623

ARTICLE III 

JUDICIAL DEPARTMENT 

CONTENTS

Page

Section 1. Judicial Power, Courts, Judges ............................................................................... 627 

Organization of Courts, Tenure, and Compensation of Judges ...................................... 627 

One Supreme Court .................................................................................................... 628 

Inferior Courts ............................................................................................................. 629

Abolition of Courts ............................................................................................... 630 

Compensation .............................................................................................................. 630 

Diminution of Salaries ......................................................................................... 630 

Courts of Specialized Jurisdiction .............................................................................. 632 

Legislative Courts ....................................................................................................... 634 

Power of Congress Over Legislative Courts ....................................................... 636 

Review of Legislative Courts by Supreme Court ............................................... 636 

The ‘‘Public Rights’’ Distinction .......................................................................... 637 

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

Patent Appeals .................................................................................................. 640 

Status of Courts of the District of Columbia ..................................................... 641 

Bankruptcy Courts ............................................................................................... 643 

Agency Adjudication ............................................................................................ 645 

Noncourt Entities in the Judicial Branch ................................................................. 648 

Judicial Power .................................................................................................................... 648 

Characteristics and Attributes of Judicial Power ..................................................... 648 

‘‘Shall Be Vested’’ ................................................................................................. 650 

Finality of Judgment as an Attribute of Judicial Power ......................................... 651 

Award of Execution .............................................................................................. 653 

Ancillary Powers of Federal Courts .................................................................................. 654 

The Contempt Power .................................................................................................. 654 

Categories of Contempt ....................................................................................... 654 

The Act of 1789 .................................................................................................... 657 

An Inherent Power ............................................................................................... 657 

First Amendment Limitations on the Contempt Power ................................... 659 

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

Hearing Versus Summary Punishment .......................................................... 661 

Due Process Limitations on Contempt Power: Right to Jury Trial ................. 662 

Due Process Limitations on Contempt Power: Impartial Tribunal ................. 663 

Contempt by Disobedience of Orders ................................................................. 665 

Contempt Power in Aid of Administrative Power ............................................. 666 

Sanctions Other than Contempt ................................................................................ 667 

Power to Issue Writs: The Act of 1789 ...................................................................... 668 

Common Law Powers of District of Columbia Courts ....................................... 669 

Habeas Corpus: Congressional and Judicial Control ........................................ 669 

Habeas Corpus: The Process of the Writ ........................................................... 671 

Congressional Limitation of the Injunctive Power ................................................... 673 

Injunctions Under the Emergency Price Control Act of 1942 .......................... 675 

The Rule-Making Power and Powers Over Process .................................................. 676 

624 ART. III—JUDICIAL DEPARTMENT 

Section 1. Judicial Power, Courts, Judges—Continued 

Ancillary Powers of Federal Courts—Continued 

Limitations to This Power ............................................................................ 678 

Appointment of Referees, Masters, and Special Aids ....................................... 678 

Power to Admit and Disbar Attorneys ............................................................... 679 

Section 2. Judicial Power and Jurisdiction .............................................................................. 680 

Clause 1. Cases and Controversies; Grants of Jurisdiction ............................................ 680 

Judicial Power and Jurisdiction—Cases and Controversies .................................... 681 

The Two Classes of Cases and Controversies .................................................... 682 

Adverse Litigants ................................................................................................. 684 

Collusive and Feigned Suits ......................................................................... 684 

Stockholder Suits .......................................................................................... 686 

Substantial Interest: Standing ............................................................................ 686 

Citizen Suits .................................................................................................. 688 

Taxpayer Suits .............................................................................................. 688 

Constitutional Standards: Injury in Fact, Causation, and 

Redressability ............................................................................................ 690 

Prudential Standing Rules ........................................................................... 695 

Standing to Assert the Constitutional Rights of Others ........................... 696 

Organizational Standing .............................................................................. 699 

Standing of States to Represent Their Citizens ......................................... 700 

Standing of Members of Congress ............................................................... 700 

Standing to Challenge Lawfulness of Governmental Action ..................... 703 

The Requirement of a Real Interest ................................................................... 706 

Advisory Opinions ......................................................................................... 707 

Declaratory Judgments ................................................................................ 709 

Ripeness ......................................................................................................... 712 

Mootness ........................................................................................................ 715 

Retroactivity versus Prospectivity ............................................................... 720 

Political Questions ............................................................................................... 724 

Origins and Development ............................................................................. 725 

The Doctrine Before Baker v. Carr ............................................................. 727 

Baker v. Carr ................................................................................................ 730 

Powell v. McCormack ................................................................................... 731 

The Doctrine Reappears ............................................................................... 733 

Judicial Review ............................................................................................................ 735

The Establishment of Judicial Review ............................................................... 735 

Marbury v. Madison ..................................................................................... 738 

Judicial Review and National Supremacy .................................................. 741 

Limitations on the Exercise of Judicial Review ................................................. 742 

Constitutional Interpretation ....................................................................... 742 

Prudential Considerations ............................................................................ 743 

The Doctrine of ‘‘Strict Necessity’’ ............................................................... 745 

The Doctrine of Clear Mistake ..................................................................... 746 

Exclusion of Extra-Constitutional Tests ..................................................... 746 

Presumption of Constitutionality ................................................................ 747 

Disallowance by Statutory Interpretation .................................................. 748 

Stare Decisis in Constitutional Law ............................................................ 748 

Conclusion ..................................................................................................... 750 

Jurisdiction of Supreme Court and Inferior Federal Courts ................................... 751 

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

States ................................................................................................................. 751 

Development of Federal Question Jurisdiction .......................................... 751 

ART. III—JUDICIAL DEPARTMENT 625

Section 2. Judicial Power and Jurisdiction—Continued 

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

When a Case Arises Under .......................................................................... 752 

Removal From State Court to Federal Court ............................................. 753 

Corporations Chartered by Congress .......................................................... 755 

Federal Questions Resulting from Special Jurisdictional Grants ............. 756 

Civil Rights Act Jurisdiction ........................................................................ 757 

Pendent Jurisdiction ..................................................................................... 758 

Protective Jurisdiction .................................................................................. 760 

Supreme Court Review of State Court Decisions ....................................... 761 

Suits Affecting Ambassadors, Other Public Ministers, and Consuls ............... 764 

Cases of Admiralty and Maritime Jurisdiction ................................................. 765 

Power of Congress to Modify Maritime Law .............................................. 767 

Admiralty and Maritime Cases ................................................................... 770 

Admiralty Proceedings ................................................................................. 773 

Territorial Extent of Admiralty and Maritime Jurisdiction ...................... 774 

Admiralty and Federalism ........................................................................... 775 

Cases to Which the United States Is a Party .................................................... 782 

Right of the United States to Sue ............................................................... 782 

Suits Against States ..................................................................................... 783 

Immunity of the United States From Suit ................................................. 784 

Suits Against United States Officials ......................................................... 786 

Suits Against Government Corporations .................................................... 789 

Suits Between Two or More States .................................................................... 790 

Boundary Disputes: The Law Applied ........................................................ 790 

Modern Types of Suits Between States ....................................................... 791 

Cases of Which the Court Has Declined Jurisdiction ................................ 793 

The Problem of Enforcement: Virginia v. West Virginia ........................... 794 

Controversies Between a State and Citizens of Another State ........................ 795 

Jurisdiction Confined to Civil Cases ........................................................... 796 

The State’s Real Interest .............................................................................. 796 

The State as Parens Patriae ........................................................................ 797 

Controversies Between Citizens of Different States ......................................... 799 

The Meaning of ‘‘State’’ and the District of Columbia Problem ................ 800 

Citizenship of Natural Persons .................................................................... 801 

Citizenship of Corporations .......................................................................... 802 

Manufactured Diversity ............................................................................... 804 

The Law Applied in Diversity Cases ........................................................... 805 

Controversies Between Citizens of the Same State Claiming Land Under 

Grants of Different States ............................................................................... 812 

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

States, Citizens, or Subjects ............................................................................ 812 

Suits by Foreign States ................................................................................ 813 

Indian Tribes ................................................................................................. 814 

Narrow Construction of the Jurisdiction .................................................... 814 

Clause 2. Original and Appellate Jurisdiction; Exceptions and Regulations of Appellate Jurisdiction .............................................................................................................. 815 

The Original Jurisdiction of the Supreme Court ...................................................... 815 

Power of Congress to Control the Federal Courts .................................................... 818 

The Theory of Plenary Congressional Control ................................................... 818 

Appellate Jurisdiction ................................................................................... 818 

Jurisdiction of the Inferior Federal Courts ................................................. 821 

Congressional Control Over Writs and Processes ...................................... 823 

626 ART. III—JUDICIAL DEPARTMENT 

Section 2. Judicial Power and Jurisdiction—Continued 

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

The Theory Reconsidered .................................................................................... 825 

Express Constitutional Restrictions on Congress ...................................... 830 

Conclusion ..................................................................................................... 831 

Federal-State Court Relations .................................................................................... 831 

Problems Raised by Concurrency ....................................................................... 831 

The Autonomy of State Courts ............................................................................ 833 

Noncompliance With and Disobedience of Supreme Court’s Orders by 

State Courts ............................................................................................... 833 

Use of State Courts in Enforcement of Federal Law ................................. 834 

State Interference with Federal Jurisdiction ............................................. 836 

Conflicts of Jurisdiction: Rules of Accommodation ............................................ 837 

Comity ............................................................................................................ 837 

Abstention ...................................................................................................... 837 

Exhaustion of State Remedies ..................................................................... 839 

Anti-Injunction Statute ................................................................................ 840 

Res Judicata .................................................................................................. 841 

Three-Judge Court Act ................................................................................. 842 

Conflicts of Jurisdiction: Federal Court Interference with State Courts ........ 842 

Federal Restraint of State Courts by Injunctions ...................................... 843 

Habeas Corpus: Scope of the Writ ............................................................... 848 

Removal ......................................................................................................... 859 

Clause 3. Trial by Jury ...................................................................................................... 861

Section 3. Treason ..................................................................................................................... 862 

Clause 1. Definition and Limitations ................................................................................ 862 

Treason ......................................................................................................................... 862 

Levying War ......................................................................................................... 863 

The Burr Trial ............................................................................................... 864 

Aid and Comfort to the Enemy ........................................................................... 865 

The Cramer Case .......................................................................................... 865 

The Haupt Case ............................................................................................ 865 

The Kawakita Case ....................................................................................... 867 

Doubtful State of the Law of Treason Today ..................................................... 867 

Clause 2. Punishment ........................................................................................................ 868

Corruption of Blood and Forfeiture ........................................................................... 868 

627

1M. FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES 79

(1913). 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 ch. 5 (1971). 3 1 M. Farrand, supra at 21-22. That this version might not possibly be an accurate copy, see 3 id. at 593-94. 4 1 id. at 95, 104. 

5 Id. at 95, 105. The words ‘‘One or more’’ were deleted the following day without recorded debate. Id. at 116, 119. 6 Id. at 124-25. 

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

628 ART. III—JUDICIAL DEPARTMENT 

Sec. 1—Judicial Power, Courts, Judges 

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

the latter appears in the Convention Journal, id. at 118, and in Yates’ notes, id. at 

127, and when the Convention took up the draft reported by the Committee of the 

Whole ‘‘appoint’’ is used even in Madison’s notes. 2 id. at 38, 45. 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. at 125. The Committee on 

Detail provided for the vesting of judicial power in one Supreme Court ‘‘and in such 

inferior Courts as shall, when necessary, from time to time, be constituted by the 

legislature of the United States.’’ 2 id. at 186. Its draft also authorized Congress 

‘‘[t]o constitute tribunals inferior to the Supreme Court.’’ Id. at 182. No debate is 

recorded when the Convention approved these two clauses, Id. at 315, 422-23, 428- 

30. The Committee on Style left the clause empowering Congress to ‘‘constitute’’ inferior tribunals as was, but it deleted ‘‘as shall, when necessary’’ from the Judiciary 

article, so that the judicial power was vested ‘‘in such inferior courts as Congress 

may from time to time’’—and here deleted ‘‘constitute’’ and substituted the more 

forceful— ‘‘ordain and establish.’’ Id. at 600. 9The provision was in the Virginia Plan and was approved throughout, 1 id. at 

21. 10 Id. at 121; 2 id. at 44-45, 429-430. 11 Article I, § 3, cl. 6. 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 (1928); Warren, New Light on the History of the Federal Judicial Act of 1789, 37 HARV. L. REV. 49 (1923); see also J. Goebel, supra at ch. 11. 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 

ART. III—JUDICIAL DEPARTMENT 629

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 Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judiciary Committee, 75th Congress, 1st sess. (1937), pt. 3, 491. For earlier proposals 

to have the Court sit in divisions, see F. Frankfurter & J. Landis, supra at 74-85. 18 1 C. WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 222-224 (rev. 

ed. 1926). 19 Act of September 24, 1789, 1 Stat. 73, §§ 2-3. 20 Id. at 74, §§ 4-5 21 Cf. F. Frankfurter & J. Landis, supra at chs. 1-3; J. Goebel, supra at 554- 

560, 565-569. Upon receipt of a letter from President Washington soliciting suggestions regarding the judicial system, WRITINGS OF GEORGE WASHINGTON, (J. 

Fitzpatrick ed., 1943), 31, Chief Justice Jay prepared a letter for the approval of 

the other Justices, declining to comment on the policy questions but raising several 

issues of constitutionality, that the same man should not be appointed to two offices, 

that the offices were incompatible, and that the act invaded the prerogatives of the 

President and Senate. 2 G. MCREE, LIFE AND CORRESPONDENCE OF JAMES

IREDELL 293-296 (1858). The letter was apparently never forwarded to the President. Writings of Washington, supra at 31-32 n. 58. When the constitutional issue 

was raised in Stuart v. Laird, 5 U.S. (1 Cr.) 299, 309 (1803), it was passed over 

with the observation that the practice was too established to be questioned. 

Congress’ restrictions on President Andrew Johnson, the number 

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. The 

circuit courts were to consist of two Supreme Court justices each 

and one of the district judges, and 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 efforts 

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

630 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, supra at 25- 

32; 1 C. Warren, supra at 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 63-64

(1918). The controversy is recounted fully in id. at 58-78. 26 5 U.S. (1 Cr.) 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, 

supra at 153-174; W. Carpenter, supra at 78-94. 

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 

scarely 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 

decided by judges who are free from potential domination by other 

ART. III—JUDICIAL DEPARTMENT 631

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. at 226. 30O’Donoghue v. United States, 289 U.S. 516 (1933). 31Williams v. United States, 289 U.S. 553 (1933). But see Glidden Co. 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). 35 307 U.S. at 278-82. 

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 constitutionality, it 

did require an interpretation as to which judges were excepted. 

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 judges nor 

as an encroachment on the independence of the judiciary. 35 To subVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00005 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
632 ART. III—JUDICIAL DEPARTMENT 

Sec. 1—Judicial Power, Courts, Judges 

36 307 U.S. at 282. 37 532 U.S. 557, 571 (2001). 38 532 U.S. at 571. 39 532 U.S. at 572. 40 532 U.S. at 578-81. 41 Ch. 309, 36 Stat. 539. 

ject 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

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

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

burdens borne by all citizens.’’ 37 ‘‘[T]he potential threats to judicial 

independence that underlie [the Compensation Clause] cannot justify a special judicial exemption from a commonly shared tax.’’ 38

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

such a non-discriminatory tax that may be applied to federal 

judges, the Court held. The 1983 extension of a Social Security tax 

to then-sitting judges was ‘‘a different matter,’’ however, because 

the judges were required to participate while almost all other federal employees were given a choice about participation. 39 Congress

did not cure the constitutional violation by a subsequent enactment 

that raised judges’ salaries by an amount greater than the amount 

of Social Security taxes that they were required to pay. 40

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, 41 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 

ART. III—JUDICIAL DEPARTMENT 633

Sec. 1—Judicial Power, Courts, Judges 

42 56 Stat. 23, §§ 31-33. 43 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. Pub. L. 92-210, 85 Stat. 743, 211(b). 

Although controls ended in 1974, see 12 U.S.C. § 1904 note, Congress continued the 

Temporary Emergency Court of Appeals and gave it new jurisdiction. Emergency 

Petroleum Allocation Act of 1973, Pub. L. 93-159, 87 Stat. 633, 15 U.S.C. § 754, incorporating judicial review provisions of the Economic Stabilization Act. The Court 

was abolished, effective March 29, 1993, by 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). 44 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. 45 Act of Oct. 10, 1980, 94 Stat. 1727. 

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. 42 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 

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. 43

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

Created in 1982, 44 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. 45

The Judicial Panel on Multidistrict Litigation, staffed by federal 

634 ART. III—JUDICIAL DEPARTMENT 

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46 28 U.S.C. § 1407. 47P. L. 95-511, 92 Stat. 1788, 50 U.S.C. § 1803. 48 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). Authority for the court expired 

in 1999 under a sunset provision. Pub. L. 103-270, § 2, 108 Stat. 732 (1994). 49 In Freytag v. Commissioner, 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. at 888-892 (majority opinion), and 901-914 (Justice Scalia dissenting). 50 26 U.S. (1 Pet.) 511 (1828). 

judges from other courts, is authorized to transfer actions pending 

in different districts to a single district for trial. 46

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. 47

Even greater specialization was provided by the special court 

created by the Ethics in Government Act; 48 the court was charged, 

upon the request of the Attorney General, with appointing an independent counsel to investigate and prosecute charges of illegality in 

the Executive Branch. The court also had certain supervisory powers over the independent counsel. 

Legislative Courts 

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

a significant part of the federal judiciary. 49 The distinction between 

constitutional courts and legislative courts was first made in American Ins. Co. v. Canter, 50 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 

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51 26 U.S. at 546. 

52 In Glidden Co. v. Zdanok, 370 U.S. 530, 544-45 (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... .’’ 

53 Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 106 

(1982) (Justice White dissenting). 

54That the Supreme Court could review the judgments of territorial courts was 

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

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

(13 Wall.) 434 (1872); Balzac v. Porto Rico, 258 U.S. 298, 312-313 (1922). 

55 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. 

general powers which that body possesses over the territories of the 

United States.’’ 51 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.’’ 52

Canter postulated a simple proposition: ‘‘Constitutional courts 

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

legislative courts do not and cannot.’’ 53 A two-fold difficulty attended this proposition, however. Admiralty jurisdiction is included 

within the ‘‘judicial power of the United States’’ specifically in Article III, requiring an explanation how this territorial court could receive and exercise it. Second, if territorial courts could not exercise 

Article III power, how might their decisions be subjected to appellate review in the Supreme Court, or indeed in other Article III 

courts, which could exercise only Article III judicial power? 54 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.’’ 55 NonetheVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00009 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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56 In addition to the local courts of the District of Columbia, the bankruptcy 

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

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

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

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

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

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

See Gomez v. United States, 490 U.S. 858 (1989); Peretz v. United States, 501 U.S. 

923 (1991). The U. S. Court of Military Appeals, strictly speaking, is not part of the 

judiciary but is a military tribunal, 10 U.S.C. § 867, although Congress designated 

it an Article I tribunal and has recently given the Supreme Court certiorari jurisdiction over its decisions. 57McAllister v. United States, 141 U.S. 174 (1891). 58 United States v. Fisher, 109 U.S. 143 (1883); Williams v. United States, 289 

U.S. 553 (1933). 59 69 U.S. (2 Wall.) 561 (1864). 60 54 U.S. (13 How.) 40 (1852). 61 54 U.S. at 48. 62The opinion in Gordon v. United States, 69 U.S. (2 Wall.) 561 (1864), had 

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

less, Article I courts are quite usual entities in our judicial system. 56

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, 57 or it may reduce their 

salaries during their terms. 58 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, 59 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, 60 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.’’ 61

Review of Legislative Courts by Supreme Court.—Chief

Justice Taney’s view, that would have been expressed in Gordon, 62

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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. 63 72 U.S. (5 Wall.) 419 (1867). See also United States v. Jones, 119 U.S. 477 

(1886). 64 E.g., Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927); Federal Radio Comm’n v. General Elec. Co., 281 U.S. 464 (1930); D. C. Court of Appeals 

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

579 (1962). 65Pope v. United States, 323 U.S. 1, 14 (1944); D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). 66 59 U.S. (18 How.) 272 (1856). 67 59 U.S. at 284. 

that the judgments of legislative courts could never be reviewed by 

the Supreme Court, was tacitly rejected in De Groot v. United 

States, 63 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. 64 But in proceedings before a legislative court which are judicial in nature, admit of a final judgment, and involve the performance of judicial functions and therefore the exercise of judicial 

power, the Court may be vested with appellate jurisdiction. 65

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. 66 At issue was a summary procedure, without benefit of the 

courts, for the collection by the United States of moneys claimed 

to be due from one of its 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.’’ 67 The distinction was between those acts which historically had been determined by courts and those which historically had been resolved by 

638 ART. III—JUDICIAL DEPARTMENT 

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68 Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929). 69Gordon 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). 70 United States v. Coe, 155 U.S. 76 (1894) (Court of Private Land Claims). 71Wallace v. Adams, 204 U.S. 415 (1907); Stephens v. Cherokee Nation, 174 

U.S. 445 (1899) (Choctaw and Chickasaw Citizenship Court). 72Old Colony Trust Co. v. Commissioner, 279 U.S. 716 (1929); Ex Parte Bakelite 

Corp., 279 U.S. 438 (1929). 73See In re Ross, 140 U.S. 453 (1891) (consular courts in foreign countries). 

Military courts may, on the other hand, be a separate entity of the military having 

no connection to Article III. Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1857). 74 285 U.S. 22 (1932). 75 285 U.S. at 51. On the constitutional problems of assignment to an administrative agency, see Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977); NLRB v. Jones 

& Laughlin Steel Corp., 301 U.S. 1, 48 (1937). 76 301 U.S. at 51-65. 

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.’’ 68

Among the matters susceptible of judicial determination, but 

not requiring it, are claims against the United States, 69 the disposal of public lands and claims arising therefrom, 70 questions concerning membership in the Indian tribes, 71 and questions arising 

out of the administration of the customs and internal revenue 

laws. 72 Other courts similar to territorial courts, such as consular 

courts and military courts martial, may be justified on like 

grounds. 73

The ‘‘public rights’’ distinction appears today to be a description without a significant distinction. Thus, in Crowell v. Benson, 74

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.’’ 75 This scheme was permissible, the 

Court said, because in cases arising out of congressional statutes, 

an administrative tribunal could make findings of fact and render 

an initial decision on legal and constitutional questions, as long as 

there is adequate review in a constitutional court. 76 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 

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77 301 U.S. at 50, 51, 58-63. Thus, Article III concerns were satisfied by a review 

of the agency fact finding upon the administrative record. Id. at 63-65. The plurality 

opinion denied the validity of this approach in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 86 n.39 (1982), although Justice White in dissent 

accepted it. Id. at 115. The plurality, rather, rationalized Crowell and subsequent 

cases on an analysis seeking to ascertain whether agencies or Article I tribunals 

were ‘‘adjuncts’’ of Article III courts, that is, whether Article III courts were sufficiently in charge to protect constitutional values. Id. at 76-87. 78 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. at 69 & n.23. Crowell 

v. Benson, however, remained an embarrassing presence. 79Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568 (1985); CFTC v. 

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

Government must be a party for the case to fall into the ‘‘public rights’’ category. 

Thomas, 473 U.S. at 586; and see id. at 596-99 (Justice Brennan concurring). 80 ‘‘In essence, the public rights doctrine reflects simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters 

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

the danger of encroaching on the judicial powers is reduced.’’ Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 589 (1985) (quoting Northern Pipeline, 458 

U.S. at 68 (plurality opinion)). 81Granfinanciera, 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. at 52-53. 

comprehensive federal statutory scheme. 77 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. 78

The Court continued to waver with respect to the importance 

to decision-making of the public rights/private rights distinction. In 

two cases following Marathon, it rejected the distinction as ‘‘a 

bright line test,’’ and instead focused on ‘‘substance’’—i.e., on the 

extent to which the particular grant of jurisdiction to an Article I 

court threatened judicial integrity and separation of powers principles. 79 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. 80

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. 81 In so doing, however, the Court vitiVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00013 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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82 492 U.S. at 52-54. The Court reiterated that the Government need not be a 

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

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

those matters to which the Federal Government is a party. Id. at 65. 83 492 U.S. at 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. at 

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. denied, 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). 84De Groot v. United States, 72 U.S. (5 Wall.) 419 (1866); United States v. 

Union Pacific Co., 98 U.S. 569, 603 (1878); Miles v. Graham, 268 U.S. 501 (1925). 85Williams v. United States, 289 U.S. 553 (1933); cf. Ex parte Bakelite Corp., 

279 U.S. 438, 450-455 (1929). 86 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). 

ated 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. 82 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 action 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. 83

Constitutional Status of the Court of Claims and the 

Court of Customs and Patent Appeals.—Though the Supreme 

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

III court, 84 it later ruled that court to be an Article I court and its 

judges without constitutional protection of tenure and salary. 85

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, 86 a questionable act under the 

standards the Court had utilized to determine whether courts were 

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87 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.’’ 88 370 U.S. 530 (1962). 89Glidden Co. v. Zdanok, 370 U.S. 530, 531 (1962) (Justices Harlan, Brennan, 

and Stewart). 90 370 U.S. at 548, 552. 91 370 U.S. at 585 (Justice Clark and Chief Justice Warren concurring); 589 

(Justices Douglas and Black dissenting). 92 370 U.S. at 585 (Justice Clark and Chief Justice Warren). 93 370 U.S. at 589 (Justices Douglas and Black). The concurrence thought that 

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

but what there was of it they thought nonjudicial and the courts should not entertain it. Justice Harlan left that question open. Id. at 583. 94 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. 

legislative or constitutional. 87 But in Glidden Co. v. Zdanok, 88 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. 89 Whether

a court is an Article III tribunal depends largely upon whether legislation establishing it is in harmony with the limitations of that 

Article, specifically, ‘‘whether . . . its business is the federal business there specified and its judges and judgments are allowed the 

independence there expressly or impliedly made requisite.’’ When 

a court is created ‘‘to carry into effect [federal] powers . . . over subject matter . . . and not over localities,’’ a presumption arises that 

the status of such a tribunal is constitutional rather than legislative. 90 The other four Justices expressly declared that Bakelite and

Williams should not be overruled, 91 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. 92

Two Justices maintained that both courts remained legislative tribunals. 93 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. 94

Status of Courts of the District of Columbia.—Through a 

long course of decisions, the courts of the District of Columbia were 

642 ART. III—JUDICIAL DEPARTMENT 

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95 112 U.S. 50 (1884). 96Keller v. Potomac Elec. Co., 261 U.S. 428 (1923). 97Federal Radio Comm’n v. General Elec. Co., 281 U.S. 464 (1930). 98 279 U.S. 438, 450-455 (1929). 99O’Donoghue v. United States, 289 U.S. 516 (1933). 100 289 U.S. at 535-46. 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. at 551. See the discussion of this point of 

O’Donoghue in National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 

(1949). Cf. Hobson v. Hansen, 265 F. Supp. 902 (D.D.C. 1967) (three-judge court). 

regarded as legislative courts upon which Congress could impose 

nonjudicial functions. In Butterworth v. United States ex rel. Hoe, 95

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. 96 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. 97 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., 98 while reviewing the history and analyzing the nature of the legislative courts, the Court stated that the 

courts of the District were legislative courts. 

In 1933, nevertheless, the Court, 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, 99 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.’’ 100

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

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

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101Pub. L. 91-358, 84 Stat. 475, D.C. Code § 11-101. 102 411 U.S. 389 (1973) 103 411 U.S. at 407-08. See also Pernell v. Southall Realty Co., 416 U.S. 363, 

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

(1978). Under Swain, provision for hearing of motions for postjudgement 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). 104 Bankruptcy Act of 1978, Pub. L. 95-598, 92 Stat. 2549, codified in titles 11, 

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

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

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

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

equivalent to state and territorial courts, created pursuant to Article I. 101 Congress’ action was sustained in Palmore v. United 

States. 102 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 national concern are at stake, must in proper circumstances give way 

to accommodate plenary grants of power to Congress to legislate 

with respect to specialized areas having particularized needs and 

warranting distinctive treatment.’’ 103

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. 104 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 

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105The statement of the holding is that of the two concurring Justices, 458 U.S. 

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

least,’’ while desiring to go further. Id. at 87 n.40. 106 458 U.S. at 63-76 (Justice Brennan, joined by Justices Marshall, Blackmun, 

and Stevens). 107The 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 asigned 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. 

of the Constitution. 105 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 

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. 106 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. 107

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 

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108 458 U.S. at 92, 105-13, 113-16 (Justice White, joined by Chief Justice Burger 

and Justice Powell). 109 Ex parte Bakelite Corp., 279 U.S. 438 (1929), was, after all, a unanimous 

opinion and did not long survive. 110 In particular, the Federal Magistrates Act of 1968, under which judges may 

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

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

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

Weber, 423 U.S. 261 (1976). 111P. L. 98-353, 98 Stat. 333, judiciary provisions at 28 U.S.C. § 151 et seq. 112See 28 U.S.C. § 157. 113 492 U.S. 33 (1989). 

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. 108

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. 109 But the 

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

discretion left in Congress to restructure the bankruptcy courts, 

but also placed in issue the constitutionality of other legislative efforts to establish adjudicative systems outside a scheme involving 

the creation of life-tenured judges. 110

Congress responded to Marathon by enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984. 111 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 initially heard and decided by bankruptcy courts, could be reviewed de novo in the district court at the behest of any party, unless the parties 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. 112 Notice that in Granfinanciera, S.A. v. Nordberg, 113 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 

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114 492 U.S. 33 (1989) 115 473 U.S. 568 (1985). 116 478 U.S. 833 (1986). 117 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. 118 473 U.S. at 589. 119 CFTC v. Schor, 478 U.S. at 851 (summarizing the Thomas rule). 120Thomas, 473 U.S. at 591, 592 (quoting Crowell v. Benson, 285 U.S. 22, 54 

(1932)).

very limited circumstances. Subsequently, however, 

Granfinanciera, S.A. v. Nordberg, 114 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., 115 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, 116 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 private parties nor the fact that the CFTC was 

empowered to decide claims traditionally adjudicated under state 

law proved decisive to the Court’s analysis. 

