of the court” for purposes of Rule 42(a); rather,

the absence of a disturbance in the court’s proceedings or of the

need to immediately vindicate the court’s authority makes the witness’ refusal to testify an offense punishable only after notice and a

hearing.226 Moreover, when it is not clear that the judge was fully

aware of the contemptuous behavior when it occurred, notwithstanding the fact that it occurred during the trial, “a fair hearing would

entail the opportunity to show that the version of the event related

to the judge was inaccurate, misleading, or incomplete.” 227

223 343 U.S. at 11.

224 Taylor v. Hayes, 418 U.S. 488 (1974). In a companion case, the Court observed that, although its rule conceivably encourages a trial judge to proceed immediately rather than awaiting a calmer moment, “[s]ummary convictions during trials that are unwarranted by the facts will not be invulnerable to appellate review.”

Codispoti v. Pennsylvania, 418 U.S. 506, 517 (1974).

225 382 U.S. 162 (1965), overruling Brown v. United States, 359 U.S. 41 (1959).

226 But see Green v. United States, 356 U.S. 165 (1958) (noncompliance with order directing defendants to surrender to marshal for execution of their sentence is

an offense punishable summarily as a criminal contempt); Reina v. United States,

364 U.S. 507 (1960).

227 Johnson v. Mississippi, 403 U.S. 212, 215 (1971) (citing In re Oliver, 333 U.S.

257, 275–276 (1948)).

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ART. III—JUDICIAL DEPARTMENT 701
Due Process Limitations on Contempt Power: Right to Jury

Trial.—Originally, the right to a jury trial was not available in criminal contempt cases.228 But the Court held in Cheff v. Schnackenberg,

229

that a defendant is entitled to trial by jury when the punishment

in a criminal contempt case in federal court is more than the sentence for a petty offense, traditionally six months. Although the ruling was made pursuant to the Supreme Court’s supervisory powers

and was thus inapplicable to state courts and presumably subject

to legislative revision, two years later the Court held that the Constitution also requires jury trials in criminal contempt cases in which

the offense was more than a petty one.230 Whether an offense is

petty or not is determined by the maximum sentence authorized by

the legislature or, in the absence of a statute, by the sentence actually imposed. Again the Court drew the line between petty offenses

and more serious ones at six months’ imprisonment. Although this

case involved an indirect criminal contempt (willful petitioning to

admit to probate a will known to be falsely prepared) the majority

in dictum indicated that even in cases of direct contempt a jury will

be required in appropriate instances. “When a serious contempt is

at issue, considerations of efficiency must give way to the more fundamental interest of ensuring the even-handed exercise of judicial

power.” 231 Presumably, there is no equivalent right to a jury trial

in civil contempt cases,232 although one could spend much more time

in jail pursuant to a judgment of civil contempt than one could for

228 See Green v. United States, 356 U.S. 165 (1958); United States v. Barnett,

376 U.S. 681 (1964), and cases cited. The dissents of Justices Black and Douglas in

those cases prepared the ground for the Court’s later reversal. On the issue, see Frankfurter and Landis, Power of Congress over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts—A Study in Separation of Powers, 37 HARV. L. REV. 1010, 1042–

1048 (1924).

229 384 U.S. 373 (1966).

230 Bloom v. Illinois, 391 U.S. 194 (1968). See also International Union, UMW v.

Bagwell, 512 U.S. 821 (1994) (refining the test for when contempt citations are criminal and thus require jury trials).

231 391 U.S. at 209. In Codispoti v. Pennsylvania, 418 U.S. 506 (1974), the Court

held a jury trial to be required when the trial judge awaits the conclusion of the

proceeding and then imposes separate contempt sentences in which the total aggregated more than six months even though no sentence for more than six months was

imposed for any single act of contempt. For a tentative essay at defining a petty

offense when a fine is levied, see Muniz v. Hoffman, 422 U.S. 454, 475–77 (1975). In

International Union, UMW v. Bagwell, 512 U.S. 821, 837 n.5 (1994), the Court continued to reserve the question of the distinction between petty and serious contempt fines, because of the size of the fine in that case.

232 The Sixth Amendment is applicable only to criminal cases and the Seventh

to suits at common law, but the due process clause is available if needed.

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702 ART. III—JUDICIAL DEPARTMENT
most criminal contempts.233 The Court has, however, expanded the

right to jury trials in federal civil cases on nonconstitutional grounds.234

Due Process Limitations on Contempt Powers: Impartial

Tribunal.—In Cooke v. United States,

235 Chief Justice Taft uttered

some cautionary words to guide trial judges in the use of their contempt powers. “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. The United States, 299 Fed. 283, 285; Toledo Company v. The United States, 237 Fed. 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.” 236

Sacher v. United States 237 grew out of a tempestuous trial of

eleven Communist Party leaders in which Sacher and others were

counsel for the defense. Upon the conviction of the defendants, the

trial judge at once found counsel guilty of criminal contempt and

233 Note that under 28 U.S.C. § 1826 a recalcitrant witness before a grand jury

may be imprisoned for the term of the grand jury, which can be 36 months. 18 U.S.C.

§ 3331(a).

234 E.g., Beacon Theatres v. Westover, 359 U.S. 500 (1959); Dairy Queen v. Wood,

369 U.S. 469 (1962); Ross v. Bernhard, 396 U.S. 531 (1970). However, the Court’s

expansion of jury trial rights may have halted with McKeiver v. Pennsylvania, 403

U.S. 528 (1971).

235 267 U.S. 517, 539 (1925).

236 The Toledo Company case that the Court cited was affirmed in Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918).

237 343 U.S. 1 (1952). See Dennis v. United States, 341 U.S. 494 (1951).

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ART. III—JUDICIAL DEPARTMENT 703
imposed jail terms of up to six months. At issue directly was whether

the contempt charged was one that the judge was authorized to determine for himself or whether it was one that under Rule 42(b)

could be passed upon only by another judge and only after notice

and hearing, but behind this issue loomed the applicability and nature of due process requirements, in particular whether the defense attorneys were constitutionally entitled to trial before a different judge. A divided Court affirmed most of the convictions, set aside

others, and denied that due process required a hearing before a different judge. “We hold 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.” 238

In Offutt v. United States,

239 acting under its supervisory powers over the lower federal courts, the Court set aside a criminal

contempt conviction imposed on a lawyer after a trial marked by

highly personal recriminations between the trial judge and the lawyer. In a situation in which the record revealed that the contumacious conduct was the product of both lack of self-restraint on the

part of the contemnor and a reaction to the excessive zeal and personal animosity of the trial judge, the majority felt that any contempt trial must be held before another judge. This holding, that

when a judge becomes personally embroiled in the controversy with

an accused he must defer trial of his contempt citation to another

judge, which was founded on the Court’s supervisory powers, was

238 343 U.S. at 11, 13–14.

239 348 U.S. 11 (1954).

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704 ART. III—JUDICIAL DEPARTMENT
constitutionalized in Mayberry v. Pennsylvania,

240 in which a defendant acting as his own counsel engaged in quite personal abuse of

the trial judge. The Court appeared to leave open the option of the

trial judge to act immediately and summarily to quell contempt by

citing and convicting an offender, thus empowering the judge to keep

the trial going,241 but if he should wait until the conclusion of the

trial he must defer to another judge.

Contempt by Disobedience of Orders.—Disobedience of injunctive orders, particularly in labor disputes, has been a fruitful

source of cases dealing with contempt of court. In United States v.

United Mine Workers,

242 the Court held, first, 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.243 Second, 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.244 Third, on the basis of United

States v. Shipp,

245 the Court held that violations of a court’s order

are punishable as criminal contempt, even if the order is set aside

on appeal as in excess of the court’s jurisdiction and even if the

basic action has become moot.246 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 punitive measures, which may be imposed in a single proceeding.247

Contempt Power in Aid of Administrative Power.—

Proceedings to enforce the orders of administrative agencies and subpoenas issued by them to appear and produce testimony have be240 400 U.S. 455 (1971). See also Johnson v. Mississippi, 403 U.S. 212 (1971);

Holt v. Virginia, 381 U.S. 131 (1965). Even in the absence of a personal attack on a

judge that would tend to impair his detachment, the judge may still be required to

excuse himself and turn a citation for contempt over to another judge if the response to the alleged misconduct in his courtroom partakes of the character of “marked

personal feelings” being abraded on both sides, so that it is likely the judge has felt

a “sting” sufficient to impair his objectivity. Taylor v. Hayes, 418 U.S. 488 (1974).

241 400 U.S. at 463. See Illinois v. Allen, 397 U.S. 337 (1970), in which the Court

affirmed that summary contempt or expulsion may be used to keep a trial going.

242 330 U.S. 258 (1947). See also International Union, UMW v. Bagwell, 512 U.S.

821 (1994).

243 330 U.S. at 292–93.

244 330 U.S. at 293. See Walker v. City of Birmingham, 388 U.S. 307 (1967).

245 203 U.S. 563 (1906).

246 330 U.S. at 290–92.

247 330 U.S. at 299. But see Cheff v. Schnackenberg, 384 U.S. 273 (1966), and

“Due Process Limitations on Contempt Power: Right to Jury Trial,” supra.

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ART. III—JUDICIAL DEPARTMENT 705
come increasingly common since the leading case of ICC v. Brimson,

248

which held that the contempt power of the courts might by statutory authorization be used to aid 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.249 Notwithstanding the

power of administrative agencies to cite an individual for contempt, however, such bodies must be acting within the authority

that has been lawfully delegated to them.250

Sanctions Other Than Contempt

Long recognized by the courts as inherent powers are those authorities that are necessary to the administration of the judicial system itself, of which the contempt power just discussed is only the

most controversial.251 Courts, as elements of an independent and

coequal branch of government, once they are created and their jurisdiction established, have the authority to do what courts have

traditionally done in order to accomplish their assigned tasks.252 Of

course, these inherent powers may be limited by statutes and by

rules,253 but, just as noted above in the discussion of the same issue with respect to contempt, the Court asserts both the power to

act in areas not covered by statutes and rules and the power to act

unless Congress has not only provided regulation of the exercise of

248 154 U.S. 447 (1894).

249 Penfield Co. v. SEC, 330 U.S. 585 (1947). Note the dissent of Justice Frankfurter. For delegations of the subpoena power to administrative agencies and the

use of judicial process to enforce them, see also McCrone v. United States, 307 U.S.

61 (1939); Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943); Oklahoma Press

Pub. Co. v. Walling, 327 U.S. 186 (1946).

250 Gojack v. United States, 384 U.S. 702 (1966). See also Sanctions of the Investigatory Power: Contempt, supra, for a discussion of Congress’s power to cite an individual for contempt by virtue of its investigatory duties, which is applicable, at

least by analogy, to administrative agencies.

251 “Certain implied powers must necessarily result to our courts of justice, from

the nature of their institution. . . . To fine for contempt, imprison for contumacy,

enforce the observance of order, &c., are powers which cannot be dispensed with in

a court, because they are necessary to the exercise of all others: and so far our courts,

no doubt, possess powers not immediately derived from statute . . . .” United States

v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 34 (1812).

252 See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227 (1821); Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1874); Link v. Wabash R.R., 370 U.S. 626, 630–631

(1962); Chambers v. NASCO, Inc., 501 U.S. 32, 43–46 (1991); and id. at 58 (Justice

Scalia dissenting), 60, 62–67 (Justice Kennedy dissenting).

253 Chambers v. NASCO, Inc., 501 U.S. at 47.

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706 ART. III—JUDICIAL DEPARTMENT
the power, but also has unmistakably enunciated its intention to

limit the courts’ inherent powers.254

Thus, in Chambers v. NASCO, Inc., the Court upheld the imposition of monetary sanctions against a litigant and his attorney for

bad-faith litigation conduct in a diversity case. Some of the conduct

was covered by a federal statute and several sanction provisions of

the Federal Rules of Civil Procedure, but some was not, and the

Court held that, absent a showing that Congress had intended to

limit the courts, they could use their inherent powers to impose sanctions for the entire course of conduct, including shifting attorneys’

fees, which is ordinarily against the common-law American rule.255

In another case, a party failed to comply with discovery orders and

a court order concerning a schedule for filing briefs. The Supreme

Court held that the attorneys’ fees statute did not allow assessment of such fees in that situation, but it remanded for consideration of sanctions under both a Federal Rule of Civil Procedure and

the trial court’s inherent powers, subject to a finding of bad faith.256

But bad faith is not always required for the exercise of some inherent powers. Thus, courts may dismiss an action for an unexplained

failure of the moving party to prosecute it.257

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 its power to regulate the issuance

of writs.258 Section 13 of the Judiciary Act of 1789 authorized the

Supreme Court “to issue writs of prohibition to the district courts,

when proceeding as courts of admiralty and maritime jurisdiction,

and 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.” 259 Section 14 provided

that all “courts of the United States shall have power to issue writs

254 501 U.S. at 46–51. But see id. at 62–67 (Justice Kennedy dissenting).

255 501 U.S. at 49–51. On the implications of the fact that this was a diversity

case, see id. at 51–55.

256 Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980).

257 Link v. Wabash R.R., 370 U.S. 626 (1962).

258 Frankfurter & Landis, Power of Congress Over Procedure in Criminal Contempts

in ‘Inferior’ Federal Courts—A Study in Separation of Powers, 37 HARV. L. REV. 1010,

1016–1023 (1924).

259 1 Stat. 73, 81. “Section 13 was a provision unique to the Court, granting

the power of prohibition as to district courts in admiralty and maritime cases . . . .”

WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 2D § 4005, p.

98 (1996). See also R. FALLON, ET AL., HART AND WECHSLER’S THE FEDERAL COURTS AND THE

FEDERAL SYSTEM (6th ed. 2009), Ch. III, p. 268 (hereinafter Hart & Wechsler (6th ed.))

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ART. III—JUDICIAL DEPARTMENT 707
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.” 260

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.261 Whether

Article III itself is an independent source of the power of federal

courts to fashion equitable remedies for constitutional violations or

whether such remedies must fit within congressionally authorized

writs or procedures is often left unexplored. In Missouri v. Jenkins,

262 for example, the Court, rejecting a claim that a federal court

exceeded judicial power under Article III by ordering local authorities to increase taxes to pay for desegregation remedies, declared

that “a court order directing a local government body to levy its

own taxes” is plainly a judicial act within the power of a federal

court.263 In the same case, the Court refused to rule on “the difficult constitutional issues” presented by the state’s claim that the

district court had exceeded its constitutional powers in a prior order directly raising taxes, instead ruling that this order had violated principles of comity.264

Common Law Powers of District of Columbia Courts.—

The portion of § 13 of the Judiciary Act of 1789 that authorized the

Supreme Court to issue writs of mandamus in the exercise of its

original jurisdiction was held invalid in Marbury v. Madison,

265 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

260 1 Stat. 73, 81–82. See also United States v. Morgan, 346 U.S. 502 (1954),

holding that the All Writs section of the Judicial Code, 28 U.S.C. § 1651(a), gives

federal courts the power to employ the ancient writ of coram nobis.

261 This proposition was recently reasserted in Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34 (1985) (holding that a federal

district court lacked authority to order U.S. marshals to transport state prisoners,

such authority not being granted by the relevant statutes).

262 495 U.S. 33 (1990).

263 495 U.S. at 55, citing Griffin v. Prince Edward County School Bd., 377 U.S.

218, 233–34 (1964) (an order that local officials “exercise the power that is theirs” to

levy taxes in order to open and operate a desegregated school system “is within the

court’s power if required to assure . . . petitioners that their constitutional rights

will no longer be denied them”).

264 495 U.S. at 50–52.

265 5 U.S. (1 Cr.) 137 (1803). Cf. Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321 (1796).

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708 ART. III—JUDICIAL DEPARTMENT
except in aid of already existing jurisdiction,266 a litigant was successful in Kendall v. United States ex rel. Stokes,

267 in finding a court

that 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 that 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.268

Habeas Corpus: Congressional and Judicial Control.—

The writ of habeas corpus 269 has a special status because its suspension is forbidden, except in narrow circumstances, by Article I,

§ 9, cl. 2. The writ also has a venerable common law tradition, long

antedating its recognition by the first Congress in the Judiciary Act

of 1789,270 as a means “to relieve detention by executive authorities without judicial trial.” 271 Nowhere in the Constitution, however, is the power to issue the writ vested in the federal courts,

which raises the question of whether Congress could suspend the

writ de facto by declining to authorize its issuance. In other words,

is a statute needed to make the writ available or does the right to

266 McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); McClung v. Silliman, 19 U.S. (6

Wheat.) 598 (1821).

267 37 U.S. (12 Pet.) 524 (1838).

268 In 1962, Congress conferred upon all federal district courts the same power

to issue writs of mandamus as was exercisable by federal courts in the District of

Columbia. 76 Stat. 744, 28 U.S.C. § 1361.

269 Reference to the “writ of habeas corpus” is to the “Great Writ,” habeas corpus ad subjiciendum, by which a court would inquire into the lawfulness of a detention of the petitioner. Ex parte Bollman, 8 U.S. (4 Cr.) 75, 95 (1807). For other uses,

see Carbo v. United States, 364 U.S. 611 (1961); Price v. Johnston, 334 U.S. 266

(1948). Technically, federal prisoners no longer utilize the writ of habeas corpus in

seeking post-conviction relief, now the largest office of the writ, but proceed under

28 U.S.C. § 2255, on a motion to vacate judgment. Intimating that if § 2255 afforded prisoners a less adequate remedy than they would have under habeas corpus, it would be unconstitutional, the Court in United States v. Hayman, 342 U.S.

205 (1952), held the two remedies to be equivalent. Cf. Sanders v. United States,

373 U.S. 1, 14 (1963). The claims cognizable under one are cognizable under the

other. Kaufman v. United States, 394 U.S. 217 (1969). Therefore, the term habeas

corpus is used here to include the § 2255 remedy. There is a plethora of writings

about the writ. See, e.g., Hart & Wechsler (6th ed), supra at 1153–1310; Developments in the Law: Federal Habeas Corpus, 83 HARV. L. REV. 1038 (1970).

270 Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82.

271 INS v. St. Cyr, 533 U.S. 289, 301 (2001), quoted in Rasul v. Bush, 542 U.S.

466, 474 (2004).

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ART. III—JUDICIAL DEPARTMENT 709
habeas corpus stem by implication from the Suspension Clause or

from the grant of judicial power? 272

Since Chief Justice Marshall’s opinion in Ex parte Bollman,

273

it was generally 274 accepted that “the power to award the writ by

any of the courts of the United States, must be given by written

law.” 275 As Marshall explained, however, the suspension clause was

an “injunction,” an “obligation” to provide “efficient means by which

this great constitutional privilege should receive life and activity;

for if the means be not in existence, the privilege itself would be

lost, although no law for its suspension should be enacted.” 276 And

so it has been understood since,277 with only a few judicial voices

raised to suggest that what Congress could not do directly (by suspension) it could not do by omission (by failing to provide for habeas).278 But, because statutory authority had always existed authorizing the federal courts to grant the relief they deemed necessary

under habeas corpus, the Court did not need to face the question.279

Having determined in Bollman that a statute was necessary before the federal courts had power to issue writs of habeas corpus,

Chief Justice Marshall pointed to § 14 of the Judiciary Act of 1789

as containing the necessary authority.280 As the Chief Justice read

it, the authorization was limited to persons imprisoned under federal authority. It was not until 1867, with two small exceptions,281

272 Professor Chafee contended that by the time of the Constitutional Convention the right to habeas corpus was so well established no affirmative authorization

was needed. The Most Important Human Right in the Constitution, 32 B.U.L. REV.

143, 146 (1952). But compare Collins, Habeas Corpus for Convicts: Constitutional

Right or Legislative Grace?, 40 CALIF. L. REV. 335, 344–345 (1952).

273 8 U.S. (4 Cr.) 75 (1807).

274 8 U.S. at 94. See also Ex parte Dorr, 44 U.S. (3 How.) 103 (1845).

275 8 U.S. at 64.

276 8 U.S. at 95. In quoting the clause, Marshall renders “shall not be suspended” as “should not be suspended.”

277 See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). Cf. Carbo v. United

States, 364 U.S. 611, 614 (1961).

278 E.g., Eisentrager v. Forrestal, 174 F.2d 961, 966 (D.C. Cir. 1949), revd. on

other grounds sub nom., Johnson v. Eisentrager, 339 U.S. 763 (1950) (holding that

habeas exists as an inherent common law right); see also Justice Black’s dissent, id.

at 791, 798: “Habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by courts cannot in my judgment be

constitutionally abridged by Executive or by Congress.” And, in Jones v. Cunningham, 371 U.S. 236, 238 (1963), the Court said: “The habeas corpus jurisdictional statute implements the constitutional command that the writ of habeas corpus be made available.” (Emphasis added).

279 Cf. Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869).

280 Ex parte Bollman, 8 U.S. (4 Cr.) 75, 94 (1807). See Fay v. Noia, 372 U.S.

391, 409 (1963).

281 Act of March 2, 1833, § 7, 4 Stat. 634 (federal officials imprisoned for enforcing federal law); Act of August 29, 1842, 5 Stat. 539 (foreign nationals detained by a

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that legislation specifically empowered federal courts to inquire into

the imprisonment of persons under state authority.282 Pursuant to

this authorization, the Court then expanded the use of the writ into

a major instrument to reform procedural criminal law in both federal and state jurisdictions.

However, the question then arose as to what aspects of this broader

habeas are protected against suspension. Noting that the statutory

writ of habeas corpus has been expanded dramatically since the First

Congress, the Court has written that it “assume[s] . . . that the Suspension Clause of the Constitution refers to the writ as it exists

today, rather than as it existed in 1789.” 283 This statement, however, appears to be in tension with the theory of congressionally

defined habeas found in Bollman, unless one assumes that a habeas right, once created, cannot be diminished. The Court, however, in reviewing provisions of the Antiterrorism and Effective Death

Penalty Act 284 that limited habeas, passed up an opportunity to delineate Congress’s permissive authority over habeas, finding that none

of the limitations to the writ in that statute raised questions of constitutional import.285

For practical purposes, the issue appears to have been resolved

by Boumediene v. Bush,

286 in which the Court held that Congress’s

attempt to eliminate all federal habeas jurisdiction over “enemy combatant” detainees held at Guantanamo Bay 287 violated the Suspension Clause. Although the Court did not explicitly identify whether

state in violation of a treaty). See also Bankruptcy Act of April 4, 1800,§ 38, 2 Stat.

19, 32 (habeas corpus for imprisoned debtor discharged in bankruptcy), repealed by

Act of December 19, 1803, 2 Stat. 248.

282 The act of February 5, 1867, 14 Stat. 385, conveyed power to federal courts

“to grant writs of habeas corpus in all cases where any person may be restrained of

his or her liberty in violation of the constitution, or of any treaty or law of the United

States. . . .” On the law with respect to state prisoners prior to this statute, see Ex

parte Dorr, 44 U.S. (3 How.) 103 (1845); cf. Elkison v. Deliesseline, 8 Fed. Cas. 493

(No. 4366) (C.C.D.S.C. 1823) (Justice Johnson); Ex parte Cabrera, 4 Fed. Cas. 964

(No. 2278) (C.C.D. Pa. 1805) (Justice Washington).

283 Felker v. Turpin, 518 U.S. 651, 663–64 (1996). See INS v. St. Cyr, 533 U.S.

289, 300–01 (2001) (leaving open the question of whether post-1789 legal developments are protected); Swain v. Pressley, 430 U.S. 372 (1977) (finding “no occasion”

to define the contours of constitutional limits on congressional modification of the

writ).

284 Pub. L. 104–132, §§ 101–08, 110 Stat. 1214, 1217–26, amending, inter alia,

28 U.S.C. §§ 2244, 2253, 2254, 2255, and Fed. R. App. P. 22.

285 Felker v. Turpin, 518 U.S. 651 (1996).

286 128 S. Ct. 2229 (2008).

287 In Rasul v. Bush, 542 U.S. 466 (2004), the Court found that 28 U.S.C. § 2241,

the federal habeas statute, applied to these detainees. Congress then removed all

court jurisdiction over these detainees under the Detainee Treatment Act of 2005,

Pub. L. 109–148, § 1005(e)(1) (providing that “no court . . . shall have jurisdiction

to hear or consider . . . an application for . . . habeas corpus filed by . . . an alien

detained . . . at Guantanamo Bay).” After the Court decided in Hamdan v. Rumsfeld,

548 U.S. 557 (2006), that the Detainee Treatment Act did not apply to detainees

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ART. III—JUDICIAL DEPARTMENT 711
the underlying right to habeas that was at issue arose from statute, common law, or the Constitution itself, it did decline to infer

“too much” from the lack of historical examples of habeas being extended to enemy aliens held overseas.288 In Boumediene, the Court

instead emphasized a “functional” approach that considered the citizenship and status of the detainee, the adequacy of the process through

which the status determination was made, the nature of the sites

where apprehension and detention took place, and any practical obstacles inherent in resolving the prisoner’s entitlement to the writ.289

In further determining that the procedures afforded to the detainees to challenge their detention in court were not adequate substitutes for habeas, the Court noted the heightened due process concerns when a detention is based principally on Executive Branch

proceedings—here, Combatant Status Review Tribunals or (CSRTs)—

rather than proceedings before a court of law.290 The Court also expressed concern that the detentions had, in some cases, lasted as

long as six years without significant judicial oversight.291 The Court

further noted the limitations at the CSRT stage on a detainee’s ability to find and present evidence to challenge the government’s case,

the unavailability of assistance of counsel, the inability of a detainee to access certain classified government records which could

contain critical allegations against him, and the admission of hearsay evidence. While reserving judgment as to whether the CSRT

process itself comports with due process, the Court found that the

appeals process for these decisions, assigned to the United States

Court of Appeals for the District of Columbia, did not contain the

means necessary to correct errors occurring in the CSRT process.292

whose cases were pending at the time of enactment, it was amended by the Military Commissions Act of 2006, Pub. L. 109–366, to also apply to pending cases where

a detainee had been determined to be an enemy combatant.

288 128 S. Ct. at 2251.

289 128 S. Ct. at 2258, 2259.

290 Under the Detainee Treatment Act, Pub. L. 109–148, Title X, Congress granted

only a limited appeal right to determination made by the Executive Branch as to

“(I) whether the status determination of [a] Combatant Status Review Tribunal . . .

was consistent with the standards and procedures specified by the Secretary of Defense . . . and (ii) to the extent the Constitution and laws of the United States are

applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” § 1005(e)(2)(C).

291 128 S. Ct. at 2263, 2275.

292 The Court focused in particular on the inability of the reviewing court to

admit and consider relevant exculpatory evidence that was not introduced in the

prior proceeding. The Court also listed other potential constitutional infirmities in

the review process, including the absence of provisions empowering the D.C. Circuit

to order release from detention, and not permitting petitioners to challenge the President’s authority to detain them indefinitely.

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712 ART. III—JUDICIAL DEPARTMENT
Habeas Corpus: The Process of the Writ.—A petition for a

writ of habeas corpus is filed by or on behalf of a person in “custody,” a concept which has been expanded so much that it is no longer restricted to actual physical detention in jail or prison.293 The

writ acts upon the custodian, not the prisoner, so the issue under

the jurisdictional statute is whether the custodian is within the district court’s jurisdiction.294 Traditionally, the proceeding could not

be used to secure an adjudication of a question which if determined in the petitioner’s favor would not result in his immediate

release, since a discharge from custody was the only function of the

writ,295 but this restraint too the Court has abandoned in an emphasis upon the statutory language directing the habeas court to

“dispose of the matter as law and justice require.” 296 Thus, even if

a prisoner has been released from jail, the presence of collateral

consequences flowing from his conviction gives the court jurisdiction to determine the constitutional validity of the conviction.297

Petitioners seeking federal habeas relief must first exhaust their

state remedies, a limitation long settled in the case law and codified in 1948.298 Prisoners are required to present their claims in

293 28 U.S.C. §§ 2241(c), 2254(a). “Custody” does not mean one must be confined; a person on parole or probation is in custody. Jones v. Cunningham, 371 U.S.

236 (1963). A person on bail or on his own recognizance is in custody, Justices of

Boston Mun. Court v. Lydon, 466 U.S. 294, 300–301 (1984); Lefkowitz v. Newsome,

420 U.S. 283, 291 n.8 (1975); Hensley v. Municipal Court, 411 U.S. 345 (1973), and

Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), held that an inmate of

an Alabama prison was also sufficiently in the custody of Kentucky authorities who

had lodged a detainer with Alabama to obtain the prisoner upon his release.

294 Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494–95 (1973) (issue is

whether “the custodian can be reached by service of process”). See also Rasul v. Bush,

542 U.S. 466 (2004) (federal district court for District of Columbia had jurisdiction

of habeas petitions from prisoners held at U.S. Naval base at Guantanamo Bay, Cuba);

Rumsfeld v. Padilla, 542 U.S. 426 (2004) (federal district court in New York lacks

jurisdiction over prisoner being held in a naval brig in Charleston, South Carolina;

the commander of the brig, not the Secretary of Defense, is the immediate custodian and proper respondent).

295 McNally v. Hill, 293 U.S. 131 (1934); Parker v. Ellis, 362 U.S. 574 (1960).

296 28 U.S.C. § 2243. See Peyton v. Rowe, 391 U.S. 54 (1968). See also Maleng v.

Cook, 490 U.S. 488 (1989).

297 Carafas v. LaVallee, 391 U.S. 234 (1968), overruling Parker v. Ellis, 362 U.S.

574 (1960). In Peyton v. Rowe, 391 U.S. 54 (1968), the Court overruled McNally v.

Hill, 293 U.S. 131 (1934), and held that a prisoner may attack on habeas the second

of two consecutive sentences while still serving the first. See also Walker v. Wainwright, 390 U.S. 335 (1968) (prisoner may attack the first of two consecutive sentences although the only effect of a successful attack would be immediate confinement on the second sentence). Braden v. 30th Judicial Circuit Court , 410 U.S. 484

(1973), held that one sufficiently in custody of a state could use habeas to challenge

the state’s failure to bring him to trial on pending charges.

298 28 U.S.C. § 2254(b). See Preiser v. Rodriguez, 411 U.S. 475, 490–497 (1973),

and id. at 500, 512–24 (Justice Brennan dissenting); Rose v. Lundy, 455 U.S. 509,

515–21 (1982). If a prisoner submits a petition with both exhausted and unexhausted

claims, the habeas court must dismiss the entire petition. Rose v. Lundy, 455 U.S.

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ART. III—JUDICIAL DEPARTMENT 713
state court only once, either on appeal or collateral attack, and they

need not return time and again to raise their issues before coming

to federal court.299 In addition, “[w]hen a state court declines to review the merits of a petitioner’s claim on the ground that it has

done so already, it creates no bar to federal habeas review. . . . A

claim is procedurally barred when it has not been fairly presented

to the state courts for their initial consideration—not when the claim

has been presented more than once.” 300

Although they were once required to petition the Supreme Court

on certiorari to review directly their state convictions, prisoners have

been relieved of this largely pointless exercise,301 but, if the Supreme Court has taken and decided a case, then its judgment is

conclusive in habeas on all issues of fact or law actually adjudicated.302 A federal prisoner in a § 2255 proceeding will file his motion in the court that sentenced him; 303 a state prisoner in a federal habeas action may file either in the district of the court in which

he was sentenced or in the district in which he is in custody.304

Habeas corpus is not a substitute for an appeal.305 It is not a

method to test ordinary procedural errors at trial or violations of

state law but only to challenge alleged errors which if established

would go to make the entire detention unlawful under federal law.306

If, after appropriate proceedings, the habeas court finds that on the

facts discovered and the law applied the prisoner is entitled to relief, it must grant it, ordinarily ordering the government to release

the prisoner unless he is retried within a certain period.307

at 518–519. Exhaustion first developed in cases brought by persons in state custody

prior to any judgment. Ex parte Royall, 117 U.S. 241 (1886); Urquhart v. Brown,

205 U.S. 179 (1907).

299 Brown v. Allen, 344 U.S. 443, 447–450 (1953); id. at 502 (Justice Frankfurter concurring); Castille v. Peoples, 489 U.S. 346, 350 (1989).

300 Cone v. Bell, 556 U.S. ___, No. 07–1114, slip op. at 17, 18 (2009).

301 Fay v. Noia, 372 U.S. 391, 435 (1963), overruling Darr v. Burford, 339 U.S.

200 (1950).

302 28 U.S.C. § 2244(c). But an affirmance of a conviction by an equally divided

Court is not an adjudication on the merits. Neil v. Biggers, 409 U.S. 188 (1972).

303 28 U.S.C. § 2255.

304 28 U.S.C. § 2241(d). Cf. Braden v. 30th Judicial Circuit Court, 410 U.S. 484

(1973), overruling Ahrens v. Clark, 335 U.S. 188 (1948), and holding that a petitioner may file in the district in which his custodian is located even though the prisoner may be located elsewhere.

305 Glasgow v. Moyer, 225 U.S. 420, 428 (1912); Riddle v. Dyche, 262 U.S. 333,

335 (1923); Eagles v. United States ex rel. Samuels, 329 U.S. 304, 311 (1946). But

compare Brown v. Allen, 344 U.S. 443, 558–560 (1953) (Justice Frankfurter dissenting in part).

306 Estelle v. McGuire, 502 U.S. 62 (1991); Lewis v. Jeffers, 497 U.S. 764, 780

(1990); Pulley v. Harris, 465 U.S. 37, 41–42 (1984).

307 8 U.S.C. § 2244(b). See Whiteley v. Warden, 401 U.S. 560, 569 (1971); Irvin

v. Dowd, 366 U.S. 717, 729 (1961).

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714 ART. III—JUDICIAL DEPARTMENT
Congressional Limitation of the Injunctive Power

Although some judicial dicta 308 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 federal courts. The first limitation on

the equity jurisdiction of the federal courts is to be found in § 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,309 it did assert the power of Congress to regulate the equity powers of the federal courts. The Act of

March 2, 1793,310 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 prohibited the issuance of injunctions in the federal courts to restrain

the collection of taxes,311 provided for a three-judge court as a prerequisite to the issuance of injunctions to restrain the enforcement

of state statutes for unconstitutionality,312 for enjoining federal statutes for unconstitutionality,313 and for enjoining orders of the Interstate Commerce Commission,314 limited the power to issue injunc308 In United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 339 (1906),

Justice Brewer, speaking for the Court, approached a theory of inherent equity jurisdiction when he declared: “The principles of equity exist independently of and anterior to all Congressional legislation, and the statutes are either enunciations of

those principles or limitations upon their application in particular cases.” It should

be emphasized, however, that the Court made no suggestion that it could apply preexisting principles of equity without jurisdiction over the subject matter. Indeed, the

inference is to the contrary. In a dissenting opinion in which Justices McKenna and

Van Devanter joined, in Paine Lumber Co. v. Neal, 244 U.S. 459, 475 (1917), Justice

Pitney contended that Article III, § 2, “had the effect of adopting equitable remedies

in all cases arising under the Constitution and laws of the United States where such

remedies are appropriate.”

309 Boyce’s Executors v. Grundy, 28 U.S. (3 Pet.) 210 (1830).

310 1 Stat. 333, 28 U.S.C. § 2283.

311 26 U.S.C. § 7421(a).

312 This provision was repealed in 1976, save for apportionment and districting

suits and when otherwise required by an Act of Congress. Pub. L. 94–381, § 1, 90

Stat. 1119, and § 3, 28 U.S.C. § 2284. Congress occasionally provides for such courts,

as in the Voting Rights Act, 42 U.S.C. §§ 1971, 1973c.

313 Repealed by Pub. L. 94–381, § 2, 90 Stat. 1119 (1976). Congress occasionally

provides for such courts now, in order to expedite Supreme Court consideration of

constitutional challenges to critical federal laws. See Bowsher v. Synar, 478 U.S. 714,

719–721 (1986) (3-judge court and direct appeal to Supreme Court in the Balanced

Budget and Emergency Deficit Control Act of 1985).

314 Repealed by Pub. L. 93–584, § 7, 88 Stat. 1918.

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ART. III—JUDICIAL DEPARTMENT 715
tions restraining rate orders of state public utility commissions,315

and the use of injunctions in labor disputes,316 and placed a very

rigid restriction on the power to enjoin orders of the Administrator

under the Emergency Price Control Act.317

Perhaps pressing its powers further than prior legislation, Congress has enacted the Prison Litigation Reform Act of 1996.318 Essentially, the law imposes a series of restrictions on judicial remedies in prison-conditions cases. Thus, courts may not issue prospective

relief that extends beyond that necessary to correct the violation of

a federal right that they have found, that is narrowly drawn, is the

least intrusive, and that does not give attention to the adverse impact on public safety. Preliminary injunctive relief is limited by the

same standards. Consent decrees may not be approved unless they

are subject to the same conditions, meaning that the court must

conduct a trial and find violations, thus cutting off consent decrees.

If a decree was previously issued without regard to the standards

now imposed, the defendant or intervenor is entitled to move to vacate it. No prospective relief is to last longer than two years if any

party or intervenor so moves. Finally, a previously issued decree

that does not conform to the new standards imposed by the Act is

subject to termination upon the motion of the defendant or an intervenor. After a short period (30 or 60 days, depending on whether

there is “good cause” for a 30-day extension), such a motion operates as an automatic stay of the prior decree pending the court’s

decision on the merits. The Court upheld the termination and automatic stay provisions in Miller v. French,

319 rejecting the contention that the automatic stay provision offends separation of powers

principles by legislative revision of a final judgment. Rather, Congress merely established new standards for the enforcement of prospective relief, and the automatic stay provision “helps to implement the change in the law.” 320 A number of constitutional challenges

can be expected respecting Congress’s power to limit federal judicial authority to remedy constitutional violations.

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

315 28 U.S.C. § 1342.

316 29 U.S.C. §§ 52, 101–110.

317 56 Stat. 31, 204 (1942).

318 The statute was part of an Omnibus Appropriations Act signed by the President on April 26, 1996. Pub. L. 104–134, §§ 801–10, 110 Stat. 1321–66—1321–77,

amending 18 U.S.C. § 3626.

319 530 U.S. 327 (2000).

320 530 U.S. at 348.

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716 ART. III—JUDICIAL DEPARTMENT
prohibition against the stay of proceedings in state courts,321 but it

has on the whole adhered to the statute. The exceptions raise no

constitutional issues, and the tendency has been alternately to contract and to expand the scope of the exceptions.322

In Duplex Printing Press Co. v. Deering,

323 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 on the use of injunctions in labor disputes in

the Norris-LaGuardia Act of 1932, which has not only been declared constitutional 324 but has been applied liberally 325 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 326 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, § 1, of the Constitution. This power, which Congress

321 Freeman v. Howe, 65 U.S. (24 How.) 450 (1861); Gaines v. Fuentes, 92 U.S.

10 (1876); Ex parte Young, 209 U.S. 123 (1908).

322 See, Anti-Injunction Statute, infra.

323 254 U.S. 443 (1921).

324 Lauf v. E. G. Shinner & Co., 303 U.S. 323 (1938); New Negro Alliance v.

Sanitary Grocery Co., 303 U.S. 552 (1938).

325 In addition to Lauf and New Negro Alliance, see Drivers’ Union v. Valley Co.,

311 U.S. 91, 100–103 (1940), and compare Sinclair Refining Co. v. Atkinson, 370

U.S. 195 (1962), with Boys Markets v. Retail Clerks Union, 398 U.S. 235 (1970).

326 319 U.S. 182 (1943).

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ART. III—JUDICIAL DEPARTMENT 717
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.’ ” 327 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,

328 which sustained

a different phase of the special procedure for appeals under the Emergency Price Control Act.329

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.330 However, this power too is derived from the statutes and cannot go beyond them. The landmark

case is Wayman v. Southard,

331 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,

332 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

327 319 U.S. at 187 (quoting Cary v. Curtis, 44 U.S. (3 How.) 236, 245 (1845).

See South Carolina v. Katzenbach, 383 U.S. 301, 331–332 (1966), upholding a provision of the Voting Rights Act of 1965 that made the district court for the District of

Columbia the only avenue of relief for States seeking to remove the coverage of the

Act.

328 321 U.S. 414 (1944). But compare Adamo Wrecking Co. v. United States, 434

U.S. 275 (1978) (construing statute in way to avoid the constitutional issue raised

in Yakus). In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the Court held

that, when judicial review of a deportation order had been precluded, due process

required that the alien be allowed to make a collateral challenge to the use of that

proceeding as an element of a subsequent criminal proceeding.

329 Ch. 26, 56 Stat. 31, § 204 (1942).

330 Washington-Southern Nav. Co. v. Baltimore & P.S.B.C. Co., 263 U.S. 629 (1924).

331 23 U.S. (10 Wheat.) 1 (1825).

332 106 U.S. 272, 280 (1882).

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718 ART. III—JUDICIAL DEPARTMENT
law confers and limits it.” 333 Conceding, in 1934, the limited competence of legislative bodies to establish a comprehensive system of

court procedure, and acknowledging the inherent power of courts

to regulate the conduct of their business, Congress authorized the

Supreme Court to prescribe rules for the lower federal courts not

inconsistent with the Constitution and statutes.334 Their operation

being restricted, in conformity with the proviso attached to the congressional authorization, to matters of pleading and practice, the

Federal Rules of Civil Procedure thus judicially promulgated neither affect the substantive rights of litigants 335 nor alter the jurisdiction 336 of federal courts and the venue of actions therein 337 and,

thus circumscribed, have been upheld as valid.

Limitations to The Rule Making 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.” 338 As incident

to the judicial power, courts of the United States possess inherent

333 See Miner v. Atlass, 363 U.S. 641 (1960), holding that a federal district court,

sitting in admiralty, has no inherent power, independent of any statute or the Supreme Court’s Admiralty Rules, to order the taking of deposition for the purpose of

discovery. See also Harris v. Nelson, 394 U.S. 286 (1969), in which the Court found

statutory authority in the “All Writs Statute” for a habeas corpus court to propound

interrogatories.

334 In the Act of June 19, 1934, 48 Stat. 1064, and contained in 28 U.S.C. § 2072,

Congress, in authorizing promulgation of rules of civil procedure, reserved the power

to examine and override or amend rules proposed pursuant to the act which it found

to be contrary to its legislative policy. See Sibbach v. Wilson, 312 U.S. 1, 14–16 (1941).

Congress also has authorized promulgation of rules of criminal procedure, habeas,

evidence, admiralty, bankruptcy, and appellate procedure. See Hart & Wechsler (6th

ed.), supra at 533–543 (discussing development of rules and citing secondary authority). Congress in the 1970s disagreed with the direction of proposed rules of evidence and of habeas practice, and, first postponing their effectiveness, enacted revised rules. Pub. L. 93–505, 88 Stat. 1926 (1974); Pub. L. 94–426, 90 Stat. 1334

(1976). On this and other actions, see Hart & Wechsler (6th ed.), supra.

335 However, the abolition of old rights and the creation of new ones in the course

of litigation conducted in conformance with these judicially prescribed federal rules

has been sustained as against the contention of a violation of substantive rights.

Sibbach v. Wilson, 312 U.S. 1, 14 (1941).

336 Cf. United States v. Sherwood, 312 U.S. 584, 589–590 (1941).

337 Mississippi Pub. Corp. v. Murphree, 326 U.S. 438 (1946).

338 Washington-Southern Nav. Co. v. Baltimore & P.S.B.C. Co., 263 U.S. 629, 635,

636 (1924). It is not for the Supreme Court to prescribe how the discretion vested in

a Court of Appeals should be exercised. As long as the latter court keeps within the

Sec. 1—Judicial Power, Courts, Judges

ART. III—JUDICIAL DEPARTMENT 719
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.339

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.340 Such powers are said to be essential

to and inherent in the organization of courts of justice.341 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.342

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 343 to be coequal with the organization of the federal courts.

In the leading case of Ex parte Peterson,

344 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,

bounds of judicial discretion, its action is not reviewable. In re Burwell, 350 U.S.

521 (1956).

339 McDonald v. Pless, 238 U.S. 264, 266 (1915); Griffin v. Thompson, 43 U.S. (2

How.) 244, 257 (1844). See Thomas v. Arn, 474 U.S. 140 (1985) (court of appeal rule

conditioning appeal on having filed with the district court timely objections to a master’s report). In Rea v. United States, 350 U.S. 214, 218 (1956), the Court, citing

McNabb v. United States, 318 U.S. 332 (1943), asserted that this supervisory power

extends to policing the requirements of the Court’s rules with respect to the law

enforcement practices of federal agents. But compare United States v. Payner, 447

U.S. 727 (1980).

340 Gumbel v. Pitkin, 124 U.S. 131 (1888); Covell v. Heyman, 111 U.S. 176 (1884);

Buck v. Colbath, 70 U.S. (3 Wall.) 334 (1866).

341 Eberly v. Moore, 65 U.S. (24 How.) 147 (1861); Arkadelphia Co. v. St. Louis

S.W. Ry., 249 U.S. 134 (1919).

342 Gagnon v. United States, 193 U.S. 451, 458 (1904).

343 69 U.S. (2 Wall.) 123, 128–129 (1864).

344 253 U.S. 300 (1920).

Sec. 1—Judicial Power, Courts, Judges

720 ART. III—JUDICIAL DEPARTMENT
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.” 345 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.

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 counselor, 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.” 346 The TestOath 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.

347 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.348

345 253 U.S. at 312.

346 Ex parte Secombe, 60 U.S. (19 How.) 9, 13 (1857). In Frazier v. Heebe, 482

U.S. 641 (1987), the Court exercised its supervisory power to invalidate a district

court rule respecting the admission of attorneys. See In re Sawyer, 360 U.S. 622

(1959), with reference to the extent to which counsel of record during a pending

case may attribute error to the judiciary without being subject to professional discipline.

347 71 U.S. (4 Wall.) 333 (1867).

348 71 U.S. at 378–80. Although a lawyer is admitted to practice in a federal

court by way of admission to practice in a state court, he is not automatically sent

out of the federal court by the same route, when “principles of right and justice”

require otherwise. A determination of a state court that an accused practitioner should

Sec. 1—Judicial Power, Courts, Judges

ART. III—JUDICIAL DEPARTMENT 721
SECTION 2. Clause 1. The Judicial Power shall extend to all

Cases, in Law and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made, or which shall

be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the

United States shall be a Party;—to Controversies between two

or more States; between a State and Citizens of another State;

between Citizens of different States,—between Citizens of the

same State claiming Land under Grants of different States, and

between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

JUDICIAL POWER AND JURISDICTION-CASES AND

CONTROVERSIES

The potential for abuse of judicial power was of concern to the

Founding Fathers, leading them to establish limits on the circumstance in which the courts could consider cases. When, late in the

Convention, a delegate proposed to extend the judicial power beyond the consideration of laws and treaties to include cases arising

under the Constitution, Madison’s notes captured these concerns.

“Mr. Madison doubted whether it was not going too far to extend

the jurisdiction of the Court generally to cases arising under the

Constitution, and whether it ought not to be limited to cases of a

Judiciary Nature. The right of expounding the Constitution in cases

not of this nature ought not to be given to that Department.” Consequently, “[t]he motion of Docr. Johnson was agreed to nem : con :

be disbarred is not conclusively binding on the federal courts. Theard v. United States,

354 U.S. 278 (1957), citing Selling v. Radford, 243 U.S. 46 (1917). Cf. In re Isserman, 345 U.S. 286, 288 (1953), where it was acknowledged that upon disbarment

by a state court, Rule 2, par. 5 of the Rules of the Supreme Court imposes upon the

attorney the burden of showing cause why he should not be disbarred in the latter,

and upon his failure to meet that burden, the Supreme Court will “follow the finding of the state that the character requisite for membership in the bar is lacking.”

In 348 U.S. 1 (1954), Isserman’s disbarment was set aside for reason of noncompliance with Rule 8 requiring concurrence of a majority of the Justices participating in

order to sustain a disbarment. See also In re Disbarment of Crow, 359 U.S. 1007

(1959). For an extensive treatment of disbarment and American and English precedents thereon, see Ex parte Wall, 107 U.S. 265 (1883).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

722 ART. III—JUDICIAL DEPARTMENT
it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature—.” 349

This passage, and the language of Article III, § 2, makes clear

that the Framers did not intend for federal judges to roam at large

in construing the Constitution and laws of the United States, but

rather preferred and provided for resolution of disputes arising in

a “judicial” manner. This interpretation is reenforced by the refusal

of the Convention to assign the judges the extra-judicial functions

which some members of the Convention—Madison and Wilson notably—conceived for them. Thus, for instance, the Convention four

times voted down proposals for judges, along with executive branch

officials, to sit on a council of revision with the power to veto laws

passed by Congress.350 A similar fate befell suggestions that the Chief

Justice be a member of a privy council to assist the President 351

and that the President or either House of Congress be able to request advisory opinions of the Supreme Court.352 The intent of the

Framers in rejecting the latter proposal was early effectuated when

the Justices declined a request of President Washington to tender

him advice respecting legal issues growing out of United States neutrality between England and France in 1793.353 Moreover, the refusal of the Justices to participate in a congressional plan for awarding veterans’ pensions 354 bespoke a similar adherence to the restricted

role of courts. These restrictions have been encapsulated in a series of principles or doctrines, the application of which determines

whether an issue is met for judicial resolution and whether the parties raising it are entitled to have it judicially resolved. Constitutional restrictions are intertwined with prudential considerations in

the expression of these principles and doctrines, and it is seldom

easy to separate out the two strands.355

The Two Classes of Cases and Controversies

By the terms of the foregoing section, the judicial power extends to nine classes of cases and controversies, which fall into two

349 2 M. Farrand, supra at 430.

350 The proposal was contained in the Virginia Plan. 1 id. at 21. For the four

rejections, see id. at 97–104, 108–10, 138–40, 2 id. at 73–80, 298.

351 Id. at 328–29, 342–44. Although a truncated version of the proposal was reported by the Committee on Detail, id. at 367, the Convention never took it up.

352 Id. at 340–41. The proposal was referred to the Committee on Detail and

never heard of again.

353 1 C. Warren, supra at 108–111; 3 CORRESPONDENCE AND PUBLIC PAPERS OF JOHN

JAY 633–635 (H. Johnston ed., 1893); Hart & Wechsler (6th ed.), supra at 50–52.

354 Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), discussed “Finality of Judgment

as an Attribute of Judicial Power,” supra.

355 See, e.g., Justice Brandeis dissenting in Ashwander v. TVA, 297 U.S. 288,

341, 345–348 (1936). Cf. Flast v. Cohen, 392 U.S. 83, 97 (1968); Rescue Army v. Municipal Court, 331 U.S. 549, 568–575 (1947).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 723
general groups. In the words of Chief Justice Marshall in Cohens

v. Virginia:

356 “In the first, jurisdiction depends on the character of

the cause, whoever may be the parties. This class comprehends ‘all

cases in law and equity arising under this constitution, the laws of

the United States, and treaties made, or which shall be made, under their authority.’ This cause extends the jurisdiction of the court

to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party.

If there be any exception, it is to be implied, against the express

words of the article. In the second class, the jurisdiction depends

entirely on the character of the parties. In this are comprehended

‘controversies between two or more states, between a state and citizens of another state,’ and ‘between a state and foreign states, citizens or subjects.’ If these be the parties, it is entirely unimportant,

what may be the subject of controversy. Be it what it may, these

parties have a constitutional right to come into the courts of the

Union.” 357

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.” 358 The meaning attached to the

terms “cases” and “controversies” 359 determines therefore the extent of the judicial power as well as the capacity of the federal courts

to receive jurisdiction. According to Chief Justice Marshall, judicial

power is capable of acting only when the subject is submitted in a

case and a case arises only when a party asserts his rights “in a

form prescribed by law.” 360 “By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention,

redress, or punishment of wrongs. Whenever the claim of a party

under the Constitution, laws, or treaties of the United States takes

such a form that the judicial power is capable of acting upon it,

then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to

the Court for adjudication.” 361

356 19 U.S. (6 Wheat.) 264 (1821).

357 19 U.S. at 378.

358 Muskrat v. United States, 219 U.S. 346, 356 (1911).

359 The two terms may be used interchangeably, inasmuch as a “controversy,” if

distinguishable from a “case” at all, is so only because it is a less comprehensive

word and includes only suits of a civil nature. Aetna Life Ins. Co. v. Haworth, 300

U.S. 227, 239 (1937).

360 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).

361 In re Pacific Ry. Comm’n, 32 F. 241, 255 (C.C. Calif. 1887) (Justice Field).

See also Smith v. Adams, 130 U.S. 167, 173–174 (1889).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

724 ART. III—JUDICIAL DEPARTMENT
Chief Justice Hughes once essayed a definition, which, however, presents a substantial problem of labels. “A ‘controversy’ in

this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical character; from one that is academic or moot. The controversy must be definite and concrete, touching

the legal relations of parties having adverse legal interests. It must

be a real and substantial controversy admitting of specific relief

through a decree of a conclusive character, as distinguished from

an opinion advising what the law would be upon a hypothetical state

of facts.” 362 Of the “case” and “controversy” requirement, Chief Justice Warren admitted that “those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of

government. Embodied in the words ‘cases’ and ‘controversies’ are

two complementary but somewhat different limitations. In part those

words limit the business of federal courts to questions presented in

an adversary context and in a form historically viewed as capable

of resolution through the judicial process. And in part those words

define the role assigned to the judiciary in a tripartite allocation of

power to assure that the federal courts will not intrude into areas

committed to the other branches of government. Justiciability is the

term of art employed to give expression to this dual limitation placed

upon federal courts by the case and controversy doctrine.” 363 Justice Frankfurter perhaps best captured the flavor of the “case” and

“controversy” requirement by noting that it takes the “expert feel

of lawyers” often to note it.364

From these quotations may be isolated several factors which,

in one degree or another, go to make up a “case” and “controversy.”

Adverse Litigants

The presence of adverse litigants with real interests to contend

for is a standard which has been stressed in numerous cases,365 and

the requirement implicates a number of complementary factors mak362 Aetna Life Ins. Co. v. Haworth, 300 U.S. 229, 240–241 (1937). Cf. Public Service Comm’n v. Wycoff Co., 344 U.S. 237, 242 (1952).

363 Flast v. Cohen, 392 U.S. 83, 94–95 (1968).

364 “The jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitute a ‘case or controversy.’ ” Joint

Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 149, 150 (1951).

365 Lord v. Veazie, 49 U.S. (8 How.) 251 (1850); Chicago & Grand Trunk Ry. v.

Wellman, 143 U.S. 339 (1892); South Spring Hill Gold Mining Co. v. Amador Medean

Gold Mining Co., 145 U.S. 300 (1892); California v. San Pablo & T.R.R., 149 U.S.

308 (1893); Tregea v. Modesto Irrigation District, 164 U.S. 179 (1896); Lampasas v.

Bell, 180 U.S. 276 (1901); Smith v. Indiana, 191 U.S. 138 (1903); Braxton County

Court v. West Virginia, 208 U.S. 192 (1908); Muskrat v. United States, 219 U.S. 346

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 725
ing up a justiciable suit. The requirement was one of the decisive

factors, if not the decisive one, in Muskrat v. United States,

366 in

which the Court struck down a statute authorizing certain named

Indians to bring a test suit against the United States to determine

the validity of a law affecting the allocation of Indian lands. Attorney’s fees of both sides were to be paid out of tribal funds deposited in the United States Treasury. “The judicial power,” said the

Court, “. . . is the right to determine actual controversies arising

between adverse litigants, duly instituted in courts of proper jurisdiction. . . . It is true the United States is made a defendant to

this action, but it has no interest adverse to the claimants. The object is not to assert a property right as against the government, or

to demand compensation for alleged wrongs because of action upon

its part. The whole purpose of the law is to determine the constitutional validity of this class of legislation, in a suit not arising between parties concerning a property right necessarily involved in

the decision in question, but in a proceeding against the government in its sovereign capacity, and concerning which the only judgment required is to settle the doubtful character of the legislation

in question.” 367

Concerns regarding adversity also arise when the Executive Branch

chooses to enforce, but not defend in court, federal statutes that it

has concluded are unconstitutional. In United States v. Windsor,

368

the Court considered the Defense of Marriage Act (DOMA), which

excludes same-sex partners from the definition of “spouse” as used

in federal statutes.369 DOMA was challenged by the surviving member of a same-sex couple (married in Canada), who was seeking to

claim a spousal federal estate tax exemption. Although the Executive Branch continued to deny the exemption, it also declined to

defend the statute based on doubts as to whether it would survive

scrutiny under the equal protection component of the Fifth Amendment’s Due Process Clause. Consequently, the Bipartisan Legal Ad-

(1911); United States v. Johnson, 319 U.S. 302 (1943); Moore v. CharlotteMecklenburg Bd. of Educ., 402 U.S. 47 (1971).

366 219 U.S. 346 (1911).

367 219 U.S. at 361–62. The Indians obtained the sought-after decision the following year by the simple expedient of suing to enjoin the Secretary of the Interior

from enforcing the disputed statute. Gritts v. Fisher, 224 U.S. 640 (1912). Other cases

have involved similar problems, but they resulted in decisions on the merits. E.g.,

Cherokee Intermarriage Cases, 203 U.S. 76 (1906); La Abra Silver Mining Co. v. United

States, 175 U.S. 423, 455–463 (1899); South Carolina v. Katzenbach, 383 U.S. 301,

335 (1966); but see id. at 357 (Justice Black dissenting). The principal effect of Muskrat was to put in doubt for several years the validity of any sort of declaratory judgment provision in federal law.

368 570 U.S. ___, No. 12–307, slip op. (2013).

369 Pub. L. 104–199, § 3, 110 Stat. 2419, 1 U.S.C. § 7.

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

726 ART. III—JUDICIAL DEPARTMENT
visory Group of the House of Representatives (BLAG) 370 intervened to defend the statute. The Court noted that, despite the decision

not to defend, the failure of the United States to provide a refund

to the taxpayer constituted an injury sufficient to establish standing, leaving only “prudential” limitations on judicial review at issue.371 The Court found that the “prudential” concerns were outweighed by the presence of BLAG to offer an adversarial presentation

of the issue, the legal uncertainty that would be caused by dismissing the case, and the concern that the Executive Branch’s assessment of the constitutionality of the statute would be immunized from

judicial review.

Collusive and Feigned Suits.—Adverse litigants are lacking

in those suits in which two parties have gotten together to bring a

friendly suit to settle a question of interest to them. Thus, in Lord

v. Veazie,

372 the latter had executed a deed to the former warranting that he had certain rights claimed by a third person, and suit

was instituted to decide the “dispute.” Declaring that “the whole

proceeding was in contempt of the court, and highly reprehensible,” the Court observed: “The contract set out in the pleadings

was made for the purpose of instituting this suit. . . . The plaintiff

and defendant are attempting to procure the opinion of this court

upon a question of law, in the decision of which they have a common interest opposed to that of other persons, who are not parties

to the suit. . . . And their conduct is the more objectionable, because they have brought up the question upon a statement of facts

agreed upon between themselves . . . and upon a judgment pro forma

entered by their mutual consent, without any actual judicial decision. . . .” 373 “Whenever,” said the Court in another case, “in pursuance of an honest and actual antagonistic assertion of rights by

one individual against another, there is presented a question involving the validity of any act of any legislature, State or federal, and

the decision necessarily rests on the competency of the legislature

to so enact, the court must . . . determine whether the act be constitutional or not; but such an exercise of power is the ultimate and

supreme function of courts. It is legitimate only in the last resort,

and as a necessity in the determination of real, earnest and vital

controversy between individuals. It never was the thought that, by

means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legis370 The BLAG is a standing body of the House, created by rule, consisting of

members of the House Leadership and authorized to direct the House Office of the

General Counsel to file suit on its behalf in state or federal court.

371 570 U.S. ___, No. 12–307, slip op. at 6–7.

372 49 U.S. (8 How.) 251 (1850).

373 49 U.S. at 254–55.

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 727
lative act.” 374 Yet several widely known constitutional decisions have

been rendered in cases in which friendly parties contrived to have

the actions brought and in which the suits were supervised and financed by one side.375 There are also instances in which there may

not be in fact an adverse party at certain stages; that is, instances

when the parties do not actually disagree, but where the Supreme

Court and the lower courts are empowered to adjudicate.376

Stockholder Suits.—Moreover, adversity in parties has often

been found in suits by stockholders against their corporation in which

the constitutionality of a statute or a government action is drawn

in question, even though one may suspect that the interests of plaintiffs and defendant are not all that dissimilar. Thus, in Pollock v.

Farmers’ Loan & Trust Co.,

377 the Court sustained the jurisdiction

of a district court which had enjoined the company from paying an

income tax even though the suit was brought by a stockholder against

the company, thereby circumventing a statute which forbade the maintenance in any court of a suit to restrain the collection of any tax.378

Subsequently, the Court sustained jurisdiction in cases brought by

a stockholder to restrain a company from investing its funds in farm

loan bonds issued by federal land banks 379 and by preferred stockholders against a utility company and the TVA to enjoin the performance of contracts between the company and TVA on the ground

that the statute creating it was unconstitutional.380 Perhaps most

notorious was Carter v. Carter Coal Co.,

381 in which the president

374 Chicago & G.T. Ry. v. Wellman, 143 U.S. 339, 345 (1892).

375 E.g., Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796); Fletcher v. Peck,

10 U.S. (6 Cr.) 87 (1810); Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); cf. 1 C.

Warren, supra at 147, 392–95; 2 id. at 279–82. In Powell v. Texas, 392 U.S. 514

(1968), the Court adjudicated on the merits a challenge to the constitutionality of

criminal treatment of chronic alcoholics although the findings of the trial court, agreed

to by the parties, appeared rather to be “the premises of a syllogism transparently

designed to bring this case” within the confines of an earlier enunciated constitutional principle. But adversity arguably still existed.

376 Examples are naturalization cases, Tutun v. United States, 270 U.S. 568 (1926),

entry of judgment by default or on a plea of guilty, In re Metropolitan Ry. Receivership, 208 U.S. 90 (1908), and consideration by the Court of cases in which the Solicitor General confesses error below. Cf. Young v. United States, 315 U.S. 257, 258–

259 (1942); Casey v. United States, 343 U.S. 808 (1952); Rosengart v. Laird, 404

U.S. 908 (1972) (Justice White dissenting). See also Sibron v. New York, 392 U.S.

40, 58–59 (1968).

377 157 U.S. 429 (1895). The first injunction suit by a stockholder to restrain a

corporation from paying a tax was apparently Dodge v. Woolsey, 59 U.S. (18 How.)

331 (1856). See also Brushaber v. Union Pac. R.R., 240 U.S. 1 (1916).

378 Cf. Cheatham v. United States, 92 U.S. 85 (1875); Snyder v. Marks, 109 U.S.

189 (1883).

379 Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921).

380 Ashwander v. TVA, 297 U.S. 288 (1936). See id. at 341 (Justice Brandeis dissenting in part).

381 298 U.S. 238 (1936).

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728 ART. III—JUDICIAL DEPARTMENT
of the company brought suit against the company and its officials,

among whom was Carter’s father, a vice president of the company,

and in which the Court entertained the suit and decided the case

on the merits.382

Substantial Interest: Standing

Perhaps the most important element of the requirement of adverse parties may be found in the “complexities and vagaries” of

the standing doctrine. “The fundamental aspect of standing is that

it focuses on the party seeking to get his complaint before a federal

court and not on the issues he wishes to have adjudicated.” 383 The

“gist of the question of standing” is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the

presentation of issues upon which the court so largely depends for

illumination of difficult constitutional questions.” 384 This practical

conception of standing has now given way to a primary emphasis

upon separation of powers as the guide. “[T]he ‘case or controversy’

requirement defines with respect to the Judicial Branch the idea of

separation of powers on which the Federal Government is founded.

The several doctrines that have grown up to elaborate that requirement are ‘founded in concern about the proper—and properly limited—

role of the courts in a democratic society.’ ” 385

382 Stern, The Commerce Clause and the National Economy, 59 HARV. L. REV. 645,

667–668 (1948) (detailing the framing of the suit).

383 Flast v. Cohen, 392 U.S. 83, 99 (1968). This characterization is not the view

of the present Court; see Allen v. Wright, 468 U.S. 737, 750, 752, 755–56, 759–61

(1984). In taxpayer suits, it is appropriate to look to the substantive issues to determine whether there is a logical nexus between the status asserted and the claim

sought to be adjudicated. Id. at 102; United States v. Richardson, 418 U.S. 166, 174–75

(1974); Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 78–79 (1978).

384 Baker v. Carr, 369 U.S. 186, 204 (1962). That persons or organizations have

a personal, ideological interest sufficiently strong to create adverseness is not alone

enough to confer standing; rather, the adverseness is the consequence of one being

able to satisfy the Article III requisite of injury in fact. Valley Forge Christian College v. Americans United, 454 U.S. 464, 482–486 (1982); Schlesinger v. Reservists

Comm. to Stop the War, 418 U.S. 208, 225–226 (1974). Nor is the fact that, if plaintiffs have no standing to sue, no one would have standing, a sufficient basis for finding standing. Id. at 227.

385 Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting Warth v. Seldin, 422 U.S.

490, 498 (1975)). All the standards relating to whether a plaintiff is entitled to adjudication of his claims must be evaluated “by reference to the Art. III notion that

federal courts may exercise power only ‘in the last resort, and as a necessity,’ . . .

and only when adjudication is ‘consistent with a system of separated powers and

[the dispute is one] traditionally thought to be capable of resolution through the

judicial process.’ ” Id. at 752 (quoting, respectively, Chicago & G.T. Ry. v. Wellman,

143 U.S. 339, 345 (1892), and Flast v. Cohen, 392 U.S. 83, 97 (1968)). For the strengthening of the separation-of-powers barrier to standing, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–60, 571–78 (1992).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 729
Standing as a doctrine is composed of both constitutional and

prudential restraints on the power of the federal courts to render

decisions,386 and is almost exclusively concerned with such public

law questions as determinations of constitutionality and review of

administrative or other governmental action.387 As such, it is often

interpreted according to the prevailing philosophies of judicial activism and restraint, and narrowly or broadly in terms of the viewed

desirability of access to the courts by persons seeking to challenge

legislation or other governmental action. The trend in the 1960s was

to broaden access; in the 1970s, 1980s, and 1990s, it was to narrow

access by stiffening the requirements of standing, although Court

majorities were not entirely consistent. The major difficulty in setting forth the standards is that the Court’s generalizations and the

results it achieves are often at variance.388

The standing rules apply to actions brought in federal courts,

and they have no direct application to actions brought in state

courts.389

Generalized or Widespread Injuries.—Persons do not have

standing to sue in federal court when all they can claim is that

they have an interest or have suffered an injury that is shared by

all members of the public. Thus, a group of persons suing as citizens to litigate a contention that membership of Members of Congress in the military reserves constituted a violation of Article I,

§ 6, cl. 2, was denied standing.390 “The only interest all citizens share

in the claim advanced by respondents is one which presents injury

in the abstract. . . . [The] claimed nonobservance [of the clause],

386 E.g., Valley Forge Christian College v. Americans United, 454 U.S. 464, 471–

476 (1982); Allen v. Wright, 468 U.S. 737, 750–751 (1984).

387 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 60 (4th ed. 1983).

388 “[T]he concept of ‘Art. III standing’ has not been defined with complete consistency in all of the various cases decided by this Court . . . [and] this very fact is

probably proof that the concept cannot be reduced to a one-sentence or oneparagraph definition.” Valley Forge Christian College v. Americans United, 454 U.S.

464, 475 (1982). “Generalizations about standing to sue are largely worthless as such.”

Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 151 (1970). For

extensive consideration of the doctrine, see Hart & Wechsler (6th ed.), supra at 100–

183.

389 Thus, state courts could adjudicate a case brought by a person who had no

standing in the federal sense. If the plaintiff lost, he would have no recourse in the

U.S. Supreme Court, because of his lack of standing, Tileston v. Ullman, 318 U.S.

44 (1943); Doremus v. Board of Education, 342 U.S. 429 (1952), but if plaintiff prevailed, the losing defendant might be able to appeal, because he might be able to

assert sufficient injury to his federal interests. ASARCO Inc. v. Kadish, 490 U.S.

605 (1989).

390 Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

730 ART. III—JUDICIAL DEPARTMENT
standing alone, would adversely affect only the generalized interest

of all citizens in constitutional governance.” 391

Notwithstanding that a generalized injury that all citizens share

is insufficient to confer standing, where a plaintiff alleges that the

defendant’s action injures him in “a concrete and personal way,” “it

does not matter how many [other] persons have [also] been injured. . . . [W]here a harm is concrete, though widely shared, the

Court has found injury in fact.” 392

Taxpayer Suits.—Save for a narrow exception, standing is also

lacking when a litigant attempts to sue to contest governmental action that he claims injures him as a taxpayer. In Frothingham v.

Mellon,

393 the Court denied standing to a taxpayer suing to restrain disbursements of federal money to those states that chose to

participate in a program to reduce maternal and infant mortality;

her claim was that Congress lacked power to appropriate funds for

those purposes and that the appropriations would increase her taxes

in future years in an unconstitutional manner. Noting that a federal taxpayer’s “interest in the moneys of the Treasury . . . is comparatively minute and indeterminate” and that “the effect upon future taxation, of any payment out of the funds . . . [is] remote,

fluctuating and uncertain,” the Court ruled that plaintiff had failed

to allege the type of “direct injury” necessary to confer standing.394

Taxpayers were found to have standing, however, in Flast v.

Cohen,

395 to contest the expenditure of federal moneys to assist

religious-affiliated organizations. The Court asserted that the answer to the question whether taxpayers have standing depends on

whether the circumstances of each case demonstrate that there is

a logical nexus between the status asserted and the claim sought

to be adjudicated. First, there must be a logical link between the

391 418 U.S. at 217. See also United States v. Richardson, 418 U.S. 166, 176–77

(1974); Valley Forge Christian College v. Americans United, 454 U.S. 464, 483 (1982);

Allen v. Wright, 468 U.S. 737, 754 (1984); Whitmore v. Arkansas, 495 U.S. 149 (1990);

Lujan v. Defenders of Wildlife, 504 U.S. 555, 573–77 (1992); Lance v. Coffman, 549

U.S. 437, 441 (2007) (per curiam). Cf. Ex parte Levitt, 302 U.S. 633 (1937); Laird v.

Tatum, 408 U.S. 1 (1972).

392 Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 517, 522

(2007) (internal quotation marks omitted). In this case, “EPA maintain[ed] that because greenhouse gas emissions inflict widespread harm, the doctrine of standing

presents an insuperable jurisdictional obstacle.” The Court, however, found that “EPA’s

steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to

Massachusetts that is both ‘actual’ and ‘imminent.’ ” Id. at 517, 521.

393 Usually cited as Massachusetts v. Mellon, 262 U.S. 447 (1923), the two suits

having been consolidated.

394 262 U.S. at 487, 488. In Hein v. Freedom from Religion Foundation, Inc.,

127 S. Ct. 2553, 2559 (2007), the Court added that, “if every federal taxpayer could

sue to challenge any Government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus.”

395 392 U.S. 83 (1968).

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ART. III—JUDICIAL DEPARTMENT 731
status of taxpayer and the type of legislative enactment attacked;

this means that a taxpayer must allege the unconstitutionality only

of exercises of congressional power under the taxing and spending

clause of Article I, § 8, rather than also of incidental expenditure of

funds in the administration of an essentially regulatory statute. Second, there must be a logical nexus between the status of taxpayer

and the precise nature of the constitutional infringement alleged;

this means that the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the

exercise of the taxing and spending power, rather than simply arguing that the enactment is generally beyond the powers delegated to

Congress. Both Frothingham and Flast met the first test, because

they attacked a spending program. Flast met the second test, because the Establishment Clause of the First Amendment operates

as a specific limitation upon the exercise of the taxing and spending power, but Frothingham did not, having alleged only that the

Tenth Amendment had been exceeded. The Court reserved the question whether other specific limitations constrain the Taxing and Spending Clause in the same manner as the Establishment Clause.396

Since Flast, the Court has refused to expand taxpayer standing. Litigants seeking standing as taxpayers to challenge legislation permitting the CIA to withhold from the public detailed information about its expenditures as a violation of Article I, § 9, cl. 7,

and to challenge certain Members of Congress from holding commissions in the reserves as a violation of Article I, § 6, cl. 2, were denied standing, in the former cases because their challenge was not

to an exercise of the taxing and spending power and in the latter

because their challenge was not to legislation enacted under Article I, § 8, but rather was to executive action in permitting Members to maintain their reserve status.397 An organization promoting

church-state separation was denied standing to challenge an executive decision to donate surplus federal property to a church-related

college, both because the contest was to executive action under valid

legislation and because the property transfer was not pursuant to

a Taxing and Spending Clause exercise but was taken under the

396 392 U.S. at 105.

397 United States v. Richardson, 418 U.S. 166 (1974); Schlesinger v. Reservists

Comm. to Stop the War, 418 U.S. 208, 227–28 (1974). Richardson in its generalized

grievance constriction does not apply when Congress confers standing on litigants.

FEC v. Akins, 524 U.S. 11 (1998). When Congress confers standing on “any person

aggrieved” by the denial of information required to be furnished them, it matters

not that most people will be entitled and will thus suffer a “generalized grievance,”

the statutory entitlement is sufficient. Id. at 21–25.

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732 ART. III—JUDICIAL DEPARTMENT
Property Clause of Article IV, § 3, cl. 2.398 The Court also refused

to create an exception for Commerce Clause violations to the general prohibition on taxpayer standing.399

Most recently, a Court plurality held that, even in Establishment Clause cases, there is no taxpayer standing where the expenditure of funds that is challenged was not specifically authorized

by Congress, but came from general executive branch appropriations.400

Where expenditures “were not expressly authorized or mandated by any specific congressional enactment,” a lawsuit challenging them “is not directed at an exercise of congressional power and

thus lacks the requisite ‘logical nexus’ between taxpayer status ‘and

the type of legislative enactment attacked.’ ” 401

Local taxpayers attacking local expenditures have generally been

permitted more leeway than federal taxpayers insofar as standing

is concerned. Thus, in Everson v. Board of Education,

402 a municipal taxpayer was found to have standing to challenge the use of

398 Valley Forge Christian College v. Americans United, 454 U.S. 464 (1982). In

Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996), the Court played down the “serious

and adversarial treatment” prong of standing and strongly reasserted the separationof-powers value of keeping courts within traditional bounds. The Court again took

this approach in Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553,

2569 (2007), finding that “Flast itself gave too little weight to [separation-of-powers]

concerns.”

399 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 347–49 (2006) (standing denied to taxpayer claim that state tax credit given to vehicle manufacturer violated

the Commerce Clause).

400 Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553, 2559 (2007).

This decision does not affect Establishment Clause cases in which the plaintiff can

allege a personal injury. A plaintiff who challenges a government display of a religious object, for example, need not sue as a taxpayer but may have standing “by

alleging that he has undertaken a ‘special burden’ or has altered his behavior to

avoid the object that gives him offense. . . . [I]t is enough for standing purposes that

a plaintiff allege that he ‘must come into direct and unwelcome contact with the

religious display to participate fully as [a] citizen[ ] . . . and to fulfill . . . legal obligations.’ ” Books v. Elkhart County, 401 F.3d 857, 861 (7th Cir. 2005). In Van Orden

v. Perry, 545 U.S. 677, 682 (2005), the Court, without mentioning standing, noted

that the plaintiff “has encountered the Ten Commandments monument during his

frequent visits to the [Texas State] Capitol grounds. His visits are typically for the

purpose of using the law library in the Supreme Court building, which is located

just northwest of the Capitol building.”

401 127 S. Ct. at 2568 (citations omitted). Justices Scalia and Thomas concurred

in the judgment but would have overruled Flast. Justice Souter, joined by three other

justices, dissented because he saw no logic in the distinction the plurality drew, as

the plurality did not and could not have suggested that the taxpayers in Hein “have

any less stake in the outcome than the taxpayers in Flast.” Id. at 2584.

402 330 U.S. 1 (1947). In DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 349 (2006),

the Court held that a plaintiff’s status as a municipal taxpayer does not give him

standing to challenge a state tax credit.

