593

ARTICLE III

JUDICIAL DEPARTMENT

CONTENTS

Page

Section 1. Judicial Power, Courts, Judges ............................................................................... 597

Organization of Courts, Tenure, and Compensation of Judges ...................................... 597

One Supreme Court .................................................................................................... 598

Inferior Courts ............................................................................................................. 599

Abolition of Courts ............................................................................................... 600

Compensation .............................................................................................................. 600

Diminution of Salaries ......................................................................................... 600

Courts of Specialized Jurisdiction .............................................................................. 602

Legislative Courts: The Canter Case ......................................................................... 604

Power of Congress Over Legislative Courts ....................................................... 605

Review of Legislative Courts by Supreme Court ............................................... 606

The ‘‘Public Rights’’ Distinction .......................................................................... 607

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

Patent Appeals .................................................................................................. 610

Status of Courts of the District of Columbia ..................................................... 611

Bankruptcy Courts ............................................................................................... 613

Agency Adjudication ............................................................................................ 615

Noncourt Entities in the Judicial Branch ................................................................. 617

Judicial Power ............................................................................................................................ 618

Characteristics and Attributes of Judicial Power ............................................................ 618

‘‘Shall Be Vested’’ ........................................................................................................ 619

Finality of Judgment as an Attribute of Judicial Power ................................................. 620

Award of Execution ..................................................................................................... 621

Ancillary Powers of Federal Courts ......................................................................................... 623

The Contempt Power .......................................................................................................... 623

Categories of Contempt ............................................................................................... 623

The Act of 1789 ............................................................................................................ 625

An Inherent Power ...................................................................................................... 625

First Amendment Limitations on the Contempt Power ........................................... 627

Due Process Limitations on Contempt Power: Right to Notice and to a Hearing

Versus Summary Punishment ................................................................................ 629

Due Process Limitations on Contempt Power: Right to Jury Trial ........................ 630

Due Process Limitations on Contempt Power: Impartial Tribunal ......................... 631

Contempt by Disobedience of Orders ......................................................................... 634

Contempt Power in Aid of Administrative Power .................................................... 634

Sanctions Other than Contempt ....................................................................................... 635

Power to Issue Writs: The Act of 1789 ............................................................................. 636

Common Law Powers of District of Columbia Courts .............................................. 637

Habeas Corpus: Congressional and Judicial Control ............................................... 638

Habeas Corpus: The Process of the Writ ................................................................... 639

Congressional Limitation of the Injunctive Power .......................................................... 641

Injunctions Under the Emergency Price Control Act of 1942 ................................. 643

The Rule-Making Power and Powers Over Process ......................................................... 644
594 ART. III—JUDICIAL DEPARTMENT

Ancillary Powers of Federal Courts—Continued

The Rule-Making Power and Powers Over Process—Continued

Limitations to This Power .......................................................................................... 645

Appointment of Referees, Masters, and Special Aids ............................................... 646

Power to Admit and Disbar Attorneys ...................................................................... 646

Section 2. Judicial Power and Jurisdiction .............................................................................. 647

Clause 1. Cases and Controversies; Grants of Jurisdiction ............................................ 647

Judicial Power and Jurisdiction—Cases and Controversies .................................... 648

The Two Classes of Cases and Controversies .................................................... 649

Adverse Litigants ................................................................................................. 651

Collusive and Feigned Suits ......................................................................... 652

Stockholder Suits .......................................................................................... 653

Substantial Interest: Standing ............................................................................ 654

Citizens Suits ................................................................................................ 655

Taxpayer Suits .............................................................................................. 656

Constitutional Standards: Injury in Fact and Causation .......................... 658

Prudential Standing Rules ........................................................................... 661

Standing to Assert the Constitutional Rights of Others ........................... 662

Organizational Standing .............................................................................. 665

Standing of States to Represent Their Citizens ......................................... 665

Standing of Members of Congress ............................................................... 666

Standing to Challenge Nonconstitutional Governmental Action .............. 668

The Requirement of a Real Interest ................................................................... 670

Advisory Opinion .......................................................................................... 671

Declaratory Judgment .................................................................................. 673

Ripeness ......................................................................................................... 676

Mootness ........................................................................................................ 679

Retroactivity versus Prospectivity ............................................................... 683

Political Questions ............................................................................................... 687

Origins and Development ............................................................................. 688

The Doctrine Before Baker v. Carr ............................................................. 689

Baker v. Carr ................................................................................................ 693

Powell v. McCormack ................................................................................... 694

The Doctrine Reappears ............................................................................... 696

Judicial Review ............................................................................................................ 698

The Establishment of Judicial Review ............................................................... 698

Marbury v. Madison ..................................................................................... 701

Judicial Review and National Supremacy .................................................. 703

Limitations on the Exercise of Judicial Review ................................................. 705

Constitutional Interpretation ....................................................................... 705

Prudential Considerations ............................................................................ 706

The Doctrine of ‘‘Strict Necessity’’ ............................................................... 707

The Doctrine of Clear Mistake ..................................................................... 708

Exclusion of Extra-Constitutional Tests ..................................................... 709

Presumption of Constitutionality ................................................................ 710

Disallowance by Statutory Interpretation .................................................. 710

Stare Decisis in Constitutional Law ............................................................ 711

Conclusion ..................................................................................................... 712

Jurisdiction of Supreme Court and Inferior Federal Courts ................................... 713

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

States ................................................................................................................. 713

Development of Federal Question Jurisdiction .......................................... 713

When a Case Arises Under .......................................................................... 714
ART. III—JUDICIAL DEPARTMENT 595

Section 2. Judicial Power and Jurisdiction—Continued

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

Removal From State Court to Federal Court ............................................. 716

Corporations Chartered by Congress .......................................................... 717

Federal Questions Resulting from Special Jurisdictional Grants ............. 718

Civil Rights Act Jurisdiction ........................................................................ 719

Pendent Jurisdiction ..................................................................................... 721

Protective Jurisdiction .................................................................................. 722

Supreme Court Review of State Court Decisions ....................................... 723

Suits Affecting Ambassadors, Other Public Ministers, and Consuls ............... 726

Cases of Admiralty and Maritime Jurisdiction ................................................. 728

Power of Congress to Modify Maritime Law .............................................. 728

Admiralty and Maritime Cases ................................................................... 732

Admiralty Proceedings ................................................................................. 735

Territorial Extent of Admiralty and Maritime Jurisdiction ...................... 736

Admiralty and Federalism ........................................................................... 737

Cases to Which the United States Is a Party .................................................... 743

Right of the United States to Sue ............................................................... 743

Suits Against States ..................................................................................... 745

Immunity of the United States From Suit ................................................. 746

Suits Against United States Officials ......................................................... 748

Suits Against Government Corporations .................................................... 751

Suits Between Two or More States .................................................................... 752

Boundary Disputes: The Law Applied ........................................................ 752

Modern Types of Suits Between States ....................................................... 753

Cases of Which the Court Has Declined Jurisdiction ................................ 755

The Problem of Enforcement: Virginia v. West Virginia ........................... 756

Controversies Between a State and Citizens of Another State ........................ 757

Jurisdiction Confined to Civil Cases ........................................................... 758

The State’s Real Interest .............................................................................. 758

The State as Parens Patriae ........................................................................ 759

Controversies Between Citizens of Different States ......................................... 761

The Meaning of ‘‘State’’ and the District of Columbia Problem ................ 762

Citizenship of Natural Persons .................................................................... 763

Citizenship of Corporations .......................................................................... 764

Manufactured Diversity ............................................................................... 766

The Law Applied in Diversity Cases ........................................................... 767

Controversies Between Citizens of the Same State Claiming Land Under

Grants of Different States ............................................................................... 773

Controversies Between a State, Or the Citizens Thereof, and Foreign

States, Citizens, or Subjects ............................................................................ 774

Suits by Foreign States ................................................................................ 774

Indian Tribes ................................................................................................. 775

Narrow Construction of the Jurisdiction .................................................... 776

Clause 2. Original and Appellate Jurisdiction; Exceptions and Regulations of Appellate Jurisdiction .............................................................................................................. 776

The Original Jurisdiction of the Supreme Court ...................................................... 776

Power of Congress to Control the Federal Courts .................................................... 779

The Theory of Plenary Congressional Control ................................................... 779

Appellate Jurisdiction ................................................................................... 780

Jurisdiction of the Inferior Federal Courts ................................................. 782

Congressional Control Over Writs and Processes ...................................... 785

The Theory Reconsidered .................................................................................... 786
596 ART. III—JUDICIAL DEPARTMENT

Section 2. Judicial Power and Jurisdiction—Continued

Clause 2. Original and Appellate Jurisdiction; Exceptions and Regulations of Appellate Jurisdiction—Continued

Express Constitutional Restrictions on Congress ...................................... 791

Conclusion ..................................................................................................... 792

Federal-State Court Relations .................................................................................... 792

Problems Raised by Concurrency ....................................................................... 792

The Autonomy of State Courts ............................................................................ 794

Noncompliance With and Disobedience of Supreme Court’s Orders by

State Courts ............................................................................................... 794

Use of State Courts in Enforcement of Federal Law ................................. 795

State Interference with Federal Jurisdiction ............................................. 797

Conflicts of Jurisdiction: Rules of Accommodation ............................................ 798

Comity ............................................................................................................ 798

Abstention ...................................................................................................... 798

Exhaustion of State Remedies ..................................................................... 800

Anti-Injunction Statute ................................................................................ 801

Res Judicata .................................................................................................. 802

Three-Judge Court Act ................................................................................. 803

Conflicts of Jurisdiction: Federal Court Interference with State Courts ........ 803

Federal Restraint of State Courts by Injunctions ...................................... 804

Habeas Corpus .............................................................................................. 809

Removal ......................................................................................................... 819

Clause 3. Trial by Jury ...................................................................................................... 821

Section 3. Treason ..................................................................................................................... 821

Clause 1. Definition and Limitations ................................................................................ 821

Treason ......................................................................................................................... 821

Levying War ......................................................................................................... 822

The Burr Trial ............................................................................................... 823

Aid and Comfort to the Enemy ........................................................................... 824

The Cramer Case .......................................................................................... 824

The Haupt Case ............................................................................................ 824

The Kawakita Case ....................................................................................... 826

Doubtful State of the Law of Treason Today ..................................................... 827

Clause 2. Punishment ........................................................................................................ 827

Corruption of the Blood and Forfeiture ..................................................................... 827
597

1M. FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES

(New Haven: 1913), 79. 2The 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 (New York: 1971), ch. 5. 3 1 M. FARRAND, op. cit., n. 1, 21–22. That this version might not possibly be

an accurate copy, see 3 id., 593–594. 4 1 id., 95, 104.

5 Id., 95, 105. The words ‘‘One or more’’ were deleted the following day without

recorded debate. Id., 116, 119. 6 Id., 124–125.

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, and the provision for inferior tribunals 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
598 ART. III—JUDICIAL DEPARTMENT

Sec. 1—Judicial Power, Courts, Judges

7Madison’s notes use the word ‘‘institute’’ in place of ‘‘appoint’’, id., 125, but the

latter appears in the Convention Journal, id., 118, and in Yates’ notes, id., 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., 38, 45. 8On 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., 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., 186. Its draft also authorized Congress ‘‘[t]o

constitute tribunals inferior to the Supreme Court.’’ Id., 182. No debate is recorded

when the Convention approved these two clauses, Id. 315, 422–423, 428–430. 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., 600. 9The provision was in the Virginia Plan and was approved throughout, 1 id.,

21. 10 Id, 121; 2 id., 44–45, 429–430. 11 Article I, § 3. 12 Act of September 24, 1789, 1 Stat. 73. The authoritative works on the Act and

its working and amendments are F. FRANKFURTER & J. LANDIS, THE BUSINESS OF

THE SUPREME COURT (New York: 1928); Warren, New Light on the History of the

Federal Judicial Act of 1789, 37 Harv. L. Rev. 49 (1923); see also J. GOEBEL, op.

cit., n. 2, ch. 11. 13 Act of September 24, 1789, 1 Stat. 73, § 1. 14 12 Stat. 794, § 1.

Wilson and Madison thereupon moved to authorize Congress ‘‘to

appoint inferior tribunals,’’ 7 which carried the implication that

Congress could in its discretion either designate the state courts to

hear federal cases or create federal courts. The word ‘‘appoint’’ was

adopted and over the course of the Convention changed into phrasing that suggests something of an obligation on Congress to establish inferior federal courts. 8 The ‘‘good behavior’’ clause excited no

controversy, 9 while the only substantial dispute with regard to denying Congress the power to intimidate judges through actual or

threatened reduction of salaries came on Madison’s motion to bar

increases as well as decreases. 10

One Supreme Court

The Convention left up to Congress decision on the size and

composition of the Supreme Court, the time and place for sitting,

its internal organization, save for the reference to the Chief Justice

in the impeachment provision, 11 and other matters. These details

Congress filled up in the Judiciary Act of 1789, one of the seminal

statutes of the United States. 12 By the Act, the Court was made

to consist of a Chief Justice and five Associate Justices. 13 The

number was gradually increased until it reached a total of ten

under the act of March 3, 1863. 14 As one of the Reconstruction

Congress’ restrictions on President Andrew Johnson, the number
ART. III—JUDICIAL DEPARTMENT 599

Sec. 1—Judicial Power, Courts, Judges

15 Act of July 23, 1866, 14 Stat. 209, § 1. 16 Act of April 10, 1869, 16 Stat. 44. 17 Hearings before the Senate Judiciary Committee on S. 1392, Reorganization

of the Judiciary, 75th Congress, 1st sess. (1937), pt. 3, 491. For earlier proposals

to have the Court sit in divisions, see F. FRANKFURTER & J. LANDIS, op. cit., n. 12,

74–85. 18 1 C. WARREN, THE SUPREME COURT IN UNITED STATES HISTORY (Boston: rev.

ed. 1926), 222–224. 19 Act of September 24, 1789, 1 Stat. 73, §§ 2–3. 20 Id., 74, §§ 4–5 21 Cf. F. FRANKFURTER & J. LANDIS, op. cit., n. 12, chs. 1–3: J. GOEBEL. op. cit.,

n. 2, 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., (Washington: 1943), 31, Chief Justice Jay prepared a letter for

the approval of the other Justices, declining to comment on the policy questions but

raising several issues of constitutionality, that the same man should not be appointed to two offices, that the offices were incompatible, and that the act invaded

the prerogatives of the President and Senate. 2 G. MCREE, LIFE AND CORRESPONDENCE OF JAMES IREDELL (New York: 1858), 293–296. The letter was apparently

never forwarded to the President. WRITINGS OF WASHINGTON, op. cit., 31–32 n. 58.

When the constitutional issue was raised in Stuart v. Laird, 1 Cr. (5 U.S.) 299, 309

(1803), it was passed over with the observation that the practice was too established

to be questioned.

was reduced to seven as vacancies should occur. 15 The number actually never fell below eight before the end of Johnson’s term, and

Congress thereupon made the number nine. 16

Proposals have been made at various times for an organization

of the Court into sections or divisions. No authoritative judicial expression is available, although Chief Justice Hughes in a letter to

Senator Wheeler 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.’’ 17

Congress has also determined the time and place of sessions of

the Court. It utilized this power once in 1801 to change its terms

so that for fourteen months the Court did not convene, so as to

forestall a constitutional attack on the repeal of the Judiciary Act

of 1801. 18

Inferior Courts

Congress also acted in the Judiciary Act of 1789 to create inferior courts. Thirteen district courts were constituted to have four

sessions annually, 19 and three circuit courts were established to

consist jointly of two Supreme Court justices each and one of the

district judges of such districts which were to meet twice annually

in the various districts comprising the circuit. 20 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. 21 Despite numerous ef-
600 ART. III—JUDICIAL DEPARTMENT

Sec. 1—Judicial Power, Courts, Judges

22 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. 23 Act of February 13, 1801, 2 Stat. 89. 24 Act of March 8, 1802, 2 Stat. 132. F. FRANKFURTER & J. LANDIS, op. cit., n.

12, 25–32; 1 C. WARREN, op. cit., n. 18, 185–215. 25This was the theory of John Taylor of Caroline, upon whom the Jeffersonians

in Congress relied. W. CARPENTER, JUDICIAL TENURE IN THE UNITED STATES (New

Haven: 1918), 63–64. The controversy is recounted fully in id., 58–78. 26 1 Cr. (5 U.S.) 299 (1803). 27The 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 F. FRANKFURTER &

J. LANDIS, op. cit., n. 12, 153–174; W. CARPENTER, op. cit., n. 25, 78–94.

forts to change this system, it persisted, except for one brief period,

until 1891. 22 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, 23 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.

Adams filled the positions with deserving Federalists, and upon

coming to power the Jeffersonians set in motion plans to repeal the

Act, which were carried out. 24 No provision was made for the displaced judges, apparently under the theory that if there were no

courts there could be no judges to sit on them. 25 The validity of

the repeal was questioned in Stuart v. Laird, 26 where Justice

Paterson scarcely noticed the argument in rejecting it.

Not until 1913 did Congress again utilize its power to abolish

a federal court, this time the unfortunate Commerce Court, which

had disappointed the expectations of most of its friends. 27 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 de-
ART. III—JUDICIAL DEPARTMENT 601

Sec. 1—Judicial Power, Courts, Judges

28 United States v. Will, 449 U.S. 200, 217–218 (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.’’ 29 United States v. Will, 449 U.S. 200, 224–230 (1980). In one year, the increase

took effect of October 1, while the President signed the bill reducing the amount

during the day of October 1. The Court held 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., 226. 30O’Donoghue v. United States, 289 U.S. 516 (1933). 31Williams v. United States, 289 U.S. 553 (1933). But see Glidden Company v.

Zdanok, 370 U.S. 530 (1962). 32 253 U.S. 245 (1920). 33 268 U.S. 501 (1925). 34 307 U.S. 277 (1939).

cided by judges who are free from potential domination by other

branches of government.’’ 28 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 decision 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. 29

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.

While this provision presented no questions of its own constitutionality, it did require an interpretation of which judges the clause

applied to in order to prevent the reductions. Judges in the District

of Columbia were held protected by Article III, 30 while, on the

other hand, salaries of the judges of the Court of Claims, that being

a legislative court, were held subject to the reduction. 31

In Evans v. Gore, 32 the Court invalidated the application of

the income tax law to a federal judge, over the strong dissent of

Justice Holmes, who was joined by Justice Brandeis. This ruling

was extended, in Miles v. Graham, 33 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, 34

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
602 ART. III—JUDICIAL DEPARTMENT

Sec. 1—Judicial Power, Courts, Judges

35 Id., 278–282. 36 Id., 282. 37 36 Stat. 539. 38 56 Stat. 23, §§ 31–33.

judges nor as an encroachment on the independence of the judiciary. 35 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.’’ 36

Courts of Specialized Jurisdiction

By virtue of its power ‘‘to ordain and establish’’ courts, Congress has occasionally created courts under Article III to exercise

a specialized jurisdiction. These tribunals are like other Article III

courts in that they exercise ‘‘the judicial power of the United

States,’’ and only that power, that their judges must be appointed

by the President and the Senate and must hold office during good

behavior subject to removal by impeachment only, and that the

compensation of their judges cannot be diminished during their

continuance in office. One example of such courts was the Commerce Court created by the Mann-Elkins Act of 1910, 37 which was

given exclusive jurisdiction of all cases to enforce orders of the

Interstate Commerce Commission except those involving money

penalties and criminal punishment, of cases brought to enjoin,

annul, or set aside orders of the Commission, of cases brought

under the act of 1903 to prevent unjust discriminations, and of all

mandamus proceedings authorized by the act of 1903. This court

actually functioned for less than three years, being abolished in

1913, as was mentioned above.

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. 38 By the

terms of the statute, this court consisted of three or more judges

designated by the Chief Justice from the judges of the Untied

States district courts and circuit courts of appeal. The Court was

vested with jurisdiction and powers of a district court to hear appeals filed within thirty days against denials of protests by the

Price Administrator and with exclusive jurisdiction to set aside regulations, orders, or price schedules, in whole or in part, or to remand the proceeding, but the court was tightly constrained in its

treatment of regulations. There was interplay with the district
ART. III—JUDICIAL DEPARTMENT 603

Sec. 1—Judicial Power, Courts, Judges

39 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 utilized in the enforcement of the economic

controls imposed by President Nixon in 1971. P.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, P.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 P. L. 102–572, 106 Stat. 4506.

Another similar specialized court was created by § 209 of the Regional Rail Reorganization Act, P. 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). 40 By the Federal Courts Improvement Act of 1982, P. 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. 41 Act of Oct. 10, 1980, 94 Stat. 1727. 42 28 U.S.C. § 1407. 43P. L. 95–511,92 Stat. 1788, 50 U.S.C. § 1803. 44 Ethics in Government Act, Title VI, P. 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, 670–685 (1988).

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. 39

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

Created in 1982, 40 this court has exclusive jurisdiction to hear appeals from the United States Court of Federal Claims, from the

Federal Merit System Protection Board, the Court of International

Trade, the Patent Office in patent and trademark cases, and in

various contract and tort cases. The Court of International Trade,

which began life as the Board of General Appraisers, became the

United States Customs Court in 1926, and was declared an Article

III court in 1956, came to its present form and name in 1980. 41

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. 42

To facilitate the gathering of foreign intelligence information,

through electronic surveillance, search and seizure, as well as other

means, Congress authorized in 1978 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. 43

Even greater specialization is provided by the special court created by the Ethics in Government Act; 44 the court is charged, upon
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45 In Freytag v. CIR, 501 U.S. 868 (1991), a controverted decision held Article

I courts to be ‘‘Courts of Law’’ for purposes of the appointments clause. Art. II, § 2,

cl. 2. See id., 888–892 (majority opinion), and 901–914 (Justice Scalia dissenting). 46 1 Pet. (26 U.S.) 511 (1828). 47 Id., 546. 48 In Glidden Co. v. Zdanok, 370 U.S. 530, 544–545 (1962), Justice Harlan asserted that Chief Justice Marshall in the Canter case ‘‘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. . . .’’ 49 Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 106

(1982) (Justice White dissenting).

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 has certain supervisory powers

over the independent counsel.

Legislative Courts: The Canter Case

Legislative courts, so-called because they are created by Congress in pursuance of its general legislative powers, have comprised

a significant part of the federal judiciary. 45 The distinction between constitutional courts and legislative courts was first made in

American Ins. Co. v. Canter, 46 which involved the question of the

admiralty jurisdiction of the territorial court of Florida, the judges

of which were limited to a four-year term in office. Said Chief Justice Marshall for the Court: ‘‘These courts, then, are not constitutional courts, in which the judicial power conferred by the Constitution on the general government, can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of

the general right of sovereignty which exists in the government, or

in virtue of that clause which enables Congress to make all needful

rules and regulations, respecting the territory belonging to the

United States. The jurisdiction with which they are invested, is not

a part of that judicial power which is defined in the 3rd article of

the Constitution, but is conferred by Congress, in the execution of

those general powers which that body possesses over the territories

of the United States.’’ 47 The Court went on to hold that admiralty

jurisdiction can be exercised in the States only in those courts

which are established in pursuance of Article III but that the same

limitation does not apply to the territorial courts, for in legislating

for them ‘‘Congress exercises the combined powers of the general,

and of a state government.’’ 48

Canter postulated a simple proposition: ‘‘Constitutional courts

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

legislative courts do not and cannot.’’ 49 A two-fold difficulty at-
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50That the Supreme Court could review the judgments of territorial courts was

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

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

(80 U.S.) 434 (1872); Balzac v. Porto Rico, 258 U.S. 298, 312–313 (1922). 51 Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 90, 91

(1982) (Justice Rehnquist concurring). The ‘‘darkling plain’’ language is his attribution to Justice White’s historical summary. 52 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, n. 105,

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 recently given the Supreme Court certiorari jurisdiction over its decisions.

53McAllister v. United States, 141 U.S. 174 (1891).

tended 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? 50 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

nonprotected 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 from Canter to the present resulted 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’’. 51 Nonetheless, Article I courts are quite usual entities in our judicial system. 52

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, and it may subject the judges of legislative courts to removal by the President, 53 or it may reduce their
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54 United States v. Fisher, 109 U.S. 143 (1883); Williams v. United States, 289

U.S. 553 (1933). 55 2 Wall. (69 U.S.) 561 (1864). 56 13 How. (54 U.S.) 40 (1852). 57 Id., 48. 58The opinion in Gordon v. United States, 2 Wall. (69 U.S.) 561 (1864), had

originally been prepared by Chief Justice Taney, but following his death and

reargument of the case the opinion cited was issued. 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. 59 5 Wall. (72 U.S.) 419 (1867). See also United States v. Jones, 119 U.S. 477

(1886). 60 E.g., Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927); Federal Radio Comm. 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).

salaries during their terms. 54 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, 55 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, 56 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,’’ it was said, ‘‘may constitutionally be conferred on a Secretary as well as on a commissioner. But [it] is not judicial in either case, in the sense in which

judicial power is granted by the Constitution to the courts of the

United States.’’ 57

Review of Legislative Courts by Supreme Court.—Chief

Justice Taney’s view, that would have been expressed in Gordon, 58

that the judgments of legislative courts could never be reviewed by

the Supreme Court, was tacitly rejected in DeGroot v. United

States, 59 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. 60 But in proceedings before a legislative court which are

judicial in nature, admit of a final judgment, and involve the per-
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61Pope v. United States, 323 U.S. 1, 14 (1944); D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). 62 18 How. (59 U.S.) 272 (1856). 63 Id., 284. 64 Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929). 65Gordon v. United States, 117 U.S. 697 (1864); 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). 66 United States v. Coe, 155 U.S. 76 (1894) (Court of Private Land Claims). 67Wallace v. Adams. 204 U.S. 415 (1907); Stephens v. Cherokee Nation, 174

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

formance of judicial functions and therefore the exercise of judicial

power, the Court may be vested with appellate jurisdiction. 61

The ‘‘Public Rights’’ Distinction.—A major delineation of

the distinction between Article I courts and Article III courts was

attempted in Murray’s Lessee v. Hoboken Land & Improvement

Co. 62 In this case was challenged 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 customs collectors. It was objected that the assessment and collection was a judicial act carried

out by nonjudicial officers and 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 which 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.’’ 63 The distinction was between those acts which historically had been determined by courts and those which historically had been resolved by

executive or legislative acts and comprehended those 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.’’ 64

Among the matters susceptible of judicial determination, but

not requiring it, are claims against the United States, 65 the disposal of public lands and claims arising therefrom, 66 questions concerning membership in the Indian tribes, 67 and questions arising

out of the administration of the customs and internal revenue
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68Old Colony Trust Co. v. CIR, 279 U.S. 716 (1929); Ex Parte Bakelite Corp.,

279 U.S. 438 (1929). 69See 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, 20 How. (61 U.S.) 65, 79 (1857). 70 285 U.S. 22 (1932). 71 Id. 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). 72 Id., 51–65. 73 Id., 50, 51, 58–63. Thus, Article III concerns were satisfied by a review of the

agency fact finding upon the administrative record. Id., 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., 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., 76–87. 74 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 67–

70 (1982) (plurality opinion). Thus, Justice Brennan states that at a minimum a

matter of public right must 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 to distinguish ‘‘private rights.’’ Id., 69 & n. 23. Crowell v.

Benson, however, remained an embarrassing presence.

laws. 68 Other courts similar to territorial courts, such as consular

courts and military courts martial, may be justified on like

grounds. 69

The ‘‘public rights’’ distinction appears today to be a description without a significant distinction. Thus, in Crowell v. Benson, 70

the Court approved an administrative scheme for determination,

subject to judicial review, of 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.’’ 71 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 of legal and constitutional questions, as long as

there is adequate review in a constitutional court. 72 The ‘‘essential

attributes’’ of decision must remain in an Article III court, but so

long as it does, Congress may utilize administrative

decisionmakers in those private rights cases that arise in the context of a comprehensive federal statutory scheme. 73 That the ‘‘public rights’’ distinction marked a dividing line between those matters

that could be assigned to legislative courts and to administrative

agencies and those matters ‘‘of private right’’ that could not be was

reasserted in Marathon, but there was much the Court plurality

did not explain. 74

The Court continued to waver with respect to the importance

to decision-making of the public rights/private rights distinction. In
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75Thomas 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, supra, 586; and see id., 596–599 (Justice Brennan concurring). 76 ‘‘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, supra,

458 U.S., 68 (plurality opinion)). 77Granfinanciera, S.A. v. Nordberg, 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 answered by the same analysis. Id., 52–53. 78 Id., 52–54. The Court reiterated that the Government need not be a party as

a prerequisite to a matter being of ‘‘public right.’’ Id., 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, 65.

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. 75 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 ‘‘searching’’ inquiry as to whether Congress is encroaching inordinately on judicial functions, while the

concern is not so great where ‘‘public’’ rights are involved. 76

However, in a subsequent case, 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. 77 In so 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 so

closely integrates it into a public regulatory scheme that it becomes

a matter appropriate for agency resolution with limited involvement by the Article III judiciary. 78 Nonetheless, despite its fixing

by Congress as a ‘‘core proceeding’’ suitable for an Article I bankruptcy court adjudication, the Court held the particular cause of ac-
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79 Id., 55–64. The Court reserved the question whether, a jury trial being required, a non-Article III bankruptcy judge could oversee such a jury trial. Id., 64.

That question remains unresolved, both as a matter, first, of whether there is statutory authorization for bankruptcy judges to conduct jury trials, and, second, if there

is, whether they may constitutionally do so. E.g., In re Ben Cooper, Inc., 896 F.2d

1394 (2d Cir. 1990), cert. granted, 497 U.S. 1023, vacated and remanded for consideration of a jurisdictional issue, 498 U.S. 964 (1990), reinstated, 924 F.2d 36 (2d

Cir.), cert. den., 500 U.S. 928 (1991); In re Grabill Corp., 967 F.2d 1152 (7th Cir.

1991), pet. for reh. en banc den., 976 F.2d 1126 (7th Cir. 1992). 80De Groot v. United States, 5 Wall. (72 U.S.) 419 (1866); United States v.

Union Pacific Co., 98 U.S. 569, 603 (1878); Miles v. Graham, 268 U.S. 501 (1925). 81Williams v. United States, 289 U.S. 553 (1933); cf. Ex Parte Bakelite Corp.,

279 U.S. 438, 450–455 (1929). 82 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). 83 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.’’ 84 370 U.S. 530 (1962). 85Glidden Co. v. Zdanok, 370 U.S. 530, 531 (1962) (Justices Harlan, Brennan,

and Stewart).

tion at issue was a private issue as to which the parties were entitled to a civil jury trial (and necessarily which Congress could not

commit to an Article I tribunal, save perhaps through the consent

of the parties). 79

Constitutional Status of the Court of Claims and the

Courts of Customs and Patent Appeals.—Though the Supreme

Court for a long while accepted the Court of Claims as an Article

III court, 80 it later ruled that court to be an Article I court and its

judges without constitutional protection of tenure and salary. 81

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, 82 a questionable act under the

standards the Court had utilized to determine whether courts were

legislative or constitutional. 83 But in Glidden Co. v. Zdanok, 84 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. 85 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
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86 Id., 548, 552. 87 Id., 585 (Justice Clark and Chief Justice Warren concurring); 589 (Justices

Douglas and Black dissenting). 88 Id., 585 (Justice Clark and Chief Justice Warren). 89 Id., 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., 583. 90 Aside from doctrinal matters, in 1982, Congress 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. 91 112 U.S. 50 (1884). 92Keller v. Potomac Elec. Co., 261 U.S. 428 (1923). 93Federal Radio Comm. v. General Elec. Co., 281 U.S. 464 (1930). 94 279 U.S. 438, 450–455 (1929).

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. 86 The other four Justices expressly declared that Bakelite

and Williams should not be overruled, 87 but two of them thought

the two courts had attained constitutional status by virtue of the

clear manifestation of congressional intent expressed in the legislation. 88 Two Justices maintained that both courts remained legislative tribunals. 89 While the result is clear, no standard for pronouncing a court legislative rather than constitutional has obtained

the adherence of a majority of the Court. 90

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, 91

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. 92 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. 93 These rulings were

based on the assumption, express or implied, that the courts of the

District were legislative courts, created by Congress in pursuance

of its plenary power to govern the District of Columbia. In dictum

in Ex parte Bakelite Corp., 94 while reviewing the history and ana-
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95O’Donoghue v. United States, 289 U.S. 516 (1933). 96 Id., 535–546. Chief Justice Hughes in dissent argued that Congress’ power

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

derive at all from Article III. Id., 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.C.D.C. 1967) (three-judge court). 97P.L. 91–358, 84 Stat. 475, D.C. Code § 11–101. 98 411 U.S. 389 (1973)

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

courts of the District were legislative courts.