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

O’Connor‘s opinion for the Court pointed to several considerations. 117 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.’’ 118 Also important was not ‘‘unduly 

constrict[ing] Congress in its ability to take needed and innovative 

action pursuant to its Article I powers;’’ 119 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.’’’ 120 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 

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121 473 U.S. at 594. 122 Cf. Union Carbide, 473 U.S. at 591 (fact that ‘‘FIFRA arbitration scheme incorporates its own system of internal sanctions and relies only tangentially, if at all, 

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

on ‘‘Article III judicial powers’’). 

scheme as to be a matter appropriate for agency resolution with 

limited involvement by the Article III judiciary.’’ 121

In Schor, the Court described Art. III, § 1 as serving a dual 

purpose: to protect the role of an independent judiciary and to safeguard the right of litigants to have claims decided by judges free 

from potential domination by the other branches of government. A 

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

may be waived. This the litigant had done by submitting to the administrative law judge’s jurisdiction rather than independently 

seeking relief as he was entitled to and then objecting only after 

adverse rulings on the merits. But the institutional integrity claim, 

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

merits. The threat to institutional independence was ‘‘weighed’’ by 

reference to ‘‘a number of factors.’’ The conferral on the CFTC of 

pendent jurisdiction over common law counterclaims was seen as 

more narrowly confined than was the grant to bankruptcy courts 

at issue in Marathon, and as more closely resembling the ‘‘model’’ 

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

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

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

of a district court, 122 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 itself 

must be 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, is a ‘‘private 

right,’’ the Court seemingly goes beyond this point. Though a statutory interest, the actions were identical to state-law contract claims 

648 ART. III—JUDICIAL DEPARTMENT 

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123Granfinanciera, 492 U.S. at 51-55, 55-60. 124 492 U.S. at 59 n.14. 125Mistretta 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). 126 JUSTICE SAMUEL MILLER, ON THE CONSTITUTION 314 (1891). 

brought by a bankrupt corporation to augment the estate. 123

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. 124

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 constitutionality, the Court held, is whether the entity exercises powers 

that are more appropriately performed by another branch or that 

undermine the integrity of the judiciary. Because the imposition of 

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

did performance of its functions contribute to a weakening of the 

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

way, the Court observed. 125

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

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127Muskrat v. United States, 219 U.S. 346, 361 (1911). 128 United States v. Arrendondo, 31 U.S. (6 Pet.) 691 (1832). 129General Investment Co. v. New York Central R.R., 271 U.S. 228, 230 (1926). 130Williams v. United States, 289 U.S. 553, 566 (1933) ; Yakus v. United States, 

321 U.S. 414, 467-468 (1944) (Justice Rutledge dissenting). 131Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995). The Court was 

careful to delineate the difference between attempting to alter a final judgment, one 

rendered by a court and either not appealed or affirmed on appeal, and legislatively 

amending a statute so as to change the law as it existed at the time a court issued 

a decision that was on appeal or otherwise still alive at the time a federal court 

reviewed the determination below. A court must apply the law as revised when it 

considers the prior interpretation. Id. at 226-27. 

Article III creates or authorizes Congress to create not a collection of 

unconnected courts, but a judicial department composed of ‘‘inferior courts’’ and ‘‘one 

Supreme Court.’’ ‘‘Within that hierarchy, the decision of an inferior court is not (unless the time for appeal has expired) the final word of the department as a whole.’’ 

Id. at 227. 

instituted in courts of proper jurisdiction.’’ 127 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 128 or as 

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

binding decision thereon,’’ 129 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. 130

Judicial power confers on federal courts the power to decide a 

case, to render a judgment conclusively resolving a case. Judicial 

power is the authority to render dispositive judgments, and Congress violates the separation of powers when it purports to alter 

final judgments of Article III courts. 131 After the Court had unexpectedly fixed on a shorter statute of limitations to file certain securities actions than that believed to be the time in many jurisdictions, and after several suits that had been filed later than the determined limitations had been dismissed and had become final because they were not appealed, Congress enacted a statute which, 

while not changing the limitations period prospectively, retroactively extended the time for suits dismissed and provided for the 

reopening of the final judgments rendered in the dismissals of 

suits.

Holding the statute invalid, the Court held it impermissible for 

Congress to disturb a final judgment. ‘‘Having achieved finality, . . . 

a judicial decision becomes the last word of the judicial department 

with regard to a particular case or controversy, and Congress may 

not declare by retroactive legislation that the law applicable to that 

650 ART. III—JUDICIAL DEPARTMENT 

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132 514 U.S. at 227 (emphasis by Court). 133 530 U.S. 327 (2000). 134 530 U.S. at 344. 135Michaelson v. United States, 266 U.S. 42 (1924). 136McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); Ex parte Bollman, 8 U.S. (4 

Cr.) 75 (1807). 137Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825). 138Gumbel v. Pitkin, 124 U.S. 131 (1888). 139 Ex parte Peterson, 253 U.S. 300 (1920). 140 Ex parte Garland, 71 U.S. (4 Wall.) 333, 378 (1867). 141Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 328-331 (1816). See

also 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

(1833) 1584-1590. 142See, e.g., Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 

(1799)Justice Chase). A recent, sophisticated attempt to resurrect the core of Justice 

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

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

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

REV. 1499 (1990). 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 

very case was something other than what the courts said it was.’’ 132

On the other hand, the Court ruled in Miller v. French 133 that the 

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

unconstitutional legislative revision of a final judgment. Rather, 

the automatic stay merely alters ‘‘the prospective effect’’ of injunctions, and it is well established that such prospective relief ‘‘remains subject to alteration due to changes in the underlying 

law.’’ 134

Included within the general power to decide cases are the ancillary powers of courts to punish for contempts of their authority, 135 to issue writs in aid of jurisdiction when authorized by statute, 136 to make rules governing their process in the absence of statutory authorizations or prohibitions, 137 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, 138 to appoint masters in chancery, referees, auditors, and other investigators, 139 and to admit and disbar attorneys. 140

‘‘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, 141 the Constitution has not been read to mandate Congress to confer the entire jurisdiction it might. 142 Thus, except for 

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that Congress must confer the entire judicial power to cases involving those issues, 

whereas it has more discretion in the other six categories. 143Which was, of course, the point of Marbury v. Madison, 5 U.S. (1 Cr.) 137 

(1803), once the power of the Court to hold legislation unconstitutional was established. 144The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1868); Cary v. Curtis, 44 

U.S. (3 How.) 236 (1845); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850); United States 

v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 33 (1812); Kline v. Burke Construction 

Co., 260 U.S. 226 (1922). It should be noted, however, that some judges have expressed the opinion that Congress’ authority is limited to some degree by the Constitution, such as by the due process clause, so that a limitation on jurisdiction 

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

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

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

Motors Corp., 169 F.2d 254, 257 (2d Cir.), cert. denied, 335 U.S. 887 (1948); Petersen 

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

Supp. 688, 694-695 (D.R.I. 1969). The Supreme Court has had no occasion to consider the question. 145Turner v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799); Bingham v. 

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

Mitchell v. Maurer, 293 U.S. 237 (1934). 146 Act of March 23, 1792, 1 Stat. 243. 147 1 AMERICAN STATE PAPERS: MISCELLANEOUS DOCUMENTS, LEGISLATIVE AND

EXECUTIVE, OF THE CONGRESS OF THE UNITED STATES 49, 51, 52 (1832). President 

Washington transmitted the remonstrances to Congress. 1 MESSAGES AND PAPERS

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, 143 and, second, an act of Congress must have 

conferred it. 144 The fact that federal courts are of limited jurisdiction means that litigants in them must affirmatively establish that 

jurisdiction exists and may not confer nonexistent jurisdiction by 

consent or conduct. 145

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.’’ 146 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 conrol by an officer of the executive 

or the legislature was not authorized by the Constitution. 147 AttorVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00025 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
652 ART. III—JUDICIAL DEPARTMENT 

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OF THE PRESIDENTS 123, 133 (J. Richardson comp., 1897). The objections are also 

appended to the order of the Court in Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 

(1792). Note that some of the Justices declared their willingness to perform under 

the act as commissioners rather than as judges. Cf. United States v. Ferreira, 54 

U.S. (13 How.) 40, 52-53 (1852). The assumption by judges that they could act in 

some positions as individuals while remaining judges, an assumption many times 

acted upon, was approved in Mistretta v. United States, 488 U.S. 361, 397-408 

(1989).

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

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

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

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

Misinterpretation of Precedent, 1988 WIS. L. REV. 4; Bloch, The Early Role of the 

Attorney General in Our Constitutional Scheme: In the Beginning There was Pragmatism, 1989 DUKE L. J. 561, 590-618. Notice the Court’s discussion in Plaut v. 

Spendthrift Farm, Inc., 514 U.S. 211, 218, 225-26 (1995). 

149See United States v. Ferreira, 54 U.S. (13 How.) 40 (1852); Gordon v. United 

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

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

150 Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113-114 

(1948).

ney 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. 148 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 exective or legislative revision. 149 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,’’ 150 More recently, the 

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

of 1965, 79 Stat. 437, 42 U.S.C. § 1973e, no State may ‘‘enact or seek to administer’’ 

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

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

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

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

drawn up and ordered into effect by a federal district court, after it had rejected 

a legislatively-drawn plan, must be submitted for approval. Unanimously, on the papers without oral argument, the Court ruled that, despite the statute’s inclusive language, it did not apply to court-drawn plans. 152The opinion was published in 117 U.S. 697. See supra, and text. See United

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

States v. Ferreira, 54 U.S. (13 How.) 40 (1852). 153 69 U.S. (2 Wall.) 561 (1865). 154 Act of February 24, 1855, 10 Stat. 612, as amended, Act of March 3, 1963, 

12 Stat. 737. 155Gordon v. United States, 69 U.S. (2 Wall.) 561 (1865). Following repeal of 

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

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

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

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

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

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

102, 148-149 & n. 35 (1974). 

Court avoided a similar situation by a close construction of a statute. 151

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. 152 In Gordon v. United States, 153 the

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

Claims; the act establishing the Court of Claims provided for appeals to the Supreme Court, after which judgments in favor of 

claimants were to be referred to the Secretary of the Treasury for 

payments out of the general appropriation for payment of private 

claims. But the act also provided that no funds should be paid out 

of the Treasury for any claims ‘‘till after an appropriation therefor 

shall be estimated by the Secretary of the Treasury.’’ 154 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. 155

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. 

654 ART. III—JUDICIAL DEPARTMENT 

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156Published 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). 157Liberty Warehouse Co. v. Grannis, 273 U.S. 70 (1927). 158Liberty Warehouse Co. v. Burley Tobacco Growers’ Coop. Marketing Ass’n, 

276 U.S. 71 (1928). 159Fidelity Nat’l Bank & Trust Co. v. Swope, 274 U.S. 123, 132 (1927). 160 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). 

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. 156 The rule was most significant in barring the 

lower federal courts from hearing proceedings for declaratory judgments 157 and in denying appellate jurisdiction in the Supreme 

Court from declaratory proceedings in state courts. 158 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.’’ 159

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. 160 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 exVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00028 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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161 E.g., United States v. United Mine Workers, 330 U.S. 258 (1947). 162Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-443 (1911); Ex parte 

Grossman, 267 U.S. 87 (1925). See also Bessette v. W. B. Conkey Co., 194 U.S. 324, 

327-328 (1904). 163 512 U.S. 821 (1994). 164 512 U.S. at 832-38. Relevant is the fact that the alleged contempts did not 

occur in the presence of the court and that determinations of violations require 

elaborate and reliable factfinding. See esp.id. at 837-38. 165 384 U.S. 364 (1966). 166 384 U.S. at 370. 

ceptions, 161 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. 162 In International Union, UMW v. Bagwell, 163 the Court 

formulated a new test for drawing the distinction between civil and 

criminal contempts, which has important consequences for the procedural rights to be accorded those cited. Henceforth, the imposition of non-compensatory contempt fines for the violation of any 

complex injunction will require criminal proceedings. This case, as 

have so many, involved the imposition of large fines (here, $52 million) upon a union in a strike situation for violations of an elaborate court injunction restraining union activity during the strike. 

The Court was vague with regard to the standards for determining 

when a court order is ‘‘complex’’ and thus requires the protection 

of criminal proceedings. 164 Much prior doctrine remains, however, 

as in the distinction between remedial sanctions, which are civil, 

and punitive sanctions, which are criminal, and between in-court 

and out-of-court contempts. In the case of Shillitani v. United 

States, 165 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. On appeal, the Supreme Court held that the defendants were 

in civil contempt, notwithstanding their sentence for a definite period of time, on the grounds that the test for determining whether 

the contempt is civil or criminal is what the court primarily seeks 

to accomplish by imposing sentence. 166 Here, the purpose was to 

obtain answers to the questions for the grand jury, and the court 

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167 384 U.S. at 370 n.6. See Hicks v. Feiock, 485 U.S. 624 (1988) (remanding for 

determination whether payment of child support arrearages would purge a determinate sentence, the proper characterization critical to decision on a due process 

claim). 168 267 U.S. 87, 119-120 (1925). In an analogous case, the Court was emphatic 

in a dictum that Congress cannot require a jury trial where the contemnor has 

failed to perform a positive act for the relief of private parties, Michaelson v. United 

States ex rel. Chicago, S.P., M. & Ry. Co., 266 U.S. 42, 65-66 (1924). But see Bloom

v. Illinois, 391 U.S. 194, 202 (1968). 169See United States v. United Mine Workers, 330 U.S. 258, 299 (1947). 170 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). 171See Fox, The Nature of Contempt of Court, 37 L.Q. REV. 191 (1921). 172Many of the limitations placed on the inferior federal courts have been issued 

on the basis of the Supreme Court’s supervisory power over them rather than upon 

a constitutional foundation, while, of course, the limitations imposed on state courts 

necessarily are on constitutional dimensions. Indeed, it is often the case that a limitation, which is applied to an inferior federal court as a superintending measure, 

is then transformed into a constitutional limitation and applied to state courts. 

Compare Cheff v. Schnackenberg, 384 U.S. 373 (1966), with Bloom v. Illinois, 391 

U.S. 194 (1968). In the latter stage, the limitations then bind both federal and state 

courts alike. Therefore, in this section, Supreme Court constitutional limitations on 

provided for the defendants’ release upon compliance; whereas, ‘‘a 

criminal contempt proceeding would be characterized by the imposition of an unconditional sentence for punishment or 

deterence.’’ 167 The issue of whether a certain contempt is civil or 

criminal can be of great importance as demonstrated in the dictum 

of Ex parte Grossman, 168 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. 169

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

contempt—whether 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;’’ 170 indirect contempt is behavior which the Court did not 

itself witness. 171 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 multiplying of the due process requirements that must otherwise be met 

when finding an individual to be in contempt. 172

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state court contempt powers are cited without restriction for equal application to 

federal courts. 173Fox, The King v. Almon, 24 L.Q. REV. 184, 194-195 (1908). 174Fox, The Summary Power to Punish Contempt, 25 L.Q. REV.238, 252 (1909). 175 1 Stat. 83 (1789). 176 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). 177 86 U.S. (19 Wall.) 505 (1874). 

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. 173 By the latter part of the eighteenth century, summary 

power to punish was extended to all contempts whether committed 

in or out of court. 174 In the United States, the Judiciary Act of 

1789 in section 17 175 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. 176

An Inherent Power.—The validity of the act of 1831 was sustained forty-three years later in Ex parte Robinson, 177 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 enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the 

courts of the United States were called into existence and invested 

with jurisdiction over any subject, they became possessed of this 

power.’’ Expressing doubts concerning the validity of the act as to 

the Supreme Court, he declared, however, that there could be no 

question of its validity as applied to the lower courts on the ground 

that they are created by Congress and that their ‘‘powers and duties depend upon the act calling them into existence, or subsequent 

658 ART. III—JUDICIAL DEPARTMENT 

Sec. 1—Judicial Power, Courts, Judges 

178 86 U.S. at 505-11. 179Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911). See also In

re Debs, 158 U.S. 564, 595 (1895). 180 266 U.S. 42 (1924). 181 38 Stat. 730, 738 (1914). 182 266 U.S. at 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). 183 Young v. United States ex rel. Vuitton, 481 U.S. 787, 793-801 (1987). However, the Court, invoking its supervisory power, instructed the lower federal courts 

first to request the United States Attorney to prosecute a criminal contempt and 

only if refused should they appoint a private lawyer. Id. at 801-802. Still using its 

supervisory power, the Court held that the district court had erred in appointing 

counsel for a party that was the beneficiary of the court order; disinterested counsel 

had to be appointed. Id. at 802-08. Justice Scalia contended that the power to prosecute is not comprehended within Article III judicial power and that federal judges 

had no power, inherent or otherwise, to initiate a prosecution for contempt or to appoint counsel to pursue it. Id. at 815. See also United States v. Providence Journal 

Co., 485 U.S. 693 (1988), which involved the appointment of a disinterested private 

attorney. The Supreme Court dismissed the writ of certiorari after granting it, however, holding that only the Solicitor General representing the United States could 

bring the petition to the Court. See 28 U.S.C. § 518. 

acts extending or limiting their jurisdiction.’’ 178 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. 179 In

Michaelson v. United States, 180 the Court intentionally placed a 

narrow interpretation upon those sections of the Clayton Act 181 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. 182 This latter power, to enforce, the Court 

has held, includes the authority to appoint private counsel to prosecute a criminal contempt. 183 While the contempt power may be inVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00032 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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184 493 U.S. 265 (1990). The decision was an exercise of the Court’s supervisory 

power. Id. at 276. Four Justices dissented. Id. at 281. 185 247 U.S. 402 (1918). 186 247 U.S. at 418-21. 187 263 U.S. 255 (1923). 188 313 U.S. 33, 47-53 (1941). 

herent, it is not unlimited. In Spallone v. United States, 184 the

Court held that a district court had abused its discretion by imposing contempt sanctions on individual members of a city council for 

refusing to vote to implement a consent decree remedying housing 

discrimination by the city. The proper remedy, the Court indicated, 

was to proceed first with contempt sanctions against the city, and 

only if that course failed should it proceed against the council 

members individually. 

First Amendment Limitations on the Contempt Power.—

The phrase ‘‘in the presence of the Court or so near thereto as to 

obstruct the administration of justice’’ was interpreted so broadly 

in Toledo Newspaper Co. v. United States 185 as to uphold the action 

of a district court judge in punishing a newspaper for contempt 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.’’ 186 In Craig

v. Hecht, 187 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. 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, 188 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 

660 ART. III—JUDICIAL DEPARTMENT 

Sec. 1—Judicial Power, Courts, Judges 

189 314 U.S. 252, 260 (1941). 190See 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 statment 

attacking a charge to the grand jury, absent any showing of actual interference with 

the activities of the grand jury. 

It is now clearly establihsed 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). 191 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). 192 384 U.S. 333, 363 (1966). 193For 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).

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 189 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. 190

A series of cases involving highly publicized trials and much 

news media attention and exploitation, 191 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 Sheppard

v. Maxwell, 192 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 pallatives; the cure 

lies in those remedial measures that will prevent the prejudice at 

its inception. Neither prosecutors, counsel for defense, the accused, 

witness, court staff nor law enforcement officers coming under the 

jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information 

affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.’’ Though the regulation the Justice had in mind was presumably to be of the parties and related persons rather than of the 

press, the potential for conflict with the First Amendment is obvious as well as is the necessity for protection of the equally important right to a fair trial. 193

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194 128 U.S. 289 (1888). 195 267 U.S. 517 (1925). 196 267 U.S. at 535, 534. 197 343 U.S. 1 (1952). 198 343 U.S. at 11. 

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, 194 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, 195 however, the Court remanded for further proceedings a judgment 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.’’ 196

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, 197 as to 

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

delay [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.’’ 198 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 

662 ART. III—JUDICIAL DEPARTMENT 

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199Taylor 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). 200 382 US. 162 (1965), overruling Brown v. United States, 359 U.S. 41 (1959). 201 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). 202 Johnson v. Mississippi, 403 U.S. 212, 215 (1971) (citing In re Oliver, 333 U.S. 

257, 275-276 (1948)). 203See Green v. United States, 356 U.S. 165 (1958); United States v. Barnett, 

376 U.S. 681 (1964), and cases cited. The dissents of Justices Black and Douglas 

in those cases prepared the ground for the Court’s later reversal. On the issue, 

see Frankfurter and Landis, Power of Congress over Procedure in Criminal 

Contempts in ‘Inferior’ Federal Courts—A Study in Separation of Powers, 37 HARV.

L. REV. 1010, 1042-1048 (1924). 204 384 U.S. 373 (1966). 

be heard in his own defense. Apparently, a ‘‘full scale trial’’ is not 

contemplated. 199

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

his presence, the Court, in Harris v. United States, 200 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. 201 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.’’ 202

Due Process Limitations on Contempt Power: Right to 

Jury Trial.—Originally the right to a jury trial was not available 

in criminal contempt cases. 203 But in Cheff v. Schnackenberg, 204 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 

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205 Bloom v. Illinois, 391 U.S. 194 (1968). See also International Union, UMW 

v. Bagwell, 512 U.S. 821 (1994) (refining the test for when contempt citations are 

criminal and thus require jury trials). 206 391 U.S. at 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 contempt 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). In International Union, UMW v. Bagwell, 512 U.S. 821, 837 n.5 (1994), the Court continued 

to reserve the question of the distinction between petty and serious contempt fines, 

because of the size of the fine in that case. 207The 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. 208 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). 209 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). 210 267 U.S. 517, 539 (1925). 

than a petty one. 205 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.’’ 206

Presumably, there is no equivalent right to a jury trial in civil contempt cases, 207 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. 208 The Court has, however, expanded the right to jury trials in federal civil cases on nonconstitutional grounds. 209

Due Process Limitations on Contempt Powers: Impartial 

Tribunal.—In Cooke v. United States, 210 Chief Justice Taft uttered 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 imVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00037 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
664 ART. III—JUDICIAL DEPARTMENT 

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211 343 U.S. 1 (1952). See Dennis v. United States, 341 U.S. 494 (1951). 

pulse 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 211 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, set aside others, and denied that due process required a 

hearing before a different judge. ‘‘We hold that Rule 42 allows the 

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

prejudice the trial. We hold, on the other hand, that if he believes 

the exigencies of the trial require that he defer judgment until its 

completion, he may do so without extinguishing his power . . . . We 

are not unaware or unconcerned that persons identified with unpopular causes may find it difficult to enlist the counsel of their 

choice. But we think it must be ascribed to causes quite apart from 

fear of being held in contempt, for we think few effective lawyers 

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212 343 U.S. at 13-14. 213 348 U.S. 11 (1954). 214 400 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). 215See 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. 

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.’’ 212

In Offutt v. United States, 213 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, 214 in which a defendant acting as his own counsel engaged in quite personal abuse 

of the trial judge. The Court appeared to leave open the option of 

the trial judge to act immediately and summarily to quell contempt 

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

keep the trial going, 215 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. 

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216 330 U.S. 258, 293-307 (1947). See also International Union, UMW v. Bagwell, 

512 U.S. 821 (1994). 217See Walker v. City of Birmingham, 388 U.S. 307 (1967). 218 203 U.S. 563 (1906). 219See United States v. United Mine Workers, 330 U.S. 258, 299 (1947). But

see Cheff v. Schnackenberg, 384 U.S. 273 (1966), and ‘‘Due Process Limitations on 

Contempt Power: Right to Jury Trial’’, supra. 220 154 U.S. 447 (1894). 221Penfield 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). 

United Mine Workers, 216 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. 217 Third, on the basis of United States 

v. Shipp, 218 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. 219

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, 220 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 contempt. 221 Notwithstanding the power of administrative 

agencies to cite an individual for contempt, however, such bodies 

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222Gojack v. United States, 384 U.S. 702 (1966). See also Sanctions of the Investigatory Power: Contempt, 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. 223 ‘‘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 & Goodwin, 11 U.S. (7 Cr.) 32, 34 (1812). 224See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227 (1821); Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1874); Link v. Wabash R.R., 370 U.S. 626, 630- 

631 (1962); Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991); and id. at 58 (Justice Scalia dissenting), 60, 62-67 (Justice Kennedy dissenting). 225 Chambers v. NASCO, Inc., 501 U.S. at 47. 226 501 U.S. at 46-51. But see id. at 62-67 (Justice Kennedy dissenting). 227 501 U.S. at 49-51. On the implications of the fact that this was a diversity 

case, see id. at 51-55. 

must be acting within the authority that has been lawfully delegated to them. 222

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. 223 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. 224 Of course, 

these inherent powers may be limited by statutes and by rules, 225

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 and 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. 226

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, ordinarily against the American rule. 227 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 sitVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00041 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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228 Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). 229Link v. Wabash R.R., 370 U.S. 626 (1962). 230Frankfurter & 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). 231 1 Stat. 73, § 81. 232 Id. at §§ 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. 233This 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). 234 495 U.S. 33 (1990). 

uation, 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. 228 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. 229

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. 230 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.’’ 231 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.’’ 232 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. 233 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, 234 for example, the Court, rejecting a claim 

that a federal court exceeded judicial power under Article III by orVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00042 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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235 495 U.S. at 55 (citing Griffin v. Prince Edward County School Bd., 377 U.S. 

218, 233-34 (1964) (an order that local officials ‘‘exercise the power that is theirs’’ 

to levy taxes in order to open and operate a desegregated school system ‘‘is within 

the court’s power if required to assure . . . petitioners that their constitutional rights 

will no longer be denied them’’)). 236 495 U.S. at 50-52. 237 5 U.S. (1 Cr.) 137 (1803). Cf. Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321 (1796). 238McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); McClung v. Silliman, 19 U.S. 

(6 Wheat.) 598 (1821). 239 37 U.S. (12 Pet.) 524 (1838). 240 In 1962, Congress conferred upon all federal district courts the same power 

to issue writs of mandamus as was exercisable by federal courts in the District of 

Columbia. 76 Stat. 744, 28 U.S.C. § 1361. 241 Reference to the ‘‘writ of habeas corpus’’ is to the ‘‘Great Writ,’’ habeas corpus 

ad subjiciendum, by which a court would inquire into the lawfulness of a detention 

of the petitioner. Ex parte Bollman, 8 U.S. (4 Cr.) 75, 95 (1807). For other uses, 

see Carbo v. United States, 364 U.S. 611 (1961); Price v. Johnston, 334 U.S. 266 

(1948). Technically, federal prisoners no longer utilize the writ of habeas corpus in

dering 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. 235 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. 236

Common Law Powers of District of Columbia Courts.—

That portion of § 13 of the Judiciary Act of 1789 which authorized 

the Supreme Court to issue writs of mandamus in the exercise of 

its original jurisdiction was held invalid in Marbury v. Madison, 237

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, 238 a litigant 

was successful in Kendall v. United States ex rel. Stokes, 239 in finding a court that would take jurisdiction in a mandamus proceeding. 

This was the circuit court of the United States for the District of 

Columbia, which was held to have jurisdiction, on the theory that 

the common law, in force in Maryland when the cession of that 

part of the State that became the District of Columbia was made 

to the United States, remained in force in the District. At an early 

time, therefore, the federal courts established the rule that mandamus can be issued only when authorized by a constitutional statute and within the limits imposed by the common law and the separation of powers. 240

Habeas Corpus: Congressional and Judicial Control.—Although the writ of habeas corpus 241 has a special status because 

670 ART. III—JUDICIAL DEPARTMENT 

Sec. 1—Judicial Power, Courts, Judges 

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). 

242Professor 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). 243 8 U.S. (4 Cr.) 75 (1807). 244 8 U.S. at 94. And see Ex parte Dorr, 44 U.S. (3 How.) 103 (1845). 245 8 U.S. at 95. Note that in quoting the clause, Marshall renders ‘‘shall not 

be suspended’’ as ‘‘should not be suspended.’’ 246See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). Cf. Carbo v. United 

States, 364 U.S. 611, 614 (1961). 247 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. at 791, 798: ‘‘Habeas corpus, as an instrument to protect 

against illegal imprisonment, is written into the Constitution. Its use by courts cannot in my judgment be constitutionally abridged by Executive or by Congress.’’ And 

in Jones v. Cunningham, 371 U.S. 236, 238 (1963), the Court said: ‘‘The habeas corpus jurisdictional statute implements the constitutional command that the writ of 

habeas corpus be made available.’’ (Emphasis supplied). 

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? 242 Since Chief Justice Marshall’s opinion 

in Ex parte Bollman, 243 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.’’ 244 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.’’ 245 And so it has been understood since, 246 with a few judicial voices raised to suggest that what Congress could not do directly it could not do by omission. 247 But inasmuch as statutory authority has always existed authorizing the federal courts to grant 

the relief they deemed necessary under habeas corpus, the Court 

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248 Cf. Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). 249 518 U.S. 651 (1996). 250Pub. L. 104-132, §§ 101-08, 110 Stat. 1214, 1217-26, amending, inter alia, 28 

U.S.C. §§ 2244, 2253, 2254, 2255, and Fed. R. App. P. 22. 251 Ex parte Bollman, 8 U.S. (4 Cr.) 75, 94 (1807). See Fay v. Noia, 372 U.S. 

391, 409 (1963). 252 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. 253 Act of February 5, 1867, 14 Stat. 385, conveyed power to federal courts ‘‘to 

grant writs of habeas corpus in all cases where any person may be restrained of his 

or her liberty in violation of the constitution, or of any treaty or law of the United 

States... .’’ On the law with respect to state prisoners prior to this statute, see Ex

parte Dorr, 44 U.S. (3 How.) 103 (1845); cf. Elkison v. Deliesseline, 8 Fed. Cas. 493 

(No. 4366) (C.C.D.S.C. 1823) (Justice Johnson); Ex parte Cabrera, 4 Fed. Cas. 964 

(No. 2278) (C.C.D.Pa. 1805) (Justice Washington). 254 28 U.S.C. §§ 2241(c), 2254(a). ‘‘Custody’’ does not mean one must be confined; 

a person on parole or probation is in custody. Jones v. Cunningham, 371 U.S. 236 

(1963). A person on bail or on his own recognizance is in custody, Justices of Boston 

Mun. Court v. Lydon, 466 U.S. 294, 300-301 (1984); Lefkowitz v. Newsome, 420 U.S. 