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ART. III—JUDICIAL DEPARTMENT 733
public funds for transportation of pupils to parochial schools.403 But,

in Doremus v. Board of Education,

404 the Court refused an appeal

from a state court for lack of standing of a taxpayer challenging

Bible reading in the classroom. The taxpayer’s action in Doremus,

the Court wrote, “is not a direct dollars-and-cents injury but is a

religious difference.” 405 This rationale was similar to the spending

program-regulatory program distinction of Flast. But, even a dollarand-cents injury resulting from a state spending program will apparently not constitute a direct dollars-and-cents injury. The Court

in Doremus wrote that a taxpayer challenging either a federal or a

state statute “must be able to show not only that the statute is invalid but that he has sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not

merely that he suffers in some indefinite way in common with people

generally.” 406

Constitutional Standards: Injury in Fact, Causation, and

Redressability.—Although the Court has been inconsistent, it has

now settled upon the rule that, “at an irreducible minimum,” the

constitutional requisites under Article III for the existence of standing are that the plaintiff must personally have: 1) suffered some

actual or threatened injury; 2) that injury can fairly be traced to

the challenged action of the defendant; and 3) that the injury is

likely to be redressed by a favorable decision.407

For a time, the actual or threatened injury requirement noted

above included an additional requirement that such injury be the

product of “a wrong which directly results in the violation of a legal right.” 408 In other words, the injury needs to be “one of prop403 See Bradfield v. Roberts, 175 U.S. 291, 295 (1899); Crampton v. Zabriskie,

101 U.S. 601 (1880); Heim v. McCall, 239 U.S. 175 (1915). See also Illinois ex rel.

McCollum v. Board of Education, 333 U.S. 203 (1948); Zorach v. Clauson, 343 U.S.

306 (1952); Engel v. Vitale, 370 U.S. 421 (1962) (plaintiffs suing as parents and taxpayers).

404 342 U.S. 429 (1952). Compare Alder v. Board of Education, 342 U.S. 485 (1952).

See also Richardson v. Ramirez, 418 U.S. 24 (1974).

405 342 U.S. at 434.

406 342 U.S. at 434, quoting Massachusetts v. Mellon, 262 U.S. 447, 488 (1923);

quoted with approval in DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006).

407 Valley Forge Christian College v. Americans United, 454 U.S. 464, 472 (1982);

Allen v. Wright, 468 U.S. 737, 751 (1984); Lujan v. Defenders of Wildlife, 504 U.S.

555, 560–61 (1992); Monsanto Co. v. Geerston Seed Farms, 561 U.S. ___, No. 09–

475, slip op. (2010). But see United States Parole Comm’n v. Geraghty, 445 U.S. 388

(1980), a class action case in which the majority opinion appears to reduce the significance of the personal stake requirement. Id. at 404 n.11, reserving full consideration of the dissent’s argument at 401 n.1, 420–21.

408 Alabama Power Co. v. Ickes, 302 U.S. 464, 479 (1938). Cf. Joint Anti-Fascist

Refugee Committee v. McGrath, 341 U.S. 123, 151–152 (1951) (Justice Frankfurter

concurring). But see Frost v. Corporation Comm’n, 278 U.S. 515 (1929); City of Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958).

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734 ART. III—JUDICIAL DEPARTMENT
erty, one arising out of contract, one protected against tortuous invasion, or one founded in a statute which confers a privilege.” 409 It

became apparent, however, that the “legal right” language was “demonstrably circular: if the plaintiff is given standing to assert his

claims, his interest is legally protected; if he is denied standing,

his interest is not legally protected.” 410 Despite this test, the observable tendency of the Court was to find standing in cases which were

grounded in injuries far removed from property rights.411

In any event, the “legal rights” language has now been dispensed with. Rejection of this doctrine occurred in two administrative law cases in which the Court announced that parties had standing when they suffered “injury in fact” to some interest, “economic

or otherwise,” that is arguably within the zone of interest to be protected or regulated by the statute or constitutional provision in question.412 Political,413 environmental, aesthetic, and social interests,

when impaired, now afford a basis for making constitutional attacks upon governmental action.414 “But deprivation of a procedural right without some concrete interest that is affected by the

deprivation—a procedural right in vacuo—is insufficient to create

Article III standing.” 415

409 Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 137–138 (1939).

410 C. Wright, supra at 65–66.

411 E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951)

(indirect injury to organization and members by governmental maintenance of list

of subversive organizations); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)

(same); Abington School Dist. v. Schempp, 374 U.S. 203, 224 n.9 (1963) (parents and

school children challenging school prayers); McGowan v. Maryland, 366 U.S. 420,

430–431 (1961) (merchants challenging Sunday closing laws); Baker v. Carr, 369 U.S.

186, 204–208 (1962) (voting rights).

412 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow

v. Collins, 397 U.S. 159 (1970). The “zone of interest” test is a prudential rather

than constitutional standard. The Court sometimes uses other language to characterize this test. Thus, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992),

the Court refers to injury in fact as “an invasion of a legally protected interest,” but

in context, here and in the cases cited, it is clear the reference is to any interest

that the Court finds protectable under the Constitution, statutes, or regulations.

413 Department of Commerce v. United States House of Representatives, 525 U.S.

316 (1999).

414 E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1991); Duke Power Co. v. Carolina

Environmental Study Group, 438 U.S. 59, 72–74 (1978); Village of Arlington Heights

v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261–263 (1977); Singleton v. Wulff,

428 U.S. 106, 112–113 (1976); Warth v. Seldin, 422 U.S. 490, 498–499 (1975); O’Shea

v. Littleton, 414 U.S. 488, 493–494 (1974); Linda R.S. v. Richard D., 410 U.S. 614,

617–618 (1973).

415 Summers v. Earth Island Institute, 129 S. Ct. 1142, 1151 (2009) (environmental group that was denied the opportunity to file comments with the United States

Forest Service regarding a Forest Service action denied standing for lack of concrete injury). On the other hand, where a party has successfully established a legal

right, a threat to the enforcement of that legal right gives rise to a separate legal

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ART. III—JUDICIAL DEPARTMENT 735
The breadth of the “injury-in-fact” concept may be discerned in

a series of cases involving the right of private parties to bring actions under the Fair Housing Act to challenge alleged discriminatory practices, even where discriminatory action was not directed

against parties to a suit, Theses case held that the subjective and

intangible interests of enjoying the benefits of living in integrated

communities were sufficient to permit them to attack actions that

threatened or harmed those interests.416 Or, there is important case

of FEC v. Akins,

417 which addresses the ability of Congress to confer standing and to remove prudential constraints on judicial review. Congress had afforded persons access to Commission information and had authorized “any person aggrieved” by the actions of

the FEC to sue. The Court found “injury-in-fact” present where plaintiff voters alleged that the Federal Election Commission had denied them information respecting an organization that might or might

not be a political action committee.418 Another area where the Court

has interpreted this term liberally are injuries to the interests of

individuals and associations of individuals who use the environment, affording them standing to challenge actions that threatened

those environmental conditions.419

Even citizens who bring qui tam actions under the False Claims

Act—actions that entitle the plaintiff (“relator”) to a percentage of

any civil penalty assessed for violation—have been held to have standing, on the theory that the government has assigned a portion of

its damages claim to the plaintiff, and the assignee of a claim has

injury. Salazar v. Buono, 559 U.S. ___, No. 08–472, slip op. at 8 (2010) (plurality

opinion) (“A party that obtains a judgment in its favor acquires a ‘judicially cognizable’ interest in ensuring compliance with that judgment”).

416 Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979); Havens Realty Corp. v. Coleman,

455 U.S. 363 (1982).

417 524 U.S. 11 (1998).

418 That the injury was widely shared did not make the claimed injury a “generalized grievance,” the Court held, but rather in this case, as in others, the denial of

the statutory right was found to be a concrete harm to each member of the class.

419 Sierra Club v. Morton, 405 U.S. 727, 735 (1972); United States v. SCRAP,

412 U.S. 669, 687–88 (1973); Duke Power Co. v. Carolina Environmental Study Group,

438 U.S. 59, 72–74 (1978). But the Court has refused to credit general allegations of

injury untied to specific governmental actions. E.g., Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). SCRAP

in particular is disfavored as too broad. Lujan v. Defenders of Wildlife, 504 U.S. at

566. Moreover, unlike the situation in taxpayer suits, there is no requirement of a

nexus between the injuries claimed and the constitutional rights asserted. In Duke

Power, 438 U.S. at 78–81, claimed environmental and health injuries grew out of

construction and operation of nuclear power plants but were not directly related to

the governmental action challenged, the limitation of liability and indemnification

in cases of nuclear accident. See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 264–65 (1991); Friends of

the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000).

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736 ART. III—JUDICIAL DEPARTMENT
standing to assert the injury in fact suffered by the assignor.420 Citing this holding and historical precedent, the Court upheld the standing of an assignee who had promised to remit the proceeds of the

litigation to the assignor.421 The Court noted that “federal courts

routinely entertain suits which will result in relief for parties that

are not themselves directly bringing suit. Trustees bring suits to

benefit their trusts; guardians at litem bring suits to benefit their

wards; receivers bring suit to benefit their receiverships; assignees

in bankruptcy bring suit to benefit bankrupt estates; and so forth.” 422

Beyond these historical anomalies, the Court has indicated that,

for parties lacking an individualized injury to seek judicial relief

on behalf of an absent third party, there generally must be some

sort of agency relationship between the litigant and the injured party.

In Hollingsworth v. Perry,

423 the Court considered the question of

whether the official proponents of Proposition 8,424 a state proposition that amended the California Constitution to define marriage

as a union between a man and a woman, had standing to defend

the constitutionality of the provision on appeal. After rejecting the

argument that the proponents of Proposition 8 had a particularized injury in their own right,425 the Court considered the argument that the plaintiffs were formally authorized to litigate on behalf of the State of California.

Although the proponents were authorized by California law to

argue in defense of the proposition,426 the Court found that this au420 Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765

(2000). The Court confirmed its conclusion by reference to the long tradition of qui

tam actions, since the Constitution’s restriction of judicial power to “cases” and “controversies” has been interpreted to mean “cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.” Id. at 774.

421 Sprint Communications Co., L.P. v. APCC Services, Inc., 128 S. Ct. 2531 (2008)

(payphone operators had assigned claims against long-distance carriers to “aggregators” to sue on their behalf). Chief Justice Roberts, in a dissent joined by Justices

Scalia, Thomas, and Alito, stated that the aggregators lacked standing because they

“have nothing to gain from their lawsuit.” Id. at 2549.

422 128 S. Ct. at 2543.

423 570 U.S. ___, No. 12–144, slip op. (2013).

424 Under California Elections Code § 342, “ ‘[p]roponents of an initiative or referendum measure’ means . . . the elector or electors who submit the text of a proposed initiative or referendum to the Attorney General . . . ; or . . . the person or

persons who publish a notice of intention to circulate petitions, or, where publication is not required, who file petitions with the elections official or legislative body.”

425 570 U.S. ___, No. 12–144, slip op. at 7–9 (2013).

426 California’s governor and state and local officials declined to defend Proposition 8 in federal district court, so the proponents were allowed to intervene. After

the federal district court held the proposition unconstitutional, the government officials elected not to appeal, so the proponents did. The federal court of appeals certified a question to the California Supreme Court on whether the official proponents

of the proposition had the authority to assert the state’s interest in defending the

constitutionality of Proposition 8, see Perry v. Schwarzenegger, 628 F.3d 1191, 1193

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ART. III—JUDICIAL DEPARTMENT 737
thorization, by itself, was insufficient to create standing. The Court

expressed concern that, although California law authorized the proponents to argue in favor of Proposition 8, the proponents were still

acting as private individuals, not as state officials 427 or as agents

that were controlled by the state.428 Because the proponents did not

act as agents or official representatives of the State of California in

defending the law, the Court held that the proponents only possessed a generalized interest in arguing in defense of Proposition 8

and, therefore, lacked standing to appeal an adverse district court

decision.

Nonetheless, the Court has been wary in constitutional cases

of granting standing to persons who alleged threats or harm to interests that they shared with the larger community of people at large;

it is unclear whether this rule against airing “generalized grievances” through the courts 429 has a constitutional or a prudential

basis.430

In a number of cases where a plaintiff seeks prospective relief,

such as an injunction or declaratory relief, the Supreme Court has

strictly construed the nature of the injury-in-fact necessary to obtain such judicial relief. First, the Court has been hesitant to assume jurisdiction over matters in which the plaintiff seeking equitable relief cannot articulate a concrete harm.431 For example, in

Laird v. Tatum, the Court held that plaintiffs challenging a domestic surveillance program lacked standing when their alleged injury

stemmed from a “subjective chill,” as opposed to a “claim of specific

present objective harm or a threat of specific future harm.” 432 Second, the Court has required plaintiffs seeking equitable relief to dem-

(2011), which was answered in the affirmative. See Perry v. Brown, 265 P. 3d 1002,

1007 (Cal. 2011).

427 See 570 U.S. ___, No. 12–144, slip op. at 12 (citing Karcher v. May, 484 U.S.

72 (1987)).

428 The Court noted that an essential feature of agency is the principal’s right

to control the agent’s actions. Here, the proponents “decided what arguments to make

and how to make them.” Hollingsworth, 570 U.S. ___, No. 12–144, slip op. at 15.

The Court also noted that the proponents were not elected to their position, took no

oath, had no fiduciary duty to the people of California, and were not subject to removal. Id.

429 See “Generalized or Widespread Injuries,” supra.

430 Compare Warth v. Seldin, 422 U.S. 490, 499–500 (1975) (prudential), with

Valley Forge Christian College v. Americans United, 454 U.S. 464, 485, 490 (1982)

(apparently constitutional). In Allen v. Wright, 468 U.S. 737, 751 (1984), it is again

prudential.

431 See generally Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (“[D]eprivation of a . . . right without some concrete interest that is affected by the deprivation . . . is insufficient to create Article III standing.”); see, e.g., Cal. Bankers Ass’n

v. Shultz, 416 U.S. 21, 73 (1974) (plaintiffs allege that Treasury regulations will require them to report currency transactions, but make no additional allegation that

any of the information required by the Secretary will tend to incriminate them).

432 408 U.S. 1, 14–15 (1972).

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738 ART. III—JUDICIAL DEPARTMENT
onstrate that the risk of a future injury is of a sufficient likelihood;

past injury is insufficient to create standing to seek prospective relief.433 The Court has articulated the threshold of likelihood of future injury necessary for standing in such cases in various ways in

the past,434 generally refusing to find standing where the risk of

future injury is speculative.435

More recently, in Clapper v. Amnesty International USA, the Court

held that, in order to demonstrate Article III standing, a plaintiff

seeking injunctive relief must prove that the future injury, which

is the basis for the relief sought, must be “certainly impending”; a

showing of a “reasonable likelihood” of future injury is insufficient.436 Moreover, the Court in Amnesty International held that a

plaintiff cannot satisfy the imminence requirement by merely “manufacturing” costs incurred in response to speculative, non-imminent

injuries.437

433 See City of Los Angeles v. Lyons, 461 U.S. 95, 110 (1983) (holding that a

victim of a police chokehold seeking injunctive relief was unable to show sufficient

likelihood of recurrence as to him).

434 See Davis v. FEC, 554 U.S. 724, 734 (2008) (“[T]he injury required for standing need not be actualized. A party facing prospective injury has standing to sue

where the threatened injury is real, immediate, and direct.”).

435 See, e.g., O’Shea v. Littleton, 414 U.S. 488, 497 (1974) (no “sufficient immediacy and reality” to allegations of future injury that rest on the likelihood that plaintiffs will again be subjected to racially discriminatory enforcement and administration of criminal justice); Rizzo v. Goode, 423 U.S. 362, 372 (1976) (“[I]ndividual

respondents’ claim to ‘real and immediate’ injury rests not upon what the named

petitioners might do to them in the future . . . but upon what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman’s perception of departmental disciplinary procedures.”).

436 568 U.S. ___, No. 11–205, slip op. at 10–11 (2013). In adopting a “certainly

impending” standard, the five Justice majority conceded that the cases had not uniformly required literal certainty. Id. at 15 n.5. Amnesty International’s limitation on

standing may be particularly challenging in certain contexts, such as national security, where evidence necessary to prove a “certainly impending” injury may be unavailable to a plaintiff.

437 Id. at 10–11. In Amnesty International, defense attorneys, human rights organizations, and others challenged prospective, covert surveillance of the communications of certain foreigners abroad as authorized by the FISA Amendments Act of

2008. The Court found the plaintiffs lacked standing because they failed to show,

inter alia, what the government’s targeting practices would be, what legal authority

the government would use to monitor any of the plaintiffs’ overseas clients or contacts, whether any approved surveillance would be successful, and whether the plaintiffs’ own communications from within the United States would incidentally be acquired. Id. at 11–15. Moreover, the Court rejected that the plaintiffs could demonstrate

an injury-in-fact as a result of costs that they had incurred to guard against a reasonable fear of future harm (such as, travel expenses to conduct in person conversations abroad in lieu of conducting less costly electronic communications that might

be more susceptible to surveillance) because those costs were the result of an injury

that was not certainly impending. Id. at 16–19.

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ART. III—JUDICIAL DEPARTMENT 739
A year after Amnesty International, the Court in Susan B. Anthony List v. Driehaus 438 reaffirmed that preenforcement challenges to a statute can occur “under circumstances that render the

threatened enforcement sufficiently imminent.” 439 In Susan B. Anthony List, an organization planning to disseminate a political advertisement, which was previously the source of an administrative

complaint under an Ohio law prohibiting making false statements

about a candidate or a candidate’s record during a political campaign, challenged the prospective enforcement of that law. The Court,

in finding that the plaintiff’s future injury was certainly impending, relied on the history of prior enforcement of the law with respect to the advertisement, coupled with the facts that “any person” could file a complaint under the law, and any threat of

enforcement of the law could burden political speech.440

Of increasing importance are causation and redressability, the

second and third elements of standing, recently developed and held

to be of constitutional requisite. There must be a causal connection

between the injury and the conduct complained of; that is, the Court

insists that the plaintiff show that “but for” the action, she would

not have been injured. And the Court has insisted that there must

be a “substantial likelihood” that the relief sought from the court if

granted would remedy the harm.441 Thus, poor people who had been

denied service at certain hospitals were held to lack standing to

challenge IRS policy of extending tax benefits to hospitals that did

not serve indigents, because they could not show that alteration of

438 573 U.S. ___, No. 13–193, slip op. (2014).

439 Relying on Amnesty International, the Susan B. Anthony List Court held that

an allegation of future injury may suffice if the injury is “ ‘certainly impending’ or

there is a ‘substantial risk’ that the harm may occur.” Id. at 8. Interestingly, while

previous Court decisions have viewed preenforcement challenges as a question of

“ripeness,” see “Ripeness,” infra, Susan B. Anthony List held that the doctrine of

ripeness ultimately “boil[s] down to the same question” as standing and, therefore,

viewed the case through the lens of Article III standing. 573 U.S. ___, No. 13–193,

slip op. at 7 n.5.

440 573 U.S. ___, No. 13–193, slip op. at 14–17 (internal quotation marks omitted).

441 Lujan v. Defenders of Wildlife, 504 U.S. 555, 595 (1992); Allen v. Wright, 468

U.S. 737, 751 (1984). See also ASARCO Inc. v. Kadish, 490 U.S. 605, 612–617 (1989)

(plurality opinion). Although the two tests were initially articulated as two facets of

a single requirement, the Court now insists they are separate inquiries. Id. at 753

n.19. To the extent there is a difference, it is that the former examines a causal

connection between the assertedly unlawful conduct and the alleged injury, whereas

the latter examines the causal connection between the alleged injury and the judicial relief requested. Id. In Steel Co. v. Citizens for a Better Environment, 523 U.S.

83 (1998), the Court denied standing because of the absence of redressability. An

environmental group sued the company for failing to file timely reports required by

statute; by the time the complaint was filed, the company was in full compliance.

Acknowledging that the entity had suffered injury in fact, the Court found that no

judicial action would afford it a remedy.

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740 ART. III—JUDICIAL DEPARTMENT
the tax policy would cause the hospitals to alter their policies and

treat them.442 Or, low-income persons seeking the invalidation of a

town’s restrictive zoning ordinance were held to lack standing, because they had failed to allege with sufficient particularity that the

complained-of injury—inability to obtain adequate housing within

their means—was fairly attributable to the ordinance instead of to

other factors, so that voiding of the ordinance might not have any

effect upon their ability to find affordable housing.443 Similarly, the

link between fully integrated public schools and allegedly lax administration of tax policy permitting benefits to discriminatory private schools was deemed too tenuous, the harm flowing from private actors not before the courts and the speculative possibility that

directing denial of benefits would result in any minority child being admitted to a school.444

But the Court did permit plaintiffs to attack the constitutionality of a law limiting the liability of private utilities in the event of

nuclear accidents and providing for indemnification, on a showing

that “but for” the passage of the law there was a “substantial likelihood,” based upon industry testimony and other material in the

legislative history, that the nuclear power plants would not be constructed and that therefore the environmental and aesthetic harm

alleged by plaintiffs would not occur; thus, a voiding of the law would

442 Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976). See also

Linda R.S. v. Richard D., 410 U.S. 614 (1973) (mother of illegitimate child lacked

standing to contest prosecutorial policy of using child support laws to coerce support of legitimate children only, as it was “only speculative” that prosecution of father would result in support rather than jailing). However, in Summers v. Earth

Island Inst., 129 S. Ct. 1142, 1151 (2009), the Court noted in dicta that, if a plaintiff

is denied a procedural right, the fact that the right had been accorded by Congress

“can loosen the strictures of the redressability prong of our standing inquiry.” Thus,

standing may exist even though a court’s enforcing a procedural right accorded by

Congress, such as the right to comment on a proposed federal agency action, will

not guarantee the plaintiff success in persuading the agency to adopt the plaintiff’s

point of view.

443 Warth v. Seldin, 422 U.S. 490 (1975). In Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264 (1974), however, a person who alleged he was seeking housing in the community and that he would qualify if the

organizational plaintiff were not inhibited by allegedly racially discriminatory zoning laws from constructing housing for low-income persons like himself was held to

have shown a “substantial probability” that voiding of the ordinance would benefit

him.

444 Allen v. Wright, 468 U.S. 737 (1984). But see Heckler v. Mathews, 465 U.S.

728 (1984), where persons denied equal treatment in conferral of benefits were held

to have standing to challenge the treatment, although a judicial order could only

have terminated benefits to the favored class. In that event, members would have

secured relief in the form of equal treatment, even if they did not receive benefits.

See also Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987); Orr v. Orr,

440 U.S. 268, 271–273 (1979).

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ART. III—JUDICIAL DEPARTMENT 741
likely relieve the plaintiffs of the complained of injuries.445 Operation of these requirements makes difficult but not impossible the

establishment of standing by persons indirectly injured by governmental action, that is, action taken as to third parties that is alleged to have injured the claimants as a consequence.446

In a case permitting a plaintiff contractors’ association to challenge an affirmative-action, set-aside program, the Court seemed to

depart from several restrictive standing decisions in which it had

held that the claims of attempted litigants were too “speculative”

or too “contingent.” 447 The association had sued, alleging that many

of its members “regularly bid on and perform construction work”

for the city and that they would have bid on the set-aside contracts

but for the restrictions. The Court found the association had standing, because certain prior cases under the Equal Protection Clause

established a relevant proposition. “When the government erects a

barrier that makes it more difficult for members of one group to

obtain a benefit than it is for members of another group, a member

of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in

order to establish standing. The ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting

from the imposition of the barrier, not the ultimate inability to obtain the benefit.” 448 The association, therefore, established standing by alleging that its members were able and ready to bid on contracts but that a discriminatory policy prevented them from doing

so on an equal basis.449

Redressability can be present in an environmental “citizen suit”

even when the remedy is civil penalties payable to the government. The civil penalties, the Court explained, “carried with them

a deterrent effect that made it likely, as opposed to merely specula445 Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72–78

1978). The likelihood of relief in some cases appears to be rather speculative at best.

E.g., Bryant v. Yellen, 447 U.S. 352, 366–368 (1980); Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160–162 (1981).

446 Warth v. Seldin, 422 U.S. 490, 505 (1975); Allen v. Wright, 468 U.S. 737,

756–761 (1984).

447 Thus, it appears that had the Court applied its standard in the current case,

the results would have been different in such cases as Linda R. S. v. Richard D.,

410 U.S. 614 (1973); Warth v. Seldin, 422 U.S. 490 (1975); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976); Allen v. Wright, 468 U.S. 737 (1984).

448 Northeastern Fla. Ch. of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 666 (1993). The Court derived the proposition from another set

of cases. Turner v. Fouche, 396 U.S. 346 (1970); Clements v. Fashing, 457 U.S. 957

(1982); Regents of the Univ. of California v. Bakke, 438 U.S. 265, 281 n.14 (1978).

449 508 U.S. at 666. But see, in the context of ripeness, Reno v. Catholic Social

Services, Inc., 509 U.S. 43 (1993), in which the Court, over the dissent’s reliance on

Jacksonville, 509 U.S. at 81–82, denied the relevance of its distinction between entitlement to a benefit and equal treatment. Id. at 58 n.19.

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742 ART. III—JUDICIAL DEPARTMENT
tive, that the penalties would redress [plaintiffs’] injuries by abating current violations and preventing future ones.” 450

Prudential Standing Rules.—Even when Article III constitutional standing rules have been satisfied, the Court has held that

principles of prudence may counsel the judiciary to refuse to adjudicate some claims.451 The rule is “not meant to be especially demanding,” 452 and it is clear that the Court feels free to disregard

any of these prudential rules when it sees fit.453 Congress is also

free to legislate away prudential restraints and confer standing to

the extent permitted by Article III.454 The Court has identified three

rules as prudential ones,455 only one of which has been a significant factor in the jurisprudence of standing. The first two rules are

that the plaintiff’s interest, to which she asserts an injury, must

come within the “zone of interest” arguably protected by the consti450 Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 187 (2000).

451 Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99–100 (1979) (“a plaintiff may still lack standing under the prudential principles by which the judiciary

seeks to avoid deciding questions of broad social import where no individual rights

would be vindicated and to limit access to the federal courts to those litigants best

suited to assert a particular claim”).

452 Match-E-Be-Nash-She-Wish Band Of Pottawatomi Indians v. Patchak, 567

U.S. ___, No. 11–246, slip op. at 15 (2010).

453 Warth v. Seldin, 422 U.S. 490, 500–501 (1975); Craig v. Boren, 429 U.S. 190,

193–194 (1976).

454 “Congress may grant an express right of action to persons who otherwise

would be barred by prudential standing rules. Of course, Art. III’s requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even

if it is an injury shared by a large class of other possible litigants.” Warth v. Seldin,

422 U.S. 490, 501 (1975). That is, the actual or threatened injury required may exist solely by virtue of “statutes creating legal rights, the invasion of which creates

standing, even though no injury would exist without the statute.” Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3 (1973); O’Shea v. Littleton, 414 U.S. 488, 493 n.2

(1974). Examples include United States v. SCRAP, 412 U.S. 669 (1973); Trafficante

v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972); Gladstone Realtors v. Village of

Bellwood, 441 U.S. 91 (1979). See also Buckley v. Valeo, 424 U.S. 1, 8 n.4, 11–12

(1976). For a good example of the congressionally created interest and the injury to

it, see Havens Realty Corp. v. Coleman, 455 U.S. 363, 373–75 (1982) (Fair Housing

Act created right to truthful information on availability of housing; black tester’s

right injured through false information, but white tester not injured because he received truthful information). It is clear, however, that the Court will impose separationof-powers restraints on the power of Congress to create interests to which injury

would give standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 571–78 (1992).

Justice Scalia, who wrote the opinion in Lujan, reiterated the separation-of-powers

objection to congressional conferral of standing in FEC v. Akins, 524 U.S. 11, 29, 36

(1998) (alleged infringement of President’s “take care” obligation), but this time in

dissent; the Court did not advert to this objection in finding that Congress had provided for standing based on denial of information to which the plaintiffs, as voters,

were entitled.

455 Valley Forge Christian College v. Americans United, 454 U.S. 464, 474–75

(1982); Allen v. Wright, 468 U.S. 737, 751 (1984).

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ART. III—JUDICIAL DEPARTMENT 743
tutional provision or statute in question 456 and that plaintiffs may

not air “generalized grievances” shared by all or a large class of

citizens.457 The important rule concerns the ability of a plaintiff to

represent the constitutional rights of third parties not before the

court.

Standing to Assert the Rights of Others.—Usually, one may

assert only one’s interest in the litigation and not challenge the constitutionality of a statute or a governmental action because it infringes the protectable rights of someone else.458 In Tileston v. Ullman,

459 an early round in the attack on a state anti-contraceptive

law, a doctor sued, charging that he was prevented from giving his

patients needed birth control advice. The Court held that he had

no standing; no right of his was infringed, and he could not represent the interests of his patients.

There are several exceptions to the general rule, however, that

make generalization misleading. Many cases allow standing to third

parties who demonstrate a requisite degree of injury to themselves

and if under the circumstances the injured parties whom they seek

to represent would likely not be able to assert their rights. Thus,

in Barrows v. Jackson,

460 a white defendant who was being sued

for damages for breach of a restrictive covenant directed against

African Americans—and therefore able to show injury in liability

for damages—was held to have standing to assert the rights of the

class of persons whose constitutional rights were infringed.461 Simi456 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 153 (1970);

Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39 n.19 (1976); Valley

Forge Christian College v. Americans United, 454 U.S. 464, 475 (1982); Clarke v.

Securities Industry Ass’n, 479 U.S. 388 (1987). See also Bennett v. Spear, 520 U.S.

154 (1997). The Court has indicated that

457 United States v. Richardson, 418 U.S. 166, 173, 174–76 (1974); Duke Power

Co. v. Carolina Environmental Study Group, 438 U.S. 59, 80 (1978); Allen v. Wright,

468 U.S. 737, 751 (1984). In United States v. SCRAP, 412 U.S. 669, 687–88 (1973),

a congressional conferral case, the Court agreed that the interest asserted was one

shared by all, but the Court has disparaged SCRAP, asserting that it “surely went

to the very outer limit of the law,” Whitmore v. Arkansas, 495 U.S. 149, 159 (1990).

458 United States v. Raines, 362 U.S. 17, 21–23 (1960); Yazoo & M.V.R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912). Cf. Bender v. Williamsport Area School Dist.,

475 U.S. 534 (1986).

459 318 U.S. 44 (1943). See Warth v. Seldin, 422 U.S. 490, 508–510 (1975) (challenged law did not adversely affect plaintiffs and did not adversely affect a relationship between them and persons they sought to represent).

460 346 U.S. 249 (1953).

461 See also Buchanan v. Warley, 245 U.S. 60 (1917) (white plaintiff suing for

specific performance of a contract to convey property to a black had standing to contest constitutionality of ordinance barring sale of property to “colored” people, inasmuch as black defendant was relying on ordinance as his defense); Sullivan v. Little

Hunting Park, 396 U.S. 229 (1969) (white assignor of membership in discriminatory

private club could raise rights of black assignee in seeking injunction against expulsion from club).

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744 ART. III—JUDICIAL DEPARTMENT
larly, the Court has permitted defendants who have been convicted

under state law—giving them the requisite injury—to assert the rights

of those persons not before the Court whose rights would be adversely affected through enforcement of the law in question.462 In

fact, the Court has permitted persons who would be subject to future prosecution or future legal action—thus satisfying the injury

requirement—to represent the rights of third parties with whom the

challenged law has interfered with a relationship.463

It is also possible, of course, that one’s own rights can be affected by action directed at someone from another group.464 A substantial dispute was occasioned in Singleton v. Wulff,

465 over the

standing of doctors who were denied Medicaid funds for the performance of abortions not “medically indicated” to assert the rights of

absent women to compensated abortions. All the Justices thought

the Court should be hesitant to resolve a controversy on the basis

of the rights of third parties, but they divided with respect to the

standards exceptions. Four Justices favored a lenient standard, permitting third party representation when there is a close, perhaps

confidential, relationship between the litigant and the third parties

and when there is some genuine obstacle to third party assertion

of their rights; four Justices would have permitted a litigant to assert the rights of third parties only when government directly inter462 E.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (persons convicted of prescribing contraceptives for married persons and as accessories to crime of using contraceptives have standing to raise constitutional rights of patients with whom they

had a professional relationship; although use of contraceptives was a crime, it was

doubtful any married couple would be prosecuted so that they could challenge the

statute); Eisenstadt v. Baird, 405 U.S. 438 (1972) (advocate of contraception convicted of giving device to unmarried woman had standing to assert rights of unmarried persons denied access; unmarried persons were not subject to prosecution and

were thus impaired in their ability to gain a forum to assert their rights).

463 E.g., Doe v. Bolton, 410 U.S. 179, 188–189 (1973) (doctors have standing to

challenge abortion statute since it operates directly against them and they should

not have to await criminal prosecution to challenge it); Planned Parenthood v. Danforth,

428 U.S. 52, 62 (1976) (same); Craig v. Boren, 429 U.S. 190, 192–197 (1976) (licensed beer distributor could contest sex discriminatory alcohol laws because it operated on him, he suffered injury in fact, and was “obvious claimant” to raise issue);

Carey v. Population Services Int’l, 431 U.S. 678, 682–84 (1977) (vendor of contraceptives had standing to bring action to challenge law limiting distribution). Older cases

support the proposition. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925);

Bantam Books v. Sullivan, 372 U.S. 58 (1963).

464 Holland v. Illinois, 493 U.S. 474 (1990) (white defendant had standing to raise

a Sixth Amendment challenge to exclusion of blacks from his jury, since defendant

had a right to a jury comprised of a fair cross section of the community). The Court

has expanded the rights of non-minority defendants to challenge the exclusion of

minorities from petit and grand juries, both on the basis of the injury-in-fact to defendants and because the standards for being able to assert the rights of third parties were met. Powers v. Ohio, 499 U.S. 400 (1991); Campbell v. Louisiana, 523 U.S.

392 (1998).

465 428 U.S. 106 (1976).

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ART. III—JUDICIAL DEPARTMENT 745
dicted the relationship between the litigant and the third parties

through the criminal process and when litigation by the third parties is in all practicable terms impossible.466 Following Wulff, the

Court emphasized the close attorney-client relationship in holding

that a lawyer had standing to assert his client’s Sixth Amendment

right to counsel in challenging application of a drug-forfeiture law

to deprive the client of the means of paying counsel.467 However, a

“next friend” whose stake in the outcome is only speculative must

establish that the real party in interest is unable to litigate his own

cause because of mental incapacity, lack of access to courts, or other

disability.468

A variant of the general rule is that one may not assert the

unconstitutionality of a statute in other respects when the statute

is constitutional as to him.469 Again, the exceptions may be more

important than the rule. Thus, an overly broad statute, especially

one that regulates speech and press, may be considered on its face

rather than as applied, and a defendant to whom the statute constitutionally applies may thereby be enabled to assert its unconstitutionality.470

Legal challenges based upon the allocation of governmental authority under the Constitution, e.g., separation of powers and federalism, are generally based on a showing of injury to the disadvantaged governmental institution. The prohibition on litigating the

injuries of others, however, does not appear to bar individuals from

bringing these suits. For instance, injured private parties routinely

466 Compare 428 U.S. at 112–18 (Justices Blackmun, Brennan, White, and Marshall), with id. at 123–31 (Justices Powell, Stewart, and Rehnquist, and Chief Justice Burger). Justice Stevens concurred with the former four Justices on narrower

grounds limited to this case.

467 Caplin & Drysdale v. United States, 491 U.S. 617, 623–624 n.3 (1989). Caplin

& Drysdale was distinguished in Kowalski v. Tesmer, 543 U.S. 123, 131 (2004), the

Court’s finding that attorneys seeking to represent hypothetical indigent clients in

challenging procedures for appointing appellate counsel had “no relationship at all”

with such potential clients, let alone a “close” relationship.

468 Whitmore v. Arkansas, 495 U.S. 149 (1990) (death row inmate’s challenge to

death penalty imposed on a fellow inmate who knowingly, intelligently, and voluntarily chose not to appeal cannot be pursued).

469 United States v. Raines, 362 U.S. 17, 21–24 (1960).

470 Lanzetta v. New Jersey, 306 U.S. 451 (1939); Thornhill v. Alabama, 310 U.S.

88 (1940); Winters v. New York, 333 U.S. 507 (1948); Dombrowski v. Pfister, 380

U.S. 479, 486–487 (1965); Gooding v. Wilson, 405 U.S. 518 (1972); Lewis v. City of

New Orleans, 415 U.S. 130 (1974). The Court has narrowed its overbreadth doctrine, though not consistently, in recent years. Broadrick v. Oklahoma, 413 U.S. 601

(1973); Young v. American Mini Theatres, 427 U.S. 50, 59–60 (1976), and id. at 73

(Justice Powell concurring); New York v. Ferber, 458 U.S. 747, 771–773 (1982). But

the exception as stated in the text remains strong. E.g., Secretary of State v. Joseph

H. Munson Co., 467 U.S. 947 (1984); Virginia v. American Booksellers Ass’n, 484

U.S. 383 (1988).

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746 ART. III—JUDICIAL DEPARTMENT
bring separation-of-powers challenges,471 even though one could argue that the injury in question is actually upon the authority of

the affected branch of government. Then, in Bond v. United States,

472

the Court considered whether a criminal defendant could raise federalism arguments based on state prerogatives under the Tenth

Amendment.473 There, the Court held that individuals could raise

Tenth Amendment challenges, because states are not the “sole intended beneficiaries of federalism,” and an individual has a “direct

interest in objecting to laws that upset the constitutional balance

between the National Government and the States . . . .” 474

Organizational Standing.—Organizations do not have standing as such to represent their particular concept of the public interest,475 but organizations have been permitted to assert the rights

of their members.476 In Hunt v. Washington State Apple Advertising Comm’n,

477 the Court promulgated elaborate standards, holding that an organization or association “has standing to bring suit

on behalf of its members when: (a) its members would otherwise

have standing to sue in their own right; (b) the interests it seeks to

protect are germane to the organization’s purpose; and (c) neither

the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit.” Similar considerations

arise in the context of class actions, in which the Court holds that

a named representative with a justiciable claim for relief is necessary when the action is filed and when the class is certified, but

471 See, e.g., INS v. Chadha, 462 U.S. 919 (1983); Bowsher v. Synar, 478 U.S.

714 (1986);Clinton v. City of New York, 524 U.S. 417 (1998).

472 564 U.S. ___, No. 09–1227, slip op. (2011).

473 The defendant, in an attempt to harass a woman who had become impregnated by the defendant’s husband, had placed caustic substances on objects the woman

was likely to touch. The defendant was convicted under 18 U.S.C. § 229, a broad

prohibition against the use of harmful chemicals, enacted as part of the implementation of the 1997 Convention on the Prohibition of the Development, Production,

Stockpiling and Use of Chemical Weapons and on their Destruction. The specifics of

the defendant’s Tenth Amendment argument was not before the Court.

474 564 U.S. ___, No. 09–1227, slip op. at 10.

475 Sierra Club v. Morton, 401 U.S. 727 (1972). An organization may, of course,

sue to redress injuries to itself. See Havens Realty Co. v. Coleman, 455 U.S. 363,

378–379 (1982).

476 E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951);

NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958); NAACP v. Button, 371

U.S. 415 (1963); Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964);

United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217 (1967); United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971).

477 432 U.S. 333, 343 (1977). The organization here was not a voluntary membership entity but a state agency charged with furthering the interests of apple growers who were assessed annual sums to support the Commission. Id. at 341–45. See

also Warth v. Seldin, 422 U.S. 490, 510–17 (1975); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39–40 (1976); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 263–264 (1977); Harris v. McRae, 448 U.S.

297, 321 (1980); International Union, UAW v. Brock, 477 U.S. 274 (1986).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 747
that following class certification there need be only a live controversy with the class, provided the adequacy of the representation

is sufficient.478

Standing of States to Represent Their Citizens.—The right

of a state to sue as parens patriae, in behalf of its citizens, has long

been recognized.479 No state, however, may be parens patriae of its

citizens “as against the Federal Government.” 480 But a state may

sue to protect the its citizens from environmental harm,481 and to

enjoin other states and private parties from engaging in actions harmful to the economic or other well-being of it citizens.482 The state

must be more than a nominal party without a real interest of its

own, merely representing the interests of particular citizens who

cannot represent themselves; 483 it must articulate an interest apart

from those of private parties that partakes of a “quasi-sovereign interest” in the health and well-being, both physical and economic, of

its residents in general, although there are suggestions that the restrictive definition grows out of the Court’s wish to constrain its

original jurisdiction and may not fit such suits brought in the lower

federal courts.484

478 United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980). Geraghty

was a mootness case.

479 Louisiana v. Texas, 176 U.S. 1 (1900) (recognizing the propriety of parens

patriae suits but denying it in this particular suit).

480 Massachusetts v. Mellon, 262 U.S. 447, 485–486 (1923). But see South Carolina v. Katzenbach, 383 U.S. 301 (1966) (denying such standing to raise two constitutional claims against the United States but deciding a third); Oregon v. Mitchell,

400 U.S. 112, 117 n.1 (1970) (no question raised about standing or jurisdiction; claims

adjudicated).

481 Missouri v. Illinois, 180 U.S. 208 (1901); Kansas v. Colorado, 206 U.S. 46

(1907); Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907); New York v. New Jersey, 256 U.S. 296 (1921); Pennsylvania v. West Virginia, 262 U.S. 553 (1923); North

Dakota v. Minnesota, 263 U.S. 365 (1923).

482 Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945) (antitrust); Maryland v.

Louisiana, 451 U.S. 725, 737–739 (1981) (discriminatory state taxation of natural

gas shipped to out-of-state customers); Alfred L. Snapp & Son v. Puerto Rico ex rel.

Barez, 458 U.S. 592 (1982) (discrimination by growers against Puerto Rican migrant workers and denial of Commonwealth’s opportunity to participate in federal

employment service laws).

483 New Hampshire v. Louisiana, 108 U.S. 76 (1883); Oklahoma ex rel. Johnson

v. Cook, 304 U.S. 387 (1938); Oklahoma v. Atchison, T. & S.F. Ry., 220 U.S. 277 (1911);

North Dakota v. Minnesota, 263 U.S. 365, 376 (1923); Pennsylvania v. New Jersey,

426 U.S. 660 (1976).

484 Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607–08

(1982). Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, argued that the Court’s standards should apply only in original actions and not in

actions filed in federal district courts, where, they contended, the prerogative of a

state to bring suit on behalf of its citizens should be commensurate with the ability

of private organizations to do so. Id. at 610. The Court admitted that different considerations might apply between original actions and district court suits. Id. at 603

n.12.

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748 ART. III—JUDICIAL DEPARTMENT
Standing of Members of Congress.—The lower federal courts,

principally the D.C. Circuit, developed a body of law governing the

standing of Members of Congress, as Members, to bring court actions, usually to challenge actions of the executive branch.485 When

the Supreme Court finally addressed the issue on the merits in 1997,

however, it severely curtailed Member standing.486 All agree that a

legislator “receives no special consideration in the standing inquiry,” 487 and that he, along with every other person attempting to

invoke the aid of a federal court, must show “injury in fact” as a

predicate to standing. What such injury in fact may consist of, however, has been the subject of debate.

A suit by Members for an injunction against continued prosecution of the Indochina war was held maintainable on the theory that

if the court found the President’s actions to be beyond his constitutional authority, the holding would have a distinct and significant

bearing upon the Members’ duties to vote appropriations and other

supportive legislation and to consider impeachment.488 The breadth

of this rationale was disapproved in subsequent cases. The leading

decision is Kennedy v. Sampson,

489 in which a Member was held to

have standing to contest the alleged improper use of a pocket veto

to prevent from becoming law a bill the Senator had voted for. Thus,

Congressmen were held to have a derivative rather than direct in485 Member standing has not fared well in other Circuits. Holtzman v. Schlesinger,

484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936 (1974); Harrington v. Schlesinger,

528 F.2d 455 (4th Cir. 1975).

486 Raines v. Byrd, 521 U.S. 811 (1997). In Coleman v. Miller, 307 U.S. 433, 438

(1939), the Court had recognized that legislators can in some instances suffer an

injury in respect to the effectiveness of their votes that will confer standing. In Pressler

v. Blumenthal, 434 U.S. 1028 (1978), affg, 428 F. Supp. 302 (D.D.C. 1976) (threejudge court), the Court affirmed a decision in which the lower court had found Member standing but had then decided against the Member on the merits. The “unexplicated

affirmance” could have reflected disagreement with the lower court on standing or

agreement with it on the merits. Note Justice Rehnquist’s appended statement. Id.

In Goldwater v. Carter, 444 U.S. 996 (1979), the Court vacated a decision, in which

the lower Court had found Member standing, and directed dismissal, but none of

the Justices who addressed the question of standing. The opportunity to consider

Member standing was strongly pressed in Burke v. Barnes, 479 U.S. 361 (1987), but

the expiration of the law in issue mooted the case.

487 Reuss v. Balles, 584 F.2d 461, 466 (D.C. Cir. 1978), cert. denied, 439 U.S.

997 (1978).

488 Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973).

489 511 F.2d 430 (D.C. Cir. 1974). In Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985),

the court again found standing by Members challenging a pocket veto, but the Supreme Court dismissed the appeal as moot. Sub nom. Burke v. Barnes, 479 U.S.

361 (1987). Whether the injury was the nullification of the past vote on passage

only or whether it was also the nullification of an opportunity to vote to override

the veto has divided the Circuit, with the majority favoring the broader interpretation. Goldwater v. Carter, 617 F.2d 697, 702 n.12 (D.C. Cir. 1979), and id. at 711–12

(Judge Wright), vacated and remanded with instructions to dismiss, 444 U.S. 996

(1979)

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ART. III—JUDICIAL DEPARTMENT 749
terest in protecting their votes, which was sufficient for standing

purposes, when some “legislative disenfranchisement” occurred.490

In a comprehensive assessment of its position, the Circuit distinguished between (1) a diminution in congressional influence resulting from executive action that nullifies a specific congressional vote

or opportunity to vote in an objectively verifiable manner, which will

constitute injury in fact, and (2) a diminution in a legislator’s effectiveness, subjectively judged by him, resulting from executive action, such a failing to obey a statute, where the plaintiff legislator

has power to act through the legislative process, in which injury in

fact does not exist.491 Having thus established a fairly broad concept of Member standing, the Circuit then proceeded to curtail it

by holding that the equitable discretion of the court to deny relief

should be exercised in many cases in which a Member had standing but in which issues of separation of powers, political questions,

and other justiciability considerations counseled restraint.492

Member or legislator standing has been severely curtailed, although not quite abolished, in Raines v. Byrd.

493 Several Members

of Congress, who had voted against passage of the Line Item Veto

Act, sued in their official capacities as Members of Congress to invalidate the law, alleging standing based on the theory that the statute adversely affected their constitutionally prescribed lawmaking

power.494 Emphasizing its use of standing doctrine to maintain

separation-of-powers principles, the Court adhered to its holdings

that, in order to possess the requisite standing, a person must establish that he has a “personal stake” in the dispute and that the

490 Kennedy v. Sampson, 511 F.2d 430, 435–436 (D.C. Cir. 1974). See Harrington v. Bush, 553 F.2d 190, 199 n.41 (D.C. Cir. 1977). Harrington found no standing in a Member’s suit challenging CIA failure to report certain actions to Congress,

in order that Members could intelligently vote on certain issues. See also Reuss v.

Balles, 584 F.2d 461 (D.C. Cir. 1978), cert. denied, 439 U.S. 997 (1978).

491 Goldwater v. Carter, 617 F.2d 697, 702, 703 (D.C. Cir. 1979) (en banc), vacated and remanded with instructions to dismiss, 444 U.S. 996 (1979). The failure

of the Justices to remark on standing is somewhat puzzling, since it has been stated

that courts “turn initially, although not invariably, to the question of standing to

sue.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974).

But see Harrington v. Bush, 553 F.2d 190, 207 (D.C. Cir. 1977). In any event, the

Supreme Court’s decision vacating Goldwater deprives the Circuit’s language of

precedential effect. United States v. Munsingwear, 340 U.S. 36, 39–40 (1950); O’Connor

v. Donaldson, 422 U.S. 563, 577 n.12 (1975).

492 Riegle v. FOMC, 656 F.2d 873 (D.C. Cir. 1981), cert. denied, 454 U.S. 1082

(1981).

493 521 U.S. 811 (1997).

494 The Act itself provided that “[a]ny Member of Congress or any individual

adversely affected” could sue to challenge the law. 2 U.S.C. § 692(a)(1). After failure

of this litigation, the Court in the following Term, on suits brought by claimants

adversely affected by the exercise of the veto, held the statute unconstitutional. Clinton v. City of New York, 524 U.S. 417 (1998).

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alleged injury suffered is particularized as to him.495 Neither requirement, the Court held, was met by these legislators. First, the Members did not suffer a particularized loss that distinguished them from

their colleagues or from Congress as an entity. Second, the Members did not claim that they had been deprived of anything to which

they were personally entitled. “[A]ppellees’ claim of standing is based

on loss of political power, not loss of any private right, which would

make the injury more concrete. . . . If one of the Members were to

retire tomorrow, he would no longer have a claim; the claim would

be possessed by his successor instead. The claimed injury thus runs

(in a sense) with the Member’s seat, a seat which the Member holds

. . . as trustee for his constituents, not as a prerogative of personal

power.” 496

So, there is no such thing as Member standing? Not necessarily so, because the Court turned immediately to preserving (at least

a truncated version of) Coleman v. Miller,

497 in which the Court had

found that 20 of the 40 members of a state legislature had standing to sue to challenge the loss of the effectiveness of their votes as

a result of a tie-breaker by the lieutenant governor. Although there

are several possible explanations for the result in that case, the Court

in Raines chose to fasten on a particularly narrow point. “[O]ur holding in Coleman stands (at most . . .) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a

specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that

their votes have been completely nullified.” 498 Because these Members could still pass or reject appropriations bills, vote to repeal the

Act, or exempt any appropriations bill from presidential cancellation, the Act did not nullify their votes and thus give them standing.499

In a subsequent case, the Court reaffirmed the continued viability of Coleman 500 in concluding that legislators, when authorized

by the legislature, could have standing to assert an “institutional

injury” to that legislative body.501 Specifically, the Court held in Arizona State Legislature v. Arizona Independent Redistricting Commission that the Arizona legislature had standing to challenge the

validity of the Arizona Independent Redistricting Commission and

495 521 U.S. at 819.

496 521 U.S. at 821.

497 307 U.S. 433 (1939).

498 521 U.S. at 823.

499 521 U.S. at 824–26.

500 See Coleman v. Miller, 307 U.S. 433 (1939).

501 Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. ___,

No. 13–1314, slip op. at 14 (2015).

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ART. III—JUDICIAL DEPARTMENT 751
the commission’s 2012 map of congressional districts because the

legislature had been “stripped” of what the plaintiff considered its

“exclusive constitutionally guarded role” in redistricting.502 Comparing the Arizona legislature’s role to the “institutional injury” suffered by the plaintiffs in Coleman, the Court viewed the Arizona

legislators’ injury as akin to that of the Coleman legislators because the Arizona Constitution and the ballot initiative that provided for redistricting by an independent commission “completely

nullif[y]” any vote “now or ‘in the future’ ” by the legislature “purporting to adopt a redistricting plan.” 503 However, in Arizona State

Legislature, the Court left open the question of whether Congress,

in a lawsuit against the President over an institutional injury to

the legislative branch, would likewise have standing, as such a lawsuit would “raise separation-of-powers concerns absent” in the case

before the Court.504

Standing to Challenge Lawfulness of Governmental Action.—Standing to challenge governmental action on statutory or

other non-constitutional grounds has a constitutional content to the

degree that Article III requires a “case” or “controversy,” necessitating a litigant who has sustained or will sustain an injury so that

he will be moved to present the issue “in an adversary context and

in a form historically viewed as capable of judicial resolution.” 505

Liberalization of standing in the administrative law field has been

notable.

The “old law” required that in order to sue to contest the lawfulness of agency administrative action, one must have suffered a

“legal wrong,” that is, “the right invaded must be a legal right,” 506

requiring some resolution of the merits preliminarily. An injury-infact was insufficient. A “legal right” could be established in one of

two ways. It could be a common-law right, such that if the injury

were administered by a private party, one could sue on it; 507 or it

502 Id. at 10.

503 Id.

504 Id. at 14 n.12.

505 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 151–152 (1970),

citing Flast v. Cohen, 392 U.S. 83, 101 (1968). “But where a dispute is otherwise

justiciable, the question whether the litigant is a ‘proper party to request an adjudication of a particular issue,’ [quoting Flast, supra, at 100], is one within the power

of Congress to determine.” Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972).

506 Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 137–138 (1939). See also

Alabama Power Co. v. Ickes, 302 U.S. 464 (1938); Perkins v. Lukens Steel Co., 310

U.S. 113 (1940).

507 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951)

(Justice Frankfurter concurring). This was apparently the point of the definition of

“legal right” as “one of property, one arising out of contract, one protected against

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752 ART. III—JUDICIAL DEPARTMENT
could be a right created by the Constitution or a statute.508 The

statutory right most relied on was the judicial review section of the

Administrative Procedure Act, which provided that “[a] person suffering legal wrong because of agency action, or adversely affected

or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 509 Early decisions under

this statute interpreted the language as adopting the “legal interest” and “legal wrong” standard then prevailing as constitutional

requirements of standing, which generally had the effect of limiting the type of injury cognizable in federal court to economic ones.510

In 1970, however, the Court promulgated a two-pronged standing test: if the litigant (1) has suffered injury-in-fact and if he (2)

shows that the interest he seeks to protect is arguably within the

zone of interests to be protected or regulated by the statutory guarantee in question, he has standing.511 Of even greater importance

tortious invasion, or one founded on a statute which confers a privilege.” Tennessee

Electric Power Co. v. TVA, 306 U.S. 118, 137–138 (1939).

508 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951)

(Justice Frankfurter concurring). The Court approached this concept in two interrelated ways. (1) It might be that a plaintiff had an interest that it was one of the

purposes of the statute in question to protect in some degree. Chicago Junction Case,

264 U.S. 258 (1924); Alexander Sprunt & Son v. United States, 281 U.S. 249 (1930);

Alton R.R. v. United States, 315 U.S. 15 (1942). Thus, in Hardin v. Kentucky Utilities Co., 390 U.S. 1 (1968), a private utility was held to have standing to contest

allegedly illegal competition by TVA on the ground that the statute was meant to

give private utilities some protection from certain forms of TVA competition. (2) It

might be that a plaintiff was a “person aggrieved” within the terms of a judicial

review section of an administrative or regulatory statute. Injury to an economic interest was sufficient to “aggrieve” a litigant. FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940); Associated Industries v. Ickes, 134 F.2d 694 (2d Cir. 1943),

cert. dismissed as moot, 320 U.S. 707 (1943).

509 5 U.S.C. § 702. See also 47 U.S.C. § 202(b)(6) (FCC); 15 U.S.C. § 77i(a) (SEC);

16 U.S.C. § 825a(b) (FPC).

510 FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 477 (1940); City of

Chicago v. Atchison, T. & S.F. Ry. Co., 357 U.S. 77, 83 (1958); Hardin v. Kentucky

Utilities Co., 390 U.S. 1, 7 (1968).

511 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow

v. Collins, 397 U.S. 159 (1970). Justices Brennan and White argued that only injuryin-fact should be requisite for standing. Id. at 167. In Clarke v. Securities Industry

Ass’n, 479 U.S. 388 (1987), the Court applied a liberalized zone-of-interest test. But

see Lujan v. National Wildlife Federation, 497 U.S. 871, 885–889 (1990); Air Courier

Conf. v. American Postal Workers Union, 498 U.S. 517 (1991). In applying these standards, the Court, once it determined that the litigant’s interests were “arguably protected” by the statute in question, proceeded to the merits without thereafter pausing to inquire whether in fact the interests asserted were among those protected.

Arnold Tours v. Camp, 400 U.S. 45 (1970); Investment Company Institute v. Camp,

401 U.S. 617 (1971); Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318,

320 n.3 (1977). Almost contemporaneously, the Court also liberalized the ripeness

requirement in review of administrative actions. Gardner v. Toilet Goods Ass’n, Inc.,

387 U.S. 167 (1967); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). See also

National Credit Union Administration v. First National Bank & Trust Co., 522 U.S.

479 (1998), in which the Court found that a bank had standing to challenge an agency

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ART. III—JUDICIAL DEPARTMENT 753
was the expansion of the nature of the cognizable injury beyond

economic injury to encompass “aesthetic, conservational, and recreational” interests as well.512 “Aesthetic and environmental wellbeing, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental

interests are shared by the many rather than the few does not make

them less deserving of legal protection through the judicial process.” 513 Thus, plaintiffs who pleaded that they used the natural

resources of the Washington area, that rail freight rates would deter the recycling of used goods, and that their use of natural resources would be disturbed by the adverse environmental impact

caused by the nonuse of recyclable goods, had standing as “persons

aggrieved” to challenge the rates set. Neither the large numbers of

persons allegedly injured nor the indirect and less perceptible harm

to the environment was justification to deny standing. The Court

granted that the plaintiffs might never be able to establish the “attenuated line of causation” from rate setting to injury, but that was

a matter for proof at trial, not for resolution on the pleadings.514

Much debate has occurred in recent years with respect to the

validity of “citizen suit” provisions in the environmental laws, especially in light of the Court’s retrenchment in constitutional standing cases. The Court in insisting on injury in fact as well as causation and redressability has curbed access to citizen suits,515 but that

ruling expanding the role of employer credit unions to include multi-employer credit

unions, despite a statutory limit that any such union could be of groups having a

common bond of occupation or association. The Court held that a plaintiff did not

have to show it was the congressional purpose to protect its interests. It is sufficient

if the interest asserted is “arguably within the zone of interests to be protected . . .

by the statute.” Id. at 492 (internal quotation marks and citation omitted). But the

Court divided 5-to-4 in applying the test. See also Bennett v. Spear, 520 U.S. 154

(1997).

512 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 154 (1970).

513 Sierra Club v. Morton, 405 U.S. 727, 734 (1972), Moreover, said the Court,

once a person establishes that he has standing to seek judicial review of an action

because of particularized injury to him, he may argue the public interest as a “representative of the public interest,” as a “private attorney general,” so that he may

contest not only the action which injures him but the entire complex of actions of

which his injury-inducing action is a part. Id. at 737–738, noting Scripps-Howard

Radio v. FCC, 316 U.S. 4 (1942); FCC v. Sanders Brothers Radio Station, 309 U.S.

(1940). See also Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. (1979);

Havens Realty Corp. v. Coleman, 455 U.S. 363, 376 n.16 (1982) (noting ability of

such party to represent interests of third parties).

514 United States v. SCRAP, 412 U.S. 669, 683–690 (1973). As was noted above,

this case has been disparaged by the later Court. Lujan v. Defenders of Wildlife,

504 U.S. 555, 566–67 (1992); Whitmore v. Arkansas, 495 U.S. 149, 158–160 (1990).

515 See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Lujan v. National

Wildlife Federation, 497 U.S. 871 (1990). But see Bennett v. Spear, 520 U.S. 154

(1997) (fact that citizen suit provision of Endangered Species Act is directed at empowering suits to further environmental concerns does not mean that suitor who

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754 ART. III—JUDICIAL DEPARTMENT
Congress may expansively confer substantial degrees of standing

through statutory creations of interests remains true.

The Requirement of a Real Interest

Almost inseparable from the requirements of adverse parties and

substantial enough interests to confer standing is the requirement

that a real issue be presented, as contrasted with speculative, abstract, hypothetical, or moot issues. It has long been the Court’s

“considered practice not to decide abstract, hypothetical or contingent questions.” 516 A party cannot maintain a suit “for a mere declaration in the air.” 517 In Texas v. ICC,

518 the State attempted to

enjoin the enforcement of the Transportation Act of 1920 on the ground

that it invaded the reserved rights of the State. The Court dismissed the complaint as presenting no case or controversy, declaring: “It is only where rights, in themselves appropriate subjects of

judicial cognizance, are being, or about to be, affected prejudicially

by the application or enforcement of a statute that its validity may

be called in question by a suitor and determined by an exertion of

the judicial power.” 519 And in Ashwander v. TVA,

520 the Court refused to decide any issue save that of the validity of the contracts

between the Authority and the Company. “The pronouncements, policies and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete

character constituting an actual or threatened interference with the

rights of the person complaining.” 521

Concepts of real interest and abstract questions appeared prominently in United Public Workers v. Mitchell,

522 an omnibus attack

on the constitutionality of the Hatch Act prohibitions on political

activities by governmental employees. With one exception, none of

the plaintiffs had violated the Act, though they stated they desired

alleges economic harm from enforcement of Act lacks standing); FEC v. Akins, 524

U.S. 11 (1998) (expansion of standing based on denial of access to information).

516 Alabama State Fed’n of Labor v. McAdory, 325 U.S. 450, 461 (1945).

517 Giles v. Harris, 189 U.S. 475, 486 (1903).

518 258 U.S. 158 (1922).

519 258 U.S. at 162.

520 297 U.S. 288 (1936).

521 297 U.S. at 324. Chief Justice Hughes cited New York v. Illinois, 274 U.S.

488 (1927), in which the Court dismissed as presenting abstract questions a suit

about the possible effects of the diversion of water from Lake Michigan upon hypothetical water power developments in the indefinite future, and Arizona v. California, 283 U.S. 423 (1931), in which it was held that claims based merely upon assumed potential invasions of rights were insufficient to warrant judicial intervention.

See also Massachusetts v. Mellon, 262 U.S. 447, 484–485 (1923); New Jersey v. Sargent,

269 U.S. 328, 338–340 (1926); Georgia v. Stanton, 73 U.S. (6 Wall.) 50, 76 (1867).

522 330 U.S. 75 (1947).

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ART. III—JUDICIAL DEPARTMENT 755
to engage in forbidden political actions. The Court found no justiciable controversy except in regard to the one, calling for “concrete

legal issues, presented in actual cases, not abstractions,” and seeing the suit as really an attack on the political expediency of the

Act.523

Advisory Opinions.—In 1793, the Court unanimously refused

to grant the request of President Washington and Secretary of State

Jefferson to construe the treaties and laws of the United States pertaining to questions of international law arising out of the wars of

the French Revolution.524 Noting the constitutional separation of powers and functions in his reply, Chief Justice Jay said: “These being

in certain respects checks upon each other, and our being Judges

of a Court in the last resort, are considerations which afford strong

arguments against the propriety of our extra-judicially deciding the

questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for

opinions, seem to have been purposely as well as expressly united

to the Executive departments.” 525 Although the Court has generally adhered to its refusal, Justice Jackson was not quite correct

when he termed the policy a “firm and unvarying practice. . . .” 526

The Justices in response to a letter calling for suggestions on improvements in the operation of the courts drafted a letter suggesting that circuit duty for the Justices was unconstitutional, but they

apparently never sent it; 527 Justice Johnson communicated to President Monroe, apparently with the knowledge and approval of the

other Justices, the views of the Justices on the constitutionality of

internal improvements legislation; 528 and Chief Justice Hughes in

a letter to Senator Wheeler on President Roosevelt’s Court Plan questioned the constitutionality of a proposal to increase the membership and have the Court sit in divisions.529 Other Justices have in523 330 U.S. at 89–91. Justices Black and Douglas dissented, contending that

the controversy was justiciable. Justice Douglas could not agree that the plaintiffs

should have to violate the act and lose their jobs in order to test their rights. In

CSC v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973), the concerns expressed in Mitchell were largely ignored as the Court reached the merits in an anticipatory attack on the Act. Compare Epperson v. Arkansas, 393 U.S. 97 (1968).

524 1 C. Warren, supra at 108–111. The full text of the exchange appears in 3

CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 486–489 (H. Johnston ed., 1893).

525 Jay Papers at 488.

526 Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948).

527 See supra.

528 1 C. Warren, supra at 595–597.

529 Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judiciary Committee, 75th Congress, 1st Sess. (1937), pt. 3, 491. See also Chief Justice

Taney’s private advisory opinion to the Secretary of the Treasury that a tax levied

on the salaries of federal judges violated the Constitution. S. TYLER, MEMOIRS OF ROGER

B. TANEY 432–435 (1876).

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756 ART. III—JUDICIAL DEPARTMENT
dividually served as advisers and confidants of Presidents in one

degree or another.530

Nonetheless, the Court has generally adhered to the early precedent and would no doubt have developed the rule in any event, as

a logical application of the case and controversy doctrine. As Justice Jackson wrote when the Court refused to review an order of

the Civil Aeronautics Board, which in effect was a mere recommendation to the President for his final action: “To revise or review an

administrative decision which has only the force of a recommendation to the President would be to render an advisory opinion in its

most obnoxious form—advice that the President has not asked, tendered at the demand of a private litigant, on a subject concededly

within the President’s exclusive, ultimate control. This Court early

and wisely determined that it would not give advisory opinions even

when asked by the Chief Executive. It has also been the firm and

unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are

subject to later review or alteration by administrative action.” 531

The Court’s early refusal to render advisory opinions has discouraged direct requests for advice so that the advisory opinion has appeared only collaterally in cases where there was a lack of adverse

parties,532 or where the judgment of the Court was subject to later

review or action by the executive or legislative branches of government,533 or where the issues involved were abstract or contingent.534

Declaratory Judgments.—Rigid emphasis upon such elements of judicial power as finality of judgment and award of execution coupled with equally rigid emphasis upon adverse parties and

real interests as essential elements of a case and controversy created serious doubts about the validity of any federal declaratory judgment procedure.535 These doubts were largely dispelled by Court decisions in the late 1920s and early 1930s,536 and Congress quickly

530 E.g., Acheson, Removing the Shadow Cast on the Courts, 55 A.B.A.J. 919

(1969); Jaffe, Professors and Judges as Advisors to Government: Reflections on the

Roosevelt-Frankfurter Relationship, 83 HARV. L. REV. 366 (1969). The issue earned

the attention of the Supreme Court, Mistretta v. United States, 488 U.S. 361, 397–

408 (1989) (citing examples and detailed secondary sources), when it upheld the congressionally authorized service of federal judges on the Sentencing Commission.

531 Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113–114 (1948).

532 Muskrat v. United States, 219 U.S. 346 (1911).

533 United States v. Ferreira, 54 U.S. (13 How.) 40 (1852).

534 United Public Workers v. Mitchell, 330 U.S. 75 (1947).

535 Cf. Willing v. Chicago Auditorium Ass’n, 277 U.S. 274 (1928).

536 Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123 (1927); Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1963). Wallace was cited with approval in Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007) (“Article

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

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responded with the Federal Declaratory Judgment Act of 1934.537

Quickly tested, the Act was unanimously sustained.538 “The principle involved in this form of procedure,” the House report said, “is

to confer upon the courts the power to exercise in some instances

preventive relief; a function now performed rather clumsily by our

equitable proceedings and inadequately by the law courts.” 539 The

Senate report stated: “The declaratory judgment differs in no essential respect from any other judgment except that it is not followed

by a decree for damages, injunction, specific performance, or other

immediately coercive decree. It declares conclusively and finally the

rights of parties in litigations over a contested issue, a form of relief which often suffices to settle controversies and fully administer

justice.” 540

The 1934 Act provided that “[i]n cases of actual controversy”

federal courts could “declare rights and other legal relations of any

interested party petitioning for such declaration, whether or not further relief is or could be prayed. . . .” 541 Upholding the Act, the Court

wrote: “The Declaratory Judgment Act of 1934, in its limitation to

‘cases of actual controversy,’ manifestly has regard to the constitutional provision and is operative only in respect to controversies which

are such in the constitutional sense. The word ‘actual’ is one of emphasis rather than of definition. Thus the operation of the Declaratory Judgment Act is procedural only. In providing remedies and

defining procedure in relation to cases and controversies in the constitutional sense the Congress is acting within its delegated power

over the jurisdiction of the federal courts which the Congress is authorized to establish.” 542 Finding that the case presented a definite

and concrete controversy, the Court held that a declaration should

have been issued.543

The Court has insisted that “the requirements for a justiciable

case or controversy are no less strict in a declaratory judgment proceeding than in any other type of suit.” 544 As Justice Douglas wrote:

“The difference between an abstract question and a ‘controversy’ conIII’s limitation of federal courts’ jurisdiction to ‘Cases’ and ‘Controversies,’ reflected

in the ‘actual controversy’ requirement of the Declaratory Judgment Act, 28 U.S.C.

§ 2201(a), [does not] require[ ] a patent licensee to terminate or be in breach of its

license agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed,” id. at 120–21).

537 48 Stat. 955, as amended, 28 U.S.C. §§ 2201–2202.

538 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937) (cited with approval in

Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007)).

539 H. REP. NO. 1264, 73d Congress, 2d Sess. (1934), 2.

540 S. REP. NO. 1005, 73d Congress, 2d Sess. (1934), 2.

541 48 Stat. 955. The language remains quite similar. 28 U.S.C. § 2201.

542 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–240 (1937).

543 300 U.S. at 242–44.

544 Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945).

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758 ART. III—JUDICIAL DEPARTMENT
templated by the Declaratory Judgment Act is necessarily one of

degree, and it would be difficult, if it would be possible, to fashion

a precise test for determining in every case whether there is such

a controversy. Basically, the question in each case is whether the

facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of

a declaratory judgment.” 545 It remains, therefore, for the courts to

determine in each case the degree of controversy necessary to establish a case for purposes of jurisdiction. Even then, however, the Court

is under no compulsion to exercise its jurisdiction.546 Use of declaratory judgments to settle disputes and identify rights in many private areas, like insurance and patents in particular but extending

into all areas of civil litigation, except taxes,547 is common. The Court

has, however, at various times demonstrated a substantial reluctance to have important questions of public law, especially regarding the validity of legislation, resolved by such a procedure.548 In

part, this has been accomplished by a strict insistence upon concreteness, ripeness, and the like.549 Nonetheless, even at such times,

several noteworthy constitutional decisions were rendered in declaratory judgment actions.550

As part of the 1960s hospitality to greater access to courts, the

Court exhibited a greater receptivity to declaratory judgments in

constitutional litigation, especially cases involving civil liberties is545 Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).

546 Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 (1942); Public Service Comm’n v. Wycoff Co., 344 U.S. 237, 243 (1952); Public Affairs Associates v. Rickover,

369 U.S. 111, 112 (1962). See also Wilton v. Seven Falls Co., 515 U.S. 277 (1995).

547 An exception “with respect to Federal taxes” was added in 1935. 49 Stat.

1027. The Tax Injunction Act of 1937, 50 Stat. 738, U.S.C. § 1341, prohibited federal

injunctive relief directed at state taxes but said nothing about declaratory relief. It

was held to apply, however, in California v. Grace Brethren Church, 457 U.S. 393

(1982). Earlier, in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943),

the Court had reserved the issue but held that considerations of comity should preclude federal courts from giving declaratory relief in such cases. Cf. Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100 (1981).

548 E.g., Ashwander v. TVA, 297 U.S. 288 (1936); Electric Bond Co. v. SEC, 303

U.S. 419 (1938); United Public Workers v. Mitchell, 330 U.S. 75 (1947); Eccles v.

Peoples Bank, 333 U.S. 426 (1948); Rescue Army v. Municipal Court, 331 U.S. 549,

572–573 (1947).

549 United Public Workers v. Mitchell, 330 U.S. 75 (1947); Poe v. Ullman, 367

U.S. 497 (1961); Altvater v. Freeman, 319 U.S. 359 (1943); International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954); Public Service Comm’n v. Wycoff Co., 344

U.S. 237 (1952).

550 E.g., Currin v. Wallace, 306 U.S. 1 (1939); Perkins v. Elg, 307 U.S. 325 (1939);

Ashwander v. TVA, 297 U.S. 288 (1936); Evers v. Dwyer, 358 U.S. 202 (1958).

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ART. III—JUDICIAL DEPARTMENT 759
sues.551 The doctrinal underpinnings of this hospitality were sketched

out by Justice Brennan in his opinion for the Court in Zwickler v.

Koota,

552 in which the relevance to declaratory judgments of the

Dombrowski v. Pfister 553 line of cases involving federal injunctive

relief against the enforcement of state criminal statutes was in issue. First, it was held that the vesting of “federal question” jurisdiction in the federal courts by Congress following the Civil War, as

well as the enactment of more specific civil rights jurisdictional statutes, “imposed the duty upon all levels of the federal judiciary to

give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims.” 554 Escape from

that duty might be found only in “narrow circumstances,” such as

an appropriate application of the abstention doctrine, which was not

proper where a statute affecting civil liberties was so broad as to

reach protected activities as well as unprotected activities. Second,

the judicially developed doctrine that a litigant must show “special

circumstances” to justify the issuance of a federal injunction against

the enforcement of state criminal laws is not applicable to requests

for federal declaratory relief: “a federal district court has the duty

to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction.” 555 This language was qualified subsequently, so that declaratory and injunctive relief were equated in

cases in which a criminal prosecution is pending in state court at

the time the federal action is filed 556 or is begun in state court after the filing of the federal action but before any proceedings of substance have taken place in federal court,557 and federal courts were

instructed not to issue declaratory judgments in the absence of the

factors permitting issuance of injunctions under the same circumstances. But in the absence of a pending state action or the subsequent and timely filing of one, a request for a declaratory judgment that a statute or ordinance is unconstitutional does not have

551 E.g., Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents,

385 U.S. 589 (1967); Turner v. City of Memphis, 369 U.S. 350 (1962); Powell v. McCormack, 395 U.S. 486 (1969). But see Golden v. Zwickler, 394 U.S. 103 (1969).

552 389 U.S. 241 (1967).

553 380 U.S. 479 (1965).

554 Zwickler v. Koota, 389 U.S. 241, 248 (1967).

555 Zwickler v. Koota, 389 U.S. 241, 254 (1967).

556 Samuels v. Mackell, 401 U.S. 66 (1971). The case and its companion, Younger

v. Harris, 401 U.S. 37 (1971), substantially undercut much of the Dombrowski language and much of Zwickler was downgraded.

557 Hicks v. Miranda, 422 U.S. 332, 349 (1975).

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760 ART. III—JUDICIAL DEPARTMENT
to meet the stricter requirements justifying the issuance of an injunction.558

Ripeness.—Just as standing historically has concerned who may

bring an action in federal court, the ripeness doctrine concerns when

it may be brought. Formerly, it was a wholly constitutional principle requiring a determination that the events bearing on the substantive issue have happened or are sufficiently certain to occur so

as to make adjudication necessary and so as to assure that the issues are sufficiently defined to permit intelligent resolution. The focus was on the harm to the rights claimed rather than on the harm

to the plaintiff that gave him standing to bring the action,559 although, to be sure, in most cases the harm is the same. But in liberalizing the doctrine of ripeness in recent years the Court subdivided it into constitutional and prudential parts 560 and conflated

standing and ripeness considerations.561

The early cases generally required potential plaintiffs to expose

themselves to possibly irreparable injury in order to invoke federal

judicial review. Thus, in United Public Workers v. Mitchell,

562 government employees alleged that they wished to engage in various

political activities and that they were deterred from their desires

by the Hatch Act prohibitions on political activities. As to all but

one plaintiff, who had himself actually engaged in forbidden activity, the Court held itself unable to adjudicate because the plaintiffs

were not threatened with “actual interference” with their interests.

The Justices viewed the threat to plaintiffs’ rights as hypothetical

and refused to speculate about the kinds of political activity they

might engage in or the Government’s response to it. “No threat of

interference by the Commission with rights of these appellants appears beyond that implied by the existence of the law and the regu558 Steffel v. Thompson, 415 U.S. 452 (1974). In cases covered by Steffel, the

federal court may issue preliminary or permanent injunctions to protect its judgments, without satisfying the Younger tests. Doran v. Salem Inn, 422 U.S. 922, 930–

931 (1975); Wooley v. Maynard, 430 U.S. 705, 712 (1977).

559 United Public Workers v. Mitchell, 330 U.S. 75 (1947); International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954). For recent examples of lack of ripeness, see Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998); Texas v. United

States, 523 U.S. 296 (1998).

560 Regional Rail Reorganization Act Cases, 419 U.S. 102, 138–148 (1974) (certainty of injury a constitutional limitation, factual adequacy element a prudential

one).

561 Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 81–82

(1978) (that plaintiffs suffer injury-in-fact and such injury would be redressed by

granting requested relief satisfies Article III ripeness requirement; prudential element satisfied by determination that Court would not be better prepared to render

a decision later than now). But compare Renne v. Geary, 501 U.S. 312 (1991).

562 330 U.S. 75 (1947).

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lations.” 563 Similarly, resident aliens planning to work in the Territory of Alaska for the summer and then return to the United States

were denied a request for an interpretation of the immigration laws

that they would not be treated on their return as excludable aliens

entering the United States for the first time, or alternatively, for a

ruling that the laws so interpreted would be unconstitutional. The

resident aliens had not left the country and attempted to return,

although other alien workers had gone and been denied reentry, and

the immigration authorities were on record as intending to enforce

the laws as they construed them.564 Of course, the Court was not

entirely consistent in applying the doctrine.565

It remains good general law that pre-enforcement challenges to

criminal and regulatory legislation will often be unripe for judicial

consideration because of uncertainty of enforcement,566 because the

plaintiffs can allege only a subjective feeling of inhibition or fear

arising from the legislation or from enforcement of it,567 or because

563 330 U.S. at 90. In CSC v. National Ass’n of Letter Carriers, 413 U.S. 548

(1973), without discussing ripeness, the Court decided on the merits anticipatory

attacks on the Hatch Act. Plaintiffs had, however, alleged a variety of more concrete

infringements upon their desires and intentions than the UPW plaintiffs had.