In 1933, nevertheless, the Court, abandoning all previous dicta

on the subject, found the courts of the District of Columbia to be

constitutional courts exercising judicial power of the United

States, 95 with the result that it assumed the task of reconciling the

performance of nonjudicial functions by such courts with the rule

that constitutional courts can exercise only the judicial power of

the United States. This task was accomplished by the argument

that in establishing courts for the District, Congress is performing

dual functions in pursuance of two distinct powers, the power to

constitute tribunals inferior to the Supreme Court, and its plenary

and exclusive power to legislate for the District of Columbia. However, Article III, § 1, limits this latter power with respect to tenure

and compensation, but not with regard to vesting legislative and

administrative powers in such courts. Subject to the guarantees of

personal liberty in the Constitution, ‘‘Congress has as much power

to vest courts of the District with a variety of jurisdiction and powers as a State legislature has in conferring jurisdiction on its

courts.’’ 96

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

District, federal courts, district courts and a Court of Appeals for

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

equivalent to state and territorial courts, created pursuant to Article I. 97 Congress’ action was sustained in Palmore v. United

States. 98 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 Article III, which are

applicable where laws of national applicability and affairs of na-
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99 Id., 407–408. 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 postjudgment relief by 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’ discretion is asserted

in dictum in Territory of Guam v. Olsen, 431 U.S. 195, 201–202, 204 (1977). 100 Bankruptcy Act of 1978, P.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 Const. Co. v. Marathon Pipe Line

Co., 458 U.S. 50, 61 n. 12 (1982) (plurality opinion). 101The statement of the holding is that of the two concurring Justices, id., 89

(Justices Rehnquist and O’Connor), with which the plurality agreed ‘‘at the least,’’

while desiring to go further. Id., 87 n. 40.

tional 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.’’ 99

Bankruptcy Courts.—After extended and lengthy debate,

Congress in 1978 revised the bankruptcy act and created as an ‘‘adjunct’’ of the district courts a bankruptcy court 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. 100 The bankruptcy courts were given jurisdiction over all

civil proceedings arising under the bankruptcy code or arising in or

related to bankruptcy cases, with review in Article III courts under

a clearly erroneous standard. In a case in which a claim was made

against a company for breaches of contract and warranty, purely

state law claims, the Court held unconstitutional the conferral

upon judges not having the Article III security of tenure and compensation of jurisdiction to hear state law claims of traditional

common law actions of the kind existing at the time of the drafting

of the Constitution. 101 While 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, as a fundamental principle of separation of powers, the judicial power of

the United States must 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
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102 Id., 63–76 (Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens). 103The 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 factfinding functions subject to review in Article III

courts, the fount of the administrative agency system. Northern Pipeline Const. 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. 104 Id., 92, 105–113, 113–116 (Justice White, joined by Chief Justice Burger and

Justice Powell). 105 Ex parte Bakelite Corp., 279 U.S. 438 (1929), was, after all, a unanimous

opinion and did not long survive.

political branches extraordinary control over the precise subject

matter; and the adjudication 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. 102 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. 103

The dissent argued that, while on its face Article III provided

for exclusivity in assigning judicial power 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. 104

Again, 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. 105 But the

breadth of the various opinions left unclear not only the degree of

discretion left in Congress to restructure the bankruptcy courts,

but placed in issue the constitutionality of other legislative efforts
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106 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. P.L. 90–578, 82 Stat. 1108, as amended, 28

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

Weber, 423 U.S. 261 (1976). 107P. L. 98–353, 98 Stat. 333, judiciary provisions at 28 U.S.C. § 151 et seq. 108See 28 U.S.C. § 157. 109 492 U.S. 33 (1989). 110 Id. 111 473 U.S. 568 (1985). 112 478 U.S. 833 (1986).

to establish adjudicative systems outside a scheme involving the

creation of life-tenured judges. 106

Congress responded to Marathon by enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984. 107 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

bankruptcy courts could hear and determine, subject to lenient review, and other proceedings, which, though the bankruptcy courts

could initially hear and decide, any party could have de novo review in the district court, unless the parties 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. 108

Notice that in Granfinanciera, S.A. v. Nordberg, 109 the Court found

that a cause of action founded on state law, though denominated

a core proceeding, was a private right.

Agency Adjudication.—The Court in two decisions following

Marathon involving legislative courts clearly suggested that the

majority was now closer to the balancing approach of the Marathon

dissenters than to the position of the Marathon plurality that Congress may confer judicial power on legislative courts in only very

limited circumstances. Subsequently, however, Granfinanciera,

S.A. v. Nordberg, 110 a reversion to the fundamentality of Marathon, with an opinion by the same author, Justice Brennan, cast

some doubt on this proposition. In Thomas v. Union Carbide Agric.

Products Co., 111 the Court upheld a provision of the pesticide law

requiring binding arbitration, with limited judicial review, of compensation due one registrant by another for mandatory sharing of

registration information, the right arising from federal statutory

law. And in CFTC v. Schor, 112 the Court upheld conferral on the

agency of authority, in a reparations adjudication under the Act,

also to 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 pri-
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113 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. 114 Id., 473 U.S., 589. 115 CFTC v. Schor, supra, 478 U.S., 851 (summarizing the Thomas rule). 116Thomas, supra, 473 U.S., 591, 592(quoting Crowell v. Benson, 285 U.S. 22,

54 (1932)). 117 473 U.S., 594.

vate 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. 113 The right to compensation was not a purely private

right, but ‘‘bears many of the characteristics of a ‘public’ right,’’

since Congress was ‘‘authoriz[ing] an agency administering a complex regulatory scheme to allocate costs and benefits among voluntary participants in the program.’’ 114 Also important was not

‘‘unduly constrict[ing] Congress in its ability to take needed and innovative action pursuant to its Article I powers;’’ 115 arbitration

was ‘‘a pragmatic solution to [a] difficult problem.’’ The limited nature of judicial review was seen as a plus in the sense that ‘‘no unwilling defendant is subjected 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.’ ’’ 116 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.’’ 117

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
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118 Cf. Union Carbide, supra, 473 U.S., 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’’). 119Granfinanciera, supra, 492 U.S., 51–55, 55–60. 120 Id., 59 n. 14.

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, 118 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.’’

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 must be itself a

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

goes beyond this point. Though a statutory interest, the actions

were identical to state-law contract claims brought by a bankrupt

corporation to augment the estate. 119 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. 120

Thus, while 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 constitu-
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121Mistretta 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 could not cross over. Morrison v. Olson, 487 U.S. 654, 677–685

(1988). 122 Justice SAMUEL MILLER, ON THE CONSTITUTION (New York: 1891), 314. 123Muskrat v. United States, 219 U.S. 346, 361 (1911). 124 United States v. Arrendondo, 6 Pet. (31 U.S.) 691 (1832). 125General Investment Co. v. New York Central R. Co., 271 U.S. 228, 230

(1926). 126William v. United States, 289 U.S. 553, 566 (1933) ; Yakus v. United States,

321 U.S. 414, 467–468 (1944) (Justice Rutledge dissenting). 127Michaelson v. United States, 266 U.S. 42 (1924).

tionality, 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 to a weakening of the

judiciary, or an aggrandizement of power either, in any meaningful

way, the Court observed. 121

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.’’ 122 It is ‘‘the right to determine actual controversies arising between diverse litigants, duly

instituted in courts of proper jurisdiction.’’ 123 Although the terms

‘‘judicial power’’ and ‘‘jurisdiction’’ are frequently used interchangeably and jurisdiction is defined as the power to hear and determine

the subject matter in controversy between parties to a suit 124 or

as the ‘‘power to entertain the suit, consider the merits and render

a binding decision thereon,’’ 125 the cases and commentary support,

indeed require, a distinction between the two concepts. Jurisdiction

is the authority of a court to exercise judicial power in a specific

case and is, of course, a prerequisite to the exercise of judicial

power, which is the totality of powers a court exercises when it assumes jurisdiction and hears and decides a case. 126 Included within the general power to decide cases are the ancillary powers of

courts to punish for contempts of their authority, 127 to issue writs
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128McIntire v. Wood, 7 Cr. (11 U.S.) 504 (1813); Ex parte Bollman, 4 Cr. (8

U.S.) 75 (1807). 129Wayman v. Southard, 10 Wheat. (23 U.S.) 1 (1825). 130Gumble v. Pitkin, 124 U.S. 131 (1888). 131 Ex parte Peterson, 253 U.S. 300 (1920). 132 Ex parte Garland, 4 Wall. (71 U.S. ) 333, 378 (1867). 133Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304, 328–331 (1816). See also

3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (Boston:

1833), 1584–1590. 134See, e.g., Turner v. Bank of North America, 4 Dall. (4 U.S.) 8, 10 (1799) (Justice Chase). A recent, sophisticated attempt to resurrect the core of Justice Story’s

argument is Amar, A Neo-Federalist View of Article III: Separating the Two Tiers

of Federal Jurisdiction, 65 B. U. L. Rev. 205 (1985); and see Symposium: Article III

and the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990) (with articles by

Amar, Meltzer, and Redish). Briefly, the matter is discussed more fully infra, Professor Amar argues, in part, from the text of Article III, § 2, cl. 1, that the use of

the word ‘‘all’’ in each of federal question, admiralty, and public ambassador

subclauses means that Congress must confer the entire judicial power to cases involving those issues, whereas it has more discretion in the other six categories. 135Which was, of course, the point of Marbury v. Madison, 1 Cr. (5 U.S.) 137

(1803), once the power of the Court to hold legislation unconstitutional was established. 136The Mayor v. Cooper, 6 Wall. (73 U.S.) 247, 252 (1868); Cary v. Curtis, 3

How. (44 U.S.) 236 (1845); Sheldon v. Sill, 8 How. (49 U.S.) 441 (1850); United

States v. Hudson & Goodwin, 7 Cr. (11 U.S.) 32, 33 (1812); Kline v. Burke Construction Co., 260 U.S. 226 (1922). It should be noted, however, that some judges have

expressed the opinion that Congress’ authority is limited to some degree by the Constitution, such as by the due process clause, so that a limitation on jurisdiction

which denied a litigant access to any remedy might be unconstitutional. Cf.

Eisentrager v. Forrestal, 174 F. 2d 961, 965–966 (D.C.Cir. 1949), revd. on other

grounds sub nom, Johnson v. Eisentrager, 339 U.S. 763 (1950); Battaglia v. General

in aid of jurisdiction when authorized by statute, 128 to make rules

governing their process in the absence of statutory authorizations

or prohibitions, 129 to order their own process so as to prevent

abuse, oppression, and injustice and to protect their own jurisdiction and officers in the protection of property in custody of law, 130

to appoint masters in chancery, referees, auditors, and other investigators, 131 and to admit and disbar attorneys. 132

‘‘Shall Be Vested.’’—The distinction between judicial power

and jurisdiction is especially pertinent to the meaning of the words

‘‘shall be vested’’ in § 1. Whereas all the judicial power of the United States is vested in the Supreme Court and the inferior federal

courts created by Congress, neither has ever been vested with all

the jurisdiction which could be granted and, Justice Story to the

contrary, 133 the Constitution has not been read to mandate Congress to confer the entire jurisdiction it might. 134 Thus, except for

the original jurisdiction of the Supreme Court, which flows directly

from the Constitution, two prerequisites to jurisdiction must be

present: first, the Constitution must have given the courts the capacity to receive it, 135 and, second, an act of Congress must have

conferred it. 136 The fact that federal courts are of limited jurisdic-
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Motors Corp., 169 F.2d 254, 257 (2d Cir.), cert. den., 335 U.S. 887 (1948); Petersen

v. Clark, 285 F. Supp. 700. 703 n. 5 (D.N.D. Calif. 1968); Murray v. Vaughn, 300

F. Supp. 688. 694–695 (D.R.I. 1969). The Supreme Court has had no occasion to consider the question. 137Turner v. Bank of North America, 4 Dall. (4 U.S.) 8 (1799); Bingham v.

Cabot, 3 Dall. (3 U.S.) 382 (1798); Jackson v. Ashton, 8 Pet. (33 U.S.) 148 (1834);

Mitchell v. Maurer, 293 U.S. 237 (1934). 138 Act of March 23, 1792, 1 Stat. 243. 139 1 AMERICAN STATE PAPERS: MISCELLANEOUS DOCUMENTS, LEGISLATIVE AND

EXECUTIVE, OF THE CONGRESS OF THE UNITED STATES (Washington : 1832), 49, 51,

52. President Washington transmitted the remonstrances to Congress. 1 J. RICHARDSON, (comp.), MESSAGES AND PAPERS OF THE PRESIDENTS (Washington : 1897), 123,

133. The objections are also appended to the order of the Court in Hayburn’s Case,

2 Dall. (2 U.S.) 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, 13 How. (54 U.S.) 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). 140 Hayburn’s Case, 2 Dall. (2 U.S.) 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

tion means that litigants in them must affirmatively establish that

jurisdiction exists and may not confer nonexistent jurisdiction by

consent or conduct. 137

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

their opinion with regard to the proper percentage of monthly pay

to be awarded, and empowered the Secretary to withhold judicially

certified claimants from the pension list if he suspected ‘‘imposition

or mistake.’’ 138 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 a separate department and the duties imposed by the act were not judicial and because 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. 139 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, and upon enactment of a new law the

Court dismissed the action. 140
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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. 141See United States v. Ferreira, 13 How. (54 U.S.) 40 (1852); Gordon v. United

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

v. Kritensen, 340 U.S. 162, 167–168 (1950). 142 Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113–114

(1948). 143 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 Board 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. 144The opinion was published in 117 U.S. 697. See infra, n. 58, and text. See

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

in United States v. Ferreira, 13 How. (54 U.S.) 40 (1852). 145 2 Wall. (69 U.S.) 561 (1865).

Hayburn’s Case has been since followed, so that the Court has

rejected all efforts to give it and the lower federal courts jurisdiction over cases in which judgment would have been subject to executive or legislative revision. 141 Thus, in a 1948 case, the Court

held that an order of the Civil Aeronautics Board denying to one

citizen air carrier and granting to another a certificate of convenience and necessity for an overseas and foreign air route was not

reviewable. Such an order was subject to review and confirmance

or revision by the President, and the Court decided it could not review the discretion exercised by him in that situation; the lower

court had thought the matter could be handled by permitting presidential review of the order after judicial review, but this the Court

rejected. ‘‘[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,’’ 142 More recently, the Court avoided a

similar situation by a close construction of a statute. 143

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. 144 In Gordon v. United States, 145 the

Court refused to hear an appeal from a decision of the Court of

Claims; the act establishing the Court of Claims provided for ap-
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146 Act of February 24, 1855, 10 Stat. 612, as amended, Act of March 3, 1963,

12 Stat. 737. 147Gordon v. United States, 2 Wall. (69 U.S.) 561 (1865). Following congressional 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, 5 Wall. (72 U.S.) 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). 148Published at 117 U.S. 697, 703. 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). 149Liberty Warehouse Co. v. Grannis, 273 U.S. 70 (1927). 150Liberty Warehouse Co. v. Burley Tobacco Growers’ Coop. Marketing Assn.,

276 U.S. 71 (1928).

peals 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 by the Secretary of the Treasury.’’ 146 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 from the exercise of which ‘‘alone’’ appeals could be

taken to the Supreme Court. 147

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 proceeded to enunciate a rule which was

rigorously applied until 1933: the award of execution is a part and

an essential part of every judgment passed by a court exercising judicial powers and no decision was a legal judgment without an

award of execution. 148 The rule was most significant in barring the

lower federal courts from hearing proceedings for declaratory judgments 149 and in denying appellate jurisdiction in the Supreme

Court from declaratory proceedings in state courts. 150
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151Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123, 132 (1927). 152 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). 153 E.g., United States v. United Mine Workers, 330 U.S. 258 (1947). 154Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441–443 (1911); Ex

parte Grossman, 267 U.S. 87 (1925). See also Bassette v. W. B. Conkey Co., 194

U.S. 324, 327–328 (1904). 155 384 U.S. 364 (1966).

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.’’ 151 Then, in 1933, the Court interred the award-of-execution rule in its rigid form and accepted an appeal from a state court

in a declaratory proceeding. 152 Finality of judgment, however, remains the rule in determination of what is judicial power without

regard to the demise of Chief Justice Taney’s formulation.

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, 153 the Court has consistently distinguished between

criminal and civil contempts on the basis of the vindication of the

authority of the courts on the one hand and the preservation and

enforcement of the rights of the parties on the other. A civil contempt 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. 154 In the case of Shillitani v. United States, 155 the defendants were sentenced by their respective District Courts for two

years imprisonment for contempt of court; the sentence contained

a purge clause providing for the unconditional release of the

contemnors upon agreeing to testify before a grand jury.
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156 Id., 370. 157 Id., 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). 158 267 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, Michalson 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). 159See United States v. United Mine Workers, 330 U.S. 258, 299 (1947). 160 Act of March 2, 1831, ch. 99, § 1, 4 Stat. 488. Cf. Rule 42(a), FRCrP, which

provides that ‘‘[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). 161See Fox, The Nature of Contempt of Court, 37 L.Q. Rev. 191 (1921).

Upon 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. 156 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

deterrence.’’ 157 The issue of whether a certain contempt is either

civil or criminal can be of great importance as demonstrated in the

dictum of Ex parte Grossman, 158 in which Chief Justice Taft, while

holding for the Court on the main issue that the President may

pardon a criminal contempt, noted that he may not pardon a 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. 159

A second but more subtle distinction, with regard to the categories of contempt, is the difference between direct and indirect

contempt—albeit civil or criminal in nature. Direct contempt results when the contumacious act is committed ‘‘in the presence of

the Court or so near thereto as to obstruct the administration of

justice;’’ 160 indirect contempt is behavior which the Court did not

itself witness. 161 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 evidenced 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 multiply-
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162Many 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 of 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. 163Fox, The King v. Almon, 24 L.Q. Rev. 184, 194–195 (1908). 164Fox, The Summary Power to Punish Contempt, 25 L.Q. Rev. 238, 252 (1909). 165 1 Stat. 83 (1789). 166 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). 167 19 Wall. (86 U.S.) 505 (1874).

ing of the due process requirements that must otherwise be met

when finding an individual to be in contempt. 162

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. 163 By the latter part of the eighteenth century, summary power to punish was extended to all contempts whether committed in or out of court. 164 In the United States, the Judiciary Act

of 1789 in section 17 165 conferred power on all courts of the United

States ‘‘to punish by fine or imprisonment, at the discretion of said

courts, all contempts of authority in any cause or hearing before

the same.’’ The only limitation placed on this power was that summary attachment was made a negation of all other modes of punishment. The abuse of this extensive power led, following the unsuccessful impeachment of Judge James H. Peck of the Federal

District Court of Missouri, to the passage of the Act of 1831 limiting the power of the federal courts to punish contempts to misbehavior in the presence of the courts, ‘‘or so near thereto as to obstruct the administration of justice,’’ to the misbehavior of officers

of courts in their official capacity, and to disobedience or resistance

to any lawful writ, process or order of the court. 166

An Inherent Power.—The validity of the act of 1831 was sustained forty-three years later in Ex parte Robinson, 167 in which

Justice Field for the Court expounded principles full of

potentialities for conflict. He declared: ‘‘The power to punish for

contempts is inherent in all courts; its existence is essential to the

preservation of order in judicial proceedings, and to the enforce-
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168 Id., 505–511. 169Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911). See also In

re Debs, 158 U.S. 564, 595 (1895). 170 266 U.S. 42 (1924). 171 38 Stat. 730, 738 (1914). 172 266 U.S., 65–66. See, generally, 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). 173 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

ment 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.’’ 168 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. 169 In

Michaelson v. United States, 170 the Court intentionally placed a

narrow interpretation upon those sections of the Clayton Act 171 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 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. 172 This latter power, to enforce, the Court

has held, includes the authority to appoint private counsel to prosecute a criminal contempt. 173
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first to request the United States Attorney to prosecute a criminal contempt and

only if refused should they appoint a private lawyer. Id., 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., 802–808. 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., 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. 174 493 U.S. 265 (1990). The decision was an exercise of the Court’s supervisory

power. Id., 276. Four Justices dissented. Id., 281. 175 247 U.S. 402 (1918). 176 Id., 418–421. 177 263 U.S. 255 (1923).

While the contempt power may be inherent, it is not unlimited.

In Spallone v. United States, 174 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 in Toledo

Newspaper Co. v. United States 175 so broadly as to uphold the action of a district court judge in punishing for contempt a newspaper

for publishing spirited editorials and cartoons on questions at issue

in a contest between a street railway company and the public over

rates. A majority of the Court held that the test to be applied in

determining the obstruction of the administration of justice is not

the actual obstruction resulting from an act, but ‘‘the character of

the act done and its direct tendency to prevent and obstruct the

discharge of judicial duty.’’ Similarly, the test whether a particular

act is an attempt to influence or intimidate a court is not the influence exerted upon the mind of a particular judge but ‘‘the reasonable tendency of the acts done to influence or bring about the baleful result . . . without reference to the consideration of how far

they may have been without influence in a particular case.’’ 176 In

Craig v. Hecht, 177 these criteria were applied to sustain the imprisonment of the comptroller of New York City for writing and publishing a letter to a public service commissioner which criticized

the action of a United States district judge in receivership proceedings.
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178 313 U.S. 33, 47–53 (1941). 179 314 U.S. 252, 260 (1941). 180See 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). 181 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). 182 384 U.S. 333, 363 (1966).

The decision in the Toledo Newspaper case, 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, 178 and the theory of constructive contempt

based on the ‘‘reasonable tendency’’ rule was rejected in a proceeding wherein defendants in a civil suit, by persuasion and the use

of liquor, induced a plaintiff feeble in mind and body to ask for dismissal of the suit he had brought against them. The events in the

episode occurred more than 100 miles from where the court was

sitting and were held not to put the persons responsible for them

in contempt of court. 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 179 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. 180

A series of cases involving highly publicized trials and much

news media attention and exploitation, 181 however, caused the

Court to suggest that the contempt and other powers of trial courts

should be utilized to stem the flow of publicity before it can taint

a trial. Thus, Justice Clark, speaking for the majority in Shepard

v. Maxwell, 182 noted that ‘‘[i]f 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
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183For 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). 184 128 U.S. 289 (1888). 185 267 U.S. 517 (1925). 186 Id., 535, 534. 187 343 U.S. 1 (1952).

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. 183

Due Process Limitations on Contempt Power: Right to

Notice and to a Hearing versus Summary Punishment.—Included among the notable cases raising questions concerning the

power of a trial judge to punish summarily for alleged misbehavior

in the course of a trial is Ex parte Terry, 184 decided in 1888. Terry

had been jailed by the United States Circuit Court of California for

assaulting in its presence a United States marshal. The Supreme

Court denied his petition for a writ of habeas corpus. In Cooke v.

United States, 185 however, the Court remanded for further proceedings a judgment of the United States Circuit Court of Texas

sustaining the judgment of a United States district judge sentencing to jail an attorney and his client for presenting the judge a letter which impugned his impartiality with respect to their case, still

pending before him. Distinguishing the case from that of Terry,

Chief Justice Taft, speaking for the unanimous Court, said: ‘‘The

important distinction . . . is that this contempt was not in open

court. . . . To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court

when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen

the offense. Such summary vindication of the court’s dignity and

authority is necessary. It has always been so in the courts of the

common law and the punishment imposed is due process of

law.’’ 186

As to the timeliness of summary punishment, the Court at first

construed Rule 42(a) of the Federal Rules of Criminal Procedure,

which was designed to afford judges clearer guidelines as to the exercise of their contempt power, in Sacher v. United States, 187 as to
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188 Id., 11. 189Taylor 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). 190 382 US. 162 (1965), overruling Brown v. United States, 359 U.S. 41 (1959). 191 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). 192 Johnson v. Mississippi, 403 U.S. 212, 215 (1971) (citing In re Oliver, 333

U.S. 257, 275–276 (1948)). 193See 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

allow ‘‘the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion,

delay [would] prejudice the trial. . . . [On the other hand,] if he believes the exigencies of the trial require that he defer judgment

until its completion he may do so without extinguishing his

power.’’ 188 However, subsequently, 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. 189

Curbing the judge’s power to consider conduct as occurring in

his presence, the Court, in Harris v. United States, 190 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. 191 Moreover, when it is not clear the

judge was fully aware of the contemptuous behavior when it occurred, notwithstanding the fact 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.’’ 192

Due Process Limitations on Contempt Power: Right to

Jury Trial.—Until recently, it was the rule that the right to a jury

trial was not available in criminal contempt cases. 193 But in Cheff
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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). 194 384 U.S. 373 (1966). 195 Bloom v. Illinois, 391 U.S. 194 (1968). 196 Id., 209. In Codispoti v. Pennsylvania, 418 U.S. 506 (1974) the Court held

required a jury trial when the trial judge awaits the conclusion of the proceeding

and then imposes separate sentences in which the total aggregated more than six

months. For a tentative essay at defining a petty offense when a fine is levied, see

Muniz v. Hoffman, 422 U.S. 454, 475–477 (1975). 197The 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. 198 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). 199 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). 200 267 U.S. 517, 539 (1925).

v. Schnackenberg, 194 it was held that when the punishment in a

criminal contempt case in federal court is more than the sentence

for a petty offense, the Court drew the traditional line at six

months, a defendant is entitled to trial by jury. 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 did require jury trials in criminal contempt cases in which

the offense was more than a petty one. 195 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.’’ 196 Presumably, there is no equivalent right to a jury trial

in civil contempt cases, 197 although one could spend much more

time in jail pursuant to a judgment of civil contempt than would

be the case with most criminal contempts; 198 however, the Court

has expanded the right to jury trials in federal civil cases on

nonconstitutional grounds, 199 so that it is possible the process followed in criminal contempts could be repeated.

Due Process Limitations on Contempt Powers: Impartial

Tribunal.—In Cooke v. United States, 200 Chief Justice Taft ut-
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201 343 U.S. 1 (1952). See Dennis v. United States, 341 U.S. 494 (1951).

tered some cautionary words to guide trial judges in the utilization

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. United

States, 299 F. 283, 285; Toledo Newspaper Co. v. United States, 237

F. 986, 988. The case before us is one in which the issue between

the judge and the parties had come to involve marked personal

feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows.’’

Sacher v. United States 201 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

trail judge at once found counsel guilty of criminal contempt and

imposed jail terms of up to six months. At issue directly was

whether the contempt charged was one which the judge was authorized to determine for himself or whether it was one which

under Rule 42(b) could only be passed upon by another judge and

after notice and hearing, but behind this issue loomed the 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, setting aside others, and denied that due process required a

hearing before a different judge. ‘‘We hold that Rule 42 allows the
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202 Id., 13–14. 203 348 U.S. 11 (1954). 204 400 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).

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 lawyers calling. 202

In Offutt v. United States, 203 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, founded on the Court’s supervisory powers, was

constitutionalized in Mayberry v. Pennsylvania, 204 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
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205See 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. 206 330 U.S. 258, 293–307 (1947). 207See Walker v. City of Birmingham, 388 U.S. 307 (1967). 208 203 U.S. 563 (1906). 209See United States v. United Mine Workers, 330 U.S. 258, 299 (1947). But

see Cheff v. Schnackenberg, 384 U.S. 273 (1966), and supra, 630–631, as to due

process limitations. 210 154 U.S. 447 (1894).

by citing and convicting an offender, thus empowering the judge to

keep the trial going, 205 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, 206 the Court held that disobedience of a temporary restraining order issued for the purpose of maintaining existing conditions, pending the determination of the court’s jurisdiction, is punishable as criminal contempt where the issue is not frivolous but substantial. 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. 207 Third, on the basis of United

States v. Shipp, 208 it was held that violations of a court’s order are

punishable as criminal contempt even though the order is set aside

on appeal as in excess of the court’s jurisdiction or though the basic

action has become moot. Finally, the Court held that conduct can

amount to both civil and criminal contempt, and the same acts may

justify a court in resorting to coercive and punitive measures,

which may be imposed in a single proceeding. 209

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 become increasingly common since the leading case of ICC v.

Brimson, 210 where it was held that the contempt power of the

courts might by statutory authorization be utilized in aid of the

Interstate Commerce Commission in enforcing compliance with its

orders. In 1947, a proceeding to enforce a subpoena duces tecum issued by the Securities and Exchange Commission during the course

of an investigation was ruled to be civil in character on the ground

that the only sanction was a penalty designed to compel obedience.

The Court then enunciated the principle that where a fine or imprisonment imposed on the contemnor is designed to coerce him to

do what he has refused to do, the proceeding is one for civil con-
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211Penfield 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). 212Gojack v. United States, 384 U.S. 702 (1966). See also supra for a discussion

on Congress’ power to cite an individual for contempt by virtue of its investigatory

duties, which is applicable, at least by analogy, to administrative agencies. 213 ‘‘Certain implied powers must necessarily result to our Courts of justice from

the nature of their institution. . . . To fine for contempt—imprison for contumacy—

inforce 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 and Goodwin, 7 Cr. (11 U.S.) 32, 34 (1812). 214See Anderson v. Dunn, 6 Wheat. (19 U.S.) 204, 227 (1821); Ex parte Robinson, 19 Wall. (86 U.S.) 505, 510 (1874); Link v. Wabash R. Co., 370 U.S. 626, 630–

631 (1962); Chambers v. NASCO, Inc., 501 U.S. 32, 43–46 (1991); and id., 58 (Justice Scalia dissenting), 60, 62–67 (Justice Kennedy dissenting). 215 Id., 47. 216 Id., 46–51. But see id., 62–67 (Justice Kennedy dissenting).

tempt. 211 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. 212

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. 213 Courts, as 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. 214 Of course,

these inherent powers may be limited by statutes and by rules, 215

but, just as was noted 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 but also the power to act unless

Congress has not only provided regulation of the exercise of the

power but also unmistakably enunciated its intention to limit the

inherent powers. 216

Thus, in the cited Chambers case, 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 utilize inherent powers to sanction for

the entire course of conduct, including shifting attorney fees, ordi-
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217 Id., 49–51. On the implications of the fact that this was a diversity case, see

id., 51–55. 218 Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). 219Link v. Wabash R. Co., 370 U.S. 626 (1962). 220Frankfurter & 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). 221 1 Stat. 73, § 81. 222 Id., §§ 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. 223This 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).

narily against the American rule. 217 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 attorney’s fees statute did not allow assessment of such fees in that situation, but it remanded for consideration of sanctions under both

the Federal Rule and the trial court’s inherent powers, subject to

a finding of bad faith. 218 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. 219

Power to Issue Writs: The Act of 1789

From the beginning of government under the Constitution of

1789, Congress has assumed, under the necessary and proper

clause, its power to establish inferior courts, its power to regulate

the jurisdiction of federal courts and the power to regulate the issuance of writs. 220 The Thirteenth section of the Judiciary Act of

1789 authorized the circuit courts to issue writs of prohibition to

the district courts and the Supreme Court to issue such writs to

the circuit courts. The Supreme Court was also empowered to issue

writs of mandamus ‘‘in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office,

under the authority of the United States.’’ 221 Section 14 provided

that all courts of the United States should ‘‘have power to issue

writs of scire facias, habeas corpus, and all other writs not specially

provided for by statute, which may be necessary for the exercise of

their respective jurisdiction, and agreeable to the principles and usages of law.’’ 222 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. 223
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224 495 U.S. 33 (1990).

225 Id., 55 (citing Griffin v. Prince Edward County School Bd., 377 U.S. 218,

233–234 (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’’)).

226 Id., 50–52.

227 1 Cr. (5 U.S.) 137 (1803). Cf. Wiscart v. D’Auchy, 3 Dall. (3 U.S.) 321 (1796).

228McIntire v. Wood, 7 Cr. (11 U.S.) 504 (1813); McClung v. Silliman, 6 Wheat.

(19 U.S.) 598 (1821).

229 12 Pet. (37 U.S.) 524 (1838).

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, 224 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. 225 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. 226

Common Law Powers of District of Columbia Courts.—

That portion of § 13 which authorized the Supreme Court to issue

writs of mandamus in the exercise of its original jurisdiction was

held invalid in Marbury v. Madison, 227 as an unconstitutional enlargement of the Supreme Court’s original jurisdiction. After two

more futile efforts to obtain a writ of mandamus, in cases in which

the Court found that power to issue the writ had not been vested

by statute in the courts of the United States except in aid of already existing jurisdiction, 228 a litigant was successful in Kendall

v. United States ex rel. Stokes, 229 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
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230 In 1962, Congress conferred upon all federal district courts the same power

to issue writs of mandamus as was hitherto exercisable by federal courts in the District of Columbia. 76 Stat. 744, 28 U.S..C § 1361.

231 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, 4 Cr. (8 U.S.) 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., P. BATOR, et al., HART & WECHSLER’S THE FEDERAL COURTS AND THE

FEDERAL SYSTEM (Westbury, N.Y.: 3d ed. 1988), Ch. XI, 1465–1597 (hereinafter

HART & WECHSLER); Developments in the Law - Federal Habeas Corpus, 83 Harv.

L. Rev. 1038 (1970).

232Professor 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).

233 4 Cr. (8 U.S.) 75 (1807).

234 Id., 94. And see Ex parte Dorr, 3 How. (44 U.S.) 103 (1845).

235 Id., 95. Note that in quoting the clause, Marshall renders ‘‘shall not be suspended’’ as ‘‘should not be suspended.’’

limits imposed by the common law and the separation of powers. 230

Habeas Corpus: Congressional and Judicial Control.—Although the writ of habeas corpus 231 has a special status because

its suspension is forbidden, except in narrow circumstances, by Article I. § 9, cl. 2, nowhere in the Constitution is the power to issue

the writ vested in the federal courts. Could it be that despite the

suspension clause restriction Congress could suspend de facto the

writ simply by declining to authorize its issuance? Is a statute

needed to make the writ available or does the right to habeas corpus stem by implication from the suspension clause or from the

grant of judicial power without need of a statute? 232 Since Chief

Justice Marshall’s opinion in Ex parte Bollman, 233 it has been generally accepted that ‘‘the power to award the writ by any of the

courts of the United States, must be given by written law.’’ 234 The

suspension clause, Marshall explained, 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.’’ 235 And so it has been under-
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236See Ex parte McCardle, 7 Wall. (74 U.S.) 506 (1869). Cf. Carbo v. United

States, 364 U.S. 611, 614 (1961). 237 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); and see Justice Black’s dissent, id., 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 supplied). 238 Cf. Ex Parte McCardle, 7 Wall. (74 U.S.) 506 (1869). 239 Ex parte Bollman, 4 Cr. (8 U.S.) 75, 94 (1807). See Fay v. Noia, 372 U.S.

391, 409 (1963). 240 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 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. 241 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, 3 How, (44 U.S.) 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). 242 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

stood since, 236 with a few judicial voices raised to suggest that

what Congress could not do directly it could not do by omission, 237

but inasmuch as statutory authority has always existed authorizing the federal courts to grant the relief they deemed necessary

under habeas corpus the Court has never had to face the question. 238

Having determined 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. 239 As the Chief Justice read it, the

authorization was limited to persons imprisoned under federal authority, and it was not until 1867, with two small exceptions, 240

that legislation specifically empowered federal courts to inquire

into the imprisonment of persons under state authority. 241 Pursuant to this authorization, the Court expanded the use of the writ

into a major instrument to reform procedural criminal law in federal and state jurisdictions.

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. 242
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Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), held that an inmate of

an Alabama prison was sufficiently in custody as well of Kentucky authorities who

had lodged a detainer with Alabama to obtain the prisoner upon his release. 243McNally v. Hill, 293 U.S. 131 (1934); Parker v. Ellis, 362 U.S. 574 (1960). 244 28 U.S.C. § 2243. See Peyton v. Rowe, 391 U.S. 54 (1968). See also Maleng

v. Cook, 490 U.S. 488 (1989). 245 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. 246 28 U.S.C. § 2254(b). See Preiser v. Rodriguez, 411 U.S. 475, 490–497 (1973),

and id. 500, 512–524 (Justice Brennan dissenting); Rose v. Lundy, 455 U.S. 509,

515–521 (1982). If a prisoner submits a petition with both exhausted and

unexhausted claims, the habeas court must dismiss the entire petition. Rose v.

Lundy, supra, 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). 247 Brown v. Allen, 344 U.S. 443, 447–450 (1953); id., 502 (Justice Frankfurter

concurring); Castille v. Peoples, 489 U.S. 346, 350 (1989). 248Fay v. Noia, 372 U.S. 391, 435 (1963), overruling Darr v. Burford, 339 U.S.

200 (1950). 249 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).