283, 291 n.8 (1975); Hensley v. Municipal Court, 411 U.S. 345 (1973), and Braden 

v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), held that an inmate of an Alabama prison was sufficiently in custody as well of Kentucky authorities who had 

lodged a detainer with Alabama to obtain the prisoner upon his release. 

has never had to face the question. 248 In Felker v. Turpin, 249 the

Court again passed up the opportunity to delineate Congress’ permissive authority over habeas, finding that none of the provisions 

of the Antiterrorism and Effective Death Penalty Act 250 raised

questions of constitutional import. 

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. 251 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, 252

that legislation specifically empowered federal courts to inquire 

into the imprisonment of persons under state authority. 253 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. 254

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 

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255McNally v. Hill, 293 U.S. 131 (1934); Parker v. Ellis, 362 U.S. 574 (1960). 256 28 U.S.C. § 2243. See Peyton v. Rowe, 391 U.S. 54 (1968). See also Maleng

v. Cook, 490 U.S. 488 (1989). 257 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. 258 28 U.S.C. § 2254(b). See Preiser v. Rodriguez, 411 U.S. 475, 490-497 (1973), 

and id. at 500, 512-24 (Justice Brennan dissenting); Rose v. Lundy, 455 U.S. 509, 

515-21 (1982). If a prisoner submits a petition with both exhausted and 

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

Lundy, 455 U.S. at 518-519. Exhaustion first developed in cases brought by persons 

in state custody prior to any judgment. Ex parte Royall, 117 U.S. 241 (1886); 

Urquhart v. Brown, 205 U.S. 179 (1907). 259 Brown v. Allen, 344 U.S. 443, 447-450 (1953); id. at 502 (Justice Frankfurter 

concurring); Castille v. Peoples, 489 U.S. 346, 350 (1989). 260Fay v. Noia, 372 U.S. 391, 435 (1963), overruling Darr v. Burford, 339 U.S. 

200 (1950). 261 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). 262 28 U.S.C. § 2255. 263 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 

custody was the only function of the writ, 255 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.’’ 256 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. 257

Petitioners seeking federal habeas relief must first exhaust 

their state remedies, a limitation long settled in the case law and 

codified in 1948. 258 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. 259 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, 260 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. 261 A federal prisoner in a § 2255 

proceeding will file his motion in the court which sentenced him; 262

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. 263

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

be located elsewhere. 264Glasgow 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). 265 Estelle v. McGuire, 502 U.S. 62 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 

(1990); Pulley v. Harris, 465 U.S. 37, 41-42 (1984) 266 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). 267 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.’’ 268 Boyce’s Executors v. Grundy, 28 U.S. (3 Pet.) 210 (1830). 269 1 Stat. 333, 28 U.S.C. § 2283. 

Habeas corpus is not a substitute for an appeal. 264 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. 265 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. 266

Congressional Limitation of the Injunctive Power 

Although the speculations of some publicists and some judicial 

dicta 267 support the idea of an inherent power of the federal courts 

sitting in equity to issue injunctions independently of statutory limitations, neither the course taken by Congress nor the specific rulings of the Supreme Court support any such principle. Congress 

has repeatedly exercised its power to limit the use of the injunction 

in federal courts. The first limitation on the equity jurisdiction of 

the federal courts is to be found in § 16 of the Judiciary Act of 

1789, which provided that no equity suit should be maintained 

where there was a full and adequate remedy at law. Although this 

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

in chancery courts, 268 it did assert the power of Congress to regulate the equity powers of the federal courts. The Act of March 2, 

1793, 269 prohibited the issuance of any injunction by any court of 

the United States to stay proceedings in state courts except where 

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270 26 U.S.C. § 7421(a). 271This 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, 28 U.S.C. § 2284. Congress occasionally provides for such courts, as 

in the Voting Rights Act. 42 U.S.C. §§ 1971, 1973c. 272 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). 273 Repealed by P. L. 93-584, § 7, 88 Stat. 1918. 274 28 U.S.C. § 1342. 275 29 U.S.C. §§ 52, 101-110. 276 56 Stat. 31, 204 (1942). 277The statute was part of an Omnibus Appropriations Act signed by the President on April 26, 1996. P. L. 104-134, §§ 801-10, 110 Stat. 1321-66-77, amending 

18 U.S.C. § 3626. 

ruptcy proceedings. In subsequent statutes, Congress prohibited 

the issuance of injunctions in the federal courts to restrain the collection of taxes, 270 provided for a three-judge court as a prerequisite to the issuance of injunctions to restrain the enforcement 

of state statutes for unconstitutionality, 271 for enjoining federal 

statutes for unconstitutionality, 272 and for enjoining orders of the 

Interstate Commerce Commission, 273 limited the power to issue injunctions restraining rate orders of state public utility commissions, 274 and the use of injunctions in labor disputes, 275 and placed 

a very rigid restriction on the power to enjoin orders of the Administrator under the Emergency Price Control Act. 276

Perhaps pressing its powers further than prior legislation, 

Congress has enacted the Prison Litigation Reform Act of 1996. 277

Essentially, the law imposes a series of restrictions on judicial remedies in prison-conditions cases. Thus, courts may not issue prospective relief that extends beyond that necessary to correct the 

violation of a federal right that they have found, that is narrowly 

drawn, is the least intrusive, and that does not give attention to 

the adverse impact on public safety. Preliminary injunctive relief is 

limited by the same standards. Consent decrees may not be approved unless they are subject to the same conditions, meaning 

that the court must conduct a trial and find violations, thus cutting 

off consent decrees. If a decree was previously issued without regard to the standards now imposed, the defendant or intervenor is 

entitled to move to vacate it. No prospective relief is to last longer 

than two years if any party or intervenor so moves. Finally, a previously issued decree that does not conform to the new standards 

imposed by the Act is subject to termination upon the motion of the 

defendant or an intervenor. After a short period (30 or 60 days, depending on whether there is ‘‘good cause’’ for a 30-day extension), 

such a motion operates as an automatic stay of the prior decree 

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Sec. 1—Judicial Power, Courts, Judges 

278 530 U.S. 327 (2000). 279 530 U.S. at 348. 280Freeman v. Howe, 65 U.S. (24 How.) 450 (1861); Gaines v. Fuentes, 92 U.S. 

10 (1876); Ex parte Young, 209 U.S. 123 (1908). 281 Infra, Anti-Injunction Statute. 282 254 U.S. 443 (1921). 283Lauf v. E. G. Shinner & Co., 303 U.S. 323 (1938); New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938). 284 In addition to Lauf and New Negro Alliance, see Drivers’ Union v. Valley Co., 

311 U.S. 91, 100-103 (1940), and compare Sinclair Refining Co. v. Atkinson, 370 

U.S. 195 (1962), with Boys Markets v. Retail Clerks Union, 398 U.S. 235 (1970). 285 319 U.S. 182 (1943). 

pending the court’s decision on the merits. The Court upheld the 

termination and automatic stay provisions in Miller v. French, 278

rejecting the contention that the automatic stay provision offends 

separation of powers principles by legislative revision of a final 

judgment. Rather, Congress merely established new standards for 

the enforcement of prospective relief, and the automatic stay provision ‘‘helps to implement the change in the law.’’ 279 A number of 

constitutional challenges can be expected respecting Congress’ 

power to limit federal judicial authority to remedy constitutional 

violations.

All of these restrictions have been sustained by the Supreme 

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

prohibition against the stay of proceedings in state courts, 280 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. 281

In Duplex Printing Press v. Deering, 282 the Supreme Court 

placed a narrow construction upon the labor provisions of the Clayton Act and thereby contributed in part to the more extensive restriction by Congress on the use of injunctions in labor disputes in 

the Norris-LaGuardia Act of 1932, which has not only been declared constitutional 283 but has been applied liberally 284 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 285 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 orVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00049 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
676 ART. III—JUDICIAL DEPARTMENT 

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286 319 U.S. at 187 (quoting Cary v. Curtis, 44 U.S. (3 How.) 236, 245 (1845). 

See South Carolina v. Katzenbach, 383 U.S. 301, 331-332 (1966), upholding a provision of the Voting Rights Act of 1965 that made the district court for the District 

of Columbia the only avenue of relief for States seeking to remove the coverage of 

the Act. 287 321 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. 288 Ch. 26, 56 Stat. 31, § 204 (1942). 289Washington-Southern Nav. Co. v. Baltimore & P.S.B.C. Co., 263 U.S. 629 

(1924). 290 23 U.S. (10 Wheat.) 1 (1825). 

ders 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.’’’ 286 Although the Court avoided 

passing upon the constitutionality of the prohibition against interlocutory decrees, the language of the Court was otherwise broad 

enough to support it, as was the language of Yakus v. United 

States, 287 which sustained a different phase of the special procedure for appeals under the Emergency Price Control Act. 288

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. 289 However, this power too is derived from the statutes and cannot go beyond them. The landmark 

case is Wayman v. Southard, 290 which sustained the validity of the 

Process Acts of 1789 and 1792 as a valid exercise of authority 

ART. III—JUDICIAL DEPARTMENT 677

Sec. 1—Judicial Power, Courts, Judges 

291 106 U.S. 272, 280 (1882). 292See 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. 293 In the Act of June 19, 1934, 48 Stat. 1064, and contained in 28 U.S.C. § 

2072, Congress, in authorizing promulgation of rules of civil procedure, reserved the 

power to examine and override or amend rules proposed pursuant to the act which 

it found to be contrary to its legislative policy. See Sibbach v. Wilson, 312 U.S. 1, 

14-16 (1941). Congress also has authorized promulgation of rules of criminal procedure, habeas, evidence, admiralty, bankruptcy, and appellate procedure. See Hart & 

Wechsler, supra at 749-765 (discussing development of rules and citing secondary 

authority). Congress in the 1970s disagreed with the direction of proposed rules of 

evidence and of habeas practice, and, first postponing their effectiveness, enacted revised rules. Pub. L. 93-505, 88 Stat. 1926 (1974); Pub. L. 94-426, 90 Stat. 1334 

(1976). On this and other actions, see Hart & Wechsler, supra. 294 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). 295 Cf. United States v. Sherwood, 312 U.S. 584, 589-590 (1941). 296Mississippi Pub. Corp. v. Murphree, 326 U.S. 438 (1946). 

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, 291 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.’’ 292 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. 293 Their

operation being restricted, in conformity with the proviso attached 

to the congressional authorization, to matters of pleading and practice, the Federal Rules of Civil Procedure thus judicially promulgated neither affect the substantive rights of litigants 294 nor alter 

the jurisdiction 295 of federal courts and the venue of actions therein 296 and, thus circumscribed, have been upheld as valid. 

678 ART. III—JUDICIAL DEPARTMENT 

Sec. 1—Judicial Power, Courts, Judges 

297Washington-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). 298McDonald v. Pless, 238 U.S. 264, 266 (1915); Griffin v. Thompson, 43 U.S. 

(2 How.) 244, 257 (1844). See Thomas v. Arn, 474 U.S. 140 (1985) (court of appeal 

rule conditioning appeal on having filed with the district court timely objections to 

a master’s report). In Rea v. United States, 350 U.S. 214, 218 (1956), the Court, 

citing McNabb v. United States, 318 U.S. 332 (1943), asserted that this supervisory 

power extends to policing the requirements of the Court’s rules with respect to the 

law enforcement practices of federal agents. But compare United States v. Payner, 

447 U.S. 727 (1980). 299Gumbel v. Pitkin, 124 U.S. 131 (1888); Covell v. Heyman, 111 U.S. 176 

(1884); Buck v. Colbath, 70 U.S. (3 Wall.) 334 (1866). 300 Eberly v. Moore, 65 U.S. (24 How.) 147 (1861); Arkadelphia Co. v. St. Louis 

S.W. Ry., 249 U.S. 134 (1919). 301Gagnon v. United States, 193 U.S. 451, 458 (1904). 

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.’’ 297 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. 298

The courts of the United States possess inherent equitable 

powers over their process to prevent abuse, oppression, and injustice, and to protect their jurisdiction and officers in the protection 

of property in the custody of law. 299 Such powers are said to be essential to and inherent in the organization of courts of justice. 300

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. 301

Appointment of Referees, Masters, and Special Aids 

The administration of insolvent enterprises, investigations into 

the reasonableness of public utility rates, and the performance of 

ART. III—JUDICIAL DEPARTMENT 679

Sec. 1—Judicial Power, Courts, Judges 

302 69 U.S. (2 Wall.) 123, 128-129 (1864). 303 253 U.S. 300 (1920). 304 253 U.S. at 312. 305 Ex parte Secombe, 60 U.S. (19 How.) 9, 13 (1857). In Frazier v. Heebe, 482 

U.S. 641 (1987), the Court exercised its supervisory power to invalidate a district 

court rule respecting the admission of attorneys. See In re Sawyer, 360 U.S. 622 

(1959), with reference to the extent to which counsel of record during a pending case 

may attribute error to the judiciary without being subject to professional discipline. 

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

In the leading case of Ex parte Peterson, 303 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.’’ 304 The power to appoint auditors by federal courts sitting 

in equity has been exercised from their very beginning, and here 

it was held that this power is the same whether the court sits in 

law or equity. 

Power to Admit and Disbar Attorneys 

Subject to general statutory qualifications for attorneys, the 

power of the federal courts to admit and disbar attorneys rests on 

the common law from which it was originally derived. According to 

Chief Justice Taney, it was well settled by the common law that 

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

to become one of its officers, as an attorney and 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.’’ 305

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

680 ART. III—JUDICIAL DEPARTMENT 

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

306 71 U.S. (4 Wall.) 333 (1867). 

307 71 U.S. at 378-80. Although a lawyer is admitted to practice in a federal 

court by way of admission to practice in a state court, he is not automatically sent 

out of the federal court by the same route, when ‘‘principles of right and justice’’ 

require otherwise. A determination of a state court that an accused practitioner 

should 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). 

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

was invalidated in Ex parte Garland. 306 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. 307

SECTION 2. Clause 1. The Judicial Power shall extend to all 

Cases, in Law and Equity, arising under this Constitution, the 

Laws of the United States, and Treaties made, or which shall 

be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which 

the United States shall be a Party;—to Controversies between 

two or more States; between a State and Citizens of another 

State; between Citizens of different States,—between Citizens 

of the same State claiming Land under Grants of different 

States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 

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

308 2 M. Farrand, supra at 430. 309The proposal was contained in the Virginia Plan. 1 id. at 21. For the four 

rejections, see id. at 97-104, 108-10, 138-40, 2 id. at 73-80, 298. 310 Id. at 328-29, 342-44. Although a truncated version of the proposal was reported by the Committee on Detail, id. at 367, the Convention never took it up. 311 Id. at 340-41. The proposal was referred to the Committee on Detail and 

never heard of again. 312 1 C. Warren, supra at 108-111; 3 CORRESPONDENCE AND PUBLIC PAPERS OF

JOHN JAY 633-635 (H. Johnston ed., 1893); Hart & Wechsler, supra at 65-67. 313 Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), discussed ‘‘Finality of Judgment 

as an Attribute of Judicial Power’’, supra. 

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—’’. 308

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 also 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, proposals for associating the judges in a council of revision 

to pass on laws generally were voted down four times, 309 and similar fates befell suggestions that the Chief Justice be a member of 

a privy council to assist the President, 310 and that the President 

or either House of Congress be able to request advisory opinions of 

the Supreme Court. 311 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. 312

Moreover, the refusal of the Justices to participate in the congressional plan for awarding veterans’ pensions 313 bespoke a similar 

adherence to the restricted role of courts. These restrictions have 

been encapsulated in a series of principles or doctrines, the application of which determines whether an issue is meet for judicial resolution and whether the parties raising it are entitled to have it juVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00055 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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314See, 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). 315 19 U.S. (6 Wheat.) 264 (1821). 316 19 U.S. at 378. 317Muskrat v. United States, 219 U.S. 346, 356 (1911). 318The 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). 319Osborn v. United States Bank, 22 U.S. (9 Wheat.) 738, 819 (1824). 

dicially 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. 314

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: 315 ‘‘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.’’ 316

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.’’ 317 The meaning attached 

to the terms ‘‘cases’’ and ‘‘controversies’’ 318 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.’’ 319 ‘‘By cases and controversies are intended the claims of litigants brought before the 

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320 In re Pacific Ry. Comm’n, 32 F. 241, 255 (C.C. Calif. 1887) (Justice Field). 

See also Smith v. Adams, 130 U.S. 167, 173-174 (1889). 321 Aetna Life Ins. Co. v. Haworth, 300 U.S. 229, 240-241 (1937). Cf. Public

Service Comm’n v. Wycoff Co., 344 U.S. 237, 242 (1952). 322Flast v. Cohen, 392 U.S. 83, 94-95 (1968). 323 ‘‘The jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitute a ‘case or controversy.’’’ 

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 149, 150 (1951). 

lished 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.’’ 320

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.’’ 321 Of the ‘‘case’’ and ‘‘controversy’’ requirement, Chief Justice Warren admitted that ‘‘those two words 

have an iceberg quality, containing beneath their surface simplicity 

submerged complexities which go to the very heart of our constitutional form of government. Embodied in the words ‘cases’ and ‘controversies’ are two complementary but somewhat different limitations. In part those words limit the business of federal courts to 

questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. 

And in part those words define the role assigned to the judiciary 

in a tripartite allocation of power to assure that the federal courts 

will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case 

and controversy doctrine.’’ 322 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. 323

From these quotations may be isolated several factors which, 

in one degree or another, go to make up a ‘‘case’’ and ‘‘controversy.’’ 

684 ART. III—JUDICIAL DEPARTMENT 

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

324Lord v. Veazie, 49 U.S. (8 How.) 251 (1850); Chicago & G.T. Ry. v. Wellman, 

143 U.S. 339 (1892); South Spring Hill Gold Mining Co. v. Amador Medean Gold 

Mining Co., 145 U.S. 300 (1892); California v. San Pablo & T.R.R., 149 U.S. 308 

(1893); Tregea v. Modesto Irrigation District, 164 U.S. 179 (1896); Lampasas v. Bell, 

180 U.S. 276 (1901); Smith v. Indiana, 191 U.S. 138 (1903); Braxton County Court 

v. West Virginia, 208 U.S. 192 (1908); Muskrat v. United States, 219 U.S. 346 

(1911); United States v. Johnson, 319 U.S. 302 (1943); Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47 (1971). 325 219 U.S. 346 (1911). 326 219 U.S. at 361-62. The Indians obtained the sought-after decision the following year by the simple expedient of suing to enjoin the Secretary of the Interior 

from enforcing the disputed statute. Gritts v. Fisher, 224 U.S. 640 (1912). Other 

cases have involved similar problems, but they resulted in decisions on the merits. 

E.g., Cherokee Intermarriage Cases, 203 U.S. 76 (1906); La Abra Silver Mining Co. 

v. United States, 175 U.S. 423, 455-463 (1899); South Carolina v. Katzenbach, 383 

U.S. 301, 335 (1966); but see id. at 357 (Justice Black dissenting). The principal effect of Muskrat was to put in doubt for several years the validity of any sort of declaratory judgment provision in federal law. 327 49 U.S. (8 How.) 251 (1850). 

Adverse Litigants 

The presence of adverse litigants with real interests to contend 

for is a standard which has been stressed in numerous cases, 324

and the requirement implicates a number of complementary factors 

making up a justiciable suit. The requirement was a decisive factor, if not the decisive one, in Muskrat v. United States, 325 in which 

the Court struck down a statute authorizing certain named Indians 

to bring a test suit against the United States to determine the validity of a law affecting the allocation of Indian lands. Attorney’s 

fees of both sides were to be paid out of tribal funds deposited in 

the United States Treasury. ‘‘The judicial power,’’ said the Court, 

‘‘. . . is the right to determine actual controversies arising between 

adverse litigants, duly instituted in courts of proper jurisdiction. . . . 

It is true the United States is made a defendant to this action, but 

it has no interest adverse to the claimants. The object is not to assert a property right as against the government, or to demand compensation for alleged wrongs because of action upon its part. The 

whole purpose of the law is to determine the constitutional validity 

of this class of legislation, in a suit not arising between parties concerning a property right necessarily involved in the decision in 

question, but in a proceeding against the government in its sovereign capacity, and concerning which the only judgment required 

is to settle the doubtful character of the legislation in question.’’ 326

Collusive and Feigned Suits.—Adverse litigants are lacking 

in those suits in which two parties have gotten together to bring 

a friendly suit to settle a question of interest to them. Thus, in 

Lord v. Veazie, 327 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 

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328 49 U.S. at 254-55. 329 Chicago & G.T. Ry. v. Wellman, 143 U.S. 339, 345 (1892). 330 E.g., Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796); Fletcher v. Peck, 

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

Warren, supra at 147, 392-95; 2 id. at 279-82. In Powell v. Texas, 392 U.S. 514 

(1968), the Court adjudicated on the merits a challenge to the constitutionality of 

criminal treatment of chronic alcoholics although the findings of the trial court, 

agreed to by the parties, appeared rather to be ‘‘the premises of a syllogism transparently designed to bring this case’’ within the confines of an earlier enunciated 

constitutional principle. But adversity arguably still existed. 331 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). 

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. . . .’’ 328 ‘‘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.’’ 329 Yet several widely known constitutional 

decisions have been rendered in cases in which friendly parties contrived to have the actions brought and in which the suits were supervised and financed by one side. 330 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. 331

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332 157 U.S. 429 (1895). The first injunction suit by a stockholder to restrain a 

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

331 (1856). See also Brushaber v. Union Pacific Ry. Co., 240 U.S. 1 (1916). 333 Cf. Cheatham v. United States, 92 U.S. 85 (1875); Snyder v. Marks, 109 U.S. 

189 (1883). 334Smith v. Kansas City Title Co., 255 U.S. 180 (1921). 335 Ashwander v. TVA, 297 U.S. 288 (1936). See id. at 341 (Justice Brandeis dissenting in part). 336 298 U.S. 238 (1936). 337Stern, The Commerce Clause and the National Economy, 59 HARV. L. 

REV. 645, 667-668 (1948) (detailing the framing of the suit). 

338Flast 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, 755-56, 759- 

61 (1984). In taxpayer suits, it is appropriate to look to the substantive issues to 

determine whether there is a logical nexus between the status asserted and the 

claim sought to be adjudicated. Id. at 102; United States v. Richardson, 418 U.S. 

166, 174-175 (1974); Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 

78-79 (1978). 

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., 332 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. 333 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 334 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. 335 Perhaps most notorious was Carter v. Carter 

Coal Co., 336 in which the president of the company brought suit 

against the company and its officials, among whom was Carter’s father, a vice president of the company, and in which the Court entertained the suit and decided the case on the merits. 337

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.’’ 338 The

‘‘gist of the question of standing’’ is whether the party seeking relief has ‘‘alleged such a personal stake in the outcome of the conVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00060 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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339 Baker v. Carr, 369 U.S. 186, 204 (1962). That persons or organizations have 

a personal, ideological interest sufficiently strong to create adverseness is not alone 

enough to confer standing; rather, the adverseness is the consequence of one being 

able to satisfy the Article III requisite of injury in fact. Valley Forge Christian College v. Americans United, 454 U.S. 464, 482-486 (1982); Schlesinger v. Reservists 

Comm. to Stop the War, 418 U.S. 208, 225-226 (1974). Nor is the fact that if plaintiffs have no standing to sue, no one would have standing, a sufficient basis for finding standing. Id. at 227. 340 Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting Warth v. Seldin, 422 U.S. 

490, 498 (1975)). All the standards relating to whether a plaintiff is entitled to adjudication of his claims must be evaluated ‘‘by reference to the Art. III notion that 

federal courts may exercise power only ‘in the last resort, and as a necessity,’ . . . 

and only when adjudication is ‘consistent with a system of separated powers and 

[the dispute is one] traditionally thought to be capable of resolution through the judicial process.’’’ Id. at 752 (quoting, respectively, Chicago & G.T. Ry. v. Wellman, 

143 U.S. 339, 345 (1892), and Flast v. Cohen, 392 U.S. 83, 97 (1968)). For the 

strengthening of the separation-of-powers barrier to standing, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 571-78 (1992). 341 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). 342 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 60 (4th ed. 1983). 343 ‘‘[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 

troversy 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.’’ 339 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.’’’ 340

Standing as a doctrine is composed of both constitutional and 

prudential restraints on the power of the federal courts to render 

decisions, 341 and is almost exclusively concerned with such public 

law questions as determinations of constitutionality and review of 

administrative or other governmental action. 342 As such, it is often 

interpreted according to the prevailing philosophies of judicial activism and restraint and narrowly or broadly in terms of the 

viewed desirability of access to the courts by persons seeking to 

challenge legislation or other governmental action. The trend in the 

1960s was to broaden access; in the 1970s, 1980s, and 1990s, it was 

to narrow access by stiffening the requirements of standing, although Court majorities were not entirely consistent. The major 

difficulty in setting forth the standards is that the Court’s generalizations and the results it achieves are often at variance. 343

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such.’’ Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 151 

(1970). For extensive consideration of the doctrine, see Hart & Wechsler, supra at 

107-196. 344Thus, 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). 345Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974). 346 418 U.S. at 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. Arkansas, 495 U.S. 

149 (1990); Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-77 (1992). Cf. Ex parte 

Levitt, 302 U.S. 633 (1937); Laird v. Tatum, 408 U.S. 1 (1972). 347 Usually cited as Massachusetts v. Mellon, 262 U.S. 447 (1923), the two suits 

being consolidated. 348 262 U.S. at 487, 488. 

The standing rules apply to actions brought in federal courts,

and they have no direct application to actions brought in state 

courts. 344

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. 345 ‘‘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.’’ 346

Taxpayer Suits.—Save for a narrow exception, standing is 

also lacking when a litigant attempts to sue to contest governmental action that he claims injures him as a taxpayer. In 

Frothingham v. Mellon, 347 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. 348

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349 392 U.S. 83 (1968). 350 392 U.S. at 105. 351 United States v. Richardson, 418 U.S. 166 (1974); Schlesinger v. Reservists 

Comm. to Stop the War, 418 U.S. 208, 227-28 (1974). Richardson in its generalized 

grievance constriction does not apply when Congress confers standing on litigants. 

FEC v. Akins, 524 U.S. 11 (1998). When Congress confers standing on ‘‘any person 

aggrieved’’ by the denial of information required to be furnished them, it matters 

Taxpayers were found to have standing, however, in Flast v. 

Cohen, 349 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 allege the challenged enactment exceeds specific constitutional limitations imposed upon the 

exercise of the taxing and spending power, rather than simply arguing that the enactment is generally beyond the powers delegated 

to Congress. Both Frothingham and Flast met the first test, because they attacked a spending program. Flast met the second test, 

because the Establishment Clause of the First Amendment operates as a specific limitation upon the exercise of the taxing and 

spending power, while Frothingham had alleged only that the 

Tenth Amendment had been exceeded. Reserved was the question 

whether other specific limitations constrained the taxing and 

spending clause in the same manner as the Establishment 

Clause. 350

Since Flast, the Court has refused to expand taxpayer standing. Litigants seeking standing as taxpayers to challenge legislation permitting the CIA to withhold from the public detailed information about its expenditures as a violation of Article I, § 9, cl. 7, 

and to challenge certain Members of Congress from holding commissions in the reserves as a violation of Article I, § 6, cl. 2, were 

denied standing, in the former cases because their challenge was 

not to an exercise of the taxing and spending power and in the latter because their challenge was not to legislation enacted under Article I, § 8, but rather was to executive action in permitting Members to maintain their reserve status. 351 An organization promoting 

690 ART. III—JUDICIAL DEPARTMENT 

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not that most people will be entitled and will thus suffer a ‘‘generalized grievance,’’ 

the statutory entitlement is sufficient. Id. at 21-25. 352 Valley Forge Christian College v. Americans United, 454 U.S. 464 (1982). 

The Court’s present position on Flast is set out severely in Lewis v. Casey, 518 U.S. 

343, 353 n.3 (1996), in which the Court largely plays down the ‘‘serious and adversarial treatment’’ prong of standing and strongly reasserts the separation-of-powers 

value of keeping courts within traditional bounds. The footnote is a response to Justice Souter’s separate opinion utilizing Flast, id., 398-99, for a distinctive point. 353 330 U.S. 1 (1947). 354See 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). 355 342 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). 356 Valley Forge Christian College v. Americans United, 454 U.S. 464, 472 

(1982); Allen v. Wright, 468 U.S. 737, 751 (1984); Lujan v. Defenders of Wildlife, 

504 U.S. 555, 560-61 (1992). See, however, United States Parole Comm’n v. 

Geraghty, 445 U.S. 388 (1980), a class action case, in which the majority opinion 

appears to reduce the significance of the personal stake requirement. Id. at 404 

n.11, reserving full consideration of the dissent’s argument at 401 n.1, 420-21. 

church-state separation was denied standing to challenge an executive decision to donate surplus federal property to a church-related 

college, both because the contest was to executive action under 

valid legislation and because the property transfer was not pursuant to a taxing and spending clause exercise but was taken under 

the property clause of Article IV, § 3, cl. 2. 352 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, 353

such a taxpayer was found to have standing to challenge the use 

of public funds for transportation of pupils to parochial schools. 354

But in Doremus v. Board of Education, 355 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.