564 International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954). See also

Electric Bond Co. v. SEC, 303 U.S. 419 (1938); Alabama State Federation of Labor

v. McAdory, 325 U.S. 450 (1945); Public Service Comm’n v. Wycoff Co., 344 U.S. 237

(1952); Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972).

565 In Adler v. Board of Educ., 342 U.S. 485 (1952), without discussing ripeness,

the Court decided on the merits a suit about a state law requiring dismissal of teachers advocating violent overthrow of the government, over a strong dissent arguing

the case was indistinguishable from Mitchell. Id. at 504 (Justice Frankfurter dissenting). In Cramp v. Board of Pub. Instruction, 368 U.S. 278 (1961), a state employee

was permitted to attack a non-Communist oath, although he alleged he believed he

could take the oath in good faith and could prevail if prosecuted, because the oath

was so vague as to subject plaintiff to the “risk of unfair prosecution and the potential deterrence of constitutionally protected conduct.” Id. at 283–84. See also Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S. 589

(1967).

566 E.g., Poe v. Ullman, 367 U.S. 497 (1961) (no adjudication of challenge to law

barring use of contraceptives because in 80 years of the statute’s existence the state

had never instituted a prosecution). But compare Epperson v. Arkansas, 393 U.S. 97

(1987) (merits reached in absence of enforcement and fair indication state would

not enforce it); Vance v. Amusement Co., 445 U.S. 308 (1980) (reaching merits, although state asserted law would not be used, although local prosecutor had so threatened; no discussion of ripeness, but dissent relied on Poe, id. at 317–18).

567 E.g., Younger v. Harris, 401 U.S. 37, 41–42 (1971); Boyle v. Landry, 401 U.S.

77 (1971); Golden v. Zwickler, 394 U.S. 103 (1969); O’Shea v. Littleton, 414 U.S. 488

(1974); Spomer v. Littleton, 414 U.S. 514 (1974); Rizzo v. Goode, 423 U.S. 362 (1976).

In the context of the ripeness to challenge of agency regulations, as to which there

is a presumption of available judicial remedies, the Court has long insisted that federal courts should be reluctant to review such regulations unless the effects of administrative action challenged have been felt in a concrete way by the challenging

parties, i.e., unless the controversy is “ripe.” See, of the older cases, Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S.

158 (1967); Gardner v. Toilet Goods Ass’n, Inc., 387 U.S. 167 (1967). More recent

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762 ART. III—JUDICIAL DEPARTMENT
the courts need before them the details of a concrete factual situation arising from enforcement in order to engage in a reasoned balancing of individual rights and governmental interests.568 But one

who challenges a statute or possible administrative action need demonstrate only a realistic danger of sustaining an injury to his rights

as a result of the statute’s operation and enforcement and need not

await the consummation of the threatened injury in order to obtain preventive relief, such as exposing himself to actual arrest or

prosecution. When one alleges an intention to engage in conduct

arguably affected with a constitutional interest but proscribed by

statute and there exists a credible threat of prosecution thereunder, he may bring an action for declaratory or injunctive relief.569

Similarly, the reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the court has sufficient facts

before it to enable it to intelligently adjudicate the issues.570

Of considerable uncertainty in the law of ripeness is Duke Power,

in which the Court held ripe for decision on the merits a challenge

to a federal law limiting liability for nuclear accidents at nuclear

power plants, on the basis that, because the plaintiffs had sustained an injury-in-fact and had standing, the Article III requisite

of ripeness was satisfied and no additional facts arising out of the

occurrence of the claimed harm would enable the court better to

decide the issues.571 Should this analysis prevail, ripeness as a limitation on justiciability will decline in importance.

cases include Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993); Lujan v. National Wildlife Federation, 497 U.S. 871, 891 (1990).

568 E.g., California Bankers Ass’n v. Schultz, 416 U.S. 21 (1974); Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264, 294–297 (1981); Renne v. Geary,

501 U.S. 312, 320–323 (1991).

569 Steffel v. Thompson, 415 U.S. 452 (1974); Wooley v. Maynard, 430 U.S. 705,

707–708, 710 (1977); Babbitt v. United Farm Workers, 442 U.S. 289, 297–305 (1979)

(finding some claims ripe, others not). Compare Doe v. Bolton, 410 U.S. 179, 188–

189 (1973), with Roe v. Wade, 410 U.S. 113, 127–128 (1973). See also Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Colautti v. Franklin, 439 U.S. 379 (1979).

570 Buckley v. Valeo, 424 U.S. 1, 113–118 (1976); Regional Rail Reorganization

Act Cases, 419 U.S. 102, 138–148 (1974) (holding some but not all the claims ripe).

See also Goldwater v. Carter, 444 U.S. 996, 997 (Justice Powell concurring) (parties

had not put themselves in opposition).

571 Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 81–82

(1978). The injury giving standing to plaintiffs was the environmental harm arising

from the plant’s routine operation; the injury to their legal rights was alleged to be

the harm caused by the limitation of liability in the event of a nuclear accident. The

standing injury had occurred, the ripeness injury was conjectural and speculative

and might never occur. See id. at 102 (Justice Stevens concurring in the result). It

is evident on the face of the opinion and expressly stated by the objecting Justices

that the Court used its standing/ripeness analyses in order to reach the merits, so

as to remove the constitutional cloud cast upon the federal law by the district court

decision. Id. at 95, 103 (Justices Rehnquist and Stevens concurring in the result).

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ART. III—JUDICIAL DEPARTMENT 763
Mootness.—A case initially presenting all the attributes necessary for federal court litigation may at some point lose some attribute of justiciability and become “moot.” The usual rule is that an

actual controversy must exist at all stages of trial and appellate

consideration and not simply at the date the action is initiated.572

“Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies. . . . Article III denies federal courts the power ‘to decide questions that cannot affect

the rights of litigants in the case before them,’ . . . and confines

them to resolving ‘real and substantial controvers[ies] admitting of

specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a

hypothetical state of facts.’ This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. To sustain our jurisdiction in the present case, it is not enough

that a dispute was very much alive when suit was filed, or when

review was obtained in the Court of Appeals. . . . The parties must

continue to have a ‘personal stake in the outcome’ of the lawsuit.” 573 Because, with the advent of declaratory judgments, it is

open to the federal courts to “declare the rights and other legal re572 E.g., United States v. Munsingwear, 340 U.S. 36 (1950); Golden v. Zwickler,

394 U.S. 103, 108 (1969); SEC v. Medical Committee for Human Rights, 404 U.S.

403 (1972); Roe v. Wade, 410 U.S. 113, 125 (1973); Sosna v. Iowa, 419 U.S. 393,

398–399 (1975); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980),

and id. at 411 (Justice Powell dissenting); Burke v. Barnes, 479 U.S. 361, 363 (1987);

Honig v. Doe, 484 U.S. 305, 317 (1988); Lewis v. Continental Bank Corp., 494 U.S.

472, 477–478 (1990); Camreta V. Greene, 563 U.S. ___, No. 09–1954, slip op. (2011);

United States v. Juvenile Male, 564 U.S. ___, No. 09–940, slip op. at 4 (2011).

Munsingwear has long stood for the proposition that the appropriate practice of the

Court in a civil case that had become moot while on the way to the Court or after

certiorari had been granted was to vacate or reverse and remand with directions to

dismiss. In U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994),

however, the Court held that when mootness occurs because the parties have reached

a settlement, vacatur of the judgment below is ordinarily not the best practice; instead, equitable principles should be applied so as to preserve a presumptively correct and valuable precedent, unless a court concludes that the public interest would

be served by vacatur.

573 Lewis v. Continental Bank Corp., 494 U.S. 472, 477–78 (1990) (internal citations omitted). The Court’s emphasis upon mootness as a constitutional limitation

mandated by Article III is long stated in the cases. E.g., Liner v. Jafco, 375 U.S.

301, 306 n.3 (1964); DeFunis v. Odegaard, 416 U.S. 312, 316 (1974); Sibron v. New

York, 392 U.S. 40, 57 (1968). See Honig v. Doe, 484 U.S. 305, 317 (1988), and id. at

332 (Justice Scalia dissenting). But compare Franks v. Bowman Transp. Co., 424

U.S. 747, 756 n.8 (1976) (referring to mootness as presenting policy rather than constitutional considerations). If this foundation exists, it is hard to explain the exceptions, which partake of practical reasoning. In any event, Chief Justice Rehnquist

has argued that the mootness doctrine is not constitutionally based, or not sufficiently based only on Article III, so that the Court should not dismiss cases that

have become moot after the Court has taken them for review. Id. at 329 (concurring). Consider the impact of Cardinal Chemical Co. v. Morton Int’l, Inc., 508 U.S.

83 (1993).

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764 ART. III—JUDICIAL DEPARTMENT
lations” of the parties with res judicata effect,574 the question in

cases alleged to be moot now seems largely if not exclusively to be

decided in terms of whether an actual controversy continues to exist between the parties rather than in terms of any additional older

concepts.575 So long as concrete, adverse legal interests between the

parties continue, a case is not made moot by intervening actions

that cast doubt on the practical enforceability of a final judicial order.576

Cases may become moot because of a change in the law,577 or

in the status of the parties,578 or because of some act of one of the

parties which dissolves the controversy.579 But the Court has devel574 But see Steffel v. Thompson, 415 U.S. 452, 470–72 (1974); id. at 477 (Justice

White concurring), 482 n.3 (Justice Rehnquist concurring) (on res judicata effect in

state court in subsequent prosecution). In any event, the statute authorizes the federal court to grant “[f]urther necessary or proper relief,” which could include enjoining state prosecutions.

575 Award of process and execution are no longer essential to the concept of judicial power. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).

576 Chafin v. Chafin, 568 U.S. ___, No. 11–1347, slip op. (2013) (appeal of district court order returning custody of a child to her mother in Scotland not made

moot by physical return of child to Scotland and subsequent ruling of Scottish court

in favor of the mother continuing to have custody).

577 E.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518

(1852); United States v. Alaska Steamship Co., 253 U.S. 113 (1920); Hall v. Beals,

396 U.S. 45 (1969); Sanks v. Georgia, 401 U.S. 144 (1971); Richardson v. Wright,

405 U.S. 208 (1972); Diffenderfer v. Central Baptist Church, 404 U.S. 412 (1972);

Lewis v. Continental Bank Corp., 494 U.S. 481 (1990). But compare City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 288–289 (1982) (case not mooted by

repeal of ordinance, since City made clear its intention to reenact it if free from

lower court judgment); see also Decker v. Nw. Envtl. Def. Ctr., 568 U.S. ___, No.

11–338, slip op. (2013) (action to enforce penalty under former regulation not mooted

by change in regulation where violation occurred before regulation was changed).

Following Aladdin’s Castle, the Court in Northeastern Fla. Ch. of the Associated Gen.

Contractors v. City of Jacksonville, 508 U.S. 656, 660–63 (1993), held that when a

municipal ordinance is repealed but replaced by one sufficiently similar so that the

challenged action in effect continues, the case is not moot. But see id. at 669 (Justice O’Connor dissenting) (modification of ordinance more significant and case is mooted).

578 Atherton Mills v. Johnston, 259 U.S. 13 (1922) (in challenge to laws regulating labor of youths 14 to 16, Court held case two-and-one-half years after argument

and dismissed as moot since certainly none of the challengers was now in the age

bracket); Golden v. Zwickler, 394 U.S. 103 (1969); DeFunis v. Odegaard, 416 U.S.

312 (1974); Dove v. United States, 423 U.S. 325 (1976); Lane v. Williams, 455 U.S.

624 (1982). Compare County of Los Angeles v. Davis, 440 U.S. 625 (1979), with Vitek

v. Jones, 445 U.S. 480 (1980). In Arizonans For Official English v. Arizona, 520 U.S.

43 (1997), a state employee attacking an English-only work requirement had standing at the time she brought the suit, but she resigned following a decision in the

trial court, thus mooting the case before it was taken to the appellate court, which

should not have acted to hear and decide it.

579 E.g., Commercial Cable Co. v. Burleson, 250 U.S. 360 (1919); Oil Workers

Local 8–6 v. Missouri, 361 U.S. 363 (1960); A.L. Mechling Barge Lines v. United

States, 368 U.S. 324 (1961); Preiser v. Newkirk, 422 U.S. 395 (1975); County of Los

Angeles v. Davis, 440 U.S. 625 (1979); Alvarez v. Smith, 558 U.S. ___, No. 08–351

(2009).

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ART. III—JUDICIAL DEPARTMENT 765
oped several exceptions. Thus, in criminal cases, although the sentence of the convicted appellant has been served, the case “is moot

only if it is shown that there is no possibility that any collateral

legal consequences will be imposed on the basis of the challenged

conviction.” 580 The “mere possibility” of such a consequence, even a

“remote” one, is enough to find that one who has served his sentence has retained the requisite personal stake giving his case “an

adversary cast and making it justiciable.” 581 This exception has its

counterpart in civil litigation in which a lower court judgment may

still have certain present or future adverse effects on the challenging party.582

A second exception, the “voluntary cessation” doctrine, focuses

on whether challenged conduct which has lapsed or the utilization

of a statute which has been superseded is likely to recur.583 Thus,

cessation of the challenged activity by the voluntary choice of the

person engaging in it, especially if he contends that he was properly engaging in it, will moot the case only if it can be said with

assurance “that ‘there is no reasonable expectation that the wrong

will be repeated.’ ” 584 This amounts to a “formidable burden” of show580 Sibron v. New York, 395 U.S. 40, 50–58 (1968). But compare Spencer v. Kemna,

523 U.S. 1 (1998).

581 Benton v. Maryland, 395 U.S. 784, 790–791 (1969). The cases have progressed from leaning toward mootness to leaning strongly against. E.g., St. Pierre v.

United States, 319 U.S. 41 (1943); Fiswick v. United States, 329 U.S. 211 (1946);

United States v. Morgan, 346 U.S. 502 (1954); Pollard v. United States, 352 U.S.

354 (1957); Ginsberg v. New York, 390 U.S. 629, 633–634 n.2 (1968); Sibron v. New

York, 392 U.S. 40, 49–58 (1968).But see Lane v. Williams, 455 U.S. 624 (1982);United

States v. Juvenile Male, 564 U.S. ___, No. 09–940, slip op. at 6 (2011) (per curiam)

(rejecting as too indirect a benefit that favorable resolution of a case might serve as

beneficial precedent for a future case involving the plaintiff). The exception permits

review at the instance of the prosecution as well as defendant. Pennsylvania v. Mimms,

434 U.S. 106 (1977). When a convicted defendant dies while his case is on direct

review, the Court’s present practice is to dismiss the petition for certiorari. Dove v.

United States, 423 U.S. 325 (1976), overruling Durham v. United States, 401 U.S.

481 (1971).

582 Southern Pacific Terminal Co. v. ICC, 219 U.S. 433, 452 (1911); Carroll v.

President & Commr’s of Princess Anne, 393 U.S. 175 (1968). See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974) (holding that expiration of strike did

not moot employer challenge to state regulations entitling strikers to state welfare

assistance since the consequences of the regulations would continue).

583 United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290 (1897); Walling

v. Helmerich & Payne, 323 U.S. 37 (1944); Porter v. Lee, 328 U.S. 246 (1946); United

States v. W.T. Grant Co., 345 U.S. 629 (1953); Gray v. Sanders, 372 U.S. 368 (1963);

United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 202–04 (1969);

DeFunis v. Odegaard, 416 U.S. 312, 318 (1974); County of Los Angeles v. Davis, 440

U.S. 625, 631–34 (1979), and id. at 641–46 (Justice Powell dissenting); Vitek v. Jones,

445 U.S. 480, 486–487 (1980), and id. at 500–01 (Justice Stewart dissenting); Princeton University v. Schmidt, 455 U.S. 100 (1982); City of Mesquite v. Aladdin’s Castle,

Inc., 455 U.S. 283, 288–289 (1982).

584 United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (quoting United

States v. Aluminum Co. of America, 148 F.2d 416, 448 (2d. Cir. 1945)).

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766 ART. III—JUDICIAL DEPARTMENT
ing with absolute clarity that there is no reasonable prospect of renewed activity.585 Otherwise, “[t]he defendant is free to return to

his old ways” and this fact would be enough to prevent mootness

because of the “public interest in having the legality of the practices settled.” 586

Still a third exception concerns the ability to challenge shortterm conduct which may recur in the future, which has been denominated as disputes “capable of repetition, yet evading review.” 587 Thus, in cases in which (1) the challenged action is too

short in its duration to be fully litigated prior to its cessation or

expiration, and (2) there is a reasonable expectation that the same

complaining party would be subjected to the same action again, mootness will not be found when the complained-of conduct ends.588 The

imposition of short sentences in criminal cases,589 the issuance of

injunctions to expire in a brief period,590 and the short-term factual context of certain events, such as elections 591 or pregnancies,592 are all instances in which this exception is frequently invoked.

An interesting and potentially significant liberalization of the

law of mootness, perhaps as part of a continuing circumstances exception, is occurring in the context of class action litigation. It is

now clearly established that, when the controversy becomes moot

as to the plaintiff in a certified class action, it still remains alive

for the class he represents so long as an adversary relationship sufficient to constitute a live controversy between the class members

585 Already, LLC v. Nike, Inc., 568 U.S. ___, No. 11–982, slip op. at 4 (2013)

(dismissal of a trademark infringement claim against rival and submittal of an unconditional and irrevocable covenant not to sue satisfies the burden under the voluntary cessation test) (citing Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S.

167, 190 (2000)).

586 United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). But see A.L. Mechling

Barge Lines v. United States, 368 U.S. 324 (1961).

587 Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).

588 Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Murphy v. Hunt, 455 U.S.

478, 482 (1982). See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125–26

(1974), and id. at 130–32 (Justice Stewart dissenting), Friends of the Earth v. Laidlaw

Envtl. Servs., 528 U.S. 167, 189–91 (2000),. The degree of expectation or likelihood

that the issue will recur has frequently divided the Court. Compare Murphy v. Hunt,

with Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); compare Honig v. Doe,

484 U.S. 305, 318–23 (1988), with id. at 332 (Justice Scalia dissenting).

589 Sibron v. New York, 392 U.S. 40, 49–58 (1968). See Gerstein v. Pugh, 420

U.S. 103 (1975).

590 Carroll v. President & Commr’s of Princess Anne, 393 U.S. 175 (1968). See

Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) (short-term court order restricting press coverage).

591 E.g., Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Rosario v. Rockefeller, 410

U.S. 752, 756 n.5 (1973); Storer v. Brown, 415 U.S. 724, 737 n.8 (1974). Compare

Mills v. Green, 159 U.S. 651 (1895); Ray v. Blair, 343 U.S. 154 (1952).

592 Roe v. Wade, 410 U.S. 113, 124–125 (1973).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 767
and the other party exists.593 The Court was closely divided, however, with respect to the right of the named party, when the substantive controversy became moot as to him, to appeal as error the

denial of a motion to certify the class which he sought to represent

and which he still sought to represent. The Court held that in the

class action setting there are two aspects of the Article III mootness question, the existence of a live controversy and the existence

of a personal stake in the outcome for the named class representative.594 Finding a live controversy, the Court determined that the

named plaintiff retained a sufficient interest, “a personal stake,” in

his claimed right to represent the class in order to satisfy the “imperatives of a dispute capable of judicial resolution;” that is, his continuing interest adequately assures that “sharply presented issues”

are placed before the court “in a concrete factual setting” with “selfinterested parties vigorously advocating opposing positions.” 595

The immediate effect of the decision is that litigation in which

class actions are properly certified or in which they should have

been certified will rarely ever be mooted if the named plaintiff (or

in effect his attorney) chooses to pursue the matter, even though

the named plaintiff can no longer obtain any personal relief from

the decision sought.596 Of much greater potential significance is the

possible extension of the weakening of the “personal stake” requirement in other areas, such as the representation of third-party claims

in non-class actions and the initiation of some litigation in the form

of a “private attorneys general” pursuit of adjudication.597 In Gen593 Sosna v. Iowa, 419 U.S. 393 (1975); Franks v. Bowman Transp. Co., 424 U.S.

747, 752–757 (1976). A suit which proceeds as a class action but without formal certification may not receive the benefits of this rule. Board of School Commr’s v. Jacobs, 420 U.S. 128 (1975). See also Weinstein v. Bradford, 423 U.S. 147 (1975); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 430 (1976). But see the characterization

of these cases in United States Parole Comm’n v. Geraghty, 445 U.S. 388, 400 n.7

(1980). Mootness is not necessarily avoided in properly certified cases, but the standards of determination are unclear. See Kremens v. Bartley, 431 U.S. 119 (1977).

594 United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980).

595 445 U.S. at 403. Justices Powell, Stewart, Rehnquist, and Chief Justice Burger

dissented, id. at 409, arguing there could be no Article III personal stake in a procedural decision separate from the outcome of the case. In Deposit Guaranty Nat’l

Bank v. Roper, 445 U.S. 326 (1980), in an opinion by Chief Justice Burger, the Court

held that a class action was not mooted when defendant tendered to the named plaintiffs the full amount of recovery they had individually asked for and could hope to

retain. Plaintiffs’ interest in shifting part of the share of costs of litigation to those

who would share in its benefits if the class were certified was deemed to be a sufficient “personal stake”, although the value of this interest was at best speculative.

Cf. Genesis Healthcare Corp. v. Symczyk, 569 U.S. ___, No. 11–1059, slip op. (2013).

596 The named plaintiff must still satisfy the class action requirement of adequacy of representation. United States Parole Comm’n v. Geraghty, 445 U.S. 388,

405–407 (1980). On the implications of Geraghty, which the Court has not returned

to, see Hart & Wechsler (6th ed.), supra at 194–198.

597 Geraghty, 445 U.S. at 404 & n.11.

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768 ART. III—JUDICIAL DEPARTMENT
esis Healthcare Corporation v. Symczyk,

598 the Court appeared to

follow the “personal stake” rule applicable to class actions in the

context of “collective actions” under the Fair Labor Standards Act,

at least to the extent that actions that would moot the plaintiff’s

claims prior to a “conditional certification” by the court would likewise moot the collective action.

Retroactivity Versus Prospectivity.—One of the distinguishing features of an advisory opinion is that it lays down a rule to be

applied to future cases, much as does legislation generally. It should

therefore follow that an Article III court could not decide purely prospective cases, cases which do not govern the rights and disabilities of the parties to the cases.599 The Court asserted that this principle is true, while applying it only to give retroactive effect to the

parties to the immediate case.600 Yet, occasionally, the Court did not

apply its holding to the parties before it,601 and in a series of cases

beginning in the mid-1960s it became embroiled in attempts to limit

the retroactive effect of its—primarily but not exclusively 602—

constitutional-criminal law decisions. The results have been confusing and unpredictable.603

Prior to 1965, “both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional

decisions of this Court . . . subject to [certain] limited exceptions.” 604 Statutory and judge-made law have consequences, at least

to the extent that people must rely on them in making decisions

598 569 U.S. ___, No. 11–1059, slip op. (2013).

599 For a masterful discussion of the issue in both criminal and civil contexts,

see Fallon & Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104

HARV. L. REV. 1731 (1991).

600 Stovall v. Denno, 388 U.S. 293, 301 (1967).

601 England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 422 (1964);

James v. United States, 366 U.S. 213 (1961). See also Morrissey v. Brewer, 408 U.S.

471, 490 (1972).

602 Noncriminal constitutional cases included Lemon v. Kurtzman, 411 U.S. 192

(1973); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Cipriano v. City of Houma,

395 U.S. 701 (1969). Indeed, in Buckley v. Valeo, 424 U.S. 1 (1976), and Northern

Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the Court postponed the effectiveness of its decision for a period during which Congress could repair the flaws in the statute. Noncriminal, nonconstitutional cases include Chevron

Oil Co. v. Huson, 404 U.S. 97 (1971); Allen v. State Board of Elections, 393 U.S. 544

(1969); Hanover Shoe v. United Shoe Machinery Corp., 392 U.S. 481 (1968); Simpson

v. Union Oil Co., 377 U.S. 13 (1964).

603 Because of shifting coalitions of Justices, Justice Harlan complained, the course

of retroactivity decisions “became almost as difficult to follow as the tracks made by

a beast of prey in search of its intended victim.” Mackey v. United States, 401 U.S.

667, 676 (1971) (separate opinion).

604 Robinson v. Neil, 409 U.S. 505, 507 (1973). The older rule of retroactivity

derived from the Blackstonian notion “that the duty of the court was not to ‘pronounce a new law, but to maintain and expound the old one.’ ” Linkletter v. Walker,

381 U.S. 618, 622–23 (1965) (quoting 1 W. Blackstone, Commentaries *69).

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ART. III—JUDICIAL DEPARTMENT 769
and shaping their conduct. Therefore, the Court was moved to recognize that there should be a reconciling of constitutional interests

reflected in a new rule of law with reliance interests founded upon

the old.605 In both criminal and civil cases, however, the Court’s discretion to do so has been constrained by later decisions.

In the 1960s, when the Court began its expansion of the Bill of

Rights and applied its rulings to the states, it became necessary to

determine the application of the rulings to criminal defendants who

had exhausted all direct appeals but who could still resort to habeas corpus, to those who had been convicted but still were on direct appeal, and to those who had allegedly engaged in conduct but

who had not gone to trial. At first, the Court drew the line at cases

in which judgments of conviction were not yet final, so that all persons in those situations obtained retrospective use of decisions,606

but the Court later promulgated standards for a balancing process

that resulted in different degrees of retroactivity in different cases.607

Generally, in cases in which the Court declared a rule that was “a

clear break with the past,” it denied retroactivity to all defendants,

with the sometime exception of the appellant himself.608 With respect to certain cases in which a new rule was intended to overcome an impairment of the truth-finding function of a criminal trial 609

or to cases in which the Court found that a constitutional doctrine

barred the conviction or punishment of someone,610 full retroactivity, even to habeas claimants, was the rule. Justice Harlan strongly

argued that the Court should sweep away its confusing balancing

rules and hold that all defendants whose cases are still pending on

direct appeal at the time of a law-changing decision should be entitled to invoke the new rule, but that no habeas claimant should

be entitled to benefit.611

605 Lemon v. Kurtzman, 411 U.S. 192, 198–99 (1973).

606 Linkletter v. Walker, 381 U.S. 618 (1965); Tehan v. United States ex rel. Shott,

382 U.S. 406 (1966).

607 Johnson v. New Jersey, 384 U.S. 719 (1966); Stovall v. Denno, 388 U.S. 293

(1967); Adams v. Illinois, 405 U.S. 278 (1972).

608 Desist v. United States, 394 U.S. 244, 248 (1969); United States v. Peltier,

422 U.S. 531 (1975); Brown v. Louisiana, 447 U.S. 323, 335–36 (1980) (plurality opinion); Michigan v. Payne, 412 U.S. 47, 55 (1973); United States v. Johnson, 457 U.S.

537, 549–50, 551–52 (1982).

609 Williams v. United States, 401 U.S. 646, 653 (1971) (plurality opinion); Brown

v. Louisiana, 447 U.S. 323, 328–30 (1980) (plurality opinion); Hankerson v. North

Carolina, 432 U.S. 233, 243 (1977).

610 United States v. United States Coin & Currency, 401 U.S. 715, 724 (1971);

Moore v. Illinois, 408 U.S. 786, 800 (1972); Robinson v. Neil, 409 U.S. 505, 509 (1973).

611 Mackey v. United States, 401 U.S. 667, 675 (1971) (separate opinion); Desist

v. United States, 394 U.S. 244, 256 (1969) (dissenting). Justice Powell has also strongly

supported the proposed rule. Hankerson v. North Carolina, 432 U.S. 233, 246–248

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770 ART. III—JUDICIAL DEPARTMENT
The Court later drew a sharp distinction between criminal cases

pending on direct review and cases pending on collateral review.

For cases on direct review, “a new rule for the conduct of criminal

prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception

for cases in which the new rule constitutes a ‘clear break’ with the

past.” 612 Justice Harlan’s habeas approach was first adopted by a

plurality in Teague v. Lane 613 and then by the Court in Penry v.

Lynaugh.

614 Thus, for collateral review in federal courts of state court

criminal convictions, the general rule is that “new rules” of constitutional interpretation—those “not ‘dictated by precedent existing

at the time the defendant’s conviction became final’ ” 615—will not

be applied.616 “A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” 617

(1977) (concurring in judgment); Brown v. Louisiana, 447 U.S. 323, 337 (1980) (concurring in judgment).

612 Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (cited with approval in Whorton

v. Bockting, 549 U.S. 406, 416 (2007)).

613 489 U.S. 288 (1989).

614 492 U.S. 302 (1989).

615 Whorton v. Bockting, 549 U.S. 406, 416 (2007). Put another way, it is not

enough that a decision is “within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision.” A decision announces a “new rule” if

its result “was susceptible to debate among reasonable minds” and if it was not “an

illogical or even a grudging application” of the prior decision. Butler v. McKellar,

494 U.S. 407, 412–415 (1990). For additional elaboration on “new law,” see O’Dell v.

Netherland, 521 U.S. 151 (1997); Lambrix v. Singletary, 520 U.S. 518 (1997); Gray

v. Netherland, 518 U.S. 152 (1996). But compare Bousley v. Brooks, 523 U.S. 614

(1998).

616 For an example of the application of the Teague rule in federal collateral

review of a federal court conviction, see Chaidez v. United States, 568 U.S. ___, No.

11–820, slip op. (2013).The approach in state collateral review proceedings, however, may be different. The Court has indicated that the general rule regarding denial of retroactive application of “new rules” in federal collateral proceeding was principally based on an interpretation of federal statutory law. State collateral review of

cases brought under state law may be more generous to the defendant. Danforth v.

Minnesota, 128 S. Ct. 1029 (2008).

617 Whorton v. Bockting, 549 U.S. 406, 416 (2007). Put another way, a new rule

will be applied in a collateral proceeding only if it places certain kinds of conduct

“beyond the power of the criminal law-making authority to prescribe” or constitutes

a “new procedure[ ] without which the likelihood of an accurate conviction is seriously diminished.” Teague v. Lane, 489 U.S. 288, 307, 311–313 (1989) (plurality opinion); Butler v. McKellar, 494 U.S. 407, 415–416 (1990). Under the second exception

it is “not enough under Teague to say that a new rule is aimed at improving the

accuracy of a trial. More is required. A rule that qualifies under this exception must

not only improve accuracy, but also ‘alter our understanding of the bedrock procedural elements’ essential to the fairness of a proceeding.” Sawyer v. Smith, 497 U.S.

227, 242 (1990) (emphasis in original, internal quotation marks omitted). For recent

application of the principles, see Schriro v. Summerlin, 542 U.S. 348 (2004) (requireSec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 771
What the rule is to be, and indeed if there is to be a rule, in

civil cases has been disputed to a rough draw in recent cases. As

was noted above, there is a line of civil cases, constitutional and

nonconstitutional, in which the Court has declined to apply new rules,

the result often of overruling older cases, retrospectively, sometimes even to the prevailing party in the case.618 As in criminal cases,

the creation of new law, through overrulings or otherwise, may result in retroactivity in all instances, in pure prospectivity, or in partial prospectivity in which the prevailing party obtains the results

of the new rule but no one else does. In two cases raising the question when states are required to refund taxes collected under a statute that is subsequently ruled unconstitutional, the Court revealed

itself to be deeply divided.619 The question in Beam was whether

the company could claim a tax refund under an earlier ruling holding unconstitutional the imposition of certain taxes upon its products. The holding of a fractionated Court was that it could seek a

refund, because in the earlier ruling the Court had applied the holding to the contesting company, and, once a new rule has been applied retroactively to the litigants in a civil case, considerations of

equality and stare decisis compel application to all.620 Although partial or selective prospectivity is thus ruled out, neither pure retroactivity nor pure prospectivity is either required or forbidden.

Four Justices adhered to the principle that new rules, as defined above, may be applied purely prospectively, without violating

any tenet of Article III or any other constitutional value.621 Three

Justices argued that all prospectivity, whether partial or total, vioment that aggravating factors justifying death penalty be found by the jury was a

new procedural rule that does not apply retroactively).

618 The standard that has been applied was enunciated in Chevron Oil Co. v.

Huson, 404 U.S. 97 (1971). Briefly, the question of retroactivity or prospectivity was

to be determined by a balancing of the equities. To be limited to prospectivity, a

decision must have established a new principle of law, either by overruling clear

past precedent on which reliance has been had or by deciding an issue of first impression whose resolution was not clearly foreshadowed. The courts must look to

the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. Then, the courts must look to

see whether a decision to apply retroactively a decision will produce substantial inequitable results. Id. at 106–07. American Trucking Assn’s v. Smith, 496 U.S. 167,

179–86 (1990) (plurality opinion).

619 James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991); American Trucking Assn’s, Inc. v. Smith, 496 U.S. 167 (1990).

620 The holding described in the text is expressly that of only a two-Justice plurality. 501 U.S. at 534–44 (Justices Souter and Stevens). Justice White, Justice

Blackmun, and Justice Scalia (with Justice Marshall joining the latter Justices) concurred, id. at 544, 547, 548 (respectively), but on other, and in the instance of the

three latter Justices, and broader justifications. Justices O’Connor and Kennedy and

Chief Justice Rehnquist dissented. Id. at 549.

621 501 U.S. at 549 (dissenting opinion of Justices O’Connor and Kennedy and

Chief Justice Rehnquist), and id. at 544 (Justice White concurring). See also Smith,

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772 ART. III—JUDICIAL DEPARTMENT
lates Article III by expanding the jurisdiction of the federal courts

beyond true cases and controversies.622 Apparently, the Court now

has resolved this dispute, although the principal decision was by a

five-to-four vote. In Harper v. Virginia Dep’t of Taxation,

623 the Court

adopted the principle of the Griffith decision in criminal cases and

disregarded the Chevron Oil approach in civil cases. Henceforth, in

civil cases, the rule is: “When this Court applies a rule of federal

law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all

cases open on direct review and as to all events, regardless of whether

such events predate or postdate our announcement of the rule.” 624

Four Justices continued to adhere to Chevron Oil, however,625 so

that with one Justice each retired from the different sides one may

not regard the issue as definitively settled.626 Future cases must,

therefore, be awaited for resolution of this issue.

Political Questions

In some cases, a court will refuse to adjudicate a case despite

the fact that it presents all the qualifications that we have considered to make it a justiciable controversy; it is in its jurisdiction,

presented by parties with standing, and it is a case in which ad496 U.S. at 171 (plurality opinion of Justices O’Connor, White, Kennedy, and Chief

Justice Rehnquist).

622 501 U.S. at 547, 548 (Justices Blackmun, Scalia, and Marshall concurring).

In Smith, 496 U.S. at 205, these three Justices had joined the dissenting opinion of

Justice Stevens arguing that constitutional decisions must be given retroactive effect.

623 509 U.S. 86 (1993).

624 509 U.S. at 97. Although the conditional language in this passage might suggest that the Court was leaving open the possibility that in some cases it might

rule purely prospectively, and not even apply its decision to the parties before it,

other language belies that possibility. “This rule extends Griffith’s ban against ‘selective application of new rules.’ ” (Citing Griffith, 479 U.S. at 323.) Because Griffith

rested in part on the principle that “the nature of judicial review requires that [the

Court] adjudicate specific cases,” 479 U.S. at 322, deriving from Article III’s case or

controversy requirement for federal courts and forbidding federal courts from acting

legislatively, “ ‘the Court has no more constitutional authority in civil cases than in

criminal cases to disregard current law or to treat similarly situated litigants differently.’ ” 509 U.S. at 97 (quoting Smith, 496 U.S. at 214 (Justice Stevens dissenting)). The point is made more clearly in Justice Scalia’s concurrence, in which he

denounces all forms of nonretroactivity as “the handmaid of judicial activism.” Id.

at 105.

625 509 U.S. at 110 (Justice Kennedy, with Justice White, concurring); 113 (Justice O’Connor, with Chief Justice Rehnquist, dissenting). However, these Justices disagreed in this case about the proper application of Chevron Oil.

626 But see Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) (setting aside

a state court refusal to give retroactive effect to a U.S. Supreme Court invalidation

of that state’s statute of limitations in certain suits, in an opinion by Justice Breyer,

Justice Blackmun’s successor); Ryder v. United States, 515 U.S. 177, 184–85 (1995)

(“whatever the continuing validity of Chevron Oil after” Harper and Reynoldsville

Casket).

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ART. III—JUDICIAL DEPARTMENT 773
verseness and ripeness exist. Such are cases that present a “political question.” Although the Court has referred to the political question doctrine as “one of the rules basic to the federal system and

this Court’s appropriate place within that structure,” 627 it has also

been remarked that “[i]t is, measured by any of the normal responsibilities of a phrase of definition, one of the least satisfactory terms

known to the law. The origin, scope, and purpose of the concept have

eluded all attempts at precise statements.” 628

It has been suggested that it may be more useful to itemize the

categories of questions that have been labeled political rather than

to attempt to isolate the factors that a court will consider to identify such cases.629 The Court has to some extent agreed, noting that

the criteria applied by the Court in political questions cases can

vary depending on the issue involved.630 Regardless of which approach is taken, however, the Court’s narrowing of the rationale for

political questions in Baker v. Carr,

631 discussed below, appears to

have changed the nature of the inquiry radically.

Origins and Development.—In the first decade after ratification of the Constitution, the Court in Ware v. Hylton 632 refused to

pass on the question whether a treaty had been broken, and in Martin v. Mott,

633 the Court held that the President acting under congressional authorization had exclusive and unreviewable power to

determine when the militia should be called out. But the roots of

the doctrine are most clearly seen in Marbury v. Madison,

634 where

Chief Justice Marshall stated: “The province of the court is, solely,

to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive can never be made

in this court.” 635

627 Rescue Army v. Municipal Court, 331 U.S. 549, 570 (1947); cf. Baker v. Carr,

369 U.S. 186, 278 (1962) (Justice Frankfurter dissenting). The most successful effort at conceptualization of the doctrine is Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 YALE L.J. 517 (1966). See Hart & Wechsler

(6th ed.), supra at 222–248.

628 Frank, Political Questions, in SUPREME COURT AND SUPREME LAW (E. Cahn, ed.,

1954), at 36.

629 The concept of political question is “more amenable to description by infinite

itemization than by generalization” Id.

630 Baker v. Carr , 369 U.S. 186, 217 (1962).

631 369 U.S. at 208–232.

632 3 U.S. (3 Dall.) 199 (1796).

633 25 U.S. (12 Wheat.) 19 (1827).

634 5 U.S. (1 Cr.) 137 (1803).

635 5 U.S. (1 Cr.) at 170. In Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 516 (1840),

the Court, refusing an effort by mandamus to compel the Secretary of the Navy to

pay a pension, said: “The interference of the courts with the performance of the orSec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

774 ART. III—JUDICIAL DEPARTMENT
In Luther v. Borden,

636 however, the Court made clear that the

doctrine went beyond considerations of interference with executive

functions. This case, arising from the Dorr Rebellion (a period of

political unrest in Rhode Island), considered the claims of two competing factions vying to be declared the lawful government of Rhode

Island.637 Chief Justice Taney, for the Court, began by saying that

the answer was primarily a matter of state law that had been decided in favor of one faction by the state courts.638 Insofar as the

Federal Constitution had anything to say on the subject, the Chief

Justice continued, that was embodied in the clause empowering the

United States to guarantee to every state a republican form of government,639 and this clause committed the determination of that issue to Congress.

“Under this article of the Constitution it rests with Congress to

decide what government is the established one in a State. For as

the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican

or not. And when the senators and representatives of a State are

admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its

decision is binding on every other department of the government,

and could not be questioned in a judicial tribunal.” 640 Here, the contest had not proceeded to a point where Congress had made a decision, “[y]et the right to decide is placed there, and not in the courts.” 641

Moreover, in effectuating the provision in the same clause that

the United States should protect states against domestic violence,

Congress had vested discretion in the President to use troops to protect a state government upon the application of the legislature or

the governor. Before he could act upon the application of a legislature or a governor, the President “must determine what body of men

dinary duties of the executive departments of the government, would be productive

of nothing but mischief; and we are quite satisfied, that such a power was never

intended to be given to them.” It therefore follows that mandamus will lie against

an executive official only to compel the performance of a ministerial duty, which admits of no discretion, and may not be invoked to control executive or political duties

which admit of discretion. See Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867); Kendall v. United States ex rel.

Stokes, 37 U.S. (12 Pet.) 524 (1838).

636 48 U.S. (7 How.) 1 (1849).

637 Cf. Baker v. Carr, 369 U.S. 186, 218–22 (1962); id. at 292–97 (Justice Frankfurter dissenting).

638 Luther, 48 U.S. (7 How.) at 40.

639 48 U.S. at 42 (citing Article IV, § 4).

640 48 U.S. at 42.

641 Id.

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ART. III—JUDICIAL DEPARTMENT 775
constitute the legislature, and who is the governor . . . .” No court

could review the President’s exercise of discretion in this respect;

no court could recognize as legitimate a group vying against the

group recognized by the President as the lawful government.642 Although the President had not actually called out the militia in Rhode

Island, he had pledged support to one of the competing governments, and this pledge of military assistance if it were needed had

in fact led to the capitulation of the other faction, thus making an

effectual and authoritative determination not reviewable by the

Court.643

The Doctrine Before Baker v. Carr.—Over the years, the political question doctrine has been applied to preclude adjudication

of a variety of other issues. In particular, prior to Baker v. Carr,

644

cases challenging the distribution of political power through apportionment and districting,645 weighted voting,646 and restrictions on

political action 647 were held to present nonjusticiable political questions. Certain factors appear more or less consistently through most

of the cases decided before Baker, and it is perhaps best to indicate

the cases and issues deemed political before attempting to isolate

these factors.

1. Republican Form of Government. By far the most consistent

application of the doctrine has been in cases in which litigants asserted claims under the republican form of government clause.648

The attacks were generally either on the government of the state

itself 649 or involved a challenge regarding the manner in which it

had acted.650 There have, however, been cases involving this clause

in which the Court has reached the merits.651

642 48 U.S. at 43.

643 48 U.S. at 44.

644 369 U.S. 186 (1962).

645 Colegrove v. Green, 328 U.S. 549 (1946); Colegrove v. Barrett, 330 U.S. 804

(1947).

646 South v. Peters, 339 U.S. 276 (1950) (county unit system for election of statewide officers with vote heavily weighted in favor of rural, lightly populated counties).

647 MacDougall v. Green, 335 U.S. 281 (1948) (signatures on nominating petitions must be spread among counties of unequal population).

648 Article IV, § 4.

649 As it was on the established government of Rhode Island in Luther v. Borden,

48 U.S. (7 How.) 1 (1849). See also Texas v. White, 74 U.S. (7 Wall.) 700 (1869);

Taylor v. Beckham, 178 U.S. 548 (1900).

650 Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912) (challenging tax initiative); Kiernan v. City of Portland, 223 U.S. 151 (1912) (attacks on initiative and

referendum); Marshall v. Dye, 231 U.S. 250 (1913) (state constitutional amendment

procedure); O’Neill v. Leamer, 239 U.S. 244 (1915) (delegation to court to form drainage districts); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916) (submission of

legislation to referendum); Mountain Timber Co. v. Washington, 243 U.S. 219 (1917)

(workmen’s compensation); Ohio ex rel. Bryant v. Akron Metropolitan Park District,

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776 ART. III—JUDICIAL DEPARTMENT
2. Recognition of Foreign States. Although there is language in

the cases that would, if applied, serve to make all cases touching

on foreign affairs and foreign policy political questions,652 whether

the courts can adjudicate a dispute in this area has often depended

on the context in which it arises. Thus, the determination by the

President whether to recognize the government of a foreign state 653

or who is the de jure or de facto ruler of a foreign state 654 is conclusive on the courts. In the absence of a definitive executive action,

however, the courts will review the record to determine whether the

United States has accorded a sufficient degree of recognition to allow the courts to take judicial notice of the existence of the state.655

Moreover, the courts have often determined for themselves what effect, if any, should be accorded the acts of foreign powers, recognized or unrecognized.656

3. Treaties. Similarly, the Court, when dealing with treaties and

the treaty power, has treated as political questions whether the foreign party had constitutional authority to assume a particular obligation 657 and whether a treaty has lapsed because of the foreign

state’s loss of independence 658 or because of changes in the territo281 U.S. 74 (1930) (concurrence of all but one justice of state high court required to

invalidate statute); Highland Farms Dairy v. Agnew, 300 U.S. 608 (1937) (delegation of legislative powers).

651 All the cases, however, predate the application of the doctrine in Pacific States

Tel. Co. v. Oregon, 223 U.S. 118 (1912). See Attorney General of the State of Michigan ex rel. Kies v. Lowrey, 199 U.S. 233, 239 (1905) (legislative creation and alteration of school districts “compatible” with a republican form of government); Forsyth

v. City of Hammond, 166 U.S. 506, 519 (1897) (delegation of power to court to determine municipal boundaries does not infringe republican form of government); Minor

v. Happersett, 88 U.S. (21 Wall.) 162, 175–176 (1875) (denial of suffrage to women

no violation of republican form of government).

652 Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); Chicago & S. Air

Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948).

653 United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818); Kennett v. Chambers, 55 U.S. (14 How.) 38 (1852).

654 Jones v. United States, 137 U.S. 202 (1890); Oetjen v. Central Leather Co.,

246 U.S. 297 (1918). See Ex parte Hitz, 111 U.S. 766 (1884).

655 United States v. The Three Friends, 166 U.S. 1 (1897); In re Baiz, 135 U.S.

403 (1890). Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).

656 United States v. Reynes, 50 U.S. (9 How.) 127 (1850); Garcia v. Lee, 37 U.S.

(12 Pet.) 511 (1838); Keene v. McDonough, 33 U.S. (8 Pet.) 308 (1834). See also Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839); Underhill v. Hernandez, 168

U.S. 250 (1897). But see United States v. Belmont, 301 U.S. 324 (1937). On the “act

of state” doctrine, compare Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964),

with First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972). See

also First National City Bank v. Banco Para el Comercio de Cuba, 462 U.S. 611

(1983); W.S. Kirkpatrick & Co. v. Environmental Tectronics Corp., U.S. 400 (1990).

657 Doe v. Braden, 57 U.S. (16 How.) 635 (1853).

658 Terlinden v. Ames, 184 U.S. 270 (1902); Clark v. Allen, 331 U.S. 503 (1947).

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ART. III—JUDICIAL DEPARTMENT 777
rial sovereignty of the foreign state.659 On the other hand, the Court

will not only interpret the domestic effects of treaties,660 but it will

at times interpret the effects bearing on international matters.661

The Court has generally deferred to the President and Congress with

regard to the existence of a state of war and the dates of the beginning and ending and of states of belligerency between foreign powers, but the deference has sometimes been forced.662

4. Enactment or Ratification of Laws. Ordinarily, the Court will

not look behind the fact of certification as to whether the standards requisite for the enactment of legislation 663 or ratification of

a constitutional amendment 664 have in fact been met, although it

will interpret the Constitution to determine what the basic standards are.665 Further, the Court will decide certain questions if the

political branches are in disagreement.666

From this limited review of the principal areas in which the

political question doctrine seemed most established, it is possible

to extract some factors that seemingly convinced the courts that the

issues presented went beyond the judicial responsibility. These factors, stated baldly, would appear to be the lack of requisite informa659 Kennett v. Chambers, 55 U.S. (14 How.) 38 (1852). On the effect of a violation by a foreign state on the continuing effectiveness of the treaty, see Ware v. Hylton,

3 U.S. (3 Dall.) 199 (1796); Charlton v. Kelly, 229 U.S. 447 (1913).

660 Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796). Cf. Chinese Exclusion Case (Chae

Chan Ping v. United States), 130 U.S. 581 (1889) (conflict of treaty with federal law).

On the modern formulation, see Japan Whaling Ass’n v. American Cetacean Society,

478 U.S. 221, 229–230 (1986).

661 Perkins v. Elg, 307 U.S. 325 (1939); United States v. Rauscher, 119 U.S. 407

(1886).

662 Commercial Trust Co v. Miller, 262 U.S. 51 (1923); Woods v. Cloyd W. Miller

Co., 333 U.S. 138 (1948); Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924); Ludecke

v. Watkins, 335 U.S. 160 (1948); Lee v. Madigan, 358 U.S. 228 (1959); The Divina

Pastora, 17 U.S. (4 Wheat.) 52 (1819). The cases involving the status of Indian tribes

as foreign states usually but not always have presented political questions. The Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); United States v. Sandoval, 231 U.S.

28 (1913); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

663 Field v. Clark, 143 U.S. 649 (1892); Harwood v. Wentworth, 162 U.S. 547

(1896); cf. Gardner v. The Collector, 73 U.S. (6 Wall.) 499 (1868). See, for the modern formulation, United States v. Munoz-Flores, 495 U.S. 385 (1990).

664 Coleman v. Miller, 307 U.S. 433 (1939) (Congress’s discretion to determine

what passage of time will cause an amendment to lapse, and effect of previous rejection by legislature).

665 Missouri Pac. Ry. v. Kansas, 248 U.S. 276 (1919); Rainey v. United States,

232 U.S. 310 (1914); Flint v. Stone Tracy Co., 220 U.S. 107 (1911); Twin City National Bank v. Nebeker, 167 U.S. 196 (1897); Lyons v. Woods, 153 U.S. 649 (1894);

United States v. Ballin, 144 U.S. 1 (1892) (statutes); United States v. Sprague, 282

U.S. 716 (1931); Leser v. Garnett, 258 U.S. 130 (1922); Dillon v. Gloss, 256 U.S. 368

(1921); Hawke v. Smith (No. 1), 253 U.S. 221 (1920); National Prohibition Cases,

253 U.S. 350 (1920); Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798) (constitutional amendments).

666 Pocket Veto Case, 279 U.S. 655 (1929); Wright v. United States, 302 U.S. 583

(1938).

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778 ART. III—JUDICIAL DEPARTMENT
tion and the difficulty of obtaining it,667 the necessity for uniformity of decision and deference to the wider responsibilities of the

political departments,668 and the lack of adequate standards to resolve a dispute.669 But present in all the political cases was (and

is) the most important factor: a “prudential” attitude about the exercise of judicial review, which emphasizes that courts should be

wary of deciding on the merits any issue in which claims of principle as to the issue and of expediency as to the power and prestige

of courts are in sharp conflict. The political question doctrine was

(and is) thus a way of avoiding a principled decision damaging to

the Court or an expedient decision damaging to the principle.670

Baker v. Carr.—In Baker v. Carr,

671 the Court undertook a major reformulation and rationalization of the political question doctrine, which has considerably narrowed its application. Following

Baker, the whole of the apportionment-districting-election restriction controversy previously immune to federal-court adjudication was

considered and decided on the merits,672 and the Court’s subsequent rejection of the doctrine in other cases disclosed narrowing

in other areas as well.673

According to Justice Brennan, who delivered the opinion of the

Court, “it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the ‘political

667 See, e.g., Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103,

111 (1948); Coleman v. Miller, 307 U.S. 433, 453, (1939).

668 See, e.g., Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415, 420 (1839). Similar considerations underlay the opinion in Luther v. Borden, 48 U.S. (7 How.) 1 (1849),

in which Chief Justice Taney wondered how a court decision in favor of one faction

would be received with Congress seating the representatives of the other faction and

the President supporting that faction with military force.

669 Baker v. Carr, 369 U.S. 186, 217, 226 (1962) (opinion of the Court); id. at

268, 287, 295 (Justice Frankfurter dissenting)

670 For a statement of the “prudential” view, see generally A. BICKEL, THE LEAST

DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962), but see esp. 23–

28, 69–71, 183–198. See also Baker v. Carr, 369 U.S. 186, 267 (1962) (Justice Frankfurter dissenting.) The opposing view, which has been called the “classicist” view, is

that courts are duty bound to decide all cases properly before them. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). See also H. WECHSLER, PRINCIPLES, POLITICS,

AND FUNDAMENTAL LAW: SELECTED ESSAYS 11–15 (1961).

671 369 U.S. 186 (1962).

672 Wesberry v. Sanders, 376 U.S. 1 (1964); Reynolds v. Sims, 377 U.S. 533 (1964);

Hadley v. Junior College District, 397 U.S. 50 (1970) (apportionment and districting, congressional, legislative, and local); Gray v. Sanders, 372 U.S. 368 (1963) (county

unit system weighing statewide elections); Moore v. Ogilvie, 394 U.S. 814 (1969) (geographic dispersion of persons signing nominating petitions).

673 See, e.g., Powell v. McCormack, 395 U.S. 486 (1969). Nonetheless, the doctrine continues to be sighted.

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 779
question.’ ” 674 Thus, the “nonjusticiability of a political question is

primarily a function of the separation of powers.” 675 “Deciding whether

a matter has in any measure been committed by the Constitution

to another branch of government, or whether the action of that branch

exceeds whatever authority has been committed, is itself a delicate

exercise in constitutional interpretation, and is a responsibility of

this Court as ultimate interpreter of the Constitution.” 676 Following a discussion of several areas in which the doctrine had been

used, Justice Brennan continued: “It is apparent that several formulations which vary slightly according to the settings in which

the questions arise may describe a political question, although each

has one or more elements which identify it as essentially a function of the separation of powers.”

The Justice went on to list a variety of factors to be considered,

noting that “[p]rominent on the surface of any case held to involve

a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an

initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches

of government; or an unusual need for unquestioning adherence to

a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on

one question.” 677

674 Baker v. Carr, 369 U.S. 186, 210 (1962). This formulation fails to explain

cases like Moyer v. Peabody, 212 U.S. 78 (1909), in which the conclusion of the governor of a state that insurrection existed or was imminent justifying suspension of

constitutional rights was deemed binding on the Court. Cf. Sterling v. Constantin,

287 U.S. 378 (1932). The political question doctrine was applied in cases challenging the regularity of enactments of territorial legislatures. Harwood v. Wentworth,

162 U.S. 547 (1896); Lyons v. Woods, 153 U.S. 649 (1894); Clough v. Curtis, 134

U.S. 361 (1890). See also In re Sawyer, 124 U.S. 200 (1888); Walton v. House of

Representatives, 265 U.S. 487 (1924).

675 369 U.S. at 210.

676 369 U.S. at 211.

677 369 U.S. at 217. It remains unclear after Baker whether the political question doctrine is applicable solely to intrafederal issues or only primarily, so that the

existence of one or more of these factors in a case involving, say, a state, might still

give rise to nonjusticiability. At one point, id. at 210, Justice Brennan says that

nonjusticiability of a political question is “primarily” a function of separation of powers but in the immediately preceding paragraph he states that “it is” the intrafederal

aspect “and not the federal judiciary’s relationship to the States” that raises political questions. But subsequently, id. at 226, he balances the present case, which involves a state and not a branch of the Federal Government, against each of the factors listed in the instant quotation and notes that none apply. His discussion of why

Guarantee Clause cases are political presents much the same difficulty, id. at 222–

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780 ART. III—JUDICIAL DEPARTMENT
Powell v. McCormack.—Because Baker had apparently restricted the political question doctrine to intrafederal issues, there

was no discussion of the doctrine when the Court held that it had

power to review and overturn a state legislature’s refusal to seat a

member-elect because of his expressed views.678 But in Powell v.

McCormack,

679 the Court was confronted with a challenge to the

exclusion of a member-elect by the United States House of Representatives. Its determination that the political question doctrine did

not bar its review of the challenge indicates the narrowness of application of the doctrine in its present state. Taking Justice Brennan’s formulation in Baker of the factors that go to make up a political question,680 Chief Justice Warren determined that the only

critical one in this case was whether there was a “textually demonstrable constitutional commitment” to the House to determine in

its sole discretion the qualifications of members.681

In order to determine whether there was a textual commitment, the Court reviewed the Constitution, the Convention proceedings, and English and United States legislative practice to ascertain what power had been conferred on the House to judge the

qualifications of its members; finding that the Constitution vested

the House with power only to look at the qualifications of age, residency, and citizenship, the Court thus decided that in passing on

Powell’s conduct and character the House had exceeded the powers

committed to it and thus judicial review was not barred by this factor of the political question doctrine.682 Although this approach accords with the “classicist” theory of judicial review,683 it circumscribes the political question doctrine severely, inasmuch as all

constitutional questions turn on whether a governmental body has

exceeded its specified powers, a determination the Court tradition26, because he joins the conclusion that the clause commits resolution of such issues to Congress with the assertion that the clause contains no “criteria by which a

court could determine which form of government was republican,” id. at 222, a factor not present when the Equal Protection Clause is relied on. Id. at 226.

678 Bond v. Floyd, 385 U.S. 116 (1966).

679 395 U.S. 486 (1969).

680 Baker v. Carr, 369 U.S. 186, 217 (1962).

681 395 U.S. at 319.

682 395 U.S. at 519–47. The Court noted, however, that even if this conclusion

had not been reached from unambiguous evidence, the result would have followed

from other considerations. Id. at 547–48.

683 See H. Wechsler, supra at 11–12. Professor Wechsler believed that congressional decisions about seating members were immune to review. Id. Chief Justice

Warren noted that “federal courts might still be barred by the political question doctrine from reviewing the House’s factual determination that a member did not meet

one of the standing qualifications. This is an issue not presented in this case and

we express no view as to its resolution.” Powell v. McCormack, 395 U.S. 486, 521

n.42 (1969). See also id. at 507 n.27 (reservation on limitations that might exist on

Congress’s power to expel or otherwise punish a sitting member).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 781
ally makes, whereas traditionally the doctrine precluded the Court

from inquiring whether the governmental body had exceeded its powers. In short, the political question consideration may now be one

on the merits rather than a decision not to decide.

Chief Justice Warren disposed of the other factors present in

political question cases in slightly more than a page. Because resolution of the question turned on an interpretation of the Constitution, a judicial function which must sometimes be exercised “at variance with the construction given the document by another branch,”

there was no lack of respect shown another branch. Nor, because

the Court is the “ultimate interpreter of the Constitution,” will there

be “multifarious pronouncements by various departments on one question,” nor, since the Court is merely interpreting the Constitution,

is there an “initial policy determination” not suitable for courts. Finally, “judicially . . . manageable standards” are present in the text

of the Constitution.684 The effect of Powell was to discard all the

Baker factors inhering in a political question, with the exception of

the textual commitment factor, and that was interpreted in such a

manner as seldom if ever to preclude a judicial decision on the merits.

The Doctrine Reappears.—Despite the apparent narrowing of

the doctrine in Baker and Powell, the Court has not abandoned it.

Reversing a lower federal court ruling subjecting the training and

discipline of National Guard troops to court review and supervision, the Court held that under Article I, § 8, cl. 16, the organizing,

arming, and disciplining of such troops are committed to Congress

and by congressional enactment to the Executive Branch. “It would

be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the

political branches, directly responsible—as the Judicial Branch is

not—to the elective process. Moreover, it is difficult to conceive of

an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the

composition, training, equipping, and control of a military force are

essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.” 685

The suggestion of the infirmity of the political question doctrine was rejected, since “because this doctrine has been held inap684 395 U.S. at 548–549. With the formulation of Chief Justice Warren, compare

that of then-Judge Burger in the lower court. 395 F.2d 577, 591–96 (D.C. Cir. 1968).

685 Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Similar prudential concerns seem

to underlay, though they did not provide the formal basis for, the decisions in O’Shea

v. Littleton, 414 U.S. 488 (1974), and Mayor of Philadelphia v. Educational Equality

League, 415 U.S. 605 (1974).

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782 ART. III—JUDICIAL DEPARTMENT
plicable to certain carefully delineated situations, it is no reason

for federal courts to assume its demise.” 686 In staying a grant of

remedial relief in another case, the Court strongly suggested that

the actions of political parties in national nominating conventions

may also present issues not meet for judicial resolution.687 A challenge to the Senate’s interpretation of and exercise of its impeachment powers was held to be nonjusticiable; there was a textually

demonstrable commitment of the issue to the Senate, and there was

a lack of judicially discoverable and manageable standards for resolving the issue.688

Despite the occasional resort to the doctrine, the Court continues to reject its application in language that confines its scope. Thus,

when parties challenged the actions of the Secretary of Commerce

in declining to certify, as required by statute, that Japanese whaling practices undermined the effectiveness of international conventions, the Court rejected the Government’s argument that the political question doctrine precluded decision on the merits. The Court’s

prime responsibility, it said, is to interpret statutes, treaties, and

executive agreements; the interplay of the statutes and the agreements in this case implicated the foreign relations of the Nation.

“But under the Constitution, one of the Judiciary’s characteristic

roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.” 689

After requesting argument on the issue, the Court held that a

challenge to a statute on the ground that it did not originate in the

House of Representatives as required by the Origination Clause was

686 413 U.S. at 11. Other considerations of justiciability, however, id. at 10, preclude using the case as square precedent on political questions. Notice that in Scheuer

v. Rhodes, 416 U.S. 232, 249 (1974), the Court denied that the Gilligan v. Morgan

holding barred adjudication of damage actions brought against state officials by the

estates of students killed in the course of the conduct that gave rise to both cases.

687 O’Brien v. Brown, 409 U.S. 1 (1972) (granting stay). The issue was mooted

by the passage of time and was not thereafter considered on the merits by the Court.

Id. at 816 (remanding to dismiss as moot). It was also not before the Court in Cousins v. Wigoda, 419 U.S. 477 (1975), but it was alluded to there. See id. at 483 n.4,

and id. at 491 (Justice Rehnquist concurring). See also Goldwater v. Carter, 444 U.S.

996, 1002 (1979) (Justices Rehnquist, Stewart, and Stevens, and Chief Justice Burger

using political question analysis to dismiss a challenge to presidential action). But

see id. at 997, 998 (Justice Powell rejecting analysis for this type of case).

688 Nixon v. United States, 506 U.S. 224 (1993). The Court pronounced its decision as perfectly consonant with Powell v. McCormack. Id. at 236–38.

689 Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221, 230 (1986).

See also Davis v. Bandemer, 478 U.S. 109 (1986) (challenge to political gerrymandering is justiciable). But see Vieth v. Jubelirer, 541 U.S. 267 (2004) (no workable standard has been found for measuring burdens on representational rights imposed by

political gerrymandering).

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ART. III—JUDICIAL DEPARTMENT 783
justiciable.690 Turning back reliance on the various factors set out

in Baker, in much the same tone as in Powell v. McCormack, the

Court continued to evidence the view that only questions textually

committed to another branch are political questions. Invalidation

of a statute because it did not originate in the right House would

not demonstrate a “lack of respect” for the House that passed the

bill. “[D]isrespect,” in the sense of rejecting Congress’s reading of

the Constitution, “cannot be sufficient to create a political question.

If it were every judicial resolution of a constitutional challenge to a

congressional enactment would be impermissible.” 691 That the House

of Representatives has the power and incentives to protect its prerogatives by not passing a bill violating the Origination Clause did

not make this case nonjusticiable. “[T]he fact that one institution

of Government has mechanisms available to guard against incursions into its power by other governmental institutions does not require that the Judiciary remove itself from the controversy by labeling the issue a political question.” 692

The Court also rejected the contention that, because the case

did not involve a matter of individual rights, it ought not be adjudicated. Political questions are not restricted to one kind of claim,

but the Court frequently has decided separation-of-power cases brought

by people in their individual capacities. Moreover, the allocation of

powers within a branch, just as the separation of powers among

branches, is designed to safeguard liberty.693 Finally, the Court was

sanguine that it could develop “judicially manageable standards” for

disposing of Origination Clause cases, and, thus, it did not view the

issue as political in that context.694

In Zivotosky v. Clinton,695 the Court declined to find a political

question where a citizen born in Jerusalem sought, pursuant to federal statute, to have “Israel” listed on his passport as his place of

birth, the Executive Branch having declined to recognize Israeli sovereignly over that city. Justice Roberts, for the Court, failed to even

acknowledge the numerous factors set forth in Justice Brennan’s

Baker opinion save two—whether there is a textually demonstrable commitment of the issue to another department or a lack of

judicially discoverable and manageable standards for resolving it.696

The Court noted that while the decision as whether or not to recog690 United States v. Munoz-Flores, 495 U.S. 385 (1990).

691 495 U.S. at 390 (emphasis in original).

692 495 U.S. at 393.

693 495 U.S. at 393–95.

694 495 U.S. at 395–96.

695 566 U.S. ___, No. 10–699, slip op. (2010).

696 This left it to Justice Sotomayor and Justice Breyer to raise and address the

other considerations, respectively, in concurrence and dissent.

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

784 ART. III—JUDICIAL DEPARTMENT
nized Jerusalem as the capital of Israel might be exclusively the

province of the Executive Branch, there is “no exclusive commitment to the Executive of the power to determine the constitutionality of a statute,” 697 such as whether Congress is encroaching on Presidential powers. Similarly, this latter question, while perhaps a difficult

one, is amenable to the type of separation of powers “standards”

used by the Court in other separation of powers cases.

In short, the political question doctrine may not be moribund,

but it does seem applicable to a very narrow class of cases. Significantly, the Court made no mention of the doctrine when it resolved

issues arising from Florida’s recount of votes in the closely contested 2000 presidential election,698 despite the fact that the Constitution vests in Congress the authority to count electoral votes, and

further provides for selection of the President by the House of Representatives if no candidate receives a majority of electoral votes.699

JUDICIAL REVIEW

The Establishment of Judicial Review

Judicial review is one of the distinctive features of United States

constitutional law. It is no small wonder, then, to find that the power

of the federal courts to test federal and state legislative enactments and other actions by the standards of what the Constitution

grants and withholds is nowhere expressly conveyed. But it is hardly

noteworthy that its legitimacy has been challenged from the first,

and, while now accepted generally, it still has detractors and its

supporters disagree about its doctrinal basis and its application.700

Although it was first asserted in Marbury v. Madison 701 to strike

697 566 U.S. ___, No. 10–699, slip op. at 8.

698 See Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000); and

Bush v. Gore, 531 U.S. 98 (2000).

699 12th Amendment.

700 See the richly detailed summary and citations to authority in G. GUNTHER,

CONSTITUTIONAL LAW 1–38 (12th ed. 1991); For expositions on the legitimacy of judicial

review, see L. HAND, THE BILL OF RIGHTS (1958); H. WECHSLER, PRINCIPLES, POLITICS, AND

FUNDAMENTAL LAW:SELECTED ESSAYS 1–15 (1961); A. BICKEL, THE LEAST DANGEROUS BRANCH:

THE SUPREME COURT AT THE BAR OF POLITICS 1–33 (1962); R. BERGER, CONGRESS V. THE SUPREME COURT (1969). For an extensive historical attack on judicial review, see 2 W.

CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES chs. 27–29

(1953), with which compare Hart, Book Review, 67 HARV. L. REV. 1456 (1954). A brief

review of the ongoing debate on the subject, in a work that now is a classic attack

on judicial review, is Westin, Introduction: Charles Beard and American Debate over

Judicial Review, 1790–1961, in C. BEARD, THE SUPREME COURT AND THE CONSTITUTION 1–34

(1962 reissue of 1938 ed.), and bibliography at 133–149. While much of the debate

focuses on judicial review of acts of Congress, the similar review of state acts has

occasioned much controversy as well.

701 5 U.S. (1 Cr.) 137 (1803). A state act was held inconsistent with a treaty in

Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).

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ART. III—JUDICIAL DEPARTMENT 785
down an act of Congress as inconsistent with the Constitution, judicial review did not spring full-blown from the brain of Chief Justice Marshall. The concept had been long known, having been utilized in a much more limited form by Privy Council review of colonial

legislation and its validity under the colonial charters,702 and there

were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions.703

Practically all of the framers who expressed an opinion on the

issue in the Convention appear to have assumed and welcomed the

existence of court review of the constitutionality of legislation,704

702 J. Goebel, supra at 60–95.

703 Id. at 96–142.

704 M. Farrand, supra at 97–98 (Gerry), 109 (King), 2 id. at 28 (Morris and perhaps Sherman). 73 (Wilson), 75 (Strong, but the remark is ambiguous). 76 (Martin),

78 (Mason), 79 (Gorham, but ambiguous), 80 (Rutledge), 92–93 (Madison), 248

(Pinckney), 299 (Morris), 376 (Williamson), 391 (Wilson), 428 (Rutledge), 430 (Madison), 440 (Madison), 589 (Madison); 3 id. at 220 (Martin). The only expressed opposition to judicial review came from Mercer with a weak seconding from Dickinson.

“Mr. Mercer . . . disapproved of the Doctrine that the Judges as expositors of the

Constitution should have authority to declare a law void. He thought laws ought to

be well and cautiously made, and then to be uncontroulable.” 2 id. at 298. “Mr. Dickinson

was strongly impressed with the remark of Mr. Mercer as to the power of the Judges

to set aside the law. He thought no such power ought to exist. He was at the same

time at a loss what expedient to substitute.” Id. at 299. Of course, the debates in

the Convention were not available when the state ratifying conventions acted, so

that the delegates could not have known these views about judicial review in order

to have acted knowingly about them. Views, were, however, expressed in the ratifying conventions recognizing judicial review, some of them being uttered by Framers.

2 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL

CONSTITUTION (1836). 131 (Samuel Adams, Massachusetts), 196–197 (Ellsworth, Connecticut). 348, 362 (Hamilton, New York): 445–446. 478 (Wilson, Pennsylvania), 3

id. at 324–25, 539, 541 (Henry, Virginia), 480 (Mason, Virginia), 532 (Madison, Virginia), 570 (Randolph, Virginia); 4 id. at 71 (Steele, North Carolina), 156–157 (Davie,

North Carolina). In the Virginia convention, John Marshall observed if Congress “were

to make a law not warranted by any of the powers enumerated, it would be considered by the judge as an infringement of the Constitution which they are to guard

. . . They would declare it void . . . . To what quarter will you look for protection

from an infringement on the constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection.” 3 id. at 553–54.

Both Madison and Hamilton similarly asserted the power of judicial review in their

campaign for ratification. THE FEDERALIST (J. Cooke ed. 1961). See Nos. 39 and 44, at

256, 305 (Madison), Nos. 78 and 81, at 524–530, 541–552 (Hamilton). The persons

supporting or at least indicating they thought judicial review existed did not constitute a majority of the Framers, but the absence of controverting statements, with

the exception of the Mercer-Dickinson comments, indicates at least acquiescence if

not agreements by the other Framers.

To be sure, subsequent comments of some of the Framers indicate an understanding contrary to those cited in the convention. See, e.g., Charles Pinckney in 1799:

“On no subject am I more convinced, than that it is an unsafe and dangerous doctrine in a republic, ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. It is placing the opinion of an individual, or of two or three, above that of

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786 ART. III—JUDICIAL DEPARTMENT
and prior to Marbury the power seems very generally to have been

assumed to exist by the Justices themselves.705 In enacting the Judiciary Act of 1789, Congress explicitly provided for the exercise of

the power,706 and in other debates questions of constitutionality and

both branches of Congress, a doctrine which is not warranted by the Constitution,

and will not, I hope, long have many advocates in this country.” STATE TRIALS OF THE

UNITED STATES DURING THE ADMINISTRATIONS OF WASHINGTON AND ADAMS 412 (F. Wharton

ed., 1849).

Madison’s subsequent changes of position are striking. His remarks in the Philadelphia Convention, in the Virginia ratifying convention, and in The Federalist, cited

above, all unequivocally favor the existence of judicial review. And in Congress arguing in support of the constitutional amendments providing a bill of rights, he observed: “If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights;

they will be an impenetrable bulwark against every assumption of power in the Legislature or Executive; they will be naturally led to resist every encroachment upon

rights expressly stipulated for in the Constitution by the declaration of rights,” 1

ANNALS OF CONGRESS 457 (1789); 5 WRITINGS OF JAMES MADISON 385 (G. Hunt ed., 1904).

Yet, in a private letter in 1788, he wrote: “In the state constitutions and indeed in

the federal one also, no provision is made for the case of a disagreement in expounding them; and as the courts are generally the last in making the decision, it results

to them by refusing or not refusing to execute a law, to stamp it with the final character. This makes the Judiciary Department paramount in fact to the legislature,

which was never intended and can never be proper.” Id. at 294. At the height of the

dispute over the Alien and Sedition Acts, Madison authored a resolution ultimately

passed by the Virginia legislature which, though milder, and more restrained than

one authored by Jefferson and passed by the Kentucky legislature, asserted the power

of the states, though not of one state or of the state legislatures alone, to “interpose” themselves to halt the application of an unconstitutional law. 3 I. BRANT, JAMES

MADISON: FATHER OF THE CONSTITUTION, 1787–1800 460–464, 467–471 (1950); Report on

the Resolutions of 1798, 6 Writings of James Madison, op. cit., 341–406. Embarrassed by the claim of the nullificationists in later years that his resolution supported their position, Madison distinguished his and their positions and again asserted his belief in judicial review. 6 I. Brant, supra, 481–485, 488–489.

The various statements made and positions taken by the Framers have been

culled and categorized and argued over many times. For a recent compilation reviewing the previous efforts, see R. Berger, supra, chs. 3–4.

705 Thus, the Justices on circuit refused to administer a pension act on the grounds

of its unconstitutionally, see Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), and “Finality of Judgment as an Attribute of Judicial Power,” supra. Chief Justice Jay and

other Justices wrote that the imposition of circuit duty on Justices was unconstitutional, although they never mailed the letter, supra, in Hylton v. United States, 3

U.S. (3 Dall.) 171 (1796), a feigned suit, the constitutionality of a federal law was

argued before the Justices and upheld on the merits, in Ware v. Hylton, 3 U.S. (3

Dall.) 199 (1797), a state law was overturned, and dicta in several opinions asserted

the principle. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (Justice Iredell),

and several Justices on circuit, quoted in J. Goebel, supra, at 589–592.

706 In enacting the Judiciary Act of 1789, 1 Stat. 73, Congress chose not to vest

“federal question” jurisdiction in the federal courts but to leave to the state courts

the enforcement of claims under the Constitution and federal laws. In § 25, 1 Stat.

85, Congress provided for review by the Supreme Court of final judgments in state

courts (1) “. . . where is drawn in question the validity of a treaty or statute of, or

an authority exercised under the United States, and the decision is against their

validity;” (2) “. . . where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the

constitution, treaties or laws of the United States, and the decision is in favor of

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 787
of judicial review were prominent.707 Nonetheless, although judicial review is consistent with several provisions of the Constitution

and the argument for its existence may be derived from them, these

provisions do not compel the conclusion that the Framers intended

judicial review nor that it must exist. It was Chief Justice Marshall’s achievement that, in doubtful circumstances and an awkward position, he carried the day for the device, which, though questioned, has expanded and become solidified at the core of constitutional

jurisprudence.

Marbury v. Madison.—Chief Justice Marshall’s argument for

judicial review of congressional acts in Marbury v. Madison 708 had

been largely anticipated by Hamilton.709 Hamilton had written, for

example: “The interpretation of the laws is the proper and peculiar

province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to

them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has

the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to

the statute, the intention of the people to the intention of their

agents.” 710

At the time of the change of administration from Adams to Jefferson, several commissions of appointment to office had been signed

but not delivered and were withheld on Jefferson’s express instruction. Marbury sought to compel the delivery of his commission by

seeking a writ of mandamus in the Supreme Court in the exercise

of its original jurisdiction against Secretary of State Madison. Jurisdiction was based on § 13 of the Judiciary Act of 1789,711 which

Marbury, and ultimately the Supreme Court, interpreted to authorize the Court to issue writs of mandamus in suits in its original

their validity;” or (3) “. . . where is drawn in question the construction of any clause

of the constitution, or of a treaty, or statute of, or commission held under the United

States, and the decision is against the title, right, privilege or exemption specially

set up or claimed” thereunder. The ruling below was to be “re-examined and reversed or affirmed in the Supreme Court . . . .”

707 See in particular the debate on the President’s removal powers, discussed

supra, “The Removal Power” with statements excerpted in R. Berger, supra at 144–

150. Debates on the Alien and Sedition Acts and on the power of Congress to repeal

the Judiciary Act of 1801 similarly saw recognition of judicial review of acts of Congress. C. Warren, supra at 107–124.

708 5 U.S. (1 Cr.) 137 (1803).

709 THE FEDERALIST, Nos. 78 and 81 (J. Cooke ed. 1961), 521–530, 541–552.

710 Id., No. at 78, 525.

711 1 Stat. 73, 80.