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, 243 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.’’ 244 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. 245

Petitioners coming into federal habeas must first exhaust their

state remedies, a limitation long settled in the case law and codified in 1948. 246 It is only required that prisoners once present their

claims in state court, either on appeal or collateral attack, and they

need not return time and again to raise their issues before coming

to federal court. 247 While 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, 248 although if the Supreme Court has taken and decided a

case its judgment is conclusive in habeas on all issues of fact or law

actually adjudicated. 249
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250 28 U.S.C. § 2255. 251 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 a petitioner

may file in the district in which his custodian is located although the prisoner may

be located elsewhere. 252Glasgow 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). 253 Estelle v. McGuire, 112 S.Ct. 475 (1991); Lewis v. Jeffers, 497 U.S. 764, 780

(1990); Pulley v. Harris, 465 U.S. 37, 41–42 (1984) 254 28 U.S.C. § 2244(b). See Whiteley v. Warden, 401 U.S. 560, 569 (1971); Irvin

v. Dowd, 366 U.S. 717, 729 (1961). 255 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.’’

A federal prisoner in a § 2255 proceeding will file his motion

in the court which sentenced him; 250 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. 251

Habeas corpus is not a substitute for an appeal. 252 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. 253 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. 254

Congressional Limitation of the Injunctive Power

Although the speculations of some publicists and some judicial

dicta 255 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
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256 Boyce’s Executors v. Grundy, 3 Pet. (28 U.S.) 210 (1830). 257 1 Stat. 333, 28 U.S.C. § 2283. 258 26 U.S.C. § 7421(a). 259This provision was repealed in 1976, save for apportionment and districting

suits and when otherwise required by an Act of Congress. P. L. 94–381, § 1, 90 Stat.

1119, and § 3, id., 28 U.S.C. § 2284. Congress occasionally provides for such courts,

as in the Voting Rights Act. 42 U.S.C. §§ 1971, 1973c. 260 Repealed by P. L. 94–381, § 2, 90 Stat. 1119. 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). 261 Repealed by P. L. 93–584, § 7, 88 Stat. 1918. 262 28 U.S.C. § 1342. 263 29 U.S.C. §§ 52, 101–110. 264 56 Stat. 31, 204 (1942). 265Freeman v. Howe, 24 How. (65 U.S.) 450 (1861); Gaines v. Fuentes, 92 U.S.

10 (1876); Ex parte Young, 209 U.S. 123 (1908). 266 Infra, pp. 801–802. 267 254 U.S. 443 (1921).

provision did no more than declare a pre-existing rule long applied

in chancery courts, 256 it did assert the power of Congress to regulate the equity powers of the federal courts. The Act of March 2,

1793, 257 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, 258 provided for a three-judge court as a prerequisite to the issuance of injunctions to restrain the enforcement

of state statutes for unconstitutionality, 259 for enjoining federal

statutes for unconstitutionality, 260 and for enjoining orders of the

Interstate Commerce Commission, 261 limited the power to issue injunctions restraining rate orders of state public utility commissions, 262 and the use of injunctions in labor disputes, 263 and

placed a very rigid restriction on the power to enjoin orders of the

Administrator under the Emergency Price Control Act. 264

All of these restrictions have been sustained by the Supreme

Court as constitutional and applied with varying degrees of thoroughness. The Court has made exceptions to the application of the

prohibition against the stay of proceedings in state courts, 265 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. 266

In Duplex Printing Press v. Deering, 267 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
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268Lauf v. E. G. Shinner & Co., 303 U.S. 323 (1938); New Negro Alliance v.

Sanitary Grocery Co., 303 U.S. 552 (1938). 269 Ibid.; see also 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). 270 319 U.S. 182 (1943). 271 Id., 187 (quoting Cary v. Curtis, 3 How. (44 U.S.) 236, 245 (1845)). See South

Carolina v. Katzenback, 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.

the Norris-LaGuardia Act of 1932, which has not only been declared constitutional 268 but has been applied liberally 269 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 270 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 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.’’ 271 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
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272 321 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. 273Washington-Southern Co. v. Baltimore Co., 263 U.S. 629 (1924). 274 10 Wheat. (23 U.S.) 1 (1825). 275 106 U.S. 272, 280 (1882). 276See 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. 277 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

States, 272 which sustained a different phase of the special procedure for appeals under the Emergency Price Control Act.

The Rule-Making Power and Powers Over Process

Among the incidental powers of courts is that of making all

necessary rules governing their process and practice and for the orderly conduct of their business. 273 However, this power too is derived from the statutes and cannot go beyond them. The landmark

case is Wayman v. Southard, 274 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, 275 in which the

United States sought to enforce by summary process the payment

of a debt, the Supreme Court ruled that under the process acts the

law of Wisconsin was the law of the United States, and hence the

Government was required to bring a suit, obtain a judgment, and

cause execution to issue. Justice Matthews for a unanimous Court

declared that the courts have ‘‘no inherent authority to take any

one of these steps, except as it may have been conferred by the legislative department; for they can exercise no jurisdiction, except as

the law confers and limits it.’’ 276 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. 277 Their
ART. III—JUDICIAL DEPARTMENT 645

Sec. 1—Judicial Power, Courts, Judges

U.S. 1, 14–16 (1941). Congress also has authorized promulgation of rules of criminal

procedure, habeas, evidence, admiralty, bankruptcy, and appellate procedure. 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.

P.L. 93–505, 88 Stat. 1926 (1974); P.L. 94–426, 90 Stat. 1334 (1976). 278 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). 279 Cf. United States v. Sherwood, 312 U.S. 584, 589–590 (1941). 280Mississippi Pub. Corp. v. Murphree, 326 U.S. 438 (1946). 281Washington-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 bounds of judicial discretion, its action is not reviewable. In re Burwell, 350

U.S. 521 (1956). 282McDonald v. Pless, 238 U.S. 264, 266 (1915); Griffin v. Thompson, 2 How.

(43 U.S.) 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).

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 278 nor alter

the jurisdiction 279 of federal courts and the venue of actions therein 280 and, thus circumscribed, have been upheld as valid.

Limitations to This 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.’’ 281 As incident to

the judicial power, courts of the United States possess inherent authority to supervise the conduct of their officers, parties, witnesses,

counsel, and jurors by self-preserving rules for the protection of the

rights of litigants and the orderly administration of justice. 282

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
646 ART. III—JUDICIAL DEPARTMENT

Sec. 1—Judicial Power, Courts, Judges

283Gumbel v. Pitkin, 124 U.S. 131 (1888); Covell v. Heyman, 111 U.S. 176

(1884); Buck v. Colbath, 3 Wall. (70 U.S.) 334 (1866). 284 Eberly v. Moore, 24 How. (65 U.S.) 147 (1861); Arkadelphia Co. v. St. Louis

S.W. Ry. Co., 249 U.S. 134 (1919). 285Gagnon v. United States, 193 U.S. 451, 458 (1904). 286 2 Wall. (69 U.S.) 123, 128–129 (1864). 287 253 U.S. 300 (1920). 288 Id., 312.

of property in the custody of law. 283 Such powers are said to be essential to and inherent in the organization of courts of justice. 284

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. 285

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 286 to be coequal with the organization of the federal courts.

In the leading case of Ex parte Peterson, 287 a United States district

court appointed an auditor with power to compel the attendance of

witnesses and the production of testimony. The court authorized

him to conduct a preliminary investigation of facts and file a report

thereon for the purpose of simplifying the issues for the jury. This

action was neither authorized nor prohibited by statute. In sustaining the action of the district judge, Justice Brandeis, speaking for

the Court, declared: ‘‘Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties.

. . . This power includes authority to appoint persons unconnected

with the court to aid judges in the performance of specific judicial

duties, as they may arise in the progress of a cause.’’ 288 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
ART. III—JUDICIAL DEPARTMENT 647

Sec. 2—Jurisdiction Cl. 1—Cases and Controversies

289 Ex parte Secombe, 19 How. (60 U.S.) 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. 290 4 Wall. (71 U.S.) 333 (1867). 291 Id., 378–380. 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 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).

‘‘it rests exclusively with the Court to determine who is qualified

to become one of its officers, as an attorney and counsellor, and for

what cause he ought to be removed.’’ Such power, he made clear,

however, ‘‘is not an arbitrary and despotic one, to be exercised at

the pleasure of the Court, or from passion, prejudice, or personal

hostility; but it is the duty of the Court to exercise and regulate

it by a sound and just judicial discretion, whereby the rights and

independence of the bar may be as scrupulously guarded and maintained by the Court, as the right and dignity of the Court itself.’’ 289

The Test-Oath Act of July 2, 1862, which purported to exclude

former Confederates from the practice of law in the federal courts,

was invalidated in Ex parte Garland. 290 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. 291

SECTION 2. 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
648 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl. 1—Cases and Controversies

292 2 M. FARRAND, op. cit., n. 1, 430. 293The proposal was contained in the Virginia Plan. 1 id., 21. For the four rejections, see id., 97–104, 108–110, 138–140, 2 id., 73–80, 298. 294 Id., 328–329, 342–344. Although a truncated version of the proposal was reported by the Committee of Detail, id., 367, the Convention never took it up. 295 Id., 340–341. The proposal was referred to the Committee of Detail and

never heard of again.

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

Late in the Convention, a delegate proposed to extend the judicial power to cases arising under the Constitution of the United

States as well as under its laws and treaties. Madison’s notes continue: ‘‘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.

‘‘The motion of Docr. Johnson was agreed to nem : con : it

being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature—’’. 292

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 is revealed not only in the language of § 2

and the passage quoted above but as well in the refusal to associate the judges in the extra-judicial functions which some members

of the Convention—Madison and Wilson notably—conceived for

them. Thus, four times proposals for associating the judges in a

council of revision to pass on laws generally were voted down, 293

and similar fates befell suggestions that the Chief Justice be a

member of a privy council to assist the President 294 and that the

President or either House of Congress be able to request advisory

opinions of the Supreme Court. 295
ART. III—JUDICIAL DEPARTMENT 649

Sec. 2—Jurisdiction Cl. 1—Cases and Controversies

296 1 C. WARREN, op. cit., n. 18, 108–111; 3 CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY, H. Johnston ed. (New York: 1893), 633–635; HART & WECHSLER,

op. cit., n. 250, 65–67. 297 Hayburn’s Case, 2 Dall. (2 U.S.) 409 (1792), discussed supra, pp. 620–621. 298See, 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). 299 6 Wheat. (19 U.S.) 264 (1821). 300 Id., 378.

This intent of the Framers 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. 296 Moreover, the refusal of

the Justices to participate in the congressional plan for awarding

veterans’ pensions 297 bespoke a similar adherence to the restricted

role of courts. These restrictions have been encapsuled in a series

of principles or doctrines, the application of which determines

whether an issue is meet 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. 298

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

general groups. In the words of Chief Justice Marshall in Cohens

v. Virginia: 299 ‘‘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.’’ 300

Judicial power is ‘‘the power of a court to decide and pronounce

a judgment and carry it into effect between persons and parties
650 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl. 1—Cases and Controversies

301Muskrat v. United States, 219 U.S. 346, 356 (1911). 302The 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). 303Osborn v. United States Bank, 9 Wheat. (22 U.S.) 738, 819 (1824). 304 In re Pacific Ry. Comm., 32 F. 241, 255 (C.C. Calif. 1887) (Justice Field). See

also Smith v. Adams, 130 U.S. 167, 173–174 (1889). 305 Aetna Life Ins. Co. v. Haworth, 300 U.S. 229, 240–241 (1937). Cf. Public

Service Comm. v. Wycoff Co., 344 U.S. 237, 242 (1952).

who bring a case before it for decision.’’ 301 The meaning attached

to the terms ‘‘cases’’ and ‘‘controversies’’ 302 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.’’ 303 ‘‘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.’’ 304

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.’’ 305 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
ART. III—JUDICIAL DEPARTMENT 651

Sec. 2—Jurisdiction Cl. 1—Cases and Controversies

306Flast v. Cohen, 392 U.S. 83, 94–95 (1968). 307 ‘‘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 Committee v. McGrath, 341 U.S. 123, 149, 150 (1951). 308Lord v. Veazie, 8 How. (49 U.S.) 251 (1850); Chicago & G.T. Ry. Co. 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 (1911); United States v. Johnson, 319 U.S. 302 (1943); Moore

v. Charlotte-Mecklenburg Board of Education, 402 U.S. 47 (1971). 309 219 U.S. 346 (1911).

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.’’ 306 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. 307

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, 308

and the requirement implicates a number of complementary factors

making up a justiciable suit. A concrete example of the requirement being one of the decisive factors, if not the decisive one, is

Muskrat v. United States, 309 a case not now deemed of great importance, 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. Attorneys’ 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 con-
652 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl. 1—Cases and Controversies

310 Id., 361–362. 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., 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. 311 8 How. (49 U.S.) 251 (1850). 312 Id., 254–255. 313 Chicago & G.T. Ry. Co. v. Wellman, 143 U.S. 339, 345 (1892).

cerning which the only judgment required is to settle the doubtful

character of the legislation in question.’’ 310

Collusive and Feigned Suits.—Prime among the cases in

which adverse litigants are required are 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, 311 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. . . .’’ 312

‘‘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

legislative act.’’ 313 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 su-
ART. III—JUDICIAL DEPARTMENT 653

Sec. 2—Jurisdiction Cl. 1—Cases and Controversies

314 E.g., Hylton v. United States, 3 Dall. (3 U.S.) 171 (1796); Fletcher v. Peck,

6 Cr. (10 U.S.) 87 (1810); Scott v. Sandford, 19 How. (60 U.S.) 393 (1857); Cf. 1 C.

WARREN, op. cit., n. 18, 147, 392–395; 2 id., 279–282. 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. 315 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). 316 157 U.S. 429 (1895). The first injunction suit by a stockholder to restrain a

corporation from paying a tax was apparently Dodge v. Woolsey, 18 How. (59 U.S.)

331 (1856). See also Brushaber v. Union Pacific R. Co., 240 U.S. 1 (1916). 317 Cf. Cheatham v. United States, 92 U.S. 85 (1875); Snyder v. Marks, 109 U.S.

189 (1883). 318Smith v. Kansas City Title Co., 255 U.S. 180 (1921). 319 Ashwander v. TVA, 297 U.S. 288 (1936). See id., 341 (Justice Brandeis dissenting in part). 320 298 U.S. 238 (1936).

pervised and financed by one side. 314 And there are instances in

which there may not be in fact an adverse party at certain stages,

that is, some instances when the parties do not actually disagree,

but in which the Court and the lower courts are empowered to adjudicate. 315

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 and Trust Co., 316 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. 317 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 318 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. 319 Perhaps most notorious was Carter v. Carter

Coal Co., 320 in which the president of the company brought suit

against the company and its officials, among whom was Carter’s fa-
654 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl. 1—Cases and Controversies

321Stern, The Commerce Clause and the National Economy, 59 Harv. L. Rev.

645, 667–668 (1948) (detailing the framing of the suit). 322Flast v. Cohen, 392 U.S. 83, 99 (1968). That this characterization is not the

view of the present Court, see Allen v. Wright, 468 U.S. 737, 750, 752, 755–756,

759–761 (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., 102; United States v. Richardson, 418 U.S. 166,

174–175 (1974); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S.

59, 78–79 (1978). 323 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

Com. 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., 227. 324 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., 752 (quoting, respectively, Chicago & Grand Trunk R. Co. 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, 112 S.Ct. 2130, 2135–2136, 2142–2146 (1992).

ther, a vice president of the company, and in which the Court entertained the suit and decided the case on the merits. 321

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.’’ 322 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.’’ 323 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.’ ’’ 324

Standing as a doctrine is composed of both constitutional and

prudential restraints on the power of the federal courts to render
ART. III—JUDICIAL DEPARTMENT 655

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325 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). 326 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS (St. Paul: 4th ed.

1983), 60. 327 ‘‘[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 one-paragraph definition.’’ Valley Forge Christian College v. Americans United, 454 U.S.

464, 475 (1982). ‘‘Generalizations about standing to sue are largely worthless as

such.’’ Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150, 151 (1970). For

extensive consideration of the doctrine, see HART & WECHSLER, op. cit., n. 250, 107–

196.328Thus, state courts could adjudicate a case brought by a person without

standing in the federal sense. If the plaintiff lost, he would have no recourse in the

United States Supreme Court, inasmuch as he lacks 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 may be able to appeal, because he might

well be able to assert sufficient injury to his federal interests. ASARCO Inc. v.

Kadish, 490 U.S. 605 (1989). 329Schlesinger v. Reservists Com. to Stop the War, 418 U.S. 208 (1974). 330 Id., 217. See also United States v. Richardson, 418 U.S. 166, 176–177 (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. 495 U.S. 149 (1990); Lujan v. Dedecisions, 325 and is almost exclusively concerned with such public

law questions as determinations of constitutionality and review of

administrative or other governmental action. 326 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 stiffen 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. 327

The standing rules apply to actions brought in federal courts,

and they have no direct application to actions brought in state

courts. 328

Citizen Suits.—Persons do not have standing to sue to enforce

a constitutional provision when all they can show or 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. 329 ‘‘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], standing alone, would adversely affect only the generalized

interest of all citizens in constitutional governance.’’ 330
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fenders of Wildlife, 112 S.Ct. 2130, 2143–2145 (1992). Cf. Ex parte Levitt, 302 U.S.

633 (1937); Laird v. Tatum, 408 U.S. 1 (1972). 331 Usually cited as Massachusetts v. Mellon, 262 U.S. 447 (1923), the two suits

being consolidated. 332 Id., 487, 488. 333 392 U.S. 83 (1968).

Taxpayer Suits.—Save for a narrowly cabined 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, 331 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. 332

Taxpayers were found to have standing, however, in Flast v.

Cohen, 333 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

status of taxpayer and the type of legislative enactment attacked;

this means, 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, the taxpayer must show the challenged enactment exceeds specific constitutional limitations imposed upon the

exercise of the congressional taxing and spending power, rather

than simply to argue 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, while Frothingham had alleged only that the

Tenth Amendment had been exceeded. Reserved was the question
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334 Id., 105. 335 United States v. Richardson, 418 U.S. 166 (1974); Schlesinger v. Reservists

Com. to Stop the War, 418 U.S. 208, 227–228 (1974). 336 Valley Forge Christian College v. Americans United, 454 U.S. 464 (1982). 337 330 U.S. 1 (1947). 338See 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.

McCollom 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). 339 342 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).

whether other specific limitations constrained the taxing and

spending clause in the same manner as the establishment

clause. 334

Since Flast, the Court has refused to expand it. 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. 335 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 a valid piece of

legislation and because the property transfer was not pursuant to

a taxing and spending clause exercise but was taken under the

property clause of Article IV, § 3, cl. 2. 336 It seems evident that for

at least the foreseeable future taxpayer standing will be restricted

to establishment clause limitations on spending programs.

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, 337

such a taxpayer was found to have standing to challenge the use

of public funds for transportation of pupils to parochial schools. 338

But in Doremus v. Board of Educ., 339 the Court refused an appeal

from a state court for lack of standing of a taxpayer challenging

Bible reading in the classroom. No measurable disbursement of

public funds was involved in this type of activity, so that there was

no direct injury to the taxpayer, a rationale similar to the spending

program-regulatory program distinction of Flast.
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340 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,

112 S.Ct. 2130, 2136 (1992). See, however, United States Parole Comm. 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., 404 n. 11, reserving

full consideration of the dissent’s argument at id ., 401 n. 1, 420–421. 341 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., 278 U.S. 515 (1929); City of Chicago v. Atchison, T. & S.F Ry., 357 U.S. 77 (1958). 342Tennessee Power Co. v. TVA, 306 U.S. 118, 137–138 (1939). 343 C. WRIGHT, op. cit., n. 326, 65–66. 344 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 District 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). 345 Assn. 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 language characteristic of

the language. Thus, in Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992),

the Court refers to injury in fact as ‘‘an invasion of a legally-protected interest,’’ but

Constitutional Standards: Injury in Fact, Causation, and

Redressability.—While the Court has been inconsistent over time,

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 party seeking to sue must personally have

suffered some actual or threatened injury that can fairly be traced

to the challenged action of defendant and that the injury is likely

to be redressed by a favorable decision. 340

For some time, injury alone was not sufficient; rather, the injury had to be ‘‘a wrong which directly results in the violation of

a legal right,’’ 341 that is, ‘‘one of property, one arising out of contract, one protected against tortious invasion, or one founded in a

statute which confers a privilege.’’ 342 The problem was 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.’’ 343

The observable tendency of the Court, however, was to find standing frequently in cases distinctly not grounded in property

rights. 344

In any event, the ‘‘legal rights’’ language has now been dispensed with. Rejection 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. 345 Now,
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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. 346 E.g., Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2137–2138 (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); Shea v. Littleton, 414 U.S. 488, 493–494 (1974); Linda R.S. v. Richard D.,

410 U.S. 614, 617–618 (1973). 347Trafficante 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). While Congress had provided for standing in the Act, thus removing prudential considerations affecting standing, it could not abrogate constitutional constraints. Gladstone, Realtors, supra, 100. Thus, the injury alleged satisfied

Article III. 348Sierra Club v. Morton, 405 U.S. 727, 735 (1972); United States v. SCRAP,

412 U.S. 669, 687–688 (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, 112 S.Ct. 2130 (1992); Lujan v. National Wildlife Federation, 497 U.S.

871 (1990). In particular, SCRAP, supra, is disfavored as too broad. Lujan v. Defenders of Wildlife, supra, 2139–2140. 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, supra, 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, 264–265 (1991). 349See supra, nn. 329–330. 350 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.

environmental, aesthetic, and social interests, when impaired, afford a basis for making constitutional attacks upon governmental

action. 346 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. The subjective and intangible interests of

persons in enjoying the benefits of living in integrated communities

were found sufficient to permit them to attack actions which

threatened or harmed those interests even though the actions were

not directed at them. 347 Similarly, the interests of individuals and

associations of individuals in using the environment afforded them

the standing to challenge actions which threatened those environmental conditions. 348 Nonetheless, the Court has also in constitutional cases been wary of granting standing to persons who alleged

threats or harm to interests which they shared with the larger

community of people at large, a rule against airing ‘‘generalized

grievances’’ through the courts, 349 although it is unclear whether

this rule (or subrule) has a constitutional or a prudential basis. 350
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351 E.g. Laird v. Tatum, 408 U.S. 1 (1972) (‘‘allegations of a subjective ‘chill’ are

not an adequate substitute for a claim of specific present objective harm or a threat

of specific future harm.’’). See also O’Shea v. Littleton, 414 U.S. 488 (1974); California Bankers Assn. v. Schultz, 416 U.S. 21 (1974); Rizzo v. Goode, 423 U.S. 262, 371–

373 (1976). In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the Court held that

victim of police chokehold seeking injunctive relief was unable to show sufficient

likelihood of recurrence as to him. 352Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (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., 468 U.S., 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. 353Simon 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 utilizing child support laws to coerce support of legitimate children only, since it was ‘‘only speculative’’ that prosecution of

father would result in support rather than jailing). 354Warth v. Seldin, 422 U.S. 490 (1975). But in Village of Arlington Heights

v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264 (1974), 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.

And in a number of cases, the Court has refused standing apparently in the belief that the assertion of harm is too speculative or

too remote to credit. 351

Of increasing importance are the second and third element of

standing, recently developed and held to be of constitutional requisite. Thus, 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. 352 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, since they could not show that alteration of the tax policy would cause the hospitals to alter their policies and treat

them. 353 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. 354 Similarly, the link

between fully integrated public schools and allegedly lax administration of tax policy permitting benefits to discriminatory private
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355 Allen v. Wright, 468 U.S. 737 (1984). But compare 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. And see Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987); Orr

v. Orr, 440 U.S. 268, 271–273 (1979). 356Duke 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). 357Warth v. Seldin, 422 U.S. 490, 505 (1975); Allen v. Wright, 468 U.S. 737,

756–761 (1984). 358Gladstone, 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’’). 359Warth v. Seldin, 422 U.S. 490, 500–501 (1975); Craig v. Boren, 429 U.S. 190,

193–194 (1976). 360 ‘‘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

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. 355 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 likely relieve the plaintiffs of the

complained of injuries. 356 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 as a consequence

injured the claimants. 357

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. 358 With respect to the prudential rules, it

is clear that the Court feels free to disregard any of these principles in cases in which it thinks exceptionable circumstances exists, 359 and Congress is free to legislate away prudential restraints

upon the Court’s jurisdiction and confer standing to the furtherest

extent permitted by Article III. 360 The Court has identified three
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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, 373–375 (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 separation-of-powers restraints on the power of Congress to create interests

to which injury would give standing. Lujan v. Defenders of Wildlife, 112 S.Ct. 2130,

2142–2146 (1992). 361 Valley Forge Christian College v. Americans United, 454 U.S. 464, 474–475

(1982); Allen v. Wright, 468 U.S. 737, 751 (1984). 362 Assn. of Data Processing Service Orgs. 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 Assn., 479 U.S. 388 (1987). 363 United States v. Richardson, 418 U.S. 166, 173, 174–176 (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, 687–688 (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). 364 United States v. Raines, 362 U.S. 17, 21–23 (1960); Yazoo & M.V.R. Co. v.

Jackson Vinegar Co., 226 U.S. 217 (1912). Cf. Bender v. Williamsport Area School

Dist., 475 U.S. 534 (1986). 365 318 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).

rules as prudential ones, 361 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 constitutional provision or statute in question 362 and that plaintiffs

may not air ‘‘generalized grievances’’ shared by all or a large class

of citizens. 363 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 Constitutional 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. 364

In Tileston v. Ullman, 365 an early round in the attack on a state

anticontraceptive law, a doctor sued, charging that he was prevented from giving his patients needed birth control advice. The

Court held he had no standing; no right of his was infringed, and

he could not represent the interests of his patients. But there are
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366 346 U.S. 249 (1953). 367See also Buchanan v. Warley, 245 U.S. 60 (1917) (white plaintiff suing for

specific performance of a contract to convey property to a Negro had standing to contest constitutionality of ordinance barring sale of property to African Americans, 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). 368 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; while 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 not subject to prosecution and were

thus impaired in ability to obtain them or gain forum to assert rights). 369 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 in order to determine their validity); 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 Intl., 431 U.S. 678, 682–684 (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). 370 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).

several exceptions to this part of the standing doctrine that make

generalization misleading. Many cases allow standing to third parties if they 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, 366 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. 367

Similarly, 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. 368 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. 369 It is also possible, of course, that one’s own rights can be

affected by action directed at someone from another group. 370
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371 428 U.S. 106 (1976). 372 Compare id., 112–118 (Justices Blackmun, Brennan, White, and Marshall),

with id., 123–131 (Justices Powell, Stewart, and Rehnquist, and Chief Justice Burger). Justice Stevens concurred with the former four Justices on narrower grounds

limited to this case. 373 Caplin & Drysdale v. United States, 491 U.S. 617, 623–624 n. 3 (1989). 374Whitmore 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). 375 United States v. Raines, 362 U.S. 17, 21–24 (1960). 376Lanzetta 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., 73

A substantial dispute was occasioned in Singleton v. Wulff, 371

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 interdicted 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. 372

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. 373 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. 374

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. 375 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 be enabled to assert its unconstitutionality thereby. 376
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(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 Assn., 484

U.S. 383 (1988). 377Sierra 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). 378 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 ex rel. Virginia State

Bar, 377 U.S. 1 (1964); United Mine Workers v. Illinois State Bar Assn., 389 U.S.

217 (1967); United Transportation Union v. State Bar of Michigan, 401 U.S. 576

(1971). 379 432 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., 341–345.

See also Warth v. Seldin, 422 U.S. 490, 510–517 (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). 380 United States Parole Comm. v. Geraghty, 445 U.S. 388 (1980). Geraghty was

a mootness case. 381Louisiana v. Texas, 176 U.S. 1 (1900) (recognizing the propriety of parens

patriae suits but denying it in this particular suit). 382Massachusetts 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).

Organizational Standing.—Organizations do not have

standing as such to represent their particular concept of the public

interest, 377 but organizations have been permitted to assert the

rights of their members. 378 In Hunt v. Washington State Apple Advertising Comm., 379 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 that following class certification there need be only a live controversy with the class, provided the adequacy of the representation is sufficient. 380

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. 381 No State, however, may be parens patriae of

her citizens ‘‘as against the Federal Government.’’ 382 But a State

may sue on behalf of the economic welfare of its citizens to protect
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383Missouri 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). 384Georgia v. Pennsylvania Railroad 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). 385 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). 386 Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607–608

(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., 610. The Court admitted that different considerations might apply between original actions and district court suits. Id., 603 n.

12. 387Member standing has not fared well in other Circuits. Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir., 1973), cert. den., 416 U.S. 936 (1974); Harrington v.

Schlesinger, 528 F.2d 455 (4th Cir., 1975). 388 In Coleman v. Miller, 307 U.S. 433, 438 (1939), the Court 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) (three-judge 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. Ibid. In Goldwater v. Carter,

444 U.S. 996 (1979), the Court vacated a decision, in which the lower Court had

them from environmental harm 383 and to enjoin other States and

private parties from engaging in actions harmful to the economic

or other well-being of its citizens. 384 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; 385 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. 386

Standing of Members of Congress.—The lower federal

courts have of late developed a body of law with respect to the

standing of Members of Congress, as Members, to bring court actions, usually to challenge actions of the executive branch. Most of

the law has developed in the District of Columbia Circuit, 387 and

the Supreme Court has yet to consider the issue on the merits. 388
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found Member standing, and directed dismissal, but none of the Justices who set

forth reasons 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. 389 Reuss v. Balles, 584 F.2d 461, 466 (D.C.Cir.), cert. den., 439 U.S. 997 (1978). 390Mitchell v. Laird, 488 F.2d 611 (D.C.Cir. 1973). 391 511 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.), and id., 711–712

(Judge Wright), vacated and remanded with instructions to dismiss, 444 U.S. 996

(1979) 392Kennedy 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.), cert. den., 439 U.S. 997 (1978). 393Goldwater v. Carter, 617 F.2d 697, 702, 703 (D.C.Cir.) (en banc), vacated and

remanded with instructions to dismiss, 444 U.S. 996 (1979). The failure of the JusIt seems clear that a legislator ‘‘receives no special consideration in

the standing inquiry,’’ 389 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 that injury in fact

may consist of, however, is the basis of the controversy.

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. 390 The

breadth of this rationale was disapproved in subsequent cases. The

leading decision is Kennedy v. Sampson, 391 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 interest in protecting their votes, which was sufficient

for standing purposes, when some ‘‘legislative disenfranchisement’’

occurred. 392 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. 393 Having thus established
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tices 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 Com. 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). 394 Riegle v. FOMC, 656 F.2d 873 (D.C.Cir.), cert. den., 454 U.S. 1082 (1981). 395 Assn. 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, 100], is one within the

power of Congress to determine.’’ Sierra Club v. Morton, 405 U.S. 727, 732 n. 3

(1972). 396Tennessee 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). 397 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

tortious invasion, or one founded on a statute which confers a privilege.’’ Tennessee

Power Co. v. TVA, 306 U.S. 118, 137–138 (1939). 398 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

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. 394 The status of this issue thus remains in confusion.

Standing to Challenge Nonconstitutional Governmental

Action.—Standing in this sense 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.’’ 395 Liberalization of the law of standing in this 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,’’ 396 requiring some resolution of the merits preliminarily. An

injury-in-fact 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; 397 or it could be a right

created by the Constitution or a statute. 398 The statutory right
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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.), cert.

dismd. as moot, 320 U.S. 707 (1943). 399 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). 400FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 477 (1940); City of

Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 83 (1958); Hardin v. Kentucky

Utilities Co., 390 U.S. 1, 7 (1968). 401 Assn. 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., 167. In Clarke v. Securities Industry

Assn., 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

Conference 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., 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 Assn.,

387 U.S. 167 (1967); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). 402 Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150, 154 (1970).

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.’’ 399 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. 400

More recently, 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. 401 Of even greater importance was the expansion of the nature of the injury required beyond economic injury, which followed logically to some extent from

the revision of the standard, to encompass ‘‘aesthetic, conservational, and recreational’’ interests as well. 402 ‘‘Aesthetic and environmental well-being, 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
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403Sierra 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., 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). 404 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,

112 S.Ct. 2130, 2139–2140 (1992); Whitmore v. Arkansas, 495 U.S. 149, 158–160

(1990). 405See Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992); Lujan v. National

Wildlife Federation, 497 U.S. 871 (1990). 406 Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945). 407Giles v. Harris, 189 U.S. 475, 486 (1903). 408 258 U.S. 158 (1922).

through the judicial process.’’ 403 Thus, plaintiffs, who had 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, whereas

in the instant case the Court dealt only with the pleadings. 404

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, 405 but

that 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.’’ 406 A party cannot maintain a suit ‘‘for a mere declaration in the air.’’ 407 In Texas v. ICC, 408 the State attempted to

enjoin the enforcement of the Transportation Act of 1920 on the
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409 Id., 162.

410 297 U.S. 288 (1936).

411 Id., 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, 6 Wall. (73 U.S.) 50, 76 (1868).

412 330 U.S. 75 (1947).

413 Id., 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 Assn. 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).

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.’’ 409 And in Ashwander v. TVA, 410

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.’’ 411

Concepts of real interest and abstract questions appeared

prominently in United Public Workers v. Mitchell, 412 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 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. 413

Advisory Opinion.—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
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414 1 C. WARREN, op. cit., n. 18, 108–111. The full text of the exchange appears

in 3 CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY, H. Johnston ed. (New

York: 1893), 486–489. 415 Id., 488. 416 Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 113

(1948). 417See supra, p. 599 n. 21. 418 1 C. WARREN, op. cit., n. 18, 595–597. 419 Hearings Before the Senate Judiciary Committee on S. 1392, Reorganization

of the Judiciary, 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 (Baltimore: 1876), 432–435. 420 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 has lately 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.

the wars of the French Revolution. 414 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 extrajudicially 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.’’ 415 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. . . .’’ 416 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; 417 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; 418 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. 419

Other Justices have individually served as advisers and confidants

of Presidents in one degree or another. 420

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 stated by Justice Jackson, when the Court refused to review an

order of the Civil Aeronautics Board, which in effect was a mere
ART. III—JUDICIAL DEPARTMENT 673

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421 Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 113–

114 (1948). 422Muskrat v. United States, 219 U.S. 346 (1911). 423 United States v. Ferreira, 13 How. (54 U.S.) 40 (1852). 424 United Public Workers v. Mitchell, 330 U.S. 75 (1947). 425 Cf. Willing v. Chicago Auditorium Assn., 277 U.S. 274 (1928). 426Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123 (1927); Nashville,

C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1963). 427 48 Stat. 955, as amended, 28 U.S.C. §§ 2201–2202. 428 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). 429 H. Rept. No. 1264, 73d Congress, 2d sess. (1934), 2.