Constitutional Standards: Injury in Fact, Causation, and 

Redressability.—While the Court has been inconsistent, it has 

now settled upon the rule that, ‘‘at an irreducible minimum,’’ the 

constitutional requisites under Article III for the existence of 

standing are that the plaintiff must personally have suffered some 

actual or threatened injury that can fairly be traced to the challenged action of the defendant, and that the injury is likely to be 

redressed by a favorable decision. 356

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357 Alabama Power Co. v. Ickes, 302 U.S. 464, 479 (1938). Cf. Joint Anti-Fascist 

Refugee Committee v. McGrath, 341 U.S. 123, 151-152 (1951) (Justice Frankfurter 

concurring). But see Frost v. Corporation Comm’n, 278 U.S. 515 (1929); City of Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958). 358Tennessee Power Co. v. TVA, 306 U.S. 118, 137-138 (1939). 359 C. Wright, supra at 65-66. 360 E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) 

(indirect injury to organization and members by governmental maintenance of list 

of subversive organizations); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 

(1958) (same); Abington School Dist. v. Schempp, 374 U.S. 203, 224 n. 9 (1963) (parents and school children challenging school prayers); McGowan v. Maryland, 366 

U.S. 420, 430-431 (1961) (merchants challenging Sunday closing laws); Baker v. 

Carr, 369 U.S. 186, 204-208 (1962) (voting rights). 361 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow 

v. Collins, 397 U.S. 159 (1970). The ‘‘zone of interest’’ test is a prudential rather 

than constitutional standard. The Court sometimes uses language characteristic of 

the language. Thus, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), the 

Court refers to injury in fact as ‘‘an invasion of a legally-protected interest,’’ but in 

context, here and in the cases cited, it is clear the reference is to any interest that 

the Court finds protectable under the Constitution, statutes, or regulations. 362Department of Commerce v. United States House of Representatives, 525 

U.S. 316 (1999). 363 E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1991); Duke Power Co. v. Carolina 

Environmental Study Group, 438 U.S. 59, 72-74 (1978); Village of Arlington Heights 

v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261-263 (1977); Singleton v. 

Wulff, 428 U.S. 106, 112-113 (1976); Warth v. Seldin, 422 U.S. 490, 498-499 (1975); 

O’Shea v. Littleton, 414 U.S. 488, 493-494 (1974); Linda R.S. v. Richard D., 410 U.S. 

614, 617-618 (1973). 

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,’’ 357 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.’’ 358 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.’’ 359

The observable tendency of the Court, however, was to find standing frequently in cases distinctly not grounded in property 

rights. 360

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. 361 Now

political, 362 environmental, aesthetic, and social interests, when 

impaired, afford a basis for making constitutional attacks upon 

governmental action. 363 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 alVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00065 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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364Trafficante 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. 365 524 U.S. 11 (1998). 366Sierra Club v. Morton, 405 U.S. 727, 735 (1972); United States v. SCRAP, 

412 U.S. 669, 687-88 (1973); Duke Power Co. v. Carolina Environmental Study 

Group, 438 U.S. 59, 72-74 (1978). But the Court has refused to credit general allegations of injury untied to specific governmental actions. E.g., Lujan v. Defenders of 

Wildlife, 504 U.S. 555 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871 

(1990). In particular, SCRAP, is disfavored as too broad. Lujan v. Defenders of Wildlife, 504 U.S. at 566. Moreover, unlike the situation in taxpayer suits, there is no 

requirement of a nexus between the injuries claimed and the constitutional rights 

asserted. In Duke Power, 438 U.S. at 78-81, claimed environmental and health injuries grew out of construction and operation of nuclear power plants but were not 

directly related to the governmental action challenged, the limitation of liability and 

indemnification in cases of nuclear accident. See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 264-65 

(1991). Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000). 367 Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765 

(2000). The Court confirmed its conclusion by reference to the long tradition of qui

leged 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. 364 In FEC v. Akins, 365 the Court 

found ‘‘injury-in-fact’’ present when plaintiff voters alleged that the 

Federal Election Commission had denied them information, to 

which they alleged an entitlement, respecting an organization that 

might or might not be a political action committee. Congress had 

afforded persons access to the Commission and had authorized 

‘‘any person aggrieved’’ by the actions of the FEC to sue to challenge the action. That the injury was widely shared did not make 

the claimed injury a ‘‘generalized grievance,’’ the Court held, but 

rather in this case, as in others, it was a concrete harm to each 

member of the class. The case is a principal example of the ability 

of Congress to confer standing and to remove prudential constraints on judicial review. 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. 366 Even citizens who bring qui tam actions

under the False Claims Act, an action that entitles them to a percentage of any civil penalty assessed for violation, have been held 

to have standing, on the theory that the Government has assigned 

a portion of its damages claim to the plaintiff, and the asignee of 

a claim has standing to assert the injury in fact suffered by the assignor. 367 Nonetheless, the Court has also in constitutional cases 

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tam actions, since the Constitution’s restriction of judicial power to ‘‘cases’’ and ‘‘controversies’’ has been interpreted to mean ‘‘cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.’’ Id. at 1863. 368See ‘‘Citizen Suits’’ supra. 369 Compare Warth v. Seldin, 422 U.S. 490, 499-500 (1975) (prudential), with

Valley ForgeChristian 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. 370 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 Ass’n 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. 371Lujan v. Defenders of Wildlife, 504 U.S. 555, 595 (1992); Allen v. Wright, 468 

U.S. 737, 751 (1984). See also ASARCO Inc. v. Kadish, 490 U.S. 605, 612-617 (1989) 

(plurality opinion). Although the two tests were initially articulated as two facets 

of a single requirement, the Court now insists they are separate inquiries. Id. at 

753 n. 19. To the extent there is a difference, it is that the former examines a causal 

connection between the assertedly unlawful conduct and the alleged injury, whereas 

the latter examines the causal connection between the alleged injury and the judicial relief requested. Id. In Steel Co. v. Citizens for a Better Environment, 523 U.S. 

83 (1998), the Court denied standing because of the absence of redressability. An 

environmental group sued the company for failing to file timely reports required by 

statute; by the time the complaint was filed, the company was in full compliance. 

Acknowledging that the entity had suffered injury in fact, the Court found that no 

judicial action would afford it a remedy. 372Simon 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 

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, 368 although it is unclear whether this rule (or 

subrule) has a constitutional or a prudential basis. 369 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. 370

Of increasing importance are the second and third elements of 

standing, causation and redressability, recently developed and held 

to be of constitutional requisite. There must be a causal connection 

between the injury and the conduct complained of; that is, the 

Court insists that the plaintiff show that ‘‘but for’’ the action, she 

would not have been injured. And the Court has insisted that there 

must be a ‘‘substantial likelihood’’ that the relief sought from the 

court if granted would remedy the harm. 371 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 

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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). 373Warth 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. 374 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). 375Duke 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). 376Warth v. Seldin, 422 U.S. 490, 505 (1975); Allen v. Wright, 468 U.S. 737, 

756-761 (1984). 

dation 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. 373 Similarly, the link between fully integrated public schools 

and allegedly lax administration of tax policy permitting benefits 

to discriminatory private schools was deemed too tenuous, the 

harm flowing from private actors not before the courts and the 

speculative possibility that directing denial of benefits would result 

in any minority child being admitted to a school. 374 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. 375 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. 376

In a case permitting a plaintiff contractors’ association to challenge an affirmative-action, set-aside program, the Court seemed to 

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377Thus, it appears that had the Court applied its standard in the current case, 

the results would have been different in such cases as Linda R. S. v. Richard D., 

410 U.S. 614 (1973); Warth v. Seldin, 422 U.S. 490 (1975); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976); Allen v. Wright, 468 U.S. 737 (1984). 378 Northeastern Fla. Ch. of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 666 (1993). The Court derived the proposition from another set 

of cases. Turner v. Fouche, 396 U.S. 346 (1970); Clements v. Fashing, 457 U.S. 957 

(1982); Regents of the Univ. of California v. Bakke, 438 U.S. 265, 281 n.14 (1978). 379 508 U.S. at 666. But see, in the context of ripeness, Reno v. Catholic Social 

Services, Inc., 509 U.S. 43 (1993), in which the Court, over the dissent’s reliance 

on Jacksonville, id. at 81-82, denied the relevance of its distinction between entitlement to a benefit and equal treatment. Id. at 58 n.19. 380Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 187 (2000). 381Gladstone 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’’). 

depart from several restrictive standing decisions in which it had 

held that the claims of attempted litigants were too ‘‘speculative’’ 

or too ‘‘contingent.’’ 377 The association had sued, alleging that 

many of its members ‘‘regularly bid on and perform construction 

work’’ for the city and that they would have bid on the set-aside 

contracts but for the restrictions. The Court found the association 

had standing, because certain prior cases under the equal protection clause established a relevant proposition. ‘‘When the government erects a barrier that makes it more difficult for members of 

one group to obtain a benefit than it is for members of another 

group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but 

for the barrier in order to establish standing. The ‘injury in fact’ 

in an equal protection case of this variety is the denial of equal 

treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.’’ 378 The association, therefore, 

established standing by alleging that its members were able and 

ready to bid on contracts but that a discriminatory policy prevented 

them from doing so on an equal basis. 379

Redressability can be present in an environmental citizen suit 

even when the remedy is civil penalties payable to the government. 

The civil penalties, the Court explained, ‘‘carried with them a deterrent effect that made it likely, as opposed to merely speculative, 

that the penalties would redress [plaintiffs’] injuries by abating 

current violations and preventing future ones.’’ 380

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. 381 It is clear that the Court feels free to 

disregard any of these prudential rules in cases in which it thinks 

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382Warth v. Seldin, 422 U.S. 490, 500-501 (1975); Craig v. Boren, 429 U.S. 190, 

193-194 (1976). 383 ‘‘Congress may grant an express right of action to persons who otherwise 

would be barred by prudential standing rules. Of course, Art. III’s requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even 

if it is an injury shared by a large class of other possible litigants.’’ Warth v. Seldin, 

422 U.S. 490, 501 (1975). That is, the actual or threatened injury required may exist 

solely by virtue of ‘‘statutes creating legal rights, the invasion of which creates 

standing, even though no injury would exist without the statute.’’ Linda R.S. v. 

Richard D., 410 U.S. 614, 617 n. 3 (1973); O’Shea v. Littleton, 414 U.S. 488, 493 

n. 2 (1974). Examples include United States v. SCRAP, 412 U.S. 669 (1973); 

Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972); Gladstone Realtors 

v. Village of Bellwood, 441 U.S. 91 (1979). See also Buckley v. Valeo, 424 U.S. 1, 

8 n.4, 11-12 (1976). For a good example of the congressionally-created interest and 

the injury to it, see Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-75 (1982) 

(Fair Housing Act created right to truthful information on availability of housing; 

black tester’s right injured through false information, but white tester not injured 

because he received truthful information). It is clear, however, that the Court will 

impose separation-of-powers restraints on the power of Congress to create interests 

to which injury would give standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 

571-78 (1992). Justice Scalia, who wrote the opinion in Lujan, reiterated the separation-of-powers objection to congressional conferral of standing in FEC v. Akins, 524 

U.S. 11, 29, 36 (1998) (alleged infringement of President’s ′′take care′′ obligation),

but this time in dissent; the Court did not advert to this objection in finding that 

Congress had provided for standing based on denial of information to which the 

plaintiffs, as voters, were entitled. 384 Valley Forge Christian College v. Americans United, 454 U.S. 464, 474-75 

(1982); Allen v. Wright, 468 U.S. 737, 751 (1984). 385 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 153 (1970); 

Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39 n. 19 (1976); Valley Forge Christian College v. Americans United, 454 U.S. 464, 475 (1982); Clarke 

v. Securities Industry Ass’n, 479 U.S. 388 (1987). See also Bennett v. Spear, 520 

U.S. 154 (1997). 386 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). 

exceptionable circumstances exist, 382 and Congress is free to legislate away prudential restraints and confer standing to the extent 

permitted by Article III. 383 The Court has identified three rules as 

prudential ones, 384 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 385 and that plaintiffs may not air 

‘‘generalized grievances’’ shared by all or a large class of citizens. 386 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 

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387 United States v. Raines, 362 U.S. 17, 21-23 (1960); Yazoo & M.V.R.R. v. 

Jackson Vinegar Co., 226 U.S. 217 (1912). Cf. Bender v. Williamsport Area School 

Dist., 475 U.S. 534 (1986). 388 318 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). 389 346 U.S. 249 (1953). 390See 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). 391 E.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (persons convicted of prescribing contraceptives for married persons and as accessories to crime of using contraceptives have standing to raise constitutional rights of patients with whom they 

had a professional relationship; although use of contraceptives was a crime, it was 

doubtful any married couple would be prosecuted so that they could challenge the 

statute); Eisenstadt v. Baird, 405 U.S. 438 (1972) (advocate of contraception convicted of giving device to unmarried woman had standing to assert rights of unmarried persons denied access; unmarried persons were not subject to prosecution and 

were thus impaired in their ability to gain a forum to assert their rights). 392 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 

challenge the constitutionality of a statute or a governmental action because it infringes the protectable rights of someone else. 387

In Tileston v. Ullman, 388 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 

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, 389 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. 390 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. 391

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. 392 It is also 

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not have to await criminal prosecution to challenge it); Planned Parenthood v. Danforth, 428 U.S. 52, 62 (1976) (same); Craig v. Boren, 429 U.S. 190, 192-197 (1976) 

(licensed beer distributor could contest sex discriminatory alcohol laws because it 

operated on him, he suffered injury in fact, and was ‘‘obvious claimant’’ to raise 

issue); Carey v. Population Services Int’l, 431 U.S. 678, 682-684 (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). 393 Holland v. Illinois, 493 U.S. 474 (1990) (white defendant had standing to 

raise a Sixth Amendment challenge to exclusion of blacks from his jury, since defendant had a right to a jury comprised of a fair cross section of the community). 

The Court has expanded the rights of non-minority defendants to challenge the exclusion of minorities from petit and grand juries, both on the basis of the injuryin-fact to defendants and because the standards for being able to assert the rights 

of third parties were met. Powers v. Ohio, 499 U.S. 400 (1991); Campbell v. Louisiana, 523 U.S. 392 (1998). 394 428 U.S. 106 (1976). 395 Compare 428 U.S. at 112-18 (Justices Blackmun, Brennan, White, and Marshall), with id. at 123-31 (Justices Powell, Stewart, and Rehnquist, and Chief Justice Burger). Justice Stevens concurred with the former four Justices on narrower 

grounds limited to this case. 396 Caplin & Drysdale v. United States, 491 U.S. 617, 623-624 n. 3 (1989). 397Whitmore 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). 

possible, of course, that one’s own rights can be affected by action 

directed at someone from another group. 393 A substantial dispute 

was occasioned in Singleton v. Wulff, 394 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. 395

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. 396 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. 397

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398 United States v. Raines, 362 U.S. 17, 21-24 (1960). 399Lanzetta v. New Jersey, 306 U.S. 451 (1939); Thornhill v. Alabama, 310 U.S. 

88 (1940); Winters v. New York, 333 U.S. 507 (1948); Dombrowski v. Pfister, 380 

U.S. 479, 486-487 (1965); Gooding v. Wilson, 405 U.S. 518 (1972); Lewis v. City of 

New Orleans, 415 U.S. 130 (1974). The Court has narrowed its overbreadth doctrine, though not consistently, in recent years. Broadrick v. Oklahoma, 413 U.S. 601 

(1973); Young v. American Mini Theatres, 427 U.S. 50, 59-60 (1976), and id. at 73 

(Justice Powell concurring); New York v. Ferber, 458 U.S. 747, 771-773 (1982). But 

the exception as stated in the text remains strong. E.g., Secretary of State v. Joseph 

H. Munson Co., 467 U.S. 947 (1984); Virginia v. American Booksellers Ass’n, 484 

U.S. 383 (1988). 400Sierra 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). 401 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 Ass’n, 389 U.S. 

217 (1967); United Transportation Union v. State Bar of Michigan, 401 U.S. 576 

(1971). 402 432 U.S. 333, 343 (1977). The organization here was not a voluntary membership entity but a state agency charged with furthering the interests of apple 

growers who were assessed annual sums to support the Commission. Id. at 341-45. 

See also Warth v. Seldin, 422 U.S. 490, 510-17 (1975); Simon v. Eastern Kentucky 

Welfare Rights Org., 426 U.S. 26, 39-40 (1976); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 263-264 (1977); Harris v. McRae, 448 

U.S. 297, 321 (1980); International Union, UAW v. Brock, 477 U.S. 274 (1986). 

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. 398 Again, the exceptions may be more 

important than the rule. Thus, an overly broad statute, especially 

one that regulates speech and press, may be considered on its face 

rather than as applied, and a defendant to whom the statute constitutionally applies may thereby be enabled to assert its unconstitutionality. 399

Organizational Standing.—Organizations do not have 

standing as such to represent their particular concept of the public 

interest, 400 but organizations have been permitted to assert the 

rights of their members. 401 In Hunt v. Washington State Apple Advertising Comm’n, 402 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 

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403 United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980). Geraghty 

was a mootness case. 404Louisiana v. Texas, 176 U.S. 1 (1900) (recognizing the propriety of parens

patriae suits but denying it in this particular suit). 405Massachusetts 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). 406Missouri 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). 407Georgia v. Pennsylvania R.R., 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). 408 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). 409 Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607-08 

(1982). Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, argued that the Court’s standards should apply only in original actions and not in actions filed in federal district courts, where, they contended, the prerogative of a 

State to bring suit on behalf of its citizens should be commensurate with the ability 

of private organizations to do so. Id. at 610. The Court admitted that different considerations might apply between original actions and district court suits. Id. at 603 

n.12.

troversy with the class, provided the adequacy of the representation is sufficient. 403

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. 404 No State, however, may be parens patriae of

her citizens ‘‘as against the Federal Government.’’ 405 But a State 

may sue to protect its citizens from environmental harm, 406 and to 

enjoin other States and private parties from engaging in actions 

harmful to the economic or other well being of it citizens. 407 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; 408 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. 409

Standing of Members of Congress.—The lower federal 

courts, principally the District of Columbia Circuit, developed a 

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410Member standing has not fared well in other Circuits. Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936 (1974); Harrington 

v. Schlesinger, 528 F.2d 455 (4th Cir. 1975). 411 Raines v. Byrd, 521 U.S. 811 (1997). In Coleman v. Miller, 307 U.S. 433, 438 

(1939), the Court had recognized that legislators can in some instances suffer an injury in respect to the effectiveness of their votes that will confer standing. In Pressler v. Blumenthal, 434 U.S. 1028 (1978), affg. 428 F. Supp. 302 (D.D.C. 1976) (threejudge court), the Court affirmed a decision in which the lower court had found Member standing but had then decided against the Member on the merits. The 

‘‘unexplicated affirmance’’ could have reflected disagreement with the lower court on 

standing or agreement with it on the merits. Note Justice Rehnquist’s appended 

statement. Id. In Goldwater v. Carter, 444 U.S. 996 (1979), the Court vacated a decision, in which the lower Court had found Member standing, and directed dismissal, but none of the Justices who 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. 412 Reuss v. Balles, 584 F.2d 461, 466 (D.C. Cir.), cert. denied, 439 U.S. 997 

(1978). 413Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973). 414 511 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. at 711-12 

(Judge Wright), vacated and remanded with instructions to dismiss, 444 U.S. 996 

(1979)

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. 410 When the Supreme Court finally addressed the issue on the merits in 1997, however, it severely curtailed Member standing. 411 All agree that a legislator ‘‘receives no 

special consideration in the standing inquiry,’’ 412 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. 413 The

breadth of this rationale was disapproved in subsequent cases. The 

leading decision is Kennedy v. Sampson, 414 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 

702 ART. III—JUDICIAL DEPARTMENT 

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415Kennedy 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. denied, 439 U.S. 997 (1978). 416Goldwater 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 

Justices to remark on standing is somewhat puzzling, since it has been stated that 

courts ‘‘turn initially, although not invariably, to the question of standing to sue.’’ 

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974). But

see Harrington v. Bush, 553 F.2d 190, 207 (D.C. Cir. 1977). In any event, the Supreme Court’s decision vacating Goldwater deprives the Circuit’s language of precedential effect. United States v. Munsingwear, 340 U.S. 36, 39-40 (1950); O’Connor 

v. Donaldson, 422 U.S. 563, 577 n.12 (1975). 417 Riegle v. FOMC, 656 F.2d 873 (D.C. Cir.), cert. denied, 454 U.S. 1082 (1981). 418 521 U.S. 811 (1997). 419The Act itself provided that ‘‘[a]ny Member of Congress or any individual adversely affected’’ could sue to challenge the law. 2 U.S.C. § 692(a)(1). After failure 

of this litigation, the Court in the following Term, on suits brought by claimants 

adversely affected by the exercise of the veto, held the statute unconstitutional. 

Clinton v. City of New York, 524 U.S. 417 (1998). 420 521 U.S. at 819. 

standing purposes, when some ‘‘legislative disenfranchisement’’ occurred. 415 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. 416 Having thus established 

a fairly broad concept of Member standing, the Circuit then proceeded to curtail it by holding that the equitable discretion of the 

court to deny relief should be exercised in many cases in which a 

Member had standing but in which issues of separation of powers, 

political questions, and other justiciability considerations counseled 

restraint. 417 The status of this issue thus remains in confusion. 

Member or legislator standing has been severely curtailed, although not quite abolished, in Raines v. Byrd. 418 Several Members 

of Congress, who had voted against passage of the Line Item Veto 

Act, sued in their official capacities as Members of Congress to invalidate the law, alleging standing based on the theory that the 

statute adversely affected their constitutionally prescribed lawmaking power. 419 Emphasizing its use of standing doctrine to 

maintain separation-of-powers principles, the Court adhered to its 

holdings that, in order to possess the requisite standing, a person 

must establish that he has a ‘‘personal stake’’ in the dispute and 

that the alleged injury suffered is particularized as to him. 420 NeiVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00076 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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421 521 U.S. at 821. 422 307 U.S. 433 (1939). 423 521 U.S. at 823. 424 521 U.S. at 824-26. 

ther requirement, the Court held, was met by these legislators. 

First, the Members did not suffer a particularized loss that distinguished them from their colleagues or from Congress as an entity. 

Second, the Members did not claim that they had been deprived of 

anything to which they were personally entitled. ‘‘[A]ppellees’ claim 

of standing is based on loss of political power, not loss of any private right, which would make the injury more concrete. . . . If one

of the Members were to retire tomorrow, he would no longer have 

a claim; the claim would be possessed by his successor instead. The 

claimed injury thus runs (in a sense) with the Member’s seat, a 

seat which the Member holds . . . as trustee for his constituents, not 

as a prerogative of personal power.’’ 421

So, there is no such thing as Member standing? Not necessarily so, because the Court turned immediately to preserving (at 

least a truncated version of) Coleman v. Miller, 422 in which the 

Court had found that 20 of the 40 members of a state legislature 

had standing to sue to challenge the loss of the effectiveness of 

their votes as a result of a tie-breaker by the lieutenant governor. 

Although there are several possible explanations for the result in 

that case, the Court in Raines chose to fasten on a particularly narrow point. ‘‘[O]ur holding in Coleman stands (at most, . . . ) for the 

proposition that legislators whose votes would have been sufficient 

to defeat (or enact) a specific legislative Act have standing to sue 

if that legislative action goes into effect (or does not go into effect), 

on the ground that their votes have been completely nullified.’’ 423

Because these Members could still pass or reject appropriations 

bills, vote to repeal the Act, or exempt any appropriations bill from 

presidential cancellation, the Act did not nullify their votes and 

thus give them standing. 424

It will not pass notice that the Court’s two holdings do not cohere. If legislators have standing only to allege personal injuries 

suffered in their personal capacities, how can they have standing 

to assert official-capacity injury in being totally deprived of the effectiveness of their votes? A period of dispute in the D. C. Circuit 

seems certain to follow. 

Standing to Challenge Lawfulness of Governmental Action.—Standing to sue on statutory or other non-constitutional 

grounds has a constitutional content to the degree that Article III 

requires a ‘‘case’’ or ‘‘controversy,’’ necessitating a litigant who has 

sustained or will sustain an injury so that he will be moved to 

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425 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 151-152 (1970), 

citing Flast v. Cohen, 392 U.S. 83, 101 (1968). ‘‘But where a dispute is otherwise 

justiciable, the question whether the litigant is a ‘proper party to request an adjudication of a particular issue,’ [quoting Flast, supra, 100], is one within the power 

of Congress to determine.’’ Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972). 

426Tennessee 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).

427 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). 

428 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) 

(Justice Frankfurter concurring). The Court approached this concept in two interrelated ways. (1) It might be that a plaintiff had an interest that it was one of the 

purposes of the statute in question to protect in some degree. Chicago Junction 

Case, 264 U.S. 258 (1924); Alexander Sprunt & Son v. United States, 281 U.S. 249 

(1930); Alton R.R. v. United States, 315 U.S. 15 (1942). Thus, in Hardin v. Kentucky 

Utilities Co., 390 U.S. 1 (1968), a private utility was held to have standing to contest allegedly illegal competition by TVA on the ground that the statute was meant 

to give private utilities some protection from certain forms of TVA competition. (2) 

It might be that a plaintiff was a ‘‘person aggrieved’’ within the terms of a judicial 

review section of an administrative or regulatory statute. Injury to an economic interest was sufficient to ‘‘aggrieve’’ a litigant. FCC v. Sanders Brothers Radio Station, 

309 U.S. 470 (1940); Associated Industries v. Ickes, 134 F.2d 694 (2d Cir.), cert.

dismd. as moot, 320 U.S. 707 (1943). 

429 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). 

present the issue ‘‘in an adversary context and in a form historically viewed as capable of judicial resolution.’’ 425 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,’’ 426 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; 427 or it could be a right created by the Constitution or a statute. 428 The statutory right most 

relied on was the judicial review section of the Administrative Procedure Act, which provided that ‘‘[a] person suffering legal wrong 

because of agency action, or adversely affected or aggrieved by 

agency action within the meaning of a relevant statute, is entitled 

to judicial review thereof.’’ 429 Early decisions under this statute interpreted the language as adopting the ‘‘legal interest’’ and ‘‘legal 

wrong’’ standard then prevailing as constitutional requirements of 

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430FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 477 (1940); City of 

Chicago v. Atchison, T. & S.F. Ry. Co., 357 U.S. 77, 83 (1958); Hardin v. Kentucky 

Utilities Co., 390 U.S. 1, 7 (1968). 431 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow 

v. Collins, 397 U.S. 159 (1970). Justices Brennan and White argued that only injuryin-fact should be requisite for standing. Id. at 167. In Clarke v. Securities Industry 

Ass’n, 479 U.S. 388 (1987), the Court applied a liberalized zone-of-interest test. But

see Lujan v. National Wildlife Federation, 497 U.S. 871, 885-889 (1990); Air Courier 

Conf. v. American Postal Workers Union, 498 U.S. 517 (1991). In applying these 

standards, the Court, once it determined that the litigant’s interests were ‘‘arguably 

protected’’ by the statute in question, proceeded to the merits without thereafter 

pausing to inquire whether in fact the interests asserted were among those protected. Arnold Tours v. Camp, 400 U.S. 45 (1970); Investment Company Institute 

v. Camp, 401 U.S. 617 (1971); Boston Stock Exchange v. State Tax Comm’n, 429 

U.S. 318, 320 n. 3 (1977). Almost contemporaneously, the Court also liberalized the 

ripeness requirement in review of administrative actions. Gardner v. Toilet Goods 

Ass’n, 387 U.S. 167 (1967); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). See

also National Credit Union Administration v. First National Bank & Trust Co., 522 

U.S. 479 (1998), in which the Court found that a bank had standing to challenge 

an agency ruling expanding the role of employer credit unions to include multi-employer credit unions, despite a statutory limit that any such union could be of 

groups having a common bond of occupation or association. The Court held that a 

plaintiff did not have to show it was the congressional purpose to protect its interests. It is sufficient if the interest asserted is ‘‘arguably within the zone of interests 

to be protected . . . by the statute.’’ Id. at 492 (internal quotation marks and citation 

omitted). But the Court divided 5-to-4 in applying the test. And see Bennett v. 

Spear, 520 U.S. 154 (1997). 432 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 154 (1970). 433Sierra Club v. Morton, 405 U.S. 727, 734 (1972), Moreover, said the Court, 

once a person establishes that he has standing to seek judicial review of an action 

because of particularized injury to him, he may argue the public interest as a ‘‘representative of the public interest,’’ as a ‘‘private attorney general,’’ so that he may 

contest not only the action which injures him but the entire complex of actions of 

which his injury-inducing action is a part. Id. at 737-738, noting Scripps-Howard 

Radio v. FCC, 316 U.S. 4 (1942); FCC v. Sanders Brothers Radio Station, 309 U.S. 

(1940). See also Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. 

(1979); Havens Realty Corp. v. Coleman, 455 U.S. 363, 376 n.16 (1982) (noting ability of such party to represent interests of third parties). 

standing, which generally had the effect of limiting the type of injury cognizable in federal court to economic ones. 430

In 1970, however, the Court promulgated a two-pronged standing test: if the litigant (1) has suffered injury-in-fact and if he (2) 

shows that the interest he seeks to protect is arguably within the 

zone of interests to be protected or regulated by the statutory guarantee in question, he has standing. 431 Of even greater importance 

was the expansion of the nature of the cognizable injury beyond 

economic injury, to encompass ‘‘aesthetic, conservational, and recreational’’ interests as well. 432 ‘‘Aesthetic and environmental wellbeing, like economic well-being, are important ingredients of the 

quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does 

not make them less deserving of legal protection through the judicial process.’’ 433 Thus, plaintiffs who pleaded that they used the 

706 ART. III—JUDICIAL DEPARTMENT 

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434 United States v. SCRAP, 412 U.S. 669, 683-690 (1973). As was noted above, 

this case has been disparaged by the later Court. Lujan v. Defenders of Wildlife, 

504 U.S. 555, 566-67 (1992); Whitmore v. Arkansas, 495 U.S. 149, 158-160 (1990). 435See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Lujan v. National 

Wildlife Federation, 497 U.S. 871 (1990). But see Bennett v. Spear, 520 U.S. 154 

(1997) (fact that ′′citizen suit′′ provision of Endangered Species Act is directed at empowering suits to further environmental concerns does not mean that suitor who alleges economic harm from enforcement of Act lacks standing); FEC v. Akins, 524 

U.S. 11 (1998) (expansion of standing based on denial of access to information). 436 Alabama State Fed’n of Labor v. McAdory, 325 U.S. 450, 461 (1945). 437Giles v. Harris, 189 U.S. 475, 486 (1903). 438 258 U.S. 158 (1922). 

natural resources of the Washington area, that rail freight rates 

would deter the recycling of used goods, and that their use of natural resources would be disturbed by the adverse environmental 

impact caused by the nonuse of recyclable goods, had standing as 

‘‘persons aggrieved’’ to challenge the rates set. Neither the large 

numbers of persons allegedly injured nor the indirect and less perceptible harm to the environment was justification to deny standing. The Court granted that the plaintiffs might never be able to 

establish the ‘‘attenuated line of causation’’ from rate setting to injury, but that was a matter for proof at trial, not for resolution on 

the pleadings. 434

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, 435 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.’’ 436 A party cannot maintain a suit ‘‘for a mere declaration in the air.’’ 437 In Texas v. ICC, 438 the State attempted to 

enjoin the enforcement of the Transportation Act of 1920 on the 

ground that it invaded the reserved rights of the State. The Court 

dismissed the complaint as presenting no case or controversy, 

declaring: ‘‘It is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prejudicially by the application or enforcement of a statute that its validity may be called in question by a suitor and determined by an 

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439 258 U.S. at 162. 440 297 U.S. 288 (1936). 441 297 U.S. at 324. Chief Justice Hughes cited New York v. Illinois, 274 U.S. 