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788 ART. III—JUDICIAL DEPARTMENT
jurisdiction.712 Though deciding all the other issues in Marbury’s

favor, the Chief Justice wound up concluding that the § 13 authorization was an attempt by Congress to expand the Court’s original

jurisdiction beyond the constitutional prescription and was therefore void.713

“The question, whether an act, repugnant to the constitution,

can become the law of the land, is a question deeply interesting to

the United States,” Marshall began his discussion of this final phase

of the case, “but, happily, not of an intricacy proportioned to its interest.” 714 First, Marshall recognized certain fundamental principles. The people had come together to establish a government. They

provided for its organization and assigned to its various departments their powers and established certain limits not to be transgressed by those departments. The limits were expressed in a written constitution, which would serve no purpose “if these limits may,

at any time, be passed by those intended to be restrained.” Because the Constitution is “a superior paramount law, unchangeable

by ordinary means, . . . a legislative act contrary to the constitution is not law.” 715 “If an act of the legislature, repugnant to the

constitution, is void, does it, notwithstanding its invalidity, bind the

courts, and oblige them to give it effect?” The answer, thought the

Chief Justice, was obvious. “It is emphatically the province and duty

of the judicial department to say what the law is. Those who apply

the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must

decide on the operation of each.” 716

712 The section first denominated the original jurisdiction of the Court and then

described the Court’s appellate jurisdiction. Following and indeed attached to the

sentence on appellate jurisdiction, being separated by a semicolon, is the language

saying “and shall have power 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.” The Chief Justice could easily have

interpreted the authority to have been granted only in cases under appellate jurisdiction or as authority conferred in cases under both original and appellate jurisdiction when the cases are otherwise appropriate for one jurisdiction or the other. Textually, the section does not compel a reading that Congress was conferring on the

Court an original jurisdiction to issue writs of mandamus per se.

713 Marbury v. Madison, 5 U.S. (1 Cr.) 137, 173–180 (1803). For a classic treatment of Marbury, see Van Alstyne, A Critical Guide to Marbury v. Madison, 1969

DUKE L. J. 1.

714 5 U.S. at 176. One critic has written that by this question Marshall “had

already begged the question-in-chief, which was not whether an act repugnant to

the Constitution could stand, but who should be empowered to decide that the act

is repugnant.” A. Bickel, supra at 3. Marshall, however, soon reached this question,

though more by way of assertion than argument. 5 U.S. (1 Cr.) at 177–78.

715 5 U.S. at 176–77.

716 5 U.S. at 177.

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ART. III—JUDICIAL DEPARTMENT 789
“So if a law be in opposition to the constitution; if both the law

and the constitution apply to a particular case, so that the court

must either decide that case conformably to the law, disregarding

the constitution; or conformably to the constitution, disregarding the

law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” 717

“If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which

they both apply.” 718 To declare otherwise, Chief Justice Marshall

said, would be to permit the legislature to “pass[ ] at pleasure” the

limits imposed on its powers by the Constitution.719

The Chief Justice then turned from the philosophical justification for judicial review as arising from the very concept of a written constitution, to specific clauses of the Constitution. The judicial

power, he observed, was extended to “all cases arising under the

constitution.” 720 It was “too extravagant to be maintained that the

Framers had intended that a case arising under the constitution

should be decided without examining the instrument under which

it arises.” 721 Suppose, he said, that Congress laid a duty on an article exported from a state or passed a bill of attainder or an ex

post facto law or provided that treason should be proved by the testimony of one witness. Would the courts enforce such a law in the

face of an express constitutional provision? They would not, he continued, because their oath required by the Constitution obligated

them to support the Constitution and to enforce such laws would

violate the oath.722 Finally, the Chief Justice noted that the Supremacy Clause (Art. VI, cl. 2) gave the Constitution precedence

over laws and treaties, providing that only laws “which shall be made

in pursuance of the constitution” shall be the supreme law of the

land.723

The decision in Marbury v. Madison has never been disturbed,

although it has been criticized and has had opponents throughout

717 5 U.S. at 178.

718 5 U.S. at 177–78.

719 5 U.S. at 178.

720 5 U.S. at 178. The reference is, of course, to the first part of clause 1, § 2,

Art. III: “The judicial power shall extend to all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made,

under their Authority. . . .” Compare A. Bickel, supra at 5–6, with R. Berger, supra

at 189–222.

721 5 U.S. at 179.

722 5 U.S. at 179–80. The oath provision is contained in Art. VI, cl. 3. Compare

A. Bickel, supra at 7–8, with R. Berger, supra at 237–244.

723 5 U.S. at 180. Compare A. Bickel, supra at 8–12, with R. Berger, supra at

223–284.

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790 ART. III—JUDICIAL DEPARTMENT
our history. It not only carried the day in the federal courts, but

from its announcement judicial review by state courts of local legislation under local constitutions made rapid progress and was securely established in all states by 1850.724

Judicial Review and National Supremacy.—Even many persons who have criticized the concept of judicial review of congressional acts by the federal courts have thought that review of state acts

under federal constitutional standards is soundly based in the Supremacy Clause, which makes the Constitution, laws enacted pursuant to the Constitution, and treaties the supreme law of the land,725

and which Congress effectuated by enacting § 25 of the Judiciary

Act of 1789.726 Five years before Marbury v. Madison, the Court

held invalid a state law as conflicting with the terms of a treaty,727

and seven years after Chief Justice Marshall’s opinion it voided a

state law as conflicting with the Constitution.728

Virginia provided a states’ rights challenge to a broad reading

of the Supremacy Clause and to the validity of § 25 in Martin v.

Hunter’s Lessee 729 and in Cohens v. Virginia.

730 In both cases, it

was argued that while the courts of Virginia were constitutionally

obliged to prefer “the supreme law of the land,” as set out in the

Supremacy Clause, over conflicting state constitutional provisions

and laws, it was only by their own interpretation of the supreme

law that they as courts of a sovereign state were bound. Furthermore, it was contended that cases did not “arise” under the Constitution unless they were brought in the first instance by someone

claiming such a right, from which it followed that “the judicial power

of the United States” did not “extend” to such cases unless they

were brought in the first instance in the courts of the United States.

But Chief Justice Marshall rejected this narrow interpretation: “A

case in law or equity consists of the right of the one party, as well

724 E. CORWIN, THE DOCTRINE OF JUDICIAL REVIEW 75–78 (1914); Nelson, Changing

Conceptions of Judicial Review: The Evolution of Constitution Theory in the State,

1790–1860, 120 U. PA. L. REV. 1166 (1972).

725 2 W. Crosskey, supra at 989. See the famous remark of Holmes: “I do not

think the United States would come to an end if we lost our power to declare an Act

of Congress void. I do think the Union would be imperiled if we could not make

that declaration as the laws of the several States.” O. HOLMES, COLLECTED LEGAL PAPERS 295–296 (1921).

726 1 Stat. 73, 85, quoted supra.

727 Ware v. Hylton, 3 U.S. (3 Dall.) 190 (1796).

728 Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810). The case came to the Court by

appeal from a circuit court and not from a state court under § 25. Famous early

cases coming to the Court under § 25 in which state laws were voided included Sturges

v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819); and McCulloch v. Maryland, 17 U.S.

(4 Wheat.) 316 (1819).

729 14 U.S. (1 Wheat.) 304 (1816).

730 19 U.S. (6 Wheat.) 264 (1821).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 791
as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision

depends upon the construction of either.” 731 Passing on to the power

of the Supreme Court to review such decisions of the state courts,

he said: “Let the nature and objects of our Union be considered: let

the great fundamental principles on which the fabric stands, be examined: and we think, the result must be, that there is nothing so

extravagantly absurd, in giving to the Court of the nation the power

of revising the decisions of local tribunals, on questions which affect the nation, as to require that words which import this power

should be restricted by a forced construction.” 732

Limitations on the Exercise of Judicial Review

Constitutional Interpretation.—Under a written constitution, which is law and is binding on government, the practice of

judicial review raises questions of the relationship between constitutional interpretation and the Constitution—the law that is construed. The legitimacy of construction by an unelected entity in a

republican or democratic system becomes an issue whenever the construction is controversial, as it frequently is. Full consideration would

carry us far afield, in view of the immense corpus of writing with

respect to the proper mode of interpretation during this period.

Scholarly writing has identified six forms of constitutional argument or construction that may be used by courts or others in deciding a constitutional issue.733 These are (1) historical, (2) textual, (3)

structural, (4) doctrinal, (5) ethical, and (6) prudential. The historical argument is largely, though not exclusively, associated with the

theory of original intent or original understanding, under which con731 19 U.S. at 379.

732 19 U.S. at 422–23. Justice Story traversed much of the same ground in Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). In Ableman v. Booth, 62 U.S.

(21 How.) 506 (1859), the Wisconsin Supreme Court had declared an act of Congress

invalid and disregarded a writ of error from the Supreme Court, raising again the

Virginia arguments. Chief Justice Taney emphatically rebuked the assertions on grounds

both of dual sovereignty and national supremacy. His emphasis on the indispensability of the federal judicial power to maintain national supremacy, to protect the states

from national encroachments, and to make the Constitution and laws of the United

States uniform all combine to enhance the federal judicial power to a degree perhaps beyond that envisaged even by Story and Marshall. As late as Williams v. Bruffy,

102 U.S. 248 (1880), the concepts were again thrashed out with the refusal of a

Virginia court to enforce a mandate of the Supreme Court. See also Cooper v. Aaron,

358 U.S. 1 (1958).

733 The six forms, or “modalities” as he refers to them, are drawn from P. BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION (1982); P. BOBBITT, CONSTITUTIONAL

INTERPRETATION (1991). Of course, other scholars may have different categories, but

these largely overlap these six forms. E.g., Fallon, A Constructivist Coherence Theory

of Constitutional Interpretation, 100 HARV. L. REV. 1189 (1987); Post, Theories of Constitutional Interpretation, in LAW AND THE ORDER OF CULTURE 13–41 (R. Post ed., 1991).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

792 ART. III—JUDICIAL DEPARTMENT
stitutional and legal interpretation is limited to attempting to discern the original meaning of the words being construed as that meaning is revealed in the intentions of those who created the law or

the constitutional provision in question. The textual argument, closely

associated in many ways to the doctrine of original intent, concerns whether the judiciary or another is bound by the text of the

Constitution and the intentions revealed by that language, or whether

it may go beyond the four corners of the constitutional document to

ascertain the meaning, a dispute encumbered by the awkward constructions, interpretivism and noninterpretivism.734 Using a structural argument, one seeks to infer structural rules from the relationships that the Constitution mandates.735 The remaining three

modes are not necessarily tied to original intent, text, or structure,

though they may have some relationship. Doctrinal arguments proceed from the application of precedents. Prudential arguments seek

to balance the costs and benefits of a particular rule. Ethical arguments derive rules from those moral commitments of the American

ethos that are reflected in the Constitution.

Although the scholarly writing ranges widely, a much more narrow scope is seen in the actual political-judicial debate. Rare is the

judge who will proclaim a devotion to ethical guidelines, such, for

example, as natural-law precepts. The usual debate ranges from those

adherents of strict construction and original intent to those with

loose construction and adaptation of text to modern-day conditions.736 However, it is with regard to more general rules of prudence and self-restraint that one usually finds the enunciation and

application of limitations on the exercise of constitutional judicial

review.

734 Among the vast writing, see, e.g., R. BORK, THE TEMPTING OF AMERICA (1990); J.

ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980); L. TRIBE & M. DORF,

ON READING THE CONSTITUTION (1991); H. WELLINGTON, INTERPRETING THE CONSTITUTION (1990);

Symposium, Constitutional Adjudication and Democratic Theory, 56 N. Y. U. L. REV.

259 (1981); Symposium, Judicial Review and the Constitution: The Text and Beyond, 8 U. DAYTON L. REV. 43 (1983); Symposium, Judicial Review Versus Democracy,

42 OHIO ST. L.J. 1 (1981); Symposium, Democracy and Distrust: Ten Years Later, 77

VA. L. REV. 631 (1991). See also Farber, The Originalism Debate: A Guide for the

Perplexed, 49 OHIO ST. L.J. 1085 (1989).

735 This mode is most strongly association with C. BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969).

736 E.g., Meese, The Attorney General’s View of the Supreme Court: Toward a

Jurisprudence of Original Intention, 45 PUB. ADMIN. REV. 701 (1985); Addresses: Construing the Constitution, 19 U. C. DAVIS L. REV. 1 (1985), containing addresses by

Justice Brennan, id. at 2, Justice Stevens, id. at 15, and Attorney General Meese.

Id. at 22. See also Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV.

693 (1976).

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ART. III—JUDICIAL DEPARTMENT 793
Prudential Considerations.—Implicit in the argument of

Marbury v. Madison 737 is the thought that the Court is obligated

to take and decide cases meeting jurisdictional standards. Chief Justice Marshall spelled this out in Cohens v. Virginia:

738 “It is most

true that this Court will not take jurisdiction if it should not: but

it is equally true, that it must take jurisdiction if it should. The

judiciary cannot, as the legislature may, avoid a measure because

it approaches the confines of the constitution. We cannot pass it by

because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought

before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one

or the other would be treason to the constitution.” As the comment

recognizes, because judicial review grows out of the fiction that courts

only declare what the law is in specific cases 739 and are without

will or discretion,740 its exercise is surrounded by the inherent limitations of the judicial process, most basically, of course, by the necessity of a case or controversy and the strands of the doctrine comprising the concept of justiciability.741 But, although there are hints

of Chief Justice Marshall’s activism in some modern cases,742 the

Court has always adhered, at times more strictly than at other times,

to several discretionary rules or concepts of restraint in the exercise of judicial review, the practice of which is very much contrary

to the quoted dicta from Cohens. These rules, it should be noted,

are in addition to the vast discretionary power which the Supreme

Court has to grant or deny review of judgements in lower courts, a

discretion fully authorized with certiorari jurisdiction but in effect

in practice as well with regard to what remains of appeals.743

737 5 U.S. (1 Cr.) 137 (1803).

738 19 U.S. (6 Wheat.) 264, 404, (1821).

739 See, e.g., Justice Sutherland in Adkins v. Children’s Hospital, 261 U.S. 525,

544 (1923), and Justice Roberts in United States v. Butler, 297 U.S. 1, 62 (1936).

740 “Judicial power, as contradistinguished from the powers of the law, has no

existence. Courts are the mere instruments of the law, and can will nothing.” Osborn

v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824) (Chief Justice Marshall). See also Justice Roberts in United States v. Butler, 297 U.S. 1, 62–63 (1936).

741 The political question doctrine is another limitation arising in part out of

inherent restrictions and in part from prudential considerations. For a discussion of

limitations utilizing both stands, see Ashwander v. TVA, 297 U.S. 288, 346–56 (1936)

(Justice Brandeis concurring).

742 Powell v. McCormack, 395 U.S. 486, 548–49 (1969); Baker v. Carr, 369 U.S.

186, 211 (1962); Zwickler v. Koota, 389 U.S. 241, 248 (1967).

743 28 U.S.C. §§ 1254–1257. See F. Frankfurter & J. Landis, supra at ch. 7. “The

Supreme Court is not, and never has been, primarily concerned with the correction

of errors in lower court decisions. In almost all cases within the Court’s appellate

jurisdiction, the petitioner has already received one appellate review of his case . . . .

If we took every case in which an interesting legal question is raised, or our prima

facie impression is that the decision below is erroneous, we could not fulfill the ConSec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

794 ART. III—JUDICIAL DEPARTMENT
At various times, the Court has followed more strictly than other

times the prudential theorems for avoidance of decisionmaking when

it deemed restraint to be more desirable than activism.744

The Doctrine of “Strict Necessity”.—The Court has repeatedly declared that it will decide constitutional issues only if strict

necessity compels it to do so. Thus, constitutional questions will not

be decided in broader terms than are required by the precise state

of facts to which the ruling is to be applied, nor if the record presents some other ground upon which to decide the case, nor at the

instance of one who has availed himself of the benefit of a statute

or who fails to show he is injured by its operation, nor if a construction of the statute is fairly possible by which the question may be

fairly avoided.745

Speaking of the policy of avoiding the decision of constitutional

issues except when necessary, Justice Rutledge wrote: “The policy’s

ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place

and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those

consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for

each to keep within its power, including the courts; the inherent

limitations of the judicial process, arising especially from its largely

negative character and limited resources of enforcement; withal in

stitutional and statutory responsibilities placed upon the Court. To remain effective,

the Supreme Court must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular

facts and parties involved.” Chief Justice Vinson, Address on the Work of the Federal Court, in 69 Sup. Ct. v, vi. It “is only accurate to a degree to say that our jurisdiction in cases on appeal is obligatory as distinguished from discretionary on certiorari.” Chief Justice Warren, quoted in Wiener, The Supreme Court’s New Rules, 68

HARV. L. REV. 20, 51 (1954).

744 See Justice Brandeis’ concurring opinion in Ashwander v. TVA, 297 U.S. 288,

346 (1936). And contrast A. Bickel, supra at 111–198, with Gunther, The Subtle Vices

of the “Passive Virtues”: A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1 (1964).

745 Rescue Army v. Municipal Court, 331 U.S. 549, 568–75 (1947). See also Berea

College v. Kentucky, 211 U.S. 45, 53 (1908); Siler v. Louisville & Nashville R.R., 213

U.S. 175, 191 (1909); Carter v. Carter Coal Co., 298 U.S. 238, 325 (1936); Coffman

v. Breeze Corp., 323 U.S. 316, 324–325 (1945); Spector Motor Service v. McLaughlin,

323 U.S. 101, 105 (1944); Alma Motor v. Timken Co., 329 U.S. 129 (1946). Judicial

restraint as well as considerations of comity underlie the Court’s abstention doctrine when the constitutionality of state laws is challenged.

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ART. III—JUDICIAL DEPARTMENT 795
the paramount importance of constitutional adjudication in our system.” 746

The Doctrine of Clear Mistake.—A precautionary rule early

formulated and at the base of the traditional concept of judicial restraint was expressed by Professor James Bradley Thayer to the

effect that a statute could be voided as unconstitutional only “when

those who have the right to make laws have not merely made a

mistake, but have made a very clear one,—so clear that it is not

open to rational question.” 747 Whether phrased this way or phrased

so that a statute is not to be voided unless it is unconstitutional

beyond all reasonable doubt, the rule is of ancient origin 748 and of

modern adherence.749 In operation, however, the rule is subject to

two influences, which seriously impair its efficacy as a limitation.

First, the conclusion that there has been a clear mistake or that

there is no reasonable doubt is that drawn by five Justices if a full

Court sits. If five Justices of learning and detachment to the Constitution are convinced that a statute is invalid and if four others

of equal learning and attachment are convinced it is valid, the convictions of the five prevail over the convictions or doubts of the four.

Second, the Court has at times made exceptions to the rule in certain categories of cases. Statutory interferences with “liberty of contract” were once presumed to be unconstitutional until proved to

be valid; 750 more recently, presumptions of invalidity have expressly or impliedly been applied against statutes alleged to interfere with freedom of expression and of religious freedom, which have

been said to occupy a “preferred position” in the constitutional scheme

of things.751

746 Rescue Army v. Municipal Court, 331 U.S. 549, 571 (1947).

747 The Origin and Scope of the American Doctrine of Constitutional Law, in J.

THAYER, LEGAL ESSAYS 1, 21 (1908).

748 See Justices Chase and Iredell in Calder v. Bull, 3 U.S. (3 Dall.) 386, 395,

399 (1798).

749 E.g., Flemming v. Nestor, 363 U.S. 603, 611 (1960).

750 “But freedom of contract is, nevertheless, the general rule and restraint the

exception; and the exercise of legislative authority to abridge it can be justified only

by the existence of exceptional circumstances.” Adkins v. Children’s Hospital, 261

U.S. 525, 546 (1923).

751 Kovacs v. Cooper, 336 U.S. 77, 88 (1949). Justice Frankfurter’s concurrence,

id. at 89–97, is a lengthy critique and review of the “preferred position” cases up to

that time. The Court has not used the expression in recent years but the worth it

attributes to the values of free expression probably approaches the same result. Today, the Court’s insistence on a “compelling state interest” to justify a governmental

decision to classify persons by “suspect” categories, such as race, Loving v. Virginia,

388 U.S. 1 (1967), or to restrict the exercise of a “fundamental” interest, such as the

right to vote, Kramer v. Union Free School District, 395 U.S. 621 (1969), or the right

to travel, Shapiro v. Thompson, 394 U.S. 618 (1969), clearly imports presumption of

unconstitutionality.

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796 ART. III—JUDICIAL DEPARTMENT
Exclusion of Extra-Constitutional Tests.—Another maxim of

constitutional interpretation is that courts are concerned only with

the constitutionality of legislation and not with its motives, policy,

or wisdom,752 or with its concurrence with natural justice, fundamental principles of government, or the spirit of the Constitution.753 In various forms this maxim has been repeated to such an

extent that it has become trite, and has increasingly come to be

incorporated in cases in which a finding of unconstitutionality has

been made as a reassurance of the Court’s limited review. And it

should be noted that at times the Court has absorbed natural rights

doctrines into the text of the Constitution, so that it was able to

reject natural law per se and still partake of its fruits and the same

thing is true of the laissez faire principles incorporated in judicial

decisions from about 1890 to 1937.754

Presumption of Constitutionality.—“It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body,

by which any law is passed,” wrote Justice Bushrod Washington,

“to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt.” 755 A corollary of this

maxim is that if the constitutional question turns upon circumstances, courts will presume the existence of a state of facts which

would justify the legislation that is challenged.756 It seems apparent, however, that with regard to laws which trench upon First Amendment freedoms and perhaps other rights guaranteed by the Bill of

752 “We fully understand . . . the powerful argument that can be made against

the wisdom of this legislation, but on that point we have no concern.” Noble State

Bank v. Haskell, 219 U.S. 104 (1911) (Justice Holmes for the Court). See also Trop

v. Dulles, 356 U.S. 86, 120 (1958) (Justice Frankfurter dissenting).

A supposedly hallowed tenet is that the Court will not look to the motives of

legislators in determining the validity of a statute. Fletcher v. Peck, 10 U.S. (6 Cr.)

87 (1810); United States v. O’Brien, 391 U.S. 367 (1968); Palmer v. Thompson, 403

U.S. 217 (1971). Yet an intent to discriminate is a requisite to finding at least some

equal protection violations, Washington v. Davis, 426 U.S. 229 (1976); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977), and a secular or religious purpose is one of the parts of the tripartite test under the Establishment Clause. Committee for Pub. Educ. and Religious Liberty v. Regan, 444 U.S.

646, 653 (1980), and id. at 665 (dissent). Other constitutional decisions have also

turned upon the Court’s assessment of purpose or motive. E.g., Gomillion v. Lightfoot,

364 U.S. 339 (1960); Child Labor Tax Case, 259 U.S. 20 (1922).

753 Cf. Griswold v. Connecticut, 381 U.S. 479, 522 (1965) (Justice Black dissenting). But note above the reference to the ethical mode of constitutional argument.

754 E.g., Lochner v. New York, 198 U.S. 45 (1905); United States v. Butler, 297

U.S. 1 (1936).

755 Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 270 (1827). See also Fletcher v.

Peck, 10 U.S. (6 Cr.) 87, 128 (1810); Legal Tender Cases (Knox v. Lee), 79 U.S. (12

Wall.) 457, 531 (1871).

756 Munn v. Illinois, 94 U.S. 113, 132 (1877); Lindsley v. Natural Carbonic Gas

Co., 220 U.S. 61, 78–79 (1911); Metropolitan Cas. Ins. Co. v. Brownell, 294 U.S. 580,

584 (1935).

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ART. III—JUDICIAL DEPARTMENT 797
Rights such deference is far less than it would be toward statutory

regulation of economic matters.757

Disallowance by Statutory Interpretation.—If it is possible

to construe a statute so that its validity can be sustained against a

constitutional attack, a rule of prudence is that it should be so construed,758 even though in some instances this “constitutional doubt”

maxim has caused the Court to read a statute in a manner that

defeats or impairs the legislative purpose.759 Of course, the Court

stresses that “[w]e cannot press statutory construction ‘to the point

of disingenuous evasion’ even to avoid a constitutional question.” 760 The maxim is not followed if the provision would survive

constitutional attack or if the text is clear.761 Closely related to this

principle is the maxim that, when part of a statute is valid and

part is void, the courts will separate the valid from the invalid and

save as much as possible.762 Statutes today ordinarily expressly provide for separability, but it remains for the courts in the last resort

to determine whether the provisions are separable.763

Stare Decisis in Constitutional Law.—Adherence to precedent ordinarily limits and shapes the approach of courts to decision of a presented question. “Stare decisis is usually the wise policy,

because in most matters it is more important that the applicable

rule of law be settled than that it be settled right . . . . This is com757 E.g., United States v. Robel, 389 U.S. 258 (1967); United Mine Workers v.

Illinois State Bar Ass’n, 389 U.S. 217 (1967). But see McGowan v. Maryland, 366

U.S. 420, 426 (1961). The development of the “compelling state interest” test in certain areas of equal protection litigation also bespeaks less deference to the legislative judgment.

758 United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994); Rust v. Sullivan, 500 U.S. 173, 190–91 (1991); Public Citizen v. Department of Justice, 491 U.S.

440, 465–67 (1989) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)); Edward J.

DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S.

568, 575 (1988); Bond v. United States, 572 U.S. ___, No. 12–158, slip op. (2014).

759 E.g., Michaelson v. United States, 266 U.S. 42 (1924) (narrow construction

of Clayton Act contempt provisions to avoid constitutional questions); United States

v. Harriss, 347 U.S. 612 (1954) (lobbying act); United States v. Seeger, 380 U.S. 163

(1965): Welsh v. United States, 398 U.S. 333 (1970) (both involving conscientious

objection statute).

760 United States v. Locke, 471 U.S. 84, 96 (1984) (quoting Moore Ice Cream Co.

v. Rose, 289 U.S. 373, 379 (1933)).

761 Rust v. Sullivan, 500 U.S. 173, 191 (1991); but compare id. at 204–07 (Justice Blackmun dissenting), and 223–225 (Justice O’Connor dissenting). See also Peretz

v. United States, 501 U.S. 923, 929–930 (1991).

762 Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Pollock v. Farmers’

Loan & Trust Co., 158 U.S. 601, 635 (1895); but see Baldwin v. Franks, 120 U.S.

678, 685 (1887), now repudiated. Griffin v. Breckenridge, 403 U.S. 88, 104 (1971). In

Kimbrough v. United States, 128 S. Ct. 558, 577 (2007), Justice Thomas, dissenting,

referred to “our longstanding presumption of the severability of unconstitutional applications of statutory provisions.”

763 Carter v. Carter Coal Co., 298 U.S. 238, 312–16 (1936). See also, id. at 321–24

(Chief Justice Hughes dissenting).

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798 ART. III—JUDICIAL DEPARTMENT
monly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving

the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the

force of better reasoning, recognizing that the process of trial and

error, so fruitful in the physical sciences, is appropriate also in the

judicial function.” 764 Stare decisis is a principle of policy, not a mechanical formula of adherence to the latest decision “however recent and questionable, when such adherence involves collision with

a prior doctrine more embracing in its scope, intrinsically sounder,

and verified by experience.” 765 The limitation of stare decisis seems

764 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–408 (1932) (Justice

Brandeis dissenting). For recent arguments with respect to overruling or not overruling previous decisions, see the self-consciously elaborate opinion for a plurality

in Planned Parenthood v. Casey, 505 U.S. 833, 854–69 (1992) (Justices O’Connor,

Kennedy, and Souter) (acknowledging that as an original matter they would not have

decided Roe v. Wade, 410 U.S. 113 (1973), as the Court did and that they might

consider it wrongly decided, but nonetheless applying the principles of stare decisis—

they stressed the workability of the case’s holding, the fact that no other line of

precedent had undermined Roe, the vitality of that case’s factual underpinnings, the

reliance on the precedent in society, and the effect upon the Court’s legitimacy of

maintaining or overruling the case). See id. at 953–66 (Chief Justice Rehnquist concurring in part and dissenting in part), 993–1001 (Justice Scalia concurring in part

and dissenting in part). See also Payne v. Tennessee, 501 U.S. 808, 827–30 (1991)

(suggesting, inter alia, that reliance is relevant in contract and property cases), and

id. at 835, 842–44 (Justice Souter concurring), 844, 848–56 (Justice Marshall dissenting).

765 Helvering v. Hallock, 309 U.S. 106, 110 (1940) (Justice Frankfurter for Court).

See also Coleman v. Alabama, 399 U.S. 1, 22 (1970) (Chief Justice Burger dissenting). But see id. at 19 (Justice Harlan concurring in part and dissenting in part);

Williams v. Florida, 399 U.S. 78, 117–119 (1970) (Justice Harlan concurring in part

and dissenting in part). Recent discussions of and both applications of and refusals

to apply stare decisis may be found in Hohn v. United States, 524 U.S. 236, 251–52

(1998), and id. at 260–63 (Justice Scalia dissenting); State Oil Co. v. Khan, 522 U.S.

3, 20–2 (1997); Agostini v. Felton, 521 U.S. 203, 235–36 (1997), and id. at 523–54

(Justice Souter dissenting); United States v. IBM Corp., 517 U.S. 843, 854–56 (1996)

(noting principles of following precedent and declining to consider overturning an

old precedent when parties have not advanced arguments on the point), with which

compare id. at 863 (Justice Kennedy dissenting) (arguing that the United States had

presented the point and that the old case ought to be overturned); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (plurality opinion) (discussing stare decisis,

citing past instances of overrulings, and overruling 1990 decision), with which compare the dissents, id. at 242, 264, 271; Seminole Tribe of Florida v. Florida, 517 U.S.

44, 61–73 (1996) (discussing policy of stare decisis, why it should not be followed

with respect to a 1989 decision, and overruling that precedent), with which compare

the dissents, id. at 76, 100. Justices Scalia and Thomas have argued for various

departures from precedent. E.g., Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514

U.S. 175, 200–01 (1995) (Justice Scalia concurring) (negative commerce jurisprudence); Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604, 631 (1996) (Justice Thomas concurring in part and dissenting in part) (rejecting framework of Buckley

v. Valeo and calling for overruling of part of case). Compare id. at 626 (Court notes

those issues not raised or argued).

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ART. III—JUDICIAL DEPARTMENT 799
to have been progressively weakened since the Court proceeded to

correct “a century of error” in Pollock v. Farmers’ Loan & Trust Co.766

Since then, more than 200 decisions have been overturned,767 and

the merits of stare decisis seem more often celebrated in dissents

than in majority opinions.768 Of lesser formal effect than outright

overruling but with roughly the same result is a Court practice of

“distinguishing” precedents, which often leads to an overturning of

the principle enunciated in a case while leaving the actual case more

or less alive.769

Conclusion.—The common denominator of all these maxims of

prudence is the concept of judicial restraint. “We do not sit,” said

Justice Frankfurter, “like a kadi under a tree dispensing justice according to considerations of individual expediency.” 770 “[A] jurist is

not to innovate at pleasure,” wrote Justice Cardozo. “He is not a

knight-errant, roaming at will in pursuit of his own ideal of beauty

or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by

tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life.” 771

All Justices will, of course, claim adherence to proper restraint,772

but in some cases at least, such as Justice Frankfurter’s dissent in

the Flag Salute Case,

773 the practice can be readily observed. The

degree of restraint, however, the degree to which legislative enact766 157 U.S. 429, 574–579 (1895).

767 See Appendix. The list encompasses both constitutional and statutory interpretation decisions. The Court adheres, at least formally, to the principle that stare

decisis is a stricter rule for statutory interpretation, Patterson v. McLean Credit Union,

491 U.S. 164, 171–175 (1989), at least in part since Congress may much more easily revise those decisions, but compare id. at 175 n.1, with id. at 190–205 (Justice

Brennan concurring in the judgment in part and dissenting in part). See also Flood

v. Kuhn, 407 U.S. 258 (1972).

768 E.g., United States v. Rabinowitz, 339 U.S. 56, 86 (1950) (Justice Frankfurter dissenting); Baker v. Carr, 369 U.S. 186, 339–340 (1962) (Justice Harlan dissenting); Gray v. Sanders, 372 U.S. 368, 383 (1963) (Justice Harlan dissenting). But

see Green v. United States, 356 U.S. 165, 195 (1958) (Justice Black dissenting). Compare Justice Harlan’s views in Mapp v. Ohio, 367 U.S. 643 (1961) (dissenting), with

Glidden Co. v. Zdanok, 370 U.S. 530 (1962) (opinion of the Court).

769 Note that, in Planned Parenthood v. Casey, 505 U.S. 833 (1992), while the

Court purported to uphold and retain the “central meaning” of Roe v. Wade, it overruled several aspects of that case’s requirements. See also, e.g., the Court’s treatment of Pope v. Williams, 193 U.S. 621 (1904), in Dunn v. Blumstein, 405 U.S. 330,

337, n.7 (1972). See also id. at 361 (Justice Blackmun concurring.)

770 Terminiello v. City of Chicago, 337 U.S. 1, 11 (1949) (dissenting).

771 B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 141 (1921).

772 Compare Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (Justice Douglas), with id. at 507 (Justice Black).

773 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 646 (1943) (dissenting).

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800 ART. III—JUDICIAL DEPARTMENT
ments should be subjected to judicial scrutiny, is a matter of uncertain and shifting opinion

JURISDICTION OF SUPREME COURT AND INFERIOR

FEDERAL COURTS

Cases Arising Under the Constitution, Laws, and Treaties

of the United States

Cases arising under the Constitution are cases that require an

interpretation of the Constitution for their correct decision.774 They

arise when a litigant claims an actual or threatened invasion of his

constitutional rights by the enforcement of some act of public authority, usually an act of Congress or of a state legislature, and asks

for judicial relief. The clause furnishes the principal textual basis

for the implied power of judicial review of the constitutionality of

legislation and other official acts.

Development of Federal Question Jurisdiction.—Almost from

the beginning, the Convention demonstrated an intent to create “federal question” jurisdiction in the federal courts with regard to federal laws; 775 such cases involving the Constitution and treaties were

added fairly late in the Convention as floor amendments.776 But when

Congress enacted the Judiciary Act of 1789, it did not confer general federal question jurisdiction on the inferior federal courts, but

left litigants to remedies in state courts with appeals to the United

States Supreme Court if judgment went against federal constitutional claims.777 Although there were a few jurisdictional provisions enacted in the early years,778 it was not until the period following the Civil War that Congress, in order to protect newly created

federal civil rights and in the flush of nationalist sentiment, first

created federal jurisdiction in civil rights cases,779 and then in 1875

conferred general federal question jurisdiction on the lower federal

774 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 378 (1821).

775 M. Farrand, supra at 22, 211–212, 220, 244; 2 id. at 146–47, 186–87.

776 Id. at 423–24, 430, 431.

777 1 Stat. 73. The district courts were given cognizance of “suits for penalties

and forfeitures incurred, under the laws of the United States” and “of all causes

where an alien sues for a tort only in violation of the law of nations or a treaty of

the United States . . . .” Id. at 77. Plenary federal question jurisdiction was conferred by the Act of February 13, 1801,§ 11, 2 Stat. 92, but this law was repealed by

the Act of March 8, 1802, 2 Stat. 132. On § 25 of the 1789 Act, providing for appeals

to the Supreme Court from state court constitutional decisions, see supra.

778 Act of April 10, 1790, § 5, 1 Stat. 111, as amended, Act of February 21, 1793,

§ 6, 1 Stat. 322 (suits relating to patents). Limited removal provisions were also enacted.

779 Act of April 9, 1866, § 3, 14 Stat, 27; Act of May 31, 1870, § 8, 16 Stat. 142;

Act of February 28, 1871,§ 15, 16 Stat. 438; Act of April 20, 1871, §§ 2, 6, 17 Stat.

14, 15.

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ART. III—JUDICIAL DEPARTMENT 801
courts.780 Since that time, the trend generally has been toward conferral of ever-increasing grants of jurisdiction to enforce the guarantees recognized and enacted by Congress.781

When a Case Arises Under.—The 1875 statute and its present form both speak of civil suits “arising under the Constitution,

laws, or treaties of the United States,” 782 the language of the Constitution. Thus, many of the early cases relied heavily upon Chief

Justice Marshall’s construction of the constitutional language to interpret the statutory language.783 The result was probably to accept more jurisdiction than Congress had intended to convey.

784 Later

cases take a somewhat more restrictive course.

Determination whether there is federal question jurisdiction is

made on the basis of the plaintiff’s pleadings and not upon the response or the facts as they may develop.785 Plaintiffs seeking access to federal courts on this ground must set out a federal claim

which is “well-pleaded” and the claim must be real and substantial

and may not be without color of merit.786 Plaintiffs may not anticipate that defendants will raise a federal question in answer to the

action.787 But what exactly must be pleaded to establish a federal

question is a matter of considerable uncertainty in many cases. It

is no longer the rule that, when federal law is an ingredient of the

claim, there is a federal question.788

780 Act of March 3, 1875, § 1, 18 Stat. 470, now 28 U.S.C. § 1331(a). The classic

treatment of the subject and its history is F. Frankfurter & J. Landis, supra.

781 For a brief summary, see Hart & Wechsler (6th ed.), supra at 743–748.

782 28 U.S.C. § 1331(a). The original Act was worded slightly differently.

783 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). See also

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 379 (1821).

784 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS § 17 (4th ed. 1983).

785 See generally Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804

(1986); Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983).

786 Newburyport Water Co. v. City of Newburyport, 193 U.S. 561, 576 (1904);

Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); Binderup v. Pathe

Exchange, 263 U.S. 291, 305–308 (1923). If the complaint states a case arising under the Constitution or federal law, then federal jurisdiction exists even though on

the merits the party may have no federal right. In such a case, the proper course

for the court is to dismiss for failure to state a claim on which relief can be granted

rather than for want of jurisdiction. Bell v. Hood, 327 U.S. 678 (1946). Of course,

dismissal for lack of jurisdiction is proper if the federal claim is frivolous or obviously insubstantial. Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933).

787 Louisville & N.R.R. v. Mottley, 211 U.S. 149 (1908). See Skelly Oil Co. v.

Phillips Petroleum Co., 339 U.S. 667 (1950); Phillips Petroleum Co. v. Texaco, Inc.,

415 U.S. 125 (1974).

788 Such was the rule derived from Osborn v. Bank of the United States, 22 U.S.

(9 Wheat.) 738 (1824). See Franchise Tax Board v. Construction Laborers Vacation

Trust, 463 U.S. 1 (1983); Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S.

804 (1986).

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802 ART. III—JUDICIAL DEPARTMENT
Many suits will present federal questions because a federal law

creates the action.789 Perhaps Justice Cardozo presented the most

understandable line of definition, while cautioning that “[t]o define

broadly and in the abstract ‘a case arising under the Constitution

or laws of the United States’ has hazards [approaching futility].” 790

How and when a case arises ‘under the Constitution or laws of the

United States’ has been much considered in the books. Some tests

are well established. To bring a case within the statute, a right or

immunity created by the Constitution or laws of the United States

must be an element, and an essential one, of the plaintiff’s cause

of action. . . . The right or immunity must be such that it will be

supported if the Constitution or laws of the United States are given

one construction or effect, and defeated if they receive another. . . .

A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto. . . . 791

It was long evident, though the courts were not very specific

about it, that the federal question jurisdictional statute is and always was narrower than the constitutional “arising under” jurisdictional standard.792 Chief Justice Marshall in Osborn was interpreting the Article III language to its utmost extent, but the courts

sometimes construed the statute equivalently, with doubtful results.793

Removal From State Court to Federal Court.—A limited right

to “remove” certain cases from state courts to federal courts was

granted to defendants in the Judiciary Act of 1789,794 and from then

to 1872 Congress enacted several specific removal statutes, most of

them prompted by instances of state resistance to the enforcement

of federal laws through harassment of federal officers.795 The 1875

Act conferring general federal question jurisdiction on the federal

789 American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916).

Compare Albright v. Teas, 106 U.S. 613 (1883), and People of Puerto Rico v. Russell

& Co., 288 U.S. 476 (1933), with Feibelman v. Packard, 109 U.S. 421 (1883), and

The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913).

790 Gully v. First National Bank in Meridian, 299 U.S. 109, 117 (1936).

791 299 U.S. at 112–13. Compare Wheeldin v. Wheeler, 373 U.S. 647 (1963), with

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). See also J. I. Case Co.

v. Borak, 377 U.S. 426 (1964); Smith v. Kansas City Title & Trust Co., 255 U.S. 180

(1921).

792 For an express acknowledgment, see Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 495 (1983). See also Shoshone Mining Co. v. Rutter, 177 U.S. 505

(1900); Romero v. International Terminal Operating Co., 358 U.S. 354, 379 n.51 (1959).

793 E.g., Pacific R.R. Removal Cases, 115 U.S. 1 (1885); see also id. at 24 (Chief

Justice Waite dissenting).

794 § 12, 1 Stat. 79.

795 The first was the Act of February 4, 1815, § 8, 3 Stat. 198. The series of

statutes is briefly reviewed in Willingham v. Morgan, 395 U.S. 402, 405–406 (1969),

and in Hart & Wechsler (6th ed.), supra at 396–398. See 28 U.S.C. §§ 1442, 1442a.

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 803
courts provided for removal of such cases by either party, subject

only to the jurisdictional amount limitation.796 The present statute

provides for the removal by a defendant of any civil action which

could have been brought originally in a federal district court, with

no diversity of citizenship required in “federal question” cases.797 A

special civil rights removal statute permits removal of any civil or

criminal action by a defendant who is denied or cannot enforce in

the state court a right under any law providing for equal civil rights

of persons or who is being proceeded against for any act under color

of authority derived from any law providing for equal rights.798

The constitutionality of removal statutes was challenged and readily sustained. Justice Story analogized removal to a form of exercise of appellate jurisdiction,799 and a later Court saw it as an indirect mode of exercising original jurisdiction and upheld its

constitutionality.800 In Tennessee v. Davis,

801 which involved a state

attempt to prosecute a federal internal revenue agent who had killed

a man while seeking to seize an illicit distilling apparatus, the Court

invoked the right of the national government to defend itself against

state harassment and restraint. The power to provide for removal

was discerned in the Necessary and Proper Clause authorization to

Congress to pass laws to carry into execution the powers vested in

any other department or officer, here the judiciary.802 The judicial

power of the United States, said the Court, embraces alike civil and

criminal cases arising under the Constitution and laws and the power

asserted in civil cases may be asserted in criminal cases. A case

arising under the Constitution and laws “is not merely one where

a party comes into court to demand something conferred upon him

by the Constitution or by a law or treaty. A case consists of the

right of one party as well as the other, and may truly be said to

arise under the Constitution or a law or a treaty of the United States

whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as

grow out of the legislation of Congress, whether they constitute the

796 Act of March 3, 1875, § 2, 18 Stat. 471. The present pattern of removal jurisdiction was established by the Act of March 3, 1887, 24 Stat. 552, as amended, 25

Stat. 433.

797 28 U.S.C. § 1441.

798 28 U.S.C. § 1443.

799 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 347–351 (1816). Story

was not here concerned with the constitutionality of removal but with the constitutionality of Supreme Court review of state judgments.

800 Chicago & N.W. Ry. v. Whitton’s Administrator, 80 U.S. (13 Wall.) 270 (1872).

Removal here was based on diversity of citizenship. See also The Moses Taylor, 71

U.S. (4 Wall.) 411, 429–430 (1867); The Mayor v. Cooper, 73 U.S. (6 Wall.) 247 (1868).

801 100 U.S. 257 (1880).

802 100 U.S. at 263–64.

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804 ART. III—JUDICIAL DEPARTMENT
right or privilege, or claim or protection, or defense of the party, in

whole or in part, by whom they are asserted. . . .”

“The constitutional right of Congress to authorize the removal

before trial of civil cases arising under the laws of the United States

has long since passed beyond doubt. It was exercised almost contemporaneously with the adoption of the Constitution, and the power

has been in constant use ever since. The Judiciary Act of September 24, 1789, was passed by the first Congress, many members of

which had assisted in framing the Constitution; and though some

doubts were soon after suggested whether cases could be removed

from state courts before trial, those doubts soon disappeared.” 803

The Court has broadly construed the modern version of the removal statute at issue in this case so that it covers all cases where

federal officers can raise a colorable defense arising out of their duty

to enforce federal law.804 Other removal statutes, notably the civil

rights removal statute, have not been so broadly interpreted.805

Corporations Chartered by Congress.—In Osborn v. Bank of

the United States,

806 Chief Justice Marshall seized upon the authorization for the Bank to sue and be sued as a grant by Congress to

the federal courts of jurisdiction in all cases to which the bank was

a party.807 Consequently, upon enactment of the 1875 law, the door

was open to other federally chartered corporations to seek relief in

federal courts. This opportunity was made actual when the Court

in the Pacific R.R. Removal Cases 808 held that tort actions against

railroads with federal charters could be removed to federal courts

solely on the basis of federal incorporation. In a series of acts, Congress deprived national banks of the right to sue in federal court

803 100 U.S. at 264–65.

804 Willingham v. Morgan, 395 U.S. 402 (1969). See also Maryland v. Soper, 270

U.S. 9 (1926). Removal by a federal officer must be predicated on the allegation of a

colorable federal defense. Mesa v. California, 489 U.S. 121 (1989). However, a federal agency is not permitted to remove under the statute’s plain meaning. International Primate Protection League v. Tulane Educ. Fund, 500 U.S. 72 (1991).

805 Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood v. Peacock, 384

U.S. 808 (1966); Johnson v. Mississippi, 421 U.S. 213 (1975).

806 22 U.S. (9 Wheat.) 738 (1824).

807 The First Bank could not sue because it was not so authorized. Bank of the

United States v. Deveaux, 9 U.S. (5 Cr.) 61 (1809). The language, which Marshall

interpreted as conveying jurisdiction, was long construed simply to give a party the

right to sue and be sued without itself creating jurisdiction, Bankers Trust Co. v.

Texas & P. Ry., 241 U.S. 295 (1916), but, in American National Red Cross v. S. G.,

505 U.S. 247 (1992), a 5-to-4 decision, the Court held that, when a federal statutory

charter expressly mentions the federal courts in its “sue and be sued” provision, the

charter creates original federal-question jurisdiction as well, although a general authorization to sue and be sued in courts of general jurisdiction, including federal

courts, without expressly mentioning them, does not confer jurisdiction.

808 115 U.S. 1 (1885).

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ART. III—JUDICIAL DEPARTMENT 805
solely on the basis of federal incorporation in 1882,809 deprived railroads holding federal charters of this right in 1915,810 and finally

in 1925 removed from federal jurisdiction all suits brought by federally chartered corporations on the sole basis of such incorporation, except where the United States holds at least half of the stock.811

Federal Questions Resulting from Special Jurisdictional

Grants.—In the Labor-Management Relations Act of 1947, Congress authorized federal courts to entertain suits for violation of collective bargaining agreements without respect to the amount in controversy or the citizenship of the parties.812 Although it is likely that

Congress meant no more than that labor unions could be suable in

law or equity, in distinction from the usual rule, the Court construed the grant of jurisdiction to be more than procedural and to

empower federal courts to apply substantive federal law, divined and

fashioned from the policy of national labor laws, in such suits.813

State courts are not disabled from hearing actions brought under

the section,814 but they must apply federal law.815 Developments under this section illustrate the substantive importance of many jurisdictional grants and indicate how the workload of the federal courts

may be increased by unexpected interpretations of such grants.816

809 § 4, 22 Stat. 162.

810 § 5, 38 Stat. 803.

811 See 28 U.S.C. § 1349.

812 § 301, 61 Stat. 156 (1947), 29 U.S.C. § 185.

813 Textile Workers of America v. Lincoln Mills, 353 U.S. 448 (1957). Earlier the

Court had given the section a restricted reading in Association of Employees v.

Westinghouse Electric Corp., 348 U.S. 437 (1955), at least in part because of constitutional doubts that § 301 cases in the absence of diversity of citizenship presented

a federal question sufficient for federal jurisdiction. Id. at 449–52, 459–61 (opinion

of Justice Frankfurter). In Lincoln Mills, the Court resolved this difficulty by ruling

that federal law was at issue in § 301 suits and thus cases arising under § 301 presented federal questions. 353 U.S. at 457. The particular holding of Westinghouse,

that no jurisdiction exists under § 301 for suits to enforce personal rights of employees claiming unpaid wages, was overturned in Smith v. Evening News Ass’n, 371

U.S. 195 (1962).

814 Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962).

815 Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962). State law is not, however,

to be totally disregarded. “State law, if compatible with the purpose of § 301, may

be resorted to in order to find the rule that will best effectuate the federal policy

. . . . Any state law applied, however, will be absorbed as federal law and will not

be an independent source of private rights.” Textile Workers Union v. Lincoln Mills,

353 U.S. 448, 457 (1957).

816 For example, when federal regulatory statutes create new duties without explicitly creating private federal remedies for their violation, the readiness or unreadiness of the federal courts to infer private causes of action is highly significant. Although inference is an acceptable means of judicial enforcement of statutes, e.g., Texas

& Pacific Ry. v. Rigsby, 241 U.S. 33 (1916), the Court began broadly to construe

statutes to infer private actions only with J. I. Case Co. v. Borak, 377 U.S. 426 (1964).

See Cort v. Ash, 422 U.S. 66 (1975). More recently, influenced by a separation of

powers critique of implication by Justice Powell, the Court drew back and asserted

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

806 ART. III—JUDICIAL DEPARTMENT
Civil Rights Act Jurisdiction.—Perhaps the most important

of the special federal question jurisdictional statutes is that conferring jurisdiction on federal district courts to hear suits challenging

the deprivation under color of state law or custom of any right, privilege, or immunity secured by the Constitution or by any act of Congress providing for equal rights.817 Because it contains no jurisdicthat it will infer an action only in instances of fairly clear congressional intent. Cannon v. University of Chicago, 441 U.S. 677 (1979); California v. Sierra Club, 451

U.S. 287 (1981); Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n,

453 U.S. 1 (1981); Merrill, Lynch v. Curran, 456 U.S. 353 (1982); Thompson v. Thompson, 484 U.S. 174 (1988); Karahalios v. National Fed’n of Fed. Employees, 489 U.S.

527 (1989).

The Court appeared more ready to infer private causes of action for constitutional violations, Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); Davis

v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980), but it has

retreated here as well, refusing to apply Bivens when “any alternative, existing process for protecting the interest” that is threatened exists, or when “any special factors counseling hesitation” are present. Wilkie v. Robbins, 551 U.S. 537, 550 (2007).

Accord Minneci v. Pollard, 565 U.S. ___, No. 10–1104, slip op. (2012) (state tort law

provided alternative, if not wholly congruent, process for protecting constitutional

interests of a prisoner allegedly abused by private prison guards). See also Chappell

v. Wallace, 462 U.S. 296, 298 (1983); Bush v. Lucas, 462 U.S. 367 (1983); Schweiker

v. Chilicki, 487 U.S. 412 (1988); FDIC v. Meyer, 510 U.S. 471 (1994); Correctional

Services Corp. v. Malesko, 534 U.S. 61 (2001).

“Federal common law” may exist in a number of areas where federal interests

are involved and federal courts may take cognizance of such suits under their “arising under” jurisdiction. E.g., Illinois v. City of Milwaukee, 406 U.S. 91 (1972); International Paper Co. v. Ouellette, 479 U.S. 481 (1987). See also County of Oneida v.

Oneida Indian Nation, 470 U.S. 226, 236–240 (1985); National Farmers Union Ins.

Cos. v. Crow Tribe, 471 U.S. 845 (1985). The Court is, however, somewhat wary of

finding “federal common law” in the absence of some congressional authorization to

formulate substantive rules, Texas Industries v. Radcliff Materials, 451 U.S. 630 (1981),

and Congress may always statutorily displace the judicially created law. City of Milwaukee v. Illinois, 451 U.S. 304 (1981). Finally, federal courts have federal question

jurisdiction of claims created by state law if there exists an important necessity for

an interpretation of an act of Congress. Smith v. Kansas City Title & Trust Co., 255

U.S. 180 (1921).

817 28 U.S.C. § 1343(3). The cause of action to which this jurisdictional grant

applies is 42 U.S.C. § 1983, making liable and subject to other redress any person

who, acting under color of state law, deprives any person of any rights, privileges,

or immunities secured by the Constitution and laws of the United States. For discussion of the history and development of these two statutes, see Monroe v. Pape,

365 U.S. 167 (1961); Lynch v. Household Finance Corp., 405 U.S. 538 (1972); Monell

v. New York City Dep’t of Social Services, 436 U.S. 658 (1978); Chapman v. Houston

Welfare Rights Org., 441 U.S. 600 (1979); Maine v. Thiboutot, 448 U.S. 1 (1980).

Although the two statutes originally had the same wording in respect to “the Constitution and laws of the United States,” when the substantive and jurisdictional

aspects were separated and codified, § 1983 retained the all-inclusive “laws” provision, while § 1343(3) read “any Act of Congress providing for equal rights.” The Court

has interpreted the language of the two statutes literally, so that while claims under laws of the United States need not relate to equal rights but may encompass

welfare and regulatory laws, Maine v. Thiboutot; but see Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 1 (1981), such suits if they do

not spring from an act providing for equal rights may not be brought under § 1343(3).

Chapman v. Houston Welfare Rights Org., supra. This was important when there

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 807
tional amount provision818 (while the general federal question statute

at one time did) 819 and because the Court has held inapplicable the

judicially created requirement that a litigant exhaust his state remedies before bringing federal action,820 the statute has been heavily

used, resulting in a formidable caseload, by plaintiffs attacking racial discrimination, malapportionment and suffrage restrictions, illegal and unconstitutional police practices, state restrictions on access to welfare and other public assistance, and a variety of other

state and local governmental practices.821 Congress has encouraged use of the two statutes by providing for attorneys’ fees under

§ 1983,822 and by enacting related and specialized complementary

statutes.823 The Court in recent years has generally interpreted § 1983

and its jurisdictional statute broadly, but it has also sought to restrict the kinds of claims that may be brought in federal courts.824

Note that § 1983 and § 1343(3) need not always go together, as § 1983

actions may be brought in state courts.825

Pendent Jurisdiction.—Once jurisdiction has been acquired

through allegation of a federal question not plainly wanting in substance,826 a federal court may decide any issue necessary to the disposition of a case, notwithstanding that other non-federal queswas a jurisdictional amount provision in the federal question statute but is of little

significance today.

818 See Hague v. CIO, 307 U.S. 496 (1939). Following Hague, it was argued that

only cases involving personal rights, that could not be valued in dollars, could be

brought under § 1343(3), and that cases involving property rights, which could be so

valued, had to be brought under the federal question statute. This attempted distinction was rejected in Lynch v. Household Finance Corp., 405 U.S. 538, 546–48 (1972).

On the valuation of constitutional rights, see Carey v. Piphus, 435 U.S. 247 (1978).

See also Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986) (compensatory damages must be based on injury to the plaintiff, not on some abstract valuation of constitutional rights).

819 28 U.S.C. § 1331 was amended in 1976 and 1980 to eliminate the jurisdictional amount requirement. Pub. L. 94–574, 90 Stat. 2721; Pub. L. 96–486, 94 Stat.

2369.

820 Patsy v. Florida Board of Regents, 457 U.S. 496 (1982). This had been the

rule since at least McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963). See also

Felder v. Casey, 487 U.S. 131 (1988) (state notice of claim statute, requiring notice

and waiting period before bringing suit in state court under § 1983, is preempted).

821 Thus, such notable cases as Brown v. Board of Education, 347 U.S. 483 (1954),

and Baker v. Carr, 369 U.S. 186 (1962), arose under the statutes.

822 Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. 94–559, 90 Stat.

2641, amending 42 U.S.C. § 1988. See Hutto v. Finney, 437 U.S. 678 (1978); Maine

v. Thiboutot, 448 U.S. 1 (1980).

823 E.g., Civil Rights of Institutionalized Persons Act, Pub. L. 96–247, 94 Stat.

349 (1980), 42 U.S.C. §§ 1997 et seq.

824 E.g., Parratt v. Taylor, 451 U.S. 527 (1981); Ingraham v. Wright, 430 U.S.

651 (1977).

825 Maine v. Thiboutot, 448 U.S. 1 (1980).

826 Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); Hagans v.

Lavine, 415 U.S. 528, 534–543 (1974).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

808 ART. III—JUDICIAL DEPARTMENT
tions of fact and law may be involved therein.827 “Pendent jurisdiction,”

as this form is commonly called, exists whenever the state and federal claims “derive from a common nucleus of operative fact” and

are such that a plaintiff “would ordinarily be expected to try them

all in one judicial proceeding.” 828 Ordinarily, it is a rule of prudence that federal courts should not pass on federal constitutional

claims if they may avoid it and should rest their conclusions upon

principles of state law where possible.829 But the federal court has

discretion whether to hear the pendent state claims in the proper

case. Thus, the trial court should look to “considerations of judicial

economy, convenience and fairness to litigants” in exercising its discretion and should avoid needless decisions of state law. If the federal claim, though substantial enough to confer jurisdiction, was dismissed before trial, or if the state claim substantially predominated,

the court would be justified in dismissing the state claim.830

A variant of pendent jurisdiction, sometimes called “ancillary

jurisdiction,” is the doctrine allowing federal courts to acquire jurisdiction entirely of a case presenting two federal issues, although it

might properly not have had jurisdiction of one of the issues if it

had been independently presented.831 Thus, in an action under a

federal statute, a compulsory counterclaim not involving a federal

question is properly before the court and should be decided.832 The

concept has been applied to a claim otherwise cognizable only in

admiralty when joined with a related claim on the law side of the

federal court, and in this way to give an injured seaman a right to

jury trial on all of his claims when ordinarily the claim cognizable

827 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 822–28 (1824);

Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175 (1909); Hurn v. Oursler, 289

U.S. 238 (1933); United Mine Workers v. Gibbs, 383 U.S. 715 (1966).

828 Osborn v. Bank, 22 U.S. at 725. This test replaced a difficult-to-apply test of

Hurn v. Oursler, 289 U.S. 238, 245–46 (1933). See also Kokkonen v. Guardian Life

Ins. Co., 511 U.S. 375 (1994); Peacock v. Thomas, 516 U.S. 349 (1996) (both cases

using the new vernacular of “ancillary jurisdiction”).

829 Siler v. Louisville & Nashville R. Co., 213 U.S. 175 (1909); Greene v. Louisville & Interurban R.R., 244 U.S. 499 (1917); Hagans v. Lavine, 415 U.S. 528, 546–

550 (1974). In fact, it may be an abuse of discretion for a federal court to fail to

decide on an available state law ground instead of reaching the federal constitutional question. Schmidt v. Oakland Unified School Dist., 457 U.S. 594 (1982) (per

curiam). However, narrowing previous law, the Court held in Pennhurst State School

& Hosp. v. Halderman, 465 U.S. 89 (1984), held that, when a pendent claim of state

law involves a claim that is against a state for purposes of the Eleventh Amendment, federal courts may not adjudicate it.

830 United Mine Workers v. Gibbs, 383 U.S. 715, 726–27 (1966).

831 The initial decision was Freeman v. Howe, 65 U.S. (24 How.) 450 (1861), in

which federal jurisdiction was founded on diversity of citizenship.

832 Moore v. New York Cotton Exchange, 270 U.S. 593 (1926).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 809
only in admiralty would be tried without a jury.833 And a colorable

constitutional claim has been held to support jurisdiction over a federal statutory claim arguably not within federal jurisdiction.834

Still another variant is the doctrine of “pendent parties,” under

which a federal court could take jurisdiction of a state claim against

one party if it were related closely enough to a federal claim against

another party, even though there was no independent jurisdictional base for the state claim.835 Although the Supreme Court at

first tentatively found some merit in the idea,836 in Finley v. United

States,

837 by a 5-to-4 vote the Court firmly disapproved of the pendent party concept and cast considerable doubt on the other prongs

of pendent jurisdiction as well. Pendent party jurisdiction, Justice

Scalia wrote for the Court, was within the constitutional grant of

judicial power, but to be operable it must be affirmatively granted

by congressional enactment.838 Within the year, Congress supplied

the affirmative grant, adopting not only pendent party jurisdiction

but also codifying pendent jurisdiction and ancillary jurisdiction under the name of “supplemental jurisdiction.” 839

Thus, these interrelated doctrinal standards now seem wellgrounded.

Protective Jurisdiction.—A conceptually difficult doctrine, which

approaches the verge of a serious constitutional gap, is the concept

of protective jurisdiction. Under this doctrine, it is argued that in

instances in which Congress has legislative jurisdiction, it can confer federal jurisdiction, with the jurisdictional statute itself being

the “law of the United States” within the meaning of Article III,

even though Congress has enacted no substantive rule of decision

and state law is to be applied. Put forward in controversial cases,840

the doctrine has neither been rejected nor accepted by the Su833 Romero v. International Terminal Operating Co., 358 U.S. 354, 380–81 (1959);

Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963).

834 Rosado v. Wyman, 397 U.S. 397, 400–05 (1970).

835 Judge Friendly originated the concept in Astor-Honor, Inc. v. Grosset & Dunlap,

Inc., 441 F.2d 627 (2d Cir. 1971); Leather’s Best, Inc. v. S. S. Mormaclynx, 451 F.2d

800 (2d Cir. 1971).

836 Aldinger v. Howard, 427 U.S. 1 (1976).

837 490 U.S. 545 (1989).

838 490 U.S. at 553, 556.

839 Act of Dec. 1, 1990, Pub. L. 101–650, 104 Stat. 5089, § 310, 28 U.S.C. § 1367.

In City of Chicago v. International College of Surgeons, 522 U.S. 156 (1998), the

Court, despite the absence of language making § 1367 applicable, held that the statute gave district courts jurisdiction over state-law claims in cases originating in state

court and then removed to federal court.

840 National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949); Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957); see also the bankruptcy cases,

Schumacher v. Beeler, 293 U.S. 367 (1934), and Williams v. Austrian, 331 U.S. 642

(1947).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

810 ART. III—JUDICIAL DEPARTMENT
preme Court. In Verlinden B. V. v. Central Bank of Nigeria,

841 the

Court reviewed a congressional grant of jurisdiction to federal courts

to hear suits by an alien against a foreign state, jurisdiction not

within the “arising under” provision of article III. Federal substantive law was not applicable, that resting either on state or international law. Refusing to consider protective jurisdiction, the Court

found that the statute regulated foreign commerce by promulgating rules governing sovereign immunity from suit and was a law

requiring interpretation as a federal-question matter. That the doctrine does raise constitutional doubts is perhaps grounds enough to

avoid reaching it.842

Supreme Court Review of State Court Decisions.—In addition to the constitutional issues presented by § 25 of the Judiciary

Act of 1789 and subsequent enactments,843 questions have continued to arise concerning review of state court judgments which go

directly to the nature and extent of the Supreme Court’s appellate

jurisdiction. Because of the sensitivity of federal-state relations and

the delicate nature of the matters presented in litigation touching

upon them, jurisdiction to review decisions of a state court is dependent in its exercise not only upon ascertainment of the existence of

a federal question but upon a showing of exhaustion of state remedies and of the finality of the state judgment. Because the application of these standards to concrete facts is neither mechanical nor

nondiscretionary, the Justices have often been divided over whether

these requisites to the exercise of jurisdiction have been met in specific cases submitted for review by the Court.

The Court is empowered to review the judgments of “the highest court of a State in which a decision could be had.” 844 This will

ordinarily be the state’s court of last resort, but it could well be an

841 461 U.S. 480 (1983).

842 E.g., Mesa v. California, 489 U.S. 121, 136–37 (1989) (would present grave

constitutional problems).

843 On § 25, see “Judicial Review and National Supremacy,” supra. The present

statute is 28 U.S.C. § 1257(a), which provides that review by writ of certiorari is

available where the validity of a treaty or statute of the United States is drawn in

question or where the validity of a statute of any state is drawn in question on the

ground of its being repugnant to the Constitution, treaties, or laws of the United

States, or where any title, right, privilege, or immunity is specially set up or claimed

under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States. Prior to 1988, there was a right to mandatory appeal in cases in which a state court had found invalid a federal statute or

treaty or in which a state court had upheld a state statute contested under the Constitution, a treaty, or a statute of the United States. See the Act of June 25, 1948,

62 Stat. 929. The distinction between certiorari and appeal was abolished by the

Act of June 27, 1988, Pub. L. 100–352, § 3, 102 Stat. 662.

844 28 U.S.C. § 1257(a). See R. STERN & E. GRESSMAN, SUPREME COURT PRACTICE ch.

3 (6th ed. 1986).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 811
intermediate appellate court or even a trial court if its judgment is

final under state law and cannot be reviewed by any state appellate court.845 The review is of a final judgment below. “It must be

subject to no further review or correction in any other state tribunal; it must also be final as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein.

It must be the final word of a final court.”T846 The object of this

rule is to avoid piecemeal interference with state court proceedings; it promotes harmony by preventing federal assumption of a

role in a controversy until the state court efforts are finally resolved.847 For similar reasons, the Court requires that a party seeking to litigate a federal constitutional issue on appeal of a state court

judgment must have raised that issue with sufficient precision to

have enabled the state court to have considered it and she must

have raised the issue at the appropriate time below.848

When the judgment of a state court rests on an adequate, independent determination of state law, the Court will not review the

resolution of the federal questions decided, even though the resolution may be in error.849 “The reason is so obvious that it has rarely

been thought to warrant statement. It is found in the partitioning

of power between the state and Federal judicial systems and in the

limitations of our own jurisdiction. Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments,

not to revise opinions. We are not permitted to render an advisory

opinion, and if the same judgment would be rendered by the state

845 Grovey v. Townsend, 295 U.S. 45, 47 (1935); Talley v. California, 362 U.S.

60, 62 (1960); Thompson v. City of Louisville, 362 U.S. 199, 202 (1960); Metlakatla

Indian Community v. Egan, 363 U.S. 555 (1960); Powell v. Texas, 392 U.S. 514, 516,

517 (1968); Koon v. Aiken, 480 U.S. 943 (1987). In Cohens v. Virginia, 19 U.S. (6

Wheat.) 264 (1821), the judgment reviewed was that of the Quarterly Session Court

for the Borough of Norfolk, Virginia.

846 Market Street Ry. v. Railroad Comm’n, 324 U.S. 548, 551 (1945). See also

San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621 (1981); Flynt v.

Ohio, 451 U.S. 619 (1981); Minnick v. California Dep’t of Corrections, 452 U.S. 105

(1981); Florida v. Thomas, 532 U.S. 774 (2001). The Court has developed a series of

exceptions permitting review when the federal issue in the case has been finally

determined but there are still proceedings to come in the lower state courts. Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 476–487 (1975). See also Fort Wayne Books,

Inc. v. Indiana, 489 U.S. 46 (1989); Duquesne Light Co. v. Barasch, 488 U.S. 299,

304 (1989); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 n.42 (1982).

847 Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 67–69 (1948); Radio Station WOW v. Johnson, 326 U.S. 120, 123–24 (1945).

848 New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67 (1928); See also Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 77 (1988); Webb v. Webb, 451

U.S. 493, 501 (1981). The same rule applies on habeas corpus petitions. E.g., Picard

v. Connor, 404 U.S. 270 (1972).

849 Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1874); Black v. Cutter

Laboratories, 351 U.S. 292 (1956); Wilson v. Loew’s, Inc., 355 U.S. 597 (1958).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

812 ART. III—JUDICIAL DEPARTMENT
court after we corrected its views of Federal laws, our review could

amount to nothing more than an advisory opinion.” 850 The Court is

faced with two interrelated decisions: whether the state court judgment is based upon a nonfederal ground and whether the nonfederal

ground is adequate to support the state court judgment. It is, of

course, the responsibility of the Court to determine for itself the

answer to both questions.851

The first question, whether there is a nonfederal ground, may

be raised by several factual situations. A state court may have based

its decision on two grounds, one federal, one nonfederal.852 It may

have based its decision solely on a nonfederal ground but the federal ground may have been clearly raised.853 Both federal and

nonfederal grounds may have been raised but the state court judgment is ambiguous or is without written opinion stating the ground

relied on.854 Or the state court may have decided the federal question although it could have based its ruling on an adequate, independent non-federal ground.855 In any event, it is essential for purposes of review by the Supreme Court that it appear from the record

that a federal question was presented, that the disposition of that

question was necessary to the determination of the case, that the

federal question was actually decided or that the judgment could

not have been rendered without deciding it.856

Several factors affect the answer to the second question, whether

the nonfederal ground is adequate. In order to preclude Supreme

850 Herb v. Pitcairn, 324 U.S. 117, 125–26 (1945).

851 E.g., Howlett v. Rose, 496 U.S. 356, 366 (1990); NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449, 455 (1958).

852 Fox Film Corp. v. Muller, 296 U.S. 207 (1935); Cramp v. Board of Public Instruction, 368 U.S. 278 (1961).

853 Wood v. Chesborough, 228 U.S. 672, 676–80 (1913).

854 Lynch v. New York ex rel. Pierson, 293 U.S. 52, 54–55 (1934); Williams v.

Kaiser, 323 U.S. 471, 477 (1945); Durley v. Mayo, 351 U.S. 277, 281 (1956); Klinger

v. Missouri, 80 U.S. (13 Wall.) 257, 263 (1872); cf. Department of Mental Hygiene v.

Kirchner, 380 U.S. 194 (1965).

855 Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 375–376 (1968).

856 Southwestern Bell Tel. Co. v. Oklahoma, 303 U.S. 206 (1938); Raley v. Ohio,

360 U.S. 423, 434–437 (1959). When there is uncertainty about what the state court

did, the usual practice was to remand for clarification. Minnesota v. National Tea

Co., 309 U.S. 551 (1940); California v. Krivda, 409 U.S. 33 (1972). See California

Dept. of Motor Vehicles v. Rios, 410 U.S. 425 (1973). Now, however, in a controversial decision, the Court has adopted a presumption that when a state court decision

fairly appears to rest on federal law or to be interwoven with federal law, and when

the adequacy and independence of any possible state law ground is not clear from

the face of the opinion the Court will accept as the most reasonable explanation

that the state court decided the case as it did because it believed that federal law

required it to do so. If the state court wishes to avoid the presumption it must make

clear by a plain statement in its judgment or opinion that discussed federal law did

not compel the result, that state law was dispositive. Michigan v. Long, 463 U.S.

1032 (1983). See Harris v. Reed, 489 U.S. 255, 261 n.7 (1989) (collecting cases); Coleman v. Thompson, 501 U.S. 722 (1991) (applying the rule in a habeas case).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 813
Court review, the nonfederal ground must be broad enough, without reference to the federal question, to sustain the state court judgment; 857 it must be independent of the federal question; 858 and it

must be tenable.859 Rejection of a litigant’s federal claim by the state

court on state procedural grounds, such as failure to tender the issue at the appropriate time, will ordinarily preclude Supreme Court

review as an adequate independent state ground,860 so long as the

local procedure does not discriminate against the raising of federal

claims and has not been used to stifle a federal claim or to evade

vindication of federal rights.861

Suits Affecting Ambassadors, Other Public Ministers, and

Consuls

The earliest interpretation of the grant of original jurisdiction

to the Supreme Court came in the Judiciary Act of 1789, which conferred on the federal district courts jurisdiction of suits to which a

consul might be a party. This legislative interpretation was sustained in 1793 in a circuit court case in which the judges held the

Congress might vest concurrent jurisdiction involving consuls in the

inferior courts and sustained an indictment against a consul.862 Many

years later, the Supreme Court held that consuls could be sued in

federal court,863 and in another case in the same year declared sweepingly that Congress could grant concurrent jurisdiction to the inferior courts in cases where Supreme Court has been invested with

original jurisdiction.864 Nor does the grant of original jurisdiction

to the Supreme Court in cases affecting ambassadors and consuls

857 Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 636 (1874). A new state

rule cannot be invented for the occasion in order to defeat the federal claim. E.g.,

Ford v. Georgia, 498 U.S. 411, 420–425 (1991).

858 Enterprise Irrigation Dist. v. Farmers’ Mutual Canal Co., 243 U.S. 157, 164

(1917); Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 290 (1958).

859 Enterprise Irrigation Dist. v. Farmers’ Mutual Canal Co., 243 U.S. 157, 164

(1917); Ward v. Love County, 253 U.S. 17, 22 (1920); Staub v. City of Baxley, 355

U.S. 313 (1958).

860 Beard v. Kindler, 558 U.S. ___, No. 08–992, slip op. (2009) (firmly established procedural rule adequate state ground even though rule is discretionary). Accord, Walker v. Martin, 562 ___, No. 09–996, slip op. (2010). See also Nickel v. Cole,

256 U.S. 222, 225 (1921); Wolfe v. North Carolina, 364 U.S. 177, 195 (1960). But see

Davis v. Wechsler, 263 U.S. 22 (1923); Brown v. Western Ry. of Alabama, 338 U.S.

294 (1949).

861 Davis v. Wechsler, 263 U.S. 22, 24–25 (1923); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455–458 (1958); Barr v. City of Columbia, 378 U.S. 146, 149

(1964). This rationale probably explains Henry v. Mississippi, 379 U.S. 443 (1965).

See also in the criminal area, Edelman v. California, 344 U.S. 357, 362 (1953) (dissenting opinion); Brown v. Allen, 344 U.S. 443, 554 (1953) (dissenting opinion); Williams v. Georgia, 349 U.S. 375, 383 (1955); Monger v. Florida, 405 U.S. 958 (1972)

(dissenting opinion).

862 United States v. Ravara, 2 U.S. (2 Dall.) 297 (C.C. Pa. 1793).

863 Bors v. Preston, 111 U.S. 252 (1884).

864 Ames v. Kansas ex rel. Johnston, 111 U.S. 449, 469 (1884).

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814 ART. III—JUDICIAL DEPARTMENT
of itself preclude suits in state courts against consular officials. The

leading case is Ohio ex rel. Popovici v. Agler,

865 in which a Rumanian vice-consul contested an Ohio judgment against him for divorce and alimony.

A number of incidental questions arise in connection with the

phrase “affecting ambassadors and consuls.” Does the ambassador

or consul to be affected have to be a party in interest, or is a mere

indirect interest in the outcome of the proceeding sufficient? In United

States v. Ortega,

866 the Court ruled that a prosecution of a person

for violating international law and the laws of the United States

by offering violence to the person of a foreign minister was not a

suit “affecting” the minister but a public prosecution for vindication of the laws of nations and the United States. Another question

concerns the official status of a person claiming to be an ambassador or consul.

The Court has refused to review the decision of the Executive

with respect to the public character of a person claiming to be a

public minister and has laid down the rule that it has the right to

accept a certificate from the Department of State on such a question.867 A third question was whether the clause included ambassadors and consuls accredited by the United States to foreign governments. The Court held that it includes only persons accredited to

the United States by foreign governments.868 However, in matters

of especial delicacy, such as suits against ambassadors and public

ministers or their servants, where the law of nations permits such

suits, and in all controversies of a civil nature in which a state is a

party, Congress until recently made the original jurisdiction of the

Supreme Court exclusive of that of other courts.869 By its compliance with the congressional distribution of exclusive and concurrent original jurisdiction, the Court has tacitly sanctioned the power

of Congress to make such jurisdiction exclusive or concurrent as it

may choose.

Cases of Admiralty and Maritime Jurisdiction

The admiralty and maritime jurisdiction of the federal courts

had its origins in the jurisdiction vested in the courts of the Admiral of the English Navy. Prior to independence, vice-admiralty courts

were created in the Colonies by commissions from the English High

865 280 U.S. 379, 383, 384 (1930). Now precluded by 28 U.S.C. § 1351.

866 24 U.S. (11 Wheat.) 467 (1826).