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.’’ 421 The early refusal of the Court 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, 422 or where the judgment of the Court was

subject to later review or action by the executive or legislative

branches of Government, 423 or where the issues involved were abstract or contingent. 424

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. 425 These doubts were largely dispelled by

Court decisions in the late 1920s and early 1930s, 426 and Congress

quickly responded with the Federal Declaratory Judgment Act of

1934. 427 Quickly tested, the Act was unanimously sustained. 428

‘‘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.’’ 429 Said the Senate Report: ‘‘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 conclu-
674 ART. III—JUDICIAL DEPARTMENT

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430S. Rept. No. 1005, 73d Congress, 2d sess. (1934), 2. 431 48 Stat. 955. The language remains quite similar. 28 U.S.C. § 2201. 432 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–240 (1937), 433 Id., 242–244. 434 Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945). 435Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). 436 Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 (1942); Public

Service Comm. v. Wycoff Co., 344 U.S. 237, 243 (1952); Public Affairs Associates v.

Rickover, 369 U.S. 111, 112 (1962).

sively 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.’’ 430

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. . . .’’ 431 Upholding the Act, the

Court said: ‘‘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.’’ 432 Finding

that the issue in the case presented a definite and concrete controversy, the Court held that a declaration should have been issued. 433

It has insistently been maintained by the Court 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.’’ 434 As Justice Douglas has written: ‘‘The difference between

an abstract question and a ‘controversy’ contemplated 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.’’ 435 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. 436
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437 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 Assn. v. McNary, 454 U.S. 100 (1981). 438 E.g., Ashwander v. TVA, 297 U.S. 288 (1936); Electric Bond & Share, 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). 439 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. v. Wycoff, 344 U.S.

237 (1952). 440 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). 441 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). 442 389 U.S. 241 (1967). 443 380 U.S. 479 (1965). 444Zwickler v. Koota, 389 U.S. 241, 248 (1967).

Utilization 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, 437 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. 438 In part, this has been accomplished

by a strict insistence upon concreteness, ripeness, and the like. 439

Nonetheless, even at such times, several noteworthy constitutional

decisions were rendered in declaratory judgment actions. 440

As part of the 1960s hospitality to greater access to courts, the

Court exhibited a greater hospitality to declaratory judgments in

constitutional litigation, especially cases involving civil liberties issues. 441 The doctrinal underpinnings of this hospitality were

sketched out by Justice Brennan in his opinion for the Court in

Zwickler v. Koota, 442 in which the relevance to declaratory judgments of the Dombrowski v. Pfister 443 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.’’ 444
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445Zwickler v. Koota, 389 U.S. 241, 254 (1967). 446Samuels 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. 447 Hicks v. Miranda, 422 U.S. 332, 349 (1975). 448Steffel 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). 449 United Public Workers v. Mitchell, 330 U.S. 75 (1947); International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954).

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.’’ 445 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 446 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, 447 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 to meet the stricter requirements justifying the issuance of an injunction. 448

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 necessary adjudication 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, 449

although, to be sure, in most cases the harm is the same. But in

liberalizing the doctrine of ripeness in recent years the Court sub-
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450 Regional Rail Reorganization Act Cases, 419 U.S. 102, 138–148 (1974) (certainty of injury a constitutional limitation, factual adequacy element a prudential

one).451Duke 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). 452 330 U.S. 75 (1947). 453 Id., 90. In CSC v. National Assn. 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. 454 International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954). See also

Electric Bond & Share Co. v. SEC, 303 U.S. 419 (1938); Alabama State Federation

of Labor v. McAdory, 325 U.S. 450 (1945); Public Service Comm. v. Wycoff Co., 344

U.S. 237 (1952); Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972). 455 In Adler v. Board of Education, 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., 504 (Justice Frankfurter

dissenting). In Cramp v. Board of Public Instruction, 368 U.S. 278 (1961), a state

divided it into constitutional and prudential parts 450 and conflated

standing and ripeness considerations. 451

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, 452 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 regulations.’’ 453 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, inasmuch as they had not gone 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. 454 Of course, the Court

was not entirely consistent in applying the doctrine. 455
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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., 283–284. See

also Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S.

589 (1967). 456 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., 317–318). 457 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). 458 E.g., California Bankers Assn. v. Schultz, 416 U.S. 21 (1974); Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 294–297 (1981); Renne v.

Geary, 501 U.S. 312, 320–323 (1991). 459Steffel 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). 460 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).

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, 456 because

the plaintiffs can allege only a subjective feeling of inhibition or

fear arising from the legislation or from enforcement of it, 457 or because 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. 458 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. 459 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. 460

Of considerable uncertainty in the law of ripeness is the Duke
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461Duke 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., 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 utilized 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., 95, 103 (Justices Rehnquist and Stevens concurring in

the result). 462 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. v. Geraghty, 445 U.S. 388, 397 (1980),

and id., 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). 463Lewis v. Continental Bank Corp., 494 U.S. 472,477–478 (1990) (internal citations omitted). The Court’s emphasis upon mootness as a constitutional rule 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,

Power case 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 plaintiffs had

sustained 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. 461 Should this analysis prevail, ripeness as a limitation on justiciability will decline in importance.

Mootness.—It may be that a case presenting all the attributes

necessary for federal court litigation will at some point lose some

attribute of justiciability, will, in other words, 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. 462 ‘‘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 caseor-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.’’ 463 Since, with the ad-
680 ART. III—JUDICIAL DEPARTMENT

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392 U.S. 40, 57 (1968). See Honig v. Doe, 484 U.S. 305, 317 (1988), and id., 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. Honig, supra, 329 (concurring).464 But see Steffel v. Thompson, 415 U.S. 452, 470–472 (1974); id., 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. 465 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). 466 E.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. (54 U.S.) 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). 467 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). 468 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). 469Sibron v. New York, 395 U.S. 40, 50–58 (1968).

vent of declaratory judgments, it is open to the federal courts to

‘‘declare the rights and other legal relations’’ of the parties with res

judicata effect, 464 the question in cases alleged to be moot now

seems largely if not exclusively to be decided in terms whether an

actual controversy continues to exist between the parties rather

than some additional older concepts. 465

Cases may become moot because of a change in the law, 466 or

in the status of the parties, 467 or because of some act of one of the

parties which dissolves the controversy. 468 But the Court has developed several exceptions, which operate to prevent many of the

cases in which mootness is alleged from being in law moot. 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.’’ 469 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 req-
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470 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). 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). 471Southern Pacific Terminal Co. v. ICC, 219 U.S. 433, 452 (1911); Carroll v.

President & Comrs. 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). 472 United States v. Trans-Missouri Freight Assn., 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 Assn., 393 U.S. 199, 202–

204 (1969); DeFunis v. Odegaard, 416 U.S. 312, 318 (1974); County of Los Angeles

v. Davis, 440 U.S. 625, 631–634 (1979), and id., 641–646 (Justice Powell dissenting);

Vitek v. Jones, 445 U.S. 480, 486–487 (1980), and id., 500–501 (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). 473 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)). 474 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). 475Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).

uisite personal stake giving his case ‘‘an adversary cast and making it justiciable.’’ 470 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. 471

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. 472 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.’ ’’ 473 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.’’ 474

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.’’ 475 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
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476Weinstein 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–

126 (1974), and id., 130–132 (Justice Powell dissenting). The degree of expectation

or likelihood that the issue will recur has frequently divided the Court. Compare

Murphy v. Hunt, supra, with Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976);

compare Honig v. Doe, 484 U.S. 305, 318–323 (1988), with id., 332 (Justice Scalia

dissenting). 477Sibron v. New York, 392 U.S. 40, 49–58 (1968). See Gerstein v. Pugh, 420

U.S. 103 (1975). 478 Carroll v. President & Comrs. of Princess Anne, 393 U.S. 175 (1968). See Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976) (short-term court order restricting

press coverage). 479 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). 480 Roe v. Wade, 410 U.S. 113, 124–125 (1973). 481Sosna 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 Comrs. 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. 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). 482 United States Parole Comm. v. Geraghty, 445 U.S. 388, 396 (1980).

complaining party would be subjected to the same action again,

mootness will not be found when the complained-of conduct

ends. 476 The imposition of short sentences in criminal cases, 477 the

issuance of injunctions to expire in a brief period, 478 and the shortterm factual context of certain events, such as elections 479 or pregnancies, 480 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

and the other party exists. 481 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. 482 Finding a live controversy, the Court determined

that the named plaintiff retained a sufficient interest, ‘‘a personal
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483 Id., 403. Justices Powell, Stewart, Rehnquist, and Chief Justice Burger dissented, Id., 409, arguing there could be no Article III personal stake in a procedural

decision separate from the outcome of the case. In Deposit Guaranty National 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.

484The named plaintiff must still satisfy the class action requirement of adequacy of representation. United States Parole Comm. v. Geraghty, 445 U.S. 388,

405–407 (1980). On the implications of Geraghty, which the Court has not returned

to, see HART & WECHSLER, op. cit., n. 250, 225–230.

485Geraghty, supra, 445 U.S., 404 and n. 11.

486 Id., 419–424 (Justice Powell dissenting).

487For 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).

488Stovall v. Denno, 388 U.S. 293, 301 (1967).

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 ‘‘self-interested parties vigorously advocating opposing positions.’’ 483

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. 484 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. 485

It may be that the evolution in this area will be confined to the

class action context, but cabining of a ‘‘flexible’’ doctrine of standing

may be difficult. 486

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. 487 The Court asserted that

this principle is true, while applying it only to give retroactive effect to the parties to the immediate case. 488 Yet, occasionally, the
684 ART. III—JUDICIAL DEPARTMENT

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489 England v. Louisiana State Board 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). 490 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). 491 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). 492 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, 622–623 (1965) (quoting 1 W. BLACKSTONE, COMMENTARIES *69). 493Lemon v. Kurtzman, 411 U.S. 192, 198–199 (1973). 494Linkletter v. Walker, 381 U.S. 618 (1965); Tehan v. United States ex rel.

Shott, 382 U.S. 406 (1966).

Court did not apply its holding to the parties before it, 489 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 490—constitutional-criminal law decisions. The results

have been confusing and unpredictable. 491

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.’’ 492 Statutory and judge-made law have consequences, at

least to the extent that people must rely on them in making decisions 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. 493 In both criminal and civil cases, however, the

Court’s discretion to do so has been constrained by later decisions.

When in the 1960s the Court began its expansion of the Bill

of Rights and applied the rulings to the States, a necessity arose

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, 494 but the Court then promulgated standards for a balancing

process that resulted in different degrees of retroactivity in dif-
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495 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). 496Desist v. United States, 394 U.S. 224, 248 (1969); United States v. Peltier,

422 U.S. 531 (1975); Brown v. Louisiana, 447 U.S. 323, 335–336 (1980) (plurality

opinion); Michigan v. Payne, 412 U.S. 47, 55 (1973); United States v. Johnson, 457

U.S. 537, 549–550, 551–552 (1982). 497Williams v. United States, 401 U.S. 646, 653 (1971) (plurality opinion);

Brown v. Louisiana, 447 U.S. 323, 328–330 (1980) (plurality opinion); Hankerson v.

North Carolina, 432 U.S. 233, 243 (1977). 498 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). 499Mackey v. United States, 401 U.S. 667, 675 (1971) (separate opinion); Desist

v. United States, 394 U.S. 244, 256 (1969) (dissenting). Justice Powell also strongly

supported the proposed rule. Hankerson v. North Carolina, 432 U.S. 233, 246–248

(1977) (concurring in judgment); Brown v. Louisiana, 447 U.S. 323, 337 (1980) (concurring in judgment). 500Griffith v. Kentucky, 479 U.S. 314, 328 (1987). 501 489 U.S. 288 (1989). 502 492 U.S. 302 (1989).

ferent cases. 495 Generally, in cases in which the Court declared a

rule which was ‘‘a clear break with the past,’’ it denied retroactivity

to all defendants, with the sometime exception of the appellant

himself. 496 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 497 or to cases in which the Court found that a

constitutional doctrine barred the conviction or punishment of

someone, 498 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 lawchanging decision should be entitled to invoke the new rule, but

that no habeas claimant should be entitled to benefit. 499

The Court has now drawn 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.’’ 500 Justice Harlan’s habeas approach was then

adopted by a plurality in Teague v. Lane 501 and then by the Court

in Penry v. Lynaugh. 502 Thus, for collateral review in federal

courts of state court criminal convictions, the general rule is that

‘‘new rules’’ of constitutional interpretation, those that break new

ground or impose a new obligation on the States or the Federal

Government, announced after a defendant’s conviction has become

final will not be applied. For such habeas cases, a ‘‘new rule’’ is defined very broadly to include interpretations that are a logical outgrowth or application of an earlier rule unless the result was ‘‘dic-
686 ART. III—JUDICIAL DEPARTMENT

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503Penry, supra, 492 U.S., 314. 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). 504Teague 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 that a new rule is aimed at improving the accuracy of a trial. . . . 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). 505The 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., 106–107. American Trucking Assns., Inc. v. Smith, 496 U.S. 167,

179–186 (1990) (plurality opinion). 506 James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991); American

Trucking Assns., Inc. v. Smith, 496 U.S. 167 (1990). And, of course, the retirements

since the decisions were handed down further complicate discerning the likely Court

position.

tated’’ by that precedent. 503 The only exceptions are for decisions

placing certain conduct or defendants beyond the reach of the

criminal law, and for decisions recognizing a fundamental procedural right ‘‘without which the likelihood of an accurate conviction

is seriously diminished.’’ 504

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. 505 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 to be unconstitutional, the Court revealed itself to be deeply divided. 506

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
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507 Beam, supra. The holding described in the text is expressly that of only a

two-Justice plurality. Id., 501 U.S., 534–544 (Justices Souter and Stevens). Justice

White, Justice Blackmun, and Justice Scalia (with Justice Marshall joining the latter Justices) concurred, id., 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., 549. 508 Beam, supra, 501 U.S., 549 (dissenting opinion of Justices O’Connor and

Kennedy and Chief Justice Rehnquist), and id., 544 (Justice White concurring). And

see Smith, supra, 496 U.S., 171 (plurality opinion of Justices O’Connor, White, Kennedy, and Chief Justice Rehnquist). 509 Beam, supra, 501 U.S., 547, 548 (Justices Blackmun, Scalia, and Marshall

concurring). These three Justices, in Smith, supra, 496 U.S., 205, had joined the dissenting opinion of Justice Stevens arguing that constitutional decisions must be

given retroactive effect. 510 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,

op. cit., n. 250, 270–294. 511Frank, Political Questions, in E. CAHN (ed.), SUPREME COURT AND SUPREME

LAW (Bloomington: 1954), 36.

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. 507 While partial or selective prospectivity

is thus ruled out, neither pure retroactivity or pure prospectivity

is either required or forbidden.

Four Justices adhered to the principle that new law, new rules,

as defined above, may be applied purely prospectively, without violating any tenet of Article III or any other constitutional value. 508

Three Justices argued that all prospectivity, whether partial or

total, violates Article III by expanding the jurisdiction of the federal courts beyond true cases and controversies. 509 Future cases

must, therefore, be awaited for resolution of this issue.

Political Questions

It may be that there will be a case assuredly within the Court’s

jurisdiction presented by parties with standing in which adverseness and ripeness will exist, a case in other words presenting all

the qualifications we have considered making it a justiciable controversy, which the Court will nonetheless refuse to adjudicate. The

‘‘label’’ for such a case is that it presents a ‘‘political question.’’ Although the Court has referred to the political question doctrine as

‘‘one of the rules basic of the federal system and this Court’s appropriate place within that structure,’’ 510 a commentator has 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.’’ 511 That the concept of political questions may be ‘‘more amenable to description by infinite
688 ART. III—JUDICIAL DEPARTMENT

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512 Ibid. 513 Baker v. Carr, 369 U.S. 186, 208–232 (1962). 514 1 Cr. (5 U.S.) 137, 170 (1803). 515 In Decatur v. Paulding, 14 Pet. (39 U.S.) 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 ordinary 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, 6 Wall. (73 U.S.) 50 (1867); Mississippi v. Johnson,

4 Wall. (71 U.S.) 475 (1867); Kendall v. United States ex rel. Stokes, 12 Pet. (37

U.S.) 524 (1838). 516 3 Dall. (3 U.S.) 199 (1796). 517 12 Wheat. (25 U.S.) 19 (1827). 518 7 How. (48 U.S.) 1 (1849). 519 Cf. Baker v. Carr, 369 U.S. 186, 218–222 (1962); id., 292–297 (Justice Frankfurter dissenting). 520Luther v. Borden, 7 How. (48 U.S.) 1, 40 (1849).

itemization than by generalization’’ 512 is generally true, although

the Court’s development of rationale in Baker v. Carr 513 has

changed this fact radically, but the doctrine may be approached in

two ways, by itemization of the kinds of questions that have been

labeled political and by isolation of the factors that have led to the

labeling.

Origins and Development.—In Marbury v. Madison, 514

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.’’ 515

But the doctrine was asserted even earlier as the Court in

Ware v. Hylton 516 refused to pass on the question whether a treaty

had been broken. And in Martin v. Mott, 517 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 it was in Luther v. Borden 518 that the concept was

first enunciated as a doctrine separate from considerations of interference with executive functions. This case presented the question

of the claims of two competing factions to be the only lawful government of Rhode Island during a period of unrest in 1842. 519

Chief Justice Taney 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. 520

Insofar as the Federal Constitution had anything to say on the

subject, the Chief Justice continued, that was embodied in the
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521 Id., 42 (citing Article IV, § 4). 522 Ibid. 523 Ibid. 524 Id., 43. 525 Id., 44.

clause empowering the United States to guarantee to every State

a republican form of government, 521 and this clause committed determination of the issue to the political branches of the Federal

Government. ‘‘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 neccessarily 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.’’ 522 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.’’ 523

Moreover, in effectuating the provision in the same clause that

the United States should protect them 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 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. 524

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. 525

The Doctrine Before Baker v. Carr.—Over the years, the political question doctrine has been applied to preclude adjudication

of a variety of issues. Certain factors appear more or less consistently through most but not all of these cases, and it is perhaps best

to indicate the cases and issues deemed political before attempting

to isolate these factors.
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526 Article IV, § 4. 527 As it was on the established government of Rhode Island in Luther v. Borden, 7 How. (48 U.S.) 1 (1849). See also Texas v. White, 7 Wall. (74 U.S.) 700 (1869);

Taylor v. Beckham, 178 U.S. 548 (1900). 528Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912); 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, 281 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). 529 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, 21 Wall (88 U.S.) 162, 175–176 (1875) (denial of suffrage to women no violation of republican form of government). 530Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); Chicago & S. Air

Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948). 531 United States v. Palmer, 3 Wheat. (16 U.S.) 610 (1818); Kennett v. Chambers, 14 How. (55 U.S.) 38 (1852). 532 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). 533 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). 534 United States v. Reynes, 9 How. (50 U.S.) 127 (1850); Garcia v. Lee, 12 Pet.

(37 U.S.) 511 (1838); Keene v. McDonough, 8 Pet. (33 U.S.) 308 (1834). See also Williams v. Suffolk Ins. Co., 13 Pet. (38 U.S.) 415 (1839); Underhill v. Hernandez, 168

(1) 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, 526 whether the attack was on the

government of the State itself 527 or on some manner in which it

had acted, 528 but there have been cases in which the Court has

reached the merits. 529

(2) Although there is language in the cases that would if applied make all questions touching on foreign affairs and foreign policy political, 530 whether the courts have adjudicated 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 531 or who is the de jure or de facto

ruler of a foreign state 532 is conclusive on the courts, but in the

absence of a definitive executive action 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. 533 Moreover, the courts have often

determined for themselves what effect, if any, should be accorded

the acts of foreign powers, recognized or unrecognized. 534 Simi-
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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). And see First National City Bank v. Banco Para el Comercio de Cuba, 462

U.S. 611 (1983); W. S. Kirkpatrick Co. v. Environmental Tectronics Corp., 493 U.S.

400 (1990)

535Doe v. Braden, 16 How. (57 U.S.) 635 (1853).

536Terlinden v. Ames, 184 U.S. 270 (1902); Clark v. Allen, 331 U.S. 503 (1947).

537Kennett v. Chambers, 14 How. (55 U.S.) 38 (1852). On the effect of a violation by a foreign state on the continuing effectiveness of the treaty, see Ware v.

Hylton, 3 Dall. (3 U.S.) 199 (1796); Charlton v. Kelly, 229 U.S. 447 (1913).

538Ware v. Hylton, 3 Dall. (3 U.S.) 199 (1796). Cf. Chinese Exclusion Cases, 130

U.S. 581 (1889) (conflict of treaty with federal law). On the modern formulation, see

Japan Whaling Assn. v. American Cetacean Society, 478 U.S. 221, 229–230 (1986).

539Perkins v. Elg, 307 U.S. 325 (1939); United States v. Rauscher, 119 U.S. 407

(1886).

540 Commercial Trust Co v. Miller, 262 U.S. 51 (1923); Woods v. 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,

4 Wheat. (17 U.S.) 52 (1819). The cases involving the status of Indian tribes as foreign states usually have presented political questions but not always. The Cherokee

Nation v. Georgia, 5 Pet. (30 U.S.) 1 (1831); United States v. Sandoval, 231 U.S.

28 (1913); Worcester v. Georgia, 6 Pet. (31 U.S.) 515 (1832).

541Field v. Clark, 143 U.S. 649 (1892); Harwood v. Wentworth, 162 U.S. 547

(1896); cf. Gardner v. The Collector, 6 Wall. (73 U.S.) 499 (1868). See, for the modern formulation, United States v. Munoz-Flores, 495 U.S. 385 (1990).

542 Coleman v. Miller, 307 U.S. 433 (1939) (Congress’ discretion to determine

what passage of time will cause an amendment to lapse and effect of previous rejection by legislature).

larly, 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 535 and

whether a treaty has lapsed because of the foreign state’s loss of

independence 536 or because of changes in the territorial sovereignty of the foreign state, 537 but the Court will not only interpret the domestic effects of treaties, 538 it will at times interpret the

effects bearing on international matters. 539 The Court has 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. 540

(3) Ordinarily, the Court will not look behind the fact of certification that the standards requisite for the enactment of legislation 541 or ratification of a constitutional amendment 542 have in

fact been met, although it will interpret the Constitution to deter-
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543Missouri Pacific 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 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, 253 U.S. 221 (1920); National Prohibition Cases, 253 U.S. 350

(1920); Hollingsworth v. Virginia, 3 Dall. (3 U.S.) 378 (1798) (constitutional amendments). 544Pocket Veto Case, 279 U.S. 655 (1929); Wright v. United States, 302 U.S.

583 (1938). 545 369 U.S. 186 (1962). 546 Colegrove v. Green, 328 U.S. 549 (1946); Colegrove v. Barrett, 330 U.S. 804

(1947). 547South v. Peters, 339 U.S. 276 (1950) (county unit system for election of statewide officers with vote heavily weighed in favor of rural, lightly-populated counties). 548MacDougall v. Green, 335 U.S. 281 (1948) (signatures on nominating petitions must be spread among counties of unequal population). 549Thus, 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). 550Thus, see, e.g., Williams v. Suffolk Ins. Co., 13 Pet. (38 U.S.) 415, 420 (1839).

Similar considerations underlay the opinion in Luther v. Borden, 7 How. (48 U.S.)

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. 551 Baker v. Carr, 369 U.S. 186, 217, 226 (1962) (opinion of the Court); id., 268,

287, 295, (Justice Frankfurter dissenting.) 552For a statement of the ‘‘prudential’’ view, see generally A. BICKEL, THE

LEAST DANGEROUS BRANCH—THE SUPREME COURT AT THE BAR OF POLITICS (New

mine what the basic standards are, 543 and it will decide certain

questions if the political branches are in disagreement. 544

(4) Prior to Baker v. Carr, 545 cases challenging the distribution

of political power through apportionment and districting, 546

weighed voting, 547 and restrictions on political action 548 were held

to present nonjusticiable political questions.

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, necessarily stated baldly in so summary a fashion, would appear to be the lack of requisite information and the difficulty of obtaining it, 549 the necessity for uniformity of decision and

deferrence to the wider responsibilities of the political departments, 550 and the lack of adequate standards to resolve a dispute. 551 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. 552
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York: 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, 6 Wheat. (19 U.S.) 264, 404 (1821). See also H.

WECHSLER, PRINCIPLES, POLITICS, AND FUNDAMENTAL LAW—SELECTED ESSAYS

(Cambridge: 1961), 11–15. 553 369 U.S. 186 (1962). 554Wesberry 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). 555Powell v. McCormack, 395 U.S. 486 (1969). Nonetheless, the doctrine continues to be sighted. 556 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). 557 Id., 369 U.S., 210. 558 Id., 211.

Baker v. Carr.—In Baker v. Carr, 553 the Court undertook a

major rationalization and formulation 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, 554 and the Court’s more

recent rejection of the doctrine discloses the narrowing in other

areas as well. 555

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

question.’ ’’ 556 Thus, the ‘‘nonjusticiability of a political question is

primarily a function of the separation of powers.’’ 557 ‘‘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.’’ 558 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,
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559 Id., 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., 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., 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., 222–226, inasmuch as 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.,

222, a factor not present when the equal protection clause is relied on. Id., 226. 560 Bond v. Floyd, 385 U.S. 116 (1966). 561 395 U.S. 486 (1969). 562 Baker v. Carr, 369 U.S. 186, 217 (1962). 563 Id., 395 U.S., 519.

although each has one or more elements which identify it as essentially a function of the separation of powers.

‘‘Prominent 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.’’ 559

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. 560 But in Powell v.

McCormack, 561 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, 562 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. 563 In
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564 Id., 519–547. The Court concluded, however, by noting that even if this conclusion had not been reached from unambiguous evidence, the result would have followed from other considerations. Id., 547–548. 565Supra, n. 552. See H. WECHSLER, op. cit., n. 552, 11–12. Professor Wechsler

believed that congressional decisions about seating members were immune to review. Ibid. 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). And see id., 507 n. 27 (reservation on limitations that might exist on Congress’ power to expel or otherwise punish a sitting

member). 566 Id., 395 U.S., 548–549. With the formulation of Chief Justice Warren, compare that of then-Judge Burger in the lower court. 395 F.2d 577, 591–596 (D.C.Cir.

1968).

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. 564 Although this approach accords with

the ‘‘classicist’’ theory of judicial review, 565 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 traditionally 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. Since 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. 566 The effect of Powell is to discard

all the Baker factors inhering in a political question, with the exception of the textual commitment factor, and that was interpreted
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567Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Similar prudential concerns seem

to underlay, though they did not provide the formal basis for, decisions in O’Shea

v. Littleton, 414 U.S. 488 (1974), and Mayor of Philadelphia v. Educational Equality

League, 415 U.S. 605 (1974). 568 Id., 413 U.S., 11. Other considerations of justiciability, however, id., 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. 569O’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., 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., 483

n. 4, and id., 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. 997, 998 (Justice Powell rejecting analysis for this type of case).

in such a manner as seldom if ever to preclude a judicial decision

on the merits.

The Doctrine Reappears.—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.’’ 567 The suggestion of the infirmity of the political question doctrine was rejected, since ‘‘because this doctrine

has been held inapplicable to certain carefully delineated situations, it is no reason for federal courts to assume its demise.’’ 568

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. 569

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
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570 Japan Whaling Assn. 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).

571 United States v. Munoz-Flores, 495 U.S. 385 (1990).

572 Id., 390 (emphasis in original).

573 Id., 392–393.

574 Id., 393–395.

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.’’ 570

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

justiciable. 571 Turning back reliance on the various factors set out

in Baker, in much the same tone as in Powell v. McCCormack, 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’ 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.’’ 572 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.’’ 573 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, and the allocation of powers

within a branch, as is the case in interbranch dispositions, is designed to safeguard liberty. 574 Finally, the Court was sanguine

that it could develop ‘‘judicially manageable standards’’ for dispos-
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575 Id., 395–396. 576See the richly detailed summary and citations to authority in G. GUNTHER,

CONSTITUTIONAL LAW (Westbury, N.Y., 12th ed.: 1991), 1–38; For expositions on the

legitimacy of judicial review, see L. HAND, THE BILL OF RIGHTS (Cambridge: 1958);

H. WECHSLER, PRINCIPLES, POLITICS, AND FUNDAMENTAL LAW—SELECTED ESSAYS

(Cambridge: 1961), 1–15; A. BICKEL, THE LEAST DANGEROUS BRANCH—THE SUPREME COURT AT THE BAR OF POLITICS (New York: 1962) 1–33; R. BERGER, CONGRESS V. THE SUPREME COURT (Cambridge: 1969). For an extensive historical attack

on judicial review, see 2 W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES (Chicago: 1953), chs. 27–29, 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 (Englewood Cliffs: 1962

reissue of 1938 ed.), 1–34, 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. 577 1 Cr. (5 U.S.) 137 (1803). A state act was held inconsistent with a treaty in

Ware v. Hylton, 3 Dall. (3 U.S.) 199 (1796). 578 J. GOEBEL, op. cit., n. 2, 60–95. 579 Id., 96–142.

ing of origination clause cases, and, thus, it did not view the issue

as political in that context. 575

In short, the political question doctrine may not be moribund,

but it does seem applicable to a very narrow class of cases.

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. 576 Although it was first asserted in Marbury v.

Madison 577 to strike 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, 578 and there were several instances known to the Framers of state court invalidation of state legislation as inconsistent

with state constitutions. 579

Practically all of the framers who expressed an opinion on the

issue in the Convention appear to have assumed and welcomed the
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580M. FARRAND, op. cit., n. 1, 97–98 (Gerry), 109 (King), 2 id., 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., 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., 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., 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 (Philadelphia: 1836). 131 (Samuel Adams,

Massachusetts), 196–197 (Ellsworth, Connecticut). 348, 362 (Hamilton, New York):

445–446. 478 (Wilson, Pennsylvania), 3 id., 324–325, 539, 541 (Henry, Virginia), 480

(Mason, Virginia), 532 (Madison, Virginia), 570 (Randolph, Virginia); 4 id., 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., 553–554. 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 acquiesence 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 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.’’ F. WHARTON (ed.),

STATE TRIALS OF THE UNITED STATES DURING THE ADMINISTRATIONS OF WASHINGTON AND ADAMS (Philadelphia: 1849), 412.

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, G. Hunt ed.

(Philadelphia: 1904), 385. 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

existence of court review of the constitutionality of legislation, 580
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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., 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 (New York: 1950), 460–464. 467–471; 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, op. cit., 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, op. cit., n. 576, chs. 3–4. 581Thus, the Justices on circuit refused to adminster a pension act on grounds

of its unconstitutionally, see Hayburn’s Case, 2 Dall. (2 U.S.) 409 (1792), and supra,

pp. 621–623. Chief Justice Jay and other Justices wrote that the imposition of circuit duty on Justices was unconstitutional, although they never mailed the letter,

supra, p. 599 n. 21, in Hylton v. United States, 3 Dall. (3 U.S.) 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 Dall. (3 U.S.) 199 (1797), a state law

was overturned, and dicta in several opinions asserted the principle. See Calder v.

Bull, 3 Dall. (3 U.S.) 386, 399 (1798) (Justice Iredell), and several Justices on circuit, quoted in J. GOEBEL, op. cit., n. 2, 589–592. 582 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

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. . . .’’ 583See in particular the debate on the President’s removal powers, discussed

supra. pp. 522–531, with statements excerpted in R. BERGER, op. cit., n. 576, 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, op. cit., n. 12, 107–124.

and prior to Marbury the power seems very generally to have been

assumed to exist by the Justices themselves. 581 In enacting the Judiciary Act of 1789, Congress explicitly made provision for the exercise of the power, 582 and in other debates questions of constitutionality and of judicial review were prominent. 583 Nonetheless, although judicial review is consistent with several provisions of the

Constitution and the argument for its existence may be derived

from these provisions, they do not compel the conclusion that the

Framers intended judicial review nor that it must exist. It was
ART. III—JUDICIAL DEPARTMENT 701

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584 1 Cr. (5 U.S.) 137 (1803). 585THE FEDERALIST, Nos. 78 and 81 (J. Cooke ed. 1961), 521–530, 541–552. 586 Id., No. 78, at 525. 587 1 Stat. 73, 80. 588The 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 semi-colon, 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. 589Marbury v. Madison, 1 Cr. (5 U.S.) 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.

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 584 had

been largely anticipated by Hamilton. 585 For example, he had written: ‘‘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.’’ 586

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, 587

which Marbury, and ultimately the Supreme Court, interpreted to

authorize the Court to issue writs of mandamus in suits in its

original jurisdiction. 588 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. 589
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590 Id., 1 Cr. (5 U.S.), 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, op. cit., n. 576, 3. Marshall, however, soon reached this

question, though more by way of assertion than argument. Id., 1 Cr. (5 U.S.), 177–

178.591 Id., 176–177. 592 Id., 177–178. 593 Id., 178.

‘‘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.’’ 590 First, certain fundamental principles warranting

judicial review were noticed. 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,’’ it is unchangeable by ordinary legislative means

and ‘‘a legislative act contrary to the constitution is not law.’’ 591 ‘‘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. . . . If two laws conflict with each

other, the courts must decide on the operation of each.

‘‘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.

‘‘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.’’ 592 To declare otherwise, Chief Justice Marshall

said, would be to permit a legislative body to pass at pleasure the

limits imposed on its powers by the Constitution. 593

Turning, then, from the philosophical justification for judicial

review as arising from the very concept of a written constitution,

the Chief Justice turned to specific clauses of the Constitution. The

judicial power, he observed, was extended to ‘‘all cases arising
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594 Ibid. 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, op. cit., n. 576, 5–6, with R. BERGER, op.

cit., n. 576, 189–222. 595 Id., 1 Cr. (5 U.S.), 179. 596 Id., 179–180. The oath provision is contained in Art. VI, cl. 3. Compare A.

BICKEL, op. cit., n. 576, 7–8, with R. BERGER, op. cit., n. 576, 237–244. 597 Id., 1 Cr. (5 U.S.), 180. Compare A. BICKEL, op. cit., n. 576, 8–12, with R.