488 (1927), in which the Court dismissed as presenting abstract questions a suit 

about the possible effects of the diversion of water from Lake Michigan upon hypothetical water power developments in the indefinite future, and Arizona v. California, 283 U.S. 423 (1931), in which it was held that claims based merely upon assumed potential invasions of rights were insufficient to warrant judicial intervention. See also Massachusetts v. Mellon, 262 U.S. 447, 484-485 (1923); New Jersey 

v. Sargent, 269 U.S. 328, 338-340 (1926); Georgia v. Stanton, 73 U.S. (6 Wall.) 50, 

76 (1867). 442 330 U.S. 75 (1947). 443 330 U.S. at 89-91. Justices Black and Douglas dissented, contending that the 

controversy was justiciable. Justice Douglas could not agree that the plaintiffs 

should have to violate the act and lose their jobs in order to test their rights. In 

CSC v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973), the concerns expressed in Mitchell were largely ignored as the Court reached the merits in an anticipatory attack on the Act. Compare Epperson v. Arkansas, 393 U.S. 97 (1968). 444 1 C. Warren, supra at 108-111. The full text of the exchange appears in 3 

CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 486-489 (H. Johnston ed., 

1893).

exertion of the judicial power.’’ 439 And in Ashwander v. TVA, 440 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.’’ 441

Concepts of real interest and abstract questions appeared 

prominently in United Public Workers v. Mitchell, 442 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. 443

Advisory Opinions.—In 1793, the Court unanimously refused 

to grant the request of President Washington and Secretary of 

State Jefferson to construe the treaties and laws of the United 

States pertaining to questions of international law arising out of 

the wars of the French Revolution. 444 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 

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445 Jay Papers at 488. 446 Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948). 447See supra. 448 1 C. Warren, supra at 595-597. 449 Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judiciary Committee, 75th Congress, 1st sess. (1937), pt. 3, 491. See also Chief Justice 

Taney’s private advisory opinion to the Secretary of the Treasury that a tax levied 

on the salaries of federal judges violated the Constitution. S. TYLER, MEMOIRS OF

ROGER B. TANEY 432-435 (1876). 450 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.

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.’’ 445 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. . . .’’ 446 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; 447 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; 448 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. 449

Other Justices have individually served as advisers and confidants 

of Presidents in one degree or another. 450

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 

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 

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451 Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113-114 

(1948). 452Muskrat v. United States, 219 U.S. 346 (1911). 453 United States v. Ferreira, 54 U.S. (13 How.) 40 (1852). 454 United Public Workers v. Mitchell, 330 U.S. 75 (1947). 455 Cf. Willing v. Chicago Auditorium Ass’n, 277 U.S. 274 (1928). 456Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123 (1927); Nashville, 

C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1963). 457 48 Stat. 955, as amended, 28 U.S.C. §§ 2201-2202. 458 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). 459 H. Rep. No. 1264, 73d Congress, 2d Sess. (1934), 2. 460S. Rep. No. 1005, 73d Congress, 2d Sess. (1934), 2. 461 48 Stat. 955. The language remains quite similar. 28 U.S.C. § 2201. 

no judgments not binding and conclusive on the parties and none 

that are subject to later review or alteration by administrative action.’’ 451 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, 452 or where the judgment of the Court was 

subject to later review or action by the executive or legislative 

branches of Government, 453 or where the issues involved were abstract or contingent. 454

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. 455 These doubts were largely dispelled by 

Court decisions in the late 1920s and early 1930s, 456 and Congress 

quickly responded with the Federal Declaratory Judgment Act of 

1934. 457 Quickly tested, the Act was unanimously sustained. 458

‘‘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.’’ 459 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 conclusively and finally the rights of parties in litigations over a contested issue, a form of relief which often suffices to settle controversies and fully administer justice.’’ 460

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. . . .’’ 461 Upholding the Act, the 

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462 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-240 (1937), 463 300 U.S. at 242-44. 464 Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945). 465Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). 466 Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 (1942); Public Service Comm’n v. Wycoff Co., 344 U.S. 237, 243 (1952); Public Affairs Associates v. 

Rickover, 369 U.S. 111, 112 (1962). See also Wilton v. Seven Falls Co., 515 U.S. 277 

(1995). 467 An exception ‘‘with respect to Federal taxes’’ was added in 1935. 49 Stat. 

1027. The Tax Injunction Act of 1937, 50 Stat. 738, U.S.C. § 1341, prohibited federal 

injunctive relief directed at state taxes but said nothing about declaratory relief. It 

was held to apply, however, in California v. Grace Brethren Church, 457 U.S. 393 

(1982). Earlier, in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943), 

the Court had reserved the issue but held that considerations of comity should preclude federal courts from giving declaratory relief in such cases. Cf. Fair Assessment 

in Real Estate Ass’n v. McNary, 454 U.S. 100 (1981). 

tion 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.’’ 462 Finding

that the issue in the case presented a definite and concrete controversy, the Court held that a declaration should have been 

issued. 463

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.’’ 464 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.’’ 465 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. 466 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, 467 is common. The Court 

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468 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). 469 United Public Workers v. Mitchell, 330 U.S. 75 (1947); Poe v. Ullman, 367 

U.S. 497 (1961); Altvater v. Freeman, 319 U.S. 359 (1943); International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954); Public Service Comm’n v. Wycoff Co., 344 

U.S. 237 (1952). 470 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). 471 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). 472 389 U.S. 241 (1967). 473 380 U.S. 479 (1965). 474Zwickler v. Koota, 389 U.S. 241, 248 (1967). 

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. 468 In

part, this has been accomplished by a strict insistence upon concreteness, ripeness, and the like. 469 Nonetheless, even at such 

times, several noteworthy constitutional decisions were rendered in 

declaratory judgment actions. 470

As part of the 1960s hospitality to greater access to courts, the 

Court exhibited a greater receptivity to declaratory judgments in 

constitutional litigation, especially cases involving civil liberties 

issues. 471 The doctrinal underpinnings of this hospitality were 

sketched out by Justice Brennan in his opinion for the Court in 

Zwickler v. Koota, 472 in which the relevance to declaratory judgments of the Dombrowski v. Pfister 473 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.’’ 474 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 

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712 ART. III—JUDICIAL DEPARTMENT 

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475Zwickler v. Koota, 389 U.S. 241, 254 (1967). 476Samuels 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. 477 Hicks v. Miranda, 422 U.S. 332, 349 (1975). 478Steffel 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). 479 United Public Workers v. Mitchell, 330 U.S. 75 (1947); International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954). For recent examples of lack of ripeness, see Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998); Texas v. United 

States, 523 U.S. 296 (1998). 480 Regional Rail Reorganization Act Cases, 419 U.S. 102, 138-148 (1974) (certainty of injury a constitutional limitation, factual adequacy element a prudential 

one).481Duke 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). 

sion as to the propriety of the issuance of the injunction.’’ 475 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 476 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, 477 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. 478

Ripeness.—Just as standing historically has concerned who

may bring an action in federal court, the ripeness doctrine concerns 

when it may be brought. Formerly, it was a wholly constitutional 

principle requiring a determination that the events bearing on the 

substantive issue have happened or are sufficiently certain to occur 

so as to make adjudication necessary and so as to assure that the 

issues are sufficiently defined to permit intelligent resolution; the 

focus was on the harm to the rights claimed rather than on the 

harm to the plaintiff that gave him standing to bring the action, 479

although, to be sure, in most cases the harm is the same. But in 

liberalizing the doctrine of ripeness in recent years the Court subdivided it into constitutional and prudential parts 480 and conflated 

standing and ripeness considerations. 481

The early cases generally required potential plaintiffs to expose 

themselves to possibly irreparable injury in order to invoke federal 

ART. III—JUDICIAL DEPARTMENT 713

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

482 330 U.S. 75 (1947). 483 330 U.S. at 90. In CSC v. National Ass’n of Letter Carriers, 413 U.S. 548 

(1973), without discussing ripeness, the Court decided on the merits anticipatory attacks on the Hatch Act. Plaintiffs had, however, alleged a variety of more concrete 

infringements upon their desires and intentions than the UPW plaintiffs had. 484 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’n v. Wycoff Co., 

344 U.S. 237 (1952); Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972). 485 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. at 504 (Justice Frankfurter dissenting). In Cramp v. Board of Public Instruction, 368 U.S. 278 (1961), a 

state employee was permitted to attack a non-Communist oath, although he alleged 

he believed he could take the oath in good faith and could prevail if prosecuted, because the oath was so vague as to subject plaintiff to the ‘‘risk of unfair prosecution 

and the potential deterrence of constitutionally protected conduct.’’ Id. at 283-84. See

also Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S. 

589 (1967). 486 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. 

judicial review. Thus, in United Public Workers v. Mitchell, 482 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.’’ 483 Similarly, resident aliens planning to work in the Territory of Alaska for the summer and then return to the United 

States were denied a request for an interpretation of the immigration laws that they would not be treated on their return as excludable aliens entering the United States for the first time, or alternatively, for a ruling that the laws so interpreted would be unconstitutional. The resident aliens had not left the country and attempted to return, although other alien workers had gone and been 

denied reentry, and the immigration authorities were on record as 

intending to enforce the laws as they construed them. 484 Of course, 

the Court was not entirely consistent in applying the doctrine. 485

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, 486 because the 

714 ART. III—JUDICIAL DEPARTMENT 

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97 (1987) (merits reached in absence of enforcement and fair indication State would 

not enforce it); Vance v. Amusement Co., 445 U.S. 308 (1980) (reaching merits, although State asserted law would not be used, although local prosecutor had so 

threatened; no discussion of ripeness, but dissent relied on Poe, id. at 317-18). 487 E.g., Younger v. Harris, 401 U.S. 37, 41-42 (1971); Boyle v. Landry, 401 U.S. 

77 (1971); Golden v. Zwickler, 394 U.S. 103 (1969); O’Shea v. Littleton, 414 U.S. 488 

(1974); Spomer v. Littleton, 414 U.S. 514 (1974); Rizzo v. Goode, 423 U.S. 362 

(1976). In the context of the ripeness to challenge of agency regulations, as to which 

there is a presumption of available judicial remedies, the Court has long insisted 

that federal courts should be reluctant to review such regulations unless the effects 

of administrative action challenged have been felt in a concrete way by the challenging parties, i.e., unless the controversy is ‘‘ripe.’’ See, of the older cases, Abbott 

Laboratories v. Gardner, 387 U.S. 136 (1967); Toilet Goods Ass’n, Inc. v. Gardner, 

387 U.S. 158 (1967); Gardner v. Toilet Goods Ass’n, Inc., 387 U.S. 167 (1967). More 

recent cases include Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993); Lujan 

v. National Wildlife Federation, 497 U.S. 871, 891 (1990). 488 E.g., California Bankers Ass’n v. Schultz, 416 U.S. 21 (1974); Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 294-297 (1981); Renne v. 

Geary, 501 U.S. 312, 320-323 (1991). 489Steffel 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). 490 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). 

plaintiffs can allege only a subjective feeling of inhibition or fear 

arising from the legislation or from enforcement of it, 487 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. 488 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. 489 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. 490

Of considerable uncertainty in the law of ripeness is the Duke

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 

ART. III—JUDICIAL DEPARTMENT 715

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

491Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 81- 

82 (1978). The injury giving standing to plaintiffs was the environmental harm arising from the plant’s routine operation; the injury to their legal rights was alleged 

to be the harm caused by the limitation of liability in the event of a nuclear accident. The standing injury had occurred, the ripeness injury was conjectural and 

speculative and might never occur. See id. at 102 (Justice Stevens concurring in the 

result). It is evident on the face of the opinion and expressly stated by the objecting 

Justices that the Court 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. at 95, 103 (Justices Rehnquist and Stevens concurring in 

the result). 492 E.g., United States v. Munsingwear, 340 U.S. 36 (1950); Golden v. Zwickler, 

394 U.S. 103, 108 (1969); SEC v. Medical Committee for Human Rights, 404 U.S. 

403 (1972); Roe v. Wade, 410 U.S. 113, 125 (1973); Sosna v. Iowa, 419 U.S. 393, 

398-399 (1975); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980), 

and id. at 411 (Justice Powell dissenting); Burke v. Barnes, 479 U.S. 361, 363 

(1987); Honig v. Doe, 484 U.S. 305, 317 (1988); Lewis v. Continental Bank Corp., 

494 U.S. 472, 477-478 (1990). Munsingwear had long stood for the proposition that 

the appropriate practice of the Court in a civil case that had become moot while 

on the way to the Court or after certiorari had been granted was to vacate or reverse and remand with directions to dismiss. But, in U. S. Bancorp Mortgage Co. 

v. Bonner Mall Partnership, 513 U.S. 18 (1994), the Court held that when mootness 

occurs because the parties have reached a settlement, vacatur of the judgment 

below is ordinarily not the best practice; instead, equitable principles should be applied so as to preserve a presumptively correct and valuable precedent, unless a 

court concludes that the public interest would be served by vacatur. 

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. 491 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. 492 ‘‘Under Article III of the Constitution, federal 

courts may adjudicate only actual, ongoing cases or controversies. . . . Article III denies federal courts the power ‘to decide questions that cannot affect the rights of litigants in the case before 

them,’ . . . and confines them to resolving ‘real and substantial 

controvers[ies] admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what 

the law would be upon a hypothetical state of facts.’ This case-orcontroversy 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 

716 ART. III—JUDICIAL DEPARTMENT 

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

493Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (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, 

392 U.S. 40, 57 (1968). See Honig v. Doe, 484 U.S. 305, 317 (1988), and id. at 332 

(Justice Scalia dissenting). But compare Franks v. Bowman Transp. Co., 424 U.S. 

747, 756 n.8 (1976) (referring to mootness as presenting policy rather than constitutional considerations). If this foundation exists, it is hard to explain the exceptions, 

which partake of practical reasoning. In any event, Chief Justice Rehnquist has argued that the mootness doctrine is not constitutionally based, or not sufficiently 

based only on Article III, so that the Court should not dismiss cases that have become moot after the Court has taken them for review. Id. at 329 (concurring). Consider the impact of Cardinal Chemical Co. v. Morton Int’l, Inc., 508 U.S. 83 (1993). 

494 But see Steffel v. Thompson, 415 U.S. 452, 470-72 (1974); id. at 477 (Justice 

White concurring), 482 n.3 (Justice Rehnquist concurring) (on res judicata effect in 

state court in subsequent prosecution). In any event, the statute authorizes the federal court to grant ‘‘[f]urther necessary or proper relief’’ which could include enjoining state prosecutions. 

495 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). 

496 E.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518 

(1852); United States v. Alaska Steamship Co., 253 U.S. 113 (1920); Hall v. Beals, 

396 U.S. 45 (1969); Sanks v. Georgia, 401 U.S. 144 (1971); Richardson v. Wright, 

405 U.S. 208 (1972); Diffenderfer v. Central Baptist Church, 404 U.S. 412 (1972); 

Lewis v. Continental Bank Corp., 494 U.S. 481 (1990). But compare City of Mesquite 

v. Aladdin’s Castle, Inc., 455 U.S. 283, 288-289 (1982) (case not mooted by repeal 

of ordinance, since City made clear its intention to reenact it if free from lower court 

judgment). Following Aladdin’s Castle, the Court in Northeastern Fla. Ch. of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 660-63 (1993), held 

that when a municipal ordinance is repealed but replaced by one sufficiently similar 

so that the challenged action in effect continues, the case is not moot. But see id.

at 669 (Justice O’Connor dissenting) (modification of ordinance more significant and 

case is mooted). 

497 Atherton Mills v. Johnston, 259 U.S. 13 (1922) (in challenge to laws regulating labor of youths 14 to 16, Court held case two-and-one-half years after argument and dismissed as moot since certainly none of the challengers was now in the 

age bracket); Golden v. Zwickler, 394 U.S. 103 (1969); DeFunis v. Odegaard, 416 

U.S. 312 (1974); Dove v. United States, 423 U.S. 325 (1976); Lane v. Williams, 455 

U.S. 624 (1982). Compare County of Los Angeles v. Davis, 440 U.S. 625 (1979), 

with Vitek v. Jones, 445 U.S. 480 (1980). In Arizonans For Official English v. Arizona, 520 U.S. 43 (1997), a state employee attacking an English-only work requirement had standing at the time she brought the suit, but she resigned following a 

decision in the trial court, thus mooting the case before it was taken to the appellate 

court, which should not have acted to hear and decide it. 

stake in the outcome’ of the lawsuit.’’ 493 Since, with the advent 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, 494 the question in cases alleged to be moot now seems 

largely if not exclusively to be decided in terms of whether an actual controversy continues to exist between the parties rather than 

some additional older concepts. 495

Cases may become moot because of a change in the law, 496 or

in the status of the parties, 497 or because of some act of one of the 

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498 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). 499Sibron v. New York, 395 U.S. 40, 50-58 (1968). But compare Spencer v. 

Kemna, 523 U.S. 1 (1998). 500 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). 501Southern Pacific Terminal Co. v. ICC, 219 U.S. 433, 452 (1911); Carroll v. 

President & Comm’rs 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). 502 United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290 (1897); Walling 

v. Helmerich & Payne, 323 U.S. 37 (1944); Porter v. Lee, 328 U.S. 246 (1946); 

United States v. W.T. Grant Co., 345 U.S. 629 (1953); Gray v. Sanders, 372 U.S. 

368 (1963); United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 

202-04 (1969); DeFunis v. Odegaard, 416 U.S. 312, 318 (1974); County of Los Angeles v. Davis, 440 U.S. 625, 631-34 (1979), and id. at 641-46 (Justice Powell dissenting); Vitek v. Jones, 445 U.S. 480, 486-487 (1980), and id. at 500-01 (Justice 

Stewart dissenting); Princeton University v. Schmidt, 455 U.S. 100 (1982); City of 

Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 288-289 (1982). 

parties which dissolves the controversy. 498 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.’’ 499 The ‘‘mere possibility’’ of such a consequence, even a ‘‘remote’’ one, is enough to 

find that one who has served his sentence has retained the requisite personal stake giving his case ‘‘an adversary cast and making it justiciable.’’ 500 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. 501

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. 502 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 

718 ART. III—JUDICIAL DEPARTMENT 

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503 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)). 504 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). 505Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). 506Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Murphy v. Hunt, 455 U.S. 

478, 482 (1982). See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125- 

26 (1974), and id. at 130-32 (Justice Stewart dissenting), Friends of the Earth v. 

Laidlaw Envtl. Servs., 528 U.S. 167, 189-91 (2000),. The degree of expectation or 

likelihood that the issue will recur has frequently divided the Court. Compare Murphy v. Hunt, with Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); compare

Honig v. Doe, 484 U.S. 305, 318-23 (1988), with id. at 332 (Justice Scalia dissenting). 507Sibron v. New York, 392 U.S. 40, 49-58 (1968). See Gerstein v. Pugh, 420 

U.S. 103 (1975). 508 Carroll v. President & Commr’s of Princess Anne, 393 U.S. 175 (1968). 

See Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) (short-term court order restricting press coverage). 509 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). 

510 Roe v. Wade, 410 U.S. 113, 124-125 (1973). 511Sosna 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 cerwill be repeated.’’’ 503 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.’’ 504

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.’’ 505 Thus, in cases in which (1) the challenged action is too 

short in its duration to be fully litigated prior to its cessation or 

expiration, and (2) there is a reasonable expectation that the same 

complaining party would be subjected to the same action again, 

mootness will not be found when the complained-of conduct 

ends. 506 The imposition of short sentences in criminal cases, 507 the

issuance of injunctions to expire in a brief period, 508 and the shortterm factual context of certain events, such as elections 509 or pregnancies, 510 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. 511 The Court was closely divided, howVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00092 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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tification may not receive the benefits of this rule. Board of School Commr’s v. Jacobs, 420 U.S. 128 (1975). See also Weinstein v. Bradford, 423 U.S. 147 (1975); 

Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 430 (1976). But see the characterization of these cases in United States Parole Comm’n v. Geraghty, 445 U.S. 

388, 400 n. 7 (1980). Mootness is not necessarily avoided in properly certified cases, 

but the standards of determination are unclear. See Kremens v. Bartley, 431 U.S. 

119 (1977). 512 United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980). 513 445 U.S. at 403. Justices Powell, Stewart, Rehnquist, and Chief Justice 

Burger dissented, id. at 409, arguing there could be no Article III personal stake 

in a procedural decision separate from the outcome of the case. In Deposit Guaranty 

Nat’l Bank v. Roper, 445 U.S. 326 (1980), in an opinion by Chief Justice Burger, 

the Court held that a class action was not mooted when defendant tendered to the 

named plaintiffs the full amount of recovery they had individually asked for and 

could hope to retain. Plaintiffs’ interest in shifting part of the share of costs of litigation to those who would share in its benefits if the class were certified was deemed 

to be a sufficient ‘‘personal stake’’, although the value of this interest was at best 

speculative. 514The named plaintiff must still satisfy the class action requirement of adequacy of representation. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 

405-407 (1980). On the implications of Geraghty, which the Court has not returned 

to, see Hart & Wechsler, supra at 225-230. 515Geraghty, 445 U.S. at 404 & n.11. 

ever, 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. 512 Finding a live controversy, the Court determined 

that the named plaintiff retained a sufficient interest, ‘‘a personal 

stake,’’ in his claimed right to represent the class in order to satisfy 

the ‘‘imperatives of a dispute capable of judicial resolution;’’ that is, 

his continuing interest adequately assures that ‘‘sharply presented 

issues’’ are placed before the court ‘‘in a concrete factual setting’’ 

with ‘‘self-interested parties vigorously advocating opposing positions.’’ 513

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. 514 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. 515

It may be that the evolution in this area will be confined to the 

720 ART. III—JUDICIAL DEPARTMENT 

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516 445 U.S. at 419-24 (Justice Powell dissenting). 517For 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). 518Stovall v. Denno, 388 U.S. 293, 301 (1967). 519 England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 422 

(1964); James v. United States, 366 U.S. 213 (1961). See also Morrissey v. Brewer, 

408 U.S. 471, 490 (1972). 520 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). 521 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). 522 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). 

class action context, but cabining of a ‘‘flexible’’ doctrine of standing 

may be difficult. 516

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. 517 The Court asserted that 

this principle is true, while applying it only to give retroactive effect to the parties to the immediate case. 518 Yet, occasionally, the 

Court did not apply its holding to the parties before it, 519 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 520 —constitutional-criminal law decisions. The results 

have been confusing and unpredictable. 521

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.’’ 522 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 

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523Lemon v. Kurtzman, 411 U.S. 192, 198-199 (1973). 524Linkletter v. Walker, 381 U.S. 618 (1965); Tehan v. United States ex rel. 

Shott, 382 U.S. 406 (1966). 525 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). Stovall, 388 U.S. at 297. 526Desist 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). 527Williams 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). 528 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). 529Mackey v. United States, 401 U.S. 667, 675 (1971) (separate opinion); Desist 

v. United States, 394 U.S. 244, 256 (1969) (dissenting). Justice Powell has also 

strongly supported the proposed rule. Hankerson v. North Carolina, 432 U.S. 233, 

246-248 (1977) (concurring in judgment); Brown v. Louisiana, 447 U.S. 323, 337 

(1980) (concurring in judgment). 

ed upon the old. 523 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 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, 524

but the Court then promulgated standards for a balancing process 

that resulted in different degrees of retroactivity in different 

cases. 525 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. 526 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 527 or to cases in which the Court found that a constitutional doctrine barred the conviction or punishment of someone, 528 full retroactivity, even to habeas claimants, was the rule. 

Justice Harlan strongly argued that the Court should sweep away 

its confusing balancing rules and hold that all defendants whose 

cases are still pending on direct appeal at the time of a law-changing decision should be entitled to invoke the new rule, but that no 

habeas claimant should be entitled to benefit. 529

The Court has now drawn a sharp distinction between criminal 

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530Griffith v. Kentucky, 479 U.S. 314, 328 (1987). 531 489 U.S. 288 (1989). 532 492 U.S. 302 (1989). 533Penry, 492 U.S. at 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). 

For additional elaboration on ‘‘new law,’’ see O’Dell v. Netherland, 521 U.S. 151 

(1997); Lambrix v. Singletary, 520 U.S. 518 (1997); Gray v. Netherland, 518 U.S. 

152 (1996). But compare Bousley v. Brooks, 523 U.S. 614 (1998). 534Teague 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). 535The 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 

view. 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.’’ 530 Justice Harlan’s habeas approach was then 

adopted by a plurality in Teague v. Lane 531 and then by the Court 

in Penry v. Lynaugh. 532 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 ‘‘dictated’’ by 

that precedent. 533 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.’’ 534

What the rule is to be in civil cases, and indeed if there is to

be a rule, 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. 535 As in crimiVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00096 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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whether a decision to apply retroactively a decision will produce substantial inequitable results. Id. at 106-07. American Trucking Assn’s v. Smith, 496 U.S. 167, 179- 

86 (1990) (plurality opinion). 536 James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991); American 

Trucking Assn’s, Inc. v. Smith, 496 U.S. 167 (1990). And, of course, the retirements 

since the decisions were handed down further complicates discerning the likely 

Court position. 537 Beam. The holding described in the text is expressly that of only a two-Justice plurality. 501 U.S. at 534-44 (Justices Souter and Stevens). Justice White, Justice Blackmun, and Justice Scalia (with Justice Marshall joining the latter Justices) 

concurred, id. at 544, 547, 548 (respectively), but on other, and in the instance of 

the three latter Justices, and broader justifications. Justices O’Connor and Kennedy 

and Chief Justice Rehnquist dissented. Id. at 549. 538 Beam, 501 U.S. at 549 (dissenting opinion of Justices O’Connor and Kennedy 

and Chief Justice Rehnquist), and id. at 544 (Justice White concurring). And see 

Smith, 496 U.S. at 171 (plurality opinion of Justices O’Connor, White, Kennedy, and 

Chief Justice Rehnquist). 539 Beam, 501 U.S. at 547, 548 (Justices Blackmun, Scalia, and Marshall concurring). These three Justices, in Smith, 496 U.S. at 205, had joined the dissenting 

opinion of Justice Stevens arguing that constitutional decisions must be given retroactive effect. 540 509 U.S. 86 (1993). 

nal 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. 536 The

question in Beam was whether the company could claim a tax refund under an earlier ruling holding unconstitutional the imposition of certain taxes upon its products. The holding of a 

fractionated Court was that it could seek a refund, because in the 

earlier ruling the Court had applied the holding to the contesting 

company, and once a new rule has been applied retroactively to the 

litigants in a civil case considerations of equality and stare decisis compel application to all. 537 While partial or selective 

prospectivity is thus ruled out, neither pure retroactivity nor pure 

prospectivity is either required or forbidden. 

Four Justices adhered to the principle that new law, new rules, 

as defined above, may be applied purely prospectively, without violating any tenet of Article III or any other constitutional value. 538

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. 539 Apparently, the 

Court now has resolved this dispute, although the principal decision is a close five-to-four result. In Harper v. Virginia Dep’t of Taxation, 540 the Court adopted the principle of the Griffith decision in 

criminal cases and disregarded the Chevron Oil approach in civil 

724 ART. III—JUDICIAL DEPARTMENT 

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

541 509 U.S. at 97. While the conditional language in this passage might suggest 

that the Court was leaving open the possibility that in some cases it might rule 

purely prospectively, not even applying its decision to the parties before it, other 

language belies that possibility. ‘‘This rule extends Griffith’s ban against ‘selective 

application of new rules.’’’ [Citing 479 U.S. at 323]. Inasmuch as Griffith rested in 

part on the principle that ‘‘the nature of judicial review requires that [the Court] 

adjudicate specific cases,’’ 479 U.S. at 322, deriving from Article III’s case or controversy requirement for federal courts and forbidding federal courts from acting 

legislatively, the ‘‘Court has no more constitutional authority in civil cases than in 

criminal cases to disregard current law or to treat similarly situated litigants differently.’’ 509 U.S. at 97 (quoting American Trucking, 496 U.S. at 214 (Justice Stevens dissenting)). The point is made more clearly in Justice Scalia’s concurrence, in 

which he denounces all forms of nonretroactivity as ‘‘the handmaid of judicial activism.’’ Id. at 105. 542 509 U.S. at 110 (Justice Kennedy, with Justice White, concurring); 113 (Justice O’Connor, with Chief Justice Rehnquist, dissenting). However, these Justices 

disagreed in this case about the proper application of Chevron Oil. 543 But see Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) (setting aside 

a state court refusal to give retroactive effect to a U. S. Supreme Court invalidation 

of that State’s statute of limitations in certain suits, in an opinion by Justice Breyer, 

Justice Blackmun’s successor); Ryder v. United States, 515 U.S. 177, 184-85 (1995) 

(‘‘whatever the continuing validity of Chevron Oil after’’ Harper and Reynoldsville

Casket). 544 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, 

supra at 270-294. 

cases. Henceforth, in civil cases, the rule is: ‘‘When this Court applies a rule of federal law to the parties before it, that rule is the 

controlling interpretation of federal law and must be given full retroactive effect in all cases open on direct review and as to all 

events, regardless of whether such events predate or postdate our 

announcement of the rule.’’ 541 Four Justices continued to adhere to 

Chevron Oil, however, 542 so that with one Justice each retired from 

the different sides one may not regard the issue as definitively settled. 543 Future cases must, therefore, be awaited for resolution of 

this issue. 