867 In re Baiz, 135 U.S. 403, 432 (1890).

868 Ex parte Gruber, 269 U.S. 302 (1925).

869 1 Stat. 80–81 (1789). Jurisdiction in the Supreme Court since 1978 has been

original but not exclusive. Pub. L. 95–393, § 8(b), 92 Stat. 810, 28 U.S.C. § 1251(b)(1).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 815
Court of Admiralty. After independence, the states established admiralty courts, from which at a later date appeals could be taken

to a court of appeals set up by Congress under the Articles of Confederation.870 Since one of the objectives of the Philadelphia Convention was the promotion of commerce through removal of obstacles

occasioned by the diverse local rules of the states, it was only logical that it should contribute to the development of a uniform body

of maritime law by establishing a system of federal courts and granting to these tribunals jurisdiction over admiralty and maritime cases.871

The Constitution uses the terms “admiralty and maritime jurisdiction” without defining them. Though closely related, the words

are not synonyms. In England the word “maritime” referred to the

cases arising upon the high seas, whereas “admiralty” meant primarily cases of a local nature involving police regulations of shipping, harbors, fishing, and the like. A long struggle between the admiralty and common law courts had, however, in the course of time

resulted in a considerable curtailment of English admiralty jurisdiction. A much broader conception of admiralty and maritime jurisdiction existed in the United States at the time of the framing of the

Constitution than in the Mother Country.872 At the very beginning

of government under the Constitution, Congress conferred on the

federal district courts exclusive original cognizance “of all civil causes

of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where

the seizures are made, on waters which are navigable from the sea

by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases,

the right of a common law remedy, where the common law is competent to give it . . . .” 873 This broad legislative interpretation of

admiralty and maritime jurisdiction soon won the approval of the

federal circuit courts, which ruled that the extent of admiralty and

maritime jurisdiction was not to be determined by English law but

870 G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY ch. 1 (1957).

871 The records of the Convention do not shed light on the Framers’ views about

admiralty. The present clause was contained in the draft of the Committee on Detail. 2 M. Farrand, supra at 186–187. None of the plans presented to the Convention, with the exception of an apparently authentic Charles Pinckney plan, 3 id. at

601–04, 608, had mentioned an admiralty jurisdiction in national courts. See Putnam,

How the Federal Courts Were Given Admiralty Jurisdiction, 10 CORNELL L.Q. 460 (1925).

872 G. Gilmore & C. Black, supra at ch. 1. In DeLovio v. Boit, 7 Fed. Cas. 418

(No. 3776) (C.C.D. Mass 1815), Justice Story delivered a powerful historical and jurisprudential argument against the then-restrictive English system. See also Waring

v. Clarke, 46 U.S. (5 How.) 441, 451–59 (1847); New Jersey Steam Navigation Co. v.

Merchants’ Bank of Boston, 47 U.S. (6 How.) 34, 385–390 (1848).

873 § 9, 1 Stat. 77 (1789), now 28 U.S.C. § 1333 in only slightly changed form.

For the classic exposition, see Black, Admiralty Jurisdiction: Critique and Suggestions, 50 COLUM. L. REV. 259 (1950).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

816 ART. III—JUDICIAL DEPARTMENT
by the principles of maritime law as respected by maritime courts

of all nations and adopted by most, if not by all, of them on the

continent of Europe.874

Although a number of Supreme Court decisions had earlier sustained the broader admiralty jurisdiction on specific issues,875 it was

not until 1848 that the Court ruled squarely in its favor, which it

did by declaring that “whatever may have been the doubt, originally, as to the true construction of the grant, whether it had reference to the jurisdiction in England, or to the more enlarged one

that existed in other maritime countries, the question has become

settled by legislative and judicial interpretation, which ought not

now to be disturbed.” 876 The Court thereupon proceeded to hold that

admiralty had jurisdiction in personam as well as in rem over controversies arising out of contracts of affreightment between New York

and Providence.

Power of Congress To Modify Maritime Law.—The Constitution does not identify the source of the substantive law to be applied in the federal courts in cases of admiralty and maritime jurisdiction. Nevertheless, the grant of power to the federal courts in

Article III necessarily implies the existence of a substantive maritime law which, if they are required to do so, the federal courts

can fashion for themselves.877 But what of the power of Congress

in this area? In The Lottawanna,

878 Justice Bradley undertook a

definitive exposition of the subject. No doubt, the opinion of the Court

notes, there exists “a great mass of maritime law which is the same

in all commercial countries,” still “the maritime law is only so far

operative as law in any country as it is adopted by the laws and

874 E.g., DeLovio v. Boit, 7 Fed. Cas. 418 (No. 3776) (C.C.D. Mass. 1815) (Justice Story); The Seneca, 21 Fed. Cas. 1801 (No. 12670) C.C.E.D. Pa. 1829) (Justice

Washington).

875 The Vengeance, 3 U.S. (3 Dall.) 297 (1796); The Schooner Sally, 6 U.S. (2

Cr.) 406 (1805); The Schooner Betsy, 8 U.S. (4 Cr.) 443 (1808); The Samuel, 14 U.S.

(1 Wheat.) 9 (1816); The Octavig, 14 U.S. (1 Wheat.) 20 (1816).

876 New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 U.S. (6

How.) 334, 386 (1848); see also Waring v. Clarke, 46 U.S. (5 How.) 441 (1847).

877 Swift & Co. Packers v. Compania Columbiana Del Caribe, 339 U.S. 684, 690,

691 (1950); Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282,

285 (1952); Romero v. International Terminal Operating Co., 358 U.S. 354, 360–61

(1959). For a recent example, see Moragne v. States Marine Lines, 398 U.S. 375 (1970);

United States v. Reliable Transfer Co., 421 U.S. 397 (1975). Compare The Lottawanna, 88 U.S. (21 Wall.) 558, 576–77 (1875) (“But we must always remember

that the court cannot make the law, it can only declare it. If, within its proper scope,

any change is desired in its rules, other than those of procedure, it must be made

by the legislative department”). States can no more override rules of judicial origin

than they can override acts of Congress. Wilburn Boat Co. v. Firemen’s Fund Ins.

Co., 348 U.S. 310, 314 (1955).

878 88 U.S. (21 Wall.) 558 (1875).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 817
usages of that country.” 879 “The general system of maritime law which

was familiar to the lawyers and statesmen of the country when the

Constitution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial

power of the United States shall extend ‘to all cases of admiralty

and maritime jurisdiction.’ But by what criterion are we to ascertain the precise limits of the law thus adopted? The Constitution

does not define it . . . .”

“One thing, however, is unquestionable; the Constitution must

have referred to a system of law coextensive with, and operating

uniformly in, the whole country. It certainly could not have been

the intention to place the rules and limits of maritime law under

the disposal and regulation of the several States, as that would have

defeated the uniformity and consistency at which the Constitution

aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states.” 880

“It cannot be supposed that the framers of the Constitution contemplated that the law should forever remain unalterable. Congress undoubtedly has authority under the commercial power, if no

other, to introduce such changes as are likely to be needed.” 881 That

Congress’s power to enact substantive maritime law was conferred

by the Commerce Clause was assumed in numerous opinions,882 but

later opinions by Justice Bradley firmly established that the source

of power was the admiralty grant itself, as supplemented by the

second prong of the Necessary and Proper Clause.883 Thus, “[a]s the

Constitution extends the judicial power of the United States to ‘all

cases of admiralty and maritime jurisdiction,’ and as this jurisdiction is held to be exclusive, the power of legislation on the same

subject must necessarily be in the national legislature and not in

the state legislatures.” 884 Rejecting an attack on a maritime statute as an infringement of intrastate commerce, Justice Bradley wrote:

“It is unnecessary to invoke the power given the Congress to regulate commerce in order to find authority to pass the law in question. The act was passed in amendment of the maritime law of the

879 88 U.S. at 572.

880 88 U.S. at 574–75.

881 88 U.S. at 577.

882 E.g., The Daniel Ball, 77 U.S. (10 Wall.) 557, 564 (1871); Moore v. American

Transp. Co., 65 U.S. (24 How.) 1, 39 (1861); Providence & N.Y. S.S. Co. v. Hill Mfg.

Co., 109 U.S. 578 (1883); The Robert W. Parsons, 191 U.S. 17 (1903).

883 Butler v. Boston & S. S.S. Co., 130 U.S. 527 (1889); In re Garnett, 141 U.S.

1 (1891). The second prong of the Necessary and Proper Clause is the authorization

to Congress to enact laws to carry into execution the powers vested in other departments of the Federal Government. See Detroit Trust Co. v. The Thomas Barlum,

293 U.S. 21, 42 (1934).

884 Butler v. Boston & S. S.S. Co., 130 U.S. 527, 557 (1889).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

818 ART. III—JUDICIAL DEPARTMENT
country, and the power to make such amendments is coextensive

with that law. It is not confined to the boundaries or class of subjects which limit and characterize the power to regulate commerce;

but, in maritime matters, it extends to all matters and places to

which the maritime law extends.” 885

The law administered by federal courts in admiralty is therefore an amalgam of the general maritime law insofar as it is acceptable to the courts, modifications of that law by congressional amendment, the common law of torts and contracts as modified to the extent

constitutionally possible by state legislation, and international prize

law. This body of law is at all times subject to modification by the

paramount authority of Congress acting in pursuance of its powers

under the Admiralty and Maritime Clause and the Necessary and

Proper Clause and, no doubt, the Commerce Clause, now that the

Court’s interpretation of that clause has become so expansive. Of

this power there has been uniform agreement among the Justices

of the Court.886

Admiralty and Maritime Cases.—Admiralty and maritime jurisdiction comprises two types of cases: (1) those involving acts com885 In re Garnett, 141 U.S. 1, 12 (1891). See also Southern Pacific Co. v. Jensen,

244 U.S. 205, 215 (1917); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 (1920);

Crowell v. Benson, 285 U.S. 22, 55 (1932). The Jones Act, under which injured seamen may maintain an action at law for damages, has been reviewed as an exercise

of legislative power deducible from the Admiralty Clause. Panama R.R. v. Johnson,

264 U.S. 375, 386, 388, 391 (1924); Romero v. International Terminal Operating Co.,

358 U.S. 354, 360–361 (1959). On the limits to the congressional power, see Panama

R.R. v. Johnson, 264 U.S. at 386–87; Detroit Trust Co. v. The Thomas Barlum, 293

U.S. 21, 43–44 (1934).

886 Thus, Justice McReynolds’ assertion of the paramountcy of congressional power

in Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917), was not disputed by the

four dissenters in that case and is confirmed in subsequent cases critical of Jensen

which in effect invite congressional modification of maritime law. E.g., Davis v. Department of Labor and Industries, 317 U.S. 249 (1942). The nature of maritime law

has excited some relevant controversy. In American Ins. Co. v. Canter, 26 U.S. (1

Pet.) 516, 545 (1828), Chief Justice Marshall declared that admiralty cases do not

“arise under the Constitution or laws of the United States” but “are as old as navigation itself; and the law, admiralty and maritime as it has existed for ages, is applied by our Courts to the cases as they arise.” In Romero v. International Terminal

Operating Co., 358 U.S. 354 (1959), the plaintiff sought a jury trial in federal court

on a seaman’s suit for personal injury on an admiralty claim, contending that cases

arising under the general maritime law are “civil actions” that arise “under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Five Justices in

an opinion by Justice Frankfurter disagreed. Maritime cases do not arise under the

Constitution or laws of the United States for federal question purposes and must,

absent diversity, be instituted in admiralty where there is no jury trial. The dissenting four, Justice Brennan for himself and Chief Justice Warren and Justices Black

and Douglas, contended that maritime law, although originally derived from international sources, is operative within the United States only by virtue of having been

accepted and adopted pursuant to Article III, and accordingly judicially originated

rules formulated under authority derived from that Article are “laws” of the United

States to the same extent as those enacted by Congress.

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 819
mitted on the high seas or other navigable waters, and (2) those

involving contracts and transactions connected with shipping employed on the seas or navigable waters. In the first category, which

includes prize cases and torts, injuries, and crimes committed on

the high seas, jurisdiction is determined by the locality of the act,

while in the second category subject matter is the primary determinative factor.887 Specifically, contract cases include suits by seamen

for wages,888 cases arising out of marine insurance policies,889 actions for towage 890 or pilotage 891 charges, actions on bottomry or

respondentia bonds,892 actions for repairs on a vessel already used

in navigation,893 contracts of affreightment,894 compensation for tem887 DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815) (Justice

Story); Waring v. Clarke, 46 U.S. (5 How.) 441 (1847).

888 Sheppard v. Taylor, 30 U.S. (5 Pet.) 675, 710 (1831). A seaman employed by

the government making a claim for wages cannot proceed in admiralty but must

bring his action under the Tucker Act in the Court of Claims or in the district court

if his claim does not exceed $10,000. Amell v. United States, 384 U.S. 158 (1966). In

Kossick v. United Fruit Co., 365 U.S. 731 (1961), an oral agreement between a seaman and a shipowner whereby the latter in consideration of the seaman’s forbearance to press his maritime right to maintenance and cure promised to assume the

consequences of improper treatment of the seaman at a Public Health Service Hospital was held to be a maritime contract. See also Archawski v. Hanioti, 350 U.S.

532 (1956).

889 Insurance Co. v. Dunham, 78 U.S. (11 Wall.) 1, 31 (1871); Wilburn Boat Co.

v. Fireman’s Fund Ins. Co., 348 U.S. 310 (1955). Whether admiralty jurisdiction exists if the vessel is not engaged in navigation or commerce when the insurance claim

arises is open to question. Jeffcott v. Aetna Ins. Co., 129 F.2d 582 (2d Cir. 1942),

cert. denied, 317 U.S. 663 (1942). Contracts and agreements to procure marine insurance are outside the admiralty jurisdiction. Compagnie Francaise De Navigation A

Vapeur v. Bonnasse, 19 F.2d 777 (2d Cir. 1927).

890 Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638 (1900). For recent Court difficulties with exculpatory features of such contracts, see Bisso v. Inland Waterways

Corp., 349 U.S. 85 (1955); Boston Metals Co. v. The Winding Gulf, 349 U.S. 122

(1955); United States v. Nielson, 349 U.S. 129 (1955); Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U.S. 411 (1959); Dixilyn Drilling Corp. v. Crescent Towage & Salvage Co., 372 U.S. 697 (1963).

891 Atlee v. Packet Co., 88 U.S. (21 Wall.) 389 (1875); Ex parte McNiel, 80 U.S.

(13 Wall.) 236 (1872). See also Sun Oil v. Dalzell Towing Co., 287 U.S. 291 (1932).

892 The Grapeshot, 76 U.S. (9 Wall.) 129 (1870); O’Brien v. Miller, 168 U.S. 287

(1897); The Aurora, 14 U.S. (1 Wheat.) 94 (1816); Delaware Mut. Safety Ins. Co. v.

Gossler, 96 U.S. 645 (1877). But ordinary mortgages even though the securing property is a vessel, its gear, or cargo are not considered maritime contracts. Bogart v.

The Steamboat John Jay, 58 U.S. (17 How.) 399 (1854); Detroit Trust Co. v. The

Thomas Barlum, 293 U.S. 21, 32 (1934).

893 New Bedford Dry Dock Co. v. Purdy, 258 U.S. 96 (1922); The General Smith,

17 U.S. (4 Wheat.) 438 (1819). There is admiralty jurisdiction even though the repairs are not to be made in navigable waters but, perhaps, in dry dock. North Pacific SS. Co. v. Hall Brothers Marine R. & S. Co., 249 U.S. 119 (1919). But contracts

and agreements pertaining to the original construction of vessels are not within admiralty jurisdiction. Peoples Ferry Co. v. Joseph Beers, 61 U.S. (20 How.) 393 (1858);

North Pacific S.S. Co., 249 U.S. at 127.

894 New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 U.S. (6

How.) 344 (1848).

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820 ART. III—JUDICIAL DEPARTMENT
porary wharfage,895 agreements of consortship between the masters of two vessels engaged in wrecking,896 and surveys of damaged

vessels.897 That is, admiralty jurisdiction “extends to all contracts,

claims and services essentially maritime.” 898 But the courts have

never enunciated an unambiguous test which would enable one to

determine in advance whether or not a given case is maritime.899

“The boundaries of admiralty jurisdiction over contracts—as opposed to torts or crimes—being conceptual rather than spatial, have

always been difficult to draw. Precedent and usage are helpful insofar as they exclude or include certain common types of contract. . . .” 900

Maritime torts include injuries to persons,901 damages to property arising out of collisions or other negligent acts,902 and violent

dispossession of property.903 The Court has expressed a willingness

to “recogniz[e] products liability, including strict liability, as part of

the general maritime law.” 904 Unlike contract cases, maritime tort

jurisdiction historically depended exclusively upon the commission

of the wrongful act upon navigable waters, regardless of any connection or lack of connection with shipping or commerce.905 The Court

has now held, however, that in addition to the requisite situs a significant relationship to traditional maritime activity must exist in

order for the admiralty jurisdiction of the federal courts to be in895 Ex parte Easton, 95 U.S. 68 (1877).

896 Andrews v. Wall, 44 U.S. (3 How.) 568 (1845).

897 Janney v. Columbia Ins. Co., 23 U.S. (10 Wheat.) 411, 412, 415, 418 (1825);

The Tilton, 23 Fed. Cas. 1277 (No. 14054) (C.C.D. Mass. 1830) (Justice Story).

898 Ex parte Easton, 95 U.S. 68, 72 (1877). See, for a clearing away of some conceptual obstructions to the principle, Exxon Corp. v. Central Gulf Lines, Inc., 500

U.S. 603 (1991).

899 E.g., DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815)

(Justice Story); The Steamboat Orleans v. Phoebus, 36 U.S. (11 Pet.) 175, 183 (1837);

The People’s Ferry Co. v. Joseph Beers, 61 U.S. (20 How.) 393, 401 (1858); New England Marine Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 26 (1870); Detroit Trust Co. v.

The Thomas Barlum, 293 U.S. 21, 48 (1934).

900 Kossick v. United Fruit Co., 365 U.S. 731, 735 (1961).

901 The City of Panama, 101 U.S. 453 (1880). Reversing a long-standing rule,

the Court allowed recovery under general maritime law for the wrongful death of a

seaman. Moragne v. States Marine Lines, 398 U.S. 375 (1970); Miles v. Apex Marine

Corp., 498 U.S. 19 (1991).

902 The Raithmoor, 241 U.S. 166 (1916); Erie R.R. v. Erie Transportation Co.,

204 U.S. 220 (1907).

903 L’Invincible, 14 U.S. (1 Wheat.) 238 (1816); In re Fassett, 142 U.S. 479 (1892).

904 East River Steamship Corp. v. Transamerica Delaval, 476 U.S. 858 (1986)

(holding, however, that there is no products liability action in admiralty for purely

economic injury to the product itself, unaccompanied by personal injury, and that

such actions should be based on the contract law of warranty).

905 DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815) (Justice

Story); Philadelphia, W. & B. R.R. v. Philadelphia & Havre De Grace Steam Towboat Co., 64 U.S. (23 How.) 209, 215 (1859); The Plymouth, 70 U.S. (3 Wall.) 20,

33–34 (1865); Grant-Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 476 (1922).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 821
voked.906 Both the Court and Congress have created exceptions to

the situs test for maritime tort jurisdiction to extend landward the

occasions for certain connected persons or events to come within

admiralty, not without a little controversy.907

From the earliest days of the Republic, the federal courts sitting in admiralty have been held to have exclusive jurisdiction of

prize cases.908 Also, in contrast to other phases of admiralty jurisdiction, prize law as applied by the British courts continued to provide the basis of American law so far as practicable,909 and so far

as it was not modified by subsequent legislation, treaties, or executive proclamations. Finally, admiralty and maritime jurisdiction in906 Executive Jet Aviation v. City of Cleveland, 409 U.S. 249 (1972) (plane crash

in which plane landed wholly fortuitously in navigable waters off the airport runway not in admiralty jurisdiction). However, so long as there is maritime activity

and a general maritime commercial nexus, admiralty jurisdiction exists. Foremost

Ins. Co. v. Richardson, 457 U.S. 668 (1982) (collision of two pleasure boats on navigable waters is within admiralty jurisdiction); Sisson v. Ruby, 497 U.S. 358 (1990)

(fire on pleasure boat docked at marina on navigable water). See also Grubart v.

Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995), a tort claim arising out of

damages allegedly caused by negligently driving piles from a barge into the riverbed, which weakened a freight tunnel that allowed flooding of the tunnel and the

basements of numerous buildings along the Chicago River. The Court found that

admiralty jurisdiction could be invoked. The location test was satisfied, because the

barge, even though fastened to the river bottom, was a “vessel” for admiralty tort

purposes; the two-part connection test was also satisfied, inasmuch as the incident

had a potential to disrupt maritime commerce and the conduct giving rise to the

incident had a substantial relationship to traditional maritime activity.

907 Thus, the courts have enforced seamen’s claims for maintenance and cure

for injuries incurred on land. O’Donnell v. Great Lakes Co., 318 U.S. 36, 41–42 (1943).

The Court has applied the doctrine of seaworthiness to permit claims by longshoremen injured on land because of some condition of the vessel or its cargo. Gutierrez

v. Waterman S.S. Corp., 373 U.S. 206 (1963); Seas Shipping Co. v. Sieracki, 328 U.S.

85 (1946); Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944). But see Victory Carriers v. Law, 404 U.S. 202 (1971). In the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688,

Congress gave seamen, or their personal representatives, the right to seek compensation from their employers for personal injuries arising out of their maritime employment. Respecting who is a seaman for Jones Act purposes, see Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991); McDermott International, Inc. v. Wilander,

498 U.S. 337 (1991). The rights exist even if the injury occurred on land. O’Donnell

v. Great Lakes Co., 318 U.S. at 43; Swanson v. Mara Brothers, 328 U.S. 1, 4 (1946).

In the Extension of Admiralty Jurisdiction Act, 62 Stat. 496, 46 U.S.C. § 740, Congress provided an avenue of relief for persons injured in themselves or their property by action of a vessel on navigable water which is consummated on land, as by

the collision of a ship with a bridge. By the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, 86 Stat. 1251, amending 33 U.S.C.

§§ 901–950, Congress broadened the definition of “navigable waters” to include in

certain cases adjoining piers, wharfs, etc., and modified the definition of “employee”

to mean any worker “engaged in maritime employment” within the prescribed meanings, thus extending the Act shoreward and changing the test of eligibility from “situs” alone to the “situs” of the injury and the “status” of the injured.

908 Jennings v. Carson, 8 U.S. (4 Cr.) 2 (1807); Taylor v. Carryl, 61 U.S. (20 How.)

583 (1858).

909 Thirty Hogsheads of Sugar v. Boyle, 13 U.S. (9 Cr.) 191 (1815); The Siren,

80 U.S. (13 Wall.) 389, 393 (1871).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

822 ART. III—JUDICIAL DEPARTMENT
cludes the seizure and forfeiture of vessels engaged in activities in

violation of the laws of nations or municipal law, such as illicit trade,910

infraction of revenue laws,911 and the like. 912

Admiralty Proceedings.—Procedure in admiralty jurisdiction

differs in few respects from procedure in actions at law, but the differences that do exist are significant.913 Suits in admiralty traditionally took the form of a proceeding in rem against the vessel, and,

with exceptions to be noted, such proceedings in rem are confined

exclusively to federal admiralty courts, because the grant of exclusive jurisdiction to the federal courts by the Judiciary Act of 1789

has been interpreted as referring to the traditional admiralty action, the in rem action, which was unknown to the common law.914

The savings clause in that Act under which a state court may entertain actions by suitors seeking a common-law remedy preserves

to the state tribunals the right to hear actions at law where a commonlaw remedy or a new remedy analogous to a common-law remedy

exists.915 Concurrent jurisdiction thus exists for the adjudication of

in personam maritime causes of action against the owner of the vessel, and a plaintiff may ordinarily choose whether to bring his action in a state court or a federal court.

Forfeiture to the crown for violation of the laws of the sovereign was in English law an exception to the rule that admiralty

has exclusive jurisdiction over in rem maritime actions and was thus

considered a common-law remedy. Although the Supreme Court sometimes has used language that would confine all proceedings in rem

910 Hudson v. Guestier, 8 U.S. (4 Cr.) 293 (1808).

911 The Vengeance, 3 U.S. (3 Dall.) 297 (1796); Church v. Hubbard, 6 U.S. (2 Cr.)

187 (1804); The Schooner Sally, 6 U.S. (2 Cr.) 406 (1805).

912 The Brig Ann, 13 U.S. (9 Cr.) 289 (1815); The Sarah, 21 U.S. (8 Wheat.) 391

(1823); Maul v. United States, 274 U.S. 501 (1927).

913 Gilmore & Black, supra at 30–33. There are no longer separate rules of procedure governing admiralty, unification of civil admiralty procedures being achieved

in 1966. 7 A J. Moore’s Federal Practice §§ .01 et seq (New York: 1971).

914 The Moses Taylor, 71 U.S. (4 Wall.) 411 (1866); The Hine v. Trevor, 71 U.S.

(4 Wall.) 555 (1867). But see Taylor v. Carryl, 61 U.S. (20 How.) 583 (1858). In Madruga

v. Superior Court, 346 U.S. 556 (1954), the jurisdiction of a state court over a partition suit at the instance of the majority shipowners was upheld on the ground that

the cause of action affected only the interest of the defendant minority shipowners

and therefore was in personam. Justice Frankfurter’s dissent argued: “If this is not

an action against the thing, in the sense which that has meaning in the law, then

the concepts of a res and an in rem proceeding have an esoteric meaning that I do

not understand.” Id. at 564.

915 After conferring “exclusive” jurisdiction in admiralty and maritime cases on

the federal courts, § 9 of the Judiciary Act of 1789, 1 Stat. 77, added “saving to suitors, in all cases the right of a common law remedy, where the common law is competent to give it. . . .” Fixing the concurrent federal-state line has frequently been a

source of conflict within the Court. Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 823
to admiralty courts,916 such actions in state courts have been sustained in cases of forfeiture arising out of violations of state law.917

Perhaps the most significant admiralty court difference in procedure from civil courts is the absence of a jury trial in admiralty

actions, with the admiralty judge trying issues of fact as well as of

law.918 Indeed, the absence of a jury in admiralty proceedings appears to have been one of the principal reasons why the English

government vested a broad admiralty jurisdiction in the colonial viceadmiralty courts, since they provided a forum where the English

authorities could enforce the Navigation Laws without “the obstinate resistance of American juries.” 919

Territorial Extent of Admiralty and Maritime Jurisdiction.—

Although he was a vigorous exponent of the expansion of admiralty jurisdiction, Justice Story for the Court in The Steamboat Thomas

Jefferson 920 adopted a restrictive English rule confining admiralty

jurisdiction to the high seas and upon rivers as far as the ebb and

flow of the tide extended.921 The demands of commerce on western

waters led Congress to enact a statute extending admiralty jurisdiction over the Great Lakes and connecting waters,922 and in The Genessee Chief v. Fitzhugh 923 Chief Justice Taney overruled The Thomas

Jefferson and dropped the tidal ebb and flow requirement. This ruling laid the basis for subsequent judicial extension of jurisdiction

over all waters, salt or fresh, tidal or not, which are navigable in

fact.924 Some of the older cases contain language limiting jurisdic916 The Moses Taylor, 71 U.S. (4 Wall.) 411, 431 (1867).

917 C. J. Henry Co. v. Moore, 318 U.S. 133 (1943).

918 The Vengeance, 3 U.S. (3 Dall.) 297 (1796); The Schooner Sally, 6 U.S. (2

Cr.) 406 (1805); The Schooner Betsy, 8 U.S. (4 Cr.) 443 (1808); The Whelan, 11 U.S.

(7 Cr.) 112 (1812); The Samuel, 14 U.S. (1 Wheat.) 9 (1816). If diversity of citizenship and the requisite jurisdictional amounts are present, a suitor may sue on the

“law side” of the federal court and obtain a jury. Romero v. International Terminal

Operating Co., 358 U.S. 354, 362–363 (1959). Jones Act claims, 41 Stat. 1007 (1920),

46 U.S.C. § 688, may be brought on the “law side” with a jury, Panama R.R. Co. v.

Johnson, 264 U.S. 375 (1924), and other admiralty claims joined with a Jones Act

claim may be submitted to a jury. Romero, supra; Fitzgerald v. United States Lines

Co., 374 U.S. 16 (1963). There is no constitutional barrier to congressional provision

of jury trials in admiralty. Genessee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851);

Fitzgerald v. United States Lines Co., 374 U.S. 16, 20 (1963).

919 C. J. Henry Co. v. Moore, 318 U.S. 133, 141 (1943).

920 23 U.S. (10 Wheat.) 428 (1825). On the political background of this decision,

see 1 C. Warren, supra at 633–35.

921 The tidal ebb and flow limitation was strained in some of its applications.

Peyroux v. Howard, 32 U.S. (7 Pet.) 324 (1833); Waring v. Clarke, 46 U.S. (5 How.)

441 (1847).

922 5 Stat. 726 (1845).

923 53 U.S. (12 How.) 443 (1851).

924 Some of the early cases include The Magnolia, 61 U.S. (20 How.) 296 (1857);

The Eagle, 75 U.S. (8 Wall.) 15 (1868); The Daniel Ball, 77 U.S. (10 Wall.) 557 (1871).

The fact that the body of water is artificial presents no barrier to admiralty jurisdicSec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

824 ART. III—JUDICIAL DEPARTMENT
tion to navigable waters which form some link in an interstate or

international waterway or some link in commerce,925 but these date

from the time when it was thought the commerce power furnished

the support for congressional legislation in this field.

Admiralty and Federalism.—Extension of admiralty and maritime jurisdiction to navigable waters within a state does not, however, of its own force include general or political powers of government. Thus, in the absence of legislation by Congress, the states

through their courts may punish offenses upon their navigable waters and upon the sea within one marine league of the shore.926

Determination of the boundaries of admiralty jurisdiction is a

judicial function, and “no State law can enlarge it, nor can an act

of Congress or a rule of court make it broader than the judicial power

may determine to be its true limits.” 927 But, as with other jurisdictions of the federal courts, admiralty jurisdiction can only be exercised under acts of Congress vesting it in federal courts.928

The boundaries of federal and state competence, both legislative and judicial, in this area remain imprecise, and federal judicial determinations have notably failed to supply definiteness. During the last century, the Supreme Court generally permitted two

overlapping systems of law to coexist in an uneasy relationship. The

federal courts in admiralty applied the general maritime law,929 supplemented in some instances by state law which created and defined

certain causes of action.930 Because the Judiciary Act of 1789 saved

to suitors common-law remedies, persons suing in state courts or

in federal courts in diversity of citizenship actions could look to

common-law and statutory doctrines for relief in maritime-related

tion. Ex parte Boyer, 109 U.S. 629 (1884); The Robert W. Parsons, 191 U.S. 17 (1903).

In United States v. Appalachian Power Co., 311 U.S. 377 (1940), it was made clear

that maritime jurisdiction extends to include waterways which by reasonable improvement can be made navigable. “It has long been settled that the admiralty and

maritime jurisdiction of the United States includes all navigable waters within the

country.” Southern S.S. Co. v. NLRB, 316 U.S. 31, 41 (1942).

925 E.g., The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870); The Montello, 87

U.S. (20 Wall.) 430, 441–42 (1874).

926 United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818); Manchester v. Massachusetts, 139 U.S. 240 (1891).

927 The Steamer St. Lawrence, 66 U.S. (1 Bl.) 522, 527 (1862).

928 Janney v. Columbia Ins. Co., 23 U.S. (10 Wheat.) 411, 418 (1825); The Lottawanna, 88 U.S. (21 Wall.) 558, 576 (1875).

929 E.g., New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 U.S.

(6 How.) 344 (1848); The Steamboat New York v. Rea, 59 U.S. (18 How.) 223 (1856);

The China, 74 U.S. (7 Wall.) 53 (1868); Ex parte McNiel, 80 U.S. (13 Wall.) 236 (1872);

La Bourgogne, 210 U.S. 95 (1908).

930 The General Smith, 17 U.S. (4 Wheat.) 438 (1819); The Lottawanna, 88 U.S.

(21 Wall.) 558 (1875) (enforcing state laws giving suppliers and repairmen liens on

ships supplied and repaired). Another example concerns state-created wrongful death

actions. The Hamilton, 207 U.S. 398 (1907).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 825
cases in which the actions were noticeable.931 In Southern Pacific

Co. v. Jensen,

932 a sharply divided Court held that New York could

not constitutionally apply its workmen’s compensation system to employees injured or killed on navigable waters. For the Court, Justice McReynolds reasoned “that the general maritime law, as accepted by the federal courts, constituted part of our national law,

applicable to matters within the admiralty and maritime jurisdiction.” 933 Recognizing that “it would be difficult, if not impossible,

to define with exactness just how far the general maritime law may

be changed, modified or affected by state legislation,” still it was

certain that “no such legislation is valid if it works material prejudice to the characteristic features of the general maritime law, or

interferes with the proper harmony or uniformity of that law in its

international and interstate relations.” 934 The “savings to suitors”

clause was unavailing because the workmen’s compensation statute created a remedy “of a character wholly unknown to the common law, incapable of enforcement by the ordinary processes of any

court and is not saved to suitors from the grant of exclusive jurisdiction.” 935

Congress required three opportunities to legislate to meet the

problem created by the decision, the lack of remedy for maritime

workers to recover for injuries resulting from the negligence of their

employers. First, Congress enacted a statute saving to claimants

their rights and remedies under state workmen’s compensation laws.936

The Court invalidated it as an unconstitutional delegation of legislative power to the states. “The Constitution itself adopted and established, as part of the laws of the United States, approved rules

931 E.g., Hazard’s Administrator v. New England Marine Ins. Co., 33 U.S. (8 Pet.)

557 (1834); The Belfast, 74 U.S. (7 Wall.) 624 (1869); American Steamboat Co. v.

Chase, 83 U.S. (16 Wall.) 522 (1872); Quebec Steamship Co. v. Merchant, 133 U.S.

375 (1890); Belden v. Chase, 150 U.S. 674 (1893); Homer Ramsdell Transp. Co. v. La

Compagnie Gen. Transatlantique, 182 U.S. 406 (1901).

932 244 U.S. 205 (1917). The worker here had been killed, but the same result

was reached in a case of nonfatal injury. Clyde S.S. Co. v. Walker, 244 U.S. 255

(1917). In Chelentis v. Luckenbach S.S. Co., 247 U.S. 372 (1918), the Jensen holding

was applied to preclude recovery in a negligence action against the injured party’s

employer under state law. Under The Osceola, 189 U.S. 158 (1903), the employee

had a maritime right to wages, maintenance, and cure.

933 Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917).

934 244 U.S. at 216.

935 244 U.S. at 218. There were four dissenters: Justices Holmes, Pitney, Brandeis,

and Clarke. The Jensen dissent featured such Holmesian epigrams as: “[J]udges do

and must legislate, but they can do so only interstitially; they are confined from

molar to molecular motions,” id. at 221, and the famous statement supporting the

assertion that supplementation of maritime law had to come from state law because

“[t]he common law is not a brooding omnipresence in the sky but the articulate voice

of some sovereign or quasi-sovereign that can be identified. . . . It always is the law

of some State. . . .” Id. at 222.

936 40 Stat. 395 (1917).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

826 ART. III—JUDICIAL DEPARTMENT
of the general maritime law and empowered Congress to legislate

in respect of them and other matters within the admiralty and maritime jurisdiction. Moreover, it took from the states all power, by legislation or judicial decision, to contravene the essential purposes of,

or to work material injury to, characteristic features of such law or

to interfere with its proper harmony and uniformity in its international and interstate relations.” 937 Second, Congress reenacted the

law but excluded masters and crew members of vessels from those

who might claim compensation for maritime injuries.938

The Court found this effort unconstitutional as well, because “the

manifest purpose [of the statute] was to permit any State to alter

the maritime law and thereby introduce conflicting requirements.” 939 Finally, in 1927, Congress passed the Longshoremen’s and

Harbor Workers’ Compensation Act, which provided accident compensation for injuries, including those resulting in death, sustained

on navigable waters by employees, other than members of the crew,

whenever “recovery . . . may not validly be provided by State law.” 940

With certain exceptions,941 the federal-state conflict since Jensen

has taken place with regard to three areas: (1) the interpretation

of federal and state bases of relief for injuries and death as affected by the Longshoremen’s and Harbor Workers’ Compensation

Act; (2) the interpretation of federal and state bases of relief for

personal injuries by maritime workers as affected by the Jones Act;

and (3) the application of state law to permit recovery in maritime

wrongful death cases in which until recently there was no federal

maritime right to recover.942

937 Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 (1920). The decision was

again 5-to-4 with the same dissenters.

938 42 Stat. 634 (1922).

939 Washington v. Dawson & Co., 264 U.S. 219, 228 (1924). Holmes and Brandeis

remained of the four dissenters and again dissented.

940 44 Stat. 1424 (1927), as amended, 33 U.S.C. §§ 901–950. In 1984, the statute was renamed the Longshore and Harbor Workers’ Compensation Act. Pub. L.

98–426.

941 E.g., Maryland Casualty Co. v. Cushing, 347 U.S. 409 (1954) (state direct

action statute applies against insurers implicated in a marine accident); Wilburn

Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310 (1955) (state statute determines

effect of breach of warranty in marine insurance contract); Southwestern Sugar &

Molasses Co. v. River Terminals Corp., 360 U.S. 411 (1959); Bisso v. Inland Waterways Corp., 349 U.S. 85 (1955) (federal rather than state law determines effect of

exculpatory provisions in towage contracts); Kossick v. United Fruit Co., 365 U.S.

731 (1961) (state statute of frauds inapplicable to oral contract for medical care between seaman and employer).

942 Jensen, though much criticized, is still the touchstone of the decisional process in this area with its emphasis on the general maritime law. E.g., Pope & Talbot

v. Hawn, 346 U.S. 406 (1953); Kermarec v. Compagnie Generale Transatlantique,

358 U.S. 625 (1959). In Askew v. American Waterways Operators, 411 U.S. 325, 337–44

(1973), the Court, in holding that the states may constitutionally exercise their poSec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 827
(1) The principal difficulty here was that after Jensen the Supreme Court did not maintain the line between permissible and impermissible state-authorized recovery at the water’s edge, but created a “maritime but local” exception, by which some injuries incurred

in or on navigable waters could be compensated under state workmen’s compensation laws or state negligence laws.943 “The application of the State Workmen’s Compensation Acts has been sustained

where the work of the employee has been deemed to have no direct

relation to navigation or commerce and the operation of the local

law ‘would work no material prejudice to the essential features of

the general maritime law.’ ” 944 Because Congress provided in the

Longshoremen’s and Harbor Workers’ Compensation Act for recovery under the Act “if recovery . . . may not validly be provided by

State law,” 945 it was held that the “maritime but local” exception

had been statutorily perpetuated,946 thus creating the danger for

injured workers or their survivors that they might choose to seek

relief by the wrong avenue to their prejudice. This danger was subsequently removed by the Court when it recognized that there was

a “twilight zone,” a “shadowy area,” in which recovery under either

the federal law or a state law could be justified, and held that in

such a “twilight zone” the injured party should be enabled to recover under either.947 Then, in Calbeck v. Travelers Ins. Co.,

948 the

Court virtually read out of the Act its inapplicability when compensation would be afforded by state law and held that Congress’s intent in enacting the statute was to extend coverage to all workers

who sustain injuries while on navigable waters of the United States

lice powers respecting maritime activities concurrently with the Federal Government, such as by providing for liability for oil spill damages, noted that Jensen and

its progeny, although still possessing vitality, have been confined to their facts; thus,

it is only with regard “to suits relating to the relationship of vessels, plying the high

seas and our navigable waters, and to their crews” that state law is proscribed. Id.

at 344. See also Sun Ship v. Pennsylvania, 447 U.S. 715 (1980).

943 Western Fuel Co. v. Garcia, 257 U.S. 233 (1921); Grant-Smith-Porter Ship

Co. v. Rohde, 257 U.S. 469 (1922); State Industrial Comm’n v. Nordenholt Corp.,

259 U.S. 263 (1922); Miller’s Indemnity Underwriters v. Braud, 270 U.S. 59 (1926).

The exception continued to be applied following enactment of the Longshoremen’s

and Harbor Workers’ Compensation Act. See cases cited in Davis v. Department of

Labor and Industries, 317 U.S. 249, 253–254 (1942).

944 Crowell v. Benson, 285 U.S. 22, 39 n.3 (1932). The internal quotation is from

Western Fuel Co. v. Garcia, 257 U.S. 233, 242 (1921).

945 § 3(a), 44 Stat. 1424 (1927), 33 U.S.C. § 903(a).

946 Crowell v. Benson, 284 U.S. 22, 39, (1932); Davis v. Department of Labor

and Industries, 317 U.S. 249, 252–53 (1942).

947 Davis v. Dept of Labor and Industries, 317 U.S. 249 (1942). The quoted phrases

appear at id. at 253, 256. See also Hahn v. Ross Island Sand & Gravel Co., 358 U.S.

272 (1959).

948 370 U.S. 114 (1962). In the 1972 amendments, § 2, 86 Stat. 1251, amending

33 U.S.C. § 903(a), Congress ratified Calbeck by striking out “if recovery . . . may

not validly be provided by State law.”

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

828 ART. III—JUDICIAL DEPARTMENT
whether or not a particular injury was also within the constitutional reach of a state workmen’s compensation law or other law.

By the 1972 amendments to the LHWCA, Congress extended the

law shoreward by refining the tests of “employee” and “navigable

waters,” so as to reach piers, wharfs, and the like in certain circumstances.949

(2) The passage of the Jones Act 950 gave seamen a statutory

right of recovery for negligently inflicted injuries on which they could

sue in state or federal courts. Because injured parties could obtain

a jury trial in Jones Act suits, there was little attempted recourse

under the savings clause 951 to state law claims and thus no need

to explore the line between applicable and inapplicable state law.

But in the 1940s personal injury actions based on unseaworthiness 952 were given new life by Court decisions for seamen; 953 and

the right was soon extended to longshoremen who were injured while

on board ship or while working on the dock if the injury could be

attributed either to the ship’s gear or its cargo.954 While these actions could have been brought in state court, federal law supplanted state law even with regard to injuries sustained in state

territorial waters.955 The 1972 LHWCA amendments, however, eliminated unseaworthiness recoveries by persons covered by the Act and

949 86 Stat. 1251, § 2, amending 33 U.S.C. § 902. The Court had narrowly turned

back an effort to achieve this result through construction in Nacirema Operating

Co. v. Johnson, 396 U.S. 212 (1969). See also Victory Carriers v. Law, 404 U.S. 202

(1971). On the interpretation of the amendments, see Northeast Marine Terminal

Co. v. Caputo, 432 U.S. 249 (1977); Director, Office of Workers Compensation Programs v. Perini, 459 U.S. 297 (1983).

950 41 Stat. 1007 (1920), 46 U.S.C. § 688. For the prior-Jones Act law, see The

Osceola, 189 U.S. 158 (1903).

951 “Cases of Admiralty and Maritime Jurisdiction,” supra.

952 Unseaworthiness “is essentially a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet

the hazards which performing the service imposes, the liability is neither limited by

conceptions of negligence nor contractual in character. . . . [T]he owner’s duty to furnish a seaworthy ship is absolute and completely independent of his duty under the

Jones Act to exercise reasonable care.” Mitchell v. Trawler Racer, 362 U.S. 539, 549

(1960).

953 Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944). See also Mitchell v. Trawler

Racer, 362 U.S. 539 (1960); Michalic v. Cleveland Tankers, 364 U.S. 325 (1960); Waldron

v. Moore-McCormack Lines, 386 U.S. 724 (1967).

954 Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946); Pope & Talbot v. Hawn,

346 U.S. 406 (1953); Alaska S.S. Co. v. Patterson, 347 U.S. 396 (1954); Gutierrez v.

Waterman S.S. Corp., 373 U.S. 206 (1963); But see Usner v. Luckenback Overseas

Corp., 400 U.S. 494 (1971); Victory Carriers v. Law, 404 U.S. 202 (1971).

955 Garrett v. Moore-McCormack Co., 317 U.S. 239 (1942); McAllister v. Magnolia Petroleum Co., 357 U.S. 221 (1958); Kermarec v. Compagnie Generale

Transatlantique, 358 U.S. 625 (1959).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 829
substituted a recovery under the LHWCA itself for injuries caused

by negligence.956

(3) In The Harrisburg,

957 the Court held that maritime law did

not afford an action for wrongful death, a position to which the Court

adhered until 1970.958 The Jones Act,959 the Death on the High Seas

Act,960 and the Longshoremen’s and Harbor Workers’ Compensation Act 961 created causes of action for wrongful death, but for cases

not falling within one of these laws the federal courts looked to state

wrongful death and survival statutes.962 Thus, in The Tungus v.

Skovgaard,

963 the Court held that a state wrongful death statute

encompassed claims both for negligence and unseaworthiness in the

instance of a land-based worker killed when on board ship in navigable water; the Court divided five-to-four, however, in holding that

the standards of the duties to furnish a seaworthy vessel and to

use due care were created by the state law as well and not furnished by general maritime concepts.964 And, in Hess v. United

States,

965 a suit under the Federal Tort Claims Act for recovery for

a death by drowning in a navigable Oregon river of an employee of

956 86 Stat. 1263, § 18, amending 33 U.S.C. § 905. On the negligence standards

under the amendment, see Scindia Steam Navigation Co., v. De Los Santos, 451 U.S.

156 (1981).

957 119 U.S. 199 (1886). Subsequent cases are collected in Moragne v. States Marine Lines, 398 U.S. 375 (1970).

958 Moragne v. States Marine Lines, 398 U.S. 375 (1970).

959 41 Stat. 1007 (1920). 46 U.S.C. § 688. Recovery could be had if death resulted from injuries because of negligence but not from unseaworthiness.

960 41 Stat. 537 (1920), 46 U.S.C. §§ 761 et seq. The Act applies to deaths caused

by negligence occurring on the high seas beyond a marine league from the shore of

any state. In Rodrique v. Aetna Casualty & Surety Co., 395 U.S. 352 (1969), a unanimous Court held that this Act did not apply in cases of deaths on the artificial islands created on the continental shelf for oil drilling purposes but that the Outer

Continental Shelf Lands Act, 67 Stat. 462 (1953), 43 U.S.C. §§ 1331 et seq., incorporated the laws of the adjacent state, so that Louisiana law governed. See also Chevron Oil Co. v. Huson, 404 U.S. 97 (1971); Gulf Offshore Co. v. Mobil Oil Corp., 453

U.S. 473 (1981). However, in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986),

the Court held that the Act is the exclusive wrongful death remedy in the case of

OCS platform workers killed in a helicopter crash 35 miles off shore en route to

shore from a platform.

961 44 Stat. 1424 (1927), as amended, 33 U.S.C. §§ 901–950.

962 Western Fuel Co. v. Garcia, 257 U.S. 233 (1921); Just v. Chambers, 312 U.S.

383 (1941); Levinson v. Deupree, 345 U.S. 648 (1953).

963 358 U.S. 588 (1959).

964 Justice Brennan, joined by Chief Justice Warren and Justices Black and Douglas, argued that the extent of the duties owed the decedent while on board ship

should be governed by federal maritime law, though the cause of action originated

in a state statute, just as would have been the result had decedent survived his

injuries. See also United N.Y. & N.J. Sandy Hooks Pilot Ass’n v. Halecki, 358 U.S.

613 (1959).

965 361 U.S. 314 (1960). The four Tungus dissenters joined two of the Tungus

majority solely “under compulsion” of the Tungus ruling; the other three majority

Justices dissented on the ground that application of the state statute unacceptably

disrupted the uniformity of maritime law.

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830 ART. III—JUDICIAL DEPARTMENT
a contractor engaged in repairing the federally owned Bonneville

Dam, a divided Court held that liability was to be measured by the

standard of care expressed in state law, notwithstanding that the

standard was higher than that required by maritime law. One area

existed, however, in which beneficiaries of a deceased seaman were

denied recovery.

The Jones Act provided a remedy for wrongful death resulting

from negligence, but not for one caused by unseaworthiness alone;

in Gillespie v. United States Steel Corp.,

966 the Court held that the

survivors of a seaman drowned while working on a ship docked in

an Ohio port could not recover under the state wrongful death statute even though the act recognized unseaworthiness as a basis for

recovery, the Jones Act having superseded state laws.

Thus did matters stand until 1970, when the Court, in a unanimous opinion in Moragne v. States Marine Lines,

967 overruled its

earlier cases and held that a right of recovery for wrongful death is

sanctioned by general maritime law and that no statute is needed

to bring the right into being. The Court was careful to note that

the cause of action created in Moragne would not, like the state

wrongful death statutes in Gillespie, be held precluded by the Jones

Act, so that the survivor of a seaman killed in navigable waters

within a state would have a cause of action for negligence under

the Jones Act or for unseaworthiness under the general maritime

law.968

Cases to Which the United States Is a Party

Right of the United States to Sue.—In the first edition of his

Treatise, Justice Story noted that while “an express power is no where

given in the constitution,” the right of the United States to sue in

its own courts “is clearly implied in that part respecting the judicial power. . . . Indeed, all the usual incidents appertaining to a

personal sovereign, in relation to contracts, and suing, and enforcing rights, so far as they are within the scope of the powers of the

966 379 U.S. 148 (1964). The decision was based on dictum in Lindgren v. United

States, 281 U.S. 38 (1930), to the effect that the Jones Act remedy was exclusive.

967 398 U.S. 375 (1970).

968 398 U.S. at 396 n.12. For development of the law under Moragne, see SeaLand Services v. Gaudet, 414 U.S. 573 (1974); Miles v. Apex Marine Corp., 498 U.S.

19 (1990); and Norfolk Shipbuilding and Drydock Co. v. Garris, 532 U.S. 811 (2001)

(maritime cause of action for death caused by violation of the duty of seaworthiness

is equally applicable to death resulting from negligence). But, in Yamaha Motor Corp.

v. Calhoun, 516 U.S. 199 (1996), a case involving a death in territorial waters from

a jet ski accident, the Court held that Moragne does not provide the exclusive remedy in cases involving the death in territorial waters of a “nonseafarer”—a person

who is neither a seaman covered by the Jones Act nor a longshore worker covered

by the LHWCA.

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 831
government, belong to the United States, as they do to other sovereigns.” 969 As early as 1818, the Supreme Court ruled that the United

States could sue in its own name in all cases of contract without

congressional authorization of such suits.970 Later, this rule was extended to other types of actions. In the absence of statutory provisions to the contrary, such suits are initiated by the Attorney General in the name of the United States.971

By the Judiciary Act of 1789, and subsequent amendments to

it, Congress has vested in the federal district courts jurisdiction to

hear all suits of a civil nature at law or in equity brought by the

United States as party plaintiff.972 As in other judicial proceedings,

the United States, like any party plaintiff, must have an interest

in the subject matter and a legal right to the remedy sought.973 Under the long-settled principle that the courts have the power to abate

public nuisances at the suit of the government, the provision in § 208(2)

of the Labor Management Relations Act of 1949, authorizing federal courts to enjoin strikes that imperil national health or safety

was upheld on the grounds that the statute entrusts the courts with

the determination of a “case or controversy” on which the judicial

power can operate and does not impose any legislative, executive,

or non-judicial function. Moreover, the fact that the rights sought

to be protected were those of the public in unimpeded production

in industries vital to public health, as distinguished from the private rights of labor and management, was held not to alter the adversary (“case or controversy”) nature of the litigation instituted by

969 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1274 (1833),

(emphasis in original).

970 Dugan v. United States, 16 U.S. (3 Wheat.) 172 (1818).

971 United States v. San Jacinto Tin Co., 125 U.S. 273 (1888); United States v.

Beebe, 127 U.S. 338 (1888); United States v. Bell Telephone Co., 128 U.S. 315 (1888).

Whether without statutory authorization the United States may sue to protect the

constitutional rights of its citizens has occasioned conflict. Compare United States v.

Brand Jewelers, 318 F. Supp. 1293 (S.D.N.Y. 1970), and United States v. Brittain,

319 F. Supp. 1658 (S.D.Ala. 1970), with United States v. Mattson, 600 F.2d 1295

(9th Cir. 1979), and United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977). The

result in Mattson and Solomon was altered by specific authorization in the Civil

Rights of Institutionalized Persons Act, Pub. L. 96–247, 94 Stat. 349 (1980), 42 U.S.C.

§§ 1997 et seq. See also United States v. City of Philadelphia, 644 F.2d 187 (3d Cir.

1980) (no standing to sue to correct allegedly unconstitutional police practices).

972 28 U.S.C. § 1345. By virtue of the fact that the original jurisdiction of the

Supreme Court extends only to those cases enumerated in the Constitution, jurisdiction over suits brought by the United States against persons or corporations is vested

in the lower federal courts. Suits by the United States against a state may be brought

in the Supreme Court under its original jurisdiction, 28 U.S.C. § 1251(b)(2), although such suits may also be brought in the district courts. Case v. Bowles, 327

U.S. 92, 97 (1946).

973 United States v. San Jacinto Tin Co., 125 U.S. 273 (1888).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

832 ART. III—JUDICIAL DEPARTMENT
the United States as the guardian of the aforementioned rights.974

Also, by reason of the highest public interest in the fulfillment of

all constitutional guarantees, “including those that bear . . . directly on private rights, . . . it [is] perfectly competent for Congress to authorize the United States to be the guardian of that public interest in a suit for injunctive relief.” 975

Suits Against States.—Controversies to which the United States

is a party include suits brought against states as party defendants.

The first such suit occurred in United States v. North Carolina,

976

which was an action by the United States to recover upon bonds

issued by North Carolina. Although no question of jurisdiction was

raised, in deciding the case on its merits in favor of the state, the

Court tacitly assumed that it had jurisdiction of such cases. The

issue of jurisdiction was directly raised by Texas a few years later

in a bill in equity brought by the United States to determine the

boundary between Texas and the Territory of Oklahoma, and the

Court sustained its jurisdiction over strong arguments by Texas to

the effect that it could not be sued by the United States without its

consent and that the Supreme Court’s original jurisdiction did not

extend to cases to which the United States is a party.977 Stressing

the inclusion within the judicial power of cases to which the United

States and a state are parties, the elder Justice Harlan pointed out

that the Constitution made no exception of suits brought by the United

States. In effect, therefore, consent to be sued by the United States

“was given by Texas when admitted to the Union upon an equal

footing in all respects with the other States.” 978

Suits brought by the United States have, however, been infrequent. All of them have arisen since 1889, and they have become

somewhat more common since 1926. That year the Supreme Court

decided a dispute between the United States and Minnesota over

land patents issued to the state by the United States in breach of

974 United Steelworkers v. United States, 361 U.S. 39, 43–44 (1960), citing In re

Debs, 158 U.S. 564 (1895).

975 United States v. Raines, 362 U.S. 17, 27 (1960), upholding jurisdiction of the

federal court over an action to enjoin state officials from discriminating against AfricanAmerican citizens seeking to vote in state elections. See also Oregon v. Mitchell, 400

U.S. 112 (1970), in which two of the four cases considered were actions by the United

States to enjoin state compliance with the Voting Rights Act Amendments of 1970.

976 136 U.S. 211 (1890).

977 United States v. Texas, 143 U.S. 621 (1892).

978 143 U.S. at 642–46. This suit, it may be noted, was specifically authorized

by the Act of Congress of May 2, 1890, providing for a temporary government for

the Oklahoma territory to determine the ownership of Greer County. 26 Stat. 81,

92, § 25. See also United States v. Louisiana, 339 U.S. 699, 701–02 (1950).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 833
its trust obligations to the Indian.979 In United States v. West Virginia,

980 the Court refused to take jurisdiction of a suit in equity

brought by the United States to determine the navigability of the

New and Kanawha Rivers on the ground that the jurisdiction in

such suits is limited to cases and controversies and does not extend to the adjudication of mere differences of opinion between the

officials of the two governments. A few years earlier, however, it had

taken jurisdiction of a suit by the United States against Utah to

quiet title to land forming the beds of certain sections of the Colorado River and its tributaries with the states.981 Similarly, it took

jurisdiction of a suit brought by the United States against California to determine the ownership of and paramount rights over the

submerged land and the oil and gas thereunder off the coast of California between the low-water mark and the three-mile limit.982 Like

suits were decided against Louisiana and Texas in 1950.983

Immunity of the United States From Suit.—Pursuant to the

general rule that a sovereign cannot be sued in its own courts, the

judicial power does not extend to suits against the United States

unless Congress by statute consents to such suits. This rule first

emanated in embryonic form in an obiter dictum by Chief Justice

Jay in Chisholm v. Georgia, where he indicated that a suit would

not lie against the United States because “there is no power which

the courts can call to their aid.” 984 In Cohens v. Virginia,

985 also in

dictum, Chief Justice Marshall asserted, “the universally received

opinion is that no suit can be commenced or prosecuted against the

United States.” The issue was more directly in question in United

States v. Clarke,

986 where Chief Justice Marshall stated that, as the

United States is “not suable of common right, the party who institutes such suit must bring his case within the authority of some

act of Congress, or the court cannot exercise jurisdiction over it.”

He thereupon ruled that the act of May 26, 1830, for the final settlement of land claims in Florida condoned the suit. The doctrine of

the exemption of the United States from suit was repeated in various subsequent cases, without discussion or examination.987 In979 United States v. Minnesota, 270 U.S. 181 (1926). For an earlier suit against

a state by the United States, see United States v. Michigan, 190 U.S. 379 (1903).

980 295 U.S. 463 (1935).

981 United States v. Utah, 283 U.S. 64 (1931).

982 United States v. California, 332 U.S. 19 (1947).

983 United States v. Louisiana, 339 U.S. 699 (1950); United States v. Texas, 339

U.S. 707 (1950). See also United States v. Maine, 420 U.S. 515 (1975).

984 2 U.S. (2 Dall.) 419, 478 (1793).

985 19 U.S. (6 Wheat.) 264, 412 (1821).

986 33 U.S. (8 Pet.) 436, 444 (1834).

987 United States v. McLemore, 45 U.S. (4 How.) 286 (1846); Hill v. United States,

50 U.S. (9 How.) 386, 389 (1850); De Groot v. United States, 72 U.S. (5 Wall.) 419,

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

834 ART. III—JUDICIAL DEPARTMENT
deed, it was not until United States v. Lee 988 that the Court examined the rule and the reasons for it, and limited its application

accordingly.

Because suits against the United States can be maintained only

by congressional consent, it follows that they can be brought only

in the manner prescribed by Congress and subject to the restrictions imposed.989 As only Congress may waive the immunity of the

United States from liability, officers of the United States are powerless either to waive such immunity or to confer jurisdiction on a

federal court.990 Even when authorized, suits may be brought only

in designated courts,991 and this rule applies equally to suits by states

431 (1867); United States v. Eckford, 73 U.S. (6 Wall.) 484, 488 (1868); The Siren,

74 U.S. (7 Wall.) 152, 154 (1869); Nichols v. United States, 74 U.S. (7 Wall.) 122,

126 (1869); The Davis, 77 U.S. (10 Wall.) 15, 20 (1870); Carr v. United States, 98

U.S. 433, 437–439 (1879). It is also clear that the Federal Government, in the absence of its consent, is not liable in tort for the negligence of its agents or employees. Gibbons v. United States, 75 U.S. (8 Wall.) 269, 275 (1869); Peabody v. United

States, 231 U.S. 530, 539 (1913); Koekuk & Hamilton Bridge Co. v. United States,

260 U.S. 125, 127 (1922). The reason for such immunity, as stated by Justice Holmes

in Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907), is that “there can be no

legal right as against the authority that makes the law on which the right depends.” See also The Western Maid, 257 U.S. 419, 433 (1922). As the Housing Act

does not purport to authorize suits against the United States as such, the question

is whether the Authority—which is clearly an agency of the United States—

partakes of this sovereign immunity. The answer must be sought in the intention of

the Congress. Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549, 570 (1922);

Federal Land Bank v. Priddy, 295 U.S. 229, 231 (1935). This involves a consideration of the extent to which other government-owned corporations have been held

liable for their wrongful acts. 39 Ops. Atty. Gen. 559, 562 (1938).

988 106 U.S. 196 (1882).

989 Lonergan v. United States, 303 U.S. 33 (1938). Waivers of immunity must

be express. Library of Congress v. Shaw, 461 U.S. 273 (1983) (Civil Rights Act provision that “the United States shall be liable for costs the same as a private person”

insufficient to waive immunity from awards of interest). The result in Shaw was

overturned by a specific waiver. Civil Rights Act of 1991, Pub. L. 102–166, 106 Stat.

1079, § 113, amending 42 U.S.C. § 2000e–16. Immunity was waived, with limitations, for contracts and takings claims in the Tucker Act, 28 U.S.C. § 1346(a)(2). Immunity of the United States for the negligence of its employees was waived, again

with limitations, in the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671–2680.

Other waivers of sovereign immunity include Pub. L. 94–574, § 1, 90 Stat. 2721 (1976),

amending 5 U.S.C. § 702 (waiver for nonstatutory review in all cases save for suits

for money damages); Pub. L. 87–748, § 1(a), 76 Stat. 744 (1962), 28 U.S.C. § 1361

(giving district courts jurisdiction of mandamus actions to compel an officer or employee of the United States to perform a duty owed to plaintiff); Westfall Act, 102

Stat. 4563, 28 U.S.C. § 2679(d) (torts of federal employees acting officially), and the

Equal Access to Justice Act, 5 U.S.C. § 504, 28 U.S.C. § 2412 (making United States

liable for awards of attorneys’ fees in some instances when it loses an administrative proceeding or a lawsuit). See FDIC v. Meyer, 510 U.S. 471 (1994) (FSLIC’s “sueand-be-sued” clause waives sovereign immunity, but a Bivens implied cause of action for constitutional torts cannot be used directly against FSLIC).

990 United States v. New York Rayon Co., 329 U.S. 654 (1947).

991 United States v. Shaw, 309 U.S. 495 (1940). Any consent to be sued will not

be held to embrace action in the federal courts unless the language giving consent

is clear. Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 835
against the United States.992 Congress may also grant or withhold

immunity from suit on behalf of government corporations.993

Suits Against United States Officials.—United States v. Lee,

a 5-to-4 decision, qualified earlier holdings that a judgment affecting the property of the United States was in effect against the United

States, by ruling that title to the Arlington estate of the Lee family, then being used as a national cemetery, was not legally vested

in the United States but was being held illegally by army officers

under an unlawful order of the President. In its examination of the

sources and application of the rule of sovereign immunity, the Court

concluded that the rule “if not absolutely limited to cases in which

the United States are made defendants by name, is not permitted

to interfere with the judicial enforcement of the rights of plaintiff

when the United States is not a defendant or a necessary party to

the suit.” 994 Except, nevertheless, for an occasional case like Kansas v. United States,

995 which held that a state cannot sue the United

States, most of the cases involving sovereign immunity from suit

since 1883 have been cases against officers, agencies, or corporations of the United States where the United States has not been

named as a party defendant. Thus, it has been held that a suit against

the Secretary of the Treasury to review his decision on the rate of

duty to be exacted on imported sugar would disturb the whole revenue system of the government and would in effect be a suit against

the United States.996 Even more significant is Stanley v. Schwalby,

997

holding that an action of trespass against an army officer to try

title in a parcel of land occupied by the United States as a military

reservation was a suit against the United States because a judgment in favor of the plaintiffs would have been a judgment against

the United States.

Subsequent cases reaffirm the rule of United States v. Lee that,

where the right to possession or enjoyment of property under general law is in issue, the fact that defendants claim the property as

officers or agents of the United States does not make the action one

against the United States until it is determined that they were act992 Minnesota v. United States, 305 U.S. 382 (1939). The United States was held

here to be an indispensable party defendant in a condemnation proceeding brought

by a state to acquire a right of way over lands owned by the United States and held

in trust for Indian allottees. See also Block v. North Dakota, 461 U.S. 273 (1983).

993 Brady v. Roosevelt S.S. Co., 317 U.S. 575 (1943).

994 United States v. Lee, 106 U.S. 196, 207–208 (1882). The Tucker Act, 20 U.S.C.

§ 1346(a)(2), now displaces the specific rule of the case, as it provides jurisdiction

against the United States for takings claims.

995 204 U.S. 331 (1907).

996 Louisiana v. McAdoo, 234 U.S. 627, 628 (1914).

997 162 U.S. 255 (1896). Justice Gray endeavored to distinguish between this

case and Lee. Id. at 271. It was Justice Gray who spoke for the dissenters in Lee.

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

836 ART. III—JUDICIAL DEPARTMENT
ing within the scope of their lawful authority.998 On the other hand,

the rule that a suit in which the judgment would affect the United

States or its property is a suit against the United States has also

been repeatedly approved and reaffirmed.999 But, as the Court has

pointed out, it is not “an easy matter to reconcile all of the decisions of the court in this class of cases,” 1000 and, as Justice Frankfurter quite justifiably stated in a dissent, “the subject is not free

from casuistry.” 1001 Justice Douglas’ characterization of Land v. Dollar, “this is the type of case where the question of jurisdiction is

dependent on decision of the merits,” 1002 is frequently applicable.

Larson v. Domestic & Foreign Corp.,

1003 illuminates these obscurities somewhat. A private company sought to enjoin the Administrator of the War Assets in his official capacity from selling surplus

coal to others than the plaintiff who had originally bought the coal,

only to have the sale cancelled by the Administrator because of the

company’s failure to make an advance payment. Chief Justice Vinson

and a majority of the Court looked upon the suit as one brought

against the Administrator in his official capacity, acting under a valid

statute and therefore a suit against the United States. It held that,

although an officer in such a situation is not immune from suits for

his own torts, his official action, though tortious, cannot be enjoined or diverted, because it is also the action of the sovereign.1004

The Court then proceeded to repeat the rule that “the action of an

officer of the sovereign (be it holding, taking, or otherwise legally

affecting the plaintiff’s property) can be regarded as so individual

only if it is not within the officer’s statutory powers, or, if within

those powers, only if the powers or their exercise in the particular

case, are constitutionally void.” 1005 The Court rejected the conten998 Land v. Dollar, 330 U.S. 731, 737 (1947).

999 Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v. Garfield, 211 U.S. 70

(1908); New Mexico v. Lane, 243 U.S. 52 (1917); Wells v. Roper, 246 U.S. 335 (1918);

Morrison v. Work, 266 U.S. 481 (1925); Minnesota v. United States, 305 U.S.. 382

(1939); Mine Safety Co. v. Forrestal, 326 U.S. 371 (1945). See also Minnesota v. Hitchcock,

185 U.S. 373 (1902).

1000 Cunningham v. Macon & Brunswick R.R., 109 U.S. 446, 451 (1883), quoted

by Chief Justice Vinson in the opinion of the Court in Larson v. Domestic & Foreign

Commerce Corp., 337 U.S. 682 (1949).

1001 Larson, 337 U.S. at 708. Justice Frankfurter’s dissent also contains a useful classification of immunity cases and an appendix listing them.

1002 330 U.S. 731, 735 (1947) (emphasis added).

1003 337 U.S. 682 (1949).

1004 337 U.S. at 689–97.

1005 337 U.S. at 701–02. This rule was applied in Goldberg v. Daniels, 231 U.S.

218 (1913), which also involved a sale of government surplus property. After the Secretary of the Navy rejected the highest bid, plaintiff sought mandamus to compel

delivery. This suit was held to be against the United States. See also Perkins v. Lukens

Steel Co., 310 U.S. 113 (1940), which held that prospective bidders for contracts derive no enforceable rights against a federal official for an alleged misinterpretation

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 837
tion that the doctrine of sovereign immunity should be relaxed as

inapplicable to suits for specific relief as distinguished from damage suits, saying: “The Government, as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff

who presents a disputed question of property or contract right.” 1006

Suits against officers involving the doctrine of sovereign immunity have been classified into four general groups by Justice Frankfurter. First, there are those cases in which the plaintiff seeks an

interest in property which belongs to the government or calls “for

an assertion of what is unquestionably official authority.” 1007 Such

suits, of course, cannot be maintained.1008 Second, cases in which

action adverse to the interests of a plaintiff is taken under an unconstitutional statute or one alleged to be so. In general these suits

are maintainable.1009 Third, cases involving injury to a plaintiff because the official has exceeded his statutory authority. In general

of his government’s authority on the ground that an agent is answerable only to his

principal for misconstruction of instructions, given for the sole benefit of the principal. In Larson, the Court not only refused to follow Goltra v. Weeks, 271 U.S. 536

(1926), but in effect overruled it. Goltra involved an attempt of the government to

repossess barges which it had leased under a contract reserving the right to repossess in certain circumstances. A suit to enjoin repossession was held not to be a suit

against the United States on the ground that the actions were personal and in the

nature of a trespass. Also decided in harmony with the Larson decision are the following, wherein the suit was barred as being against the United States: (1) Malone

v. Bowdoin, 369 U.S. 643 (1962), a suit to eject a Forest Service Officer from land

occupied by him in his official capacity under a claim of title from the United States;

and (2) Hawaii v. Gordon, 373 U.S. 57 (1963), an original action by Hawaii against

the Director of the Budget for an order directing him to determine whether a parcel

of federal land could be conveyed to that state. In Dugan v. Rank, 372 U.S. 609

(1963), the Court ruled that inasmuch as the storing and diverting of water at the

Friant Dam resulted, not in a trespass, but in a partial, although a casual day-byday, taking of water rights of claimants along the San Joaquin River below the dam,

a suit to enjoin such diversion by Federal Bureau of Reclamation officers was an

action against the United States, for grant of the remedy sought would force abandonment of a portion of a project authorized and financed by Congress, and would

prevent fulfillment of contracts between the United States and local Water Utility

Districts. Damages were recoverable in a suit under the Tucker Act. 28 U.S.C. § 1346(a).

1006 337 U.S. at 703–04. Justice Frankfurter, dissenting, would have applied the

rule of the Lee case. See Pub. L. 94–574, 1, 90 Stat. 2721 (1976), amending 5 U.S.C.

§ 702 (action seeking relief, except for money damages, against officer, employee, or

agency not to be dismissed as action against United States).

1007 Larson v. Domestic & Foreign Corp., 337 U.S. 682, 709–710 (1949) (dissenting opinion).

1008 Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v. McAdoo, 234 U.S. 627

(1914); Wells v. Roper, 246 U.S. 335 (1918). See also Belknap v. Schild, 161 U.S. 10

(1896); International Postal Supply Co. v. Bruce, 194 U.S. 601 (1904).

1009 Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936); Tennessee Electric Power

Co. v. TVA, 306 U.S. 118 (1939) (holding that one threatened with direct and special

injury by the act of an agent of the government under a statute may challenge the

constitutionality of the statute in a suit against the agent).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

838 ART. III—JUDICIAL DEPARTMENT
these suits are maintainable.1010 Fourth, cases in which an officer

seeks immunity behind statutory authority or some other sovereign command for the commission of a common law tort.1011 This

category of cases presents the greatest difficulties because these suits

can as readily be classified as falling into the first group if the action directly or indirectly is one for specific performance or if the

judgment would affect the United States.

Suits Against Government Corporations.—The multiplication of government corporations during periods of war and depression has provided one motivation for limiting the doctrine of sovereign immunity. In Keifer & Keifer v. RFC,

1012 the Court held that

the government does not become a conduit of its immunity in suits

against its agents or instrumentalities merely because they do its

work. Nor does the creation of a government corporation confer upon

it legal immunity. Whether Congress endows a public corporation

with governmental immunity in a specific instance is a matter of

ascertaining the congressional will. Moreover, it has been held that

waivers of governmental immunity in the case of federal instrumentalities and corporations should be construed liberally.1013 On the

other hand, Indian nations are exempt from suit without further

congressional authorization; it is as though their former immunity

as sovereigns passed to the United States for their benefit, as did

their tribal properties.1014

Suits Between Two or More States

The extension of federal judicial power to controversies between states and the vesting of original jurisdiction in the Supreme Court of suits to which a state is a party had its origin in

experience. Prior to independence, disputes between colonies claiming charter rights to territory were settled by the Privy Council.

Under the Articles of Confederation, Congress was made “the last

resort on appeal” to resolve “all disputes and differences . . . be1010 Philadelphia Co. v. Stimson, 223 U.S. 605 (1912); Waite v. Macy, 246 U.S.

606 (1918).

1011 United States v. Lee, 106 U.S. 196 (1882); Goltra v. Weeks, 271 U.S. 536

(1926); Ickes v. Fox, 300 U.S. 82 (1937); Land v. Dollar, 330 U.S. 731 (1947). See

also Barr v. Matteo, 360 U.S. 564 (1959); Howard v. Lyons, 360 U.S. 593 (1959). An

emerging variant is the constitutional tort case, which springs from Bivens v. Six

Unknown Named Agents, 403 U.S. 388 (1971), and which involves different standards of immunity for officers. Butz v. Economou, 438 U.S. 478 (1978); Carlson v.

Green, 446 U.S. 14 (1980); Harlow v. Fitzgerald, 457 U.S. 800 (1982).

1012 306 U.S. 381 (1939).

1013 FHA v. Burr, 309 U.S. 242 (1940). Nonetheless, the Court held that a congressional waiver of immunity in the case of a governmental corporation did not

mean that funds or property of the United States can be levied on to pay a judgment obtained against such a corporation as the result of waiver of immunity.

1014 United States v. United States Fidelity & Guaranty Co., 309 U.S. 506 (1940).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 839
tween two or more States concerning boundary, jurisdiction, or any

other cause whatever,” and to constitute what in effect were ad hoc

arbitral courts for determining such disputes and rendering a final

judgment therein. When the Philadelphia Convention met in 1787,

serious disputes over boundaries, lands, and river rights involved

ten states.1015 It is hardly surprising, therefore, that during its first

60 years the only state disputes coming to the Supreme Court were

boundary disputes 1016 or that such disputes constitute the largest

single number of suits between states. Since 1900, however, as the

result of the increasing mobility of population and wealth and the

effects of technology and industrialization, other types of cases have

occurred with increasing frequency.

Boundary Disputes: The Law Applied.—Of the earlier examples of suits between states, that between New Jersey and New

York 1017 is significant for the application of the rule laid down earlier in Chisholm v. Georgia that the Supreme Court may proceed

ex parte if a state refuses to appear when duly summoned. The long

drawn out litigation between Rhode Island and Massachusetts is of

even greater significance for its rulings, after the case had been pending for seven years, that though the Constitution does not extend

the judicial power to all controversies between states, yet it does

not exclude any,1018 that a boundary dispute is a justiciable and not

a political question,1019 and that a prescribed rule of decision is unnecessary in such cases. On the last point, Justice Baldwin stated:

“The submission by the sovereigns, or states, to a court of law or

equity, of a controversy between them, without prescribing any rule

of decision, gives power to decide according to the appropriate law

of the case (11 Ves. 294); which depends on the subject-matter, the

source and nature of the claims of the parties, and the law which

governs them. From the time of such submission, the question ceases

to be a political one, to be decided by the sic volo, sic jubeo, of political power; it comes to the court, to be decided by its judgment,

legal discretion and solemn consideration of the rules of law appropriate to its nature as a judicial question, depending on the exercise of judicial power; as it is bound to act by known and settled

1015 Warren, The Supreme Court and Disputes Between States, 34 BULL. OF WILLIAM AND MARY, NO. 4 (1940), 7–11. For a more comprehensive treatment of background as well as the general subject, see C. WARREN, THE SUPREME COURT AND THE

SOVEREIGN STATES (1924).

1016 Id. at 13. However, only three such suits were brought in this period, 1789–

1849. During the next 90 years, 1849–1939, at least twenty-nine such suits were

brought. Id. at 13, 14.

1017 New Jersey v. New York, 30 U.S. (5 Pet.) 284 (1931).

1018 Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838).

1019 37 U.S. at 736–37.

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

840 ART. III—JUDICIAL DEPARTMENT
principles of national or municipal jurisprudence, as the case requires.” 1020

Modern Types of Suits Between States.—Beginning with Missouri v. Illinois & Chicago District,

1021 which sustained jurisdiction

to entertain an injunction suit to restrain the discharge of sewage

into the Mississippi River, water rights, the use of water resources,

and the like, have become an increasing source of suits between

states. Such suits have been especially frequent in the western

states,1022 where water is even more of a treasure than elsewhere,

but they have not been confined to any one region. In Kansas v.

Colorado,

1023 the Court established the principle of the equitable

division of river or water resources between conflicting state interests. In New Jersey v. New York,

1024 where New Jersey sought to

enjoin the diversion of waters into the Hudson River watershed for

New York in such a way as to diminish the flow of the Delaware

River in New Jersey, injure its shad fisheries, and increase harmfully the saline contents of the Delaware, Justice Holmes stated for

the Court: “A river is more than an amenity, it is a treasure. It

offers a necessity of life that must be rationed among those who

have power over it. New York has the physical power to cut off all

the water within its jurisdiction. But clearly the exercise of such a

power to the destruction of the interest of lower States could not

be tolerated. And on the other hand equally little could New Jersey

be permitted to require New York to give up its power altogether

in order that the River might come down to it undiminished. Both

States have real and substantial interests in the River that must

be reconciled as best they may be.” 1025

1020 37 U.S. at 737. Chief Justice Taney dissented because of his belief that the

issue was not one of property in the soil, but of sovereignty and jurisdiction, and

hence political. Id. at 752–53. For different reasons, it should be noted, a suit between private parties respecting soil or jurisdiction of two states, to which neither

state is a party, does not come within the original jurisdiction of the Supreme Court.

Fowler v. Lindsey, 3 U.S. (3 Dall.) 411 (1799). For recent boundary cases, see United

States v. Maine (Rhode Island and New York Boundary Case), 469 U.S. 504 (1985);

United States v. Louisiana (Alabama and Mississippi Boundary Case), 470 U.S. 93

(1985); United States v. Maine, 475 U.S. 89 (1986); Georgia v. South Carolina, 497

U.S. 336 (1990); Mississippi v. Louisiana, 506 U.S. 73 (1992).