BERGER, op. cit., n. 576, 223–284. 598 E. CORWIN, THE DOCTRINE OF JUDICIAL REVIEW (Princeton: 1914), 75–78;

Nelson, Changing Conceptions of Judicial Review: The Evolution of Constitution

Theory in the State, 1790–1860, 120 U. Pa. L. Rev. 1166 (1972). 599 2. W. CROSSKEY, op. cit., n. 576, 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 (Boston: 1921), 295–296. 600 1 Stat. 73, 85, quoted supra, n. 582.

under the constitution.’’ 594 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.’’ 595 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. 596 Finally, the Chief Justice noticed the supremacy clause, which gave the Constitution precedence over laws and treaties and provided that only laws ‘‘which

shall be made in pursuance of the constitution’’ are to be the supreme laws of the land. 597

The decision in Marbury v. Madison has never been disturbed,

although it has been criticized and has had opponents throughout

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. 598

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 and constitutional laws and treaties the supreme law of the land, 599 to effectuate which Congress enacted the famous § 25 of the Judiciary

Act of 1789. 600 Five years before Marbury v. Madison, the Court
704 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl. 1—Judicial Review

601Ware v. Hylton, 3 Dall. (3 U.S.) 190 (1796). 602Fletcher v. Peck, 6 Cr. (10 U.S.) 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, 4 Wheat. (17 U.S.) 122 (1819); McCulloch v. Maryland,

4 Wheat, (17 U.S.) 316 (1819). 603 1 Wheat (14 U.S.) 304 (1816). 604 6 Wheat, (19 U.S.) 264 (1821). 605 Id., 379. 606 Id., 422–423. Justice Story traversed much of the same ground in Martin v.

Hunter’s Lessee, 1 Wheat. (14 U.S.) 304 (1816). In Ableman v. Booth, 21 How. (62

U.S.) 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 Wilheld invalid a state law as conflicting with the terms of a treaty, 601

and seven years after Chief Justice Marshall’s opinion a state law

was voided as conflicting with the Constitution. 602

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 603 and in Cohens v. Virginia. 604 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 answered Chief Justice Marshall: ‘‘A case in law or equity consists of the right of the one party, as well 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.’’ 605 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.’’ 606
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Sec. 2—Jurisdiction Cl. 1—Judicial Review

liams 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. And see Cooper v. Aaron, 358 U.S. 1 (1958). 607The 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 R. POST (ed.), LAW AND THE

ORDER OF CULTURE (1991), 13–41. 608 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 443 (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).

Limitations on the Exercise of Judicial Review

Constitutional Interpretation.—In a system such as the one

in the United States in which there is a written constitution, which

is law and is binding on government, the practice of judicial review

inherently raises questions of the relationship between constitutional interpretation or construction and the Constitution—the

law—which 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 was most recently in the 1960s to the present. 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. 607 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

constitutional 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. 608
706 ART. III—JUDICIAL DEPARTMENT

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609This mode is most strongly association with C. BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969). 610 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., 2, Justice Stevens, id., 15, and Attorney General Meese. Id.,

22. See also Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693

(1976). 611 1 Cr. (5 U.S.) 137 (1803). 612 6 Wheat. (19 U.S.) 264, 404, (1821).

Using a structural argument, one seeks to infer structural rules

from the relationships that the Constitution mandates. 609 The remaining three modes sound in reasoning 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. 610 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.

Prudential Considerations.—Implicit in the argument of

Marbury v. Madison 611 is the thought that with regard to cases

meeting jurisdictional standards, the Court is obligated to take and

decide them. Chief Justice Marshall expressly spelled the thought

out in Cohens v. Virginia: 612 ‘‘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
ART. III—JUDICIAL DEPARTMENT 707

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613See, 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). 614 ‘‘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, 9 Wheat. (22 U.S.) 738, 866 (1824) (Chief Justice Marshall). See also Justice Roberts in United States v. Butler, 297 U.S. 1, 62–

63 (1936). 615The 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, 346–356

(1936) (Justice Brandeis concurring). 616Powell v. McCormack, 395 U.S. 486, 548–549 (1969); Baker v. Carr, 369 U.S.

186, 211 (1962); Zwickler v. Koota, 389 U.S. 241, 248 (1967). 617 28 U.S.C. §§ 1254–1257. See F. FRANKFURTER & J. LANDIS, op. cit., n. 12, 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 Constitutional 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).

618See Justice Brandeis’ concurring opinion in Ashwander v. TVA, 297 U.S.

288, 346 (1936). And contrast A. BICKEL, op. cit., n. 576, 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).

what the law is in specific cases 613 and are without will or discretion, 614 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. 615 But, although there are hints of Chief Justice Marshall’s activism in recent cases, 616 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. 617

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. 618

The Doctrine of ‘‘Strict Necessity.’’—The Court has repeatedly declared that it will decide constitutional issues only if strict
708 ART. III—JUDICIAL DEPARTMENT

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619 Rescue Army v. Municipal Court, 331 U.S. 549, 568–575 (1947). See also

Berea College v. Kentucky, 211 U.S. 45, 53 (1908); Siler v. Louisville & N.R.R. Co.,

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. 620 Rescue Army v. Municipal Court, 331 U.S. 549, 571 (1947). 621The Origin and Scope of the American Doctrine of Constitutional Law, in J.

THAYER, LEGAL ESSAYS (Boston: 1908), 1, 21. 622See Justices Chase and Iredell in Calder v. Bull, 3 Dall. (3 U.S.) 386, 395,

399 (1798).

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. 619

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 the paramount importance of constitutional adjudication

in our system.’’ 620

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.’’ 621 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 622
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623 E.g., Flemming v. Nestor, 363 U.S. 603, 611 (1960). 624 ‘‘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). 625Kovacs v. Cooper, 336 U.S. 77, 88 (1949). Justice Frankfurter’s concurrence,

id., 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. 626 ‘‘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. 575, 580 (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, 6 Cr. (10 U.S.)

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 Public Education and Religious Liberty v. Regan,

444 U.S. 646, 653 (1980), and id., 665 (dissent). Other constitutional decisions as

well have 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).

and of modern adherence. 623 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; 624 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. 625

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, 626 or with its concurrence with natural justice,

fundamental principles of government, or the spirit of the Constitu-
710 ART. III—JUDICIAL DEPARTMENT

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627 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. 628 E.g., Lochner v. New York, 198 U.S. 45 (1905); United States v. Butler, 297

U.S. 1 (1936). 629Ogden v. Saunders, 12 Wheat. (25 U.S.) 213, 270 (1827). See also Fletcher

v. Peck, 6 Cr. (10 U.S.) 87, 128 (1810); Legal Tender Cases, 12 Wall. (79 U.S.) 457,

531 (1871). 630Munn 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). 631 E.g., United States v. Robel, 389 U.S. 258 (1967); United Mine Workers v.

Illinois State Bar Assn., 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. 632 Rust v. Sullivan, 500 U.S. 173, 190–191 (1991); Public Citizen v. United

States Dept. of Justice, 491 U.S. 440, 465–467 (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). 633 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

tion. 627 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. 628

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.’’ 629 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. 630 It seems

apparent, however, that with regard to laws which trench upon

First Amendment freedoms and perhaps other rights guaranteed

by the Bill of Rights such deference is far less than it would be toward statutory regulation of economic matters. 631

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, 632 even though in some instances this maxim has

caused the Court to read a statute in a manner which defeats or

impairs the legislative purpose. 633 Of course, the Court stresses
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(1965): Welsh v. United States, 398 U.S. 333 (1970) (both involving conscientious

objection statute). 634 United States v. Locke, 471 U.S. 84, 96 (1985) (quoting Moore Ice Cream Co.

v. Rose, 289 U.S. 373, 379 (1933)). 635 Rust v. Sullivan, 500 U.S. 173, 191 (1991); but compare id., 204–207 (Justice

Blackmun dissenting), and 223–225 (Justice O’Connor dissenting). See also Peretz

v. United States, 501 U.S. 923, 929–930 (1991). 636 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). 637 Carter v. Carter Coal Co., 298 U.S. 238, 312–316 (1936). See also, id., 321–

324 (Chief Justice Hughes dissenting). 638 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 of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791,

2808–2816 (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, 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., 2860–2867 (Chief Justice Rehnquist concurring in part and dissenting in part),

2880–2885 (Justice Scalia concurring in part and dissenting in part). See also Payne

v. Tennessee, 501 U.S. 808, 827–830 (1991) (suggesting, inter alia, that reliance is

relevant in contract and property cases), and id., 835, 842–844 (Justice Souter concurring), 844, 848–856 (Justice Marshall dissenting).

that ‘‘[w]e cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.’’ 634 The

maxim is not followed if the provision would survive constitutional

attack or if the text is clear. 635 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. 636 Statutes today ordinarily expressly provide for

separability, but it remains for the courts in the last resort to determine whether the provisions are separable. 637

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 commonly 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.’’ 638 Stare decisis is a principle of policy, not

a mechanical formula of adherence to the latest decision ‘‘however
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639 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., 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). 640 157 U.S. 429, 574–579 (1895). 641See 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., 175 n. 1, with id., 190–205 (Justice Brennan concurring in the judgment in part and dissenting in part). See also

Flood v. Kuhn, 407 U.S. 258 (1972). 642 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). And

compare Justice Harlan’s views in Mapp v. Ohio, 367 U.S.643, 674–675 (1961) (dissenting), with Glidden v. Zdanok, 370 U.S. 530, 543 (1962) (opinion of the Court). 643 Notice that in Planned Parenthood of Southeastern Pennsylvania v. Casey,

112 S.Ct. 2791 (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.

And see, 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). And see id., 361 (Justice

Blackmun concurring.) 644Terminiello v. City of Chicago, 337 U.S. 1, 11 (1949) (dissenting).

recent and questionable, when such adherence involves collision

with a prior doctrine more embracing in its scope, intrinsically

sounder, and verified by experience.’’ 639 The limitation of stare decisis seems to have been progressively weakened since the Court

proceeded to correct ‘‘a century of error’’ in Pollock v. Farmers’

Loan & Trust Co. 640 Since then, more than 200 decisions have

seen one or more earlier decisions overturned, 641 and the merits of

stare decisis seems more often celebrated in dissents than in majority opinions. 642 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 the case while leaving the actual case more or less

alive. 643

Conclusion.—The common denominator of all these maxims

of prudence is the concept of judicial restraint, of judge’s restraint.

‘‘We do not sit,’’ said Justice Frankfurter, ‘‘like kadi under a tree,

dispensing justice according to considerations of individual expediency.’’ 644 ‘‘[A] jurist is not to innovate at pleasure,’’ wrote Jutice

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
ART. III—JUDICIAL DEPARTMENT 713

Sec. 2—Jurisdiction Federal Question Jurisdiction

645 B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (New Haven: 1921),

141.646 Compare Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (Justice Douglas), with id., 507 (Justice Black). 647West Virginia State Board of Education v. Barnette, 319 U.S. 624, 646

(1943) (dissenting). 648 Cohens v. Virginia, 6 Wheat, (19 U.S.) 264, 378 (1821). 649M. FARRAND, op. cit., n. 1, 22, 211–212, 220, 244; 2 id., 146–147, 186–187. 650 Id., 423–424, 430, 431. 651 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., 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,

n. 582.

order in the social life.’’ 645 All Justices will, of course, claim adherence to proper restraint, 646 but in some cases at least, such as Justice Frankfurter’s dissent in the Flag Salute Case, 647 the practice

can be readily observed. The degree, however, of restraint, the degree to which legislative enactments 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. 648 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; 649 such cases involving the Constitution and treaties were added fairly late in the Convention as floor amendments. 650 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. 651 Although there were a few juris-
714 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Federal Question Jurisdiction

652 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. 653 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. 654 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, op. cit.,

n. 12.655For a brief summary, see HART & WECHSLER, op. cit., n. 250, 960–966. 656 28 U.S.C. § 1331(a). The original Act was worded slightly differently. 657Osborn v. Bank of the United States, 9 Wheat. (22 U.S.) 738 (1824). See also

Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 379 (1821). 658 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS (St. Paul: 4th ed.

1983), § 17. 659See generally Merrill Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804

(1986); Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1

(1983). 660 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, 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).

dictional provisions enacted in the early years, 652 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 653

and then in 1875 conferred general federal question jurisdiction on

the lower federal courts. 654 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. 655

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,’’ 656 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. 657 The result was probably to

accept more jurisdiction than Congress had intended to convey. 658

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. 659 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. 660 Plaintiffs may not anticipate that defendants will raise a federal question in answer to the
ART. III—JUDICIAL DEPARTMENT 715

Sec. 2—Jurisdiction Federal Question Jurisdiction

661Louisville & N.R. Co. 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). 662Such was the rule derived from Osborn v. Bank of the United States, 9

Wheat. (22 U.S.) 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). 663 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). 664Gully v. First National Bank in Meridian, 299 U.S. 109, 117 (1936). 665 Id., 112–113. Compare Wheeldin v. Wheeler, 373 U.S. 647 (1963), with

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 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). 666For 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). 667 E.g., Pacific Railroad Removal Cases, 115 U.S. 1 (1885), and see id., 24

(Chief Justice Waite dissenting).

action. 661 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. 662

Many suits will present federal questions because a federal law

creates the action. 663 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].’’ 664

‘‘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. . . . 665

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. 666 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. 667
716 ART. III—JUDICIAL DEPARTMENT

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668 § 12, 1 Stat. 79. 669The 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 H. HART & H. WECHSLER, op. cit., n. 250, 1192–1194. See 28 U.S.C. §§ 1442,

1442a. 670 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. 671 28 U.S.C. § 1441. 672 28 U.S.C. § 1443. 673Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 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. 674 Chicago & Nw. Ry. Co. v. Whitton’s Administrator, 13 Wall. (80 U.S.) 270

(1872). Removal here was based on diversity of citizenship. See also The Moses Taylor, 4 Wall. (71 U.S.) 411, 429–430 (1867); The Mayor v. Cooper, 6 Wall. (73 U.S.)

247 (1868). 675 100 U.S. 257 (1880).

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, 668 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. 669 The 1875 Act conferring general federal question jurisdiction on the federal courts provided for removal of such cases by either party, subject only to the jurisdictional amount limitation. 670

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. 671 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. 672

The constitutionality of congressional provisions for removal

was challenged and readily sustained. Justice Story analogized removal to a form of exercise of appellate jurisdiction, 673 and a later

Court saw it as an indirect mode of exercising original jurisdiction

and upheld its constitutionality. 674 In Tennessee v. Davis, 675 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,
ART. III—JUDICIAL DEPARTMENT 717

Sec. 2—Jurisdiction Federal Question Jurisdiction

676 Id., 263–264.

677 Id., 264–265.

678Willingham 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. Administrators of Tulane Educational Fund,

500 U.S. 72 (1991).

679Georgia 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).

680 9 Wheat. (22 U.S.) 738 (1824).

here the judiciary. 676 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 right or privilege, or claim or protection, or defence 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.’’ 677 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. 678 Other removal statutes,

notably the civil rights removal statute, have not been so broadly

interpreted. 679

Corporations Chartered by Congress.—In Osborn v. Bank

of the United States, 680 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
718 ART. III—JUDICIAL DEPARTMENT

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681The First Bank could not sue because it was not so authorized. Bank of the

United States v. Deveaux, 5 Cr. (9 U.S.) 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. Co., 241 U.S. 295 (1916), but in American National Red Cross v.

S. G., 112 S.Ct. 2465 (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. 682 115 U.S. 1 (1885). 683 § 4, 22 Stat. 162. 684 § 5, 38 Stat. 803. 685See 28 U.S.C. § 1349. 686 § 301, 61 Stat. 156 (1947), 29 U.S.C. § 185. 687Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957). Earlier the

Court had given the section a restricted reading in Assn. of Westinghouse Salaried

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., 449–452,

459–461 (opinion of Justice Frankfurter). In Lincoln Mills, supra, 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., 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 Assn., 371 U.S. 195 (1962).

was a party. 681 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 Railroad Removal Cases 682 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 solely on the basis of federal incorporation in

1882, 683 deprived railroads holding federal charters of this right in

1915, 684 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. 685

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. 686 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. 687 State courts are not disabled from hearing actions brought
ART. III—JUDICIAL DEPARTMENT 719

Sec. 2—Jurisdiction Federal Question Jurisdiction

688 Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962). 689Local 174, 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). 690For 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.

While inference is an acceptable means of judicial enforcement of statutes, e.g.,

Texas & Pacific R. Co. 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. Boak, 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 it will imply 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

Assn., 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 Federation of Federal 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, hesitating to find implied actions. E.g., Chappell v. Wallace,

462 U.S. 296 (1983); Bush v. Lucas, 462 U.S. 367 (1983); Schweiker v. Chilicki, 487

U.S. 412 (1988). ‘‘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. Milwaukee, 406 U.S. 91

(1972); International Paper Co. v. Ouellette, 479 U.S. 481 (1987). And see 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. Illiniois, 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). 691 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

under the section, 688 but they must apply federal law. 689 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. 690

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. 691 Because it contains no
720 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Federal Question Jurisdiction

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 Dept. 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, supra; 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

was a jurisdictional amount provision in the federal question statute but is of little

significance today. 692See 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, 546–548

(1972). On the valuation of constitutional rights, see Carey v. Piphus, 435 U.S. 247

(1978). And see 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). 693 28 U.S.C. § 1331 was amended in 1976 and 1980 to eliminate the jurisdictional amount requirement. P.L. 94–574, 90 Stat. 2721; P.L. 96–486, 94 Stat. 2369. 694Patsy v. Board of Regents, 457 U.S. 496 (1982). This had been the rule since

at least McNeese v. Board of Education, 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). 695Thus, 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. 696 Civil Rights Attorneys’ Fees Award Act of 1976, P.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). 697 Civil Rights of Institutionalized Persons Act, P.L. 96–247, 94 Stat. 349

(1980), 42 U.S.C. § 1997 et seq.

jurisdictional amount provision 692 (while the general federal question statute until recently did) 693 and because the Court has held

inapplicable the judicially-created requirement that a litigant exhaust his state remedies before bringing federal action, 694 the statute has been heavily utilized, 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. 695

Congress has encouraged utilization of the two statutes by providing for attorneys’ fees under § 1983 696 and by enacting related and

specialized complementary statutes. 697 The Court in recent years

has generally interpreted § 1983 and its jurisdictional statute

broadly, but it has also sought to restrict to some extent the kinds
ART. III—JUDICIAL DEPARTMENT 721

Sec. 2—Jurisdiction Federal Question Jurisdiction

698 E.g., Parratt v. Taylor, 451 U.S. 527 (1981); Ingraham v. Wright, 430 U.S.

651 (1977). 699Maine v. Thiboutot, 448 U.S. 1 (1980). 700Levering & Garringues Co. v. Morrin, 289 U.S. 103, 105 (1933); Hagans v.

Lavine, 415 U.S. 528, 534–543 (1974). 701Osborn v. Bank of the United States, 9 Wheat. (22 U.S.) 738, 822–828

(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). 702 Id., 725. This test replaced a difficult-to-apply test of Hurn v. Oursler, 289

U.S. 238, 245–246 (1933). 703Siler v. Louisville & Nashville R. Co., 213 U.S. 175 (1909); Greene v. Louisville & Interurban R. Co., 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 & Hospital 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. 704 United Mine Workers v. Gibbs, 383 U.S. 715, 726–727 (1966).

of claims that may be brought in federal courts. 698 It should be

noted that § 1983 and § 1343(3) need not always go together, inasmuch as § 1983 actions may be brought in state courts. 699

Pendent Jurisdiction.—Once jurisdiction has been acquired

through allegation of a federal question not plainly wanting in substance, 700 a federal court may decide any issue necessary to the

disposition of a case, notwithstanding that other non-federal questions of fact and law may be involved therein. 701 ‘‘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.’’ 702 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. 703 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 was substantially predominate, the court would be justified in dismissing

the state claim. 704

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
722 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Federal Question Jurisdiction

705The initial decision was Freeman v. Howe, 24 How. (65 U.S.) 450 (1861), in

which federal jurisdiction was founded on diversity of citizenship. 706Moore v. New York Cotton Exchange, 270 U.S. 593 (1926). 707 Romero v. International Terminal Operating Co., 358 U.S. 354, 380–381

(1959); Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963). 708 Rosado v. Wyman, 397 U.S. 397, 400–405 (1970). 709 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). 710 Aldinger v. Howard, 427 U.S. 1 (1976). 711 490 U.S. 545 (1989). 712 Id., 553, 556. 713 Act of Dec. 1, 1990, P. L. 101–650, 104 Stat. 5089, § 310, 28 U.S.C. § 1367.

had been independently presented. 705 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. 706 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

only in admiralty would be tried without a jury. 707 And a colorable

constitutional claim has been held to support jurisdiction over a

federal statutory claim arguably not within federal jurisdiction. 708

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. 709 While the Supreme

Court at first tentatively found some merit in the idea, 710 in Finley

v. United States, 711 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. 712 Within the year,

Congress supplied the affirmative grant, adopting not only pendent

party jurisdiction but codifying as well pendent jurisdiction and ancillary jurisdiction under the name of ‘‘supplemental jurisdiction.’’ 713

Thus, these interrelated doctrinal standards seem now 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
ART. III—JUDICIAL DEPARTMENT 723

Sec. 2—Jurisdiction Federal Question Jurisdiction

714 National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949);

Tetile Workers v. Lincoln Mills, 353 U.S. 448 (1957); and see the bankruptcy cases,

Schumacher v. Beeler, 293 U.S. 367 (1934); Williams v. Austrian, 331 U.S. 642

(1947). 715 461 U.S. 480 (1983). 716 E.g., Mesa v. California, 489 U.S. 121, 136–137 (1989) (would ‘‘present grave

constitutional problems). 717On § 25, see 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, P.L. 100–352, § 3, 102 Stat. 662.

being the ‘‘law of the United States’’ within the meaning of Article

III, even thoug Congress has enacted no substantive rule of decision and state law is to be applied. Put forward in controversial

cases, 714 the doctrine has neither been rejected nor accepted by the

Supreme Court. In Verlinden B. V. v. Central Bank of Nigeria, 715

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. 716

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, 717 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
724 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Federal Question Jurisdiction

718 28 U.S.C. § 1257(a). See R. STERN & E. GRESSMAN, SUPREME COURT PRACTICE (Washington; 6th ed. 1986), ch. 3.

719Grovey 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. 516, 517

(1968); Koon v. Aiken, 480 U.S. 943 (1987). In Cohens v. Virginia, 6 Wheat. (19

U.S.) 264 (1821), the judgment reviewed was that of the Quarterly Session Court

for the Borough of Norfolk, Virginia. 720Market Street R. Co., v. Railroad Comm., 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 Dept. of Corrections, 452 U.S. 105

(1981). In recent years, however, 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 in the lower state courts to come. Cox Broadcasting Corp.

v. Cohn, 420 U.S. 469, 476–487 (1975). See also Fort Wayne Books v. Indiana, 489

U.S. 46, 53–57 (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). 721 Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 67–69 (1948); Radio

Station WOW v. Johnson, 326 U.S. 120, 123–124 (1945). 722 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). 723Murdock v. City of Memphis, 20 Wall. (87 U.S.) 590 (1874); Black v. Cutter

Laboratories, 351 U.S. 292 (1956); Wilson v. Loew’s, Inc., 355 U.S. 597 (1958).

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.’’ 718 This will

ordinarily be the State’s court of last resort, but it could well be

an 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. 719 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.’’ 720 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. 721 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. 722

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. 723 ‘‘The reason is so obvious that it has rarely

been thought to warrant statement. It is found in the partitioning
ART. III—JUDICIAL DEPARTMENT 725

Sec. 2—Jurisdiction Federal Question Jurisdiction

724 Herb v. Pitcairn, 324 U.S. 117, 125–126 (1945). 725 E.g., Howlett by Howlett v. Rose, 496 U.S. 356, 366 (1990); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455 (1958). 726Fox Film Corp. v. Muller, 296 U.S. 207 (1935); Cramp v. Board of Public Instruction, 368 U.S. 278 (1961). 727Wood v. Chesborough, 228 U.S. 672, 676–680 (1913). 728Lynch 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, 13 Wall. (80 U.S.) 257, 263 (1872); cf. Department of Mental Hygiene

v. Kirchner, 380 U.S. 194 (1965). 729Poafpybitty v. Skelly Oil Co., U.S. 365, 375–376 (1968). 730Southwestern 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 reof 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

court after we corrected its views of Federal laws, our review could

amount to nothing more than an advisory opinion.’’ 724 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. 725

The first question may be raised by several factual situations.

A state court may have based its decision on two grounds, one federal, one nonfederal. 726 It may have based its decision solely on a

nonfederal ground but the federal ground may have been clearly

raised. 727 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. 728 Or the state court

may have decided the federal question although it could have based

its ruling on an adequate, independent nonfederal ground. 729 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. 730
726 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—Ambassadors

quired 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). 731Murdock v. City of Memphis, 20 Wall. (87 U.S.) 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) 732 Enterprise Irrigation District v. Farmers’ Mutual Canal Co., 243 U.S. 157,

164 (1917); Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 290 (1958). 733 Enterprise Irrigation District v. Farmers’ Mutual Canal Co., 243 U.S. 157,

164 (1917); Ward v. Love County, 253 U.S. 17. 22 (1920); Staub v. Baxley, 355 U.S.

313, 319–320 (1958). 734 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). 735Davis 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. Califonia, 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). 736 United States v. Ravara, 2 Dall. (2 U.S.) 297 (C.C. Pa. 1793). 737 Bors v. Preston, 111 U.S. 252 (1884).

With regard to the second question, in order to preclude Supreme Court review, the nonfederal ground must be broad enough,

without reference to the federal question, to sustain the state court

judgment, 731 the nonfederal ground must be independent of the

federal question, 732 and the nonfederal ground must be a tenable

one. 733 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, 734 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. 735

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. 736 Many years later, the Supreme Court held that consuls

could be sued in the federal courts, 737 and in another case in the

same year declared sweepingly that Congress could grant concur-
ART. III—JUDICIAL DEPARTMENT 727

Sec. 2—Jurisdiction Cl.1—Ambassadors

738 Ames v. Kansas ex rel. Johnston, 111 U.S. 449, 469 (1884).

739 280 U.S. 379, 383, 384 (1930). Now precluded by 28 U.S.C. § 1351.

740 11 Wheat. (24 U.S.) 467 (1826).

741 In re Baiz, 135 U.S. 403, 432 (1890).

742 Ex parte Gruber, 269 U.S. 302 (1925).

743 1 Stat. 80–81 (1789). Jurisdiction in the Supreme Court since 1978 has been

original but not exclusive. P.L. 95–393, § 8(b), 92 Stat. 810, 28 U.S.C. § 1251(b)(1).

rent jurisdiction to the inferior courts in cases where Supreme

Court has been invested with original jurisdiction. 738 Nor does the

grant of original jurisdiction to the Supreme Court in cases affecting ambassadors and consuls of itself preclude suits in state courts

against consular officials. The leading case is Ohio ex rel. Popovici

v. Agler, 739 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, 740 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. 741 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. 742 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. 743 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.
728 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—Admiralty

744G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY (Brooklyn: 1957), ch. 1. 745 Nothing really appears in the records of the Convention which sheds light

on the Framers’ views about admiralty. The present clause was contained in the

draft of the Committee on Detail. 2 M. FARRAND, op. cit., n. 1, 186–187. None of

the plans presented to the Convention, with the exception of an apparently authentic Charles Pinckney plan. 3 id., 601–604, 608, had mentioned an admiralty jurisdiction in national courts. See Putnam, How the Federal Courts Were Given Admiralty

Jurisdiction, 10 CORN. L.Q. 460 (1925). 746G. GILMORE AND C. BLACK, op. cit. n. 744, 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, 5 How. (46 U.S.) 441, 451–459 (1847); New Jersey Steam

Navigation Co. v. Merchants’ Bank of Boston, 6 How. (47 U.S.) 34, 385–390 (1848).

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 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. 744 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. 745

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. 746 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
ART. III—JUDICIAL DEPARTMENT 729

Sec. 2—Jurisdiction Cl.1—Admiralty

747 § 9, 1 Stat. 77 (1789), now 28 U.S.C. § 1333 in only slightly changed fashion.

For the classic exposition, see Black, Admiralty Jurisdiction: Critique and Suggestions, 50 COLUM. L. REV. 259 (1950). 748 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). 749The Vengeance, 3 Dall. (3 U.S.) 297 (1796); The Schooner Sally, 2 Cr. (6

U.S.) 406 (1805): The Schooner Betsy, 4 Cr. (8 U.S.) 443 (1808); The Samuel, 1

Wheat. (14 U.S.) 9 (1816); The Octavig, 1 Wheat. (14 U.S.) 20 (1816). 750 New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 6 How. (47

U.S.) 334, 386 (1848); see also Waring v. Clarke, 5 How. (46 U.S.) 441 (1847). 751Swift & 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, 360–361

(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, 21 Wall. (88 U.S.) 558, 576–577 (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).

suitors, in all cases, the right of a common law remedy, where the

common law is competent to give it; . . .’’ 747 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 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. 748

Although a number of Supreme Court decisions had earlier

sustained the broader admiralty jurisdiction on specific issues, 749

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.’’ 750 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. 751 But what of the power of Congress in
730 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—Admiralty

752 21 Wall. (88 U.S.) 558 (1875). 753 Id., 572. 754 Id., 574–575. 755 Id., 577. 756 E.g., The Daniel Ball, 10 Wall, (77 U.S.) 557, 564 (1871); Moore v. American

Transp. Co., 24 How. (65 U.S.) 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). 757 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).

this area? In The Lottawanna, 752 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

usages of that country.’’ 753 ‘‘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.’’ 754

‘‘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.’’ 755

That Congress’ power to enact substantive maritime law was conferred by the commerce clause was assumed in numerous opinions, 756 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. 757

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
ART. III—JUDICIAL DEPARTMENT 731

Sec. 2—Jurisdiction Cl.1—Admiralty

758 Butler v. Boston & S. S.S. Co., 130 U.S. 527, 557 (1889). 759 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.

Co. 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. Co. v. Johnson, supra, 386–387; Detroit Trust Co. v. The

Thomas Barlum, 293 U.S. 21, 43–44 (1934). 760Thus, 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. Dept. 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, 1 Pet. (26

U.S.) 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 dissenton the same subject must necessarily be in the national legislature

and not in the state legislatures.’’ 758 Rejecting an attack on a maritime statute as an infringment 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 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.’’ 759

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. 760
732 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—Admiralty

ing 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.

761DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815) (Justice

Story); Waring v. Clarke, 5 How. (46 U.S.) 441 (1847).

762Sheppard v. Taylor, 5 Pet. (30 U.S.) 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).

763 Insurance Co. v. Dunham, 11 Wall. (78 U.S.) 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.), cert.

den., 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).

764Knapp, 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).

765 Atlee v. Packet Co., 21 Wall. (88 U.S.) 389 (1875); Ex parte McNiel, 13 Wall.

(80 U.S.) 236 (1872). See also Sun Oil v. Dalzell Towing Co., 287 U.S. 291 (1932).

766The Grapeshot, 9 Wall. (76 U.S.) 129 (1870); O’Brien v. Miller, 168 U.S. 287

(1897); The Aurora, 1 Wheat. (14 U.S.) 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, 17 How. (58 U.S.) 399 (1854); Detroit Trust Co. v. The

Thomas Barlum, 293 U.S. 21, 32 (1934).

Admiralty and Maritime Cases.—Admiralty and maritime

jurisdiction comprises two types of cases: (1) those involving acts

committed 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. 761 Specifically, contract cases include suits by

seamen for wages, 762 cases arising out of marine insurance policies, 763 actions for towage 764 or pilotage 765 charges, actions on

bottomry or respondentia bonds, 766 actions for repairs on a vessel
ART. III—JUDICIAL DEPARTMENT 733

Sec. 2—Jurisdiction Cl.1—Admiralty

767 New Bedford Dry Dock Co. v. Purdy, 258 U.S. 96 (1922); The General Smith,

4 Wheat. (17 U.S.) 438 (1819). There is admiralty jurisdiction even though the repairs are not be 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, 20 How. (61 U.S.) 393

(1858); North Pacific S.S. Co. v. Hall Brothers Marine R. & S. Co., supra, 127. 768 New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 6 How. (47

U.S.) 344 (1848). 769 Ex Parte Easton, 95 U.S. 68 (1877). 770 Andrews v. Wall, 3 How. (44 U.S.) 568 (1845). 771 Janney v. Columbia Ins. Co., 10 Wheat. (23 U.S.) 411, 412, 415, 418 (1825);

The Tilton, 23 Fed. Cas. 1277 (No. 14054) (C.C.D. Mass. 1830) (Justice Story). 772 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). 773 E.g., DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815)

(Justice Story); The Steamboat Orleans v. Phoebus, 11 Pet. (36 U.S.) 175, 183

(1837); The People’s Ferry Co. v. Joseph Beers, 20 How. (61 U.S.) 393, 401 (1858);

New England Marine Ins. Co. v. Dunham, 11 Wall. (78 U.S.) 1, 26 (1870); Detriot

Trust Co. v. The Thomas Barlum, 293 U.S. 21, 48 (1934). 774Kossick v. United Fruit Co., 365 U.S. 731, 735 (1961). 775The 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). 776The Raithmoor, 241 U.S. 166 (1916); Erie R.R. Co. v. Erie Transportation

Co., 204 U.S. 220 (1907) 777L’Invincible, 1 Wheat (14 U.S.) 238 (1816); In re Fassett, 142 U.S. 479

(1892). 778 East River Steamship Corp. v. Transamerica Delaval, 476 U.S. 858 (1986)

(holding, hoever, 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).

already used in navigation, 767 contracts of affreightment, 768 compensation for temporary wharfage, 769 agreements of consortship

between the masters of two vessels engaged in wrecking, 770 and

surveys of damaged vessels. 771 That is, admiralty jurisdiction ‘‘extends to all contracts, claims and services essentially maritime.’’ 772

But the courts have never enunciated an unambiguous test which

would enable one to determine in advance whether a given case is

a maritime one or not. 773 ‘‘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. . . .’’ 774

Maritime torts include injuries to persons, 775 damages to property arising out of collisions or other negligent acts, 776 and violent

dispossession of property. 777 The Court has expresed a willingness

to ‘‘recogniz[e] products liability, including strict liability, as part of

the general maritime law.’’ 778 Unlike contract cases, maritime tort

jurisdiction historically depended exclusively upon the commission
734 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—Admiralty

779DeLovio 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., 23 How. (64 U.S.) 209, 215 (1859); The Plymouth, 3 Wall. (70 U.S.)

20, 33–34 (1865); Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 476 (1922). 780 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 juridiction); Sisson v. Ruby, 497 U.S. 358 (1990) (fire on

pleasure boat docked at marina on navigable water). 781Thus, the courts have enforced seamen’s claims for maintenance and cure for

injuries incurred on land. O’Donnell v. Great Lakes Dredge & Dock 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, 112 S.Ct. 486 (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 Dredge & Dock Co., supra, 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. 782 Jennings v. Carson, 4 Cr. (8 U.S.) 2 (1807); Taylor v. Carryl, 20 How. (61

U.S.) 583 (1858). 783Thirty Hogsheads of Sugar v. Boyle, 9 Cr. (13 U.S.) 191 (1815); The Siren,

13 Wall. (80 U.S.) 389, 393 (1871).

of the wrongful act upon navigable waters, regardless of any connection or lack of connection with shipping or commerce. 779 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 invoked. 780 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. 781

From the earliest days of the Republic, the federal courts sitting in admiralty have been held to have exclusive jurisdiction of

prize cases. 782 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, 783 and so far
ART. III—JUDICIAL DEPARTMENT 735

Sec. 2—Jurisdiction Cl.1—Admiralty

784 Hudson v. Guestier, 4 Cr. (8 U.S.) 293 (1808). 785The Vengence, 3 Dall. (3 U.S.) 297 (1796); Church v. Hubbard, 2 Cr. (6 U.S.)