Political Questions 

It may be that the Court will refuse to adjudicate a case assuredly within its 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. 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 to the federal 

system and this Court’s appropriate place within that structure,’’ 544 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, 

ART. III—JUDICIAL DEPARTMENT 725

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

545Frank, Political Questions, in Supreme Court and Supreme Law 36 (E. Cahn 

ed., 1954). 546 Id. 547 Baker v. Carr, 369 U.S. 186, 208-232 (1962). 548 5 U.S. (1 Cr.) 137, 170 (1803). 549 In Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 516 (1840), the Court, refusing 

an effort by mandamus to compel the Secretary of the Navy to pay a pension, said: 

‘‘The interference of the courts with the performance of the 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, 73 U.S. (6 Wall.) 50 (1867); Mississippi v. Johnson, 

71 U.S. (4 Wall.) 475 (1867); Kendall v. United States ex rel. Stokes, 37 U.S. (12 

Pet.) 524 (1838). 550 3 U.S. (3 Dall.) 199 (1796). 551 25 U.S. (12 Wheat.) 19 (1827). 552 48 U.S. (7 How.) 1 (1849). 553 Cf. Baker v. Carr, 369 U.S. 186, 218-22 (1962); id. at 292-97 (Justice Frankfurter dissenting). 

and purpose of the concept have eluded all attempts at precise 

statements.’’ 545 That the concept of political questions may be 

‘‘more amenable to description by infinite itemization than by generalization’’ 546 is generally true, although the Court’s development 

of rationale in Baker v. Carr 547 has changed this fact radically. 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, 548

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.’’ 549

But the doctrine was asserted even earlier as the Court in 

Ware v. Hylton 550 refused to pass on the question whether a treaty 

had been broken. And in Martin v. Mott, 551 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 552 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. 553

Chief Justice Taney began by saying that the answer was primarily 

726 ART. III—JUDICIAL DEPARTMENT 

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

554Luther v. Borden, 48 U.S. (7 How.) 1, 40 (1849). 555 48 U.S. at 42 (citing Article IV, § 4). 556 48 U.S. at 42 557 48 U.S. at 42 558 48 U.S. at 43. 559 48 U.S. at 44. 

a matter of state law that had been decided in favor of one faction 

by the state courts. 554

Insofar as the Federal Constitution had anything to say on the 

subject, the Chief Justice continued, that was embodied in the 

clause empowering the United States to guarantee to every State 

a republican form of government, 555 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.’’ 556 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.’’ 557

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. 558

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. 559

ART. III—JUDICIAL DEPARTMENT 727

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

560 Article IV, 4. 561 As it was on the established government of Rhode Island in Luther v. Borden, 48 U.S. (7 How.) 1 (1849). See also Texas v. White, 74 U.S. (7 Wall.) 700 (1869); 

Taylor v. Beckham, 178 U.S. 548 (1900). 562Pacific 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). 563 All the cases, however, predate the application of the doctrine in Pacific 

States Tel. Co. v. Oregon, 223 U.S. 118 (1912). See Attorney General of the State 

of Michigan ex rel. Kies v. Lowrey, 199 U.S. 233, 239 (1905) (legislative creation and 

alteration of school districts ‘‘compatible’’ with a republican form of government); 

Forsyth v. City of Hammond, 166 U.S. 506, 519 (1897) (delegation of power to court 

to determine municipal boundaries does not infringe republican form of government); Minor v. Happersett, 88 U.S. (21 Wall) 162, 175-176 (1875) (denial of suffrage to women no violation of republican form of government). 564Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); Chicago & S. Air 

Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948). 565 United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818); Kennett v. Chambers, 55 U.S. (14 How.) 38 (1852). 566 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). 

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. 

(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, 560 whether the attack was on the 

government of the State itself 561 or on some manner in which it 

had acted, 562 but there have been cases in which the Court has 

reached the merits. 563

(2) Although there is language in the cases that would if applied make all questions touching on foreign affairs and foreign policy political, 564 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 565 or who is the de jure or de

facto ruler of a foreign state 566 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 

728 ART. III—JUDICIAL DEPARTMENT 

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

567 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). 568 United States v. Reynes, 50 U.S. (9 How.) 127 (1850); Garcia v. Lee, 37 U.S. 

(12 Pet.) 511 (1838); Keene v. McDonough, 33 U.S. (8 Pet.) 308 (1834). See also Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839); Underhill v. Hernandez, 168 

U.S. 250 (1897). But see United States v. Belmont, 301 U.S. 324 (1937). On the ‘‘act 

of State’’ doctrine, compare Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 

(1964), with First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 

(1972). 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). 569Doe v. Braden, 57 U.S. (16 How.) 635 (1853). 570Terlinden v. Ames, 184 U.S. 270 (1902); Clark v. Allen, 331 U.S. 503 (1947). 571Kennett v. Chambers, 55 U.S. (14 How.) 38 (1852). On the effect of a violation by a foreign state on the continuing effectiveness of the treaty, see Ware v. 

Hylton, 3 U.S. (3 Dall.) 199 (1796); Charlton v. Kelly, 229 U.S. 447 (1913). 572Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796). Cf. Chinese Exclusion Cases, 130 

U.S. 581 (1889) (conflict of treaty with federal law). On the modern formulation, 

see Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221, 229-230 

(1986). 573Perkins v. Elg, 307 U.S. 325 (1939); United States v. Rauscher, 119 U.S. 407 

(1886). 574 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, 

17 U.S. (4 Wheat.) 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, 30 U.S. (5 Pet.) 1 (1831); United States v. Sandoval, 231 U.S. 

28 (1913); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). 575Field v. Clark, 143 U.S. 649 (1892); Harwood v. Wentworth, 162 U.S. 547 

(1896); cf. Gardner v. The Collector, 73 U.S. (6 Wall.) 499 (1868). See, for the modern formulation, United States v. Munoz-Flores, 495 U.S. 385 (1990). 576 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). 

notice of the existence of the state. 567 Moreover, the courts have 

often determined for themselves what effect, if any, should be accorded the acts of foreign powers, recognized or unrecognized. 568

Similarly, the Court when dealing with treaties and the treaty 

power has treated as political questions whether the foreign party 

had constitutional authority to assume a particular obligation 569

and whether a treaty has lapsed because of the foreign state’s loss 

of independence 570 or because of changes in the territorial sovereignty of the foreign state, 571 but the Court will not only interpret the domestic effects of treaties, 572 it will at times interpret the 

effects bearing on international matters. 573 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. 574

(3) Ordinarily, the Court will not look behind the fact of certification that the standards requisite for the enactment of legislation 575 or ratification of a constitutional amendment 576 have in fact 

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577Missouri Pac. Ry. v. Kansas, 248 U.S. 276 (1919); Rainey v. United States, 

232 U.S. 310 (1914); Flint v. Stone Tracy Co., 220 U.S. 107 (1911); Twin City 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 U.S. (3 Dall.) 378 (1798) (constitutional amendments). 578Pocket Veto Case, 279 U.S. 655 (1929); Wright v. United States, 302 U.S. 583 

(1938). 579 369 U.S. 186 (1962). 580 Colegrove v. Green, 328 U.S. 549 (1946); Colegrove v. Barrett, 330 U.S. 804 

(1947). 581South v. Peters, 339 U.S. 276 (1950) (county unit system for election of statewide officers with vote heavily weighted in favor of rural, lightly-populated counties).582MacDougall v. Green, 335 U.S. 281 (1948) (signatures on nominating petitions must be spread among counties of unequal population). 583Thus, 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). 584Thus, see, e.g., Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415, 420 (1839). 

Similar considerations underlay the opinion in Luther v. Borden, 48 U.S. (7 How.) 

1 (1849), in which Chief Justice Taney wondered how a court decision in favor of 

one faction would be received with Congress seating the representatives of the other 

faction and the President supporting that faction with military force. 585 Baker v. Carr, 369 U.S. 186, 217, 226 (1962) (opinion of the Court); id. at 

68, 287, 295, (Justice Frankfurter dissenting) 

been met, although it will interpret the Constitution to determine 

what the basic standards are, 577 and it will decide certain questions if the political branches are in disagreement. 578

(4) Prior to Baker v. Carr, 579 cases challenging the distribution 

of political power through apportionment and districting, 580 weighted voting, 581 and restrictions on political action 582 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, 583 the necessity for uniformity of decision and deferrence 

to the wider responsibilities of the political departments, 584 and the 

lack of adequate standards to resolve a dispute. 585 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 

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586For a statement of the ‘‘prudential’’ view, see generally A. BICKEL, THE LEAST

DANGEROUS BRANCH—THE SUPREME COURT AT THE BAR OF POLITICS (1962), but see 

esp. 23-28, 69-71, 183-198. See also Baker v. Carr, 369 U.S. 186, 267 (1962) (Justice 

Frankfurter dissenting.) The opposing view, which has been called the ‘‘classicist’’ 

view, is that courts are duty bound to decide all cases properly before them. Cohens 

v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). See also H. WECHSLER, PRINCIPLES,

POLITICS, AND FUNDAMENTAL LAW—SELECTED ESSAYS 11-15 (1961). 587 369 U.S. 186 (1962). 588Wesberry 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). 589Powell v. McCormack, 395 U.S. 486 (1969). Nonetheless, the doctrine continues to be sighted. 590 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). 591 369 U.S. at 210. 592 369 U.S. at 211. 

a principled decision damaging to the Court or an expedient decision damaging to the principle. 586

Baker v. Carr.—In Baker v. Carr, 587 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, 588 and the Court’s subsequent rejection of the doctrine disclosed the narrowing in other 

areas as well. 589

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.’’’ 590 Thus, the ‘‘nonjusticiability of a political question is 

primarily a function of the separation of powers.’’ 591 ‘‘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.’’ 592 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 setVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00104 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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593 369 U.S. at 217. It remains unclear after Baker whether the political question doctrine is applicable solely to intrafederal issues or only primarily, so that the 

existence of one or more of these factors in a case involving, say, a State, might still 

give rise to nonjusticiability. At one point, id. at 210, Justice Brennan says that 

nonjusticiability of a political question is ‘‘primarily’’ a function of separation of powers but in the immediately preceding paragraph he states that ‘‘it is’’ the 

intrafederal aspect ‘‘and not the federal judiciary’s relationship to the States’’ that 

raises political questions. But subsequently, id. at 226, he balances the present case, 

which involves a State and not a branch of the Federal Government, against each 

of the factors listed in the instant quotation and notes that none apply. His discussion of why guarantee clause cases are political presents much the same difficulty, 

id. at 222-26, 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. at 222, a factor not present when the equal protection clause is relied on. Id. 

at 226. 594 Bond v. Floyd, 385 U.S. 116 (1966). 595 395 U.S. 486 (1969). 596 Baker v. Carr, 369 U.S. 186, 217 (1962). 

tings in which the questions arise may describe a political question, 

although each has one or more elements which identify it as essentially a function of the separation of powers.’’ 

‘‘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.’’ 593

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. 594 But in Powell v. 

McCormack, 595 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, 596 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 deterVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00105 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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597 395 U.S. at 319. 598 395 U.S. at 519-47. The Court noted, however, that even if this conclusion 

had not been reached from unambiguous evidence, the result would have followed 

from other considerations. Id. at 547-48. 599See H. Wechsler, supra at 11-12. Professor Wechsler believed that congressional decisions about seating members were immune to review. Id. Chief Justice 

Warren noted that ‘‘federal courts might still be barred by the political question doctrine from reviewing the House’s factual determination that a member did not meet 

one of the standing qualifications. This is an issue not presented in this case and 

we express no view as to its resolution.’’ Powell v. McCormack, 395 U.S. 486, 521 

n.42 (1969). And see id. at 507 n.27 (reservation on limitations that might exist on 

Congress’ power to expel or otherwise punish a sitting member). 600 395 U.S. at 548-549. With the formulation of Chief Justice Warren, compare that of then-Judge Burger in the lower court. 395 F.2d 577, 591-596 (D.C. Cir. 

1968).

mine in its sole discretion the qualifications of members. 597 In

order to determine whether there was a textual commitment, the 

Court reviewed the Constitution, the Convention proceedings, and 

English and United States legislative practice to ascertain what 

power had been conferred on the House to judge the qualifications 

of its members; finding that the Constitution vested the House 

with power only to look at the qualifications of age, residency, and 

citizenship, the Court thus decided that in passing on Powell’s conduct and character the House had exceeded the powers committed 

to it and thus judicial review was not barred by this factor of the 

political question doctrine. 598 Although this approach accords with 

the ‘‘classicist’’ theory of judicial review, 599 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. 600 The effect of Powell is to discard all 

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601Gilligan 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). 

602 413 U.S. at 11. Other considerations of justiciability, however, id. at 10, preclude using the case as square precedent on political questions. Notice that in 

Scheuer v. Rhodes, 416 U.S. 232, 249 (1974), the Court denied that the Gilligan v. 

Morgan holding barred adjudication of damage actions brought against state officials by the estates of students killed in the course of the conduct that gave rise 

to both cases. 

603O’Brien v. Brown, 409 U.S. 1 (1972) (granting stay). The issue was mooted 

by the passage of time and was not thereafter considered on the merits by the 

Court. Id. at 816 (remanding to dismiss as moot). It was also not before the Court 

in Cousins v. Wigoda, 419 U.S. 477 (1975), but it was alluded to there. See id. at 

483 n.4, and id. at 491 (Justice Rehnquist concurring). See also Goldwater v. Carter, 

444 U.S. 996, 1002 (1979) (Justices Rehnquist, Stewart, and Stevens, and Chief Justice Burger using political question analysis to dismiss a challenge to presidential 

action). But see id. at 997, 998 (Justice Powell rejecting analysis for this type of 

case).

tion of the textual commitment factor, and that was interpreted in 

such a manner as seldom if ever to preclude a judicial decision on 

the merits. 

The Doctrine Reappears.—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.’’ 601 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.’’ 602 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. 603 A challenge to the Senate’s interpretation 

of and exercise of its impeachment powers was held to be nonjusticiable; there was a textually demonstrable commitment of the 

734 ART. III—JUDICIAL DEPARTMENT 

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

604 Nixon v. United States, 506 U.S. 224 (1993). The Court pronounced its decision as perfectly consonant with Powell v. McCormack. Id. at 236-38. 605 Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221, 230 

(1986). See also Davis v. Bandemer, 478 U.S. 109 (1986) (challenge to political gerrymandering is justiciable). 606 United States v. Munoz-Flores, 495 U.S. 385 (1990). 607 495 U.S. at 390 (emphasis in original). 608 495 U.S. at 393. 

issue to the Senate, and there was a lack of judicially discoverable 

and manageable standards for resolving the issue. 604

Despite the occasional resort to the doctrine, the Court continues to reject its application in language that confines its scope. 

Thus, when parties challenged the actions of the Secretary of Commerce in declining to certify, as required by statute, that Japanese 

whaling practices undermined the effectiveness of international 

conventions, the Court rejected the Government’s argument that 

the political question doctrine precluded decision on the merits. 

The Court’s prime responsibility, it said, is to interpret statutes, 

treaties, and executive agreements; the interplay of the statutes 

and the agreements in this case implicated the foreign relations of 

the Nation. ‘‘But under the Constitution, one of the Judiciary’s 

characteristic roles is to interpret statutes, and we cannot shirk 

this responsibility merely because our decision may have significant political overtones.’’ 605

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. 606 Turning back reliance on the various factors set out 

in Baker, in much the same tone as in Powell v. McCormack, the 

Court continued to evidence the view that only questions textually 

committed to another branch are political questions. Invalidation of 

a statute because it did not originate in the right House would not 

demonstrate a ‘‘lack of respect’’ for the House that passed the bill. 

‘‘[D]isrespect,’’ in the sense of rejecting Congress’ 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.’’ 607 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.’’ 608 The Court 

also rejected the contention that, because the case did not involve 

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609 495 U.S. at 393-95. 610 495 U.S. at 395-96. 611See Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000); and 

Bush v. Gore, 531 U.S. 98 (2000). 612 12th Amendment. 613See the richly detailed summary and citations to authority in G. GUNTHER, CONSTITUTIONAL LAW 1-38 (12th ed. 1991); For expositions on the legitimacy 

of judicial review, see L. HAND, THE BILL OF RIGHTS (1958); H. WECHSLER, PRINCIPLES, POLITICS, AND FUNDAMENTAL LAW—SELECTED ESSAYS 1-15 (1961); A. 

BICKEL, THE LEAST DANGEROUS BRANCH—THE SUPREME COURT AT THE BAR OF

POLITICS 1-33 (1962); R. BERGER, CONGRESS V. THE SUPREME COURT (1969). For an 

extensive historical attack on judicial review, see 2 W. CROSSKEY, POLITICS AND THE

CONSTITUTION IN THE HISTORY OF THE UNITED STATES chs. 27-29 (1953), with which 

compare Hart, Book Review, 67 HARV. L. REV. 1456 (1954). A brief review of the 

ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate over Judicial Review, 1790-1961, in C. BEARD, THE SUPREME COURT AND THE CONSTITUTION 1-34

a matter of individual rights, it ought not be adjudicated. Political 

questions are not restricted to one kind of claim, but the Court frequently has decided separation-of-power cases brought by people in 

their individual capacities. Moreover, the allocation of powers within a branch, just as the separation of powers among branches, is 

designed to safeguard liberty. 609 Finally, the Court was sanguine 

that it could develop ‘‘judicially manageable standards’’ for disposing of origination clause cases, and, thus, it did not view the 

issue as political in that context. 610

In short, the political question doctrine may not be moribund, 

but it does seem applicable to a very narrow class of cases. Significantly, the Court made no mention of the doctrine while resolving 

issues arising from Florida’s recount of votes in the closely contested 2000 presidential election, 611 despite the fact that the Constitution vests in Congress the authority to count electoral votes, 

and further provides for selection of the President by the House of 

Representatives if no candidate receives a majority of electoral 

votes. 612

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. 613 Although it was first asserted in Marbury v. 

736 ART. III—JUDICIAL DEPARTMENT 

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

(1962 reissue of 1938 ed.), and bibliography at 133-149. While much of the debate 

focuses on judicial review of acts of Congress, the similar review of state acts has 

occasioned much controversy as well. 614 5 U.S. (1 Cr.) 137 (1803). A state act was held inconsistent with a treaty in 

Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796). 615 J. Goebel, supra at 60-95. 616 Id. at 96-142. 617M. Farrand, supra at 97-98 (Gerry), 109 (King), 2 id. at 28 (Morris and perhaps Sherman). 73 (Wilson), 75 (Strong, but the remark is ambiguous). 76 (Martin), 

78 (Mason), 79 (Gorham, but ambiguous), 80 (Rutledge), 92-93 (Madison), 248 

(Pinckney), 299 (Morris), 376 (Williamson), 391 (Wilson), 428 (Rutledge), 430 (Madison), 440 (Madison), 589 (Madison); 3 id. at 220 (Martin). The only expressed opposition to judicial review came from Mercer with a weak seconding from Dickinson. 

‘‘Mr. Mercer . . . disapproved of the Doctrine that the Judges as expositors of the 

Constitution should have authority to declare a law void. He thought laws ought to 

be well and cautiously made, and then to be uncontroulable.’’ 2 id. at 298. ‘‘Mr. 

Dickinson was strongly impressed with the remark of Mr. Mercer as to the power 

of the Judges to set aside the law. He thought no such power ought to exist. He 

was at the same time at a loss what expedient to substitute.’’ Id. at 299. Of course, 

the debates in the Convention were not available when the state ratifying conventions acted, so that the delegates could not have known these views about judicial 

review in order to have acted knowingly about them. Views, were, however, expressed in the ratifying conventions recognizing judicial review, some of them being 

uttered by Framers. 2 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON

THE ADOPTION OF THE FEDERAL CONSTITUTION (1836). 131 (Samuel Adams, Massachusetts), 196-197 (Ellsworth, Connecticut). 348, 362 (Hamilton, New York): 445- 

446. 478 (Wilson, Pennsylvania), 3 id. at 324-25, 539, 541 (Henry, Virginia), 480 

(Mason, Virginia), 532 (Madison, Virginia), 570 (Randolph, Virginia); 4 id. at 71 

(Steele, North Carolina), 156-157 (Davie, North Carolina). In the Virginia convention, John Marshall observed if Congress ‘‘were to make a law not warranted by any 

of the powers enumerated, it would be considered by the judge as an infringement 

of the Constitution which they are to guard . . . They would declare it void . . . . To 

what quarter will you look for protection from an infringement on the constitution, 

if you will not give the power to the judiciary? There is no other body that can afford 

such a protection.’’ 3 id. at 553-54. Both Madison and Hamilton similarly asserted 

the power of judicial review in their campaign for ratification. THE FEDERALIST (J.

Cooke ed. 1961). See Nos. 39 and 44, at 256, 305 (Madison), Nos. 78 and 81, at 524- 

530, 541-552 (Hamilton). The persons supporting or at least indicating they thought 

judicial review existed did not constitute a majority of the Framers, but the absence 

of controverting statements, with the exception of the Mercer-Dickinson comments, 

indicates at least 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 

Madison 614 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, 615 and there were several instances known to the Framers of state court invalidation of state legislation as inconsistent 

with state constitutions. 616

Practically all of the framers who expressed an opinion on the 

issue in the Convention appear to have assumed and welcomed the 

existence of court review of the constitutionality of legislation, 617

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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.’’ STATE TRIALS OF

THE UNITED STATES DURING THE ADMINISTRATIONS OF WASHINGTON AND ADAMS 412

(F. Wharton ed., 1849). 

Madison’s subsequent changes of position are striking. His remarks in the 

Philadelphia Convention, in the Virginia ratifying convention, and in The Federalist, cited above, all unequivocally favor the existence of judicial review. And in 

Congress arguing in support of the constitutional amendments providing a bill of 

rights, he observed: ‘‘If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of 

those rights; they will be an impenetrable bulwark against every assumption of 

power in the Legislature or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights,’’ 1 ANNALS OF CONGRESS 457 (1789); 5 WRITINGS OF JAMES MADISON 385 (G. Hunt ed., 1904). Yet, in a private letter in 1788, he wrote: ‘‘In the state 

constitutions and indeed in the federal one also, no provision is made for the case 

of a disagreement in expounding them; and as the courts are generally the last in 

making the decision, it results to them by refusing or not refusing to execute a law, 

to stamp it with the final character. This makes the Judiciary Department paramount in fact to the legislature, which was never intended and can never be proper.’’ Id. at 294. At the height of the dispute over the Alien and Sedition Acts, Madison authored a resolution ultimately passed by the Virginia legislature which, 

though milder, and more restrained than one authored by Jefferson and passed by 

the Kentucky legislature, asserted the power of the States, though not of one State 

or of the state legislatures alone, to ‘‘interpose’’ themselves to halt the application 

of an unconstitutional law. 3 I. BRANT, JAMES MADISON—FATHER OF THE CONSTITUTION, 1787-1800 460-464, 467-471 (1950); Report on the Resolutions of 1798, 6 

Writings of James Madison, op. cit., 341-406. Embarrassed by the claim of the 

nullificationists in later years that his resolution supported their position, Madison 

distinguished his and their positions and again asserted his belief in judicial review. 

6 I. Brant, supra, 481-485, 488-489. 

The various statements made and positions taken by the Framers have been 

culled and categorized and argued over many times. For a recent compilation reviewing the previous efforts, see R. Berger, supra, chs. 3-4. 618Thus, the Justices on circuit refused to adminster a pension act on grounds 

of its unconstitutionally, see Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), and supra, 

‘‘Finality of Judgment as an Attribute of Judicial Power’’. Chief Justice Jay and 

other Justices wrote that the imposition of circuit duty on Justices was unconstitutional, although they never mailed the letter, supra in Hylton v. United States, 3 

U.S. (3 Dall.) 171 (1796), a feigned suit, the constitutionality of a federal law was 

argued before the Justices and upheld on the merits, in Ware v. Hylton, 3 U.S. (3 

Dall.) 199 (1797), a state law was overturned, and dicta in several opinions asserted 

the principle. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (Justice Iredell), 

and several Justices on circuit, quoted in J. Goebel, supra at 589-592. 619 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 

and prior to Marbury the power seems very generally to have been 

assumed to exist by the Justices themselves. 618 In enacting the Judiciary Act of 1789, Congress explicitly made provision for the exercise of the power, 619 and in other debates questions of constituVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00111 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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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 ... .’’ 620See in particular the debate on the President’s removal powers, discussed 

supra, ‘‘The Removal Power’’ with statements excerpted in R. Berger, supra at 144- 

150. Debates on the Alien and Sedition Acts and on the power of Congress to repeal 

the Judiciary Act of 1801 similarly saw recognition of judicial review of acts of Congress. C. Warren, supra at 107-124. 621 5 U.S. (1 Cr.) 137 (1803). 622THE FEDERALIST, Nos. 78 and 81 (J. Cooke ed. 1961), 521-530, 541-552. 623 Id., No. at 78, 525. 624 1 Stat. 73, 80. 

tionality and of judicial review were prominent. 620 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 

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 621 had

been largely anticipated by Hamilton. 622 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.’’ 623

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, 624

which Marbury, and ultimately the Supreme Court, interpreted to 

authorize the Court to issue writs of mandamus in suits in its 

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625The 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. 626Marbury v. Madison, 5 U.S. (1 Cr.) 137, 173-180 (1803). For a classic treatment of Marbury, see Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 

DUKE L. J. 1. 627 5 U.S. at 176. One critic has written that by this question Marshall ‘‘had already begged the question-in-chief, which was not whether an act repugnant to the 

Constitution could stand, but who should be empowered to decide that the act is 

repugnant.’’ A. Bickel, supra at 3. Marshall, however, soon reached this question, 

though more by way of assertion than argument. 5 U.S. (1 Cr.) at 177-78. 628 5 U.S. at 176-77. 

original jurisdiction. 625 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. 626

‘‘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.’’ 627 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.’’ 628 ‘‘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 

740 ART. III—JUDICIAL DEPARTMENT 

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629 5 U.S. at 177-78. 

630 5 U.S. at 178. 

631 5 U.S. at 178. The reference is, of course, to the first part of clause 1, § 2, 

Art. III: ‘‘The judicial power shall extend to all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be 

made, under their Authority... .’’ Compare A. Bickel, supra at 5-6, with R. Berger, 

supra at 189-222. 

632 5 U.S. at 179. 

633 5 U.S. at 179-80. The oath provision is contained in Art. VI, cl. 3. Compare A. Bickel, supra at 7-8, with R. Berger, supra at 237-244. 

634 5 U.S. at 180. Compare A. Bickel, supra at 8-12, with R. Berger, supra at 

223-284.

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.’’ 629 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. 630

The Chief Justice then turned from the philosophical justification for judicial review as arising from the very concept of a written 

constitution, to specific clauses of the Constitution. The judicial 

power, he observed, was extended to ‘‘all cases arising under the 

constitution.’’ 631 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.’’ 632 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. 633 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. 634

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 

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635 E. CORWIN, THE DOCTRINE OF JUDICIAL REVIEW 75-78 (1914); Nelson, Changing Conceptions of Judicial Review: The Evolution of Constitution Theory in the 

State, 1790-1860, 120 U. PA. L. REV. 1166 (1972). 636 2 W. Crosskey, supra at 989. See the famous remark of Holmes: ‘‘I do not 

think the United States would come to an end if we lost our power to declare an 

Act of Congress void. I do think the Union would be imperiled if we could not make 

that declaration as to the laws of the several States.’’ O. HOLMES, COLLECTED LEGAL

PAPERS 295-296 (1921). 637 1 Stat. 73, 85, quoted supra. 638Ware v. Hylton, 3 U.S. (3 Dall.) 190 (1796). 639Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810). The case came to the Court by 

appeal from a circuit court and not from a state court under § 25. Famous early 

cases coming to the Court under § 25 in which state laws were voided included 

Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819); and McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). 640 14 U.S. (1 Wheat) 304 (1816). 641 19 U.S. (6 Wheat,) 264 (1821). 

lation under local constitutions made rapid progress and was securely established in all States by 1850. 635

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, 636 to effectuate which Congress enacted the famous § 25 of the Judiciary 

Act of 1789. 637 Five years before Marbury v. Madison, the Court 

held invalid a state law as conflicting with the terms of a treaty, 638

and seven years after Chief Justice Marshall’s opinion a state law 

was voided as conflicting with the Constitution. 639

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 640 and in Cohens v. Virginia. 641 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 

742 ART. III—JUDICIAL DEPARTMENT 

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

642 19 U.S. at 379. 643 19 U.S. at 422-23. Justice Story traversed much of the same ground in Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). In Ableman v. Booth, 62 U.S. 

(21 How.) 506 (1859), the Wisconsin Supreme Court had declared an act of Congress 

invalid and disregarded a writ of error from the Supreme Court, raising again the 

Virginia arguments. Chief Justice Taney emphatically rebuked the assertions on 

grounds both of dual sovereignty and national supremacy. His emphasis on the indispensability of the federal judicial power to maintain national supremacy, to protect the States from national encroachments, and to make the Constitution and laws 

of the United States uniform all combine to enhance the federal judicial power to 

a degree perhaps beyond that envisaged even by Story and Marshall. As late as Williams v. Bruffy, 102 U.S. 248 (1880), the concepts were again thrashed out with the 

refusal of a Virginia court to enforce a mandate of the Supreme Court. And see Cooper v. Aaron, 358 U.S. 1 (1958). 644The six forms, or ‘‘modalities’’ as he refers to them, are drawn from P. 