1021 180 U.S. 208 (1901).

1022 E.g. Montana v. Wyoming, 563 U.S. ___, No. 137, Orig., slip op. (2011).

1023 206 U.S. 46 (1907). See also Idaho ex rel. Evans v. Oregon and Washington,

444 U.S. 380 (1980).

1024 283 U.S. 336 (1931).

1025 283 U.S. at 342. See also Nebraska v. Wyoming, 325 U.S. 589 (1945); Idaho

ex rel. Evans v. Oregon, 462 U.S. 1017 (1983). In Ohio v. Wyandotte Chemicals Corp.,

401 U.S. 493 (1971), the Court held it had jurisdiction of a suit by a state against

citizens of other states to abate a nuisance allegedly caused by the dumping of mercury into streams that ultimately run into Lake Erie, but it declined to permit the

filing because the presence of complex scientific issues made the case more appropriSec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 841
Other types of interstate disputes of which the Court has taken

jurisdiction include suits by a state as the donee of the bonds of

another to collect thereon,1026 by Virginia against West Virginia to

determine the proportion of the public debt of the original State of

Virginia which the latter owed the former,1027 by Arkansas to enjoin Texas from interfering with the performance of a contract by a

Texas foundation to contribute to the construction of a new hospital in the medical center of the University of Arkansas,1028 of one

state against another to enforce a contract between the two,1029 of

a suit in equity between states for the determination of a decedent’s domicile for inheritance tax purposes,1030 and of a suit by two

states to restrain a third from enforcing a natural gas measure that

purported to restrict the interstate flow of natural gas from the state

in the event of a shortage.1031

In Texas v. New Jersey,

1032 the Court adjudicated a multistate

dispute about which state should be allowed to escheat intangible

property consisting of uncollected small debts held by a corporation. Emphasizing that the states could not constitutionally provide a rule of settlement and that no federal statute governed the

matter, the Court evaluated the possible rules and chose the one

easiest to apply and least likely to lead to continuing disputes.

In general, in taking jurisdiction of these suits, along with those

involving boundaries and the diversion or pollution of water resources, the Supreme Court proceeded upon the liberal construction of the term “controversies between two or more States” enunate for first resolution in a district court. See also Texas v. New Mexico, 462 U.S.

554 (1983); Nevada v. United States, 463 U.S. 110 (1983).

1026 South Dakota v. North Carolina, 192 U.S. 286 (1904).

1027 Virginia v. West Virginia, 220 U.S. 1 (1911).

1028 Arkansas v. Texas, 346 U.S. 368 (1953).

1029 Kentucky v. Indiana, 281 U.S. 163 (1930).

1030 Texas v. Florida, 306 U.S. 398 (1939). In California v. Texas, 437 U.S. 601

(1978), the Court denied a state leave to file an original action against another state

to determine the contested domicile of a decedent for death tax purposes, with several Justices of the view that Texas v. Florida had either been wrongly decided or

was questionable. But, after determining that an interpleader action by the administrator of the estate for a determination of domicile was barred by the Eleventh

Amendment, Cory v. White, 457 U.S. 85 (1982), the Court over dissent permitted

filing of the original action. California v. Texas, 457 U.S. 164 (1982).

1031 Pennsylvania v. West Virginia, 262 U.S. 553 (1923). The Court, in Maryland v. Louisiana, 451 U.S. 725 (1981), over strong dissent, relied on this case in

permitting suit contesting a tax imposed on natural gas, the incidence of which fell

on the suing state’s consuming citizens. And, in Wyoming v. Oklahoma, 502 U.S.

437 (1992), the Court permitted a state to sue another to contest a law requiring

that all in-state utilities burn a mixture containing at least 10% in-state coal, the

plaintiff state having previously supplied 100% of the coal to those utilities and thus

suffering a loss of coal-severance tax revenues.

1032 379 U.S. 674 (1965). See also Pennsylvania v. New York, 406 U.S. 206 (1972).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

842 ART. III—JUDICIAL DEPARTMENT
ciated in Rhode Island v. Massachusetts,

1033 and fortified by Chief

Justice Marshall’s dictum in Cohens v. Virginia,

1034 concerning jurisdiction because of the parties to a case, that “it is entirely unimportant, what may be the subject of controversy. Be it what it may,

these parties have a constitutional right to come into the Courts of

the Union.” 1035

Cases of Which the Court Has Declined Jurisdiction.—In

other cases, however, the Court, centering its attention upon the

elements of a case or controversy, has declined jurisdiction. In Alabama v. Arizona,

1036 where Alabama sought to enjoin nineteen states

from regulating or prohibiting the sale of convict-made goods, the

Court went far beyond holding that it had no jurisdiction, and indicated that jurisdiction of suits between states will be exercised only

when absolutely necessary, that the equity requirements in a suit

between states are more exacting than in a suit between private

persons, that the threatened injury to a plaintiff state must be of

great magnitude and imminent, and that the burden on the plaintiff state to establish all the elements of a case is greater than the

burden generally required by a petitioner seeking an injunction in

cases between private parties.

Pursuing a similar line of reasoning, the Court declined to take

jurisdiction of a suit brought by Massachusetts against Missouri and

certain of its citizens to prevent Missouri from levying inheritance

taxes upon intangibles held in trust in Missouri by resident trustees. In holding that the complaint presented no justiciable controversy, the Court declared that to constitute such a controversy, the

complainant state must show that it “has suffered a wrong through

the action of the other State, furnishing ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to . . . the common law

or equity systems of jurisprudence.” 1037 The fact that the trust prop1033 37 U.S. (12 Pet.) 657 (1838).

1034 19 U.S. (6 Wheat.) 264 (1821).

1035 19 U.S. at 378. See Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71,

79–80 (1961); Texas v. New Jersey, 379 U.S. 674, 677 (1965); Pennsylvania v. New

York, 407 U.S. 206 (1972).

1036 291 U.S. 286 (1934). The Court in recent years, with a significant caseload

problem, has been loath to permit filings of original actions where the parties might

be able to resolve their disputes in other courts, even in cases in which the jurisdiction over the particular dispute is exclusively original. Arizona v. New Mexico, 425

U.S. 794 (1976) (dispute subject of state court case brought by private parties); California v. West Virginia, 454 U.S. 1027 (1981). But in Mississippi v. Louisiana, 506

U.S. 73 (1992), the Court’s reluctance to exercise original jurisdiction ran afoul of

the “uncompromising language” of 28 U.S.C. § 1251(a) giving the Court “original and

exclusive jurisdiction” of these kinds of suits.

1037 Massachusetts v. Missouri, 308 U.S. 1, 15–16, (1939), citing Florida v. Mellon, 273 U.S. 12 (1927).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 843
erty was sufficient to satisfy the claims of both states and that recovery by either would not impair any rights of the other distinguished the case from Texas v. Florida,

1038 where the contrary situation

obtained. Furthermore, the Missouri statute providing for reciprocal privileges in levying inheritance taxes did not confer upon Massachusetts any contractual right. The Court then proceeded to reiterate its earlier rule that a state may not invoke the original

jurisdiction of the Supreme Court for the benefit of its residents or

to enforce the individual rights of its citizens.1039 Moreover, Massachusetts could not invoke the original jurisdiction of the Court by

the expedient of making citizens of Missouri parties to a suit not

otherwise maintainable.1040 Accordingly, Massachusetts was held not

to be without an adequate remedy in Missouri’s courts or in a federal district court in Missouri.

The Problem of Enforcement: Virginia v. West Virginia.—A very important issue in interstate litigation is the enforcement of the Court’s decree, once it has been entered. In some types

of suits, this issue may not arise, and if it does, it may be easily

met. Thus, a judgment putting a state in possession of disputed territory is ordinarily self-executing. But if the losing state should oppose execution, refractory state officials, as individuals, would be

liable to civil suits or criminal prosecutions in the federal courts.

Likewise an injunction may be enforced against state officials as

individuals by civil or criminal proceedings. Those judgments, on

the other hand, that require a state in its governmental capacity to

perform some positive act present the issue of enforcement in more

serious form. The issue arose directly in the long and much litigated case between Virginia and West Virginia over the proportion

of the state debt of original Virginia owed by West Virginia after

its separate admission to the Union under a compact which provided that West Virginia assume a share of the debt.

The suit was begun in 1906, and a judgment was rendered against

West Virginia in 1915. Finally, in 1917, Virginia filed a suit against

West Virginia to show cause why, in default of payment of the judgment, an order should not be entered directing the West Virginia

1038 306 U.S. 398 (1939).

1039 308 U.S. at 17, citing Oklahoma v. Atchison, T. & S.F. Ry., 220 U.S. 277,

286 (1911), and Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387, 394 (1938). See

also New Hampshire v. Louisiana and New York v. Louisiana, 108 U.S. 76 (1883),

which held that a state cannot bring a suit on behalf of its citizens to collect on

bonds issued by another state, and Louisiana v. Texas, 176 U.S. 1 (1900), which held

that a state cannot sue another to prevent maladministration of quarantine laws.

1040 308 U.S. at 17, 19.

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

844 ART. III—JUDICIAL DEPARTMENT
legislature to levy a tax for payment of the judgment.1041 Starting

with the rule that the judicial power essentially involves the right

to enforce the results of its exertion,1042 the Court proceeded to hold

that it applied with the same force to states as to other litigants 1043 and to consider appropriate remedies for the enforcement

of its authority. In this connection, Chief Justice White declared:

“As the powers to render the judgment and to enforce it arise from

the grant in the Constitution on that subject, looked at from a generic point of view, both are federal powers and, comprehensively

considered, are sustained by every authority of the Federal Government, judicial, legislative, or executive, which may be appropriately exercised.” 1044 The Court, however, left open the question of

its power to enforce the judgment under existing legislation and scheduled the case for reargument at the next term. Before that could

occur, West Virginia accepted the Court’s judgment and entered into

an agreement with Virginia to pay it.1045

Enforcement Authority Includes Ordering Disgorgement and

Reformation of Certain Agreements.—More recently, the Court,

noting that proceedings under its original jurisdiction are “basically equitable,” has taken the view that its enforcement authority

encompasses ordering disgorgement of part of one state’s gain from

its breach of an interstate compact, as well as reforming certain

agreements adopted by the states.1046 In so doing, the Court emphasized that its enforcement authority derives both from its “inherent

authority” to apportion interstate streams between states equitably and from Congress’s approval of interstate compacts. Specifically, as to its inherent authority, the Court noted that states bargain for water rights “in the shadow of” the Court’s broad power to

1041 The various decisions in Virginia v. West Virginia are found at 206 U.S.

290 (1907); 209 U.S. 514 (1908); 220 U.S. 1 (1911); 222 U.S. 17 (1911); 231 U.S. 89

(1913); 234 U.S. 117 (1914); 238 U.S. 202 (1915); 241 U.S. 531 (1916); 246 U.S. 565

(1918).

1042 246 U.S. at 591.

1043 246 U.S. at 600.

1044 246 U.S. at 601.

1045 C. WARREN, THE SUPREME COURT AND SOVEREIGN STATES 78–79 (1924).

1046 Kansas v. Nebraska, 574 U.S. ___, No. 126, Orig., slip op. at 14–17 (2015).

Equity is “the system of law or body of principles originating in the English Court

of Chancery.” Equity, BLACK’S LAW DICTIONARY (10th ed. 2014). Persons who sought equitable relief “sought to do justice in cases for which there was no adequate remedy

at common law,” Chancery, BLACK’S LAW DICTIONARY (10th ed. 2014), i.e., cases in which

the English courts of law could afford no relief to a plaintiff. While eventually courts

of law and courts providing equitable relief have merged into a single court in most

jurisdictions, an equitable remedy refers to a remedy that equity courts would have

historically granted. See 1 DAN B. DOBBS, DOBBS LAW OF REMEDIES: DAMAGES—EQUITY—

RESTITUTION § 2.1(2), at 59–61 (2d ed. 1993). Compensatory damages are a classic “legal” remedy, whereas an injunction is a classic “equitable” remedy. See RICHARD L.

HASEN, REMEDIES 141 (2d ed. 2010).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 845
apportion them equitably and it is “difficult to conceive” that a state

would agree to enter an agreement as to water rights if the Court

lacked the power to enforce the agreement.1047 The Court similarly

reasoned that its remedial authority “gains still greater force” because a compact between the states, “having received Congress’s blessing, counts as federal law.” 1048 The Court stated, however, that an

interstate compact’s “legal status” as federal law could also limit

the Court’s enforcement power because the Court cannot order relief that is inconsistent with a compact’s express terms.1049

Controversies Between a State and Citizens of Another

State

The decision in Chisholm v. Georgia 1050 that cases “between a

state and citizens of another state” included those where a state

was a party defendant provoked the proposal and ratification of the

Eleventh Amendment, and since then controversies between a state

and citizens of another state have included only those cases where

the state has been a party plaintiff or has consented to be sued.1051

As a party plaintiff, a state may bring actions against citizens of

other states to protect its legal rights or in some instances as parens

patriae to protect the health and welfare of its citizens. In general,

the Court has tended to construe strictly this grant of judicial power,

which simultaneously comes within its original jurisdiction, by perhaps an even more rigorous application of the concepts of cases and

controversies than that in cases between private parties.1052 This it

does by holding rigorously to the rule that all the party defendants

be citizens of other states 1053 and by adhering to congressional distribution of its original jurisdiction concurrently with that of other

federal courts.1054

Jurisdiction Confined to Civil Cases.—In Cohens v. Virginia,

1055 there is a dictum to the effect that the original jurisdiction of the Supreme Court does not include suits between a state

and its own citizens. Long afterwards, the Supreme Court dis1047 See Kansas, slip op. at 8 (quoting Texas v. New Mexico, 462 U.S. 554, 567

(1983)).

1048 Id.

1049 Id.

1050 2 U.S. (2 Dall.) 419 (1793).

1051 See the discussion under the Eleventh Amendment.

1052 Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. Mellon, 273 U.S.

12 (1927); New Jersey v. Sargent, 269 U.S. 328 (1926).

1053 Pennsylvania v. Quicksilver Co., 77 U.S. (10 Wall.) 553 (1871); California v.

Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities Co., 184

U.S. 199 (1902).

1054 Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).

1055 19 U.S. (6 Wheat.) 264, 398–99 (1821).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

846 ART. III—JUDICIAL DEPARTMENT
missed an action for want of jurisdiction because the record did not

show that the corporation against which the suit was brought was

chartered in another state.1056 Subsequently, the Court has ruled

that it will not entertain an action by a state to which its citizens

are either parties of record or would have to be joined because of

the effect of a judgment upon them.1057 In his dictum in Cohens v.

Virginia, Chief Justice Marshall also indicated that perhaps no jurisdiction existed over suits by states to enforce their penal laws.1058

Sixty-seven years later, the Court wrote this dictum into law in Wisconsin v. Pelican Ins. Co.1059 Wisconsin sued a Louisiana corporation to recover a judgment rendered in its favor by one of its own

courts. Relying partly on the rule of international law that the courts

of no country execute the penal laws of another, partly upon the

13th section of the Judiciary Act of 1789, which vested the Supreme Court with exclusive jurisdiction of controversies of a civil

nature where a state is a party, and partly on Justice Iredell’s dissent in Chisholm v. Georgia,

1060 where he confined the term “controversies” to civil suits, Justice Gray ruled for the Court that for purposes of original jurisdiction, “controversies between a State and

citizens of another State” are confined to civil suits.1061

The State’s Real Interest.—Ordinarily, a state may not sue

in its name unless it is the real party in interest with real interests. It can sue to protect its own property interests,1062 and if it

sues for its own interest as owner of another state’s bonds, rather

than as an assignee for collection, jurisdiction exists.1063 Where a

state, in order to avoid the limitation of the Eleventh Amendment,

provided by statute for suit in the name of the state to collect on

the bonds of another state held by one of its citizens, it was refused the right to sue.1064 Nor can a state sue the citizens of other

states on behalf of its own citizens to collect claims.1065

The State as Parens Patriae.—The distinction between suits

brought by states to protect the welfare of their citizens as a whole

and suits to protect the private interests of individual citizens is

1056 Pennsylvania v. Quicksilver Mining Co., 77 U.S. (10 Wall.) 553 (1871).

1057 California v. Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities Co., 184 U.S. 199 (1902).

1058 19 U.S. (6 Wheat.) at 398–99.

1059 127 U.S. 265 (1888).

1060 2 U.S. (2 Dall.) 419, 431–32 (1793).

1061 127 U.S. at 289–300.

1062 Pennsylvania v. Wheeling & B. Bridge Co., 54 U.S. (13 How.) 518, 559 (1852);

Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938); Georgia v. Evans, 316 U.S.

159 (1942).

1063 South Dakota v. North Carolina, 192 U.S. 286 (1904).

1064 New Hampshire v. Louisiana, 108 U.S. 76 (1883).

1065 Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 847
not easily drawn. Thus, in Oklahoma v. Atchison, T. & S.F. Ry.,

1066

the state was refused permission to sue to enjoin unreasonable rate

charges by a railroad on the shipment of specified commodities, because the state was not engaged in shipping these commodities and

had no proprietary interest in them. But, in Georgia v. Pennsylvania R.Co.,

1067 a closely divided Court accepted a suit by the state,

suing as parens patriae and in its proprietary capacity—the latter

being treated by the Court as something of a makeweight—seeking

injunctive relief against 20 railroads on allegations that the rates

were discriminatory against the state and its citizens and their economic interests and that the rates had been fixed through coercive

action by the northern roads against the southern lines in violation

of the Clayton Antitrust Act. For the Court, Justice Douglas observed that the interests of a state for purposes of invoking the original jurisdiction of the Court were not to be confined to those which

are proprietary but rather “embrace the so called ‘quasi-sovereign’

interests which . . . are ‘independent of and behind the titles of its

citizens, in all the earth and air within its domain.’ ” 1068

Discriminatory freight rates, the Justice continued, may cause

a blight no less serious than noxious gases in that they may arrest

the development of a state and put it at a competitive disadvantage. “Georgia as a representative of the public is complaining of a

wrong which, if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to

an inferior economic position among her sister States. These are

matters of grave public concern in which Georgia has an interest

apart from that of particular individuals who may be affected. Georgia’s interest is not remote; it is immediate. If we denied Georgia

as parens patriae the right to invoke the original jurisdiction of the

Court in a matter of that gravity, we would whittle the concept of

justiciability down to the stature of minor or conventional controversies. There is no warrant for such a restriction.” 1069

1066 220 U.S. 277 (1911).

1067 324 U.S. 439 (1945).

1068 324 U.S. at 447–48 (quoting from Georgia v. Tennessee Copper Co., 206 U.S.

230, 237 (1907), in which the state was permitted to sue as parens patriae to enjoin

the defendant from emitting noxious gases from its works in Tennessee which caused

substantial damage in nearby areas of Georgia). In Alfred L. Snapp & Son v. Puerto

Rico ex rel. Barez, 458 U.S. 592, 607–08 (1982), the Court attempted to enunciate

the standards by which to recognize permissible parens patriae assertions. See also

Maryland v. Louisiana, 451 U.S. 725, 737–39 (1981).

1069 Georgia v. Pennsylvania R. Co., 324 U.S. 439, 468 (1945). Chief Justice Stone

and Justices Roberts, Frankfurter, and Jackson dissented.

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

848 ART. III—JUDICIAL DEPARTMENT
The continuing vitality of this case is in some doubt, as the Court

has limited it in a similar case.1070 But the ability of states to act

as parens patriae for their citizens in environmental pollution cases

seems established, although as a matter of the Supreme Court’s original jurisdiction such suits are not in favor.1071

One clear limitation had seemed to be solidly established until

later litigation cast doubt on its foundation. It is no part of a state’s

“duty or power,” said the Court in Massachusetts v. Mellon,

1072 “to

enforce [its citizens’] rights in respect to their relations with the

Federal Government. In that field, it is the United States and not

the state that represents them as parens patriae when such representation becomes appropriate; and to the former, and not to the

latter, they must look for such protective measures as flow from that

status.” But, in South Carolina v. Katzenbach,

1073 while holding that

the state lacked standing under Massachusetts v. Mellon to attack

the constitutionality of the Voting Rights Act of 1965 1074 under the

Fifth Amendment’s Due Process Clause and under the Bill of Attainder Clause of Article I,1075 the Court decided on the merits the state’s

claim that Congress had exceeded its powers under the Fifteenth

1070 In Hawaii v. Standard Oil Co., 405 U.S. 251 (1972), the Court, five-to-two,

held that the state could not maintain an action for damages parens patriae under

the Clayton Act and limited the previous case to instances in which injunctive relief

is sought. Hawaii had brought its action in federal district court. The result in Hawaii was altered by Pub. L. 94–435, 90 Stat. 1383 (1976), 15 U.S.C. §§ 15c et seq.,

but the decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), reduced the

significance of the law.

1071 Most of the cases, but see Georgia v. Tennessee Copper Co., 206 U.S. 230

(1907), concern suits by one state against another. Missouri v. Illinois, 180 U.S. 208

(1901); New York v. New Jersey, 256 U.S. 296 (1921); North Dakota v. Minnesota,

263 U.S. 365 (1923). Although recognizing that original jurisdiction exists when a

state sues a political subdivision of another state or a private party as parens patriae

for its citizens and on its own proprietary interests to abate environmental pollution, the Court has held that, because of the technical complexities of the issues

and the inconvenience of adjudicating them on its original docket, the cases should

be brought in federal district court under federal question jurisdiction founded on

the federal common law. Illinois v. City of Milwaukee, 406 U.S. 91 (1972); Washington v. General Motors Corp., 406 U.S. 109 (1972). The Court had earlier thought the

cases must be brought in state court. Ohio v. Wyandotte Chemicals Corp., 401 U.S.

493 (1971).

1072 262 U.S. 447, 486 (1923).

1073 383 U.S. 301 (1966). The state sued the Attorney General of the United States

as a citizen of New Jersey, thus creating the requisite jurisdiction, and avoiding the

problem that the States may not sue the United States without its consent. Minnesota v. Hitchcock, 185 U.S. 373 (1902); Oregon v. Hitchcock, 202 U.S. 60 (1906); Kansas v. United States, 204 U.S. 331 (1907). The expedient is, of course, the same device as is used to avoid the Eleventh Amendment prohibition against suing a state

by suing its officers. Ex parte Young, 209 U.S. 123 (1908).

1074 79 Stat. 437 (1965), 42 U.S.C. §§ 1973 et seq.

1075 The Court first held that neither of these provisions were restraints on what

the Federal Government might do with regard to a state. It then added: “Nor does a

State have standing as the parent of its citizens to invoke these constitutional proSec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 849
Amendment.1076 Was the Court here sub silentio permitting it to

assert its interest in the execution of its own laws, rather than those

enacted by Congress, or its interest in having Congress enact only

constitutional laws for application to its citizens, an assertion that

is contrary to a number of supposedly venerated cases? 1077 Either

possibility would be significant in a number of respects.1078

Controversies Between Citizens of Different States

The records of the Federal Convention are silent on why the

Framers included controversies between citizens of different states

among the judicial power of the United States,1079 but Congress has

given “diversity jurisdiction” in one form or another to the federal

courts since the Judiciary Act of 1789.1080 The traditional explanation remains that offered by Chief Justice Marshall. “However true

visions against the Federal Government, the ultimate parents patriae of every American citizen.” South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966).

1076 The Court did not indicate on what basis South Carolina could raise the

issue. At the beginning of its opinion, the Court noted that “[o]riginal jurisdiction is

founded on the presence of a controversy between a State and a citizen of another

State under Art. III, § 2, of the Constitution. See Georgia v. Pennsylvania R. Co.,

324 U.S. 439.” 383 U.S. at 307. But surely this did not refer to that case’s parens

patriae holding.

1077 See Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. Mellon, 273

U.S. 12 (1927); Jones ex rel. Louisiana v. Bowles, 322 U.S. 707 (1944). See especially

Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867); Mississippi v. Johnson, 71 U.S. (4

Wall.) 475 (1867). In Oregon v. Mitchell, 400 U.S. 112 (1970), four original actions

were consolidated and decided. Two were actions by the United States against States,

but the other two were suits by States against the Attorney General, as a citizen of

New York, seeking to have the Voting Rights Act Amendments of 1970 voided as

unconstitutional. South Carolina v. Katzenbach was uniformly relied on by all parties as decisive of the jurisdictional question, and in announcing the judgment of

the Court Justice Black simply noted that no one raised jurisdictional or justiciability questions. Id. at 117 n.1. See also id. at 152 n.1 (Justice Harlan concurring in

part and dissenting in part); South Carolina v. Baker, 485 U.S. 505 (1988); South

Carolina v. Regan, 465 U.S. 367 (1984).

1078 Bickel, The Voting Rights Cases, 1966 SUP. CT. REV. 79, 80–93.

1079 Friendly, The Historic Basis of Diversity Jurisdiction, 41 HARV. L. REV. 483

(1928).

1080 1 Stat. 78, 11. The statute also created alienage jurisdiction of suits between a citizen of a state and an alien. See Holt, The Origins of Alienage Jurisdiction, 14 OKLA. CITY L. REV. 547 (1989). Early versions of the statute conferred diversity jurisdiction only when the suit was between a citizen of the state in which the

suit was brought and a citizen of another state. The Act of March 3, 1875, § 1. 18

Stat. 470, first established the language in the present statute, 28 U.S.C. § 1332(a)(1),

merely requiring diverse citizenship, so that a citizen of Maryland could sue a citizen of Delaware in federal court in New Jersey. The statute also sets a threshold

amount at controversy for jurisdiction to attach; the jurisdictional amount was as

low as $3,000 in 1958, but set at $75,000 in 1996. 28 U.S.C. § 1332(a). Snyder v.

Harris, 394 U.S. 332 (1969), held that in a class action in diversity the individual

claims could not be aggregated to meet the jurisdictional amount. Zahn v. International Paper Co., 414 U.S. 291 (1974), extended Snyder in holding that even though

the named plaintiffs had claims of more than $10,000, the extant jurisdictional amount,

they could not represent a class in which many of the members had claims for less

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850 ART. III—JUDICIAL DEPARTMENT
the fact may be, that the tribunals of the states will administer justice as impartially as those of the nation, to parties of every description, it is not less true that the Constitution itself either entertains

apprehensions on this subject, or views with such indulgence the

possible fears and apprehensions of suitors, that it has established

national tribunals for the decision of controversies between aliens

and a citizen, or between citizens of different states.” 1081 Other explanations have been offered and controverted,1082 but diversity cases

constitute a large bulk of cases on the dockets of the federal courts

today, though serious proposals for restricting access to federal courts

in such cases have been before Congress for some time.1083 The essential difficulty with this type of jurisdiction is that it requires federal judges to decide issues of local import on the basis of their reading of how state judges would decide them, an oftentimes laborious

process, which detracts from the time and labor needed to resolve

issues of federal import.

The Meaning of “State” and the District of Columbia Problem.—In Hepburn v. Ellzey,

1084 Chief Justice Marshall for the Court

confined the meaning of the word “state” as used in the Constitution to “the members of the American confederacy” and ruled that

a citizen of the District of Columbia could not sue a citizen of Virginia on the basis of diversity of citizenship. Marshall noted that it

was “extraordinary that the courts of the United States, which are

open to aliens, and to the citizens of every state in the union, should

be closed upon them. But this is a subject for legislative, not for

judicial consideration.” 1085 The same rule was subsequently applied to citizens of the territories of the United States.1086

Whether the Chief Justice had in mind a constitutional amendment or a statute when he spoke of legislative consideration remains unclear. Not until 1940, however, did Congress attempt to

meet the problem by statutorily conferring on federal district courts

jurisdiction of civil actions, not involving federal questions, “between citizens of different States, or citizens of the District of Columbia, the Territory of Hawaii, or Alaska and any State or Territhan $10,000. A separate provision on diversity and class actions sets the jurisdictional amount at $5 million. 28 U.S.C. § 1332(d).

1081 Bank of the United States v. Deveaux, 9 U.S. (5 Cr.) 61, 87 (1809).

1082 Summarized and discussed in C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL

COURTS 23 (4th ed. 1983); AMERICAN LAW INSTITUTE, STUDY OF THE DIVISION OF JURISDICTION

BETWEEN STATE AND FEDERAL COURTS 99–110, 458–464 (1969).

1083 The principal proposals are those of the American Law Institute. Id. at 123–

34.

1084 6 U.S. (2 Cr.) 445 (1805).

1085 6 U.S. at 453.

1086 City of New Orleans v. Winter, 14 U.S. (1 Wheat.) 91 (1816).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 851
tory.” 1087 In National Mutual Ins. Co. v. Tidewater Transfer Co.,

1088

this act was upheld in a five-to-four decision but for widely divergent reasons by a coalition of Justices. Two Justices thought that

Chief Justice Marshall’s 1804 decision should be overruled, but the

other seven Justices disagreed; however, three of the seven thought

the statute could be sustained under Congress’s power to enact legislation for the inhabitants of the District of Columbia, but the remaining four plus the other two rejected this theory. The statute

was upheld because a total of five Justices voted to sustain it, although of the two theories relied on, seven Justices rejected one

and six the other. The result, attributable to “conflicting minorities

in combination,” 1089 means that Hepburn v. Ellzey is still good law

insofar as it holds that the District of Columbia is not a state, but

is overruled insofar as it holds that District citizens may not use

federal diversity jurisdiction.1090

Citizenship of Natural Persons.—For purposes of diversity

jurisdiction, state citizenship is determined by the concept of domicile 1091 rather than of mere residence.1092 That is, while the Court’s

definition has varied throughout the cases,1093 a person is a citizen

of the state in which he has his true, fixed, and permanent home

and principal establishment and to which he intends to return whenever he is absent from it.1094 Acts may disclose intention more clearly

and decisively than declarations.1095 One may change his domicile

in an instant by taking up residence in the new place and by intending to remain there indefinitely and one may obtain the benefit of

diversity jurisdiction by so changing for that reason alone,1096 provided the change is more than a temporary expedient.1097

If the plaintiff and the defendant are citizens of different states,

diversity jurisdiction exists regardless of the state in which suit is

brought.1098 Chief Justice Marshall early established that in multi1087 54 Stat. 143 (1940), as revised, 28 U.S.C. § 1332(d).

1088 337 U.S. 582 (1948).

1089 337 U.S. at 655 (Justice Frankfurter dissenting).

1090 The statute’s provision allowing citizens of Puerto Rico to sue in diversity

was sustained in Americana of Puerto Rico v. Kaplus, 368 F.2d 431 (3d Cir. 1966),

cert. denied, 386 U.S. 943 (1967), under Congress’s power to make rules and regulations for United States territories. Cf. Examining Bd. v. Flores de Otero, 426 U.S.

572, 580–597 (1976) (discussing congressional acts with respect to Puerto Rico).

1091 Chicago & N.W.R.R. v. Ohle, 117 U.S. 123 (1886).

1092 Sun Printing & Pub. Ass’n v. Edwards, 194 U.S. 377 (1904).

1093 Knox v. Greenleaf, 4 U.S. (4 Dall.) 360 (1802); Shelton v. Tiffin, 47 U.S. (6

How.) 163 (1848); Williamson v. Osenton, 232 U.S. 619 (1914).

1094 Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954).

1095 Shelton v. Tiffin, 47 U.S. (6 How.) 163 (1848).

1096 Williamson v. Osenton, 232 U.S. 619 (1914).

1097 Jones v. League, 59 U.S. (18 How.) 76 (1855).

1098 28 U.S.C. § 1332(a)(1).

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852 ART. III—JUDICIAL DEPARTMENT
party litigation, there must be complete diversity, that is, that no

party on one side could be a citizen of any state of which any party

on the other side was a citizen.1099 It has now apparently been decided that this requirement flows from the statute on diversity rather

than from the constitutional grant and that therefore minimal diversity is sufficient.1100 The Court has also placed some issues beyond litigation in federal courts in diversity cases, apparently solely

on policy grounds.1101

Citizenship of Corporations.—In Bank of the United States

v. Deveaux,

1102 Chief Justice Marshall declared: “That invisible, intangible, and artificial being, that mere legal entity, a corporation

aggregate, is certainly not a citizen; and consequently cannot sue

or be sued in the courts of the United States, unless the rights of

the members, in this respect, can be exercised in their corporate

name.” Nevertheless, the Court upheld diversity jurisdiction in the

case because the members of the bank as a corporation were citizens of one state and Deveaux was a citizen of another. The holding that corporations were citizens of the states where their stockholders lived was reaffirmed a generation later,1103 but pressures

were building for change. While corporations were assuming an ever

more prominent economic role, the Strawbridge rule, which foreclosed diversity suits if any plaintiff had common citizenship with

any defendant,1104 was working to close the doors of the federal courts

to corporations with stockholders in many states.

Deveaux was overruled in 1844, when, after elaborate argument, a divided Court held that “a corporation created by and do1099 Strawbridge v. Curtiss, 7 U.S. (3 Cr.) 267 (1806).

1100 In State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 530–31 (1967),

holding that congressional provision in the interpleader statute of minimal diversity, 28 U.S.C. § 1335(a)(1), was valid, the Court said of Strawbridge, “Chief Justice

Marshall there purported to construe only ‘The words of the act of Congress,’ not

the Constitution itself. And in a variety of contexts this Court and the lower courts

have concluded that Article III poses no obstacle to the legislative extension of federal jurisdiction, founded on diversity, so long as any two adverse parties are not

co-citizens.” Of course, the diversity jurisdictional statute not having been changed,

complete diversity of citizenship, outside the interpleader situation, is still required.

In class actions, only the citizenship of the named representatives is considered and

other members of the class can be citizens of the same state as one or more of the

parties on the other side. Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 (1921);

Snyder v. Harris, 394 U.S. 332, 340 (1969).

1101 In domestic relations cases and probate matters, the federal courts will not

act, though diversity exists. Barber v. Barber, 62 U.S. (21 How.) 582 (1858); Ex parte

Burrus, 136 U.S. 586 (1890); In re Broderick’s Will, 88 U.S. (21 Wall.) 503 (1875).

These cases merely enunciated the rule, without justifying it; when the Court squarely

faced the issue quite recently, it adhered to the rule, citing justifications. Ankenbrandt

v. Richards, 504 U.S. 689 (1992).

1102 9 U.S. (5 Cr.) 61, 86 (1809).

1103 Commercial & Railroad Bank v. Slocomb, 39 U.S. (14 Pet.) 60 (1840).

1104 Strawbridge v. Curtiss, 7 U.S. (3 Cr.) 267 (1806).

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

ART. III—JUDICIAL DEPARTMENT 853
ing business in a particular state, is to be deemed to all intents

and purposes as a person, although an artificial person, an inhabitant of the same state, for the purposes of its incorporation, capable

of being treated as a citizen of that state, as much as a natural

person.” 1105 Ten years later, the Court abandoned this rationale, but

it achieved the same result by “indulg[ing] in the fiction that, although a corporation was not itself a citizen for diversity purposes,

its shareholders would be conclusively presumed citizens of the incorporating State.” 1106 “State of incorporation” remained the guiding rule for determining the place of corporate citizenship until Congress amended the jurisdictional statute in 1958. Concern over growing

dockets and companies incorporating in states of convenience then

led to a dual citizenship rule whereby “a corporation shall be deemed

to be a citizen of any State by which it has been incorporated and

of the State where it has its principal place of business.” 1107 The

right of foreign corporations to resort to federal courts in diversity

is not one that the states may condition as a qualification for doing

business in the state.1108

Unincorporated associations, such as partnerships, joint stock

companies, labor unions, governing boards of institutions, and the

like, do not enjoy the same privilege as a corporation; the actual

citizenship of each of its members must be considered in determining whether diversity exists.1109

Manufactured Diversity.—A litigant who, because of diversity of citizenship, can choose whether to sue in state or federal

1105 Louisville, C. & C.R.R. v. Letson, 43 U.S. (2 How.) 497, 558 (1844).

1106 United Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145, 148 (1965), citing

Marshall v. Baltimore & Ohio R.R., 57 U.S. (16 How.) 314 (1854). See Muller v. Dows,

94 U.S. 444 (1877); St. Louis & S.F. Ry. v. James, 161 U.S. 545 (1896); Carden v.

Arkoma Associates, 494 U.S. 185, 189 (1990).

1107 28 U.S.C. § 1332(c)(1). In Hertz Corp. v. Friend, 559 U.S. ___, No. 08–1107,

slip op. (2010), the Court recounted the development of the rules on corporate jurisdictional citizenship in deciding that a corporation’s “principal place of business” under the statute is its “nerve center,” the place where the corporation’s officers direct,

control, and coordinate the corporation’s activities.

The jurisdictional statute additionally deems the place of an insured’s citizenship as an additional place of citizenship of an insurer being sued in a direct action

case.

1108 In Terral v. Burke Constr. Co., 257 U.S. 529 (1922), the Court resolved two

conflicting lines of cases and voided a state statute that required the cancellation of

the license of a foreign corporation to do business in the state upon notice that the

corporation had removed a case to a federal court.

1109 Chapman v. Barney, 129 U.S. 677 (1889); Great Southern Fire Proof Hotel

Co. v. Jones, 177 U.S. 449 (1900); Thomas v. Board of Trustees, 195 U.S. 207 (1904);

United Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145 (1965); Carden v. Arkoma

Associates, 494 U.S. 185 (1990). But compare People of Puerto Rico v. Russell & Co.,

288 U.S. 476 (1933), distinguished in Carden, 494 U.S. at 189–190, and Navarro

Savings Ass’n v. Lee, 446 U.S. 458 (1980), distinguished in Carden, 494 U.S. at 191–

192.

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

854 ART. III—JUDICIAL DEPARTMENT
court, will properly consider where the advantages and disadvantages balance, and if diversity is lacking, a litigant who perceives

the balance to favor the federal forum will sometimes attempt to

create diversity. In the Judiciary Act of 1789, Congress exempted

from diversity jurisdiction suits on choses of action in favor of an

assignee unless the suit could have been brought in federal court if

no assignment had been made.1110 One could create diversity by a

bona fide change of domicile even with the sole motive of creating

domicile.1111 Similarly, one could create diversity, or defeat it, by choosing a personal representative of the requisite citizenship.1112 Most

attempts to manufacture or create diversity have involved corporations. A corporation cannot get into federal court by transferring

its claim to a subsidiary incorporated in another state,1113 and for

a time the Supreme Court tended to look askance at collusory incorporations and the creation of dummy corporations for purposes

of creating diversity.1114 But, in Black & White Taxicab & Transfer

Co. v. Brown & Yellow Taxicab & Transfer Co.,

1115 it became highly

important to the plaintiff company to bring its suit in federal court

rather than in a state court. Thus, Black & White, a Kentucky corporation, dissolved itself and obtained a charter as a Tennessee corporation; the only change made was the state of incorporation, the

name, officers, shareholders, and location of the business remaining the same. A majority of the Court, over a strong dissent by Justice Holmes,1116 saw no collusion and upheld diversity, meaning that

the company won whereas it would have lost had it sued in the

state court. Black & White Taxicab probably more than anything

led to a reexamination of the decision on the choice of law to be

applied in diversity litigation.

1110 Ch. XIX, § 11, 1 Stat. 78, sustained in Turner v. Bank of North America, 4

U.S. (4 Dall.) 8 (1799), and Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). The present

statute, 28 U.S.C. § 1359, provides that no jurisdiction exists in a civil action “in

which any party, by assignment or otherwise, has been improperly or collusively made

or joined to invoke the jurisdiction of such court.” See Kramer v. Caribbean Mills,

394 U.S. 823 (1969).

1111 Williamson v. Osenton, 232 U.S. 619 (1914); Morris v. Gilmer, 129 U.S. 315

(1889).

1112 Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183 (1931).

1113 Miller & Lux v. East Side Canal & Irrigation Co., 211 U.S. 293 (1908).

1114 E.g., Southern Realty Co. v. Walker, 211 U.S. 603 (1909).

1115 276 U.S. 518 (1928).

1116 276 U.S. at 532 (joined by Justices Brandeis and Stone). Justice Holmes

here presented his view that Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842), had been

wrongly decided, but he preferred not to overrule it, merely “not allow it to spread

. . . into new fields.” 276 U.S. at 535.

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ART. III—JUDICIAL DEPARTMENT 855
The Law Applied in Diversity Cases.—By virtue of § 34 of

the Judiciary Act of 1789,1117 state law expressed in constitutional

and statutory form was regularly applied in federal courts in diversity actions to govern the disposition of such cases. But, in Swift v.

Tyson,

1118 Justice Story for the Court ruled that state court decisions were not laws within the meaning of § 34 and though entitled to respect were not binding on federal judges, except with regard to matters of a “local nature,” such as statutes and interpretations

thereof pertaining to real estate and other immovables, in contrast

to questions of general commercial law as to which the answers were

dependent not on “the decisions of the local tribunals, but in the

general principles and doctrines of commercial jurisprudence.” 1119

The course of decision over the period of almost one hundred years

was toward an expansion of the areas in which federal judges were

free to construct a federal common law and a concomitant contraction of the definition of “local” laws.1120 Although dissatisfaction with

1117 The section provided that “the laws of the several states, except where the

constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of

the United States in cases where they apply.” 1 Stat. 92. With only insubstantial

changes, the section now appears as 28 U.S.C. § 1652. For a concise review of the

entire issue, see C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS ch. 9 (4th ed.

1983).

1118 41 U.S. (16 Pet.) 1 (1842). The issue in the case was whether a pre-existing

debt was good consideration for an indorsement of a bill of exchange so that the

endorsee would be a holder in due course.

1119 41 U.S. at 19. The Justice concluded this portion of the opinion: “The law

respecting negotiable instruments may be truly declared in the language of Cicero,

adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. R. 883, 887, to be in great measure, not the law of a single country only, but of the commercial world. Nun erit

alia lex Romae, alia Athenis; alia munc, alia posthac, sed et apud omnes gentes, et

omni tempore una eademque lex obtenebit.” Id. The thought that the same law should

prevail in Rome as in Athens was used by Justice Story in DeLovio v. Boit, 7 Fed.

Cas. 418, 443 (No. 3776) (C.C.D. Mass. 1815). For a modern use, see United States

v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966); 380 F.2d 385, 398

(5th Cir. 1967) (dissenting opinion).

1120 The expansions included Lane v. Vick, 44 U.S. (3 How.) 464 (1845) (wills);

City of Chicago v. Robbins, 67 U.S. (2 Bl.) 418 (1862), and Baltimore & Ohio R.R. v.

Baugh, 149 U.S. 368 (1893) (torts); Yates v. City of Milwaukee, 77 U.S. (10 Wall.)

497 (1870) (real estate titles and rights of riparian owners); Kuhn v. Fairmont Coal

Co., 215 U.S. 349 (1910) (mineral conveyances); Rowan v. Runnels, 46 U.S. (5 How.)

134 (1847) (contracts); Lake Shore & M.S. Ry. v. Prentice, 147 U.S. 101 (1893). It

was strongly contended that uniformity, the goal of Justice Story’s formulation, was

not being achieved, in great part because state courts followed their own rules of

decision even when prior federal decisions were contrary. Frankfurter, Distribution

of Judicial Power Between Federal and State Courts, 13 CORNELL L.Q. 499, 529 n.150

(1928). Moreover, the Court held that, although state court interpretations of state

statutes or constitutions were to be followed, federal courts could ignore them if they

conflicted with earlier federal constructions of the same statute or constitutional provision, Rowan v. Runnels, 46 U.S. (5 How.) 134 (1847), or if they had been rendered

after the case had been tried in federal court, Burgess v. Seligman, 107 U.S. 20 (1883),

thus promoting lack of uniformity. See also Gelpcke v. City of Debuque, 68 U.S. (1

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

856 ART. III—JUDICIAL DEPARTMENT
Swift v. Tyson was almost always present, within and without the

Court,1121 it was the Court’s decision in Black & White Taxicab &

Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.1122 that brought

disagreement to the strongest point and perhaps precipitated the

overruling of Swift v. Tyson in Erie Railroad Co. v. Tompkins.

1123

“It is impossible to overstate the importance of the Erie decision. It announces no technical doctrine of procedure or jurisdiction, but goes to the heart of the relations between the Federal Government and the states, and returns to the states a power that had

for nearly a century been exercised by the federal government.” 1124

Erie was remarkable in a number of ways aside from the doctrine

it announced. It reversed a 96-year-old precedent, which counsel had

specifically not questioned; it reached a constitutional decision when

a statutory interpretation was available though perhaps less desirable; and it marked the only time in United States constitutional

history when the Court has held that it had undertaken an unconstitutional action.1125

Wall.) 175 (1865); Williamson v. Berry, 49 U.S. (8 How.) 495 (1850); Pease v. Peck,

59 U.S. (18 How.) 595 (1856); Watson v. Tarpley, 59 U.S. (18 How.) 517 (1856).

1121 Extensions of the scope of Tyson frequently were rendered by a divided Court

over the strong protests of dissenters. E.g., Gelpcke v. City of Debuque, 68 U.S. (1

Wall.) 175 (1865); Lane v. Vick, 44 U.S. (3 How.) 463 (1845); Kuhn v. Fairmont Coal

Co., 215 U.S. 349 (1910). In Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 401–04

(1893), Justice Field dissented in an opinion in which he expressed the view that

Supreme Court disregarding of state court decisions was unconstitutional, a view

endorsed by Justice Holmes in Black & White Taxicab & Transfer Co. v. Brown &

Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (dissenting opinion), and

adopted by the Court in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Numerous proposals were introduced in Congress to change the rule.

1122 276 U.S. 518 (1928). B. & W. had contracted with a railroad to provide exclusive taxi service at its station. B. & Y. began operating taxis at the same station

and B. & W. wanted to enjoin the operation, but it was a settled rule by judicial

decision in Kentucky courts that such exclusive contracts were contrary to public

policy and were unenforceable in court. Therefore, B. & W. dissolved itself in Kentucky and reincorporated in Tennessee, solely in order to create diversity of citizenship and enable itself to sue in federal court. It was successful and the Supreme

Court ruled that diversity was present and that the injunction should issue. In Mutual Life Ins. Co. v. Johnson, 293 U.S. 335 (1934), the Court, in an opinion by Justice Cardozo, appeared to retreat somewhat from its extensions of Tyson, holding

that state law should be applied, through a “benign and prudent comity,” in a case

“balanced with doubt,” a concept first used by Justice Bradley in Burgess v. Seligman, 107 U.S. 20 (1883).

1123 304 U.S. 64 (1938). Judge Friendly has written: “Having served as the Justice’s [Brandeis’] law clerk the year Black & White Taxicab & Transfer Co. v. Brown

& Yellow Taxicab & Transfer Co. came before the Court, I have little doubt he was

waiting for an opportunity to give Swift v. Tyson the happy dispatch he thought it

deserved.” H. FRIENDLY, BENCHMARKS 20 (1967).

1124 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 355 (4th ed. 1983). See

Judge Friendly’s exposition, In Praise of Erie—And of the New Federal Common Law,

in H. FRIENDLY, BENCHMARKS 155 (1967).

1125 304 U.S. at 157–64, 171 n.71.

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ART. III—JUDICIAL DEPARTMENT 857
Tompkins was injured by defendant’s train while he was walking along the tracks. He was a citizen of Pennsylvania, and the railroad was incorporated in New York. Had he sued in a Pennsylvania court, state decisional law was to the effect that, because he

was a trespasser, the defendant owned him only a duty not to injure him through wanton or willful misconduct; 1126 the general federal law treated him as a licensee who could recover for negligence. Tompkins sued and recovered in federal court in New York

and the railroad presented the issue to the Supreme Court as one

covered by “local” law within the meaning of Swift v. Tyson. Justice Brandeis for himself and four other Justices, however, chose to

overrule the early case.

First, it was argued that Tyson had failed to bring about uniformity of decision and that its application discriminated against citizens of a state by noncitizens. Justice Brandeis cited recent researches 1127 indicating that § 34 of the 1789 Act included court

decisions in the phrase “laws of the several States.” “If only a question of statutory construction were involved we should not be prepared to abandon a doctrine so widely applied throughout nearly a

century. But the unconstitutionality of the course pursued has now

been made clear, and compels us to do so.” 1128 For a number of reasons, it would not have been wise to have overruled Tyson on the

basis of arguable new discoveries.1129

1126 This result was obtained in retrial in federal court on the basis of Pennsylvania law. Tompkins v. Erie Railroad Co., 98 F.2d 49 (3d Cir. 1938), cert. denied, 305

U.S. 637 (1938).

1127 Erie Railroad Co. v. Tompkins, 304 U.S. 64, 72–73 (1938), citing Warren,

New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. REV. 49

84–88 (1923). See C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 353 (4th ed.

1983).

1128 304 U.S. at 77–78 (footnote citations omitted).

1129 Congress had re-enacted § 34 as § 721 of the Revised Statutes, citing Swift

v. Tyson in its annotation, thus presumably accepting the gloss placed on the words

by that ruling. But note that Justice Brandeis did not think even the re-enacted

statute was unconstitutional. 304 U.S. at 79–80. See H. FRIENDLY, BENCHMARKS 161–

163 (1967). Perhaps a more compelling reason of policy was that stated by Justice

Frankfurter rejecting for the Court a claim that the general grant of federal question jurisdiction to the federal courts in 1875 made maritime suits cognizable on the

law side of the federal courts. “Petitioner now asks us to hold that no student of the

jurisdiction of the federal courts or of admiralty, no judge, and none of the learned

and alert members of the admiralty bar were able, for seventy-five years, to discern

the drastic change now asserted to have been contrived in admiralty jurisdiction by

the Act of 1875. In light of such impressive testimony from the past the claim of a

sudden discovery of a hidden latent meaning in an old technical phrase is surely

suspect.”

“The history of archeology is replete with the unearthing of riches buried for

centuries. Our legal history does not, however, offer a single archeological discovery

of new, revolutionary meaning in reading an old judiciary enactment. [Here, the Justice footnotes: ‘For reasons that would take us too far afield to discuss, Erie RailSec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

858 ART. III—JUDICIAL DEPARTMENT
Second, the decision turned on the lack of power vested in Congress to prescribe rules for federal courts in state cases. “There is

no federal general common law. Congress has no power to declare

substantive rules of common law applicable in a State whether they

be local in their nature or ‘general,’ be they commercial law or a

part of the law of torts. No clause in the Constitution purports to

confer such a power upon the federal courts.” 1130 But having said

this, Justice Brandeis made it clear that the unconstitutional assumption of power had been made not by Congress but by the Court

itself. “[W]e do not hold unconstitutional § 34 of the Federal Judiciary Act of 1789 or any other Act of Congress. We merely declare

that in applying the doctrine this Court and the lower courts have

invaded rights which in our opinion are reserved by the Constitution to the several States.” 1131

Third, the rule of Erie replacing Tyson is that “[e]xcept in matters governed by the Federal Constitution or by Acts of Congress,

the law to be applied in any case is the law of the State. Whether

the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal

concern.” 1132

Since 1938, the effect of Erie has first increased and then diminished, as the nature of the problems presented changed. Thus, the

Court at first indicated that not only were the decisions of the highest court of a state binding on a federal diversity court, but also

decisions of intermediate appellate courts 1133 and courts of first instance,1134 even where the decisions bound no other state judge except as they were persuasive on their merits. It has now retreated

from this position, concluding that federal judges are to give careroad Co. v. Tompkins, 304 U.S. 64, is no exception.’] The presumption is powerful

that such a far-reaching, dislocating construction as petitioner would now have us

find in the Act of 1875 was not uncovered by judges, lawyers or scholars for seventyfive years because it is not there.” Romero v. International Terminal Operating Co.,

358 U.S. 354, 370–371 (1959).

1130 304 U.S. at 78. Justice Brandeis does not argue the constitutional issue and

does not cite either provisions of the Constitution or precedent beyond the views of

Justices Holmes and Field. Id. at 78–79. Justice Reed thought that Article III and

the Necessary and Proper Clause might contain authority. Id. at 91–92 (Justice Reed

concurring in the result). For a formulation of the constitutional argument in favor

of the Brandeis position, see H. FRIENDLY, BENCHMARKS 167–171 (1967). See also Bernhardt

v. Polygraphic Co. of America, 350 U.S. 198, 202, 208 (1956); Hanna v. Plumer, 380

U.S. 460, 471–472 (1965).

1131 304 U.S. at 79–80.

1132 304 U.S. at 78. Erie applies in equity as well as in law. Ruhlin v. New York

Life Ins. Co., 304 U.S. 202 (1938).

1133 West v. American Tel. & Tel. Co., 311 U.S. 223 (1940); Six Companies of

California v. Joint Highway District, 311 U.S. 180 (1940); Stoner v. New York Life

Ins. Co., 311 U.S. 464 (1940).

1134 Fidelity Union Trust Co. v. Field, 311 U.S. 169 (1940).

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ART. III—JUDICIAL DEPARTMENT 859
ful consideration to lower state court decisions and to old, perhaps

outmoded decisions, but that they must find for themselves the state

law if the state’s highest court has not spoken definitively within a

period that would raise no questions about the continued viability

of the decision.1135 In the event of a state supreme court reversal of

an earlier decision, the federal courts are, of course, bound by the

later decision, and a judgment of a federal district court, correct

when rendered, must be reversed on appeal if the state’s highest

court in the meantime has changed the applicable law.1136 In diversity cases that present conflicts of law problems, the Court has reiterated that the district court is to apply the law of the state in

which it sits, so that in a case in State A in which the law of State

B is applicable, perhaps because a contract was made there or a

tort was committed there, the federal court is to apply State A’s

conception of State B’s law.1137

The greatest difficulty in applying the Erie doctrine has been

in cases in which issues of procedure were important.1138 The process was initiated in 1945 when the Court held that a state statute

of limitations, which would have barred suit in state court, would

bar it in federal court, although as a matter of federal law the case

still could have been brought in federal court.1139 The Court regarded the substance-procedure distinction as immaterial. “[S]ince

a federal court adjudicating a state-created right solely because of

the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State, it cannot afford recovery if the

right to recover is made unavailable by the State nor can it substan1135 King v. Order of Commercial Travelers of America, 333 U.S. 153 (1948);

Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 205 (1956) (1910 decision

must be followed in absence of confusion in state decisions since there were “no developing line of authorities that cast a shadow over established ones, no dicta, doubts

or ambiguities . . . , no legislative development that promises to undermine the judicial rule”). See also Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967).

1136 Vanderbark v. Owens-Illinois Glass Co., 311 U.S. 538 (1941); Huddleston v.

Dwyer, 322 U.S. 232 (1944); Nolan v. Transocean Air Lines, 365 U.S. 293 (1961).

1137 Klaxon Co. v. Stentor Manufacturing Co., 313 U.S. 487 (1941); Griffin v. McCoach, 313 U.S. 498 (1941); Wells v. Simonds Abrasive Co., 345 U.S. 514 (1953);

Nolan v. Transocean Air Lines, 365 U.S. 293 (1961).

1138 Interestingly enough, 1938 marked what seemed to be a switching of positions vis-a-vis federal and state courts of substantive law and procedural law. Under Tyson, federal courts in diversity actions were free to formulate a federal common law, while they were required by the Conformity Act, § 5, 17 Stat. 196 (1872),

to conform their procedure to that of the state in which the court sat. Erie then

ruled that state substantive law was to control in federal court diversity actions,

while by implication matters of procedure in federal court were subject to congressional governance. Congress authorized the Court to promulgate rules of civil procedure, 48 Stat. 1064 (1934), which it did in 1938, a few months after Erie was decided. 302 U.S. 783.

1139 Guaranty Trust Co. v. York, 326 U.S. 99 (1945).

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860 ART. III—JUDICIAL DEPARTMENT
tially affect the enforcement of the right as given by the State.” 1140

The standard to be applied was compelled by the “intent” of Erie,

which “was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of

the parties, the outcome of the litigation in the federal court should

be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court.” 1141

The Court’s application of this standard created substantial doubt

that the Federal Rules of Civil Procedure had any validity in diversity cases.1142

But, in two later cases, the Court contracted the application of

Erie in matters governed by the Federal Rules. Thus, in the earlier

case, the Court said that “outcome” was no longer the sole determinant and countervailing considerations expressed in federal policy

on the conduct of federal trials should be considered; a state rule

making it a question for the judge rather than a jury of a particular defense in a tort action had to yield to a federal policy enunciated through the Seventh Amendment of favoring juries.1143 Some

confusion has been injected into consideration of which law to apply—

state or federal—in the absence of a federal statute or a Federal

Rule of Civil Procedure.1144 In an action for damages, the federal

courts were faced with the issue of the application either of a state

statute, which gave the appellate division of the state courts the

authority to determine if an award is excessive or inadequate if it

deviates materially from what would be reasonable compensation,

or of a federal judicially created practice of review of awards as so

exorbitant that it shocked the conscience of the court. The Court

determined that the state statute was both substantive and procedural, which would result in substantial variations between state

and federal damage awards depending whether the state or the federal approach was applied; it then followed the mode of analysis

exemplified by those cases emphasizing the importance of federal

1140 326 U.S. at 108–09.

1141 326 U.S. at 109.

1142 Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) (state rule

making unsuccessful plaintiffs liable for all expenses and requiring security for such

expenses as a condition of proceeding applicable in federal court); Woods v. Interstate Realty Co., 337 U.S. 535 (1949) (state statute barring foreign corporation not

qualified to do business in the state applies in federal court); Ragan v. Merchants

Transfer & Warehouse Co., 337 U.S. 530 (1949) (state rule determinative when an

action is begun for purposes of statute of limitations applicable in federal court although a Federal Rule of Civil Procedure states a different rule).

1143 Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958).

1144 Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). The decision

was five-to-four, so that the precedent may or may not be stable for future application.

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ART. III—JUDICIAL DEPARTMENT 861
courts reaching the same outcome as would the state courts,1145 rather

than what had been the prevailing standard, in which the Court

balanced state and federal interests to determine which law to apply.1146 Emphasis upon either approach to considerations of applying state or federal law reflects a continuing difficulty of accommodating “the constitutional power of the states to regulate the relations

among their citizens . . . [and] the constitutional power of the Federal Government to determine how its courts are to be operated.” 1147 Additional decisions will be required to determine which

approach, if either, prevails. The latter ruling simplified the matter

greatly. Erie is not to be the proper test when the question is the

application of one of the Rules of Civil Procedure; if the rule is valid

when measured against the Enabling Act and the Constitution, it

is to be applied regardless of state law to the contrary.1148

Although it seems clear that Erie applies in nondiversity cases

in which the source of the right sued upon is state law,1149 it is

equally clear that Erie is not applicable always in diversity cases

whether the nature of the issue be substantive or procedural. Thus,

it may be that there is an overriding federal interest which compels national uniformity of rules, such as a case in which the issue

is the appropriate rule for determining the liability of a bank which

had guaranteed a forged federal check,1150 in which the issue is the

appropriate rule for determining whether a tortfeasor is liable to

the United States for hospitalization of a soldier and loss of his services 1151 and in which the issue is the appropriate rule for determining the validity of a defense raised by a federal officer sued for

1145 E.g., Guaranty Trust Co. v. York, 326 U.S. 99 (1945).

1146 E.g., Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958).

1147 19 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4511,

at 311 (2d ed. 1996).

1148 Hanna v. Plumer, 380 U.S. 460 (1965).

1149 Maternally Yours v. Your Maternity Shop, 234 F.2d 538, 540 n.1 (2d Cir.

1956). The contrary view was implied in Levinson v. Deupree, 345 U.S. 648, 651

(1953), and by Justice Jackson in D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447,

466–67, 471–72 (1942) (concurring opinion). See Wichita Royalty Co. v. City National Bank, 306 U.S. 103 (1939).

1150 Clearfield Trust Co. v. United States, 318 U.S. 363 (1943). See also National Metropolitan Bank v. United States, 323 U.S. 454 (1945); D’Oench, Duhme &

Co. v. FDIC, 315 U.S. 447 (1942); United States v. Standard Rice Co., 323 U.S. 106

(1944); United States v. Acri, 348 U.S. 211 (1955); Ivanhoe Irrigation District v. McCracken, 357 U.S. 275 (1958); Bank of America Nat’l Trust & Savings Ass’n v. Parnell,

352 U.S. 29 (1956). But see United States v. Yazell, 382 U.S. 341 (1966). But see

O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994).

1151 United States v. Standard Oil Co., 332 U.S. 301 (1947). Federal law applies

in maritime tort cases brought on the “law side” of the federal courts in diversity

cases. Pope & Talbot v. Hawn, 346 U.S. 406 (1953).

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862 ART. III—JUDICIAL DEPARTMENT
having libeled one in the course of his official duties.1152 In such

cases, when the issue is found to be controlled by federal law, common or otherwise, the result is binding on state courts as well as

on federal.1153 Despite, then, Justice Brandeis’ assurance that there

is no “federal general common law,” there is a common law existing

and developing in the federal courts, even in diversity cases, which

will sometimes control decision.1154

Controversies Between Citizens of the Same State Claiming

Land Under Grants of Different States

The genesis of this clause was in the report of the Committee

of Detail which vested the power to resolve such land disputes in

the Senate,1155 but this proposal was defeated in the Convention,1156 which then added this clause to the jurisdiction of the federal judiciary without reported debate.1157 The motivation for this

clause was the existence of boundary disputes affecting ten sates

at the time the Convention met. With the adoption of the Northwest Ordinance of 1787, the ultimate settlement of the boundary

disputes, and the passing of land grants by the states, this clause,

never productive of many cases, became obsolete.1158

Controversies Between a State, or the Citizens Thereof,

and Foreign States, Citizens, or Subjects

The scope of this jurisdiction has been limited both by judicial

decisions and the Eleventh Amendment. By judicial application of

the law of nations, a foreign state is immune from suit in the federal courts without its consent,1159 an immunity which extends to

1152 Howard v. Lyons, 360 U.S. 593 (1959). Matters concerned with our foreign

relations also are governed by federal law in diversity. Banco Nacional de Cuba v.

Sabbatino, 376 U.S. 398 (1964). Federal common law also governs a government contractor defense in certain cases. Boyle v. United Technologies Corp., 487 U.S. 500

(1988).

1153 Free v. Bland, 369 U.S. 663 (1962); Yiatchos v. Yiatchos, 376 U.S. 306 (1964).

1154 The quoted Brandeis phrase is in Erie Railroad Co. v. Tompkins, 304 U.S.

64, 78 (1938). On the same day Erie was decided, the Court, in an opinion by Justice Brandeis, held that the issue of apportionment of the waters of an interstate

stream between two states “is a question of ‘federal common law.’ ” Hinderlider v.

La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938). On the matter,

see Illinois v. City of Milwaukee, 406 U.S. 91 (1972).

1155 2 M. Farrand, supra at 162, 171, 184.

1156 Id. at 400–401.

1157 Id. at 431.

1158 See Pawlet v. Clark, 13 U.S. (9 Cr.) 292 (1815). Cf. City of Trenton v. New

Jersey, 262 U.S. 182 (1923).

1159 The Schooner Exchange v. McFaddon, 11 U.S. (7 Cr.) 116 (1812); Berizzi Bros.

Co. v. S.S. Pesaro, 271 U.S. 562 (1926); Compania Espanola v. The Navemar, 303

U.S. 68 (1938); Guaranty Trust Co. v. United States, 304 U.S. 126, 134 (1938).

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ART. III—JUDICIAL DEPARTMENT 863
suits brought by states of the American Union.1160 Conversely, the

Eleventh Amendment has been construed to bar suits by foreign

states against a state of the United States.1161 Consequently, the

jurisdiction conferred by this clause comprehends only suits brought

by a state against citizens or subjects of foreign states, by foreign

states against American citizens, citizens of a state against the citizens or subjects of a foreign state, and by aliens against citizens of

a state.1162

Suits by Foreign States.—The privilege of a recognized foreign state to sue in the courts of another state upon the principle

of comity is recognized by both international law and American constitutional law.1163 To deny a sovereign this privilege “would manifest a want of comity and friendly feeling.” 1164 Although national

sovereignty is continuous, a suit in behalf of a national sovereign

can be maintained in the courts of the United States only by a government which has been recognized by the political branches of our

own government as the authorized government of the foreign state.1165

As the responsible agency for the conduct of foreign affairs, the State

Department is the normal means of suggesting to the courts that a

sovereign be granted immunity from a particular suit.1166 Once a

foreign government avails itself of the privilege of suing in the courts

of the United States, it subjects itself to the procedure and rules of

decision governing those courts and accepts whatever liabilities the

1160 Principality of Monaco v. Mississippi, 292 U.S. 313, 330 (1934).

1161 292 U.S. at 330.

1162 But, in the absence of a federal question, there is no basis for jurisdiction

between the subjects of a foreign state. Romero v. International Terminal Operating

Co., 358 U.S. 354 (1959). The Foreign Sovereign Immunities Act of 1976, Pub. L.

94–538, 90 Stat. 2891, amending various sections of title 28 U.S.C., comprehensively provided jurisdictional bases for suits by and against foreign states and appears as well to comprehend suits by an alien against a foreign state which would

be beyond the constitutional grant. However, in the only case in which that matter

has been an issue before it, the Court has construed the Act as creating a species of

federal question jurisdiction. Verlinden B. V. v. Central Bank of Nigeria, 461 U.S.

480 (1983).

1163 The Sapphire, 78 U.S. (11 Wall.) 164, 167 (1871).

1164 78 U.S. at 167. This case also held that a change in the person of the sovereign does not affect the continuity or rights of national sovereignty, including the

right to bring suit or to continue one that has been brought.

1165 Guaranty Trust Co. v. United States, 304 U.S. 126, 137 (1938), citing Jones

v. United States, 137 U.S. 202, 212 (1890); Matter of Lehigh Valley R.R., 265 U.S.

573 (1924). Whether a government is to be regarded as the legal representative of a

foreign state is, of course, a political question.

1166 Ex parte Peru, 318 U.S. 578, 589 (1943), distinguishing Compania Espanola

v. The Navemar, 303 U.S. 68 (1938), which held that where the Executive Department neither recognizes nor disallows the claim of immunity, the court is free to

examine that question for itself. Under the latter circumstances, however, a claim

that a foreign vessel is a public ship and immune from suit must be substantiated

to the satisfaction of the federal court.

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864 ART. III—JUDICIAL DEPARTMENT
court may decide to be a reasonable incident of bringing the suit.1167

The rule that a foreign nation instituting a suit in a federal district court cannot invoke sovereign immunity as a defense to a counterclaim growing out of the same transaction has been extended to

deny a claim of immunity as a defense to a counterclaim extrinsic

to the subject matter of the suit but limited to the amount of the

sovereign’s claim.1168 Moreover, certain of the benefits extending to

a domestic sovereign do not extend to a foreign sovereign suing in

the courts of the United States. A foreign state does not receive the

benefit of the rule which exempts the United States and its member states from the operation of the statute of limitations, because

those considerations of public policy back of the rule are regarded

as absent in the case of the foreign sovereign.1169

Indian Tribes.—Within the terms of Article III, an Indian tribe

is not a foreign state and hence cannot sue in the courts of the United

States. This rule was applied in Cherokee Nation v. Georgia,

1170 where

Chief Justice Marshall conceded that the Cherokee Nation was a

state, but not a foreign state, being a part of the United States and

dependent upon it. Other passages of the opinion specify the elements essential of a foreign state for purposes of jurisdiction, such

as sovereignty and independence.

Narrow Construction of the Jurisdiction.—As in cases of diversity jurisdiction, suits brought to the federal courts under this

category must clearly state in the record the nature of the parties.

As early as 1809, the Supreme Court ruled that a federal court could

not take jurisdiction of a cause where the defendants were described in the record as “late of the district of Maryland,” but were

not designated as citizens of Maryland, and plaintiffs were described as aliens and subjects of the United Kingdom.1171 The meticulous care manifested in this case appeared twenty years later

when the Court narrowly construed § 11 of the Judiciary Act of 1789,

vesting the federal courts with jurisdiction when an alien was a party,

in order to keep it within the limits of this clause. The judicial power

1167 Guaranty Trust Co. v. United States, 304 U.S. 126, 134 (1938). Among other

benefits which the Court cited as not extending to foreign states as litigant included

exemption from costs and from giving discovery. Decisions were also cited to the

effect that a sovereign plaintiff “should so far as the thing can be done, be put in

the same position as a body corporate.”

1168 National Bank v. Republic of China, 348 U.S. 356, 361 (1955), citing 26 Dept.

State Bull. 984 (1952), in which the Department “pronounced broadly against recognizing sovereign immunity for the commercial operations of a foreign government.”

1169 Guaranty Trust Co. v. United States, 304 U.S. 126, 135, 137 (1938), citing

precedents to the effect that a sovereign plaintiff “should be put in the same position as a body corporate.”

1170 30 U.S. (5 Pet.) 1, 16–20 (1831).

1171 Hodgson & Thompson v. Bowerbank, 9 U.S. (5 Cr.) 303 (1809).

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was further held not to extend to private suits in which an alien is

a party, unless a citizen is the adverse party.1172 This interpretation was extended in 1870 by a holding that if there is more than

one plaintiff or defendant, each plaintiff or defendant must be competent to sue or liable to suit.1173 These rules, however, do not preclude a suit between citizens of the same state if the plaintiffs are

merely nominal parties and are suing on behalf of an alien.1174

Clause 2. In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a State shall be a

Party, the Supreme Court shall have original Jurisdiction. In all

other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

THE ORIGINAL JURISDICTION OF THE SUPREME

COURT

From the beginning, the Supreme Court has assumed that its

original jurisdiction flows directly from the Constitution and is therefore self-executing without further action by Congress.1175 In Chisholm

v. Georgia,

1176 the Court entertained an action of assumpsit against

Georgia by a citizen of another state. Congress in § 3 of the Judiciary Act of 1789 1177 purported to invest the Court with original

jurisdiction in suits between a state and citizens of another state,

but it did not authorize actions of assumpsit in such cases nor did

it prescribe forms of process for the exercise of original jurisdiction.

Over the dissent of Justice Iredell, the Court, in opinions by Chief

Justice Jay and Justices Blair, Wilson, and Cushing, sustained its

jurisdiction and its power to provide forms of process and rules of

procedure in the absence of congressional enactments. The backlash of state sovereignty sentiment resulted in the proposal and rati1172 Jackson v. Twentyman, 27 U.S. (2 Pet.) 136 (1829); Romero v. International

Terminal Operating Co., 358 U.S. 354 (1959).

1173 Coal Co. v. Blatchford, 78 U.S. (11 Wall.) 172 (1871). See, however, Lacassagne v. Chapuis, 144 U.S. 119 (1892), which held that a lower federal court had

jurisdiction over a proceeding to impeach its former decree, although the parties were

new and were both aliens.

1174 Browne v. Strode, 9 U.S. (5 Cr.) 303 (1809).

1175 But, in § 13 of the Judiciary Act of 1789, 1 Stat. 80, Congress did so purport to convey the jurisdiction and the statutory conveyance exists today. 28 U.S.C.

§ 1251. It does not, however, exhaust the listing of the Constitution.

1176 2 U.S. (2 Dall.) 419 (1793). In an earlier case, the point of jurisdiction was

not raised. Georgia v. Brailsford, 2 U.S. (2 Dall.) 402 (1792).

1177 1 Stat. 80.

Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies

866 ART. III—JUDICIAL DEPARTMENT
fication of the Eleventh Amendment, which did not, however, affect

the direct flow of original jurisdiction to the Court, although those

cases to which states were parties were now limited to states as

party plaintiffs, to two or more states disputing, or to United States

suits against states.1178

By 1861, Chief Justice Taney could confidently enunciate, after

review of the precedents, that in all cases where original jurisdiction is given by the Constitution, the Supreme Court has authority

“to exercise it without further act of Congress to regulate its powers or confer jurisdiction, and that the court may regulate and mould

the process it uses in such manner as in its judgment will best promote the purposes of justice.” 1179

Although Chief Justice Marshall apparently assumed the Court

had exclusive jurisdiction of cases within its original jurisdiction,1180 Congress from 1789 on gave the inferior federal courts concurrent jurisdiction in some classes of such cases.1181 Sustained in

the early years on circuit,1182 this concurrent jurisdiction was finally approved by the Court itself.1183 The Court has also relied on

the first Congress’s interpretation of the meaning of Article III in

declining original jurisdiction of an action by a state to enforce a

judgment for a pecuniary penalty awarded by one of its own courts.1184

Noting that § 13 of the Judiciary Act had referred to “controversies

of a civil nature,” Justice Gray declared that it “was passed by the

first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, and is contemporaneous and weighty evidence of its true meaning.” 1185

However, another clause of § 13 of the Judiciary Act of 1789

was not accorded the same presumption by Chief Justice Marshall, who, interpreting it to give the Court power to issue a

writ of mandamus on an original proceeding, declared that, as

Congress could not restrict the original jurisdiction, neither could

1178 On the Eleventh Amendment, see infra.

1179 Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861).

1180 Marbury v. Madison, 5 U.S. (1 Cr.) 137, 174 (1803).

1181 In § 3 of the 1789 Act. The present division is in 28 U.S.C. § 1251.

1182 United States v. Ravara, 2 U.S. (2 Dall.) 297 (C.C.Pa. 1793).

1183 Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657 (1838); Bors v. Preston, 111 U.S. 252 (1884); Ames v. Kansas ex rel. Johnston, 111 U.S. 449 (1884). Such

suits could be brought and maintained in state courts as well. Plaquemines Tropical

Fruit Co. v. Henderson, 170 U.S. 511 (1898); Ohio ex rel. Popovici v. Agler, 280 U.S.

379 (1930).

1184 Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).

1185 127 U.S. at 297. See also the dictum in Cohens v. Virginia, 19 U.S. (6 Wheat.)

264, 398–99 (1821); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 431–32 (1793).

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

ART. III—JUDICIAL DEPARTMENT 867
it enlarge it, and he pronounced the clause void.1186 Although the

Chief Justice’s interpretation of the meaning of the clause may

be questioned, no one has questioned the constitutional principle

it proclaimed. Although the rule deprives Congress of power to

expand or contract the jurisdiction, it allows a considerable latitude of interpretation to the Court itself. In some cases, such as

Missouri v. Holland,

1187 the Court has manifested a tendency toward a liberal construction of its original jurisdiction, but the

more usual view is that “our original jurisdiction should be invoked sparingly.” 1188 Original jurisdiction “is limited and manifestly to be sparingly exercised, and should not be expanded by

construction.” 1189 Exercise of its original jurisdiction is not

obligatory on the Court but discretionary, to be determined on a

case-by-case basis on grounds of practical necessity.1190 It is to be

honored “only in appropriate cases. And the question of what is

appropriate concerns of course the seriousness and dignity of the

claim; yet beyond that it necessarily involves the availability of

another forum where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had. We incline to a sparing use of our

original jurisdiction so that our increasing duties with the appellate docket will not suffer.” 1191 But where claims are of sufficient

1186 Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803). The Chief Justice declared

that “a negative or exclusive sense” had to be given to the affirmative enunciation

of the cases to which original jurisdiction extends. Id. at 174. This exclusive interpretation has been since followed. Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807); New

Jersey v. New York, 30 U.S. (5 Pet.) 284 (1831); Ex parte Barry, 43 U.S. (2 How.) 65

(1844); Ex parte Vallandigham, 68 U.S. (1 Wall.) 243, 252 (1864); Ex parte Yerger,

75 U.S. (8 Wall.) 85, 98 (1869). In the curious case of Ex parte Levitt, 302 U.S. 633

(1937), the Court was asked to unseat Justice Black on the ground that his appointment violated Article I. § 6, cl. 2. Although it rejected petitioner’s application, the

Court did not point out that it was being asked to assume original jurisdiction in

violation of Marbury v. Madison.

1187 252 U.S. 416 (1920). See also South Carolina v. Katzenbach, 383 U.S. 301

(1966), and Oregon v. Mitchell, 400 U.S. 112 (1970).

1188 Utah v. United States, 394 U.S. 89, 95 (1968).

1189 California v. Southern Pacific Co., 157 U.S. 229, 261 (1895). Indeed, the use

of the word “sparingly” in this context is all but ubiquitous. E.g., Wyoming v. Oklahoma, 502 U.S. 437, 450 (1992); Maryland v. Louisiana, 451 U.S. 725, 739 (1981);

United States v. Nevada, 412 U.S. 534, 538 (1973).