187 (1804); The Schooner Sally, 2 Cr. (6 U.S.) 406 (1805). 786The Brig Ann, 9 Cr. (13 U.S.) 289 (1815); The Sarah, 8 Wheat. (21 U.S.) 391

(1823); Maul v. United States, 274 U.S. 501 (1927). 787G. GILMORE AND C. BLACK, op. cit., n. 744, 30–33. There are no longer separate rules of procedure governing admiralty, unification of civil admiralty procedures being achieved in 1966. 7A J. MOORE’S FEDERAL PRACTICE (New York: 1971),

§ .01 et seq. 788The Moses Taylor, 4 Wall. (71 U.S.) 411 (1866); The Hine v. Trevor, 4 Wall.

(71 U.S.) 555 (1867). But see Taylor v. Carryl, 20 How. (61 U.S.) 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., 564. 789 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).

as it was not modified by subsequent legislation, treaties, or executive proclamations. Finally, admiralty and maritime jurisdiction

comprises the seizure and forfeiture of vessels engaged in activities

in violation of the laws of nations or municipal law, such as illicit

trade, 784 infraction of revenue laws, 785 and the like. 786

Admiralty Proceedings.—Procedure in admiralty jurisdiction

differs in few respects from procedure in actions at law, but the differences that do exist are significant. 787 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. 788 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 common-law remedy or a new remedy analogous to a common-law remedy exists. 789 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
736 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—Admiralty

790The Moses Taylor, 4 Wall. (71 U.S.) 411, 431 (1867). 791 C. J. Henry Co. v. Moore, 318 U.S. 133 (1943). 792The Vengeance, 3 Dall. (3 U.S.) 297 (1796); The Schooner Sally, 2 Cr. (6

U.S.) 406 (1805); The Schooner Betsy, 4 Cr. (8 U.S.) 443 (1808); The Whelan, 7 Cr.

(11 U.S.) 112 (1812); The Samuel, 1 Wheat. (14 U.S.) 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 v. International Terminal Operating Co.,

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, 12 How. (53 U.S.) 443 (1851); Fitzgerald v. United States Lines

Co., supra, 20.

793 C. J. Henry Co. v. Moore, 318 U.S. 133, 141 (1943). 794 10 Wheat. (23 U.S.) 428 (1825). On the political background of this decision,

see 1 C. WARREN, op. cit., n. 18, 633–635. 795The tidal ebb and flow limitation was strained in some of its applications.

Peyroux v. Howard, 7, Pet. (32 U.S.) 324 (1833); Waring v. Clarke, 5 How. (46 U.S.)

441 (1847). 796 5 Stat. 726 (1845). 797 12 How. (53 U.S.) 443 (1851).

thus considered a common-law remedy. Although the Supreme

Court sometimes has used language that would confine all proceedings in rem to admiralty courts, 790 such actions in state courts

have been sustained in cases of forfeiture arising out of violations

of state law. 791

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. 792 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

vice-admiralty courts, since they provided a forum where the English authorities could enforce the Navigation Laws without ‘‘the obstinate resistance of American juries.’’ 793

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 794 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. 795 The demands of commerce on western waters led Congress to enact a statute extending

admiralty jurisdiction over the Great Lakes and connecting waters, 796 and in The Genessee Chief v. Fitzhugh 797 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
ART. III—JUDICIAL DEPARTMENT 737

Sec. 2—Jurisdiction Cl.1—Admiralty

798Some of the early cases include The Magnolia, 20 How. (61 U.S.) 296 (1857);

The Eagle, 8 Wall. (75 U.S.) 15 (1868); The Daniel Ball, 10 Wall. (77 U.S.) 557

(1871). The fact that the body of water is artificial presents no barrier to admiralty

jurisdiction. Ex parte Boyer, 109 U.S. 629 (1884); The Robert W. Parsons, 191 U.S.

17 (1903). In United States v. Apalachian 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). 799 E.g., The Daniel Ball, 10 Wall. (77 U.S.) 557, 563 (1870); The Montello, 20

Wall. (87 U.S.) 430, 441–442 (1874). 800 United States v. Bevans, 3 Wheat. (16 U.S.) 336 (1818); Manchester v. Massachusetts, 139 U.S. 240 (1891). 801The Steamer St. Lawrence, 1 Bl. (66 U.S.) 522, 527 (1862). 802 Janney v. Columbia Ins. Co., 10 Wheat. (23 U.S.) 411, 418 (1825); The

Lottawanna, 21 Wall. (88 U.S.) 558, 576 (1875). 803 E.g., New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 6

How. (47 U.S.) 344 (1848); The Steamboat New York v. Rea, 18 How. (59 U.S.) 223

(1856); The China, 7 Wall. (74 U.S.) 53 (1868); Ex parte McNiel, 13 Wall. (80 U.S.)

236 (1872); La Bourgogne, 210 U.S. 95 (1908). 804The General Smith, 4 Wheat. (17 U.S.) 438 (1819); The Lottawanna, 21 Wall.

(88 U.S.) 558 (1875) (enforcing state laws giving suppliers and repairmen liens on

or not, which are navigable in fact. 798 Some of the older cases contain language limiting jurisdiction to navigable waters which form

some link in an interstate or international waterway or some link

in commerce, 799 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. 800

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.’’ 801 But, as with other

jurisdictions of the federal courts, admiralty jurisdiction can only

be exercised under acts of Congress vesting it in federal courts. 802

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, 803

supplemented in some instances by state law which created and defined certain causes of action. 804 Because the Judiciary Act of 1789
738 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—Admiralty

ships supplied and repaired). Another example concerns state created wrongful

death actions. The Hamilton, 207 U.S. 398 (1907). 805 E.g., Hazard’s Administrator v. New England Marine Ins. Co., 8 Pet. (33

U.S.) 557 (1834); The Belfast, 7 Wall. (74 U.S.) 624 (1869); American Steamboat Co.

v. Chase, 16 Wall. (83 U.S.) 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). 806 244 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. 807Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917). 808 Id., 216. 809 Id., 218. There were four dissenters, Justices Holmes, Brandeis, Clarke, and

Pitney. The Jensen dissent featured such Holmesian epigrams as: ‘‘Judges do and

must legislate, but they can do so only interstitially: they are confined from molar

to molecular motions,’’ id., 221, and the famous statement supporting the assertion

that supplementation of maritime law had to come from state law inasmuch as ‘‘the

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., 222.

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 maritimerelated cases in which the actions were noticeable. 805 In Southern

Pacific Co. v. Jensen, 806 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.’’ 807 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.’’ 808 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 process of any court, and is not saved to suitors from the grant of exclusive jurisdiction.’’ 809

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 claim-
ART. III—JUDICIAL DEPARTMENT 739

Sec. 2—Jurisdiction Cl.1—Admiralty

810 40 Stat. 395 (1917). 811Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 (1920). The decision was

again five-to-four with the same dissenters. 812 42 Stat. 634 (1922). 813Washington v. Dawson & Co., 264 U.S. 219, 228 (1924). Holmes and Brandeis remained of the four dissenters and again dissented. 814 44 Stat. 1424 (1927), as amended, 33 U.S.C. §§ 901–950. 815 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).

ants their rights and remedies under state workmen’s compensation laws. 810 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 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.’’ 811 Second,

Congress reenacted the law but excluded masters and crew members of vessels from those who might claim compensation for maritime injuries. 812

The Court found this effort unconstitutional as well, since ‘‘the

manifest purpose [of the statute] was to permit any state to alter

the maritime law, and thereby introduce conflicting requirements.’’ 813 Finally, 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.’’ 814

With certain exceptions, 815 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 mari-
740 ART. III—JUDICIAL DEPARTMENT

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816Jensen, 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,

337–344 (1973), the Court, in holding that the States may constitutionally exercise

their police 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, while 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., 344. See also Sun Ship v. Pennsylvania, 447 U.S. 715 (1980). 817Western Fuel Co. v. Garcia, 257 U.S. 233 (1921); Grant-Smith-Porter Ship

Co. v. Rohde, 257 U.S. 469 (1922); State Industrial Comm. 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. Dept. of Labor and

Industries, 317 U.S. 249, 253–254 (1942). 818 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). 819 § 3(a), 44 Stat. 1424 (1927), 33 U.S.C. § 903(a). 820 Crowell v. Benson, 284 U.S. 22, 39, (1932); Davis v. Dept. of Labor and Industries, 317 U.S. 249, 252–253 (1942). 821Davis v. Dept of Labor and Industries, 317 U.S. 249 (1942). The quoted

phrases appear at id, 253, 256. See also Hahn v. Ross Island Sand & Gravel Co.,

358 U.S. 272 (1959).

time wrongful death cases in which until recently there was no federal maritime right to recover. 816

(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. 817 ‘‘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.’’’ 818 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,’’ 819 it was held that the ‘‘maritime but local’’ exception had been statutorily perpetuated, 820 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

susequently 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 forthwith held that in such a ‘‘twilight zone’’ the injured party should

be enabled to recover under either. 821 Then, in Calbeck v. Travel-
ART. III—JUDICIAL DEPARTMENT 741

Sec. 2—Jurisdiction Cl.1—Admiralty

822 370 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.’’ 823 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 Nacierema 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). 824 41 Stat. 1007 (1920), 46 U.S.C. § 688. For the prior-Jones Act law, see The

Osceola, 189 U.S. 158 (1903) 825Supra, pp. 728–729; p. 735, n. 789. 826 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). 827Mahnich 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). 828Seas 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).

ers Ins. Co., 822 the Court virtually read out of the Act its inapplicability when compensation would be afforded by state law and held

that Congress’ intent in enacting the statute was to extend coverage to all workers who sustain injuries while on navigable waters

of the United States 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. 823

(2) The passage of the Jones Act 824 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 825 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 826 were given new life by Court decisions for seamen, 827 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. 828 While these actions could have been brought in state

court, federal law supplanted state law even with regard to injuries
742 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—Admiralty

829Garrett v. Moore-McCormack Co., 317 U.S. 239 (1942); McAllister v. Magnolia Petroleum Co., 357 U.S. 221 (1958); Kermarec v. Compagnie Generale

Transatlantique, 338 U.S. 625 (1959).

830 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).

831 119 U.S. 199 (1886). Subsequent cases are collected in Moragne v. States

Marine Lines, 398 U.S. 375 (1970).

832Moragne v. States Marine Lines, 398 U.S. 375 (1970).

833 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.

834 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.

835 44 Stat. 1424 (1927), as amended, 33 U.S.C. §§ 901–950.

836Western 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).

837 358 U.S. 588 (1959).

sustained in state territorial waters. 829 The 1972 LHWCA amendments, however, eliminated unseaworthiness recoveries by persons

covered by the Act and substituted a recovery for injuries caused

by negligence under the LHWCA itself. 830

(3) In The Harrisburg, 831 the Court held that maritime law did

not afford an action for wrongful death, a position to which the

Court adhered until quite recently. 832 The Jones Act, 833 the Death

on the High Seas Act, 834 and the Longshoremen’s and Harbor

Workers’ Compensation Act 835 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. 836

Thus, in The Tungus v. Skovgaard, 837 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-tofour, 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 con-
ART. III—JUDICIAL DEPARTMENT 743

Sec. 2—Jurisdiction Cl.1—United States Is a Party

838 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 Assn. v. Halecki, 358 U.S.

613 (1959). 839 361 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. 840 379 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. 841 398 U.S. 375 (1970). 842 Id., 396 n. 12. For development of the law under Moragne, see Sea-Land

Services v. Gaudet, 414 U.S. 573 (1974); Miles v. Apex Marine Corp., 498 U.S. 19

(1990).

cepts. 838 And in Hess v. United States, 839 embracing a suit under

the Federal Tort Claims Act for recovery for a death by drowning

in a navigable Oregon river of an employee of 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., 840 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 841 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. 842

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
744 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—United States Is a Party

843 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

(Boston: 1833), 1274 (emphasis in original). 844Dugan v. United States, 3 Wheat. (16 U.S.) 172 (1818). 845 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, P.L. 96–247, 94 Stat. 349 (1980), 42 U.S.C.

§ 1997 et seq. And see United States v. City of Philadelphia, 644 F.2d 187 (3d Cir.

1980) (no standing to sue to correct allegedly unconstitutional police practices). 846 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 corporation is vested

in the lower federal courts. But suits by the United States against a State may be

brought in the Supreme Court’s original jurisdiction, 28 U.S.C. § 1251(b)(2), but may

as well be brought in the district court. Case v. Bowles, 327 U.S. 92, 97 (1946). 847 United States v. San Jacinto Tin Co., 125 U.S. 273 (1888).

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 government, belong to the United States, as they do to other

sovereigns.’’ 843 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. 844 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. 845

By the Judiciary Act of 1789, and subsequent amendments

thereof, 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. 846 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. 847 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 which imperil national health or safety was upheld for the reason 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,
ART. III—JUDICIAL DEPARTMENT 745

Sec. 2—Jurisdiction Cl.1—United States Is a Party

848 United Steelworkers v. United States, 361 U.S. 39, 43–44 (1960), citing In

re Debs, 158 U.S. 564 (1895). 849 United States v. Raines, 362 U.S. 17, 27 (1960), upholding jurisdiction of the

federal court as to an action to enjoin state officials from discriminating against African-American 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. 850 136 U.S. 211 (1890). 851 United States v. Texas, 143 U.S. 621 (1892). 852 Id., 642–646. 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, 701–702 (1950).

was held not to alter the adversary (‘‘case or controversy’’) nature

of the litigation instituted by the United States as the guardian of

the aforementioned rights. 848 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.’’ 849

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, 850 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. 851 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.’’ 852

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
746 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—United States Is a Party

853 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). 854 295 U.S. 463 (1935). 855 United States v. Utah, 283 U.S. 64 (1931). 856 United States v. California, 332 U.S. 19 (1947). 857 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) 858 2 Dall. (2 U.S.) 419, 478 (1793). 859 6 Wheat. (19 U.S.) 264, 412 (1821). 860 8 Pet. (33 U.S.) 436, 444 (1834).

land patents issued to the State by the United States in breach of

its trust obligations to the Indian. 853 In United States v. West Virginia, 854 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. 855 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. 856

Like suits were decided against Louisiana and Texas in 1950. 857

Immunity of the United States From Suit.—Pursuant to

the general rule that a sovereign cannot be sued in its own courts,

it follows that the judicial power does not extend to suits against

the United States unless Congress by general or special enactment

consents to suits against the Government. This rule first emanated

in embryo 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.’’ 858 In Cohens v. Virginia, 859 also by

way of dictum, Chief Justice Marshal 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, 860 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 examina-
ART. III—JUDICIAL DEPARTMENT 747

Sec. 2—Jurisdiction Cl.1—United States Is a Party

861 United States v. McLemore, 4 How. (45 U.S.) 286 (1846); Hill v. United

States, 9 How. (50 U.S.) 386, 389 (1850); De Groot v. United States, 5 Wall. (72

U.S.) 419, 431 (1867); United States v. Eckford, 6 Wall. (73 U.S.) 484, 488 (1868);

The Siren, 7 Wall. (74 U.S.) 152, 154 (1869); Nichols v. United States, 7 Wall. (74

U.S.) 122, 126 (1869); The Davis, 10 Wall. (77 U.S.) 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 employee. Gibbons v. United States, 8 Wall. (75 U.S.) 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 Mr.

Justice Holmes in Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907), is because

‘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). 862 106 U.S. 196 (1882). 863Lonergan 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 991, P.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). For recent

waivers of sovereign immunity, see P.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); P.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). 864 United States v. New York Rayon Co., 329 U.S. 654 (1947). 865 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).

The earlier narrow interpretation of the exceptions to the waiver of immunity

set forth in the Federal Tort Claims Act, 28 U.S.C. § 1346(b), gradually has given

tion. 861 Indeed, it was not until United States v. Lee 862 that the

Court examined the rule and the reasons for it, and limited its application accordingly.

Since suits against the United States can be maintained only

by permission, it follows that they can be brought only in the manner prescribed by Congress and subject to the restrictions imposed. 863 Only Congress can take the necessary steps to waive the

immunity of the United States from liability for claims, and hence

officers of the United States are powerless by their actions either

to waive such immunity or to confer jurisdiction on a federal

court. 864 Even when authorized, suits can be brought only in designated courts. 865 These rules apply equally to suits by States
748 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—United States Is a Party

way to a liberal construction. Compare Dalehite v. United States, 346 U.S. 15

(1953), with Indian Towing Co. v. United States, 350 U.S. 61 (1955). 866Minnesota 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). 867 Brady v. Roosevelt S.S. Co., 317 U.S. 575 (1943). 868 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, inasmuch as it provides jurisdiction against the United States for takings claims. 869 204 U.S. 331 (1907). 870Louisiana v. McAdoo, 234 U.S. 627, 628 (1914). 871 162 U.S. 255 (1896). Justice Gray endeavored to distinguish between this

case and Lee. Id., 271. It was Justice Gray who spoke for the dissenters in Lee.

against the United States. 866 Although an officer acting as a public

instrumentality is liable for his own torts, Congress may grant or

withhold immunity from suit on behalf of government corporations. 867

Suits Against United States Officials.—United States v.

Lee, a five-to-four decision, qualified earlier holdings to the effect

that where a judgment affected the property of the United States

the suit 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.’’ 868 Except, nevertheless, for an occasional case like Kansas v. United

States, 869 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. 870 Even more significant is Stanley v. Schwalby, 871

which resembled without paralleling United States v. Lee, where it

was held 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 judg-
ART. III—JUDICIAL DEPARTMENT 749

Sec. 2—Jurisdiction Cl.1—United States Is a Party

872Land v. Dollar, 330 U.S. 731, 737 (1947). 873Oregon 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). 874 Cunningham v. Macon & Brunswick R.R. Co., 109 U.S. 446, 451 (1883),

quoted by Chief Justice Vinson in the opinion of the Court in Larson v. Domestic

& Foreign Corp., 337 U.S. 682, 698 (1949). 875 Id., 708. Justice Frankfurter’s dissent also contains a useful classification of

immunity cases and an appendix listing them. 876 330 U.S. 731, 735 (1947) (emphasis added). 877 337 U.S. 682 (1949). 878 Id., 689–697.

ment in favor of the plaintiffs would have been a judgment against

the United States.

Subsequent cases repeat and 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 acting within the scope of their lawful authority. 872 Contrariwise, 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. 873 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,’’ 874 and, as

Justice Frankfurter quite justifiably stated in a dissent, ‘‘the subject is not free from casuistry.’’ 875 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,’’ 876 is frequently

applicable.

The case of Larson v. Domestic & Foreign Corp., 877 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, yet his official action,

though tortious, cannot be enjoined or diverted, since it is also the

action of the sovereign. 878 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
750 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—United States Is a Party

879 Id., 701–702. 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 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 the Larson case, the Court not only refused to follow Goltra v.

Weeks, 271 U.S. 536 (1926), but in effect overruled it. The Goltra case 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-by-day, 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. 880 Id., 337 U.S., 703–704. Justice Frankfurter, dissenting, would have applied

the rule of the Lee case. See P.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). 881Larson v. Domestic & Foreign Corp., 337 U.S. 682, 709–710 (1949). 882Oregon 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).

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.’’ 879 The

Court rejected the contention 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.’’ 880

Suits against officers involving the doctrine of sovereign immunity have been classified by Justice Frankfurter in a dissenting

opinion into four general groups. 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.’’ 881 Such suits, of course, cannot be maintained. 882 Second, cases in which action adverse to the interests of
ART. III—JUDICIAL DEPARTMENT 751

Sec. 2—Jurisdiction Cl.1—United States Is a Party

883 Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936); Tennessee 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).

884Philadelphia Co. v. Stimson, 223 U.S. 605 (1912); Waite v. Macy, 246 U.S.

606 (1918).

885 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 of the Federal Bureau of Narcotics, 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).

886 306 U.S. 381 (1939).

887FHA 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.

888 United States v. United States Fidelity Co., 309 U.S. 506 (1940).

a plaintiff is taken under an unconstitutional statute or one alleged

to be so. In general these suits are maintainable. 883 Third, cases

involving injury to a plaintiff because the official has exceeded his

statutory authority. In general these suits are maintainable. 884

Fourth, cases in which an officer seeks immunity behind statutory

authority or some other sovereign command for the commission of

a common law tort. 885 This category of cases presents the greatest

difficulties since 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, 886 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. 887

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. 888
752 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—Suits Between States

889Warren, 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 (Boston: 1924). 890 Id., 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., 13, 14. 891 New Jersey v. New York, 5 Pet. (30 U.S.) 284 (1931). 892 Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 721 (1838). 893 Id., 736–737.

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 . . . between 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. 889 It is hardly surprising, therefore, that during its first

sixty years the only state disputes coming to the Supreme Court

were boundary disputes 890 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 891 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, 892 that a boundary dispute is a justiciable and not a political question, 893 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
ART. III—JUDICIAL DEPARTMENT 753

Sec. 2—Jurisdiction Cl.1—Suits Between States

894 Id., 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., 752–753. 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 Dall. (3 U.S.) 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, 113 S.Ct. 549 (1992). 895 180 U.S. 208 (1901). 896 206 U.S. 46 (1907). See also Idaho ex rel. Evans v. Oregon and Washington,

444 U.S. 380 (1980). 897 283 U.S. 336 (1931).

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 principles of national or municipal jurisprudence, as the case requires.’’ 894

Modern Types of Suits Between States.—Beginning with

Missouri v. Illinois & Chicago District, 895 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, where water is even more of a treasure than elsewhere,

but they have not been confined to any one region. In Kansas v.

Colorado, 896 the Court established the principle of the equitable division of river or water resources between conflicting state interests. In New Jersey v. New York, 897 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.
754 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—Suits Between States

898 Id., 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 appropriate

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). 899South Dakota v. North Carolina, 192 U.S. 286 (1904). 900 Virginia v. West Virginia, 220 U.S. 1 (1911). 901 Arkansas v. Texas, 346 U.S. 368 (1953). 902Kentucky v. Indiana, 281 U.S. 163 (1930). 903Texas 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). 904Pennsylvania 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, 112 S.Ct. 789

(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. 905 379 U.S. 674 (1965). See also Pennsylvania v. New York, 406 U.S. 206

(1972).

Both States have real and substantial interests in the river that

must be reconciled as best they may be.’’ 898

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, 899 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, 900 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, 901 of one

State against another to enforce a contract between the two, 902 of

a suit in equity between States for the determination of a decedent’s domicile for inheritance tax purposes, 903 and of a suit by

two States to restrain a third from enforcing a natural gas measure

which purported to restrict the interstate flow of natural gas from

the State in the event of a shortage. 904

In Texas v. New Jersey, 905 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
ART. III—JUDICIAL DEPARTMENT 755

Sec. 2—Jurisdiction Cl.1—Suits Between States

906 12 Pet. (37 U.S.) 657 (1838). 907 6 Wheat. (19 U.S.) 264 (1821). 908 Id., 378. See Western Union 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). 909 291 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).

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’’ enunciated in Rhode Island v. Massachusetts, 906 and fortified by Chief

Justice Marshall’s dictum in Cohens v. Virginia, 907 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.’’ 908

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. Thus,

in Alabama v. Arizona, 909 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 that generally required by a petitioner seeking an injunction suit 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
756 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—Suits Between States

910Massachusetts v. Missouri, 308 U.S. 1, 15–16, (1939), citing Florida v. Mellon, 273 U.S. 12 (1927). 911 306 U.S. 398 (1939). 912 Id., 308 U.S., 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.913 Id., 308 U.S., 17, 19.

which is susceptible of judicial enforcement according to . . . the

common law or equity systems of jurisprudence.’’ 910 The fact that

the trust property 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, 911 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. 912 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. 913 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 that presents itself 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, which 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.
ART. III—JUDICIAL DEPARTMENT 757

Sec. 2—Jurisdiction Cl.1—A State and Citizen of Another State

914The various litigations of Virginia v. West Virginia are to be found in 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.C. § 531 (1916);

246 U.S. 565 (1918). 915 Id., 246 U.S., 591. 916 Id., 600. 917 Id., 601. 918 C. WARREN, THE SUPREME COURT AND SOVEREIGN STATES (Boston: 1924),

78–79. 919 2 Dall. (2 U.S.) 419 (1793). 920See the discussion under the Eleventh Amendment.

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 legislature to levy a tax for payment of the judgment. 914 Starting with the rule that the judicial power essentially

involves the right to enforce the results of its exertion, 915 the

Court proceeded to hold that it applied with the same force to

States as to other litigants 916 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.’’ 917 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,

but in the meantime West Virginia accepted the Court’s judgment

and entered into an agreement with Virginia to pay it. 918

Controversies Between a State and Citizens of Another

State

The decision in Chisholm v. Georgia 919 that this category of

cases included equally 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. 920 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 con-
758 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—A State and Citizen of Another State

921Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. Mellon, 273 U.S.

12 (1927); New Jersey v. Sargent, 269 U.S. 328 (1926). 922Pennsylvania v. Quicksilver Company, 10 Wall. (77 U.S.) 553 (1871); California v. Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities

Co., 184 U.S. 199 (1902). 923Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888). 924 6 Wheat. (19 U.S.) 264, 398–399 (1821). 925Pennsylvania v. Quicksilver Mining Co., 10 Wall. (77 U.S.) 553 (1871). 926 California v. Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities Co., 184 U.S. 199 (1902). 927 Id., 6 Wheat. (19 U.S.), 398–399. 928 127 U.S. 265 (1888). 929 2 Dall. (2 U.S.) 419, 431–432 (1793). 930 Id., 127 U.S., 289–300.

troversies than that in cases between private parties. 921 This it

does by holding rigorously to the rule that all the party defendants

be citizens of other States 922 and by adhering to congressional distribution of its original jurisdiction concurrently with that of other

federal courts. 923

Jurisdiction Confined to Civil Cases.—In Cohens v. Virginia, 924 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 dismissed an action for want of jurisdiction because the record did not

show the corporation against which the suit was brought was chartered in another State. 925 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. 926 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. 927

Sixty-seven years later, the Court wrote this dictum into law in

Wisconsin v. Pelican Ins. Co. 928 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, 929 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. 930

The State’s Real Interest.—Ordinarily, a State may not sue

in its name unless it is the real party in interest with real inter-
ART. III—JUDICIAL DEPARTMENT 759

Sec. 2—Jurisdiction Cl.1—A State and Citizen of Another State

931Pennsylvania v. Wheeling & B. Bridge Co., 13 How. (54 U.S.) 518, 559

(1852); Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938); Georgia v. Evans,

316 U.S. 159 (1942). 932South Dakota v. North Carolina, 192 U.S. 286 (1904). 933 New Hampshire v. Louisiana, 108 U.S. 76 (1883). 934Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938). 935 220 U.S. 277 (1911). 936 324 U.S. 439 (1945). 937 Id., 447–448 (quoting from Georgia v. Tennessee Copper Co., 206 U.S. 230,

237 (1907), in which the State was permitted to sue parens patriae to enjoin 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, 607–608 (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, 737–739 (1981).

ests. It can sue to protect its own property interests, 931 and if it

sues for its own interest as owner of another State’s bonds, rather

than as an assignee for collection, jurisdiction exists. 932 Where a

State in order to avoid the limitation of the Eleventh Amendment

by statute provided 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. 933 Nor can a State sue on behalf of its own

citizens the citizens of other States to collect claims. 934

The State as Parens Patriae.—The distinction between suits

brought by States to protect the welfare of its citizens as a whole

and suits to protect the private interests of individual citizens is

not easily drawn. Thus, in Oklahoma v. Atchison, T. & S.F. Ry., 935

the State was refused permission to sue to enjoin unreasonable

rate charges by a railroad on the shipment of specified commodities, inasmuch as the State was not engaged in shipping these

commodities and had no proprietary interest in them. But in Georgia v. Pennsylvania R. Co., 936 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 twenty 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 to ‘‘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.’ ’’ 937

Discriminatory freight rates, the Justice continued, may cause

a blight no less serious than noxious gases in that they may arrest
760 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—A State and Citizen of Another State

938Georgia v. Pennsylvania R. Co., 324 U.S. 439, 468 (1945). Chief Justice

Stone and Justices Roberts, Frankfurter, and Jackson dissented. 939 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 P.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 in importance the significance of the law. 940Most 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). While 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 the 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). 941 262 U.S. 447, 486 (1923).

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.’’ 938

The continuing vitality of this case is in some doubt, inasmuch

as the Court has limited it in a similar case. 939 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. 940

One clear limitation had seemed to be solidly established until

recent litigation cast doubt on its foundation. It is no part of a

State’s ‘‘duty or power,’’ said the Court in Massachusetts v. Mellon, 941 ‘‘to enforce [her citizens’] rights in respect to their relations

with the Federal Government. In that field, it is the United States

and not the State which 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
ART. III—JUDICIAL DEPARTMENT 761

Sec. 2—Jurisdiction Cl.1—Diversity of Citizenship

942 383 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). 943 79 Stat. 437 (1965), 42 U.S.C. § 1973 et seq. 944The 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 provisions against the Federal Government, the ultimate parents patriae of every

American citizen.’’ South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966). 945The Court did not indicate on what basis South Carolina could raise the

issue. At the beginning of its opinion, the Court did note the ‘‘[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.’’ Id., 307 But surely this did not have reference to that case’s parens

patriae holding. 946See 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, 6 Wall. (73 U.S.) 50 (1867); Mississippi v. Johnson, 4 Wall. (71

U.S.) 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., 117 n. 1. And see id., 152 n. 1 (Justice Harlan concurring in part and dissenting in part). See also South Carolina v. Baker, 485 U.S. 505

(1988); South Carolina v. Regan, 465 U.S. 367 (1984). 947 Bickel, The Voting Rights Cases, 1966 SUP. CT. REV. 79, 80–93.

flow from that status.’’ But in South Carolina v. Katzenbach, 942

while holding that the State lacked standing under Massachusetts

v. Mellon to attack the constitutionality of the Voting Rights Act

of 1965 943 under the Fifth Amendment’s due-process clause and

under the bill-of-attainder clause of Article I, 944 the Court proceeded to decide on the merits the State’s claim that Congress had

exceeded its powers under the Fifteenth Amendment. 945 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 which is contrary to a number of supposedly venerated cases. 946 Either alternative possibility

would be significant in a number of respects. 947

Controversies Between Citizens of Different States

The records of the Federal Convention are silent with regard

to the reasons the Framers included in the judiciary article jurisdiction in the federal courts of controversies between citizens of dif-
762 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—Diversity of Citizenship

948Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harv. L. Rev. 483

(1928). 949 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). Subject to a jurisdictional amount, now

$50,000, 28 U.S.C. § 1332, the statute conferred diversity jurisdiction 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. 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 they could not represent a class in which many of the members had claims

for less than $10,000. 950 Bank of the United States v. Deveaux, 5 Cr. (9 U.S.) 61, 87 (1809). 951Summarized and discussed in C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS (St. Paul: 4th ed. 1983), 23; AMERICAN LAW INSTITUTE, STUDY OF THE

DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS (Philadelphia:

1969), 99–110, 458–464. 952The principal proposals are those of the American Law Institute. Id., 123–

134.953 2 Cr. (6 U.S.) 445 (1805).

ferent States, 948 but since the Judiciary Act of 1789 ‘‘diversity jurisdiction’’ has been bestowed statutorily on the federal courts. 949

The traditional explanation remains that offered by Chief Justice

Marshall. ‘‘However true 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.’’ 950 Other explanations have been offered and controverted, 951 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. 952 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, 953 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
ART. III—JUDICIAL DEPARTMENT 763

Sec. 2—Jurisdiction Cl.1—Diversity of Citizenship

954 Id., 453. 955 City of New Orleans v. Winter, 1 Wheat. (14 U.S.) 91 (1816). 956 54 Stat. 143 (1940), as revised, 28 U.S.C. § 1332(d). 957 337 U.S. 582 (1948). 958 Id., 655 (Justice Frankfurter dissenting). 959The 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. den., 386 U.S. 943 (1967), under Congress’ power to make rules and regulations

for United States territories. Cf. Examining Board v. Flores de Otero, 426 U.S. 572,

580–597 (1976) (discussing congressional acts with respect to Puerto Rico). 960 Chicago & N.W.R. Co. v. Ohle, 117 U.S. 123 (1886). 961Sun Printing & Pub. Assn. v. Edwards, 194 U.S. 377 (1904). 962Knox v. Greenleaf, 4 Dall. (4 U.S.) 360 (1802); Shelton v. Tiffin, 6 How. (47

U.S.) 163 (1848); Williamson v. Osenton, 232 U.S. 619 (1914).

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.’’ 954 The same rule was subsequently applied to citizens of the territories of the United

States. 955

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 Territory.’’ 956 In National Mutual Ins. Co. v. Tidewater Transfer Co., 957

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’ 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,’’ 958 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 utilize

federal diversity jurisdiction. 959

Citizenship of Natural Persons.—For purposes of diversity

jurisdiction, state citizenship is determined by the concept of domicile 960 rather than of mere residence. 961 That is, while the Court’s

definition has varied throughout the cases, 962 a person is a citizen

of the State in which he has his true, fixed, and permanent home
764 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—Diversity of Citizenship

963Stine v. Moore, 213 F. 2d 446, 448 (5th Cir. 1954). 964Shelton v. Tiffin, 6 How. (47 U.S.) 163 (1848). 965Williamson v. Osenton, 232 U.S. 619 (1914). 966 Jones v. League, 18 How. (59 U.S.) 76 (1855). 967 28 U.S.C. § 1332(a)(1). 968Strawbridge v. Curtiss, 3 Cr. (7 U.S.) 267 (1806). 969 In State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 530–531 (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). 970 In domestic relations cases and probate matters, the federal courts will not

act, though diversity exists. Barber v. Barber, 21 How. (62 U.S.) 582 (1858); Ex

parte Burrus, 136 U.S. 586 (1890); In re Broderick’s Will, 21 Wall. (88 U.S.) 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, 112 S.Ct. 2206 (1992). 971 5 Cr. (9 U.S.) 61, 86 (1809).

and principal establishment and to which he intends to return

whenever he is absent from it. 963 Acts may disclose intention more

clearly and decisively than declarations. 964 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, 965 provided the change is more than a temporary expedient. 966

If the plaintiff and the defendant are citizens of different

States, diversity jurisdiction exists regardless of the State in which

suit is brought. 967 Chief Justice Marshall early established that in

multiparty 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. 968 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. 969 The Court has also placed some

issues beyond litigation in federal courts in diversity cases, apparently solely on policy grounds. 970

Citizenship of Corporations.—In Bank of the United States

v. Deveaux, 971 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
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972 Commercial & Railroad Bank v. Slocomb, 14 Pet. (39 U.S.) 60 (1840). 973Strawbridge v. Curtiss, 3 Cr. (7 U.S.) 267 (1806). 974Louisville, C. & C.R. Co. v. Letson, 2 How. (43 U.S.) 497, 558 (1844). 975Marshall v. Baltimore & Ohio R. Co., 16 How, (57 U.S.) 314 (1854). See

Muller v. Dows, 94 U.S. 444 (1877); St. Louis & S.F. Ry. Co. v. James, 161 U.S.