BOBBITT, CONSTITUTIONAL FATE—THEORY OF THE CONSTITUTION (1982); P. 

BOBBITT, CONSTITUTIONAL INTERPRETATION (1991). Of course, other scholars may 

have different categories, but these largely overlap these six forms. E.g., Fallon, A

Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. 

REV.1189 (1987); Post, Theories of Constitutional Interpretation, in LAW AND THE

ORDER OF CULTURE 13-41 (R. Post ed., 1991). 

construction of either.’’ 642 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.’’ 643

Limitations on the Exercise of Judicial Review 

Constitutional Interpretation.—Under a written constitution, which is law and is binding on government, the practice of judicial review raises questions of the relationship between constitutional interpretation and the Constitution—the law 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. 644 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 

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645 Among the vast writing, see, e.g., R. BORK, THE TEMPTING OF AMERICA

(1990); J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980);

L. TRIBE & M. DORF, ON READING THE CONSTITUTION (1991); H. WELLINGTON, INTERPRETING THE CONSTITUTION (1990); Symposium, Constitutional Adjudication and 

Democratic Theory, 56 N. Y. U. L. REV. 259 (1981); Symposium, Judicial Review and 

the Constitution—The Text and Beyond, 8 U. DAYTON L. REV. 43 (1983); Symposium, 

Judicial Review Versus Democracy, 42 OHIO ST. L.J. 1 (1981); Symposium, Democracy and Distrust: Ten Years Later, 77 VA. L. REV. 631 (1991). See also Farber, The

Originalism Debate: A Guide for the Perplexed, 49 OHIO ST. L.J. 1085 (1989). 646This mode is most strongly association with C. BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969). 647 E.g., Meese, The Attorney General’s View of the Supreme Court: Toward a Jurisprudence of Original Intention, 45 PUB. ADMIN. REV.701 (1985); Addresses—Construing the Constitution, 19 U. C. DAVIS L. REV. 1 (1985), containing addresses by 

Justice Brennan, id. at 2, Justice Stevens, id. at 15, and Attorney General Meese. 

Id. at 22. See also Rehnquist, The Notion of a Living Constitution, 54 TEX. L. 

REV. 693 (1976). 

648 5 U.S. (1 Cr.) 137 (1803). 

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. 645

Using a structural argument, one seeks to infer structural rules 

from the relationships that the Constitution mandates. 646 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. 647 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 648 is the thought that with regard to cases 

744 ART. III—JUDICIAL DEPARTMENT 

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649 19 U.S. (6 Wheat.) 264, 404, (1821). 650See, 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). 651 ‘‘Judicial power, as contradistinguished from the powers of the law, has no 

existence. Courts are the mere instruments of the law, and can will nothing.’’ 

Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824) (Chief Justice Marshall). See also Justice Roberts in United States v. Butler, 297 U.S. 1, 62- 

63 (1936). 652The 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). 653Powell 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). 654 28 U.S.C. §§ 1254-1257. See F. Frankfurter & J. Landis, supra at ch. 7. ‘‘The 

Supreme Court is not, and never has been, primarily concerned with the correction 

of errors in lower court decisions. In almost all cases within the Court’s appellate 

jurisdiction, the petitioner has already received one appellate review of his case . . . . 

If we took every case in which an interesting legal question is raised, or our prima 

facie impression is that the decision below is erroneous, we could not fulfill the Constitutional and statutory responsibilities placed upon the Court. To remain effective, 

the Supreme Court must continue to decide only those cases which present quesmeeting jurisdictional standards, the Court is obligated to take and 

decide them. Chief Justice Marshall spelled the thought out in 

Cohens v. Virginia: 649 ‘‘It is most true that this Court will not take 

jurisdiction if it should not: but it is equally true, that it must take 

jurisdiction if it should. The judiciary cannot, as the legislature 

may, avoid a measure because it approaches the confines of the 

constitution. We cannot pass it by because it is doubtful. With 

whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no 

more right to decline the exercise of jurisdiction which is given, 

than to usurp that which is not given. The one or the other would 

be treason to the constitution.’’ As the comment recognizes, because 

judicial review grows out of the fiction that courts only declare 

what the law is in specific cases 650 and are without will or discretion, 651 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. 652 But, although there are hints of Chief Justice Marshall’s activism in some modern cases, 653 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 also evident 

with some appeals. 654

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tions 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). 655See Justice Brandeis’ concurring opinion in Ashwander v. TVA, 297 U.S. 288, 

346 (1936). And contrast A. Bickel, supra at 111-198, with Gunther, The Subtle 

Vices of the ‘Passive Virtues’—A Comment on Principle and Expediency in Judicial 

Review, 64 COLUM. L. REV. 1 (1964). 656 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 & Nashville 

R.R., 213 U.S. 175, 191 (1909); Carter v. Carter Coal Co., 298 U.S. 238, 325 (1936); 

Coffman v. Breeze Corp., 323 U.S. 316, 324-325 (1945); Spector Motor Service v. 

McLaughlin, 323 U.S. 101, 105 (1944); Alma Motor v. Timken Co., 329 U.S. 129 

(1946). Judicial restraint as well as considerations of comity underlie the Court’s abstention doctrine when the constitutionality of state laws is challenged. 657 Rescue Army v. Municipal Court, 331 U.S. 549, 571 (1947). 

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. 655

The Doctrine of ‘‘Strict Necessity’’.—The Court has repeatedly declared that it will decide constitutional issues only if strict 

necessity compels it to do so. Thus, constitutional questions will not 

be decided in broader terms than are required by the precise state 

of facts to which the ruling is to be applied, nor if the record presents some other ground upon which to decide the case, nor at the 

instance of one who has availed himself of the benefit of a statute 

or who fails to show he is injured by its operation, nor if a construction of the statute is fairly possible by which the question may 

be fairly avoided. 656

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.’’ 657

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658The Origin and Scope of the American Doctrine of Constitutional Law, in J. 

THAYER, LEGAL ESSAYS 1, 21 (1908). 659See Justices Chase and Iredell in Calder v. Bull, 3 U.S. (3 Dall.) 386, 395, 

399 (1798). 660 E.g., Flemming v. Nestor, 363 U.S. 603, 611 (1960). 661 ‘‘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). 662Kovacs v. Cooper, 336 U.S. 77, 88 (1949). Justice Frankfurter’s concurrence, 

id. at 89-97, is a lengthy critique and review of the ‘‘preferred position’’ cases up 

to that time. The Court has not used the expression in recent years but the worth 

it attributes to the values of free expression probably approaches the same result. 

Today, the Court’s insistence on a ‘‘compelling state interest’’ to justify a governmental decision to classify persons by ‘‘suspect’’ categories, such as race, Loving v. 

Virginia, 388 U.S. 1 (1967), or to restrict the exercise of a ‘‘fundamental’’ interest, 

such as the right to vote, Kramer v. Union Free School District, 395 U.S. 621 (1969), 

or the right to travel, Shapiro v. Thompson, 394 U.S. 618 (1969), clearly imports 

presumption of unconstitutionality. 

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.’’ 658 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 659 and of 

modern adherence. 660 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; 661 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. 662

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, 

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663 ‘‘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, 10 U.S. (6 Cr.) 

87 (1810); United States v. O’Brien, 391 U.S. 367 (1968); Palmer v. Thompson, 403 

U.S. 217 (1971). Yet an intent to discriminate is a requisite to finding at least some 

equal protection violations, Washington v. Davis, 426 U.S. 229 (1976); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977), and a secular or religious purpose is one of the parts of the tripartite test under the establishment clause. Committee for Pub. Educ. and Religious Liberty v. Regan, 444 U.S. 

646, 653 (1980), and id. at 665 (dissent). Other constitutional decisions 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). 664 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. 665 E.g., Lochner v. New York, 198 U.S. 45 (1905); United States v. Butler, 297 

U.S. 1 (1936). 666Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 270 (1827). See also Fletcher

v. Peck, 10 U.S. (6 Cr.) 87, 128 (1810); Legal Tender Cases, 79 U.S. (12 Wall.) 457, 

531 (1871). 667Munn 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). 668 E.g., United States v. Robel, 389 U.S. 258 (1967); United Mine Workers v. 

Illinois State Bar Ass’n, 389 U.S. 217 (1967). But see McGowan v. Maryland, 366 

policy, or wisdom, 663 or with its concurrence with natural justice, 

fundamental principles of government, or the spirit of the Constitution. 664 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. 665

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.’’ 666 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. 667 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. 668

748 ART. III—JUDICIAL DEPARTMENT 

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

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. 669 Rust v. Sullivan, 500 U.S. 173, 190-191 (1991); Public Citizen v. Department 

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). 670 E.g., Michaelson v. United States, 266 U.S. 42 (1924) (narrow construction 

of Clayton Act contempt provisions to avoid constitutional questions): United States 

v. Harriss, 347 U.S. 612 (1954) (lobbying act): United States v. Seeger, 380 U.S. 163 

(1965): Welsh v. United States, 398 U.S. 333 (1970) (both involving conscientious 

objection statute). 671 United States v. Locke, 471 U.S. 84, 96 (1985) (quoting Moore Ice Cream Co. 

v. Rose, 289 U.S. 373, 379 (1933)). 672 Rust v. Sullivan, 500 U.S. 173, 191 (1991); but compare id. at 204-07 (Justice 

Blackmun dissenting), and 223-225 (Justice O’Connor dissenting). See also Peretz v. 

United States, 501 U.S. 923, 929-930 (1991). 673 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). 674 Carter v. Carter Coal Co., 298 U.S. 238, 312-16 (1936). See also, id. at 321- 

24 (Chief Justice Hughes dissenting). 

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, 669 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. 670 Of course, the Court stresses 

that ‘‘[w]e cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.’’ 671 The

maxim is not followed if the provision would survive constitutional 

attack or if the text is clear. 672 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. 673 Statutes today ordinarily expressly provide for 

separability, but it remains for the courts in the last resort to determine whether the provisions are separable. 674

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 

ART. III—JUDICIAL DEPARTMENT 749

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

675 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408 (1932) (Justice 

Brandeis dissenting). For recent arguments with respect to overruling or not overruling previous decisions, see the self-consciously elaborate opinion for a plurality 

in Planned Parenthood v. Casey, 505 U.S. 833, 854-69 (1992) (Justices O’Connor, 

Kennedy, and Souter) (acknowledging that as an original matter they would not 

have decided Roe v. Wade, 410 U.S. 113 (1973), as the Court did and that they 

might consider it wrongly decided, but nonetheless applying the principles of stare

decisis—they stressed the workability of the case’s holding, the fact that no other 

line of precedent had undermined Roe, the vitality of that case’s factual 

underpinnings, the reliance on the precedent in society, and the effect upon the 

Court’s legitimacy of maintaining or overruling the case). See id. at 953-66 (Chief 

Justice Rehnquist concurring in part and dissenting in part), 993-1001 (Justice 

Scalia concurring in part and dissenting in part). See also Payne v. Tennessee, 501 

U.S. 808, 827-30 (1991) (suggesting, inter alia, that reliance is relevant in contract 

and property cases), and id. at 835, 842-44 (Justice Souter concurring), 844, 848- 

56 (Justice Marshall dissenting). 676 Helvering v. Hallock, 309 U.S. 106, 110 (1940) (Justice Frankfurter for 

Court). See also Coleman v. Alabama, 399 U.S. 1, 22 (1970) (Chief Justice Burger 

dissenting). But see id. at 19 (Justice Harlan concurring in part and dissenting in 

part); Williams v. Florida, 399 U.S. 78, 117-119 (1970) (Justice Harlan concurring 

in part and dissenting in part). Recent discussions of and both applications of and 

refusals to apply stare decisis may be found in Hohn v. United States, 524 U.S. 236, 

251-52 (1998), and id. at 260-63 (Justice Scalia dissenting); State Oil Co. v. Khan, 

522 U.S. 3, 20-2 (1997); Agostini v. Felton, 521 U.S. 203, 235-36 (1997), and id. at 

523-54 (Justice Souter dissenting); United States v. IBM Corp., 517 U.S. 843, 854-56 

(1996) (noting principles of following precedent and declining to consider overturning an old precedent when parties have not advanced arguments on the point), 

with which compare id. at 863 (Justice Kennedy dissenting) (arguing that the 

United States had presented the point and that the old case ought to be overturned); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 231-35 (1996) (plurality 

opinion) (discussing stare decisis, citing past instances of overrulings, and overruling 

1990 decision), with which compare the dissents, id. at 242, 264, 271; Seminole 

Tribe of Florida v. Florida, 517 U.S. 44, 61-73 (1996) (discussing policy of stare decisis, why it should not be followed with respect to a 1989 decision, and overruling 

that precedent), with which compare the dissents, id. at 76, 100. Justices Scalia and 

Thomas have argued for various departures from precedent. E.g., Oklahoma Tax 

Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 200-01 (1995) (Justice Scalia concurring) (negative commerce jurisprudence); Colorado Republican Campaign Comm. v. 

FEC, 518 U.S. 604, 631 (1996) (Justice Thomas concurring in part and dissenting 

in part) (rejecting framework of Buckley v. Valeo and calling for overruling of part 

of case). Compare id. at 626 (Court notes those issues not raised or argued). 677 157 U.S. 429, 574-579 (1895). 678See 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 

the judicial function.’’ 675 Stare decisis is a principle of policy, not 

a mechanical formula of adherence to the latest decision ‘‘however 

recent and questionable, when such adherence involves collision 

with a prior doctrine more embracing in its scope, intrinsically 

sounder, and verified by experience.’’ 676 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. 677 Since then, more than 200 decisions have 

been overturned, 678 and the merits of stare decisis seem more often 

750 ART. III—JUDICIAL DEPARTMENT 

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

easily revise those decisions, but compare id. at 175 n.1, with id. at 190-205 (Justice 

Brennan concurring in the judgment in part and dissenting in part). See also Flood

v. Kuhn, 407 U.S. 258 (1972). 

679 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). 

680 Notice that in Planned Parenthood v. Casey, 505 U.S. 833 (1992), while the 

Court purported to uphold and retain the ‘‘central meaning’’ of Roe v. Wade, it overruled several aspects of that case’s requirements. 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. at 361 (Justice Blackmun concurring.) 

681Terminiello v. City of Chicago, 337 U.S. 1, 11 (1949) (dissenting). 

682 B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 141 (1921). 

683 Compare Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (Justice Douglas), 

with id. at 507 (Justice Black). 

684West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 646 (1943) (dissenting).

celebrated in dissents than in majority opinions. 679 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. 680

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.’’ 681 ‘‘[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 

order in the social life.’’ 682 All Justices will, of course, claim adherence to proper restraint, 683 but in some cases at least, such as Justice Frankfurter’s dissent in the Flag Salute Case, 684 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. 

ART. III—JUDICIAL DEPARTMENT 751

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

685 Cohens v. Virginia, 19 U.S. (6 Wheat,) 264, 378 (1821). 686M. Farrand, supra at 22, 211-212, 220, 244; 2 id. at 146-47, 186-87. 687 Id. at 423-24, 430, 431. 688 1 Stat. 73. The district courts were given cognizance of ‘‘suits for penalties 

and forfeitures incurred, under the laws of the United States’’ and ‘‘of all causes 

where an alien sues for a tort only in violation of the law of nations or a treaty 

of the United States ... .’’ Id. at 77. Plenary federal question jurisdiction was conferred by the Act of February 13, 1801,§ 11, 2 Stat. 92, but this law was repealed 

by the Act of March 8, 1802, 2 Stat. 132. On § 25 of the 1789 Act, providing for 

appeals to the Supreme Court from state court constitutional decisions, see supra. 689 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. 690 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. 691 Act of March 3, 1875, § 1, 18 Stat. 470, now 28 U.S.C. § 1331(a). The classic 

treatment of the subject and its history is F. Frankfurter & J. Landis, supra. 

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. 685 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; 686 such cases involving the Constitution and treaties were added fairly late in the Convention as floor 

amendments. 687 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. 688 Although there were a few 

jurisdictional provisions enacted in the early years, 689 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, 690 and then in 1875 conferred general federal question jurisdiction on the lower federal courts. 691 Since that time, the trend 

generally has been toward conferral of ever-increasing grants of juVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00125 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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692For a brief summary, see Hart & Wechsler, supra at 960-66. 693 28 U.S.C. § 1331(a). The original Act was worded slightly differently. 694Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). See

also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 379 (1821). 

695 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS § 17 (4th ed. 1983). 696See generally Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 

(1986); Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1 

(1983). 697 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). 698Louisville & N.R.R. v. Mottley, 211 U.S. 149 (1908). See Skelly Oil Co. v. 

Phillips Petroleum Co., 339 U.S. 667 (1950); Phillips Petroleum Co. v. Texaco, Inc., 

415 U.S. 125 (1974). 699Such was the rule derived from Osborn v. Bank of the United States, 22 U.S. 

(9 Wheat.) 738 (1824). See Franchise Tax Board v. Construction Laborers Vacation 

Trust, 463 U.S. 1 (1983); Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 

804 (1986). 700 American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916). 

Compare Albright v. Teas, 106 U.S. 613 (1883), with People of Puerto Rico v. Russell 

risdiction to enforce the guarantees recognized and enacted by Congress. 692

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,’’ 693 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. 694 The result was probably to 

accept more jurisdiction than Congress had intended to convey. 695

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. 696 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. 697 Plaintiffs may not anticipate that defendants will raise a federal question in answer to the 

action. 698 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. 699

Many suits will present federal questions because a federal law 

creates the action. 700 Perhaps Justice Cardozo presented the most 

ART. III—JUDICIAL DEPARTMENT 753

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

& 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). 

701Gully v. First National Bank in Meridian, 299 U.S. 109, 117 (1936). 

702 299 U.S. at 112-13. Compare Wheeldin v. Wheeler, 373 U.S. 647 (1963), 

with Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). See also J. I. Case 

Co. v. Borak, 377 U.S. 426 (1964): Smith v. Kansas City Title & Trust Co., 255 U.S. 

180 (1921). 

703For 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).

704 E.g., Pacific Railroad Removal Cases, 115 U.S. 1 (1885), and see id. at 24 

(Chief Justice Waite dissenting). 

705 § 12, 1 Stat. 79. 

706The 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, supra at 1192-94. See 28 U.S.C. §§ 1442, 1442a. 

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].’’ 701

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.... 702

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. 703 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. 704

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, 705 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. 706 The 1875 Act conferring general federal question jurisdiction on the federal courts provided for removal of such cases by eiVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00127 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
754 ART. III—JUDICIAL DEPARTMENT 

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707 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. 708 28 U.S.C. § 1441. 709 28 U.S.C. § 1443. 710Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 347-351 (1816). Story was 

not here concerned with the constitutionality of removal but with the constitutionality of Supreme Court review of state judgments. 711 Chicago & N.W. Ry. v. Whitton’s Administrator, 80 U.S. (13 Wall.) 270 

(1872). Removal here was based on diversity of citizenship. See also The Moses Taylor, 71 U.S. (4 Wall.) 411, 429-430 (1867); The Mayor v. Cooper, 73 U.S. (6 Wall.) 

247 (1868). 712 100 U.S. 257 (1880). 713 100 U.S. at 263-64. 

ther party, subject only to the jurisdictional amount limitation. 707

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. 708 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. 709

The constitutionality of congressional provisions for removal 

was challenged and readily sustained. Justice Story analogized removal to a form of exercise of appellate jurisdiction, 710 and a later 

Court saw it as an indirect mode of exercising original jurisdiction 

and upheld its constitutionality. 711 In Tennessee v. Davis, 712 which

involved a state attempt to prosecute a federal internal revenue 

agent who had killed a man while seeking to seize an illicit distilling apparatus, the Court invoked the right of the National Government to defend itself against state harassment and restraint. 

The power to provide for removal was discerned in the necessary 

and proper clause authorization to Congress to pass laws to carry 

into execution the powers vested in any other department or officer, here the judiciary. 713 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 

ART. III—JUDICIAL DEPARTMENT 755

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

714 100 U.S. at 264-65. 715Willingham v. Morgan, 395 U.S. 402 (1969). See also Maryland v. Soper, 270 

U.S. 9 (1926). Removal by a federal officer must be predicated on the allegation of 

a colorable federal defense. Mesa v. California, 489 U.S. 121 (1989). However, a federal agency is not permitted to remove under the statute’s plain meaning. International Primate Protection League v. Tulane Educ. Fund, 500 U.S. 72 (1991). 716Georgia 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). 717 22 U.S. (9 Wheat.) 738 (1824). 718The First Bank could not sue because it was not so authorized. Bank of the 

United States v. Deveaux, 9 U.S. (5 Cr.) 61 (1809). The language, which Marshall 

interpreted as conveying jurisdiction, was long construed simply to give a party the 

right to sue and be sued without itself creating jurisdiction,. Bankers Trust Co. v. 

Texas & P. Ry., 241 U.S. 295 (1916), but in American National Red Cross v. S. G., 

505 U.S. 247 (1992), a 5-to-4 decision, the Court held that when a federal statutory 

charter expressly mentions the federal courts in its ‘‘sue and be sued’’ provision the 

charter creates original federal-question jurisdiction as well, although a general authorization to sue and be sued in courts of general jurisdiction, including federal 

courts, without expressly mentioning them, does not confer jurisdiction. 719 115 U.S. 1 (1885). 

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.’’ 714 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. 715 Other removal statutes, 

notably the civil rights removal statute, have not been so broadly 

interpreted. 716

Corporations Chartered by Congress.—In Osborn v. Bank 

of the United States, 717 Chief Justice Marshall seized upon the authorization for the Bank to sue and be sued as a grant by Congress 

to the federal courts of jurisdiction in all cases to which the bank 

was a party. 718 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 719 held that tort actions against railroads with federal charters could be removed to 

federal courts solely on the basis of federal incorporation. In a seVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00129 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
756 ART. III—JUDICIAL DEPARTMENT 

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

720 § 4, 22 Stat. 162. 721 § 5, 38 Stat. 803. 722See 28 U.S.C. § 1349. 723 § 301, 61 Stat. 156 (1947), 29 U.S.C. § 185. 724Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957). Earlier the 

Court had given the section a restricted reading in Association of Employees v. Westinghouse Electric Corp., 348 U.S. 437 (1955), at least in part because of constitutional doubts that § 301 cases in the absence of diversity of citizenship presented 

a federal question sufficient for federal jurisdiction. Id. at 449-52, 459-61 (opinion 

of Justice Frankfurter). In Lincoln Mills, the Court resolved this difficulty by ruling 

that federal law was at issue in § 301 suits and thus cases arising under § 301 presented federal questions. 353 U.S. at 457. The particular holding of Westinghouse, that no jurisdiction exists under § 301 for suits to enforce personal rights of 

employees claiming unpaid wages, was overturned in Smith v. Evening News Ass’n, 

371 U.S. 195 (1962). 725 Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962). 726Teamsters 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). 727For 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 Ry. v. Rigsby, 241 U.S. 33 (1916), the Court began broadly to conries of acts, Congress deprived national banks of the right to sue 

in federal court solely on the basis of federal incorporation in 

1882, 720 deprived railroads holding federal charters of this right in 

1915, 721 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. 722

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. 723 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. 724 State courts are not disabled from hearing actions brought 

under the section, 725 but they must apply federal law. 726 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. 727

ART. III—JUDICIAL DEPARTMENT 757

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

strue statutes to infer private actions only with J. I. Case Co. v. Borak, 377 U.S. 

426 (1964). See Cort v. Ash, 422 U.S. 66 (1975). More recently, influenced by a separation of powers critique of implication by Justice Powell, the Court drew back and 

asserted 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 Ass’n, 

453 U.S. 1 (1981); Merrill, Lynch v. Curran, 456 U.S. 353 (1982); Thompson v. 

Thompson, 484 U.S. 174 (1988); Karahalios v. National Fed’n of Fed. Employees, 

489 U.S. 527 (1989). 

The Court appeared more ready to infer private causes of action for constitutional violations, Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); Davis 

v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980), but it has 

retreated here as well, 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). See also Correction Servs. Corp. v. Malesko, 534 U.S. 61 (2001) (declining to extend Bivens to allow recovery against a private contractor of a halfway 

house). ‘‘Federal common law’’ may exist in a number of areas where federal interests are involved and federal courts may take cognizance of such suits under their 

‘‘arising under’’ jurisdiction. E.g., Illinois v. City of Milwaukee, 406 U.S. 91 (1972); 

International Paper Co. v. Ouellette, 479 U.S. 481 (1987). 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. Illinois, 451 U.S. 304 (1981). Finally, federal courts have federal 

question jurisdiction of claims created by state law if there exists an important necessity for an interpretation of an act of Congress. Smith v. Kansas City Title & 

Trust Co., 255 U.S. 180 (1921). 

728 28 U.S.C. § 1343(3). The cause of action to which this jurisdictional grant applies is 42 U.S.C. § 1983, making liable and subject to other redress any person who, 

acting under color of state law, deprives any person of any rights, privileges, or immunities secured by the Constitution and laws of the United States. For discussion 

of the history and development of these two statutes, see Monroe v. Pape, 365 U.S. 

167 (1961); Lynch v. Household Finance Corp., 405 U.S. 538 (1972); Monell v. New 

York City Dep’t of Social Services, 436 U.S. 658 (1978), Chapman v. Houston Welfare Rights Org., 441 U.S. 600 (1979); Maine v. Thiboutot, 448 U.S. 1 (1980). Although the two statutes originally had the same wording in respect to ‘‘the Constitution and laws of the United States,’’ when the substantive and jurisdictional aspects 

were separated and codified, § 1983 retained the all-inclusive ‘‘laws’’ provision, while 

§ 1343(3) read ‘‘any Act of Congress providing for equal rights.’’ The Court has interpreted the language of the two statutes literally, so that while claims under laws 

of the United States need not relate to equal rights but may encompass welfare and 

regulatory laws, Maine v. Thiboutot; but see Middlesex County Sewerage Auth. v. 

National Sea Clammers Assn., 453 U.S. 1 (1981), such suits if they do not spring 

from an act providing for equal rights may not be brought under § 1343(3). Chapman v. Houston Welfare Rights Org., supra. This was important when there was 

a jurisdictional amount provision in the federal question statute, but is of little significance today. 

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. 728 Because it contains no juVerDate Aug<04>2004 06:32 Sep 15, 2004 Jkt 077500 PO 00000 Frm 00131 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
758 ART. III—JUDICIAL DEPARTMENT 

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

729See 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). 730 28 U.S.C. § 1331 was amended in 1976 and 1980 to eliminate the jurisdictional amount requirement. Pub. L. 94-574, 90 Stat. 2721; Pub. L. 96-486, 94 Stat. 

2369.731Patsy 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). 732Thus, 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. 733 Civil Rights Attorneys’ Fees Award Act of 1976, Pub. L. 94-559, 90 Stat. 

2641, amending 42 U.S.C. § 1988. See Hutto v. Finney, 437 U.S. 678 (1978); Maine 

v. Thiboutot, 448 U.S. 1 (1980). 734 Civil Rights of Institutionalized Persons Act, Pub. L. 96-247, 94 Stat. 349 

(1980), 42 U.S.C. § 1997 et seq. 735 E.g., Parratt v. Taylor, 451 U.S. 527 (1981); Ingraham v. Wright, 430 U.S. 

651 (1977). 736Maine v. Thiboutot, 448 U.S. 1 (1980). 737Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); Hagans v. 

Lavine, 415 U.S. 528, 534-543 (1974). 

risdictional amount provision 729 (while the general federal question 

statute until recently did) 730 and because the Court has held inapplicable the judicially-created requirement that a litigant exhaust 

his state remedies before bringing federal action, 731 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. 732

Congress has encouraged utilization of the two statutes by providing for attorneys’ fees under § 1983, 733 and by enacting related 

and specialized complementary statutes. 734 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 

of claims that may be brought in federal courts. 735 It should be 

noted that § 1983 and § 1343(3) need not always go together, inasmuch as § 1983 actions may be brought in state courts. 736

Pendent Jurisdiction.—Once jurisdiction has been acquired 

through allegation of a federal question not plainly wanting in substance, 737 a federal court may decide any issue necessary to the 

disposition of a case, notwithstanding that other non-federal quesVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00132 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
ART. III—JUDICIAL DEPARTMENT 759

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

738Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 822-28 (1824); 

Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175 (1909); Hurn v. Oursler, 289 

U.S. 238 (1933); United Mine Workers v. Gibbs, 383 U.S. 715 (1966). 739Osborn v. Bank, 22 U.S. at 725. This test replaced a difficult-to-apply test 

of Hurn v. Oursler, 289 U.S. 238, 245-46 (1933). See also Kokkonen v. Guardian Life 

Ins. Co., 511 U.S. 375 (1994); Peacock v. Thomas, 516 U.S. 349 (1996) (both cases 

using the new vernacular of ‘‘ancillary jurisdiction’’). 740Siler v. Louisville & Nashville R. Co., 213 U.S. 175 (1909); Greene v. Louisville & Interurban R.R., 244 U.S. 499 (1917); Hagans v. Lavine, 415 U.S. 528, 546- 

550 (1974). In fact, it may be an abuse of discretion for a federal court to fail to 

decide on an available state law ground instead of reaching the federal constitutional question. Schmidt v. Oakland Unified School Dist., 457 U.S. 594 (1982) (per

curiam). However, narrowing previous law, the Court held in Pennhurst State 

School & Hosp. v. Halderman, 465 U.S. 89 (1984), held that when a pendent claim 

of state law involves a claim that is against a State for purposes of the Eleventh 

Amendment federal courts may not adjudicate it. 741 United Mine Workers v. Gibbs, 383 U.S. 715, 726-727 (1966). 742The initial decision was Freeman v. Howe, 65 U.S. (24 How.) 450 (1861), in 

which federal jurisdiction was founded on diversity of citizenship. 743Moore v. New York Cotton Exchange, 270 U.S. 593 (1926). 

tions of fact and law may be involved therein. 738 ‘‘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.’’ 739 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. 740 But the federal 

court has discretion whether to hear the pendent state claims in 

the proper case. Thus, the trial court should look to ‘‘considerations 

of judicial economy, convenience and fairness to litigants’’ in exercising its discretion and should avoid needless decisions of state 

law. If the federal claim, though substantial enough to confer jurisdiction, was dismissed before trial, or if the state claim substantially predominated, the court would be justified in dismissing the 

state claim. 741

A variant of pendent jurisdiction, sometimes called ‘‘ancillary 

jurisdiction,’’ is the doctrine allowing federal courts to acquire jurisdiction entirely of a case presenting two federal issues, although it 

might properly not have had jurisdiction of one of the issues if it 

had been independently presented. 742 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. 743 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 cogVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00133 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
760 ART. III—JUDICIAL DEPARTMENT 

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

744 Romero v. International Terminal Operating Co., 358 U.S. 354, 380-381 

(1959); Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963). 745 Rosado v. Wyman, 397 U.S. 397, 400-405 (1970). 746 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). 747 Aldinger v. Howard, 427 U.S. 1 (1976). 748 490 U.S. 545 (1989). 749 490 U.S. at 553, 556. 750 Act of Dec. 1, 1990, P. L. 101-650, 104 Stat. 5089, § 310, 28 U.S.C. § 1367. 