1190 Texas v. New Mexico, 462 U.S. 554, 570 (1983).

1191 Illinois v. City of Milwaukee, 406 U.S. 91, 93–94 (1972). In this case, and in

Washington v. General Motors Corp., 406 U.S. 109 (1972), and Ohio v. Wyandotte

Chemicals Corp., 401 U.S. 493 (1971), the Court declined to permit adjudication of

environmental pollution cases manifestly within its original jurisdiction because the

nature of the cases required the resolution of complex, novel, and technical factual

questions not suitable for resolution at the Court’s level as a matter of initial decision, but which could be brought in the lower federal courts. Not all such cases,

however, were barred. Vermont v. New York, 406 U.S. 186 (1972) (granting leave to

file complaint). In other instances, notably involving “political questions,” cf. MassaSec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

868 ART. III—JUDICIAL DEPARTMENT
“seriousness and dignity,” in which resolution by the judiciary is

of substantial concern, the Court will hear them.1192

POWER OF CONGRESS TO CONTROL THE FEDERAL

COURTS

The Theory of Plenary Congressional Control

Unlike its original jurisdiction, the appellate jurisdiction of the

Supreme Court is subject to “exceptions and regulations” prescribed by Congress, and the jurisdiction of the inferior federal courts

is subject to congressional prescription. Additionally, Congress has

power to regulate modes and practices of proceeding on the part of

the inferior federal courts. Whether there are limitations to the exercise of these congressional powers, and what the limitations may

be, are matters that have vexed scholarly and judicial interpretation over the years, inasmuch as congressional displeasure with judicial decisions has sometimes led to successful efforts to “curb” the

courts and more frequently to proposed but unsuccessful curbs.1193

Supreme Court holdings establish clearly the breadth of congressional power, and numerous dicta assert an even broader power, but

that Congress may through the exercise of its powers vitiate and

overturn constitutional decisions and restrain the exercise of constitutional rights is an assertion often made but not sustained by any

decision of the Court.

Appellate Jurisdiction.—In Wiscart v. D’Auchy,

1194 the issue

was whether the statutory authorization for the Supreme Court to

review on writ of error circuit court decisions in “civil actions” gave

it power to review admiralty cases.1195 A majority of the Court decided that admiralty cases were “civil actions” and thus reviewable; in the course of decision, it was said that “[i]f Congress had

provided no rule to regulate our proceedings, we cannot exercise

chusetts v. Mellon, 262 U.S. 447 (1923), the Court has simply refused permission

for parties to file bills of complaint without hearing them on the issue or producing

an opinion. E.g., Massachusetts v. Laird, 400 U.S. 886 (1970) (constitutionality of

United States action in Indochina); Delaware v. New York, 385 U.S. 895 (1966) (constitutionality of electoral college under one-man, one-vote rule).

1192 Wyoming v. Oklahoma, 502 U.S. 437, 451 (1982). The principles are the same

whether the Court’s jurisdiction is exclusive or concurrent. Texas v. New Mexico,

462 U.S. 554 (1983); California v. West Virginia, 454 U.S. 1027 (1981); Arizona v.

New Mexico, 425 U.S. 794 (1976).

1193 A classic but now dated study is Warren, Legislative and Judicial Attacks

on the Supreme Court of the United States: A History of the Twenty-Fifth Section of

the Judiciary Act, 47 AM. L. REV. 1, 161 (1913). The most comprehensive consideration of the constitutional issue is Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV, L. REV. 1362 (1953). See

Hart & Wechsler (6h ed.), supra at 287–305.

1194 3 U.S. (3 Dall.) 321 (1796).

1195 Judiciary Act of 1789, § 22, 1 Stat. 84.

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

ART. III—JUDICIAL DEPARTMENT 869
an appellate jurisdiction; and if the rule is provided, we cannot depart from it.” 1196 Much the same thought was soon to be expressed

by Chief Justice Marshall, although he seems to have felt that in

the absence of congressional authorization, the Court’s appellate jurisdiction would have been measured by the constitutional grant.

“Had the judicial act created the supreme court, without defining

or limiting its jurisdiction, it must have been considered as possessing all the jurisdiction which the constitution assigns to it. The legislature would have exercised the power it possessed of creating a

supreme court, as ordained by the constitution; and in omitting to

exercise the right of excepting from its constitutional powers, would

have necessarily left those powers undiminished.”

“The appellate powers of this court are not given by the judicial act. They are given by the constitution. But they are limited

and regulated by the judicial act, and by such other acts as have

been passed on the subject.” 1197 Later Justices viewed the matter

differently from Marshall. “By the constitution of the United States,”

it was said in one opinion, “the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress.” 1198 In order for a case to come within its appellate jurisdiction, the Court has said, “two things must concur: the Constitution

must give the capacity to take it, and an act of Congress must supply the requisite authority.” Moreover, “it is for Congress to determine how far, within the limits of the capacity of this court to take,

appellate jurisdiction shall be given, and when conferred, it can be

exercised only to the extent and in the manner prescribed by law.

In these respects it is wholly the creature of legislation.” 1199

This congressional power, conferred by the language of Article

III, § 2, cl. 2, which provides that all jurisdiction not original is to

be appellate, “with such Exceptions, and under such Regulations

as the Congress shall make,” has been utilized to forestall a decision which the congressional majority assumed would be adverse

1196 Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321, 327 (1796). The dissent thought

that admiralty cases were not “civil actions” and thus that there was no appellate

review. Id. at 326–27. See also Clarke v. Bazadone, 5 U.S. (1 Cr.) 212 (1803); Turner

v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799).

1197 Durousseau v. United States, 10 U.S. (6 Cr.) 307, 313–314 (1810). “Courts

which are created by written law, and whose jurisdiction is defined by written law,

cannot transcend that jurisdiction.” Ex parte Bollman, 8 U.S. (4 Cr.) 75, 93 (1807)

(Chief Justice Marshall). Marshall had earlier expressed his Durousseau thoughts

in United States v. More, 7 U.S. (3 Cr.) 159 (1805).

1198 Barry v. Mercein, 46 U.S. (5 How.) 103, 119 (1847) (case held nonreviewable

because minimum jurisdictional amount not alleged).

1199 Daniels v. Railroad Co., 70 U.S. (3 Wall.) 250, 254 (1865) (case held nonreviewable because certificate of division in circuit did not set forth questions in dispute

as provided by statute).

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

870 ART. III—JUDICIAL DEPARTMENT
to its course of action. In Ex parte McCardle,

1200 the Court accepted review on certiorari of a denial of a petition for a writ of

habeas corpus by the circuit court; the petition was by a civilian

convicted by a military commission of acts obstructing Reconstruction. Anticipating that the Court might void, or at least undermine, congressional reconstruction of the Confederate States, Congress enacted over the President’s veto a provision repealing the

act which authorized the appeal McCardle had taken.1201 Although

the Court had already heard argument on the merits, it then dismissed for want of jurisdiction.1202 “We are not at liberty to inquire

into the motives of the legislature. We can only examine into its

power under the Constitution; and the power to make exceptions

to the appellate jurisdiction of this court is given by express words.”

“What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court

cannot proceed at all in any cause. Jurisdiction is power to declare

the law, and when it ceases to exist, the only function remaining to

the court is that of announcing the fact and dismissing the cause.” 1203

Although McCardle grew out of the stresses of Reconstruction, the

principle it applied has been applied in later cases.1204

1200 73 U.S. (6 Wall.) 318 (1868). That Congress’s apprehensions might have had

a basis in fact, see C. FAIRMAN, HISTORY OF THE SUPREME COURT OF THE UNITED STATES,

VOL. VI, PT. I: RECONSTRUCTION AND REUNION 1864–88 493–495 (1971). McCardle is fully

reviewed at pp. 433–514.

1201 By the Act of February 5, 1867, § 1, 14 Stat. 386, Congress had authorized

appeals to the Supreme Court from circuit court decisions denying habeas corpus.

Previous to this statute, the Court’s jurisdiction to review habeas corpus decisions,

based in § 14 of the Judiciary Act of 1789, 1 Stat. 81, was somewhat fuzzily conceived. Compare United States v. Hamilton, 3 U.S. (3 Dall.) 17 (1795), and Ex parte

Burford, 7 U.S. (3 Cr.) 448 (1806), with Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).

The repealing statute was the Act of March 27, 1868, 15 Stat. 44. The repealed act

was reenacted March 3, 1885. 23 Stat. 437.

1202 Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). In the course of the opinion, Chief Justice Chase speculated about the Court’s power in the absence of any

legislation in tones reminiscent of Marshall’s comments. Id. at 513.

1203 74 U.S. at 514.

1204 See, e.g., Justice Frankfurter’s remarks in National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 655 (1948) (dissenting): “Congress need not give

this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.” In The Francis Wright, 105

U.S. 381, 385–386 (1882), upholding Congress’s power to confine Supreme Court review in admiralty cases to questions of law, the Court said: “[W]hile the appellate

power of this court under the Constitution extends to all cases within the judicial

power of the United States, actual jurisdiction under the power is confined within

such limits as Congress sees fit to prescribe. . . . What those powers shall be, and

to what extent they shall be exercised, are, and always have been, proper subjects

of legislative control. Authority to limit the jurisdiction necessarily carries with it

authority to limit the use of the jurisdiction. Not only may whole classes of cases be

kept out of the jurisdiction altogether, but particular classes of questions may be

subjected to reexamination and review, while others are not.” See also Luckenbuch

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

ART. III—JUDICIAL DEPARTMENT 871
Jurisdiction of the Inferior Federal Courts.—The Framers,

as we have seen,1205 divided with regard to the necessity of courts

inferior to the Supreme Court, simply authorized Congress to create such courts, in which, then, judicial power “shall be vested” and

to which nine classes of cases and controversies “shall extend.” 1206

While Justice Story deemed it imperative of Congress to create inferior federal courts and, when they had been created, to vest them

with all the jurisdiction they were capable of receiving,1207 the First

Congress acted upon a wholly different theory. Inferior courts were

created, but jurisdiction generally over cases involving the Constitution, laws, and treaties of the United States was not given them,

diversity jurisdiction was limited by a minimal jurisdictional amount

requirement and by a prohibition on creation of diversity through

assignments, equity jurisdiction was limited to those cases where a

“plain, adequate, and complete remedy” could not be had at law.1208

This care for detail in conferring jurisdiction upon the inferior federal courts bespoke a conviction by Members of Congress that it

was within their power to confer or to withhold jurisdiction at their

discretion. The cases have generally sustained this view.

Thus, in Turner v. Bank of North America,

1209 the issue was the

jurisdiction of the federal courts in a suit to recover on a promissory note between two citizens of the same state but in which the

S. S. Co. v. United States, 272 U.S. 533, 537 (1926); American Construction Co. v.

Jacksonville, T. & K.W. Ry., 148 U.S. 372, 378 (1893); United States v. Bitty, 208

U.S. 393 (1908); United States v. Young, 94 U.S. 258 (1876). Numerous restrictions

on the exercise of appellate jurisdiction have been upheld. E.g., Congress for a hundred years did not provide for a right of appeal to the Supreme Court in criminal

cases, except upon a certification of division by the circuit court: at first appeal was

provided in capital cases and then in others. F. Frankfurter & J. Landis, supra at

79, 109–120. Other limitations noted heretofore include minimum jurisdictional amounts,

restrictions of review to questions of law and to questions certified from the circuits,

and the scope of review of state court decisions of federal constitutional questions.

See Walker v. Taylor, 46 U.S. (5 How.) 64 (1847). Though McCardle is the only case

in which Congress successfully forestalled an expected decision by shutting off jurisdiction, other cases have been cut off while pending on appeal, either inadvertently,

Insurance Co. v. Ritchie, 72 U.S. (5 Wall.) 541 (1866), or intentionally, Railroad Co.

v. Grant, 98 U.S. 398 (1878), by raising the requirements for jurisdiction without a

reservation for pending cases. See also Bruner v. United States, 343 U.S. 112 (1952);

District of Columbia v. Eslin, 183 U.S. 62 (1901).

1205 Supra, “One Supreme Court” and “Inferior Courts”.

1206 Article III, § 1, 2.

1207 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 374 (1816). For an effort

to reframe Justice Story’s position in modern analytical terms, see the writings of

Professors Amar and Clinton, supra and infra.

1208 Judiciary Act of 1789, 1 Stat. 73. See Warren, New Light on the History of

the Judiciary Act of 1789, 37 HARV. L. REV. 49 (1923). A modern study of the first

Judiciary Act that demonstrates the congressional belief in discretion to structure

jurisdiction is Casto, The First Congress’s Understanding of Its Authority over the

Federal Courts’ Jurisdiction, 26 B. C. L. REV. 1101 (1985).

1209 4 U.S. (4 Dall.) 8 (1799).

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872 ART. III—JUDICIAL DEPARTMENT
note had been assigned to a citizen of a second state so that suit

could be brought in federal court under its diversity jurisdiction, a

course of action prohibited by § 11 of the Judiciary Act of 1789.1210

Counsel for the bank argued that the grant of judicial power by

the Constitution was a direct grant of jurisdiction, provoking from

Chief Justice Ellsworth a considered doubt 1211 and from Justice Chase

a firm rejection. “The notion has frequently been entertained, that

the federal courts derive their judicial power immediately from the

constitution: but the political truth is, that the disposal of the judicial power (except in a few specified instances) belongs to Congress. If Congress has given the power to this Court, we possess it,

not otherwise: and if Congress has not given the power to us, or to

any other Court, it still remains at the legislative disposal. Besides, Congress is not bound, and it would, perhaps, be inexpedient, to enlarge the jurisdiction of the federal courts, to every subject, in every form, which the constitution might warrant.” 1212 Applying

§ 11, the Court held that the circuit court had lacked jurisdiction.

Chief Justice Marshall himself soon made similar assertions,1213 and the early decisions of the Court continued to be sprinkled

with assumptions that the power of Congress to create inferior federal courts necessarily implied “the power to limit jurisdiction of

those Courts to particular objects.” 1214 In Cary v. Curtis,

1215 a statute making final the decision of the Secretary of the Treasury in

certain tax disputes was challenged as an unconstitutional deprivation of the judicial power of the courts. The Court decided otherwise. “[T]he judicial power of the United States, although it has its

origin in the Constitution, is (except in enumerated instances applicable exclusively to this court), dependent for its distribution and

organization, and for the modes of its exercise, entirely upon the

action of Congress, who possess the sole power of creating tribu1210 “[N]or shall any district or circuit court have cognizance of any suit to recover the contents of any promissory note or other chose in action in favour of an

assignee, unless a suit might have been prosecuted in such court to recover the said

contents if no assignment had been made, except in cases of foreign bills of exchange.” 1 Stat. 79.

1211 Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799).

1212 4 U.S. at 10.

1213 In Ex parte Bollman, 8 U.S. (4 Cr.) 75, 93 (1807), Marshall observed that

“courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.”

1214 United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 33 (1812). Justice

Johnson continued: “All other Courts [besides the Supreme Court] created by the

general government possess no jurisdiction but what is given them by the power

that creates them, and can be vested with none but what the power ceded to the

general government will authorize them to confer.” See also Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721–722 (1838).

1215 44 U.S. (3 How.) 236 (1845).

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ART. III—JUDICIAL DEPARTMENT 873
nals (inferior to the Supreme Court), for the exercise of the judicial

power, and 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.” 1216 Five years later, the validity of the assignee clause of the Judiciary Act of 1789 1217 was placed in issue

in Sheldon v. Sill,

1218 in which diversity of citizenship had been created by assignment of a negotiable instrument. It was argued that,

because the right of a citizen of any state to sue citizens of another

flowed directly from Article III, Congress could not restrict that right.

Unanimously, the Court rejected this contention and held that because the Constitution did not create inferior federal courts but rather

authorized Congress to create them, Congress was also empowered

to define their jurisdiction and to withhold jurisdiction of any of the

enumerated cases and controversies in Article III. The case and the

principle have been cited and reaffirmed numerous times,1219 including in a case under the Voting Rights Act of 1965.1220

Congressional Control Over Writs and Processes.—The Judiciary Act of 1789 contained numerous provisions relating to the

times and places for holding court, even of the Supreme Court, to

times of adjournment, appointment of officers, issuance of writs, citations for contempt, and many other matters which it might be

supposed courts had some authority of their own to regulate.1221 The

power to enjoin governmental and private action has frequently been

curbed by Congress, especially as the action has involved the power

1216 44 U.S. at 244–45. Justices McLean and Story dissented, arguing that the

right to construe the law in all matters of controversy is of the essence of judicial

power. Id. at 264.

1217 Supra.

1218 49 U.S. (8 How.) 441 (1850).

1219 E.g., Kline v. Burke Constr. Co., 260 U.S. 226, 233–234 (1922); Ladew v.

Tennessee Copper Co., 218 U.S. 357, 358 (1910); Venner v. Great Northern R. Co.,

209 U.S. 24, 35 (1908); Kentucky v. Powers, 201 U.S. 1, 24 (1906); Stevenson v. Fain,

195 U.S. 165, 167 (1904); Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S.

511, 513–521 (1898); The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 251–252 (1868).

1220 By the Voting Rights Act of 1965, Congress required covered states that wished

to be relieved of coverage to bring actions to this effect in the District Court of the

District of Columbia. In South Carolina v. Katzenbach, 383 U.S. 301, 331 (1966),

Chief Justice Warren for the Court said: “Despite South Carolina’s argument to the

contrary, Congress might appropriately limit litigation under this provision to a single

court in the District of Columbia, pursuant to its constitutional power under Art.

III, § 1, to ‘ordain and establish’ inferior federal tribunals.” See also Palmore v. United

States, 411 U.S. 389, 400–02 (1973); Swain v. Pressley, 430 U.S. 372 (1977); Taylor

v. St. Vincent’s Hosp., 369 F. Supp. 948 (D. Mont. 1973), aff’d, 523 F.2d 75 (9th Cir.),

cert. denied, 424 U.S. 948 (1976).

1221 1 Stat. 73. For a comprehensive discussion with itemization, see Frankfurter & Landis, Power of Congress over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts: A Study in Separation of Powers, 37 HARV. L. REV. 1010 (1924).

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

874 ART. III—JUDICIAL DEPARTMENT
of taxation at either the federal or state level.1222 Though the courts

have variously interpreted these restrictions,1223 they have not denied the power to impose them.

Reacting to judicial abuse of injunctions in labor disputes,1224

Congress in 1932 enacted the Norris-La Guardia Act which forbade

the issuance of injunctions in labor disputes except through compliance with a lengthy hearing and fact-finding process which required the district judge to determine that only through the injunctive process could irremediable harm through illegal conduct be

prevented.1225 The Court seemed to experience no difficulty in upholding the Act,1226 and it has liberally applied it through the years.1227

Congress’s power to confer, withhold, and restrict jurisdiction

is clearly revealed in the Emergency Price Control Act of 1942 1228

and in the cases arising from it. Fearful that the price control program might be nullified by injunctions, Congress provided for a special court in which persons could challenge the validity of price regulations issued by the government with appeal from the Emergency

Court of Appeals to the Supreme Court. The basic constitutionality

of the Act was sustained in Lockerty v. Phillips.

1229 In Yakus v. United

States,

1230 the Court upheld the provision of the Act which conferred exclusive jurisdiction on the special court to hear challenges

to any order or regulation and foreclosed a plea of invalidity of any

such regulation or order as a defense to a criminal proceeding under the Act in the regular district courts. Although Justice Rutledge

protested in dissent that this provision conferred jurisdiction on district courts from which essential elements of the judicial power had

been abstracted,1231 Chief Justice Stone for the Court declared that

the provision presented no novel constitutional issue.

1222 The Act of March 2, 1867, 10, 14 Stat. 475, as amended, now 26 U.S.C.

§ 7421 (federal taxes): Act of August 21, 1937, 50 Stat. 738, 28 U.S.C. § 1341 (state

taxes). See also Act of May 14, 1934, 48 Stat. 775, 28 U.S.C. § 1342 (state ratemaking).

1223 Compare Snyder v. Marks, 109 U.S. 189 (1883), with Dodge v. Brady, 240

U.S. 122 (1916), with Allen v. Regents, 304 U.S. 439 (1938).

1224 F. FRANKFURTER & I. GREENE, THE LABOR INJUNCTION (1930).

1225 47 Stat. 70 (1932), 29 U.S.C. §§ 101–115.

1226 In Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938), the Court simply

declared: “There can be no question of the power of Congress thus to define and

limit the jurisdiction of the inferior courts of the United States.”

1227 E.g., New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938); Brotherhood of Railroad Trainmen v. Chicago River & I. R.R., 353 U.S. 30 (1957); Boys

Markets v. Retail Clerks Union, 398 U.S. 235 (1970).

1228 56 Stat. 23 (1942).

1229 319 U.S. 182 (1943).

1230 321 U.S. 414 (1944).

1231 321 U.S. at 468. In United States v. Mendoza-Lopez, 481 U.S. 828 (1987),

purportedly in reliance on Yakus and other cases, the Court held that a collateral

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

ART. III—JUDICIAL DEPARTMENT 875
The Theory Reconsidered

Despite the breadth of the language of many of the previously

cited cases, the actual holdings constitute something less than an

affirmance of plenary congressional power to do anything it desires

by manipulation of jurisdiction, and, indeed, the cases reflect certain limitations. Setting to one side various formulations that lack

textual and subsequent judicial support, such as mandatory vesting of jurisdiction,1232 inherent judicial power,1233 and a theory, variously expressed, that the Supreme Court has “essential constitutional functions” of judicial review that Congress may not impair

through jurisdictional limitations,1234 one can nonetheless see the

possibilities of restrictions on congressional power flowing from such

challenge must be permitted to the use of a deportation proceeding as an element of

a criminal offense where effective judicial review of the deportation order had been

denied. A statutory scheme similar to that in Yakus was before the Court in Adamo

Wrecking Co. v. United States, 434 U.S. 275 (1978), but statutory construction enabled the Court to pass by constitutional issues that were not perceived to be insignificant. See esp. id. at 289 (Justice Powell concurring). See also Harrison v. PPG

Industries, 446 U.S. 578 (1980), and id. at 594 (Justice Powell concurring).

1232 This was Justice Story’s theory propounded in Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304, 329–336 (1816). Nevertheless, Story apparently did not believe that the constitutional bestowal of jurisdiction was self-executing and accepted

the necessity of statutory conferral. White v. Fenner, 29 Fed. Cas. 1015 (No. 17,

547) (C.C.D.R.I. 1818) (Justice Story). In the present day, it has been argued that

the presence in the jurisdictional-grant provisions of Article III of the word “all” before the subject-matter grants—federal question, admiralty, public ambassadors –mandates federal court review at some level of these cases, whereas congressional discretion exists with respect to party-defined jurisdiction, such as diversity. Amar, A NeoFederalist View of Article III: Separating the Two-Tiers of Federal Jurisdiction, 65

B.U. L. REV. 205 (1985); Amar, The Two-Tiered Structure of the Judiciary Act of 1789,

138 U. PA. L. REV. 1499 (1990). Rebuttal articles include Meltzer, The History and

Structure of Article III, id. at 1569; Redish, Text, Structure, and Common Sense in

the Interpretation of Article III, id. at 1633; and a response by Amar, id. at 1651.

An approach similar to Professor Amar’s is Clinton, A Mandatory View of Federal

Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U.

PA. L. REV. 741 (1984); Clinton, Early Implementation and Departures from the Constitutional Plan, 86 COLUM. L. REV. 1515 (1986). Though perhaps persuasive as an

original interpretation, both theories confront a large number of holdings and dicta

as well as the understandings of the early Congresses revealed in their actions. See

Casto, The First Congress’s Understanding of its Authority over the Federal Court’s

Jurisdiction, 26 B.C. L. REV. 1101 (1985).

1233 Justice Brewer in his opinion for the Court in United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 339 (1906), came close to asserting an independent, inherent power of the federal courts, at least in equity. See also Paine Lumber

Co. v. Neal, 244 U.S. 459, 473, 475–476 (1917) (Justice Pitney dissenting). The acceptance by the Court of the limitations of the Norris-LaGuardia Act, among other

decisions, contradicts these assertions.

1234 The theory was apparently first developed in Ratner, Congressional Power

Over the Appellate Jurisdiction of the Supreme Court, 109 U. PA. L. REV. 157 (1960).

See also Ratner, Majoritarian Constraints on Judicial Review: Congressional Control of Supreme Court Jurisdiction, 27 VILL. L. REV. 929 (1981–82). The theory was

endorsed by Attorney General William French Smith as the view of the Department

of Justice. 128 CONG. REC. 9093–9097 (1982) (Letter to Hon. Strom Thurmond).

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basic constitutional underpinnings as express prohibitions, separation of powers, and the nature of the judicial function.1235 Whether

because of the plethora of scholarly writing contesting the existence of unlimited congressional power or because of another reason, the Court of late has taken to noting constitutional reservations about legislative denials of jurisdiction for judicial review of

constitutional issues and construing statutes so as not to deny jurisdiction.1236

Ex parte McCardle 1237 marks the farthest advance of congressional imposition of its will on the federal courts, and it is significant because the curb related to the availability of the writ of habeas corpus, which is marked out with special recognition by the

Constitution.1238

But how far did McCardle actually reach? In concluding its opinion, the Court carefully observed: “Counsel seem to have supposed,

if effect be given to the repealing act in question, that the whole

appellate power of the court, in cases of habeas corpus, is denied.

But this is an error. The act of 1868 does not exempt from that

jurisdiction any cases but appeals from Circuit Courts under the

act of 1867. It does not affect the jurisdiction which was previously

exercised.” 1239 A year later, in Ex parte Yerger,

1240 the Court held

that it did have authority under the Judiciary Act of 1789 to review on certiorari a denial by a circuit court of a petition for writ

of habeas corpus on behalf of one held by the military in the South.

1235 An extraordinary amount of writing has been addressed to the issue, only a

fraction of which is touched on here. See Hart & Wechsler (6th ed.), supra at 275–

324.

1236 Johnson v. Robison, 415 U.S. 361, 366–367 (1974); Weinberger v. Salfi, 422

U.S. 749, 762 (1975); Bowen v. Michigan Academy of Family Physicians, 476 U.S.

667, 681 n.12 (1986); Webster v. Doe, 486 U.S. 592, 603 (1988). In the last cited

case, Justice Scalia attacked the reservation and argued for nearly complete congressional discretion. Id. at 611–15 (concurring).

1237 74 U.S. (7 Wall) 506 (1869). For the definitive analysis of the case, see Van

Alstyne, A Critical Guide to Ex Parte McCardle, 15 ARIZ. L. REV. 229 (1973).

1238 Article I, § 9, cl. 2.

1239 Ex parte McCardle, 74 U.S. (7 Wall.) 506, 515 (1869). A restrained reading

of McCardle is strongly suggested by Felker v. Turpin, 518 U.S. 651 (1996). A 1996

congressional statute giving to federal courts of appeal a “gate-keeping” function over

the filing of second or successive habeas petitions limited further review, including

denying the Supreme Court appellate review of circuit court denials of motions to

file second or successive habeas petitions. Pub. L. 104–132, § 106, 110 Stat. 1214,

1220, amending 28 U.S.C. § 2244(b). Upholding the limitation, which was nearly identical to the congressional action at issue in McCardle and Yerger, the Court held

that its jurisdiction to hear appellate cases had been denied, but, just as in Yerger,

the statute did not annul the Court’s jurisdiction to hear habeas petitions filed as

original matters in the Supreme Court. No constitutional issue was thus presented.

1240 75 U.S. (8 Wall.) 85 (1869). Yerger is fully reviewed in C. FAIRMAN, HISTORY OF

THE SUPREME COURT OF THE UNITED STATES: VOL. VI, PT. I: RECONSTRUCTION AND REUNION,

1864–88 (New York: 1971), 558–618.

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ART. III—JUDICIAL DEPARTMENT 877
It thus remains unclear whether the Court would have followed its

language suggesting plenary congressional control if the effect had

been to deny absolutely an appeal from a denial of a writ of habeas

corpus.

1241

Another Reconstruction Congress attempt to curb the judiciary

failed in United States v. Klein,

1242 in which the Court voided a statute, couched in jurisdictional terms, which attempted to set aside

both the effect of a presidential pardon and the judicial effectuation of such a pardon.1243 The statute declared that no pardon was

to be admissible in evidence in support of any claim against the

United States in the Court of Claims for the return of confiscated

property of Confederates nor, if already put in evidence in a pending case, should it be considered on behalf of the claimant by the

Court of Claims or by the Supreme Court on appeal. Proof of loyalty was required to be made according to provisions of certain congressional enactments, and when judgment had already been rendered on other proof of loyalty the Supreme Court on appeal should

have no further jurisdiction and should dismiss for want of jurisdiction. Moreover, it was provided that the recitation in any pardon

which had been received that the claimant had taken part in the

rebellion was to be taken as conclusive evidence that the claimant

had been disloyal and was not entitled to regain his property.

The Court began by reaffirming that Congress controlled the existence of the inferior federal courts and the jurisdiction vested in

1241 Cf. Eisentrager v. Forrestal, 174 F.2d 961, 966 (D.C.Cir. 1949), rev’d on other

grounds sub nom. Johnson v. Eisentrager, 339 U.S. 763 (1950). Justice Douglas, with

whom Justice Black joined, said in Glidden Co. v. Zdanok, 370 U.S. 530, 605 n.11

(1962) (dissenting opinion): “There is a serious question whether the McCardle case

could command a majority view today.” Justice Harlan, however, cited McCardle with

apparent approval of its holding, id. at 567–68, while noting that Congress’s “authority is not, of course, unlimited.” Id. at 568. McCardle was cited approvingly in Bruner

v. United States, 343 U.S. 112, 117 n.8 (1952), as illustrating the rule “that when a

law conferring jurisdiction is repealed without any reservation as to pending cases,

all cases fall with the law. . . .”

1242 80 U.S. (13 Wall.) 128 (1872). See C. Fairman, supra at 558–618. The seminal discussion of Klein may be found in Young, Congressional Regulation of Federal

Courts’ Jurisdiction and Processes: United States v. Klein Revisited, 1981 WISC. L.

REV. 1189. While he granted that Klein is limited insofar as its bearing on jurisdictional limitation per se is concerned, he cited an ambiguous holding in Armstrong v.

United States, 80 U.S. (13 Wall.) 154 (1872), as in fact a judicial invalidation of a

jurisdictional limitation. Young, id. at 1222–23 n.179.

1243 Congress by the Act of July 17, 1862, §§ 5, 13, authorized the confiscation

of property of those persons in rebellion and authorized the President to issue pardons on such conditions as he deemed expedient, the latter provision being unnecessary in light of Article II, § 2, cl. 1. The President’s pardons all provided for restoration of property, except slaves, and in United States v. Padelford, 76 U.S. (9 Wall.)

531 (1870), the Court held the claimant entitled to the return of his property on the

basis of his pardon. Congress thereupon enacted the legislation in question. 16 Stat.

235 (1870).

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878 ART. III—JUDICIAL DEPARTMENT
them and the appellate jurisdiction of the Supreme Court. “But the

language of this provision shows plainly that it does not intend to

withhold appellate jurisdiction except as a means to an end. . . . It

is evident . . . that the denial of jurisdiction to this court, as well

as to the Court of Claims, is founded solely on the application of a

rule of decision, in causes pending, prescribed by Congress. The Court

has jurisdiction of the cause to a given point; but when it ascertains that a certain state of things exists, its jurisdiction is to cease

and it is required to dismiss the cause for want of jurisdiction.”

“It seems to us that this is not an exercise of the acknowledged

power of Congress to make exceptions and prescribe regulations to

the appellate power.” 1244 The statute was void for two reasons; it

“infring[ed] the constitutional power of the Executive,” 1245 and it

“prescrib[ed] a rule for the decision of a cause in a particular way.” 1246

Klein thus stands for the proposition that Congress may not violate the principle of separation of powers 1247 and that it may not

accomplish certain forbidden substantive acts by casting them in

jurisdictional terms.1248

Other restraints on congressional power over the federal courts

may be gleaned from the opinion in the much-disputed Crowell v.

Benson.

1249 In an 1856 case, the Court distinguished between matters of private right which from their nature were the subject of a

suit at the common law, equity, or admiralty and which cannot be

withdrawn from judicial cognizance, and those matters of public right

which, though susceptible of judicial determination, did not require

it and which might or might not be brought within judicial cognizance.1250 What this might mean was elaborated in Crowell v.

Benson,

1251 involving the finality to be accorded administrative find1244 United States v. Klein, 80 U.S. (13 Wall.) 128, 145–46 (1872).

1245 80 U.S. at 147.

1246 80 U.S. at 146.

1247 80 U.S. at 147. For an extensive discussion of Klein, see United States v.

Sioux Nation, 448 U.S. 371, 391–405 (1980), and id. at 424, 427–34 (Justice Rehnquist

dissenting). See also Pope v. United States, 323 U.S. 1, 8–9 (1944); Glidden Co. v.

Zdanok, 370 U.S. 530, 568 (1962) (Justice Harlan). In Robertson v. Seattle Audubon

Society, 503 U.S. 429 (1992), the Ninth Circuit had held unconstitutional under Klein

a statute that it construed to deny the federal courts power to construe the law, but

the Supreme Court held that Congress had changed the law that the courts were to

apply. The Court declined to consider whether Klein was properly to be read as voiding a law “because it directed decisions in pending cases without amending any law.”

Id. at 441.

1248 United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1872).

1249 285 U.S. 22 (1932). See also Ng Fung Ho v. White, 259 U.S. 276 (1922);

Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287 (1920); St. Joseph Stock

Yards Co. v. United States, 298 U.S. 38 (1936).

1250 Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.)

272 (1856).

1251 285 U.S. 22 (1932). Justices Brandeis, Stone, and Roberts dissented.

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ART. III—JUDICIAL DEPARTMENT 879
ings of jurisdictional facts in compensation cases. In holding that

an employer was entitled to a trial de novo of the constitutional

jurisdictional facts of the matter of the employer-employee relationship and of the occurrence of the injury in interstate commerce, Chief

Justice Hughes fused the Due Process Clause of the Fifth Amendment and Article III but emphasized that the issue ultimately was

“rather a question of the appropriate maintenance of the Federal

judicial power” and “whether the Congress may substitute for constitutional courts, in which the judicial power of the United States

is vested, an administrative agency . . . for the final determination

of the existence of the facts upon which the enforcement of the constitutional rights of the citizen depend.” The answer was stated broadly.

“In cases brought to enforce constitutional rights, the judicial power

of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function. . . . We think that the essential independence of the exercise of the judicial power of the United

States in the enforcement of constitutional rights requires that the

Federal court should determine such an issue upon its own record

and the facts elicited before it.” 1252

It is not at all clear that, in this respect, Crowell v. Benson remains good law. It has never been overruled, and it has been cited

by several Justices approvingly,1253 but the Court has never applied the principle to control another case.1254

Express Constitutional Restrictions on Congress.—“[T]he Constitution is filled with provisions that grant Congress or the States

specific power to legislate in certain areas; these granted powers

are always subject to the limitations that they may not be exercised in a way that violates other specific provisions of the Constitution.” 1255 The Supreme Court has had no occasion to deal with

1252 285 U.S. at 56, 60, 64.

1253 See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50

(1982) (plurality opinion), and id. at 100–03, 109–11 (Justice White dissenting) (discussing the due process/Article III basis of Crowell). Both the plurality and the dissent agreed that later cases had “undermined” the constitutional/jurisdictional fact

analysis. Id. at 82, n.34; 110 n.12. For other discussions, see Jacobellis v. Ohio, 378

U.S. 184, 190 (1964) (Justice Brennan announcing judgment of the Court, joined by

Justice Goldberg); Pickering v. Board of Education, 391 U.S. 563, 578–79 (1968); Agosto

v. INS, 436 U.S. 748, 753 (1978); United States v. Raddatz, 447 U.S. 667, 682–84

(1980), and id. at 707–12 (Justice Marshall dissenting).

1254 Compare Permian Basin Area Rate Cases, 390 U.S. 747, 767, 792 (1968);

Cordillo v. Liberty Mutual Ins. Co., 330 U.S. 469 (1947); South Chicago Coal & Dock

Co. v. Bassett, 309 U.S. 251 (1940). Justice Frankfurter was extremely critical of

Crowell. Estep v. United States, 327 U.S. 114, 142 (1946); City of Yonkers v. United

States, 320 U.S. 685 (1944).

1255 Williams v. Rhodes, 393 U.S. 23, 29 (1968). The elder Justice Harlan perhaps had the same thought in mind when he said that, with regard to Congress’s

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880 ART. III—JUDICIAL DEPARTMENT
this principle in the context of Congress’s power over its jurisdiction and the jurisdiction of the inferior federal courts, but the passage of the Portal-to-Portal Act 1256 presented the lower courts such

an opportunity. The Act extinguished back-pay claims growing out

of several Supreme Court interpretations of the Fair Labor Standards Act; it also provided that no court should have jurisdiction to

enforce any claim arising from these decisions. The United States

Court of Appeals for the Second Circuit sustained the Act.1257 The

court noted that the withdrawal of jurisdiction would be ineffective

if the extinguishment of the claims as a substantive matter were

invalid. “We think . . . that the exercise by Congress of its control

over jurisdiction is subject to compliance with at least the requirements of the Fifth Amendment. That is to say, while Congress has

the undoubted power to give, withhold, and restrict the jurisdiction

of the courts other than the Supreme Court, it must not so exercise

that power as to deprive any person of life, liberty, or property without due process of law or to take private property without just compensation.” 1258 The Court, however, found that the Portal-to-Portal

Act “did not violate the Fifth Amendment in so far as it may have

withdrawn from private individuals . . . any rights . . . which rested

upon private contracts they had made. Nor is the Portal-to-Portal

Act a violation of Article III of the Constitution or an encroachment upon the separate power of the judiciary.” 1259

Conclusion.—There thus remains a measure of doubt that Congress’s power over the federal courts is as plenary as some of the

Court’s language suggests it is. Congress has a vast amount of discretion in conferring and withdrawing and structuring the original

and appellate jurisdiction of the inferior federal courts and the appellate jurisdiction of the Supreme Court; so much is clear from the

practice since 1789 and the holdings of many Court decisions. That

its power extends to accomplishing by means of its control over jurisdiction actions which it could not do directly by substantive enpower over jurisdiction, “What such exceptions and regulations should be it is for

Congress, in its wisdom, to establish, having of course due regard to all the provisions of the Constitution.” United States v. Bitty, 208 U.S. 393, 399–400 (1908).

1256 52 Stat. 1060, 29 U.S.C. § 201.

1257 Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948), cert. denied,

335 U.S. 887 (1948). See also Seese v. Bethlehem Steel Co., 168 F.2d 58, 65 (4th Cir.

1948). For later dicta, see Johnson v. Robison, 415 U.S. 361, 366–67 (1974); Weinberger

v. Salfi, 422 U.S. 749, 761–62 (1975); Territory of Guam v. Olsen, 431 U.S. 195, 201–

02, 204 (1977); Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978); Bowen v.

Michigan Academy of Family Physicians, 476 U.S. 667, 681 n.12 (1986); Webster v.

Doe, 486 U.S. 592, 603 (1988); but see id. at 611–15 (Justice Scalia dissenting). Note

the relevance of United States v. Mendoza-Lopez, 481 U.S. 828 (1987).

1258 169 F.2d at 257.

1259 169 F.2d at 261–62.

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ART. III—JUDICIAL DEPARTMENT 881
actment is by no means clear from the text of the Constitution or

from the cases.

FEDERAL-STATE COURT RELATIONS

Problems Raised by Concurrency

The Constitution established a system of government in which

total power, sovereignty, was not unequivocally lodged in one level

of government. In Chief Justice Marshall’s words, “our complex system [presents] the rare and difficult scheme of one general government, whose actions extend over the whole, but which possesses only

certain enumerated powers, and of numerous state governments,

which retain and exercise all powers not delegated to the Union. . . .”

Naturally, in such a system, “contests respecting power must arise.” 1260

Contests respecting power may frequently arise in a federal system

with dual structures of courts exercising concurrent jurisdiction in

a number of classes of cases. Too, the possibilities of frictions grow

out of the facts that one set of courts may interfere directly or indirectly with the other through injunctive and declaratory processes,

through the use of habeas corpus and removal to release persons

from the custody of the other set, and through the refusal by state

courts to be bound by decisions of the United States Supreme Court.

The relations between federal and state courts are governed in part

by constitutional law, with respect, say, to state court interference

with federal courts and state court refusal to comply with the judgments of federal tribunals; in part by statutes, with respect to the

federal law generally enjoining federal court interference with pending state court proceedings; and in part by self-imposed rules of comity and restraint, such as the abstention doctrine, all applied to

avoid unseemly conflicts, which, however, have at times occurred.

Subject to congressional provision to the contrary, state courts

have concurrent jurisdiction over all the classes of cases and controversies enumerated in Article III, except suits between states, those

to which the United States is a party, those to which a foreign state

is a party, and those within the traditional admiralty jurisdiction.1261 Even within this last category, however, state courts, though

1260 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 204–05 (1824).

1261 See 28 U.S.C. §§ 1251, 1331 et seq. Indeed, the presumption is that state

courts enjoy concurrent jurisdiction, and Congress must explicitly or implicitly confine jurisdiction to the federal courts to oust the state courts. See Gulf Offshore Co.

v. Mobil Oil Corp., 453 U.S. 473, 477–84 (1981); Tafflin v. Levitt, 493 U.S. 455 (1990);

Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990). Federal courts have

exclusive jurisdiction of the federal antitrust laws, even though Congress has not

spoken expressly or impliedly. See General Investment Co. v. Lake Shore & Michigan Southern Ry., 260 U.S. 261, 287 (1922). Justice Scalia has argued that, inasmuch as state courts have jurisdiction generally because federal law is law for them,

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

882 ART. III—JUDICIAL DEPARTMENT
unable to prejudice the harmonious operation and uniformity of general maritime law,1262 have concurrent jurisdiction over cases that

occur within the maritime jurisdiction when such litigation assumes the form of a suit at common law.1263 Review of state court

decisions by the United States Supreme Court is intended to protect the federal interest and promote uniformity of law and decision relating to the federal interest.1264 The first category of conflict surfaces here. The second broader category arises from the fact

that state interests, actions, and wishes, all of which may at times

be effectuated through state courts, are variously subject to restraint by federal courts. Although the possibility always existed,1265 it became much more significant and likely when, in the

wake of the Civil War, Congress bestowed general federal question

jurisdiction on the federal courts,1266 enacted a series of civil rights

statutes and conferred jurisdiction on the federal courts to enforce

them,1267 and most important proposed and saw to the ratification

of the three constitutional amendments, especially the Fourteenth,

which made an ever-increasing number of state actions subject to

federal scrutiny.1268

The Autonomy of State Courts

Noncompliance With and Disobedience of Supreme Court

Orders by State Courts.—The United States Supreme Court when

deciding cases on review from the state courts usually remands the

case to the state court when it reverses for “proceedings not inconsistent” with the Court’s opinion. This disposition leaves open the

possibility that unresolved issues of state law will be decided adversely to the party prevailing in the Supreme Court or that the

Congress can provide exclusive federal jurisdiction only by explicit and affirmative

statement in the text of the statute, Tafflin v. Levitt, 493 U.S. at 469, but as can be

seen that is not now the rule.

1262 Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917).

1263 Through the “saving to suitors” clause, 28 U.S.C. § 1333(1). See Madruga v.

Superior Court, 346 U.S. 556, 560–61 (1954).

1264 See “Organization of Courts, Tenure, and Compensation of Judges” and

“Marbury v. Madison,” supra. See also 28 U.S.C. § 1257.

1265 E.g., by a suit against a state by a citizen of another state directly in the

Supreme Court, Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), which was overturned by the Eleventh Amendment; by suits in diversity or removal from state courts

where diversity existed, 1 Stat. 78, 79; by suits by aliens on treaties, 1 Stat. 77,

and, subsequently, by removal from state courts of certain actions. 3 Stat. 198. And

for some unknown reason, Congress passed in 1793 a statute prohibiting federal

court injunctions against state court proceedings. See Toucey v. New York Life Ins.

Co., 314 U.S. 118, 120–32 (1941).

1266 Act of March 3, 1875, 18 Stat. 470.

1267 Civil Rights Act of 1871, § 1, 17 Stat. 13. The authorization for equitable

relief is now 42 U.S.C. § 1983, while jurisdiction is granted by 28 U.S.C. § 1343.

1268 See H. WECHSLER, THE NATIONALIZATION OF CIVIL LIBERTIES AND CIVIL RIGHTS (1969).

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ART. III—JUDICIAL DEPARTMENT 883
state court will so interpret the facts or the Court’s opinion to the

detriment of the party prevailing in the Supreme Court.1269 When

it is alleged that the state court has deviated from the Supreme

Court’s mandate, the party losing below may appeal again 1270 or

she may presumably apply for mandamus to compel compliance.1271 Statutorily, the Court may attempt to overcome state recalcitrance by a variety of specific forms of judgment.1272 If, however, the state courts simply defy the mandate of the Court, difficult

problems face the Court, extending to the possibility of contempt

citations.1273

The most spectacular disobedience of federal authority arose out

of the conflict between the Cherokees and the State of Georgia, which

was seeking to remove them and seize their lands with the active

support of President Jackson.1274 In the first instance, after the Court

had issued a writ of error to the Georgia Supreme Court to review

1269 Hart & Wechsler (6th ed.), supra at 431–531. Notable examples include Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816); Cohens v. Virginia, 19 U.S. (6

Wheat.) 264 (1821); Ableman v. Booth, 62 U.S. (21 How.) 506 (1859). For studies,

see Note, Final Disposition of State Court Decisions Reversed and Remanded by the

Supreme Court, October Term 1931 to October Term 1940, 55 HARV. L. REV. 1357 (1942);

Note, Evasion of Supreme Court Mandates in Cases Remanded to State Courts Since

1941, 67 HARV. L. REV. 1251 (1954); Schneider, State Court Evasion of United States

Supreme Court Mandates: A Reconsideration of the Evidence, 7 VALP. U. L. REV. 191

(1973).

1270 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). See 2 W. CROSSKEY,

POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 785–817 (1953); 1 C.

WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 442–453 (1926). For recent examples, see NAACP v. Alabama, 360 U.S. 240, 245 (1959); NAACP v. Alabama ex

rel. Flowers, 377 U.S. 288 (1964), after remand, 277 Ala. 89, 167 So.2d 171 (1964);

Stanton v. Stanton, 429 U.S. 501 (1977); General Atomic Co. v. Felter, 436 U.S. 493

(1978).

1271 It does not appear that mandamus has ever actually issued. See In re Blake,

175 U.S. 114 (1899); Ex parte Texas, 315 U.S. 8 (1942); Fisher v. Hurst, 333 U.S.

147 (1948); Lavender v. Clark, 329 U.S. 674 (1946); General Atomic Co. v. Felter,

436 U.S. 493 (1978).

1272 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 437 (1819); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,

239 (1824); Williams v. Bruffy, 102 U.S. 248 (1880) (entry of judgment); Tyler v. Maguire,

84 U.S. (17 Wall.) 253 (1873) (award of execution); Stanley v. Schwalby, 162 U.S.

255 (1896); Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 270 (1885)

(remand with direction to enter a specific judgment). See 28 U.S.C. §§ 1651(a), 2106.

1273 See 18 U.S.C. § 401. In United States v. Shipp, 203 U.S. 563 (1906), 214

U.S. 386 (1909); 215 U.S. 580 (1909), on action by the Attorney General, the Court

appointed a commissioner to take testimony, rendered judgment of conviction, and

imposed sentence on a state sheriff who had conspired with others to cause the lynching of a prisoner in his custody after the Court had allowed an appeal from a circuit

court’s denial of a petition for a writ of habeas corpus. A question whether a probate

judge was guilty of contempt of an order of the Court in failing to place certain

candidates on the ballot was certified to the district court, over the objections of

Justices Douglas and Harlan, who wished to follow the Shipp practice. In re Herndon,

394 U.S. 399 (1969). See In re Herndon, 325 F. Supp. 779 (M.D. Ala. 1971).

1274 1 C. Warren, supra at 729–79.

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884 ART. III—JUDICIAL DEPARTMENT
the murder conviction of a Cherokee, Corn Tassel, and after the writ

was served, Corn Tassel was executed on the day set for the hearing, contrary to the federal law that a writ of error superseded sentence until the appeal was decided.1275 Two years later, Georgia again

defied the Court, when, in Worcester v. Georgia,

1276 it set aside the

conviction of two missionaries for residing among the Indians without a license. Despite the issuance of a special mandate to a local

court to discharge the missionaries, they were not released, and the

state’s governor loudly proclaimed resistance. Consequently, the two

remained in jail until they agreed to abandon further efforts for their

discharge by federal authority and to leave the state, whereupon

the governor pardoned them.

Use of State Courts in Enforcement of Federal Law.—

Although the states’ rights proponents in the Convention and in the

First Congress wished to leave to the state courts the enforcement

of federal law and rights rather than to create inferior federal

courts,1277 it was not long before they or their successors began to

argue that state courts could not be required to adjudicate cases

based on federal law. The practice in the early years was to make

the jurisdiction of federal courts generally concurrent with that of

state courts,1278 and early Congresses imposed positive duties on

state courts to enforce federal laws.1279 Reaction set in out of hostility to the Embargo Acts, the Fugitive Slave Law, and other measures,1280 and, in Prigg v. Pennsylvania,

1281 involving the Fugitive

Slave Law, the Court indicated that the states could not be compelled to enforce federal law. After a long period, however, Congress resumed its former practice,1282 which the Court sus1275 Id. at 732–36.

1276 31 U.S. (6 Pet.) 515 (1832).

1277 See “Organization of Courts, Tenure, and Compensation of Judges,” supra.

1278 Judiciary Act of 1789, §§ 9, 11, 1 Stat. 76, 78; see also id. at § 25, 1 Stat. 85.

1279 E.g., Carriage Tax Act, 1 Stat. 373 (1794); License Tax on Wine & Spirits

Act, 1 Stat. 376 (1794); Fugitive Slave Act, 1 Stat. 302 (1794); Naturalization Act of

1795, 1 Stat. 414; Alien Enemies Act of 1798, 1 Stat. 577. State courts in 1799 were

vested with jurisdiction to try criminal offenses against the postal laws. 1 Stat. 733,

28. The Act of March 3, 1815, 3 Stat. 244, vested state courts with jurisdiction of

complaints, suits, and prosecutions for taxes, duties, fines, penalties, and forfeitures. See Warren, Federal Criminal Laws and State Courts, 38 HARV. L. REV. 545,

577–581 (1925).

1280 Embargo Acts, 2 Stat. 453, 473, 499, 506, 528, 550, 605, 707 (1808–1812); 3

Stat. 88 (1813); Fugitive Slave Act, 1 Stat. 302 (1793).

1281 41 U.S. (16 Pet.) 539, 615 (1842). See also Houston v. Moore, 18 U.S. (5

Wheat.) 1, 69 (1820) (Justice Story dissenting); United States v. Bailey, 34 U.S. (9

Pet.) 238, 259 (1835) (Justice McLean dissenting). However, the Court held that states

could exercise concurrent jurisdiction if they wished. Claflin v. Houseman, 93 U.S.

130 (1876), and cases cited.

1282 E.g., Act of June 8, 1872, 17 Stat. 323.

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ART. III—JUDICIAL DEPARTMENT 885
tained,1283 and it went even further in the Federal Employers’ Liability

Act by not only giving state courts concurrent jurisdiction but also

by prohibiting the removal of cases begun in state courts to the federal courts.1284

When Connecticut courts refused to enforce an FELA claim on

the ground that to do so was contrary to the public policy of the

state, the Court held on the basis of the Supremacy Clause that,

when Congress enacts a law and declares a national policy, that

policy is as much Connecticut’s and every other state’s as it is of

the collective United States.1285 The Court’s suggestion that the act

could be enforced “as of right, in the courts of the States when their

jurisdiction, as prescribed by local laws, is adequate to the occasion,” 1286 leaving the impression that state practice might in some

instances preclude enforcement in state courts, was given body when

the Court upheld New York’s refusal to adjudicate an FELA claim

that fell in a class of cases in which claims under state law would

not be entertained.1287 “[T]here is nothing in the Act of Congress

that purports to force a duty upon such Courts as against an otherwise valid excuse.” 1288 However, “[a]n excuse that is inconsistent

with or violates federal law is not a valid excuse: The Supremacy

Clause forbids state courts to dissociate themselves from federal law

because of disagreement with its content or a refusal to recognize

the superior authority of its source.” 1289

The fact that a state statute divests its courts of jurisdiction

not only over a disfavored federal claim, but also over an identical

state claim, does not ensure that the “state law will be deemed a

neutral rule of judicial administration and therefore a valid excuse

for refusing to entertain a federal cause of action.” 1290 “Although

the absence of discrimination [in its treatment of federal and state

law] is necessary to our finding a state law neutral, it is not suffi1283 Claflin v. Houseman, 93 U.S. 130 (1876).

1284 35 Stat. 65 (1908), as amended, 45 U.S.C. §§ 51–60.

1285 Second Employers’ Liability Cases, 223 U.S. 1 (1912).

1286 223 U.S. at 59.

1287 Douglas v. New York, N.H. & H.R.R., 279 U.S. 377 (1929).

1288 279 U.S. at 388. For what constitutes a valid excuse, compare Missouri ex

rel. Southern Ry. v. Mayfield, 340 U.S. 1 (1950), with McKnett v. St. Louis & S.F.

Ry., 292 U.S. 230 (1934). It appears that generally state procedure must yield to

federal when it would make a difference in outcome. Compare Brown v. Western Ry.

of Alabama, 338 U.S. 294 (1949), and Dice v. Akron, C. & Y. R.R., 342 U.S. 359

(1952), with Minneapolis & St. L. R.R. v. Bombolis, 241 U.S. 211 (1916).

1289 Howlett v. Rose, 496 U.S. 356, 371 (1990). See also Felder v. Casey, 487

U.S. 131 (1988).

1290 Haywood v. Drown, 556 U.S. ___, No. 07–10374, slip op. at 8–9 (2009) (striking down New York statute that gave the state’s supreme courts—its trial courts of

general jurisdiction—jurisdiction over suits brought under 42 U.S.C. § 1983, except

in the case of suits seeking money damages from corrections officers, whether brought

under federal or state law).

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886 ART. III—JUDICIAL DEPARTMENT
cient. A jurisdictional rule cannot be used as a device to undermine

federal law, no matter how evenhanded it may appear.” 1291

In Testa v. Katt,

1292 the Court unanimously held that state courts,

at least with regard to claims and cases analogous to claims and

cases enforceable in those courts under state law, are required to

enforce “penal” laws of the United States; the statute at issue in

the case provided “that a buyer of goods at above the prescribed

ceiling price may sue the seller ‘in any court of competent jurisdiction.’ ” 1293 Respecting Rhode Island’s claim that one sovereign cannot enforce the penal laws of another, Justice Black observed that

the assumption underlying this claim flew “in the face of the fact

that the States of the Union constitute a nation” and the fact of

the existence of the Supremacy Clause.1294

State Interference with Federal Jurisdiction.—It seems

settled, though not without dissent, that state courts have no power

to enjoin proceedings 1295 or effectuation of judgments 1296 of the federal courts, with the exception of cases in which a state court has

custody of property in proceedings in rem or quasi in rem, where

the state court has exclusive jurisdiction to proceed and may enjoin parties from further action in federal court.1297

1291 556 U.S. ___, No. 07–10374, slip op. at 9 (New York statute found, “contrary to Congress’s judgment [in 42 U.S.C. § 1983,] that all persons who violate federal rights while acting under color of state law shall be held liable for damages”).

1292 330 U.S. 386 (1947).

1293 330 U.S. at 387.

1294 330 U.S. at 389. See, for a discussion as well as an extension of Testa, FERC

v. Mississippi, 456 U.S. 742 (1982). Cases since Testa requiring state court enforcement of federal rights have generally concerned federal remedial laws. E.g., Charles

Dowd Box Co. v. Courtney, 368 U.S. 502 (1962); Sullivan v. Little Hunting Park,

396 U.S. 229 (1969). The Court has approved state court adjudication under 42 U.S.C.

§ 1983, Maine v. Thiboutot, 448 U.S. 1, 3 n.1 (1980), but, curiously, in Martinez v.

California, 444 U.S. 277, 283 n.7 (1980) (emphasis by Court), it noted that it has

“never considered . . . the question whether a State must entertain a claim under

1983.” See also Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 234 n.7

(1987) (continuing to reserve question). But, with Felder v. Casey, 487 U.S. 131 (1988),

and Howlett by Howlett v. Rose, 496 U.S. 356 (1990), it seems dubious that state

courts could refuse. Enforcement is not limited to federal statutory law; federal common law must similarly be enforced. Free v. Bland, 369 U.S. 663 (1962).

1295 Donovan v. City of Dallas, 377 U.S. 408 (1964), and cases cited. Justices

Harlan, Clark, and Stewart dissented, arguing that a state should have power to

enjoin vexatious, duplicative litigation which would have the effect of thwarting a

state-court judgment already entered. See also Baltimore & Ohio R.R. v. Kepner,

314 U.S. 44, 56 (1941) (Justice Frankfurter dissenting). In Riggs v. Johnson County,

73 U.S. (6 Wall.) 166 (1868), the general rule was attributed to the complete independence of state and federal courts in their spheres of action, but federal courts, of

course may under certain circumstances enjoin actions in state courts.

1296 McKim v. Voorhies, 11 U.S. (7 Cr.) 279 (1812); Riggs v. Johnson County, 73

U.S. (6 Wall.) 166 (1868).

1297 Princess Lida v. Thompson, 305 U.S. 456 (1939). Nor do state courts have

any power to release by habeas corpus persons in custody pursuant to federal authorSec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

ART. III—JUDICIAL DEPARTMENT 887
Conflicts of Jurisdiction: Rules of Accommodation

Federal courts primarily interfere with state courts in three ways:

by enjoining proceedings in them, by issuing writs of habeas corpus to set aside convictions obtained in them, and by adjudicating

cases removed from them. With regard to all three but particularly

with regard to the first, there have been developed certain rules

plus a statutory limitation designed to minimize needless conflict.

Comity.—“[T]he notion of ‘comity,’ ” Justice Black asserted, is

composed of “a proper respect for state functions, a recognition of

the fact that the entire country is made up of a Union of separate

state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe

it, is referred to by many as ‘Our Federalism’. . . .” 1298 Comity is a

self-imposed rule of judicial restraint whereby independent tribunals of concurrent or coordinate jurisdiction act to moderate the

stresses of coexistence and to avoid collisions of authority. It is not

a rule of law but “one of practice, convenience, and expediency,” 1299

which persuades but does not command.

Abstention.—Perhaps the fullest expression of the concept of

comity may be found in the abstention doctrine. The abstention doctrine instructs federal courts to abstain from exercising jurisdiction

if applicable state law, which would be dispositive of the controversy, is unclear and a state court interpretation of the state law

question might obviate the necessity of deciding a federal constitutional issue.1300 Abstention is not proper, however, where the relity. Ableman v. Booth, 62 U.S. (21 How.) 506 (1859); Tarble’s Case, 80 U.S. (13 Wall.)

397 (1872).

1298 Younger v. Harris, 401 U.S. 37, 44 (1971). Compare Fair Assessment in Real

Estate Ass’n v. McNary, 454 U.S. 100 (1981), with id. at 119–25 (Justice Brennan

concurring, joined by three other Justices).

1299 Mast, Foos & Co. v. Stover Manufacturing Co., 177 U.S. 458, 488 (1900).

Recent decisions emphasize comity as the primary reason for restraint in federal

court actions tending to interfere with state courts. E.g., O’Shea v. Littleton, 414

U.S. 488, 499–504 (1974); Huffman v. Pursue, Ltd., 420 U.S. 592, 599–603 (1975);

Trainor v. Hernandez, 431 U.S. 434, 441 (1977); Moore v. Sims, 442 U.S. 415, 430

(1979). The Court has also cited comity as a reason to restrict access to federal habeas corpus. Francis v. Henderson, 425 U.S. 536, 541 and n.31 (1976); Wainwright

v. Sykes, 433 U.S. 72, 83, 88, 90 (1977); Engle v. Isaac, 456 U.S. 107, 128–29 (1982).

See also Rosewell v. LaSalle National Bank, 450 U.S. 503 (1981); Fair Assessment

in Real Estate Ass’n v. McNary, 454 U.S. 100 (1981) (comity limits federal court

interference with state tax systems); Levin v. Commerce Energy, Inc., 560 U.S. ___,

No. 09–223, slip op. (2010) (comity has particular force in cases challenging constitutionality of state taxation of commercial activities). And see Missouri v. Jenkins,

495 U.S. 33 (1990).

1300 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 13 (4th ed. 1983). The

basic doctrine was formulated by Justice Frankfurter for the Court in Railroad Comm’n

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888 ART. III—JUDICIAL DEPARTMENT
evant state law is settled,1301 or where it is clear that the state statute or action challenged is unconstitutional no matter how the state

court construes state law.1302 Federal jurisdiction is not ousted by

abstention; rather it is postponed.1303 Federal-state tensions would

be ameliorated through federal-court deference to the concept that

state courts are as adequate a protector of constitutional liberties

as the federal courts and through the minimization of the likelihood that state programs would be thwarted by federal intercession. Federal courts would benefit because time and effort would

not be expended in decision of difficult constitutional issues which

might not require decision.1304

v. Pullman Co., 312 U.S. 496 (1941). Other strands of the doctrine are that a federal

court should refrain from exercising jurisdiction in order to avoid needless conflict

with a state’s administration of its own affairs, Burford v. Sun Oil Co., 319 U.S. 315

(1943); Alabama Public Service Comm’n v. Southern Ry., 341 U.S. 341 (1951); Great

Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943); Martin v. Creasy, 360

U.S. 219 (1959); Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983);

New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S.

350 (1989) (carefully reviewing the scope of the doctrine), especially where state law

is unsettled. Meredith v. City of Winter Haven, 320 U.S. 228 (1943); County of Allegheny v. Frank Mashuda Co., 360 U.S. 185 (1959); Louisiana Power & Light Co. v.

City of Thibodaux, 360 U.S. 25 (1959). See also Clay v. Sun Insurance Office Ltd.,

363 U.S. 207 (1960). Also, although pendency of an action in state court will not

ordinarily cause a federal court to abstain, there are “exceptional” circumstances in

which it should. Colorado River Water Conservation Dist. v. United States, 424 U.S.

800 (1976); Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1978); Arizona v. San

Carlos Apache Tribe, 463 U.S. 545 (1983). But, in Quackenbush v. Allstate Ins. Co.,

517 U.S. 706 (1996), an exercise in Burford abstention, the Court held that federal

courts have power to dismiss or remand cases based on abstention principles only

where relief being sought is equitable or otherwise discretionary but may not do so

in common-law actions for damages.

1301 City of Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958); Zwickler v.

Koota, 389 U.S. 241, 249–51 (1967). See Babbitt v. United Farm Workers Nat’l. Union,

442 U.S. 289, 306 (1979) (quoting Harman v. Forssenius, 380 U.S. 528, 534–35 (1965)).

1302 Harman v. Forssenius, 380 U.S. 528, 534–35 (1965); Babbitt v. United Farm

Workers Nat’l., 442 U.S. 289, 305–12 (1979). Abstention is not proper simply to afford a state court the opportunity to hold that a state law violates the federal Constitution. Wisconsin v. Constantineau, 400 U.S. 433 (1971); Zablocki v. Redhail, 434

U.S. 374, 379 n.5 (1978); Douglas v. Seacoast Products, Inc., 431 U.S. 265, 271 n.4

(1977); City of Houston v. Hill, 482 U.S. 451 (1987) (“A federal court may not properly ask a state court if it would care in effect to rewrite a statute”). But if the

statute is clear and there is a reasonable possibility that the state court would find

it in violation of a distinct or specialized state constitutional provision, abstention

may be proper, Harris County Comm’rs Court v. Moore, 420 U.S. 77 (1975); Reetz v.

Bozanich, 397 U.S. 82 (1970), although not if the state and federal constitutional

provisions are alike. Examining Bd. v. Flores de Otero, 426 U.S. 572, 598 (1976).

1303 American Trial Lawyers Ass’n v. New Jersey Supreme Court, 409 U.S. 467,

469 (1973); Harrison v. NAACP, 360 U.S. 167 (1959). Dismissal may be necessary if

the state court will not accept jurisdiction while the case is pending in federal court.

Harris County Comm’rs v. Moore, 420 U.S. 77, 88 n.14 (1975).

1304 E.g., Spector Motor Service v. McLaughlin, 323 U.S. 101 (1944); Louisiana

Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959); Harrison v. NAACP,

360 U.S. 167 (1959).

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ART. III—JUDICIAL DEPARTMENT 889
During the 1960s, the abstention doctrine was in disfavor with

the Supreme Court, suffering rejection in numerous cases, most of

them civil rights and civil liberties cases.1305 Time-consuming delays 1306 and piecemeal resolution of important questions 1307 were

cited as a too-costly consequence of the doctrine. Actions brought

under the civil rights statutes seem not to have been wholly subject to the doctrine,1308 and for awhile cases involving First Amendment expression guarantees seemed to be sheltered as well, but this

is no longer the rule.1309 Abstention developed robustly with Younger

v. Harris,

1310 and its progeny.

Exhaustion of State Remedies.—A complainant will ordinarily be required, as a matter of comity, to exhaust all available state

legislative and administrative remedies before seeking relief in federal court.1311 To do so may make unnecessary federal-court adjudication. The complainant will ordinarily not be required, however,

to exhaust his state judicial remedies, inasmuch as it is a litigant’s

choice to proceed in either state or federal courts when the alternatives exist and a question for judicial adjudication is present.1312

1305 McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963); Griffin v. School Board,

377 U.S. 218 (1964); Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324

(1964); Baggett v. Bullitt, 377 U.S. 360 (1964); Davis v. Mann, 377 U.S. 678 (1964);

Dombrowski v. Pfister, 380 U.S. 479 (1965); Harman v. Forssenius, 380 U.S. 528

(1965); Zwickler v. Koota, 389 U.S. 241 (1967); Wisconsin v. Constanineau, 400 U.S.

433 (1971).

1306 England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 426 (1964)

(Justice Douglas concurring). See C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS

305 (4th ed. 1983).

1307 Baggett v. Bullitt, 377 U.S. 360, 378–379 (1964). Both consequences may be

alleviated substantially by state adoption of procedures by which federal courts may

certify to the state’s highest court questions of unsettled state law which would be

dispositive of the federal court action. The Supreme Court has actively encouraged

resort to certification where it exists. Clay v. Sun Insurance Office Ltd., 363 U.S.

207 (1960); Lehman Brothers v. Schein, 416 U.S. 386 (1974); Bellotti v. Baird, 428

U.S. 132, 151 (1976).

1308 Compare Harrison v. NAACP, 360 U.S. 167 (1959), with McNeese v. Cahokia

Bd. of Educ., 373 U.S. 668 (1963).

1309 Compare Baggett v. Bullitt, 377 U.S. 360 (1964), and Dombrowski v. Pfister,

380 U.S. 479 (1965), with Younger v. Harris, 401 U.S. 37 (1971), and Samuels v.

Mackell, 401 U.S. 66 (1971). See Babbitt v. United Farm Workers, 442 U.S. 289,

305–312 (1979).

1310 401 U.S. 37 (1971). There is room to argue whether the Younger line of cases

represents the abstention doctrine at all, but the Court continues to refer to it in

those terms. E.g., Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992); Sprint Commc’ns,

Inc. v. Jacobs, 571 U.S. ___, No. 12–815, slip op. (2013).

1311 The rule was formulated in Prentis v. Atlantic Coast Line Co., 211 U.S. 210

(1908), and Bacon v. Rutland R.R., 232 U.S. 134 (1914).

1312 City Bank Farmers’ Trust Co. v. Schnader, 291 U.S. 24 (1934); Lane v. Wilson, 307 U.S. 268 (1939). But see Alabama Public Service Comm’n v. Southern Ry.,

341 U.S. 341 (1951). Exhaustion of state court remedies is required in habeas corpus cases and usually in suits to restrain state court proceedings.

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

890 ART. III—JUDICIAL DEPARTMENT
But when a litigant is suing for protection of federally guaranteed

civil rights, he need not exhaust any kind of state remedy.1313

Anti-Injunction Statute.—For reasons unknown,1314 Congress in 1793 enacted a statute to prohibit the issuance of injunctions by federal courts to stay state court proceedings.1315 Over time,

a long list of exceptions to the statutory bar was created by judicial

decision,1316 but in Toucey v. New York Life Ins. Co.,

1317 the Court

in a lengthy opinion by Justice Frankfurter announced a very liberal interpretation of the anti-injunction statute so as to do away

with practically all the exceptions that had been created. Congress’s response was to redraft the statute and to indicate that it

was restoring the pre-Toucey interpretation.1318 Considerable disagreement exists over the application of the statute, however, especially with regard to the exceptions it permits. The present tendency appears to be to read the law expansively and the exceptions

restrictively in the interest of preventing conflict with state courts.1319

Nonetheless, some exceptions exist, either expressly or implicitly in

statutory language,1320 or through Court interpretation.1321 The Court’s

1313 Patsy v. Florida Board of Regents, 457 U.S. 496 (1982). Where there are

pending administrative proceedings that fall within the Younger rule, a litigant must

exhaust. Younger v. Harris, 401 U.S. 37 (1971), as explicated in Ohio Civil Rights

Comm’n v. Dayton Christian School, Inc., 477 U.S. 619, 627 n.2 (1986). Under title

VII of the Civil Rights Act of 1964, barring employment discrimination on racial

and other specified grounds, the EEOC may not consider a claim until a state agency

having jurisdiction over employment discrimination complaints has had at least 60

days to resolve the matter. 42 U.S.C. § 2000e–5(c). See Love v. Pullman Co., 404

U.S. 522 (1972). The Civil Rights of Institutionalized Persons Act contains “a specific, limited exhaustion requirement for adult prisoners bringing actions pursuant

to § 1983.” Patsy, 457 U.S. at 508.

1314 Toucey v. New York Life Ins. Co., 314 U.S. 118, 130–32 (1941).

1315 “[N]or shall a writ of injunction be granted to stay proceedings in any court

of a state . . . .” Ch. XXII, § 5, 1 Stat. 335 (1793), now, as amended, 28 U.S.C. § 2283.

1316 Durfee & Sloss, Federal Injunctions Against Proceedings in State Courts:

The Life History of a Statute, 30 MICH. L. REV. 1145 (1932).

1317 314 U.S. 118 (1941).

1318 “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where

necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C.

§ 2283. The Reviser’s Note is appended to the statute, stating intent.

1319 Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511 (1955); Atlantic Coast Line R.R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281 (1970).

See M. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER ch.

10 (1980).

1320 The greatest difficulty is with the “expressly authorized by Act of Congress”

exception. No other Act of Congress expressly refers to § 2283 and the Court has

indicated that no such reference is necessary to create a statutory exception. Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511, 516 (1955). Compare Capital Service, Inc. v. NLRB, 347 U.S. 501 (1954). Rather, “in order to qualify as an

‘expressly authorized’ exception to the anti-injunction statute, an Act of Congress

must have created a specific and uniquely federal right or remedy, enforceable in a

federal court of equity, that could be frustrated if the federal court were not empowSec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

ART. III—JUDICIAL DEPARTMENT 891
general policy of application, however, seems to a considerable degree to effectuate what is now at least the major rationale of the

statute, deference to state court adjudication of issues presented to

them for decision.1322

Res Judicata.—Both the Constitution and a contemporaneously enacted statute require federal courts to give “full faith and

credit” to state court judgments, to give, that is, preclusive effect to

state court judgments when those judgments would be given preclusive effect by the courts of that state.1323 The present Court views

the interpretation of “full faith and credit” in the overall context of

deference to state courts running throughout this section. “Thus,

res judicata and collateral estoppel not only reduce unnecessary litigation and foster reliance on adjudication, but also promote the comity between state and federal courts that has been recognized as

a bulwark of the federal system.” 1324 42 U.S.C. § 1983 is not an

exception to the mandate of the res judicata statute.1325 An exception to § 1738 “will not be recognized unless a later statute contains an express or implied partial repeal.” 1326 Thus, a claimant who

pursued his employment discrimination remedies through state administrative procedures, as the federal law requires her to do (within

ered to enjoin a state court proceeding.” Mitchum v. Foster, 407 U.S. 225, 237 (1972).

Applying this test, the Court in Mitchum held that a 42 U.S.C. § 1983 suit is an

exception to § 2283 and that persons suing under this authority may, if they satisfy

the requirements of comity, obtain an injunction against state court proceedings. The

exception is, of course, highly constrained by the comity principle. On the difficulty

of applying the test, see Vendo Co. v. Lektco-Vend Corp., 433 U.S. 623 (1977) (fragmented Court on whether Clayton Act authorization of private suits for injunctive

relief is an “expressly authorized” exception to § 2283).

On the interpretation of the § 2283 exception for injunctions to protect or effectuate a federal-court judgment, see Chick Kam Choo v. Exxon Corp., 486 U.S. 140

(1988).

1321 Thus, the Act bars federal court restraint of pending state court proceedings but not restraint of the institution of such proceedings. Dombrowski v. Pfister,

380 U.S. 479, 484 n.2 (1965). Restraint is not barred if sought by the United States

or an officer or agency of the United States. Leiter Minerals v. United States, 352

U.S. 220 (1957); NLRB v. Nash-Finch Co., 404 U.S. 138 (1971). Restraint is not barred

if the state court proceeding is not judicial but rather administrative. Prentis v. Atlantic Coast Line Co., 211 U.S. 210 (1908); Roudebush v. Hartke, 405 U.S. 15 (1972).

Compare Hill v. Martin, 296 U.S. 393, 403 (1935), with Lynch v. Household Finance

Corp., 405 U.S. 538, 552–56 (1972).

1322 The statute is to be applied “to prevent needless friction between state and

federal courts.” Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4,

9 (1940); Atlantic Coast Line R.R. v. Brotherhood of Locomotive Engineers, 398 U.S.

281, 285–86 (1970).

1323 Article IV, § 1, of the Constitution; 28 U.S.C. § 1738.

1324 Allen v. McCurry, 449 U.S. 90, 95–96 (1980).

1325 449 U.S. at 96–105. In England v. Louisiana Bd. of Medical Examiners, 375

U.S. 411 (1964), the Court held that, when parties are compelled to go to state court

under Pullman abstention, either party may reserve the federal issue and thus be

enabled to return to federal court without being barred by res judicata.

1326 Kramer v. Chemical Construction Corp., 456 U.S. 461, 468 (1982).

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

892 ART. III—JUDICIAL DEPARTMENT
limits), and then appealed an adverse state agency decision to state

court will be precluded from bringing her federal claim to federal

court, since the federal court is obligated to give the state court decision “full faith and credit.” 1327

Closely related is the Rooker-Feldman doctrine, holding that federal subject-matter jurisdiction of federal district courts does not

extend to review of state court judgments.1328 The Supreme Court,

not federal district courts, has such appellate jurisdiction. The doctrine thus prevents losers in state court from obtaining district court

review, but “does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts

to stay or dismiss proceedings in deference to state-court actions.” 1329

Three-Judge Court Act.—When the Court in Ex parte Young 1330

held that federal courts were not precluded by the Eleventh Amendment from restraining state officers from enforcing state laws determined to be in violation of the federal Constitution, serious efforts

were made in Congress to take away the authority thus asserted,

but the result instead was legislation providing that suits in which

an interlocutory injunction was sought against the enforcement of

state statutes by state officers were to be heard by a panel of three

federal judges, rather than by a single district judge, with appeal

direct to the Supreme Court.1331 The provision was designed to assuage state feeling by vesting such determinations in a court more

prestigious than a single-judge district court, to assure a more authoritative determination, and to prevent the assertion of individual predilections in sensitive and emotional areas.1332 Because,

however, of the heavy burden that convening a three-judge court

placed on the judiciary and that the direct appeals placed on the

Supreme Court, the provisions for such courts, save in cases “when

otherwise required by an Act of Congress” 1333 or in cases involving

1327 456 U.S. 468–76. There were four dissents. Id. at 486 (Justices Blackmun,

Brennan, and Marshall), 508 (Stevens).

1328 The doctrine derives its name from Rooker v. Fidelity Trust Co., 263 U.S.

413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

1329 Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005)

(Rooker-Feldman has no application when federal court proceedings have been initiated prior to state court proceedings; preclusion law governs in that situation).

1330 209 U.S. 123 (1908).

1331 36 Stat. 557 (1910). The statute was amended in 1925 to apply to requests

for permanent injunctions, 43 Stat. 936, and again in 1937 to apply to constitutional attacks on federal statutes. 50 Stat. 752.

1332 Swift & Co. v. Wickham, 382 U.S. 111, 119 (1965); Ex parte Collins, 277

U.S. 565, 567 (1928).