545 (1896). The Court has more than once pronounced that the Marshall position

is settled. E.g., United Steelworkers of America v. R. H. Bouligny, Inc., 382 U.S.

272, 273 (1965); Carden v. Arkoma Associates, 494 U.S. 185, 189 (1990). 976 §2, 72 Stat. 415 (1958), amending 28 U.S.C. § 1332(c), provided that a corporation is to be deemed a citizen of any State in which it has been incorporated

and of the State in which it has its principal place of business. 78 Stat. 445 (1964),

amending 28 U.S.C. § 1332(c), was enacted to correct the problem revealed by Lumbermen’s Mutual Casualty Co. v. Elbert, 348 U.S. 48 (1954). 977See United Steelworkers v. R.H. Bouligny, 382 U.S. 145, 148 (1965). 978 In Terral v. Burke Construction Co., 257 U.S. 529 (1922), the Court resolved

two conflicting lines of cases and voided a state statute which 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.

the members, in this respect, can be exercised in their corporate

name.’’ The Court upheld diversity jurisdiction because the members of the bank as a corporation were citizens of one State and

Deveaux was a citizen of another. The holding was reaffirmed a

generation later, 972 but the pressures were building for change, because of the increased economic role of the corporation and because

the Strawbridge rule 973 would have soon closed the doors of the

federal courts to the larger 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 doing 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.’’ 974 Ten years later, the Court abandoned this rationale, but

it achieved the same result by creating a conclusive presumption

that all of the stockholders of a corporation are citizens of the State

of incorporation. 975 Through this fiction, substantially unchanged

today, 976 the Court was able to hold that a corporation cannot be

a citizen for diversity purposes and that the citizenship of its stockholders controls but to provide corporations access to federal courts

in diversity in every State except the one in which it is incorporated. 977 The right of foreign corporations to resort to federal

courts in diversity is not one which the States may condition as a

qualification for doing business in the State. 978

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
766 ART. III—JUDICIAL DEPARTMENT

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979Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449 (1900); Chapman

v. Barney, 129 U.S. 677 (1889); Thomas v. Board of Trustees, 195 U.S. 207 (1904);

United Steelworkers v. R.H. Bouligny, 382 U.S. 145 (1965); Carden v. Arkoma Associates, 494 U.S. 185 (1990). But compare Navarro Savings Assn. v. Lee, 446 U.S.

458 (1980), distinguished in Carden, supra, 195–197. 980 § 11, 1 Stat. 78, sustained in Turner v. Bank of North America, 4 Dall, (4

U.S.) 8 (1799), and Sheldon v. Sill, 8 How, (49 U.S.) 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. Carribean Mills, 394

U.S. 823 (1969). 981Williamson v. Osenton, 232 U.S. 619 (1914); Morris v. Gilmer, 129 U.S. 315

(1889). 982Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183 (1931). 983Miller & Lux v. East Side Canal & Irrigation Co., 211 U.S. 293 (1908). 984 E.g., Southern Realty Co. v. Walker, 211 U.S. 603 (1909). 985 276 U.S. 518 (1928). 986 Id., 276 U.S., 532 (joined by Justices Brandeis and Stone). Justice Holmes

here presented his view that Swift v. Tyson, 16 Pet. (41 U.S.) 1 (1842), had been

wrongly decided, but he preferred not to overrule it, merely ‘‘not allow it to spread

. . . into new fields.’’ Id. 535.

citizenship of each of its members must be considered in determining whether diversity exists. 979

Manufactured Diversity.—One who because of diversity of

citizenship can choose whether to sue in state or federal court will

properly consider where the advantages and disadvantages balance; one who perceives the balance clearly favoring the federal

forum where no diversity exists will no doubt often 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. 980 One could create diversity by a

bona fide change of domicile even with the sole motive of creating

domicile. 981 Similarly, one could create diversity, or defeat it, by

choosing a personal representative of the requisite citizenship. 982

By far, the greatest number of attempts to manufacture or create

diversity has concerned corporations. A corporation cannot get into

federal court by transferring its claim to a subsidiary incorporated

in another State, 983 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. 984 But in Black &

White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 985 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, 986 saw no collusion
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987The 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 (St. Paul;

4th ed. 1983), ch. 9. 988 16 Pet. (41 U.S.) 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. 989 Id., 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.’’ Ibid. The thought that the same law should prevail in Rome as in Athens was used by Justice Story in DeLovia v. Boit, 7 Fed. Cas.

418, 443 (No. 3776) (C.C.D. Mass. 1815). For a modern utilization, see United States

v. Jefferson County Board of Education, 372 F. 2d 836, 861 (5th Cir. 1966); id., 380

F. 2d 385, 398 (5th Cir. 1967) (dissenting opinion). 990The expansions included: Lane v. Vick, 3 How. (44 U.S.) 464 (1845) (wills);

City of Chicago v. Robbins, 2 Bl. (67 U.S.) 418 (1862), and Baltimore & Ohio R. Co.

v. Baugh 149 U.S. 368 (1893) (torts); Yates v. City of Milwaukee, 10 Wall. (77 U.S.)

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, 5 How. (46 U.S.)

134 (1847) (contracts); Lake Shore & M.S. Ry. Co. 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 Corn. L.Q. 499, 529

n. 150 (1928). Moreover, the Court held that while state court interpretations of

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.

The Law Applied in Diversity Cases.—By virtue of § 34 of

the Judiciary Act of 1789, 987 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, 988 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.’’ 989 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. 990 Although
768 ART. III—JUDICIAL DEPARTMENT

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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, 5 How. (46 U.S.) 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, 1 Wall. (68 U.S.) 175 (1865); Williamson v. Berry, 8 How. (49 U.S.) 495

(1850); Pease v. Peck, 18 How. (59 U.S.) 595 (1856); Watson v. Tarpley, 18 How.

(59 U.S.) 517 (1856). 991 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, 1

Wall. (68 U.S.) 175 (1865); Lane v. Vick, 3 How. (44 U.S.) 463 (1845); Kuhn v. Fairmont Coal Co., 215 U.S. 349 (1910). In Baltimore & Ohio R. Co. v. Baugh, 149 U.S.

368, 401–404 (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. 992 276 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). 993 304 U.S. 64 (1938). Judge Friendly has written: ‘‘Having served as the Justice’s [Brandeis’s] 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 (Chicago: 1967), 20. 994 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS (4th ed. 1983), 355.

See Judge Friendly’s exposition, In Praise of Erie—And of the New Federal Common

Law, in H. FRIENDLY, BENCHMARKS (Chicago: 1967), 155.

dissatisfaction with Swift v. Tyson was almost always present,

within and without the Court, 991 it was the Court’s decision in

Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab

& Transfer Co., 992 which brought disagreement to the strongest

point and perhaps precipitated the overruling of Swift v. Tyson in

Erie Railroad Co. v. Tompkins. 993

‘‘It is impossible to overstate the importance of the Erie decision. It announces no technical doctrine of procedure or

jursidiction, 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.’’ 994 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
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995 Id., 304 U.S., 157–164, 171 n. 71. 996This result was obtained in retrial in federal court on the basis of Pennsylvania law. Tompkins v. Erie Railroad Co., 98 F. 49 (3d Cir.), cert. den. 305 U.S. 637

(1938). 997 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 (4th

ed. 1983), 353. 998 Id., 304 U.S., 77–78 (footnote citations omitted). 999 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. Infra, text at n. 1001. See H. FRIENDLY, BENCHMARKS

(Chicago: 1967), 161–163. 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 seventyfive 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

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. 995

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 inasmuch

as he was a trespasser, the defendant owned him only a duty not

to injure him through wanton or willful misconduct; 996 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, choose to

overrule the early case.

First, it was argued that Tyson had failed to bring uniformity

of decision about and that its application discriminated against citizens of a State by noncitizens. Justice Brandeis cited recent researches 997 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.’’ 998 For a number of reasons, it would not have been wise to have overruled Tyson on the

basis of arguable new discoveries. 999 Second, then, the decision
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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 R.

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). 1000 Id., 304 U.S., 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., 78–79. Justice Reed thought that Article III and

the necessary and proper clause might contain authority. Id., 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 (Chicago: 1967), 167–171.

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). 1001 Id., 304 U.S., 79–80. 1002 Id., 78. Erie applies in equity as well as in law. Ruhlin v. New York Life

Ins. Co., 304 U.S. 202 (1938). 1003West 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).

turned on the lack of power vested in Congress to have prescribed

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.’’ 1000 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.’’ 1001

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.’’ 1002

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 the decision of the highest

court of a State were binding on a federal court in diversity but as

well intermediate appellate courts 1003 and courts of first in-
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1004Fidelity Union Trust Co., v. Field, 311 U.S. 169 (1940). 1005King 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, ‘‘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). 1006 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). 1007Klaxon 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). 1008 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. 1009Guaranty Trust Co. v. York, 326 U.S. 99 (1945).

stance, 1004 even where the decisions bound no other state judge except as they were persuasive on their merits. It has now retreated

from this position to the extent that federal judges are to give careful consideration to lower state court decisions and to old, perhaps

outmoded decisions, but they must find for themselves the state

law where the State’s highest court has not spoken definitively and

within a period which would raise no questions about the continued

viability of the decision. 1005 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. 1006 In diversity cases which 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. 1007

The greatest difficulty in applying the Erie doctrine has been

in cases in which issues of procedure were important. 1008 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. 1009 The Court regarded the substance-procedure distinction as immaterial. ‘‘[S]ince

a federal court adjudicating a state-created right solely because of
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1010 Id., 108–109. 1011 Id., 109. 1012 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 State applicable 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). 1013 Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525 (1958). 1014 Hanna v. Plumer, 380 U.S. 460 (1965). 1015Maternally 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,

466–467, 471–472 (1942) (concurring opinion). See Wichita Royalty Co. v. City National Bank, 306 U.S. 103 (1939).

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 substantially affect the enforcement of the right as given by the

State.’’ 1010 The standard to be applied was compelled by the ‘‘intent’’ of the Erie decision, which ‘‘was to insure that, in all cases

where a federal court is exercising jurisdication 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.’’ 1011 The Court’s application of this standard created substantial doubt that the Federal Rules of Civil Procedure had any validity in diversity cases. 1012

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. 1013 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. 1014

Although it seems clear that Erie applies in nondiversity cases

in which the source of the right sued upon is state law, 1015 it is

equally clear that Erie is not applicable always in diversity cases

whether the nature of the issue be substantive or procedural. Thus,
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1016 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 National Trust & Savings Assn.

v. Parnell, 352 U.S. 29 (1956). But see United States v. Yazell, 382 U.S. 341 (1966). 1017 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). 1018 Howard v. Lyons, 360 U.S. 593 (1959). Matters concerned with our foreign

relations also are governed by federal law in diversity. Banco National 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). 1019Free v. Bland, 369 U.S. 663 (1962); Yiatchos v. Yiatchos, 376 U.S. 306

(1964). 1020The 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). 1021 2 M. FARRAND, op. cit., n. 1, 162, 171, 184. 1022 Id., 400–401. 1023 Id., 431.

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, 1016 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, 1017 and in which the issue is the appropriate rule for determining the validity of a defense raised by a federal officer sued

for having libeled one in the course of his official duties. 1018 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. 1019 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. 1020

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, 1021 but this proposal was defeated in the Convention, 1022 which then added this clause to the jurisdiction of the federal judiciary without reported debate. 1023 The motivation for this

clause was the existence of boundary disputes affecting ten States

at the time the Convention met. With the adoption of the North-
774 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl.1—With Foreign States

1024See Pawlet v. Clark, 9 Cr. (13 U.S.) 292 (1815). Cf. City of Trenton v. New

Jersey, 262 U.S. 182 (1923). 1025The Schooner Exchange v. McFaddon, 7 Cr. (11 U.S.) 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). 1026Principality of Monaco v. Mississippi, 292 U.S. 313, 330 (1934). 1027 Ibid. 1028 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, P.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). 1029The Sapphire, 11 Wall. (78 U.S.) 164, 167 (1871). 1030 Ibid. 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.

west 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. 1024

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, 1025 an immunity which extends to

suits brought by States of the American Union. 1026 Conversely, the

Eleventh Amendment has been construed to bar suits by foreign

states against a State of the United States. 1027 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. 1028

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. 1029 To deny a sovereign this privilege ‘‘would

manifest a want of comity and friendly feeling.’’ 1030 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
ART. III—JUDICIAL DEPARTMENT 775

Sec. 2—Jurisdiction Cl.1—With Foreign States

1031Guaranty 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 Railroad Company, 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. 1032 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. 1033Guaranty 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.’’ 1034 National Bank v. Republic of China, 348 U.S. 356, 361 (1955), citing 26

Dept. State Bull. 984 (1952), wherein the Department ‘‘has pronounced broadly

against recognizing sovereign immunity for the commercial operations of a foreign

government.’’ 1035Guaranty 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.’’ 1036 5 Pet. (30 U.S.) 1, 16–20 (1831).

the foreign state. 1031 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. 1032 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 court may decide to be a reasonable incident of bringing the suit. 1033 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. 1034

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. 1035

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 the case of Cherokee

Nation v. Georgia, 1036 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
776 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl. 2—Original Jurisdiction of Supreme Court

1037 Hodgson & Thompson v. Bowerbank, 5 Cr. (9 U.S.) 303 (1809). 1038 Jackson v. Twentyman, 2 Pet. (27 U.S.) 136 (1829); Romero v. International

Terminal Operating Co., 358 U.S. 354 (1959). 1039 Coal Co. v. Blatchford, 11 Wall. (78 U.S.) 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. 1040 Browne v. Strode, 5 Cr. (9 U.S.) 303 (1809).

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. 1037 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 was further held not to extend to private suits in

which an alien is a party, unless a citizen is the adverse party. 1038

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. 1039 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. 1040

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
ART. III—JUDICIAL DEPARTMENT 777

Sec. 2—Jurisdiction Cl. 2—Original Jurisdiction of Supreme Court

1041 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. 1042Dall. (2 U.S.) 419 (1793). In an earlier case, the point of jurisdiction was

not raised. Georgia v. Brailsford, 2 Dall. (2 U.S.) 402 (1792). 1043 1 Stat. 80. 1044On the Eleventh Amendment, see infra. On suits involving States as parties, see supra. 1045Kentucky v. Dennison, 24 How. (65 U.S.) 66, 98 (1861). 1046Marbury v. Madison, 1 Cr. (5 U.S.) 137, 174 (1803). 1047 In § 3 of the 1789 Act. The present division is in 28 U.S.C. § 1251. 1048 United States v. Ravara, 2 Dall. (2 U.S.) 297 (C.C.Pa. 1793). 1049 Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657 (1838); Bors v. Preston, 111 U.S. 252 (1884); Ames v. Kansas ex rel. Johnson, 111 U.S. 449 (1884). Such

suits could be brought and maintained in state courts as well, the parties willing.

Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511 (1898); Ohio ex rel.

Poporici v. Alger, 280 U.S. 379 (1930).

therefore self-executing without further action by Congress. 1041 In

Chisholm v. Georgia, 1042 the Court entertained an action of assumpsit against Georgia by a citizen of another State. Congress in

§ 3 of the Judiciary Act of 1789 1043 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 ratification 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. 1044

By 1861, Chief Justice Taney could confidently enunciate, after

review of the precedents, that in all cases where original

jusrisdiction 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.’’ 1045

Although Chief Justice Marshall apparently assumed the

Court had exclusive jurisdiction of cases within its original jurisdiction, 1046 Congress from 1789 on gave the inferior federal courts

concurrent jurisdiction in some classes of such cases. 1047 Sustained

in the early years on circuit, 1048 this concurrent jurisdiction was

finally approved by the Court itself. 1049 The Court has also relied

on the first Congress’ interpretation of the meaning of Article III
778 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl. 2—Original Jurisdiction of Supreme Court

1050Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888). 1051 Id., 297. See also the dictum in Cohens v. Virginia, 6 Wheat. (19 U.S.) 264,

398–399 (1821); Chisholm v. Georgia, 2 Dall. (2 U.S.) 419, 431–432 (1793). 1052Marbury v. Madison, 1 Cr. (5 U.S.) 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., 174. This exclusive interpretation has been since followed. Ex parte Bollman, 4 Cr. (8 U.S.) 75 (1807); New Jersey v. New York, 5 Pet. (30 U.S.) 284 (1831); Ex parte Barry, 2 How, (43 U.S.) 65

(1844); Ex parte Vallandigham, 1 Wall. (68 U.S.) 243, 252 (1864); Ex parte Yerger,

8 Wall. (75 U.S.) 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. 1053 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). 1054 Utah v. United States, 394 U.S. 89, 95 (1968). 1055 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, 112 S.Ct. 789, 798–800 (1992); Maryland v. Louisiana, 451 U.S. 725, 739

(1981); United States v. Nevada, 412 U.S. 534, 538 (1973). 1056Texas v. New Mexico, 462 U.S. 554, 570 (1983).

in declining original jurisdiction of an action by a State to enforce

a judgment for a precuniary penalty awarded by one of its own

courts. 1050 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.’’ 1051

However, another clause of § 13 of the Judiciary Act of 1789

was not accorded the same presumption by Chief Justice Marshall,

who, interpreting it as giving 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 it enlarge

it and pronounced the clause void. 1052 While the Chief Justice’s interpretation of the meaning of the clause may be questioned, no

one has questioned the constitutional principle thereby 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, as in Missouri v. Holland, 1053

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.’’ 1054 Original jurisdiction ‘‘is limited and manifestly to be sparingly exercised, and

should not be expanded by construction.’’ 1055 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. 1056 It is to be honored ‘‘only in appropriate cases. And the
ART. III—JUDICIAL DEPARTMENT 779

Sec. 2—Jurisdiction Cl 2.—Power of Congress to Control the Federal Courts

1057 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. Massachusetts 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). 1058Wyoming v. Oklahoma, 112 S.Ct. 789, 798–799 (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). 1059 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),

reprinted in HART & WECHSLER, op. cit., n. 250, 393.

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.’’ 1057 But where claims are of sufficient ‘‘seriousness and dignity,’’ in which resolution by the judiciary

is of substantial concern, the Court will hear them. 1058

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. 1059 Supreme Court holdings establish clearly the
780 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl 2.—Power of Congress to Control the Federal Courts

1060 3 Dall. (3 U.S) 321 (1796). 1061 Judiciary Act of 1789, § 22, 1 Stat. 84. 1062Wiscart v. D’Auchy, 3 Dall. (3 U.S.) 321, 327 (1796). The dissent thought

that admiralty cases were not ‘‘civil actions’’ and thus that there was no appellate

review. Id., 326–327. See also Clarke v. Bazadone, 1 Cr. (5 U.S.) 212 (1803); Turner

v. Bank of North America, 4 Dall. (4 U.S.) 8 (1799). 1063Durousseau v. United States, 6 Cr. (10 U.S.) 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, 4 Cr. (4 U.S.) 75, 93 (1807)

(Chief Justice Marshall). Marshall had earlier expressed his Durousseau thoughts

in United States v. More, 3 Cr. (7 U.S.) 159 (1805). 1064 Barry v. Mercein, 5 How. (46 U.S.) 103, 119 (1847) (case held nonreviewable

because minimum jurisdictional amount not alleged).

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, 1060 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. 1061 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 an

appellate jurisdiction; and if the rule is provided, we cannot depart

from it.’’ 1062 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.’’ 1063 Later Justices viewed the matter

differently than had 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.’’ 1064 In order for a case to come within its appellate jurisdiction, the Court has said, ‘‘two things must concur: the Con-
ART. III—JUDICIAL DEPARTMENT 781

Sec. 2—Jurisdiction Cl 2.—Power of Congress to Control the Federal Courts

1065Daniels v. Railroad Co., 3 Wall. (70 U.S.) 250, 254 (1865) (case held

nonreviewable because certificate of division in circuit did not set forth questions

in dispute as provided by statute.) 1066 6 Wall. (73 U.S.) 318 (1868). That Congress’ 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 (New York: 1971),

493–495. McCardle is fully reviewed in id., 433–514. 1067 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 Dall. (3 U.S.) 17 (1795), and Ex parte

Burford, 3 Cr. (7 U.S.) 448 (1806), with Ex parte Bollman, 4 Cr. (8 U.S.) 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. 1068 Ex parte McCardle, 7 Wall. (74 U.S.) 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., 513.

stitution 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.’’ 1065

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 to its

course of action. In Ex parte McCardle, 1066 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. 1067 Although the Court

had already heard argument on the merits, it then dismissed for

want of jurisdiction. 1068 ‘‘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
782 ART. III—JUDICIAL DEPARTMENT

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1069 Id., 514. 1070Thus, see 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’ 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 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, op. cit., n. 12, 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, 5 How. (46 U.S.) 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, 5 Wall. (72 U.S.) 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). 1071Supra, pp. 597–598, 599–600. 1072 Article III, § 1, 2. 1073Martin v. Hunter’s Lessee. 1 Wheat. (14 U.S.) 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, n. 134; infra, n. 1098.

cause.’’ 1069 Although McCardle grew out of the stresses of Reconstruction, the principle there applied has been similarly affirmed

and applied in later cases. 1070

Jurisdiction of the Inferior Federal Courts.—The Framers,

as we have seen, 1071 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.’’ 1072

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, 1073 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
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1074 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). 1075 4 Dall. (4 U.S.) 8 (1799). 1076 ′′‘‘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. 1077Turner v. Bank of North America, 4 Dall. (4 U.S.) 8, 10 (1799). 1078 Ibid. 1079 In Ex parte Bollman, 4 Cr. (8 U.S.) 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.’’

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. 1074 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, 1075 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

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. 1076

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 1077 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.’’ 1078 Applying § 11, the Court held that the circuit court had

lacked jurisdiction.

Chief Justice Marshall himself soon made similar assertions, 1079 and the early decisions of the Court continued to be
784 ART. III—JUDICIAL DEPARTMENT

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1080 United States v. Hudson & Goodwin, 7 Cr. (11 U.S.) 32, 33 (1812). Justice

Johnson continued: ‘‘All other Courts [beside 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, 12 Pet. (37 U.S.) 657, 721–722 (1838). 1081 3 How. (44 U.S.) 236 (1845). 1082 Id., 244–245. 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., 264. 1083Supra, n. 1076. 1084 8 How. (49 U.S.) 441 (1850). 1085 E.g., Kline v. Burke Construction 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 Fruit Co. v. Henderson, 170 U.S.

511, 513–521 (1898); The Mayor v. Cooper, 6 Wall, (73 U.S.) 247, 251–252 (1868). 1086 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

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.’’ 1080 In Cary v. Curtis, 1081 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 tribunals (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.’’ 1082 Five years later,

the validity of the assignee clause of the Judiciary Act of 1789 1083

was placed in issue in Sheldon v. Sill, 1084 in which diversity of citizenship had been created by assignment of a negotiable instrument. It was argued that inasmuch as 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 these contentions 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 has

been cited and reaffirmed numerous times, 1085 and has been quite

recently applied. 1086
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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, 400–402 (1973); Swain v. Pressley, 430 U.S.

372 (1977). And see Taylor v. St. Vincent’s Hosp., 369 F. Supp. 948 (D. Mont. 1973),

affd., 523 F.2d 75 (9th Cir.), CERT. DEN., 424 U.S. 948 (1976). 1087 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). 1088The 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 rate-making).1089 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). 1090F. FRANKFURTER & I. GREENE, THE LABOR INJUNCTION (New York: 1930). 1091 47 Stat. 70 (1932), 29 U.S.C. §§ 101–115. 1092 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.’’ 1093 E.g., New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938);

Brotherhood of Railroad Trainmen v. Chicago River & Indiana R.R. Co., 353 U.S.

30 (1957); Boys Market v. Retail Clerks Union, 398 U.S. 235 (1970). 1094 56 Stat. 23 (1942).

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. 1087

The power to enjoin governmental and private action has frequently been curbed by Congress, especially as the action has involved the power of taxation at either the federal or state level. 1088

Though the courts have variously interpreted these restrictions, 1089 they have not denied the power to impose them.

Reacting to judicial abuse of injunctions in labor disputes, 1090

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. 1091 The Court seemingly experienced no difficulty upholding the Act, 1092 and it has liberally applied it through the

years. 1093

Congress’ power to confer, withhold, and restrict jurisdiction is

clearly revealed in the Emergency Price Control Act of 1942 1094

and in the cases arising from it. Fearful that the price control pro-
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1095 319 U.S. 182 (1943). 1096 321 U.S. 414 (1944). 1097 Id., 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 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., 289 (Justice Powell concurring). See also Harrison v. PPG Industries, 446 U.S. 578 (1980), and id., 594 (Justice Powell concurring). 1098This was Justice Story’s theory propounded in Martin v. Hunter’s Lessee,

1 Wheat. (14 U.S.) 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 Neo-Federalist 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., 1569; Redish, Text, Structure, and Common

Sense in the Interpretation of Article III, id., 1633; and a response by Amar, id.,

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

gram 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

consitutionality of the Act was sustained in Lockerty v. Phillips. 1095 In Yakus v. United States, 1096 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, 1097 Chief Justice

Stone for the Court declared that the provision presented no novel

constitutional issue.

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 desired

by manipulation of jurisdiction and indeed the cases reflect certain

limitations. Setting to one side various formulations, such as mandatory vesting of jurisdiction, 1098 inherent judicial power, 1099 and
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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, supra, n. 1074. 1099 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. 1100The 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). 1101 An extraordinary amount of writing has been addressed to the issue, only

a fraction of which is touched on here. See HART & WECHSLER, op. cit., n. 250, 362–

424.1102 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., 611–615 (concurring). 1103 7 Wall (74 U.S.) 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). 1104 Article I, § 9, cl. 2.

a theory, variously expressed, that the Supreme Court has ‘‘essential constitutional functions’’ of judicial review that Congress may

not impair through jurisdictional limitations, 1100 which lack textual and subsequent judicial support, one can see nonetheless the

possibilities of restrictions on congressional power flowing from

such basic constitutional underpinnings as express prohibitions,

separation of powers, and the nature of the judicial function. 1101

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. 1102

Ex parte McCardle 1103 marks the furtherest 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. 1104

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 de-
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1105 Ex parte McCardle, 7 Wall, (74 U.S.) 506, 515 (1869). 1106 8 Wall. (75 U.S.) 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. 1107 Cf. 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). 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., 567–568, while noting

that Congress’ ‘‘authority is not, of course, unlimited.’’ Id., 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. . . .’’ 1108 13 Wall. (80 U.S.) 128 (1872). See 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. 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 Armstron v. United States, 13 Wall. (80 U.S.) 154

(1872), as in fact a judicial invalidation of a jurisdictional limitation. Young, id.,

1222–1223 n. 179. 1109 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, 9 Wall, (76 U.S.)

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).

nied. 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.’’ 1105 A year later, in Ex parte Yerger, 1106 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. 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. 1107

Another Reconstruction Congress attempt to curb the judiciary

failed in United States v. Klein, 1108 in which 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

was voided. 1109 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
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1110 United States v. Klein, 13 Wall. (80 U.S.) 128, 145–146 (1872). 1111 Id., 147. 1112 Id., 146. 1113 Id., 147. For an extensive discussion of Klein, see United States v. Sioux

Nation, 448 U.S. 371, 391–405 (1980), and id., 424, 427–434 (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, 112 S.Ct. 1407 (1992), the 9th 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., 1414. 1114 United States v. Klein, 13 Wall. (80 U.S.) 128, 147 (1872).

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 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.’’ 1110 The statute was void for two reasons; it

‘‘infring[ed] the constitutional power of the Executive,’’ 1111 and it

‘‘prescrib[ed] a rule for the decision of a cause in a particular

way.’’ 1112 Klein thus stands for the proposition that Congress may

not violate the principle of separation of powers 1113 and that it

may not accomplish certain forbidden substantive acts by casting

them in jurisdictional terms. 1114

Other restraints on congressional power over the federal courts

may be gleaned from the opinion in the much-disputed Crowell v.
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1115 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

Yard Co. v. United States, 298 U.S. 38 (1936).

1116Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. (59 U.S.)

272 (1856).

1117 285 U.S. 22 (1932). Justices Brandeis, Stone, and Roberts dissented.

1118 Id., 56, 60, 64.

Benson. 1115 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. 1116 What this might mean was elaborated in Crowell

v. Benson, 1117 involving the finality to be accorded administrative

findings 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 law and

fact, 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.’’ 1118

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
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1119See Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50,

76–87 (1982) (plurality opinion), and id., 100–103, 109–111 (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., 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,

578–579 (1968); Agosto v. INS, 436 U.S. 748, 753 (1978); United States v. Raddatz,

447 U.S. 667, 682–684 (1980), and id., 707–712 (Justice Marshall dissenting).

1120 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).

1121Williams v. Rhodes, 393 U.S. 23, 29 (1968) (opinion of the Court.) The elder

Justice Harlan perhaps had the same thought in mind when he said that, with regard to Congress’ power 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 Constitution.’’ United States v. Bitty, 208 U.S. 393, 399–400 (1908).

1122 52 Stat. 1060, 29 U.S.C. § 201.

by several Justices approvingly, 1119 but the Court has never applied the principle to control another case. 1120

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;’’ Justice Black

said in a different context, ‘‘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.’’ 1121 The Supreme Court has had no occasion to deal with this principle in the

context of Congress’ power over its jurisdiction and the jurisdiction

of the inferior federal courts, but the passage of the Portal-to-Portal

Act 1122 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. While some district courts sustained

the Act on the basis of the withdrawal of jurisdiction, this action

was disapproved by the Courts of Appeals which indicated that the

withdrawal of jurisdiction would be ineffective if the extinguishment of the claims as a substantive matter was 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
792 ART. III—JUDICIAL DEPARTMENT

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1123 Battaglia v. General Motors Corp., 169 F. 2d 254, 257 (2d Cir.), cert. den.

335 U.S. 887 (1948) (Judge Chase). See also Seese v. Bethlehem Steel Co., 168 F.

2d 58, 65 (4th Cir. 1948) (Chief Judge Parker). For recent dicta, see Johnson v.

Robison, 415 U.S. 361, 366–367 (1974); Weinberger v. Salfi, 422 U.S. 749, 761–762

(1975); Territory of Guam v. Olsen, 431 U.S. 195, 201–202, 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., 611–615 (Justice Scalia dissenting). Note the relevance of

United States v. Mendoza-Lopez, 481 U.S. 828 (1987). 1124Gibbons v. Ogden. 9 Wheat. (22 U.S.) 1.204–205 (1824).

process of law or to take private property without just compensation.’’ 1123

Conclusion.—There thus remains a measure of doubt that

Congress’ 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 enactment is by no means clear from the text of the Constitution nor

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.’’ 1124 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
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1125See 28 U.S.C. §§ 1251, 1331 et seq. Indeed, the presumption is that states

courts enjoy concurrent jurisdiction, and Congress must explicity 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, 477–484 (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 R. Co., 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, Congress can provide exclusive federal jurisdiction only by explicit and affirmative statement in the text of the statute, Tafflin v. Levitt, supra, 469, but as can

be seen that is not now the rule. 1126Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). 1127Through the ‘‘saving to suitors’’ clause. 28 U.S.C. § 1333(1). See Madruga v.

Superior Court, 346 U.S. 556, 560–561 (1954). 1128Supra, pp. 597–598, 701–703. See 28 U.S.C. § 1257. 1129 E.g., by a suit against a State by a citizen of another State directly in the

Supreme Court, Chisholm v. Georgia, 2 Dall. (2 U.S.) 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, 120–132 (1941).

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. 1125 Even within this last category, however, state

courts, though unable to prejudice the harmonious operation and

uniformity of general maritime law, 1126 have concurrent jurisdiction over cases that occur within the maritime jurisdiction when

such litigation assumes the form of a suit at common law. 1127 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. 1128 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, 1129 it became much more significant and likely

when, in the wake of the Civil War, Congress bestowed general fed-
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1130 Act of March 3, 1875, 18 Stat. 470. 1131 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. 1132See H. WECHSLER, THE NATIONALIZATION OF CIVIL LIBERTIES AND CIVIL

RIGHTS (Austin: 1969). 1133 HART & WECHSLER, op. cit., n. 250, 518–521. Notable examples include Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304 (1816); Cohens v. Virginia, 6 Wheat.

(19 U.S.) 264 (1821); Ableman v. Booth, 21 How. (62 U.S.) 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. L. Rev. 191 (1973). 1134Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304 (1816). See 2 W.

CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES

(Chicago: 1953), 785–817; 1 C. WARREN, THE SUPREME COURT IN UNITED STATES

HISTORY (Boston: 1926), 442–453. 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). 1135 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). 1136Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304 (1816); McCulloch v.

Maryland, 4 Wheat. (17 U.S.) 316, 437 (1819); Gibbons v. Ogden, 9 Wheat. (22 U.S.)

1, 239 (1824); Williams v. Bruffy, 102 U.S. 248 (1880) (entry of judgment); Tyler v.

Maguire, 17 Wall. (84 U.S.) 253 (1873) (award of execution); Stanley v. Schwalby,

eral question jurisdiction on the federal courts, 1130 enacted a series

of civil rights statutes and conferred jurisdiction on the federal

courts to enforce them, 1131 and most important of all proposed and

saw to the ratification of the three constitutional amendments, especially the Fourteenth, which made subject to federal scrutiny an

ever-increasing number of state actions. 1132

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 state court will so interpret the facts or the Court’s opinion to the detriment of the party prevailing in the Supreme

Court. 1133 When it is alleged that the state court has deviated

from the Supreme Court’s mandate, the party losing below may appeal again 1134 or she may presumably apply for mandamus to compel compliance. 1135 Statutorily, the Court may attempt to overcome

state recalcitrance by a variety of specific forms of judgment. 1136
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162 U.S. 255 (1896); Poindexter v. Greenhow, 114 U.S. 270 (1885) (remand with direction to enter a specific judgment). See 28 U.S.C. § 1651(a), 2106. 1137See 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). 1138 1 C. WARREN, THE SUPREME COURT IN UNITED STATES HISTORY (Boston:

1926), 729–779. 1139 Id., 732–736. 1140 6 Pet. (31 U.S.) 515 (1832). 1141Supra, pp. 597–598. 1142 Judiciary Act of 1789, §§ 9, 11, 1 Stat. 76, 78, and see id., § 25, 1 Stat. 85.