1333 These now are primarily limited to suits under the Voting Rights Act, 42

U.S.C. §§ 1973b(a), 1973c, 1973h(c), and to certain suits by the Attorney General

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

ART. III—JUDICIAL DEPARTMENT 893
state legislative or congressional districting, were repealed by Congress in 1976.1334

Conflicts of Jurisdiction: Federal Court Interference with

State Courts

One challenging the constitutionality, under the United States

Constitution, of state actions, statutory or otherwise, could, of course,

bring suit in state court; indeed, in the time before conferral of federalquestion jurisdiction on lower federal courts plaintiffs had to bring

actions in state courts, and on some occasions since, this has been

done.1335 But the usual course is to sue in federal court for either

an injunction or a declaratory judgment or both. In an era in which

landmark decisions of the Supreme Court and of inferior federal

courts have been handed down voiding racial segregation requirements, legislative apportionment and congressional districting, abortion regulations, and many other state laws and policies, it is difficult to imagine a situation in which it might be impossible to obtain

such rulings because no one required as a defendant could be sued.

Yet, the adoption of the Eleventh Amendment in 1798 resulted in

the immunity of the state,1336 and the immunity of state officers if

the action upon which they were being sued was state action,1337

from suit without the state’s consent. Ex parte Young 1338 is a seminal case in American constitutional law because it created a fiction

by which the validity of state statutes and other actions could be

challenged by suits against state officers as individuals.1339

Conflict between federal and state courts is inevitable when the

federal courts are open to persons complaining about unconstituunder public accommodations and equal employment provisions of the 1964 Civil

Rights Act. 42 U.S.C. §§ 2000a–5(b), 2000e–6(b).

1334 Pub. L. 94–381, 90 Stat. 1119, 28 U.S.C. § 2284. In actions still required to

be heard by three-judge courts, direct appeals are still available to the Supreme Court.

28 U.S.C. § 1253.

1335 For example, one of the cases decided in Brown v. Board of Education, 347

U.S. 483 (1954), came from the Supreme Court of Delaware. In Scott v. Germano,

381 U.S. 407 (1965), the Court set aside an order of the district court refusing to

defer to the state court which was hearing an apportionment suit and said: “The

power of the judiciary of a State to require valid reapportionment or to formulate a

valid redistricting plan has not only been recognized by this Court but appropriate

action by the States has been specifically encouraged.” See also Scranton v. Drew,

379 U.S. 40 (1964).

1336 By its terms, the Eleventh Amendment bars only suits against a state by

citizens of other states, but, in Hans v. Louisiana, 134 U.S. 1 (1890), the Court deemed

it to embody principles of sovereign immunity that applied to unconsented suits by

its own citizens.

1337 In re Ayers, 123 U.S. 443 (1887).

1338 209 U.S. 123 (1908).

1339 The fiction is that while the official is a state actor for purposes of suit against

him, the claim that his action is unconstitutional removes the imprimatur of the

state that would shield him under the Eleventh Amendment. 209 U.S. at 159–60.

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894 ART. III—JUDICIAL DEPARTMENT
tional or unlawful state action which could as well be brought in

the state courts and perhaps is so brought by other persons, but

the various rules of restraint flowing from the concept of comity reduce federal interference here some considerable degree. It is rather

in three fairly well defined areas that institutional conflict is most

pronounced.

Federal Restraint of State Courts by Injunctions.—Even

where the federal anti-injunction law is inapplicable, or where the

question of application is not reached,1340 those seeking to enjoin

state court proceedings must overcome substantial prudential barriers, among them the abstention doctrine 1341 and more important

than that the equity doctrine that suits in equity “shall not be sustained in . . . the courts of the United States, in any case where

plain, adequate and complete remedy may be had at law.” 1342 The

application of this latter principle has been most pronounced in the

reluctance of federal courts to interfere with a state’s good faith enforcement of its criminal law. Here, the Court has required of a litigant seeking to bar threatened state prosecution not only a showing of irreparable injury that is both great and immediate, but also

an inability to defend his constitutional rights in the state proceeding. Certain types of injury, such as the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution,

are insufficient to be considered irreparable in this sense. Even if a

state criminal statute is unconstitutional, a person charged under

it usually has an adequate remedy at law by raising his constitutional defense in the state trial.1343 The policy has never been stated

as an absolute, in recognition of the fact that a federal court injunction could properly issue in exceptional and limited circumstances,

such as the existence of factors making it impossible for a litigant

1340 28 U.S.C. § 2283 may be inapplicable because no state court proceeding is

pending or because the action is brought under 42 U.S.C. § 1983. Its application

may never be reached because a court may decide that equitable principles do not

justify injunctive relief. Younger v. Harris, 401 U.S. 37, 54 (1971).

1341 See “Abstention,” supra.

1342 The quoted phrase setting out the general principle is from the Judiciary

Act of 1789, § 16, 1 Stat. 82.

1343 The older cases are Fenner v. Boykin, 271 U.S. 240 (1926); Spielman Motor

Sales Co. v. Dodge, 295 U.S. 89 (1935); Beal v. Missouri Pac. R.R., 312 U.S. 45 (1941);

Watson v. Buck, 313 U.S. 387 (1941); Williams v. Miller, 317 U.S. 599 (1942); Douglas v. City of Jeannette, 319 U.S. 157 (1943). There is a stricter rule against federal

restraint of the use of evidence in state criminal trials. Stefanelli v. Minard, 342

U.S. 117 (1951); Pugach v. Dollinger, 365 U.S. 458 (1961). The Court reaffirmed the

rule in Perez v. Ledesma, 401 U.S. 82 (1971). State officers may not be enjoined

from testifying or using evidence gathered in violation of federal constitutional restrictions, Cleary v. Bolger, 371 U.S. 392 (1963), but the rule is unclear with regard

to federal officers and state trials. Compare Rea v. United States, 350 U.S. 214 (1956),

with Wilson v. Schnettler, 365 U.S. 381 (1961).

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ART. III—JUDICIAL DEPARTMENT 895
to protect his federal constitutional rights through a defense of the

state criminal charges or the bringing of multiple criminal charges.1344

In Dombrowski v. Pfister,

1345 the Court appeared to change the

policy somewhat. The case on its face contained allegations and offers of proof that may have been sufficient alone to establish the

“irreparable injury” justifying federal injunctive relief.1346 But the

formulation of standards by Justice Brennan for the majority placed

great emphasis upon the fact that the state criminal statute in issue regulated expression. Any criminal prosecution under a statute

regulating expression might of itself inhibit the exercise of First

Amendment rights, he said, and prosecution under an overbroad

statute,1347 such as the one in this case, might critically impair exercise of those rights. The mere threat of prosecution under such

an overbroad statute “may deter . . . almost as potently as the actual application of sanctions. . . .” 1348

In such cases, courts could no longer embrace “[t]he assumption that defense of a criminal prosecution will generally assure ample

vindication of constitutional rights,” because either the mere threat

of prosecution or the long wait between prosecution and final vindication could result in a “chilling effect upon the exercise of First

Amendment rights.” 1349 The principle apparently established by the

Court was two-phased: a federal court should not abstain when there

is a facially unconstitutional statute infringing upon speech and application of that statute discourages protected activities, and the court

should further enjoin the state proceedings when there is prosecution or threat of prosecution under an overbroad statute regulating

expression if the prosecution or threat of prosecution chills the ex1344 E.g., Douglas v. City of Jeannette, 319 U.S. 157, 163–164 (1943); Stefanelli

v. Minard, 342 U.S. 117, 122 (1951). See also Terrace v. Thompson, 263 U.S. 197,

214 (1923), Future criminal proceedings were sometimes enjoined. E.g., Hague v.

CIO, 307 U.S. 496 (1939).

1345 380 U.S. 479 (1965). Grand jury indictments had been returned after the

district court had dissolved a preliminary injunction, erroneously in the Supreme

Court’s view, so that it took the view that no state proceedings were pending as of

the appropriate time. For a detailed analysis of the case, see Fiss, Dombrowski, 86

YALE L. J. 1103 (1977).

1346 “[T]he allegations in this complaint depict a situation in which defense of

the State’s criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss of or impairment of freedoms of

expression will occur if appellants must await the state court’s disposition and ultimate review in this Court of any adverse determination. These allegations, if true,

clearly show irreparable injury.” 380 U.S. at 485–86.

1347 That is, a statute that reaches both protected and unprotected expression

and conduct.

1348 380 U.S. at 486.

1349 380 U.S. at 486, 487.

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896 ART. III—JUDICIAL DEPARTMENT
ercise of freedom of expression.1350 These formulations were reaffirmed in Zwickler v. Koota,

1351 in which a declaratory judgment was

sought with regard to a statute prohibiting anonymous election literature. The Court deemed abstention improper,1352 and further held

that adjudication for purposes of declaratory judgment is not hemmed

in by considerations attendant upon injunctive relief.1353

The aftermath of Dombrowski and Zwickler was a considerable

expansion of federal-court adjudication of constitutional attack through

requests for injunctive and declaratory relief, which gradually spread

out from First Amendment areas to other constitutionally protected activities.1354 However, these developments were highly controversial and, after three arguments on the issue, the Court in a

series of 1971 cases receded from its position and circumscribed the

discretion of the lower federal courts to a considerable and everbroadening degree.1355 The important difference between the 1971

cases and the Dombrowski-Zwickler line was that, in the latter there

were no prosecutions pending, whereas in the 1971 cases there were.

Nevertheless, the care with which Justice Black for the majority in

the 1971 cases undertook to distinguish Dombrowski signified a limitation of its doctrine.

Justice Black reviewed and reaffirmed the traditional rule of reluctance to interfere with state court proceedings except in extraordinary circumstances. The holding in Dombrowski, as distinguished from some of its language, did not change the general rule,

because extraordinary circumstances had existed. Thus, Justice Black,

with considerable support from the other Justices,1356 went on to

affirm that, where a criminal proceeding is already pending in a

state court, if it is a single prosecution about which there is no allegation that it was brought in bad faith or that it was one of a

series of repeated prosecutions that would be brought, and if the

defendant may put in issue his federal-constitutional defense at the

1350 See Cameron v. Johnson, 381 U.S. 741 (1965); Cameron v. Johnson, 390 U.S.

611 (1968).

1351 389 U.S. 241 (1967). The state criminal conviction had been reversed by a

state court on state law grounds and no new charge had been instituted.

1352 It was clear that the statute could not be construed by a state court to render unnecessary a federal constitutional decision. 389 U.S. at 248–52.

1353 389 U.S. at 254.

1354 Maraist, Federal Injunctive Relief Against State Court Proceedings: The Significance of Dombrowski, 48 TEX. L. REV. 535 (1970).

1355 Younger v. Harris, 401 U.S. 37 (1971); Samuels v. Mackell, 401 U.S. 66 (1971);

Boyle v. Landry, 401 U.S. 77 (1971); Perez v. Ledesma, 401 U.S. 82 (1971); Dyson v.

Stein, 401 U.S. 200 (1971); Byrne v. Karalexis, 401 U.S. 216 (1971). Justice Black

wrote the majority opinion in the first four of these cases; the other two were per

curiam opinions.

1356 Only Justice Douglas dissented. 401 U.S. at 58. Justices Brennan, White,

and Marshall generally concurred in a restrained fashion. Id. at 56, 75, 93.

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ART. III—JUDICIAL DEPARTMENT 897
trial, then federal injunctive relief is improper, even if it is alleged

that the statute on which the prosecution was based regulated expression and was overbroad.

Many statutes regulating expression were valid and some overbroad statutes could be validly applied, so findings of facial unconstitutionality abstracted from concrete factual situations was not a

sound judicial method. “It is sufficient for purposes of the present

case to hold, as we do, that the possible unconstitutionality of a

statute ‘on its face’ does not in itself justify an injunction against

good-faith attempts to enforce it, and that appellee Harris has failed

to make any showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief.” 1357

The reason for the principle, said Justice Black, flows from “Our

Federalism,” which requires federal courts to defer to state courts

when there are proceedings pending in them.1358

Moreover, in a companion case, the Court held that, when prosecutions are pending in state court, the propriety of injunctive and

declaratory relief should ordinarily be judged by the same standards.1359 A declaratory judgment is as likely to interfere with state

proceedings as an injunction, whether the federal decision be treated

as res judicata or viewed as a strong precedent guiding the state

court. Additionally, “the Declaratory Judgment Act provides that after a declaratory judgment is issued the district court may enforce

it by granting ‘[f]urther necessary or proper relief,’ 28 U.S.C. § 2202,

and therefore a declaratory judgment issued while state proceedings are pending might serve as the basis for a subsequent injunction against those proceedings to ‘protect or effectuate’ the declaratory judgment, 28 U.S.C. § 2283, and thus result in a clearly improper

interference with the state proceedings.” 1360

When, however, there is no pending state prosecution, the Court

is clear that “Our Federalism” is not offended if a plaintiff in a federal court is able to demonstrate a genuine threat of enforcement

of a disputed criminal statute, whether the statute is attacked on

its face or as applied, and becomes entitled to a federal declaratory

judgment.1361 And, in fact, when no state prosecution is pending, a

1357 401 U.S. at 54. On bad faith enforcement, see id. at 56 (Justices Stewart

and Harlan concurring); 97 (Justices Brennan, White, and Marshall concurring in

part and dissenting in part). For an example, see Universal Amusement Co. v. Vance,

559 F.2d 1286, 1293–1301 (5th Cir. 1977), aff’d per curiam sub nom. Dexter v. Butler, 587 F.2d 176 (5th Cir.) (en banc), cert. denied, 442 U.S. 929 (1979).

1358 401 U.S. at 44.

1359 Samuels v. Mackell, 401 U.S. 66 (1971). The holding was in line with Great

Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943).

1360 Samuels v. Mackell, 401 U.S. 66, 72 (1971).

1361 Steffel v. Thompson, 415 U.S. 452 (1974).

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898 ART. III—JUDICIAL DEPARTMENT
federal plaintiff need not demonstrate the existence of the Younger

factors to justify the issuance of a preliminary or permanent injunction against prosecution under a disputed state statute.1362

Beyond criminal prosecutions, the Court extended Younger‘s general directive to bar interference with pending state civil cases that

are akin to criminal prosecutions.1363 Younger abstention was also

found appropriate when a judgment debtor in a state civil case sought

to enjoin a state court order to enforce the judgment.1364 The Court

further applied Younger‘s principles to bar federal court interference with state administrative proceedings of a judicial nature, in

which important state interests were at stake.1365

Nonetheless, the Court has emphasized that “only exceptional

circumstances justify a federal court’s refusal to decide a case in

deference to the States.” 1366 In Sprint Communications, Inc. v. Jacobs,

1367 the Court made clear that federal forbearance under Younger

was limited to three discrete types of state proceedings: (1) ongoing

state criminal prosecutions; (2) particular state civil proceedings that

are akin to criminal prosecutions; and (3) civil proceedings involving orders uniquely in furtherance of the state courts’ ability to perform their judicial functions.1368 In so doing, the Sprint Communications Court clarified that the types of cases previously held to merit

1362 Doran v. Salem Inn, 422 U.S. 922 (1975) (preliminary injunction may issue

to preserve status quo while court considers whether to grant declaratory relief);

Wooley v. Maynard, 430 U.S. 705 (1977) (when declaratory relief is given, permanent injunction may be issued if necessary to protect constitutional rights). However, it may not be easy to discern when state proceedings will be deemed to have

been instituted prior to the federal proceeding. E.g., Hicks v. Miranda, 422 U.S. 332

(1975); Huffman v. Pursue. Ltd., 420 U.S. 592 (1975); see also Hawaii Housing Auth.

v. Midkiff, 467 U.S. 229 (1984).

1363 Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) (state action to close adult

theater under the state’s nuisance statute and to seize and sell personal property

used in the theater’s operations); Judice v. Vail, 430 U.S. 327 (1977); Trainor v. Hernandez, 431 U.S. 434 (1977); Moore v. Sims, 442 U.S. 415 (1979); Middlesex Cty.

Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982).

1364 Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) (holding that federal abstention was warranted in a federal court action to block a state court order issued under the state’s “lien and bond” authority). It was “the State’s [particular] interest in

protecting ‘the authority of the judicial system, so that its orders and judgments are

not rendered nugatory’ ” that merited abstention, and not merely a general state

interest in protecting ongoing civil proceedings from federal interference. Id. at 14

n.12 (quoting Judice v. Vail, 430 U.S. 327, 336 n.12 (1977)).

1365 Oh. Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619 (1986).

The “judicial in nature” requirement is more fully explicated in New Orleans Public

Service, Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989).

1366 See New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491

U.S. 350, 368 (1989).

1367 571 U.S. ___, No. 12–815, slip op. (2013).

1368 Id. at 2.

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abstention under the Younger line defined Younger’s scope and did

not merely exemplify it.1369

Habeas Corpus: Scope of the Writ.—At the English common

law, habeas corpus was available to attack pretrial detention and

confinement by executive order; it could not be used to question the

conviction of a person pursuant to the judgment of a court with jurisdiction over the person. That common law meaning was applied

in the federal courts.1370 Expansion began after the Civil War through

more liberal court interpretation of “jurisdiction.” Thus, one who had

already completed one sentence on a conviction was released from

custody on a second sentence on the ground that the court had lost

jurisdiction upon completion of the first sentence.1371 Then, the Court

held that the constitutionality of the statute upon which a charge

was based could be examined on habeas, because an unconstitutional statute was said to deprive the trial court of its jurisdiction.1372 Other cases expanded the want-of-jurisdiction rationale.1373 But the modern status of the writ of habeas corpus may

be said to have been started in its development in Frank v.

Mangum,

1374 in which the Court reviewed on habeas a murder conviction in a trial in which there was substantial evidence of mob

domination of the judicial process. This issue had been considered

and rejected by the state appeals court. The Supreme Court indicated that, though it might initially have had jurisdiction, the trial

court could have lost it if mob domination rendered the proceedings lacking in due process.

Further, in order to determine if there had been a denial of due

process, a habeas court should examine the totality of the process,

including the appellate proceedings. Because Frank’s claim of mob

domination was reviewed fully and rejected by the state appellate

1369 Id. at 8.

1370 Ex parte Watkins, 28 U.S. (3 Pet.) 193 (1830) (Chief Justice Marshall); cf.

Ex parte Parks, 93 U.S. 18 (1876). But see Fay v. Noia, 372 U.S. 391, 404–415 (1963).

The expansive language used when Congress in 1867 extended the habeas power of

federal courts to state prisoners “restrained of . . . liberty in violation of the constitution, or of any treaty or law of the United States . . . ,” 14 Stat. 385, could have

encouraged an expansion of the writ to persons convicted after trial.

1371 Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874).

1372 Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Royall, 117 U.S. 241 (1886);

Crowley v. Christensen, 137 U.S. 86 (1890); Yick Wo v. Hopkins, 118 U.S. 356 (1886).

1373 Ex parte Wilson, 114 U.S. 417 (1885); In re Nielsen, 131 U.S. 176 (1889); In

re Snow, 120 U.S. 274 (1887); but see Ex parte Parks, 93 U.S. 18 (1876); Ex parte

Bigelow, 113 U.S. 328 (1885). It is possible that the Court expanded the office of the

writ because its reviewing power over federal convictions was closely limited. F. Frankfurter & J. Landis, supra. Once such review was granted, the Court began to restrict the use of the writ. E.g., Glasgow v. Moyer, 225 U.S. 420 (1912); In re Lincoln,

202 U.S. 178 (1906); In re Morgan, 203 U.S. 96 (1906).

1374 237 U.S. 309 (1915).

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court, he had been afforded an adequate corrective process for any

denial of rights, and his custody did not violate the Constitution.

Then, eight years later, in Moore v. Dempsey,

1375 involving another

conviction in a trial in which the court was alleged to have been

influenced by a mob and in which the state appellate court had heard

and rejected Moore’s contentions, the Court directed that the federal district judge himself determine the merits of the petitioner’s

allegations.

Moreover, the Court shortly abandoned its emphasis upon want

of jurisdiction and held that the writ was available to consider constitutional claims as well as questions of jurisdiction.1376 The landmark case was Brown v. Allen,

1377 in which the Court laid down

several principles of statutory construction of the habeas statute.

First, all federal constitutional questions raised by state prisoners

are cognizable in federal habeas. Second, a federal court is not bound

by state court judgments on federal questions, even though the state

courts may have fully and fairly considered the issues. Third, a federal habeas court may inquire into issues of fact as well as of law,

although the federal court may defer to the state court if the prisoner received an adequate hearing. Fourth, new evidentiary hearings must be held when there are unusual circumstances, when there

is a “vital flaw” in the state proceedings, or when the state court

record is incomplete or otherwise inadequate.

Almost plenary federal habeas review of state court convictions

was authorized and rationalized in the Court’s famous “1963 trilogy.” 1378 First, the Court dealt with the established principle that

a federal habeas court is empowered, where a prisoner alleges facts

1375 261 U.S. 86 (1923).

1376 Walker v. Johnston, 312 U.S. 275 (1941). See also Johnson v. Zerbst, 304

U.S. 458 (1938); Walker v. Johnston, 312 U.S. 275 (1941). The way one reads the

history of the developments is inevitably a product of the philosophy one brings to

the subject. In addition to the recitations cited in other notes, compare Wright v.

West, 505 U.S. 277, 285–87 & n.3 (1992) (Justice Thomas for a plurality of the Court),

with id. at 297–301 (Justice O’Connor concurring).

1377 344 U.S. 443 (1953). Brown is commonly thought to rest on the assumption

that federal constitutional rights cannot be adequately protected only by direct Supreme Court review of state court judgments but that independent review, on habeas, must rest with federal judges. It is, of course, true that Brown coincided with

the extension of most of the Bill of Rights to the states by way of incorporation and

expansive interpretation of federal constitutional rights; previously, there was not a

substantial corpus of federal rights to protect through habeas. See Wright v. West,

505 U.S. 277, 297–99 (1992) (Justice O’Connor concurring). In Fay v. Noia, 372 U.S.

391 (1963), Justice Brennan, for the Court, and Justice Harlan, in dissent, engaged

in a lengthy, informed historical debate about the legitimacy of Brown and its premises. Compare id. at 401–24, with id. at 450–61. See the material gathered and cited

in Hart & Wechsler (6th ed.), supra at 1220–1248.

1378 Sanders v. United States, 373 U.S. 1 (1963); Fay v. Noia, 372 U.S. 391 (1963);

Townsend v. Sain, 372 U.S. 293 (1963). These cases dealt, respectively, with the treatment to be accorded a habeas petition in the three principal categories in which

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ART. III—JUDICIAL DEPARTMENT 901
which if proved would entitle him to relief, to relitigate facts, to

receive evidence and try the facts anew, and sought to lay down

broad guidelines as to when district courts must hold a hearing and

find facts.1379 “Where the facts are in dispute, the federal court in

habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state

court, either at the time of the trial or in a collateral proceeding.” 1380 To “particularize” this general test, the Court went on to

hold that an evidentiary hearing must take place when (1) the merits of the factual dispute were not resolved in the state hearing; (2)

the state factual determination is not fairly supported by the record as a whole; (3) the fact finding procedure employed was not

adequate to afford a full and fair hearing; (4) there is a substantial

allegation of newly discovered evidence; (5) the material facts were

not adequately developed at the state hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas

applicant a full and fair fact hearing.1381

Second, Sanders v. United States 1382 dealt with two interrelated questions: the effects to be given successive petitions for the

they come to the federal court: when a state court has rejected petitioner’s claims

on the merits, when a state court has refused to hear petitioner’s claims on the merits because she has failed properly or timely to present them, or when the petition

is a second or later petition raising either old or new, or mixed, claims. Of course,

as will be demonstrated infra, these cases have now been largely drained of their

force.

1379 Townsend v. Sain, 372 U.S. 293, 310–12 (1963). If the district judge concluded that the habeas applicant was afforded a full and fair hearing by the state

court resulting in reliable findings, the Court said, he may, and ordinarily should,

defer to the state factfinding. Id. at 318. Under the 1966 statutory revision, a habeas court must generally presume correct a state court’s written findings of fact

from a hearing to which the petitioner was a party. A state finding cannot be set

aside merely on a preponderance of the evidence and the federal court granting the

writ must include in its opinion the reason it found the state findings not fairly

supported by the record or the existence of one or more listed factors justifying disregard of the factfinding. Pub. L. 89–711, 80 Stat. 1105, 28 U.S.C. § 2254(d). See

Sumner v. Mata, 449 U.S. 539 (1981); Sumner v. Mata, 455 U.S. 591 (1982); Marshall v. Lonberger, 459 U.S. 422 (1983); Patton v. Yount, 467 U.S. 1025 (1984); Parker

v. Dugger, 498 U.S. 308 (1991); Burden v. Zant, 498 U.S. 433 (1991). The presumption of correctness does not apply to questions of law or to mixed questions of law

and fact. Miller v. Fenton, 474 U.S. 104, 110–16 (1985). However, in Wright v. West,

505 U.S. 277 (1992), the Justices argued inconclusively whether deferential review

of questions of law or especially of law and fact should be adopted.

1380 Townsend v. Sain, 372 U.S. 293, 312 (1963). The Court was unanimous on

the statement, but it divided 5 to 4 on application.

1381 372 U.S. at 313–18. Congress in 1966 codified the factors in somewhat different form but essentially codified Townsend. Pub. L. 89–711, 80 Stat. 1105, 28 U.S.C.

§ 2254. The Court believes that Congress neither codified Townsend nor precluded

the Court from altering the Townsend standards. Keeney v. Tamayo-Reyes, 504 U.S.

1, 10, n.5 (1992). Compare id. at 20–21 (Justice O’Connor dissenting). Keeney formally overruled part of Townsend. Id. at 5.

1382 373 U.S. 1 (1963). Sanders was a § 2255 case, a federal prisoner petitioning

for postconviction relief. The Court applied the same liberal rules with respect to

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writ, when the second or subsequent application presented grounds

previously asserted or grounds not theretofore raised. Emphasizing

that “[c]onventional notions of finality of litigation have no place

where life or liberty is at stake and infringement of constitutional

rights is alleged,” 1383 the Court set out generous standards for consideration of successive claims. As to previously asserted grounds,

the Court held that controlling weight may be given to a prior denial of relief if (1) the same ground presented was determined adversely to the applicant before, (2) the prior determination was on

the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application, so that the habeas court

might but was not obligated to deny relief without considering the

claim on the merits.1384 With respect to grounds not previously asserted, a federal court considering a successive petition could refuse to hear the new claim only if it decided the petitioner had deliberately bypassed the opportunity in the prior proceeding to raise

it; if not, “[n]o matter how many prior applications for federal collateral relief a prisoner has made,” the court must consider the merits of the new claim.1385

Third, the most controversial of the 1963 cases, Fay v. Noia,

1386

dealt with the important issue of state defaults, of, that is, what

the effect on habeas is when a defendant in a state criminal trial

has failed to raise in a manner in accordance with state procedure

a claim which he subsequently wants to raise on habeas. If, for example, a defendant fails to object to the admission of certain evidence on federal constitutional grounds in accordance with state procedure and within state time constraints, the state courts may

therefore simply refuse to address the merits of the claim, and the

federal prisoners as it did for state. See Kaufman v. United States, 394 U.S. 217

(1969). As such, the case has also been eroded by subsequent cases. E.g., Davis v.

United States, 411 U.S. 233 (1973); United States v. Frady, 456 U.S. 152 (1982).

1383 373 U.S. at 8. The statement accorded with the established view that principles of res judicata were not applicable in habeas. E.g., Price v. Johnston, 334 U.S.

266 (1948); Wong Doo v. United States, 265 U.S. 239 (1924); Salinger v. Loisel, 265

U.S. 224 (1924). Congress in 1948 had appeared to adopt some limited version of

res judicata for federal prisoners but not for state prisoners, Act of June 25, 1948,

62 Stat. 965, 967, 28 U.S.C. §§ 2244, 2255, but the Court in Sanders held the same

standards applicable and denied the statute changed existing caselaw. 373 U.S. at

11–14. But see id. at 27–28 (Justice Harlan dissenting).

1384 373 U.S. at 15. In codifying the Sanders standards in 1966, Pub. L. 89–711,

80 Stat. 1104, 28 U.S.C. § 2244(b), Congress omitted the “ends of justice” language.

Although it was long thought that the omission probably had no substantive effect,

this may not be the case. Kuhlmann v. Wilson, 477 U.S. 436 (1986).

1385 373 U.S. at 17–19.

1386 372 U.S. 391 (1963). Fay was largely obliterated over the years, beginning

with Davis v. United States, 411 U.S. 233 (1973), a federal-prisoner post-conviction

relief case, and Wainwright v. Sykes, 433 U.S. 72 (1977), but it was not formally

overruled until Coleman v. Thompson, 501 U.S. 722, 744–51 (1991).

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state’s “independent and adequate state ground” bars direct federal

review of the claim.1387 Whether a similar result prevailed upon habeas divided the Court in Brown v. Allen,

1388 in which the majority

held that a prisoner, refused consideration of his appeal in state

court because his papers had been filed a day late, could not be

heard on habeas because of his state procedural default. The result

was changed in Fay v. Noia, in which the Court held that the adequate and independent state ground doctrine was a limitation only

upon the Court’s appellate review, but that it had no place in habeas. A federal court has power to consider any claim that has been

procedurally defaulted in state courts.1389

Still, the Court recognized that the states had legitimate interests that were served by their procedural rules, and that it was important that state courts have the opportunity to afford a claimant

relief to which he might be entitled. Thus, a federal court had discretion to deny a habeas petitioner relief if it found that he had

deliberately bypassed state procedure; the discretion could be exercised only if the court found that the prisoner had intentionally waived

his right to pursue his state remedy.1390

Liberalization of the writ thus made it possible for convicted

persons who had fully litigated their claims at state trials and on

appeal, who had because of some procedural default been denied

the opportunity to have their claims reviewed, or who had been at

least once heard on federal habeas, to have the chance to present

their grounds for relief to a federal habeas judge. In addition to opportunities to relitigate the facts and the law relating to their convictions, prisoners could also take advantage of new constitutional

decisions that were retroactive. The filings in federal courts increased year by year, but the numbers of prisoners who in fact obtained either release or retrial remained quite small. A major effect, however, was to exacerbate the feelings of state judges and state

law enforcement officials and to stimulate many efforts in Congress

to enact restrictive habeas amendments.1391 Although the efforts were

1387 E.g., Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875); Herb v.

Pitcairn, 324 U.S. 117 (1945). In the habeas context, the procedural-bar rules are

ultimately a function of the requirement that petitioners first exhaust state avenues of relief before coming to federal court.

1388 344 U.S. 443 (1953).

1389 Fay v. Noia, 372 U.S. 391, 424–34 (1963).

1390 372 U.S. at 438–40.

1391 In 1961, state prisoner habeas filings totaled 1,020, in 1965, 4,845, in 1970,

a high (to date) of 9,063, in 1975, 7,843 in 1980, 8,534 in 1985, 9,045 in 1986. On

relief afforded, no reliable figures are available, but estimates indicate that at most

4 percent of the filings result in either release or retrial. C. WRIGHT, A. MILLER, & E.

COOPER, FEDERAL PRACTICE AND PROCEDURE (1988 & supps.), § 4261, at 284–91.

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unsuccessful, complaints were received more sympathetically in a

newly constituted Supreme Court and more restrictive rulings ensued.

The discretion afforded the Court was sounded by Justice

Rehnquist, who, after reviewing the case law on the 1867 statute,

remarked that the history “illustrates this Court’s historic willingness to overturn or modify its earlier views of the scope of the writ,

even where the statutory language authorizing judicial action has

remained unchanged.” 1392 The emphasis from early on has been upon

the equitable nature of the habeas remedy and the judiciary’s responsibility to guide the exercise of that remedy in accordance with

equitable principles; thus, the Court time and again underscores that

the federal courts have plenary power under the statute to implement it to the fullest while the Court’s decisions may deny them

the discretion to exercise the power.1393

Change has occurred in several respects in regard to access to

and the scope of the writ. It is sufficient to say that the more recent rulings have eviscerated the content of the 1963 trilogy and

that Brown v. Allen itself is threatened with extinction.

First, the Court in search and seizure cases has returned to the

standard of Frank v. Mangum, holding that where the state courts

afford a criminal defendant the opportunity for a full and adequate

hearing on his Fourth Amendment claim, his only avenue of relief

in the federal courts is to petition the Supreme Court for review

and that he cannot raise those claims again in a habeas petition.1394 Grounded as it is in the Court’s dissatisfaction with the

1392 Wainwright v. Sykes, 433 U.S. 72, 81 (1977). The present Court’s emphasis

in habeas cases is, of course, quite different from that of the Court in the 1963 trilogy. Now, the Court favors decisions that promote finality, comity, judicial economy,

and channeling the resolution of claims into the most appropriate forum. Keeney v.

Tamayo-Reyes, 504 U.S. 1, 8–10 (1992). Overall, federalism concerns are critical. See

Coleman v. Thompson, 501 U.S. 722, 726 (1991) (“This is a case about federalism.”

First sentence of opinion). The seminal opinion on which subsequent cases have drawn

is Justice Powell’s concurrence in Schneckloth v. Bustamonte, 412 U.S. 218, 250 (1973).

He suggested that habeas courts should entertain only those claims that go to the

integrity of the fact-finding process, thus raising questions of the value of a guilty

verdict, or, more radically, that only those prisoners able to make a credible showing of “factual innocence” could be heard on habeas. Id. at 256–58, 274–75. As will

be evident infra, some form of innocence standard now is pervasive in much of the

Court’s habeas jurisprudence.

1393 433 U.S. at 83; Stone v. Powell, 428 U.S. 465, 495 n.37 (1976); Francis v.

Henderson, 425 U.S. 536, 538 (1976); Fay v. Noia, 372 U.S. 391, 438 (1963). The

dichotomy between power and discretion goes all the way back to the case imposing

the rule of exhaustion of state remedies. Ex parte Royall, 117 U.S. 241, 251 (1886).

1394 Stone v. Powell, 428 U.S. 465 (1976). The decision is based as much on the

Court’s dissatisfaction with the exclusionary rule as with its desire to curb habeas.

Holding that the purpose of the exclusionary rule is to deter unconstitutional searches

and seizures rather than to redress individual injuries, the Court reasoned that no

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exclusionary rule, the case has not since been extended to other constitutional grounds,1395 but the rationale of the opinion suggests the

likelihood of reaching other exclusion questions.1396

Second, the Court has formulated a “new rule” exception to habeas cognizance. That is, subject to two exceptions,1397 a case decided after a petitioner’s conviction and sentence became final may

not be the predicate for federal habeas relief if the case announces

or applies a “new rule.” 1398 A decision announces a new rule “if the

result was not dictated by precedent existing at the time the defendant’s conviction became final.” 1399 If a rule “was susceptible to debate among reasonable minds,” it could not have been dictated by

precedent, and therefore it must be classified as a “new rule.” 1400

Third, the Court has largely maintained the standards of Townsend

v. Sain, as embodied in somewhat modified form in statute, with

respect to when federal judges must conduct an evidentiary hearing. However, one Townsend factor, not expressly set out in the statute, has been overturned in order to bring the case law into line

with other decisions. Townsend had held that a hearing was required if the material facts were not adequately developed at the

state-court hearing. If the defendant had failed to develop the madeterrent purpose was advanced by applying the rule on habeas, except to encourage state courts to give claimants a full and fair hearing. Id. at 493–95.

1395 Stone does not apply to a Sixth Amendment claim of ineffective assistance

of counsel in litigating a search and seizure claim. Kimmelman v. Morrison, 477 U.S.

365, 382–383 (1986). See also Rose v. Mitchell, 443 U.S. 545 (1979) (racial discrimination in selection of grand jury foreman); Jackson v. Virginia, 443 U.S. 307 (1979)

(insufficient evidence to satisfy reasonable doubt standard).

1396 Issues of admissibility of confessions (Miranda violations) and eyewitness

identifications are obvious candidates. See, e.g., Duckworth v. Eagan, 492 U.S. 195,

205 (1989) (Justice O’Connor concurring); Brewer v. Williams, 430 U.S. 387, 413–14

(1977) (Justice Powell concurring), and id. at 415 (Chief Justice Burger dissenting);

Wainwright v. Sykes, 433 U.S. 72, 87 n.11 (1977) (reserving Miranda).

1397 The first exception permits the retroactive application on habeas of a new

rule if the rule places a class of private conduct beyond the power of the state to

proscribe or addresses a substantive categorical guarantee accorded by the Constitution. The rule must, to say it differently, either decriminalize a class of conduct or

prohibit the imposition of a particular punishment on a particular class of persons.

The second exception would permit the application of “watershed rules of criminal

procedure” implicating the fundamental fairness and accuracy of the criminal proceeding. Saffle v. Parks, 494 U.S. 484, 494–95 (1990) (citing cases); Sawyer v. Smith,

497 U.S. 227, 241–45 (1990).

1398 Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion); Penry v. Lynaugh,

492 U.S. 302, 313–19 (1989).

1399 Butler v. McKellar, 494 U.S. 407, 412 (1990) (quoting Penry v. Lynaugh,

492 U.S. 302, 314 (1989), which was quoting Teague v. Lane, 489 U.S. 288, 314 (1989).

This sentence was quoted again in Whorton v. Bockting, 549 U.S. 406, 416 (2007)).

1400 494 U.S. at 415. See also Stringer v. Black, 503 U.S. 222, 228–29 (1992).

This latter case found that two decisions relied on by petitioner merely drew on existing precedent and so did not establish a new rule. See also O’Dell v. Netherland,

521 U.S. 151 (1997); Lambrix v. Singletary, 520 U.S. 518 (1997); Gray v. Netherland,

518 U.S. 152 (1996). But compare Bousley v. Brooks, 523 U.S. 614 (1998).

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terial facts in the state court, however, the Court held that, unless

he had “deliberately bypass[ed]” that procedural outlet, he was still

entitled to the hearing.1401 The Court overruled that point and substituted a much stricter “cause-and-prejudice” standard.1402

Fourth, the Court has significantly stiffened the standards governing when a federal habeas court should entertain a second or

successive petition filed by a state prisoner—a question with which

Sanders v. United States dealt.1403 A successive petition may be dismissed if the same ground was determined adversely to petitioner

previously, the prior determination was on the merits, and “the ends

of justice” would not be served by reconsideration. It is with the

latter element that the Court has become more restrictive. A plurality in Kuhlmann v. Wilson 1404 argued that the “ends of justice” standard would be met only if a petitioner supplemented her constitutional claim with a colorable showing of factual innocence. While

the Court has not expressly adopted this standard, a later capital

case utilized it, holding that a petitioner sentenced to death could

escape the bar on successive petitions by demonstrating “actual innocence” of the death penalty by showing by clear and convincing

evidence that no reasonable juror would have found the prisoner

eligible for the death penalty under applicable state law.1405

Even if the subsequent petition alleges new and different grounds,

a habeas court may dismiss the petition if the prisoner’s failure to

assert those grounds in the prior, or first, petition constitutes “an

abuse of the writ.” 1406 Following the 1963 trilogy and especially Sanders, the federal courts had generally followed a rule excusing the

failure to raise claims in earlier petitions unless the failure was a

result of “inexcusable neglect” or of deliberate relinquishment. In

McClesky v. Zant,

1407 the Court construed the “abuse of the writ”

language to require a showing of both “cause and prejudice” before

a petitioner may allege in a second or later petition a ground or

grounds not alleged in the first. In other words, to avoid subsequent dismissal, a petitioner must allege in his first application all

1401 Townsend v. Sain, 372 U.S. 293, 313, 317 (1963), imported the “deliberate

bypass” standard from Fay v. Noia, 372 U.S. 391, 438 (1963).

1402 Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). This standard is imported from

the cases abandoning Fay v. Noia and is discussed infra.

1403 373 U.S. 1, 15–18 (1963). The standards are embodied in 28 U.S.C. § 2244(b).

1404 477 U.S. 436 (1986).

1405 Sawyer v. Whitley, 505 U.S. 333 (1992). Language in the opinion suggests

that the standard is not limited to capital cases. Id. at 339.

1406 The standard is in 28 U.S.C. § 2244(b), along with the standard that, if a

petitioner “deliberately withheld” a claim, the petition can be dismissed. See also 28

U.S.C. § 2254 Rule 9(b) (judge may dismiss successive petition raising new claims if

failure to assert them previously was an abuse of the writ).

1407 499 U.S. 467 (1991).

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the grounds he may have, unless he can show cause, some external

impediment, for his failure and some actual prejudice from the error alleged. If he cannot show cause and prejudice, the petitioner

may be heard only if she shows that a “fundamental miscarriage of

justice” will occur, which means she must make a “colorable showing of factual innocence.” 1408

Fifth, the Court abandoned the rules of Fay v. Noia, although

it was not until 1991 that it expressly overruled the case.1409 Fay,

it will be recalled, dealt with so-called procedural-bar circumstances; that is, if a defendant fails to assert a claim at the proper

time or in accordance with proper procedure under valid state rules,

and if the state then refuses to reach the merits of his claim and

rules against him solely because of the noncompliance with state

procedure, when may a petitioner present the claim in federal habeas? The answer in Fay was that the federal court always had power

to review the claim but that it had discretion to deny relief to a

habeas claimant if it found that the prisoner had intentionally waived

his right to pursue his state remedy through a “deliberate bypass”

of state procedure.

That is no longer the law. “In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an

independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate

cause for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider the

claims will result in a fundamental miscarriage of justice. Fay was

based on a conception of federal/state relations that undervalued

the importance of state procedural rules.” 1410 The “miscarriage-ofjustice” element is probably limited to cases in which actual innocence or actual impairment of a guilty verdict can be shown.1411 The

1408 499 U.S. at 489–97. The “actual innocence” element runs through the cases

under all the headings.

1409 Coleman v. Thompson, 501 U.S. 722, 744–51 (1991).

1410 Coleman v. Thompson, 501 U.S. 722, 750 (1991). The standard has been

developed in a long line of cases. Davis v. United States, 411 U.S. 233 (1973) (under

federal rules); Francis v. Henderson, 425 U.S. 536 (1976); Engle v. Isaac, 456 U.S.

107 (1982); Murray v. Carrier, 477 U.S. 478 (1986); Harris v. Reed, 489 U.S. 255

(1989). Coleman arose because the defendant’s attorney had filed his appeal in state

court three days late. Wainwright v. Sykes involved the failure of defendant to object to the admission of inculpatory statements at the time of trial. Engle v. Isaac

involved a failure to object at trial to jury instructions.

1411 E.g., Smith v. Murray, 477 U.S. 527, 538–39 (1986); Murray v. Carrier, 477

U.S. 478, 496 (1986). In Bousley v. Brooks, 523 U.S. 614 (1998), a federal postconviction relief case, petitioner had pled guilty to a federal firearms offense. Subsequently, the Supreme Court interpreted more narrowly the elements of the offense

than had the trial court in Bousley’s case. The Court held that Bousley by his plea

had defaulted, but that he might be able to demonstrate “actual innocence” so as to

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concept of “cause” excusing failure to observe a state rule is extremely narrow; “the existence of cause for procedural default must

ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” 1412 As for the “prejudice” factor, it is an undeveloped concept, but the Court’s only case establishes

a high barrier.1413

The Court continues, with some modest exceptions, to construe

habeas jurisdiction quite restrictively, but it has now been joined

by new congressional legislation that is also restrictive. In Herrera

v. Collins,

1414 the Court appeared, though ambiguously, to take the

position that, although it requires a showing of actual innocence to

permit a claimant to bring a successive or abusive petition, a claim

of innocence is not alone sufficient to enable a claimant to obtain

review of his conviction on habeas. Petitioners are entitled in federal habeas courts to show that they are imprisoned in violation of

the Constitution, not to seek to correct errors of fact. But a claim

of innocence does not bear on the constitutionality of one’s conviction or detention, and the execution of a person claiming actual innocence would not, by this reasoning, violate the Constitution.1415

In a subsequent part of the opinion, however, the Court assumed

for the sake of argument that “a truly persuasive demonstration of

‘actual innocence’ made after trial would render the execution of a

defendant unconstitutional,” and it imposed a high standard for making this showing.1416 Then, in In re Troy Anthony Davis,

1417 the Court

excuse the default if he could show on remand that it was more likely than not that

no reasonable juror would have convicted him of the offense, properly defined.

1412 Murray v. Carrier, 477 U.S. at 488. This case held that ineffective assistance of counsel is not “cause” unless it rises to the level of a Sixth Amendment

violation. See also Coleman v. Thompson, 501 U.S. 722, 752–57 (1991) (because petitioner had no right to counsel in state postconviction proceeding where error occurred, he could not claim constitutionally ineffective assistance of counsel). The actual novelty of a constitutional claim at the time of the state court proceeding is

“cause” excusing the petitioner’s failure to raise it then, Reed v. Ross, 468 U.S. 1

(1984), although the failure of counsel to anticipate a line of constitutional argument then foreshadowed in Supreme Court precedent is insufficient “cause.” Engle

v. Isaac, 456 U.S. 107 (1982).

1413 United States v. Frady, 456 U.S. 152, 169 (1982) (under federal rules) (with

respect to erroneous jury instruction, inquiring whether the error “so infected the

entire trial that the resulting conviction violates due process”).

1414 506 U.S. 390 (1993).

1415 506 U.S. at 398–417.

1416 506 U.S. at 417–419. Justices Scalia and Thomas would have unequivocally

held that “[t]here is no basis in text, tradition, or even in contemporary practice

. . . for finding in the Constitution a right to demand judicial consideration of newly

discovered evidence of innocence brought forward after conviction.” Id. at 427–28

(concurring). However, it is not at all clear that all the Justices joining the Court

believe innocence to be nondispositive on habeas. Id. at 419 (Justices O’Connor and

Kennedy concurring), 429 (Justice White concurring). In House v. Bell, 547 U.S. 518,

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found a death-row convict with a claim of actual innocence to be

entitled to a District Court determination of his habeas petition.

Justice Stevens, in a concurring opinion joined by Justices Ginsburg

and Breyer, noted that the fact that seven of the state’s key witnesses had recanted their trial testimony, and that several people

had implicated the state’s principal witness as the shooter, made

the case “exceptional.” 1418

In Schlup v. Delo,

1419 the Court adopted the plurality opinion

of Kuhlmann v. Wilson and held that, absent a sufficient showing

of “cause and prejudice,” a claimant filing a successive or abusive

petition must, as an initial matter, make a showing of “actual innocence” so as to fall within the narrow class of cases implicating a

fundamental miscarriage of justice. The Court divided, however, with

respect to the showing a claimant must make. One standard, found

in some of the cases, was championed by the dissenters; “to show

‘actual innocence’ one must show by clear and convincing evidence

that but for a constitutional error, no reasonable juror would have

found the petitioner eligible for the death penalty.” 1420 The Court

adopted a second standard, under which the petitioner must demonstrate that “a constitutional violation has probably resulted in the

conviction of one who is actually innocent.” To meet this burden, a

claimant “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” 1421

In the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA),1422 Congress imposed tight new restrictions on successive or abusive petitions, including making the circuit courts “gate

keepers” in permitting or denying the filing of such petitions, with

bars to appellate review of these decisions, provisions that in part

554–55 (2006), the Court declined to resolve the issue that in Herrera it had assumed without deciding: that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.”

See Amendment 8, Limitations on Habeas Corpus Review of Capital Sentences.

1417 557 U.S. ___, No. 08–1443 (2009).

1418 Justice Scalia, joined by Justice Thomas, dissented, writing, “This Court has

never held that the Constitution forbids the execution of a convicted defendant who

has had a full and fair trial but is later able to convince a habeas court that he is

‘actually’ innocent.” He also wrote that the defendant’s “claim is a sure loser” and

that the Supreme Court was sending the District Court “on a fool’s errand.”

1419 513 U.S. 298 (1995).

1420 513 U.S. at 334 (Chief Justice Rehnquist dissenting, with Justices Kennedy

and Thomas), 342 (Justice Scalia dissenting, with Justice Thomas). This standard

was drawn from Sawyer v. Whitley, 505 U.S. 333 (1992).

1421 513 U.S. at 327. This standard was drawn from Murray v. Carrier, 477 U.S.

478 (1986).

1422 Pub. L. 104–132, Title I, 110 Stat. 1217–21, amending 28 U.S.C. §§ 2244,

2253, 2254, and Rule 22 of the Federal Rules of Appellate Procedure.

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were upheld in Felker v. Turpin.

1423 One important restriction in

AEDPA bars a federal habeas court from granting a writ to any person in custody under a judgment of a state court “with respect to

any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—(1) resulted in a decision

that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court

of the United States.” 1424 The Court has made the significance of

this restriction plain: Instead of assessing whether federal law was

correctly applied de novo, as would be the course under direct review of a federal district court decision, the proper approach for federal habeas relief under AEDPA is the more deferential one of determining whether the Court has established clear precedent on the

issue contested and, if so, whether the state’s application of the precedent was reasonable, i.e., no fairminded jurist could find that the

state acted in accord with the Court’s established precedent.1425

For the future, barring changes in Court membership, other curtailing of habeas jurisdiction can be expected. Perhaps the Court

will impose some form of showing of innocence as a predicate to

obtaining a hearing. More far-reaching would be an overturning of

Brown v. Allen itself and the renunciation of any oversight, save

for the extremely limited direct review of state court convictions in

the Supreme Court. The Court continues to emphasize broad federalism concerns, rather than simply comity and respect for state courts.

Removal.—In the Judiciary Act of 1789, Congress provided that

civil actions commenced in the state courts which could have been

brought in the original jurisdiction of the inferior federal courts could

be removed by the defendant from the state court to the federal

court.1426 Generally, as Congress expanded the original jurisdiction

of the inferior federal courts, it similarly expanded removal jurisdic1423 518 U.S. 651 (1996).

1424 The amended 28 U.S.C. § 2254(d) (emphasis added). The provision was applied in Bell v. Cone, 535 U.S. 685 (2002). See also Renico v. Lett, 559 U.S. ___, No.

09–338, slip op. 9–12 (2010). For analysis of its constitutionality, see the various opinions in Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc), rev’d on other grounds,

521 U.S. 320 (1997); Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), cert. denied,

520 U.S. 1107 (1997); Hall v. Washington, 106 F.3d 742 (7th Cir. 1997); O’Brien v.

Dubois, 145 F.3d 16 (1st Cir. 1998); Green v. French, 143 F.3d 865 (4th Cir. 1998),

cert. denied, 525 U.S. 1090 (1999).

1425 Harrington v. Richter, 562 U.S. ___, No. 09–587, slip op. at 10–14 (2011)

(overturning Ninth Circuit’s grant of relief, which was based on ineffective assistance of counsel); accord Premo v. Moore, 562 U.S. ___, No. 09–658, slip op. (2011)

(same) and Cullen v. Pinholster, No. 09–1088, slip op. (2011) (same).

1426 § 12, 1 Stat. 79. The removal provision contained the same jurisdictional

amount requirement as the original jurisdictional statute. It applied in the main to

aliens and defendants not residents of the state in which suit was brought.

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

ART. III—JUDICIAL DEPARTMENT 911
tion.1427 Although there is potentiality for intra-court conflict here,

of course, in the implied mistrust of state courts’ willingness or ability to protect federal interests, it is rather with regard to the limited areas of removal that do not correspond to federal court original jurisdiction that the greatest amount of conflict is likely to arise.

If a federal officer is sued or prosecuted in a state court for acts

done under color of law 1428 or if a federal employee is sued for a

wrongful or negligent act that the Attorney General certifies was

done while she was acting within the scope of her employment,1429

the actions may be removed. But the statute most open to federalstate court dispute is the civil rights removal law, which authorizes

removal of any action, civil or criminal, which is commenced in a

state court “[a]gainst any person who is denied or cannot enforce

in the courts of such State a right under any law providing for the

equal civil rights of citizens of the United States, or of all persons

within the jurisdiction thereof.” 1430 In the years after enactment of

this statute, however, the court narrowly construed the removal privilege granted,1431 and recent decisions for the most part confirm this

1427 Thus the Act of March 3, 1875, § 2, 18 Stat. 470, conferring federal question jurisdiction on the inferior federal courts, provided for removal of such actions.

The constitutionality of congressional authorization for removal is well-established.

Chicago & N.W. Ry. v. Whitton’s Administrator, 80 U.S. (13 Wall.) 270 (1871); Tennessee v. Davis, 100 U.S. 257 (1880); Ames v. Kansas ex rel. Johnston, 111 U.S. 449

(1884). See City of Greenwood v. Peacock, 384 U.S. 808, 833 (1966).

1428 See 28 U.S.C. § 1442. This statute had its origins in the Act of February 4,

1815, § 8, 3 Stat. 198 (removal of civil and criminal actions against federal customs

officers for official acts), and the Act of March 2, 1833, § 3, 4 Stat. 633 (removal of

civil and criminal actions against federal officers on account of acts done under the

revenue laws), both of which grew out of disputes arising when certain states attempted to nullify federal laws, and the Act of March 3, 1863, § 5, 12 Stat. 756 (removal of civil and criminal actions against federal officers for acts done during the

existence of the Civil War under color of federal authority). In Mesa v. California,

489 U.S. 121 (1989), the Court held that the statute authorized federal officer removal only when the defendant avers a federal defense. See Willingham v. Morgan,

395 U.S. 402 (1969).

1429 28 U.S.C. § 2679(d), enacted after Westfall v. Erwin, 484 U.S. 292 (1988).

1430 28 U.S.C. § 1443(1). Subsection (2) provides for the removal of state court

actions “[f]or any act under color of authority derived from any law providing for

equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” This subsection “is available only to federal officers and to persons assisting such officers in the performance of their official duties.” City of Greenwood v. Peacock, 384 U.S. 808, 815 (1966).

1431 Strauder v. West Virginia, 100 U.S. 303 (1880); Virginia v. Rives, 100 U.S.

313 (1880); Neal v. Delaware, 103 U.S. 370 (1881); Bush v. Kentucky, 107 U.S. 110

(1883); Gibson v. Mississippi, 162 U.S. 565 (1896); Smith v. Mississippi, 162 U.S.

592 (1896); Murray v. Louisiana, 163 U.S. 101 (1896); Williams v. Mississippi, 170

U.S. 213 (1898); Kentucky v. Powers, 201 U.S. 1 (1906).

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

912 ART. III—JUDICIAL DEPARTMENT
restrictive interpretation,1432 so that instances of successful resort

to the statute are fairly rare.

Thus, the Court’s position holds, one may not obtain removal

simply by an assertion that he is being denied equal rights or that

he cannot enforce the law granting equal rights. Because the removal statute requires the denial to be “in the courts of such State,”

the pretrial conduct of police and prosecutors was deemed irrelevant, because it afforded no basis for predicting that state courts

would not vindicate the federal rights of defendants.1433 Moreover,

in predicting a denial of rights, only an assertion founded on a facially unconstitutional state statute denying the right in question

would suffice. From the existence of such a law, it could be predicted that defendant’s rights would be denied.1434 Furthermore, the

removal statute’s reference to “any law providing for . . . equal rights”

covered only laws “providing for specific civil rights stated in terms

of racial equality.” 1435 Thus, apparently federal constitutional provisions and many general federal laws do not qualify as a basis for

such removal.1436

1432 Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood v. Peacock, 384

U.S. 808 (1966). There was a hiatus of cases reviewing removal from 1906 to 1966

because from 1887 to 1964 there was no provision for an appeal of an order of a

federal court remanding a removed case to the state courts. § 901 of the Civil Rights

Act of 1964, 78 Stat. 266, 28 U.S.C. § 1447(d).

1433 Georgia v. Rachel, 384 U.S. 780, 803 (1966); City of Greenwood v. Peacock,

384 U.S. 808, 827 (1966). Justice Douglas in dissent, joined by Justices Black, Fortas,

and Chief Justice Warren, argued that “in the courts of such State” modified only

“cannot enforce,” so that one could be denied rights prior to as well as during a trial

and police and prosecutorial conduct would be relevant. Alternately, he argued that

state courts could be implicated in the denial prior to trial by certain actions. Id. at

844–55.

1434 Georgia v. Rachel, 384 U.S. 780, 797–802 (1966). Thus, in Strauder v. West

Virginia, 100 U.S. 303 (1880), African-Americans were excluded by statute from service on grand and petit juries, and it was held that a black defendant’s criminal

indictment should have been removed because federal law secured nondiscriminatory jury service and it could be predicted that he would be denied his rights before

a discriminatorily selected state jury. In Virginia v. Rives, 100 U.S. 313 (1880), there

was no state statute, but there was exclusion of Negroes from juries pursuant to

custom and removal was denied. In Neal v. Delaware, 103 U.S. 370 (1880), the state

provision authorizing discrimination in jury selection had been held invalid under

federal law by a state court, and a similar situation existed in Bush v. Kentucky,

107 U.S. 110 (1882). Removal was denied in both cases. The dissenters in City of

Greenwood v. Peacock, 384 U.S. 808, 848–52 (1966), argued that federal courts should

consider facially valid statutes which might be applied unconstitutionally and state

court enforcement of custom as well in evaluating whether a removal petitioner could

enforce his federal rights in state court.

1435 Georgia v. Rachel, 384 U.S. 780, 788–94 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 824–27 (1966), See also id. at 847–48 (Justice Douglas dissenting).

1436 City of Greenwood v. Peacock, 384 U.S. at 824–27. See also Johnson v. Mississippi, 421 U.S. 213 (1975).

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction

ART. III—JUDICIAL DEPARTMENT 913
Clause 3. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State

where the said Crimes shall have been committed; but when not

committed within any State, the Trial shall be at such Place or

Places as the Congress may by Law have directed.1437

IN GENERAL

See analysis under the Sixth Amendment.

SECTION 3. Clause 1. Treason against the United States, shall

consist only in levying War against them, or in adhering to their

Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to

the same overt Act, or on Confession in open court.

TREASON

The Treason Clause is a product of the awareness of the Framers of the “numerous and dangerous excrescences” which had disfigured the English law of treason and was therefore intended to put

it beyond the power of Congress to “extend the crime and punishment of treason.” 1438 The debate in the Convention, remarks in the

ratifying conventions, and contemporaneous public comment make

clear that a restrictive concept of the crime was imposed and that

ordinary partisan divisions within political society were not to be

escalated by the stronger into capital charges of treason, as so often had happened in England.1439

Thus, the Framers adopted two of the three formulations and

the phraseology of the English Statute of Treason enacted in 1350,1440

but they conspicuously omitted the phrase defining as treason the

1437 See the Sixth Amendment.

1438 2 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON ADOPTION OF THE CONSTITUTION 469 (1836) (James Wilson). Wilson was apparently the author of the clause

in the Committee of Detail and had some first hand knowledge of the abuse of treason charges. J. HURST, THE LAW OF TREASON IN THE UNITED STATES: SELECTED ESSAYS 90–

91, 129–136 (1971).

1439 2 M. Farrand, supra at 345–50; 2 J. Elliot, supra at 469, 487 (James Wilson); 3 id. at 102–103, 447, 451, 466; 4 id. at 209, 219, 220; THE FEDERALIST No. 43

(J. Cooke ed. 1961), 290 (Madison); id. at No. 84, 576–577 (Hamilton); THE WORKS OF

JAMES WILSON 663–69 (R. McCloskey ed. 1967). The matter is comprehensively studied in J. Hurst, supra at chs. 3, 4.

1440 25 Edward III, Stat. 5, ch. 2, See J. Hurst, supra at ch 2.

Sec. 2—Judicial Power and Jurisdiction Cl. 3—Trial By Jury

914 ART. III—JUDICIAL DEPARTMENT
“compass[ing] or imagin[ing] the death of our lord the King,” 1441

under which most of the English law of “constructive treason” had

been developed.1442 Beyond limiting the power of Congress to define treason,1443 the clause also prescribes limitations upon Congress’s ability to make proof of the offense easy to establish 1444 and

its ability to define punishment.1445

Levying War

Early judicial interpretation of the meaning of treason in terms

of levying war was conditioned by the partisan struggles of the early

nineteenth century, which involved the treason trials of Aaron Burr

and his associates. In Ex parte Bollman,

1446 which involved two of

Burr’s confederates, Chief Justice Marshall, speaking for himself and

three other Justices, confined the meaning of levying war to the

actual waging of war. “However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy

war, are distinct offences. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself,

or the fact of levying war cannot have been committed. So far has

this principle been carried, that . . . it has been determined that

the actual enlistment of men to serve against the government does

not amount to levying war.” Chief Justice Marshall was careful, however, to state that the Court did not mean that no person could be

guilty of this crime who had not appeared in arms against the coun1441 Id. at 15, 31–37, 41–49, 51–55.

1442 Id. “[T]he record does suggest that the clause was intended to guarantee

nonviolent political processes against prosecution under any theory or charge, the

burden of which was the allegedly seditious character of the conduct in question.

The most obviously restrictive feature of the constitutional definition is its omission

of any provision analogous to that branch of the Statute of Edward III which punished treason by compassing the death of the king. In a narrow sense, this provision perhaps had no proper analogue in a republic. However, to interpret the silence of the Treason Clause in this way alone does justice neither to the technical

proficiency of the Philadelphia draftsmen nor to the practical statecraft and knowledge of English political history among the Framers and proponents of the Constitution. The charge of compassing the king’s death had been the principal instrument

by which ‘treason’ had been used to suppress a wide range of political opposition,

from acts obviously dangerous to order and likely in fact to lead to the king’s death

to the mere speaking or writing of views restrictive of the royal authority.” Id. at

152–53.

1443 The clause does not, however, prevent Congress from specifying other crimes

of a subversive nature and prescribing punishment, so long as Congress is not merely

attempting to evade the restrictions of the Treason Clause. E.g., Ex parte Bollman,

8 U.S. (4 Cr.) 75, 126 (1807); Wimmer v. United States, 264 Fed. 11, 12–13 (6th Cir.

1920), cert. denied, 253 U.S. 494 (1920).

1444 By the requirement of two witnesses to the same overt act or a confession

in open court.

1445 Cl. 2, infra, “Corruption of the Blood and Forfeiture”.

1446 8 U.S. (4 Cr.) 75 (1807).

Sec. 3—Treason Cl. 1—Definition and Limitations

ART. III—JUDICIAL DEPARTMENT 915
try. “On the contrary, if war be actually levied, that is, if a body of

men be actually assembled for the purpose of effecting by force a

treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men, for the

treasonable purpose, to constitute a levying of war.” 1447

On the basis of these considerations and because no part of the

crime charged had been committed in the District of Columbia, the

Court held that Bollman and Swartwout could not be tried in the

District, and ordered their discharge. Marshall continued by saying

that “the crime of treason should not be extended by construction

to doubtful cases” and concluded that no conspiracy for overturning the Government and “no enlisting of men to effect it, would be

an actual levying of war.” 1448

The Burr Trial.—Not long afterward, the Chief Justice went

to Richmond to preside over the trial of Aaron Burr. His ruling 1449

denying a motion to introduce certain collateral evidence bearing

on Burr’s activities is significant both for rendering the latter’s acquittal inevitable and for the qualifications and exceptions made to

the Bollman decision. In brief, this ruling held that Burr, who had

not been present at the assemblage on Blennerhassett’s Island, could

be convicted of advising or procuring a levying of war only upon

the testimony of two witnesses to his having procured the assemblage. This operation having been covert, such testimony was naturally unobtainable. The net effect of Marshall’s pronouncements was

to make it extremely difficult to convict one of levying war against

the United States short of the conduct of or personal participation

in actual hostilities.1450

1447 8 U.S. at 126.

1448 8 U.S. at 127.

1449 United States v. Burr, 8 U.S. (4 Cr.) 469, Appx. (1807).

1450 There have been lower court cases in which convictions were obtained. As a

result of the Whiskey Rebellion, convictions of treason were obtained on the basis of

the ruling that forcible resistance to the enforcement of the revenue laws was a constructive levying of war. United States v. Vigol, 29 Fed. Cas. 376 (No. 16621) (C.C.D.

Pa. 1795); United States v. Mitchell, 26 Fed. Cas. 1277 (No. 15788) (C.C.D. Pa. 1795).

After conviction, the defendants were pardoned. See also for the same ruling in a

different situation the Case of Fries, 9 Fed. Cas. 826, 924 (Nos. 5126, 5127) (C.C.D.

Pa. 1799, 1800). The defendant was again pardoned after conviction. About a half

century later participation in forcible resistance to the Fugitive Slave Law was held

not to be a constructive levying of war. United States v. Hanway, 26 Fed. Cas. 105

(No. 15299) (C.C.E.D. Pa. 1851). Although the United States Government regarded

the activities of the Confederate States as a levying of war, the President by Amnesty Proclamation of December 25, 1868, pardoned all those who had participated

on the southern side in the Civil War. In applying the Captured and Abandoned

Property Act of 1863 (12 Stat. 820) in a civil proceeding, the Court declared that the

Sec. 3—Treason Cl. 1—Definition and Limitations

916 ART. III—JUDICIAL DEPARTMENT
Aid and Comfort to the Enemy

The Cramer Case.—Since Bollman, the few treason cases that

have reached the Supreme Court were outgrowths of World War II

and have charged adherence to enemies of the United States and

the giving of aid and comfort. In the first of these, Cramer v. United

States,

1451 the issue was whether the “overt act” had to be “openly

manifest treason” or if it was enough if, when supported by the proper

evidence, it showed the required treasonable intention.1452 The Court,

in a five-to-four opinion by Justice Jackson, in effect took the former view holding that “the two-witness principle” interdicted “imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness,” 1453 even though the

single witness in question was the accused himself. “Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses,” 1454 Justice Jackson asserted. Justice Douglas in a dissent, in which Chief

Justice Stone and Justices Black and Reed concurred, contended that

Cramer’s treasonable intention was sufficiently shown by overt acts

as attested to by two witnesses each, plus statements made by Cramer

on the witness stand.

The Haupt Case.—The Supreme Court sustained a conviction

of treason, for the first time in its history, in 1947 in Haupt v. United

States.

1455 Here it was held that although the overt acts relied upon

to support the charge of treason—defendant’s harboring and sheltering in his home his son who was an enemy spy and saboteur,

assisting him in purchasing an automobile, and in obtaining employment in a defense plant—were all acts which a father would naturally perform for a son, this fact did not necessarily relieve them of

foundation of the Confederacy was treason against the United States. Sprott v. United

States, 87 U.S. (20 Wall.) 459 (1875). See also Hanauer v. Doane, 79 U.S. (12 Wall.)

342 (1871); Thorington v. Smith, 75 U.S. (8 Wall.) 1 (1869); Young v. United States,

97 U.S. 39 (1878). These four cases bring in the concept of adhering to the enemy

and giving him aid and comfort, but these are not criminal cases and deal with attempts to recover property under the Captured and Abandoned Property Act by persons who claimed that they had given no aid or comfort to the enemy. These cases

are not, therefore, an interpretation of the Constitution.

1451 325 U.S. 1 (1945).

1452 89 Law. Ed. 1443–1444 (Argument of Counsel).

1453 325 U.S. at 35.

1454 325 U.S. at 34–35. Earlier, Justice Jackson had declared that this phase of

treason consists of two elements: “adherence to the enemy; and rendering him aid

and comfort.” A citizen, it was said, may take actions “which do aid and comfort the

enemy . . . but if there is no adherence to the enemy in this, if there is no intent to

betray, there is no treason.” Id. at 29. Justice Jackson states erroneously that the

requirement of two witnesses to the same overt act was an original invention of the

Convention of 1787. Actually it comes from the British Treason Trials Act of 1695. 7

Wm. III, c.3.

1455 330 U.S. 631 (1947).

Sec. 3—Treason Cl. 1—Definition and Limitations

ART. III—JUDICIAL DEPARTMENT 917
the treasonable purpose of giving aid and comfort to the enemy. Speaking for the Court, Justice Jackson said: “No matter whether young

Haupt’s mission was benign or traitorous, known or unknown to

the defendant, these acts were aid and comfort to him. In the light

of this mission and his instructions, they were more than casually

useful; they were aids in steps essential to his design for treason.

If proof be added that the defendant knew of his son’s instruction,

preparation and plans, the purpose to aid and comfort the enemy

becomes clear.” 1456

The Court held that conversation and occurrences long prior to

the indictment were admissible evidence on the question of defendant’s intent. And more important, it held that the constitutional

requirement of two witnesses to the same overt act or confession in

open court does not operate to exclude confessions or admissions

made out of court, where a legal basis for the conviction has been

laid by the testimony of two witnesses of which such confessions or

admissions are merely corroborative. This relaxation of restrictions

surrounding the definition of treason evoked obvious satisfaction from

Justice Douglas, who saw in Haupt a vindication of his position in

Cramer. His concurring opinion contains what may be called a restatement of the law of treason and merits quotation at length:

“As the Cramer case makes plain, the overt act and the intent

with which it is done are separate and distinct elements of the crime.

Intent need not be proved by two witnesses but may be inferred

from all the circumstances surrounding the overt act. But if two

witnesses are not required to prove treasonable intent, two witnesses need not be required to show the treasonable character of

the overt act. For proof of treasonable intent in the doing of the

overt act necessarily involves proof that the accused committed the

overt act with the knowledge or understanding of its treasonable

character.”

“The requirement of an overt act is to make certain a treasonable project has moved from the realm of thought into the realm of

action. That requirement is undeniably met in the present case, as

it was in the case of Cramer.”

“The Cramer case departed from those rules when it held that

‘The two-witness principle is to interdict imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness.’ 325 U.S. p. 35. The present decision is

truer to the constitutional definition of treason when it forsakes that

1456 330 U.S. at 635–36.

Sec. 3—Treason Cl. 1—Definition and Limitations

918 ART. III—JUDICIAL DEPARTMENT
test and holds that an act, quite innocent on its face, does not need

two witnesses to be transformed into a incriminating one.” 1457

The Kawakita Case.—Kawakita v. United States 1458 was decided on June 2, 1952. The facts are sufficiently stated in the following headnote: “At petitioner’s trial for treason, it appeared that originally he was a native-born citizen of the United States and also a

national of Japan by reason of Japanese parentage and law. While

a minor, he took the oath of allegiance to the United States; went

to Japan for a visit on an American passport; and was prevented

by the outbreak of war from returning to this country. During the

war, he reached his majority in Japan; changed his registration from

American to Japanese, showed sympathy with Japan and hostility

to the United States; served as a civilian employee of a private corporation producing war materials for Japan; and brutally abused

American prisoners of war who were forced to work there. After Japan’s surrender, he registered as an American citizen; swore that

he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American

passport.” The question whether, on this record, Kawakita had intended to renounce American citizenship, said the Court, in sustaining conviction, was peculiarly one for the jury and their verdict that

he had not so intended was based on sufficient evidence. An American citizen, it continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation.1459

Doubtful State of the Law of Treason Today

The vacillation of Chief Justice Marshall between the Bollman 1460 and Burr 1461 cases and the vacillation of the Court in the

Cramer 1462 and Haupt 1463 cases leave the law of treason in a some1457 330 U.S. at 645–46. Justice Douglas cites no cases for these propositions.

Justice Murphy in a solitary dissent stated: “But the act of providing shelter was of

the type that might naturally arise out of petitioner’s relationship to his son, as the

Court recognizes. By its very nature, therefore, it is a non-treasonous act. That is

true even when the act is viewed in light of all the surrounding circumstances. All

that can be said is that the problem of whether it was motivated by treasonous or

non-treasonous factors is left in doubt. It is therefore not an overt act of treason,

regardless of how unlawful it might otherwise be.” Id. at 649.

1458 343 U.S. 717 (1952).

1459 343 U.S. at 732. For citations in the subject of dual nationality, see id. at

723 n.2. Three dissenters asserted that Kawakita’s conduct in Japan clearly showed

he was consistently demonstrating his allegiance to Japan. “As a matter of law, he

expatriated himself as well as that can be done.” Id. at 746.

1460 Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).

1461 United States v. Burr, 8 U.S. (4 Cr.) 469 (1807).

1462 Cramer v. United States, 325 U.S. 1 (1945).

1463 Haupt v. United States, 330 U.S. 631 (1947).

Sec. 3—Treason Cl. 1—Definition and Limitations

ART. III—JUDICIAL DEPARTMENT 919
what doubtful condition. The difficulties created by Burr have been

obviated to a considerable extent through the punishment of acts

ordinarily treasonable in nature under a different label,1464 within

a formula provided by Chief Justice Marshall himself in Bollman.

The passage reads: “Crimes so atrocious as those which have for

their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace

and happiness of society, are not to escape punishment, because they

have not ripened into treason. The wisdom of the legislature is competent to provide for the case; and the framers of our Constitution

. . . must have conceived it more safe that punishment in such cases

should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom

they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite,

and which a flexible definition of the crime, or a construction which

would render it flexible, might bring into operation.” 1465

Clause 2. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

CORRUPTION OF THE BLOOD AND FORFEITURE

The Confiscation Act of 1862 “to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the Property of

Rebels” 1466 raised issues under Article III, § 3, cl. 2. Because of the

constitutional doubts of the President, the act was accompanied by

an explanatory joint resolution which stipulated that only a life estate terminating with the death of the offender could be sold and

that at his death his children could take the fee simple by descent

as his heirs without deriving any title from the United States. In

applying this act, passed pursuant to the war power and not the

1464 Cf. United States v. Rosenberg, 195 F.2d 583 (2d. Cir. 1952), cert denied,

344 U.S. 889 (1952), holding that in a prosecution under the Espionage Act for giving aid to a country, not an enemy, an offense distinct from treason, neither the

two-witness rule nor the requirement as to the overt act is applicable.

1465 Ex parte Bollman, 8 U.S. (4 Cr.) 126, 127 (1807). Justice Frankfurter appended to his opinion in Cramer v. United States, 325 U.S. 1, 25 n.38 (1945), a list

taken from the government’s brief of all the cases prior to Cramer in which construction of the Treason Clause was involved. The same list, updated, appears in J. Hurst,

supra at 260–67. Professor Hurst was responsible for the historical research underlying the government’s brief in Cramer.

1466 12 Stat. 589. This act incidentally did not designate rebellion as treason.

Sec. 3—Treason Cl. 1—Definition and Limitations

920 ART. III—JUDICIAL DEPARTMENT
power to punish treason,1467 the Court in one case 1468 quoted with

approval the English distinction between a disability absolute and

perpetual and one personal or temporary. Corruption of blood as a

result of attainder of treason was cited as an example of the former and was defined as the disability of any of the posterity of the

attained person “to claim any inheritance in fee simple, either as

heir to him, or to any ancestor above him.” 1469

1467 Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1871).

1468 Wallach v. Van Riswick, 92 U.S. 202, 213 (1876).

1469 Lord de la Warre’s Case, 11 Coke Rept. 1a, 77 Eng. Rept. 1145 (1597). A

number of cases dealt with the effect of a full pardon by the President of owners of

property confiscated under this act. They held that a full pardon relieved the owner

of forfeiture as far as the government was concerned but did not divide the interest

acquired by third persons from the government during the lifetime of the offender.

Illinois Cent. R.R. v. Bosworth, 133 U.S. 92, 101 (1890); Knote v. United States, 95

U.S. 149 (1877); Wallach v. Van Riswick, 92 U.S. 202, 203 (1876); Armstrong’s Foundry,

73 U.S. (6 Wall.) 766, 769 (1868). There is no direct ruling on the question of whether

only citizens can commit treason. In Carlisle v. United States, 83 U.S. (16 Wall.)

147, 154–155 (1873), the Court declared that aliens while domiciled in this country

owe a temporary allegiance to it and may be punished for treason equally with a

native-born citizen in the absence of a treaty stipulation to the contrary. This case

involved the attempt of certain British subjects to recover claims for property seized

under the Captured and Abandoned Property Act, 12 Stat. 820 (1863), which provided for the recovery of property or its value in suits in the Court of Claims by

persons who had not rendered aid and comfort to the enemy. Earlier, in United States

v. Wiltberger, 18 U.S. (5 Wheat.) 76, 97 (1820), which involved a conviction for manslaughter under an act punishing manslaughter and treason on the high seas, Chief

Justice Marshall going beyond the necessities of the case stated that treason “is a

breach of allegiance, and can be committed by him only who owes allegiance either

perpetual or temporary.” However, see In re Shinohara, Court Martial Orders, No.

19, September 8, 1949, p. 4, Office of the Judge Advocate General of the Navy, reported in 17 Geo. Wash. L. Rev. 283 (1949). In this case, an enemy alien resident in

United States territory (Guam) was found guilty of treason for acts done while the

enemy nation of which he was a citizen occupied such territory. Under English precedents, an alien residing in British territory is open to conviction for high treason

on the theory that his allegiance to the Crown is not suspended by foreign occupation of the territory. DeJager v. Attorney General of Natal (1907), A.C., 96 L.T.R.

857. See also 18 U.S.C. § 2381.

Sec. 3—Treason Cl. 2—Punishment

ART. III—JUDICIAL DEPARTMENT 921