If, however, the state courts simply defy the mandate of the Court,

difficult problems face the Court, extending to the possibility of

contempt citations. 1137

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. 1138 In the first instance, after

the Court had issued a writ of error to the Georgia Supreme Court

to review the murder conviction of a Cherokee, Corn Tassel, and

after the writ was served, Corn Tassel was executed on the day set

for the event, contrary to the federal law that a writ of error superseded sentence until the appeal was decided. 1139 Two years later,

Georgia again defied the Court when in Worcester v. Georgia, 1140

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, 1141 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, 1142 and early Congresses imposed positive duties on
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1143 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). 1144 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). 1145 16 Pet. (41 U.S.) 539, 615 (1842), See also Houston v. Moore, 5 Wheat. (18

U.S.) 1, 69 (1820) (Justice Story dissenting); United States v. Bailey, 9 Pet. (34 U.S.)

238, 259 (1835) (Justice McLean dissenting). However, it was held that States could

exercise concurrent jurisdiction if they wished. Claflin v. Houseman, 93 U.S. 130

(1876), and cases cited. 1146 E.g., Act of June 8, 1872, 17 Stat. 323. 1147 Claflin v. Houseman, 93 U.S. 130 (1876). 1148 35 Stat. 65 (1908), as amended, 45 U.S.C. §§ 51–60. 1149Second Employers’ Liability Cases (Mondou v. New York, N.H. & H. R. Co.),

223 U.S. 1 (1912). 1150 Id., 59. 1151Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377 (1929). 1152 Id., 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.

Co., 292 U.S. 230 (1934). It appears that generally state procedure must yield to

state courts to enforce federal laws. 1143 Reaction set in out of hostility to the Embargo Acts, the Fugitive Slave Law, and other

measures, 1144 and in Prigg v. Pennsylvania, 1145 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, 1146 which the Court sustained, 1147 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. 1148

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. 1149 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,’’ 1150 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 which fell in a class of cases in which claims under

state law would not be entertained. 1151 ‘‘[T]here is nothing in the

Act of Congress that purports to force a duty upon such Courts as

against an otherwise valid excuse.’’ 1152 However, ‘‘[a]n excuse that
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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. Co., 342 U.S.

359 (1952), with Minneapolis & St. L. R. Co. v. Bombolis, 241 U.S. 211 (1916). 1153 Howlett by Howlett v. Rose, 496 U.S. 356, 371 (1990). See also Felder v.

Casey, 487 U.S. 131 (1988). 1154 330 U.S. 386 (1947). 1155 Id., 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. Brand, 369 U.S. 663 (1962). 1156Donovan 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. Co. v. Kepner,

314 U.S. 44, 56 (1941) (Justice Frankfurter dissenting). In Riggs v. Johnson County,

6 Wall. (73 U.S.) 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. 1157McKim v. Voorhies, 7 Cr. (11 U.S.) 279 (1812); Riggs v. Johnson County,

6 Wall. (73 U.S.) 166 (1868). 1158Princess 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 authority. Ableman v. Booth, 21 How. (62 U.S.) 506 (1859); Tarble’s Case, 13 Wall. (80

U.S.) 397 (1872).

is inconsistent with or violates federal law is not a valid excuse.

. . .’’ 1153

In Testa v. Katt, 1154 the Court unanimously held that state

courts, at least in regard to claims and cases analogous to claims

and cases enforceable in those courts under state law, are as required to enforce penal laws of the United States as they are to enforce remedial laws. 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. 1155

State Interference with Federal Jurisdiction.—It seems

settled, though not without dissent, that state courts have no

power to enjoin proceedings 1156 or effectuation of judgments 1157 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. 1158
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1159 Younger v. Harris, 401 U.S. 37, 44 (1971). Compare Fair Assessment in

Real Estate Assn. v. McNary, 454 U.S. 100 (1981), with id., 119–125 (Justice Brennan concurring, joined by three other Justices). 1160Mast, 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, 128–129

(1982). See also Rosewell v. LaSalle National Bank, 450 U.S. 503 (1981); Fair Assessment in Real Estate Assn. v. McNary, 454 U.S. 100 (1981) (comity limits federal

court interference with state tax systems). And see Missouri v. Jenkins, 495 U.S.

33 (1990). 1161 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS (St. Paul: 4th ed.

1983), 13. The basic doctrine was formulated by Justice Frankfurter for the Court

in Railroad Comm. 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 the administration by a State of its own affairs, Burford

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’. . . .’’ 1159 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’’ 1160

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. 1161 Abstention is not proper, however, where the rel-
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v. Sun Oil Co., 319 U.S. 315 (1943); Alabama Pubic Service Comm. 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 Thiobodaux, 360 U.S. 25 (1959). See

also Clay v. Sun Insurance Office Ltd., 363 U.S. 207 (1960). Also, while 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). 1162 City of Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77 (1958); Zwickler

v. Koota, 389 U.S. 241, 249–251 (1967). See Babbitt v. United Farm Workers Nat.

Union, 442 U.S. 289, 306 (1979) (quoting Harman v. Forssenius, 380 U.S. 528, 534–

535 (1965)). 1163 Harman v. Forssenius, 380 U.S. 528, 534–535 (1965); Babbitt v. United

Farm Workers, 442 U.S. 289, 305–312 (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. Constanineau, 400 U.S. 433 (1971); Zablocki v. Redhail, 434

U.S. 374, 379 n. 5 (1978); Douglas v. Seacoast Products, 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 Comrs. 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). 1164 American Trial Lawyers Assn. 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 Comrs. v. Moore, 420 U.S. 77, 88 n. 14 (1975). 1165 E.g., Spector Motor Service v. McLaughlin, 323 U.S. 101 (1944); Louisiana

Power & Light Co. v. City of Thiobodaux, 360 U.S. 25 (1959); Harrison v. NAACP,

360 U.S. 167 (1959). 1166McNeese v. Board of Education, 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

evant state law is settled, 1162 nor where it is clear that the state

statute or action challenged is unconstitutional no matter how the

state court construes state law. 1163 Federal jurisdiction is not

ousted by abstention; rather it is postponed. 1164 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. 1165

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. 1166 Time-consuming
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(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). 1167 England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 426

(1964) (Justice Douglas concurring). See C. WRIGHT, HANDBOOK OF THE LAW OF

FEDERAL COURTS (St. Paul: 4th ed. 1983), 305. 1168 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). 1169 Compare Harrison v. NAACP, 360 U.S. 167 (1959), with McNeese v. Board

of Education, 373 U.S. 668 (1963). 1170 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). 1171 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, 112 S.Ct. 2206, 2215 (1992). 1172The rule was formulated in Prentis v. Atlantic Coast Line Co., 211 U.S. 210

(1908), and Bacon v. Rutland R. Co., 232 U.S. 134 (1914). 1173 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. v. Southern Ry.

Co., 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. 1174Patsy v. 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. 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

delays 1167 and piecemeal resolution of important questions 1168

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, 1169 and for awhile cases involving First

Amendment expression guarantees seemed to be sheltered as well,

but this is no longer the rule. 1170 Abstention developed robustly

with Younger v. Harris, 1171 and its progeny.

Exhaustion of State Remedies.—A complainant will ordinarily be required, as a matter of comity, to exhaust all his state

legislative and administrative remedies before seeking relief in federal court where such remedies are, of course, available. 1172 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. 1173 But when a

litigant is suing for protection of federally-guaranteed civil rights,

he need not exhaust any kind of state remedy. 1174
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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). And under the Civil Rights of Institutionalized Persons Act, there

is a requirement of exhaustion, where States have federally-approved procedures.

See Patsy, supra, 507–513. 1175Toucey v. New York Life Ins. Co., 314 U.S. 118, 130–132 (1941). 1176 ‘‘[N]or shall a writ of injunction be granted to stay proceedings in any court

of a state; . . .’’ § 5, 1 Stat. 334 (1793), now, as amended, 28 U.S.C. § 2283. 1177Durfee & Sloss, Federal Injunctions Against Proceedings in State Courts:

The Life History of a Statute, 30 Mich. L. Rev. 1145 (1932). 1178 314 U.S. 118 (1941). 1179 ‘‘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. 1180 Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511 (1955); Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281

(1970). See M. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER (Charlottesville: 1980), ch. 10. 1181The 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 Serv, 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 empowered 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).

Anti-Injunction Statute.—For reasons unknown, 1175 Congress in 1793 enacted a statute to prohibit the issuance of injunctions by federal courts to stay state court proceedings. 1176 Over

time, a long list of exceptions to the statutory bar was created by

judicial decision, 1177 but in Toucey v. New York Life Ins. Co., 1178

the Court in a lengthy opinion by Justice Frankfurter announced

a very liberal interpretation of the anti-junction statute so as to do

away with practically all the exceptions that had been created.

Congress’ response was to redraft the statute and to indicate that

it was restoring the pre-Toucey interpretation. 1179 Considerable

disagreement exists over the application of the statute, however,

and especially with regard to the exceptions permissible under its

language. The present tendency appears to be to read the law expansively and the exceptions restrictively in the interest of preventing conflict with state courts. 1180 Nonetheless, some exceptions do

exist, either expressly or implicitly in statutory language 1181 or
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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). 1182Thus, 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, 552–556 (1972). 1183The 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. Co. v. Brotherhood of Locomotive Engineers, 398

U.S. 281, 285–286 (1970). 1184 Article IV, § 1, of the Constitution; 28 U.S.C. § 1738. 1185 Allen v. McCurry, 449 U.S. 90, 95–96 (1980). 1186 Id., 96–105. There were three dissenters. Id., 105 (Justices Blackmun, Brennan, and Marshall). In England v. Louisiana State Board 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. 1187Kramer v. Chemical Construction Corp., 456 U.S. 461, 468 (1982).

through Court interpretation. 1182 The Court’s 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. 1183

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. 1184 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.’’ 1185 The Court in this

case, after reviewing enactment of the statute that is now 42

U.S.C. § 1983, held that § 1983 is not an exception to the mandate

of the res judicata statute. 1186 An exception to § 1738 ‘‘will not be

recognized unless a later statute contains an express or implied

partial repeal.’’ 1187 Thus, a claimant who pursued his employment

discrimination remedies through state administrative procedures,

as the federal law requires her to do (within 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
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1188 Id., 468–476. There were four dissents. Id., 486 (Justices Blackmun, Brennan, and Marshall), 508 (Stevens). 1189 209 U.S. 123 (1908). 1190 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. 1191Swift & Co. v. Wickham, 382 U.S. 111, 119 (1965); Ex parte Collins, 277

U.S. 565, 567 (1928). 1192These 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

under public accommodations and equal employment provisions of the 1964 Civil

Rights Act. 42 U.S.C. §§ 2000a–5(b), 2000e–6(b). 1193Pub. 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. 1194For 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,

federal court is obligated to give the state court decision ‘‘full faith

and credit.’’ 1188

Three-Judge Court Act.—When the Court in Ex parte

Young 1189 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. 1190 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. 1191 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’’ 1192

or in cases involving state legislative or congressional districting,

were repealed in Congress in 1976. 1193

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 federal-question jurisdiction on lower federal courts plaintiffs

had to bring actions in state courts, and on some occasions now,

this has been done. 1194 But the usual course is to sue in federal
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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). 1195 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 which applied to unconsented

suits by its own citizens. 1196 In re Ayers, 123 U.S. 443 (1887). 1197 209 U.S. 123 (1908). 1198The 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. Id., 159–160. 1199 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). 1200Supra, pp. 798–800.

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, 1195 and the

immunity of state officers if the action upon which they were being

sued was state action, 1196 from suit without the State’s consent. Ex

parte Young 1197 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. 1198

Conflict between federal and state courts is inevitable when

the federal courts are open to persons complaining about unconstitutional 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, 1199 those seeking to enjoin

state court proceedings must overcome substantial prudential barriers, among them the abstention doctrine 1200 and more important
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1201The quoted phrase setting out the general principle is from the Judiciary

Act of 1789, § 16, 1 Stat. 82. 1202The older cases areFenner v. Boykin 271 U.S. 240 (1926); Spielman Motor

Sales Co. v. Dodge, 295 U.S. 89 (1935); Beal v. Missouri Pac. R. Co., 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). 1203 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). 1204 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). 1205 ‘‘[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 ultithan that the equity doctrine that suits in equity are to be withheld ‘‘in any case where plain, adequate and complete remedy may

be had at law.’’ 1201 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 which is both

great and immediate but an inability to defend his constitutional

right 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. 1202

The policy has never been stated as an absolute, recognizing that

in exceptional and limited circumstances, such as the existence of

factors making it impossible for a litigant to protect his federal constitutional rights through a defense of the state criminal charges

or the bringing of multiple criminal charges, a federal court injunction could properly issue. 1203

In Dombrowski v. Pfister, 1204 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. 1205 But the
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mate review in this Court of any adverse determination. These allegations, if true,

clearly show irreparable injury.’’ Id., 380 U.S., 485–486. 1206That is, a statute which reaches both protected and unprotected expression

and conduct. 1207 Id., 486–487. 1208See Cameron v. Johnson, 381 U.S. 741 (1965); Cameron v. Johnson, 390

U.S. 611 (1968.) 1209 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. 1210 It was clear that the statute could not be construed by a state court and

thus a federal constitutional decision rendered unnecessary. Id., 248–252. 1211 Id., 254. 1212Maraist, Federal Injunctive Relief Against State Court Proceedings: The Significance of Dombrowski, 48 Tex. L. Rev. 535 (1970).

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, it was said, and prosecution under an

overbroad 1206 statute like 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.’’

In such cases, courts could no longer embrace the assumption

that defense of the 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 First

Amendment rights. 1207 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 to discourage 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 exercise of freedom of expression. 1208 These formulations were reaffirmed in Zwickler v. Koota, 1209 in which a declaratory judgment was sought with regard to a statute prohibiting

anonymous election literature. Abstention was deemed improper, 1210 and further it was held that adjudication for purposes

of declaratory judgment is not hemmed in by considerations attendant upon injunctive relief. 1211

The aftermath of the Dombrowski-Zwickler decisions 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. 1212 However, these develop-
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1213 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). 1214Only Justice Douglas dissented. Id., 58. Justices Brennan, White, and Marshall generally concurred in somewhat restrained fashion. Id., 56, 75, 93. 1215 Id., 54. On bad faith enforcement, see id., 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), affd. per curiam sub nom., Dexter v. Butler,

587 F. 2d 176 (5th Cir. (en banc), cert. den., 442 U.S. 929 (1979).

ments were highly controversial and after three arguments on the

issue, the Court in a series of cases receded from its position and

circumscribed the discretion of the lower federal courts to a considerable and ever-broadening degree. 1213 The important difference

between this series of cases and Dombrowski-Zwickler was that in

the latter for particular reasons there were no prosecutions pending whereas in the former there were. Nevertheless, the care with

which Justice Black for the majority undertook to distinguish and

limit Dombrowski signified a limitation of its doctrine, which

proved partially true in later cases.

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 the language, did not change the general

rule, because extraordinary circumstances had existed. Thus, Justice Black, with considerable support from the other Justices, 1214

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 which would be

brought, and the defendant may put in issue his federal-constitutional defense at the trial, 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 and attacks on 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 circumstances that would call for equitable relief.’’ 1215
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1216 Id., 44. 1217Samuels 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). 1218Samuels v. Mackell, 401 U.S. 66, 72 (1971). 1219Steffel v. Thompson, 415 U.S. 452 (1974). 1220Doran 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 Authority v. Midkiff, 467 U.S. 229, 238 (1984). 1221 Huffman v. Pursue, Ltd., 420 U.S. 592 (1975); 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 County Ethics Committee v. Garden State Bar Assn, 457 U.S. 423

(1982).

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. 1216

Moreover, in a companion case, the Court held that when prosecutions are pending in state court, ordinarily the propriety of injunctive and declaratory relief should be judged by the same standards. 1217 A declaratory judgment is as likely to interfere with state

proceedings as an injunction, whether the federal decision be treated as res judicata or whether it is 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 ‘further necessary or proper relief’

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.’’ 1218

When, however, there is no pending state prosecution, the

Court is clear, ‘‘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. 1219 And, in fact, when no state prosecution

is pending, a 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. 1220

Of much greater significance is the extension of Younger to

civil proceedings in state courts 1221 and to state administrative
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1222Ohio Civil Rights Comm. v. Dayton Christian Schools, 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, 366–373 (1989). 1223Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987). 1224 ‘‘[T]he State’s interest in protecting ‘the authority of the judicial system, so

that its orders and judgments are not rendered nugatory’’’ was deemed sufficient.

Id., 14 n. 12 (quoting Judice v. Vail, 430U.S. 327, 336 n. 12 (1977)). 1225 Id., 14. 1226 Ex parte Watkins, 3 Pet. (28 U.S.) 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). It should be noted that 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. 1227 Ex parte Lange, 18 Wall. (85 U.S.) 163 (1874). 1228 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). 1229 Ex parte Wilson, 114 U.S. 417 (1885); Nielsen, Petitioner, 131 U.S. 176

(1889); In re Snow, 120 U.S. 274 (1887); but see Ex parte Parks, 93 U.S. 18 (1876);

proceedings of a judicial nature. 1222 The principle is that the

Younger principle applies whenever in civil or administrative proceedings important state interests are involved which the State, or

its officers or agency, is seeking to promote. Indeed, the presence

of important state interests in state proceedings has been held to

raise the Younger bar to federal relief in proceedings which are entirely between private parties. 1223 Comity, the Court said, requires

abstention when States have ‘‘important’’ interests in pending civil

proceedings between private parties, 1224 as long as litigants are

not precluded from asserting federal rights. Thus, the Court explained, ‘‘proper respect for the ability of state courts to resolve federal questions presented in state court litigation mandates that the

federal court stay its hand.’’ 1225

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. 1226 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. 1227 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. 1228 Other cases expanded the wantof-jurisdiction rationale. 1229 But the present status of the writ of
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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, op. cit., n. 12, 109–113. 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). 1230 237 U.S. 309 (1915). 1231 261 U.S. 86 (1923). 1232Waley v. Johnston, 316 U.S. 101 (1942). See also Johnson v. Zerbst, 304

U.S. 458 (1938); Walker v. Johnson, 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, 112 S.Ct. 2482, 2486–2487 & n. 3 (1992) (Justice Thomas for a plurality of

the Court), with id., 2493–2495 (Justice O’Connor concurring). 1233 344 U.S. 443 (1953). Brown is commonly thought to rest on the assumption

that federal constututional 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,

112 S.Ct. 2482, 2493–2494 (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., 401–424, with id., 450–461. See the material gathered

and cited in HART & WECHSLER, op. cit., n. 250, 1487–1505.

habeas corpus may be said to have been started in its development

in Frank v. Mangum, 1230 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. Since Frank’s claim of

mob domination was reviewed fully and rejected by the state appellate court, he had been afforded an adequate corrective process for

any denial of rights, and his custody was not in violation of the

Constitution. Then, eight years later, in Moore v. Dempsey, 1231 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. 1232

The landmark case was Brown v. Allen, 1233 in which the Court laid
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1234Sanders 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 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. 1235Townsend v. Sain, 372 U.S. 293, 310–312 (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., 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. P.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, 110–116 (1985). However, in Wright v.

West, 112 S.Ct. 2482 (1992), the Justices argued inconclusively whether deferential

review of questions of law or especially of law and fact should be adopted.

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.’’ 1234 First, the Court dealt with the established principle that

a federal habeas court is empowered, where a prisoner alleges facts

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 in order to guide district courts as to when they

must hold a hearing and find facts. 1235 ‘‘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
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1236Townsend v. Sain, 372 U.S. 293, 312 (1963). The Court was unanimous on

the statement, but it divided 5-to–4 on application. 1237 Id., 313–318. Congress in 1966 codified the factors in somewhat different

form but essentially codified Townsend. P.L. 89–711, 80 Stat. 1105, 28 U.S.C.

§ 2254. The present Court is of the view that Congress neither codified Townsend

nor precluded the Court from altering the Townsend standards. Keeney v. TamayoReyes, 112 S.Ct. 1715, 1720 n. 5 (1992). Compare id., 1725–1727 (Justice O’Connor

dissenting). Keeney formally overruled part of Townsend. Id., 1717. 1238 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

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). 1239 Id., 373 U.S., 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. Id., 373 U.S.,

11–14. But see id., 27–28 (Justice Harlan dissenting). 1240 Id., 15. In codifying the Sanders standards in 1966, P.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).

in a collateral proceeding.’’ 1236 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. 1237

Second, Sanders v. United States 1238 dealt with two interrelated questions: the effects to be given successive petitions for the

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,’’ 1239 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. 1240 With respect to grounds not
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1241 Id., 373 U.S., 17–19. 1242 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 postconviction

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, 744–751 (1991). 1243 E.g., Murdock v. City of Memphis, 20 Wall. (87 U.S.) 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. 1244 344 U.S. 443 (1953). 1245Fay v. Noia, 372 U.S. 391, 424–434 (1963). 1246 Id., 438–440.

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. 1241

Third, the most controversial of the 1963 cases, Fay v.

Noia, 1242 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 State’s ‘‘independent and adequate state ground’’ bars direct

federal review of the claim. 1243 Whether a similar result prevailed

upon habeas divided the Court in Brown v. Allen, 1244 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. 1245

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. 1246
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1247 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% of the filings result in either release or retrial. C. WRIGHT, A. MILLER, & E. COOPER, FEDERAL PRACTICE AND PROCEDURE (1988 & supps.), § 4261, at 284–291.

1248Wainwright 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, 112 S.Ct. 1715, 1719–1720 (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., 256–

258, 274–275. As will be evident infra, some form of innocence standard now is pervasive in much of the Court’s habeas jurisprudence.

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 as well 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. 1247 While the efforts were 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.’’ 1248 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
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1249 Id., 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). 1250Stone 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 deterrent purpose was advanced by applying the rule on habeas, except to

encourage state courts to give claimants a full and fair hearing. Id., 493–495. 1251Stone does not apply to a Sixth Amendment claim of inneffective 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). 1252 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–

414 (1977) (Justice Powell concurring), and id., 415 (Chief Justice Burger dissenting); Wainwright v. Sykes, 433 U.S. 72, 87 n. 11 (1977) (reserving Miranda). 1253The 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, 494–495 (1990) (citing cases); Sawyer v.

Smith, 497 U.S. 227, 241–245 (1990).

to implement it to the fullest while the Court’s decisions may deny

them the discretion to exercise the power. 1249

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. 1250 Grounded as it is in the Court’s dissatisfaction with the

exclusionary rule, the case has not since been extended to other

constitutional grounds, 1251 but the rationale of the opinion suggests the likelihood of reaching other exclusion questions. 1252

Second, the Court has formulated a ‘‘new rule’’ exception to habeas cognizance. That is, subject to two exceptions, 1253 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
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1254Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion); Penry v. Lynaugh,

492 U.S. 302, 313–319 (1989). 1255 Butler v. McKellar, 494 U.S. 407, 412 (1990) (quoting Penry v. Lynaugh,

492 U.S. 302, 314 (1989) (quoting Teague v. Lane, 489 U.S. 288, 314 (1989) (plurality opinion) (emphasis in original)). 1256 Id., 415. See also Stringer v. Black, 112 S.Ct. 1130, 1135 (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. 1257Supra, nn. 1235–1237. 1258Townsend v. Sain, 372 U.S. 293, 313, 317 (1963), imported the ‘‘deliberate

bypass’’ standard from Fay v. Noia, 372 U.S. 391, 438 (1963). 1259Keeney v. Tamayo-Reyes, 112 S.Ct. 1715 (1992). This standard is imported

from the cases abandoning Fay v. Noia and is discussed infra, nn. 1266–1270. 1260 373 U.S. 1, 15–18 (1963). The standards are embodied in 28 U.S.C.

§ 2244(b). 1261 477 U.S. 436 (1986).

or applies a ‘‘new rule.’’ 1254 A decision announces a new rule ‘‘if the

result was not dictated by precedent existing at the time the defendant’s conviction became final.’’ 1255 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.’’ 1256

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. 1257 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 material 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. 1258 The Court overruled

that point and substituted a much-stricter ‘‘cause-and-prejudice’’

standard. 1259

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, which was dealt with

by Sanders v. United States. 1260 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 1261 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
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1262Sawyer v. Whitley,112 S.Ct. 2514 (1992). Language in the opinion suggests

that the standard is not limited to capital cases. Id., 2519. 1263The 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). 1264 499 U.S. 467 (1991). 1265 Id., 489–497. On ‘‘cause and prejudice,’’ see infra, nn. 1267–1270. The ‘‘actual innocence’’ element runs through the cases under all the headings. 1266 Coleman v. Thompson, 501 U.S. 722, 744–751 (1991).

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. 1262

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.’’ 1263 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

relinguishment. In McClesky v. Zant, 1264 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 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.’’ 1265

Fifth, the Court abandoned the rules of Fay v. Noia, although

it was only very recently that it expressly overruled the case. 1266

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 holds 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
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1267 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. 1268 E.g., Smith v. Murray, 477 U.S. 527, 538–539 (1986); Murray v. Carrier,

477 U.S. 478, 496 (1986). 1269 Id., 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, 752–757 (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). 1270 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’’).

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.’’ 1267 The ‘‘miscarriage-ofjustice’’ element is probably limited to cases in which actual innocence or actual impairment of a guilty verdict can be shown. 1268

The 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.’’ 1269 As for the ‘‘prejudice’’

factor, it is an undeveloped concept, but the Court’s only case establishes a high barrier. 1270

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, as the Court continues to emphasize broad federalism concerns, rather than simply

comity and respect for state courts, an overturning of Brown v.

Allen itself and the renunciation of any oversight, save for the ex-
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1271 § 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. 1272Thus 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. Co. v. Whitton’s Administrator, 13 Wall. (80 U.S.) 270 (1871); Tennessee v. Davis, 100 U.S. 257 (1879)); Ames v. Kansas ex rel. Johnston, 111 U.S.

449 (1884). See City of Greenwood v. Peacock, 384 U.S. 808, 833 (1966). 1273See 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). 1274 28 U.S.C. § 2679(d), enacted after Westfall v. Erwin, 484 U.S. 292 (1988). 1275 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 inconsisttremely limited direct review of state court convictions in the Supreme Court.

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. 1271 Generally, as Congress expanded the original

jurisdiction of the inferior federal courts, it similarly expanded removal jurisdiction. 1272 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 1273 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, 1274 the actions may be removed. But the statute most open

to federal-state 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.’’ 1275 In the years after
820 ART. III—JUDICIAL DEPARTMENT

Sec. 2—Jurisdiction Cl. 2—Federal-State Court Relations

ent 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). 1276Strauder v. West Virginia, 100 U.S. 303 (1880); Virginia v. Rives, 100 U.S.

313 (1880); Neal v. Delaware, 103 U.S. 370 (1880); 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). 1277Georgia 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). 1278Georgia 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., 844–855. 1279Georgia 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, 848–852 (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.

enactment of this statute, however, the court narrowly construed

the removal privilege granted, 1276 and recent decisions for the

most part confirm this restrictive interpretation, 1277 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. 1278

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. 1279 Furthermore, the removal statute’s reference to ‘‘any law providing for . . .

equal rights’’ covered only laws ‘‘providing for specific civil rights
ART. III—JUDICIAL DEPARTMENT 821

Sec. 3—Treason Cl. 1—Defined

1280Georgia v. Rachel, 384 U.S. 780, 788–794 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 824–827 (1966), See also id., 847–848 (Justice Douglas dissenting).1281 Id., 824–827. See also Johnson v. Mississippi, 421 U.S. 213 (1975). 1282See the Sixth Amendment. 1283 2 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON ADOPTION

OF THE CONSTITUTION (Philadelphia: 1836), 469 (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 (Westport, Conn.: 1971), 90–91, 129–136. 1284 2 M. FARRAND, op. cit., n. 1, 345–350; 2 J. ELLIOT, op. cit., n. 1283, 469, 487

(James Wilson); 3 id., 102–103, 447, 451, 466; 4 id., 209, 219, 220; THE FEDERALIST

No. 43 (J. Cooke ed. 1961), 290 (Madison); id., No. 84, 576–577 (Hamilton); THE

WORKS OF JAMES WILSON, R. McCloskey ed. (Cambridge: 1967 ed), 663–669. The

matter is comprehensively studied in J. HURST, op. cit., n. 1283, chs. 3, 4.

stated in terms of racial equality.’’ 1280 Thus, apparently federal

constitutional provisions and many general federal laws do not

qualify as a basis for such removal. 1281

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. 1282

SECTION 3. 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.’’ 1283 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. 1284
822 ART. III—JUDICIAL DEPARTMENT

Sec. 3—Treason Cl. 1—Defined

1285 25 Edward III, Stat. 5, ch. 2, See J. HURST, op. cit., n. 1283, ch 2. 1286 Id., 15, 31–37, 41–49, 51–55. 1287 Ibid. ‘‘[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., 152–153. 1288The 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, 4 Cr. (8 U.S.) 75, 126 (1807); Wimmer v. United States, 264 Fed. 11, 12–

13 (6th Cir. 1920), cert den., 253 U.S. 494 (1920). 1289 By the requirement of two witnesses to the same overt act or a confession

in open court. 1290 Cl. 2, infra, pp. 827–828. 1291 4 Cr. (8 U.S.) 75 (1807).

Thus, the Framers adopted two of the three formulations and

the phraseology of the English Statute of Treason enacted in

1350, 1285 but they conspicuously omitted the phrase defining as

treason the ‘‘compass[ing] or imagin[ing] the death of our lord the

King,’’ 1286 under which most of the English law of ‘‘constructive

treason’’ had been developed. 1287 Beyond limiting the power of

Congress to define treason, 1288 the clause also prescribes limitations upon Congress’ ability to make proof of the offense easy to establish 1289 and its ability to define punishment. 1290

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, in which were involved the treason trials

of Aaron Burr and his associates. In Ex parte Bollman, 1291 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
ART. III—JUDICIAL DEPARTMENT 823

Sec. 3—Treason Cl. 1—Defined

1292 Id., 126–127. 1293 United States v. Burr, 4 Cr. (8 U.S.), 469, Appx. (1807). 1294There have been a number of lower court cases in some of 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

the government does not amount to levying of 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 country. ‘‘On the contrary, if it 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.’’

On the basis of these considerations and due to the fact that

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. He 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.’’ 1292

The Burr Trial.—Not long afterward, the Chief Justice went

to Richmond to preside over the trial of Burr himself. His ruling 1293 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. 1294
824 ART. III—JUDICIAL DEPARTMENT

Sec. 3—Treason Cl. 1—Defined

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 foundation of the Confederacy was treason against the

United States. Sprott v. United States, 20 Wall. (87 U.S.) 459 (1875). See also

Hanauer v. Doane, 12 Wall. (79 U.S.) 342 (1871); Thorington v. Smith, 8 Wall. (75

U.S.) 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. 1295 325 U.S. 1 (1945). 1296 89 Law. Ed. 1443–1444 (Argument of Counsel). 1297 Id., 325 U.S., 35. 1298 Id., 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., 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. 1299 330 U.S. 631 (1947).

Aid and Comfort to the Enemy

The Cramer Case.—Since the Bollman case, the few treason

cases which 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, 1295 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. 1296 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,’’ 1297 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,’’ 1298 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. 1299 Here it was held that although the overt acts relied upon to support the charge of treason—defendant’s harboring
ART. III—JUDICIAL DEPARTMENT 825

Sec. 3—Treason Cl. 1—Defined

1300 Id., 635–636

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 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.’’ 1300

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 the Haupt decision a vindication

of his position in the Cramer case. 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 incriminat-
826 ART. III—JUDICIAL DEPARTMENT

Sec. 3—Treason Cl. 1—Defined

1301 Id., 645–646, 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 nontreasonous factors is left in doubt. It is therefore not an overt act of treason, regardless of how unlawful it might otherwise be.’’ Id., 649.

1302 343 U.S. 717 (1952).

1303 Id., 732. For citations in the subject of dual nationality, see id., 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., 746.

ing 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 test and holds that an act, quite innocent on its face, does not

need two witnesses to be transfomred into a incriminating

one.’’ 1301

The Kawakita Case.—Kawakita v. United States 1302 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. 1303
ART. III—JUDICIAL DEPARTMENT 827

Sec. 3—Treason Cl. 2—Punishment

1304 Ex parte Bollman, 4 Cr. (8 U.S.) 75 (1807). 1305 United States v. Burr, 4 Cr. (8 U.S.) 469 (1807). 1306 Cramer v. United States, 325 U.S. 1 (1945). 1307 Haupt v. United States, 330 U.S. 631 (1947). 1308 Cf. United States v. Rosenberg, 195 F.2d 583 (2d. Cir.), cert den., 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. 1309 Ex parte Bollman, 4 Cr. (8 U.S.) 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, op. cit., n. 1283, 260–267. Professor Hurst was responsible for the historical

research underlaying the Government’s brief in Cramer.

Doubtful State of the Law of Treason Today

The vacillation of Chief Justice Marshall between the

Bollman 1304 and Burr 1305 cases and the vacillation of the Court in

the Cramer 1306 and Haupt 1307 cases leave the law of treason in a

somewhat doubtful condition. The difficulties created by the Burr

case have been obviated to a considerable extent through the punishment of acts ordinarily treasonable in nature under a different

label, 1308 within a formula provided by Chief Justice Marshall

himself in the Bollman case. 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.’’ 1309

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
828 ART. III—JUDICIAL DEPARTMENT

Sec. 3—Treason Cl. 2—Punishment

1310 12 Stat. 589. This act incidentally did not designate rebellion as treason.

1311Miller v. United States, 11 Wall. (78 U.S.) 268, 305 (1871).

1312Wallach v. Van Riswick, 92 U.S. 202, 213 (1876).

1313Lord 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. Ill. Central Railroad 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, 6 Wall. (73 U.S.) 766, 769 (1868). There is no direct ruling on the

question of whether only citizens can commit treason. In Carlisle v. United States,

16 Wall. (83 U.S.) 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, 5 Wheat. (18 U.S.) 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 the latter, an

enemy alien resident in United States territory (Guam) was held 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.

Rebels’’ 1310 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 in pursuance of the war power and not

the power to punish treason, 1311 the Court in one case 1312 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.’’ 1313