In City of Chicago v. International College of Surgeons, 522 U.S. 156 (1998), the 

Court, despite the absence of language making § 1367 applicable, held that the statute gave district courts jurisdiction over state-law claims in cases originating in 

state court and then removed to federal court. 751 National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949); 

Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957); and see the bankruptcy cases, 

nizable only in admiralty would be tried without a jury. 744 And a 

colorable constitutional claim has been held to support jurisdiction 

over a federal statutory claim arguably not within federal jurisdiction. 745

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. 746 While the Supreme Court at first tentatively found some merit in the idea, 747

in Finley v. United States, 748 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. 749 Within the 

year, Congress supplied the affirmative grant, adopting not only 

pendent party jurisdiction but also codifying pendent jurisdiction 

and ancillary jurisdiction under the name of ‘‘supplemental jurisdiction.’’ 750

Thus, these interrelated doctrinal standards now seem wellgrounded.

Protective Jurisdiction.—A conceptually difficult doctrine, 

which approaches the verge of a serious constitutional gap, is the 

concept of protective jurisdiction. Under this doctrine, it is argued 

that in instances in which Congress has legislative jurisdiction, it 

can confer federal jurisdiction, with the jurisdictional statute itself 

being the ‘‘law of the United States’’ within the meaning of Article 

III, even though Congress has enacted no substantive rule of decision and state law is to be applied. Put forward in controversial 

cases, 751 the doctrine has neither been rejected nor accepted by the 

ART. III—JUDICIAL DEPARTMENT 761

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

Schumacher v. Beeler, 293 U.S. 367 (1934); Williams v. Austrian, 331 U.S. 642 

(1947). 752 461 U.S. 480 (1983). 753 E.g., Mesa v. California, 489 U.S. 121, 136-137 (1989) (would present grave 

constitutional problems). 754On § 25, see supra, ‘‘Judicial Review and National Supremacy’’. The present 

statute is 28 U.S.C. § 1257(a), which provides that review by writ of certiorari is

available where the validity of a treaty or statute of the United States is drawn in 

question or where the validity of a statute of any State is drawn in question on the 

ground of its being repugnant to the Constitution, treaties, or laws of the United 

States, or where any title, right, privilege, or immunity is specially set up or claimed 

under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States. Prior to 1988, there was a right to mandatory appeal in cases in which a state court had found invalid a federal statute 

or treaty or in which a state court had upheld a state statute contested under the 

Constitution, a treaty, or a statute of the United States. See the Act of June 25, 

1948, 62 Stat. 929. The distinction between certiorari and appeal was abolished by 

the Act of June 27, 1988, Pub. L. 100-352, § 3, 102 Stat. 662. 755 28 U.S.C. § 1257(a). See R. STERN & E. GRESSMAN, SUPREME COURT PRACTICE ch. 3 (6th ed. 1986). 

Supreme Court. In Verlinden B. V. v. Central Bank of Nigeria, 752

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. 753

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, 754 questions have continued to arise concerning review of state court judgments which go 

directly to the nature and extent of the Supreme Court’s appellate 

jurisdiction. Because of the sensitivity of federal-state relations and 

the delicate nature of the matters presented in litigation touching 

upon them, jurisdiction to review decisions of a state court is dependent in its exercise not only upon ascertainment of the existence of a federal question but upon a showing of exhaustion of 

state remedies and of the finality of the state judgment. Because 

the application of these standards to concrete facts is neither mechanical nor nondiscretionary, the Justices have often been divided 

over whether these requisites to the exercise of jurisdiction have 

been met in specific cases submitted for review by the Court. 

The Court is empowered to review the judgments of ‘‘the highest court of a State in which a decision could be had.’’ 755 This will 

762 ART. III—JUDICIAL DEPARTMENT 

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

756Grovey v. Townsend, 295 U.S. 45, 47 (1935); Talley v. California, 362 U.S. 

60, 62 (1960); Thompson v. City of Louisville, 362 U.S. 199, 202 (1960); Metlakatla 

Indian Community v. Egan, 363 U.S. 555 (1960); Powell v. Texas, 392 U.S. 514, 516, 

517 (1968); Koon v. Aiken, 480 U.S. 943 (1987). In Cohens v. Virginia, 19 U.S. (6 

Wheat.) 264 (1821), the judgment reviewed was that of the Quarterly Session Court 

for the Borough of Norfolk, Virginia. 757Market Street R.R. v. Railroad Comm’n, 324 U.S. 548, 551 (1945). See

also San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621 (1981); Flynt 

v. Ohio, 451 U.S. 619 (1981); Minnick v. California Dep’t of Corrections, 452 U.S. 

105 (1981); Florida v. Thomas, 532 U.S. 774 (2001). 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 to come in 

the lower state courts. 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). 758 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). 759 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). 760Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1874); Black v. Cutter 

Laboratories, 351 U.S. 292 (1956); Wilson v. Loew’s, Inc., 355 U.S. 597 (1958). 

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. 756 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.’’ 757 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. 758

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. 759

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. 760 ‘‘The reason is so obvious that it has rarely 

been thought to warrant statement. It is found in the partitioning 

of power between the state and Federal judicial systems and in the 

limitations of our own jurisdiction. Our only power over state judgments is to correct them to the extent that they incorrectly adjudge 

federal rights. And our power is to correct wrong judgments, not 

ART. III—JUDICIAL DEPARTMENT 763

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

761 Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945). 762 E.g., Howlett v. Rose, 496 U.S. 356, 366 (1990); NAACP v. Alabama ex rel. 

Patterson, 357 U.S. 449, 455 (1958). 763Fox Film Corp. v. Muller, 296 U.S. 207 (1935); Cramp v. Board of Public Instruction, 368 U.S. 278 (1961). 764Wood v. Chesborough, 228 U.S. 672, 676-680 (1913). 765Lynch v. New York ex rel. Pierson, 293 U.S. 52, 54-55 (1934); Williams v. 

Kaiser, 323 U.S. 471, 477 (1945); Durley v. Mayo, 351 U.S. 277, 281 (1956); Klinger 

v. Missouri, 80 U.S. (13 Wall.) 257, 263 (1872); cf. Department of Mental Hygiene 

v. Kirchner, 380 U.S. 194 (1965). 766Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 375-376 (1968). 767Southwestern Bell Tel. Co. v. Oklahoma, 303 U.S. 206 (1938); Raley v. Ohio, 

360 U.S. 423, 434-437 (1959). When there is uncertainty about what the state court 

did, the usual practice was to remand for clarification. Minnesota v. National Tea 

Co., 309 U.S. 551 (1940); California v. Krivda, 409 U.S. 33 (1972). See California

Dept. of Motor Vehicles v. Rios, 410 U.S. 425 (1973). Now, however, in a controversial decision, the Court has adopted a presumption that when a state court decision 

fairly appears to rest on federal law or to be interwoven with federal law, and when 

the adequacy and independence of any possible state law ground is not clear from 

the face of the opinion, the Court will accept as the most reasonable explanation 

that the state court decided the case as it did because it believed that federal law 

required it to do so. If the state court wishes to avoid the presumption it must make 

clear by a plain statement in its judgment or opinion that discussed federal law did 

not compel the result, that state law was dispositive. Michigan v. Long, 463 U.S. 

1032 (1983). See Harris v. Reed, 489 U.S. 255, 261 n. 7 (1989) (collecting cases); 

Coleman v. Thompson, 501 U.S. 722 (1991) (applying the rule in a habeas case).

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.’’ 761 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. 762

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. 763 It may have based its decision solely on a 

nonfederal ground but the federal ground may have been clearly 

raised. 764 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. 765 Or the state court 

may have decided the federal question although it could have based 

its ruling on an adequate, independent nonfederal ground. 766 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. 767

764 ART. III—JUDICIAL DEPARTMENT 

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

768Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 636 (1874). A new state 

rule cannot be invented for the occasion in order to defeat the federal claim. 

E.g., Ford v. Georgia, 498 U.S. 411, 420-425 (1991) 

769 Enterprise Irrigation Dist. v. Farmers’ Mutual Canal Co., 243 U.S. 157, 164 

(1917); Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 290 (1958). 770 Enterprise Irrigation Dist. v. Farmers’ Mutual Canal Co., 243 U.S. 157, 164 

(1917); Ward v. Love County, 253 U.S. 17, 22 (1920); Staub v. Baxley, 355 U.S. 313, 

319-320 (1958). 771 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). 772Davis v. Wechsler, 263 U.S. 22, 24-25 (1923); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455-458 (1958); Barr v. City of Columbia, 378 U.S. 146, 149 

(1964). This rationale probably explains Henry v. Mississippi, 379 U.S. 443 (1965). 

See also in the criminal area, Edelman v. California, 344 U.S. 357, 362 (1953) (dissenting opinion); Brown v. Allen, 344 U.S. 443, 554 (1953) (dissenting opinion); Williams v. Georgia, 349 U.S. 375, 383 (1955); Monger v. Florida, 405 U.S. 958 (1972) 

(dissenting opinion). 773 United States v. Ravara, 2 U.S. (2 Dall.) 297 (C.C. Pa. 1793). 774 Bors v. Preston, 111 U.S. 252 (1884). 775 Ames v. Kansas ex rel. Johnston, 111 U.S. 449, 469 (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, 768 the nonfederal ground must be independent of the 

federal question, 769 and the nonfederal ground must be a tenable 

one. 770 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, 771 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. 772

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. 773 Many years later, the Supreme Court held that consuls 

could be sued in the federal courts, 774 and in another case in the 

same year declared sweepingly that Congress could grant concurrent jurisdiction to the inferior courts in cases where the Supreme 

Court has been invested with original jurisdiction. 775 Nor does the 

grant of original jurisdiction to the Supreme Court in cases affectVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00138 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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776 280 U.S. 379, 383, 384 (1930). Now precluded by 28 U.S.C. § 1351. 777 24 U.S. (11 Wheat.) 467 (1826). 778 In re Baiz, 135 U.S. 403, 432 (1890). 779 Ex parte Gruber, 269 U.S. 302 (1925). 780 1 Stat. 80-81 (1789). Jurisdiction in the Supreme Court since 1978 has been 

original but not exclusive. Pub. L. 95-393, § 8(b), 92 Stat. 810, 28 U.S.C. § 

1251(b)(1).

ing ambassadors and consuls of itself preclude suits in state courts 

against consular officials. The leading case is Ohio ex rel. Popovici 

v. Agler, 776 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, 777 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. 778 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. 779 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. 780 By

its compliance with the congressional distribution of exclusive and 

concurrent original jurisdiction, the Court has tacitly sanctioned 

the power of Congress to make such jurisdiction exclusive or concurrent as it may choose. 

Cases of Admiralty and Maritime Jurisdiction 

The admiralty and maritime jurisdiction of the federal courts 

had its origins in the jurisdiction vested in the courts of the Admiral of the English Navy. Prior to independence, vice-admiralty 

courts were created in the Colonies by commissions from the 

766 ART. III—JUDICIAL DEPARTMENT 

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

781G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY ch. 1 (1957). 782 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, supra at 186-187. None of the plans 

presented to the Convention, with the exception of an apparently authentic Charles 

Pinckney plan, 3 id. at 601-04, 608, had mentioned an admiralty jurisdiction in national courts. See Putnam, How the Federal Courts Were Given Admiralty Jurisdiction, 10 CORNELL L.Q. 460 (1925). 783G. Gilmore & C. Black, supra at ch. 1. In DeLovio v. Boit, 7 Fed. Cas. 418 

(No. 3776) (C.C.D. Mass 1815), Justice Story delivered a powerful historical and jurisprudential argument against the then-restrictive English system. See also Waring

v. Clarke, 46 U.S. (5 How.) 441, 451-459 (1847); New Jersey Steam Navigation Co. 

v. Merchants’ Bank of Boston, 47 U.S. (6 How.) 34, 385-390 (1848). 784 § 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). 

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. 781 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. 782

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. 783 At the very beginning of government under the Constitution, Congress conferred 

on the federal district courts exclusive original cognizance ‘‘of all 

civil causes of admiralty and maritime jurisdiction, including all 

seizures under laws of impost, navigation or trade of the United 

States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within 

their respective districts as well as upon the high seas; saving to 

suitors, in all cases, the right of a common law remedy, where the 

common law is competent to give it; . . . .’’ 784 This broad legislative 

interpretation of admiralty and maritime jurisdiction soon won the 

ART. III—JUDICIAL DEPARTMENT 767

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

785 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). 786The Vengeance, 3 U.S. (3 Dall.) 297 (1796); The Schooner Sally, 6 U.S. (2 Cr.) 

406 (1805): The Schooner Betsy, 8 U.S. (4 Cr.) 443 (1808); The Samuel, 14 U.S. (1 

Wheat.) 9 (1816); The Octavig, 14 U.S. (1 Wheat.) 20 (1816). 787 New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 U.S. (6 

How.) 334, 386 (1848); see also Waring v. Clarke, 46 U.S. (5 How.) 441 (1847). 788Swift & 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, 88 U.S. (21 Wall.) 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). 789 88 U.S. (21 Wall.) 558 (1875). 

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. 785

Although a number of Supreme Court decisions had earlier 

sustained the broader admiralty jurisdiction on specific issues, 786 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.’’ 787 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. 788 But what of the power of Congress in 

this area? In The Lottawanna, 789 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 

768 ART. III—JUDICIAL DEPARTMENT 

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

790 88 U.S. at 572. 791 88 U.S. at 574-75. 792 88 U.S. at 577. 793 E.g., The Daniel Ball, 77 U.S. (10 Wall.) 557, 564 (1871); Moore v. American 

Transp. Co., 65 U.S. (24 How.) 1, 39 (1861); Providence & N.Y. S.S. Co. v. Hill Mfg. 

Co., 109 U.S. 578 (1883); The Robert W. Parsons, 191 U.S. 17 (1903). 794 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). 795 Butler v. Boston & S. S.S. Co., 130 U.S. 527, 557 (1889). 

operative as law in any country as it is adopted by the laws and 

usages of that country.’’ 790 ‘‘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.’’ 791

‘‘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.’’ 792

That Congress’ power to enact substantive maritime law was conferred by the commerce clause was assumed in numerous opinions, 793 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. 794

Thus, ‘‘[a]s the Constitution extends the judicial power of the 

United States to ‘all cases of admiralty and maritime jurisdiction,’ 

and as this jurisdiction is held to be exclusive, the power of legislation on the same subject must necessarily be in the national legislature and not in the state legislatures.’’ 795 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 

ART. III—JUDICIAL DEPARTMENT 769

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

796 In re Garnett, 141 U.S. 1, 12 (1891). See also Southern Pacific Co. v. Jensen, 

244 U.S. 205, 215 (1917); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 

(1920); Crowell v. Benson, 285 U.S. 22, 55 (1932). The Jones Act, under which injured seamen may maintain an action at law for damages, has been reviewed as 

an exercise of legislative power deducible from the admiralty clause. Panama R.R. 

v. Johnson, 264 U.S. 375, 386, 388, 391 (1924); Romero v. International Terminal 

Operating Co., 358 U.S. 354, 360-361 (1959). On the limits to the congressional 

power, see Panama R.R. v. Johnson, 264 U.S. at 386-387; Detroit Trust Co. v. The 

Thomas Barlum, 293 U.S. 21, 43-44 (1934). 797Thus, Justice McReynolds’ assertion of the paramountcy of congressional 

power in Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917), was not disputed 

by the four dissenters in that case and is confirmed in subsequent cases critical of 

Jensen which in effect invite congressional modification of maritime law. E.g., Davis 

v. Department of Labor and Industries, 317 U.S. 249 (1942). The nature of maritime 

law has excited some relevant controversy. In American Ins. Co. v. Canter, 26 U.S. 

(1 Pet.) 516, 545 (1828), Chief Justice Marshall declared that admiralty cases do not 

‘‘arise under the Constitution or laws of the United States’’ but ‘‘are as old as navigation itself; and the law, admiralty and maritime as it has existed for ages, is applied by our Courts to the cases as they arise.’’ In Romero v. International Terminal 

Operating Co., 358 U.S. 354 (1959), the plaintiff sought a jury trial in federal court 

on a seaman’s suit for personal injury on an admiralty claim, contending that cases 

arising under the general maritime law are ‘‘civil actions’’ that arise ‘‘under the Constitution, laws, or treaties of the United States.’’ 28 U.S.C. § 1331. Five Justices in 

an opinion by Justice Frankfurter disagreed. Maritime cases do not arise under the 

Constitution or laws of the United States for federal question purposes and must, 

absent diversity, be instituted in admiralty where there is no jury trial. The dissenting four, Justice Brennan for himself and Chief Justice Warren and Justices 

Black and Douglas, contended that maritime law, although originally derived from 

international sources, is operative within the United States only by virtue of having 

been accepted and adopted pursuant to Article III, and accordingly judicially originated rules formulated under authority derived from that Article are ‘‘laws’’ of the 

United States to the same extent as those enacted by Congress. 

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.’’ 796

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. 797

770 ART. III—JUDICIAL DEPARTMENT 

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

798DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815) (Justice 

Story); Waring v. Clarke, 46 U.S. (5 How.) 441 (1847). 

799Sheppard v. Taylor, 30 U.S. (5 Pet.) 675, 710 (1831). A seaman employed by 

the Government making a claim for wages cannot proceed in admiralty but must 

bring his action under the Tucker Act in the Court of Claims or in the district court 

if his claim does not exceed $10,000. Amell v. United States, 384 U.S. 158 (1966). 

In Kossick v. United Fruit Co., 365 U.S. 731 (1961), an oral agreement between a 

seaman and a shipowner whereby the latter in consideration of the seaman’s forbearance to press his maritime right to maintenance and cure promised to assume 

the consequences of improper treatment of the seaman at a Public Health Service 

Hospital was held to be a maritime contract. See also Archawski v. Hanioti, 350 

U.S. 532 (1956). 

800 Insurance Co. v. Dunham, 78 U.S. (11 Wall.) 1, 31 (1871); Wilburn Boat Co. 

v. Fireman’s Fund Ins. Co., 348 U.S. 310 (1955). Whether admiralty jurisdiction exists if the vessel is not engaged in navigation or commerce when the insurance claim 

arises is open to question. Jeffcott v. Aetna Ins. Co., 129 F.2d 582 (2d Cir.), cert.

denied, 317 U.S. 663 (1942). Contracts and agreements to procure marine insurance 

are outside the admiralty jurisdiction. Compagnie Francaise De Navigation A 

Vapeur v. Bonnasse, 19 F.2d 777 (2d Cir. 1927). 

801Knapp, 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). 

802 Atlee v. Packet Co., 88 U.S. (21 Wall.) 389 (1875); Ex parte McNiel, 80 U.S. 

(13 Wall.) 236 (1872). See also Sun Oil v. Dalzell Towing Co., 287 U.S. 291 (1932). 

803The Grapeshot, 76 U.S. (9 Wall.) 129 (1870); O’Brien v. Miller, 168 U.S. 287 

(1897); The Aurora, 14 U.S. (1 Wheat.) 94 (1816); Delaware Mut. Safety Ins. Co. v. 

Gossler, 96 U.S. 645 (1877). But ordinary mortgages even though the securing property is a vessel, its gear, or cargo are not considered maritime contracts. Bogart v. 

The Steamboat John Jay, 58 U.S. (17 How.) 399 (1854); Detroit Trust Co. v. The 

Thomas Barlum, 293 U.S. 21, 32 (1934). 

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. 798 Specifically, contract cases include 

suits by seamen for wages, 799 cases arising out of marine insurance 

policies, 800 actions for towage 801 or pilotage 802 charges, actions on 

bottomry or respondentia bonds, 803 actions for repairs on a vessel 

ART. III—JUDICIAL DEPARTMENT 771

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

804 New Bedford Dry Dock Co. v. Purdy, 258 U.S. 96 (1922); The General Smith, 

17 U.S. (4 Wheat.) 438 (1819). There is admiralty jurisdiction even though the repairs are not 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, 61 U.S. (20 How.) 393 

(1858); North Pacific S.S. Co., 249 U.S. at 127. 805 New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 U.S. (6 

How.) 344 (1848). 806 Ex parte Easton, 95 U.S. 68 (1877). 807 Andrews v. Wall, 44 U.S. (3 How.) 568 (1845). 808 Janney v. Columbia Ins. Co., 23 U.S. (10 Wheat.) 411, 412, 415, 418 (1825); 

The Tilton, 23 Fed. Cas. 1277 (No. 14054) (C.C.D. Mass. 1830) (Justice Story). 809 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). 810 E.g., DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815) 

(Justice Story); The Steamboat Orleans v. Phoebus, 36 U.S. (11 Pet.) 175, 183 

(1837); The People’s Ferry Co. v. Joseph Beers, 61 U.S. (20 How.) 393, 401 (1858); 

New England Marine Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 26 (1870); Detroit 

Trust Co. v. The Thomas Barlum, 293 U.S. 21, 48 (1934). 811Kossick v. United Fruit Co., 365 U.S. 731, 735 (1961). 812The 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). 813The Raithmoor, 241 U.S. 166 (1916); Erie R.R. v. Erie Transportation Co., 

204 U.S. 220 (1907) 814L’Invincible, 14 U.S. (1 Wheat.) 238 (1816); In re Fassett, 142 U.S. 479 

(1892). 815 East River Steamship Corp. v. Transamerica Delaval, 476 U.S. 858 (1986) 

(holding, however, that there is no products liability action in admiralty for purely 

economic injury to the product itself, unaccompanied by personal injury, and that 

such actions should be based on the contract law of warranty). 

already used in navigation, 804 contracts of affreightment, 805 compensation for temporary wharfage, 806 agreements of consortship between the masters of two vessels engaged in wrecking, 807 and surveys of damaged vessels. 808 That is, admiralty jurisdiction ‘‘extends 

to all contracts, claims and services essentially maritime.’’ 809 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. 810 ‘‘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. . . .’’ 811

Maritime torts include injuries to persons, 812 damages to property arising out of collisions or other negligent acts, 813 and violent 

dispossession of property. 814 The Court has expresed a willingness 

to ‘‘recogniz[e] products liability, including strict liability, as part of 

the general maritime law.’’ 815 Unlike contract cases, maritime tort 

jurisdiction historically depended exclusively upon the commission 

772 ART. III—JUDICIAL DEPARTMENT 

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

816DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815) (Justice 

Story); Philadelphia, W. & B. R.R. v. Philadelphia & Havre De Grace Steam 

Towboat Co., 64 U.S. (23 How.) 209, 215 (1859); The Plymouth, 70 U.S. (3 Wall.) 

20, 33-34 (1865); Grant-Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 476 (1922). 817 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). And see Grubart v. Great 

Lakes Dredge & Dock Co., 513 U.S. 527 (1995), a tort claim arising out of damages 

allegedly caused by negligently driving piles from a barge into the riverbed, which 

weakened a freight tunnel that allowed flooding of the tunnel and the basements 

of numerous buildings along the Chicago River. The Court found that admiralty jurisdiction could be invoked. The location test was satisfied, because the barge, even 

though fastened to the river bottom, was a ‘‘vessel’’ for admiralty tort purposes; the 

two-part connection test was also satisfied, inasmuch as the incident had a potential 

to disrupt maritime commerce and the conduct giving rise to the incident had a substantial relationship to traditional maritime activity. 818Thus, 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, 502 U.S. 81 (1991); McDermott International, 

Inc. v. Wilander, 498 U.S. 337 (1991). The rights exist even if the injury occurred 

on land. O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. at 43; Swanson v. 

Mara Brothers, 328 U.S. 1, 4 (1946). In the Extension of Admiralty Jurisdiction Act, 

62 Stat. 496, 46 U.S.C. § 740, Congress provided an avenue of relief for persons injured in themselves or their property by action of a vessel on navigable water which 

is consummated on land, as by the collision of a ship with a bridge. By the 1972 

amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, 86 

Stat. 1251, amending 33 U.S.C. §§ 901-950, Congress broadened the definition of 

‘‘navigable waters’’ to include in certain cases adjoining piers, wharfs, etc., and 

modified the definition of ‘‘employee’’ to mean any worker ‘‘engaged in maritime employment’’ within the prescribed meanings, thus extending the Act shoreward and 

changing the test of eligibility from ‘‘situs’’ alone to the ‘‘situs’’ of the injury and the 

‘‘status’’ of the injured. 

of the wrongful act upon navigable waters, regardless of any connection or lack of connection with shipping or commerce. 816 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. 817 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. 818

From the earliest days of the Republic, the federal courts sitting in admiralty have been held to have exclusive jurisdiction of 

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819 Jennings v. Carson, 8 U.S. (4 Cr.) 2 (1807); Taylor v. Carryl, 61 U.S. (20 

How.) 583 (1858). 820Thirty Hogsheads of Sugar v. Boyle, 13 U.S. (9 Cr.) 191 (1815); The Siren, 

80 U.S. (13 Wall.) 389, 393 (1871). 821 Hudson v. Guestier, 8 U.S. (4 Cr.) 293 (1808). 822The Vengeance, 3 U.S. (3 Dall.) 297 (1796); Church v. Hubbard, 6 U.S. (2 

Cr.) 187 (1804); The Schooner Sally, 6 U.S. (2 Cr.) 406 (1805). 823The Brig Ann, 13 U.S. (9 Cr.) 289 (1815); The Sarah, 21 U.S. (8 Wheat.) 391 

(1823); Maul v. United States, 274 U.S. 501 (1927). 824Gilmore & Black, supra at 30-33. There are no longer separate rules of procedure governing admiralty, unification of civil admiralty procedures being achieved 

in 1966. 7 A J. Moore’s Federal Practice § .01 et seq (New York: 1971). 825The Moses Taylor, 71 U.S. (4 Wall.) 411 (1866); The Hine v. Trevor, 71 U.S. 

(4 Wall.) 555 (1867). But see Taylor v. Carryl, 61 U.S. (20 How.) 583 (1858). In 

Madruga v. Superior Court, 346 U.S. 556 (1954), the jurisdiction of a state court 

over a partition suit at the instance of the majority shipowners was upheld on the 

ground that the cause of action affected only the interest of the defendant minority 

shipowners and therefore was in personam. Justice Frankfurter’s dissent argued: ‘‘If 

this is not an action against the thing, in the sense which that has meaning in the 

law, then the concepts of a res and an in rem proceeding have an esoteric meaning 

that I do not understand.’’ Id. at 564. 826 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).

prize cases. 819 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, 820 and so far 

as it was not modified by subsequent legislation, treaties, or executive proclamations. Finally, admiralty and maritime jurisdiction includes the seizure and forfeiture of vessels engaged in activities in 

violation of the laws of nations or municipal law, such as illicit 

trade, 821 infraction of revenue laws, 822 and the like. 823

Admiralty Proceedings.—Procedure in admiralty jurisdiction 

differs in few respects from procedure in actions at law, but the differences that do exist are significant. 824 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. 825 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. 826 Concurrent jurisdiction thus exists for 

the adjudication of in personam maritime causes of action against 

774 ART. III—JUDICIAL DEPARTMENT 

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827The Moses Taylor, 71 U.S. (4 Wall.) 411, 431 (1867). 828 C. J. Henry Co. v. Moore, 318 U.S. 133 (1943). 829The Vengeance, 3 U.S. (3 Dall.) 297 (1796); The Schooner Sally, 6 U.S. (2 Cr.) 

406 (1805); The Schooner Betsy, 8 U.S. (4 Cr.) 443 (1808); The Whelan, 11 U.S. (7 

Cr.) 112 (1812); The Samuel, 14 U.S. (1 Wheat.) 9 (1816). If diversity of citizenship 

and the requisite jurisdictional amounts are present, a suitor may sue on the ‘‘law 

side’’ of the federal court and obtain a jury. Romero v. International Terminal Operating Co., 358 U.S. 354, 362-363 (1959). Jones Act claims, 41 Stat. 1007 (1920), 46 

U.S.C. § 688, may be brought on the ‘‘law side’’ with a jury, Panama R.R. Co. v. 

Johnson, 264 U.S. 375 (1924), and other admiralty claims joined with a Jones Act 

claim may be submitted to a jury. Romero, supra; Fitzgerald v. United States Lines 

Co., 374 U.S. 16 (1963). There is no constitutional barrier to congressional provision 

of jury trials in admiralty. Genessee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 

(1851); Fitzgerald, 374 U.S. at 20. 830 C. J. Henry Co. v. Moore, 318 U.S. 133, 141 (1943). 831 23 U.S. (10 Wheat.) 428 (1825). On the political background of this decision, 

see 1 C. Warren, supra at 633-35. 

832The tidal ebb and flow limitation was strained in some of its applications. 

Peyroux v. Howard, 32 U.S. (7 Pet.) 324 (1833); Waring v. Clarke, 46 U.S. (5 How.) 

441 (1847). 

the owner of the vessel, and a plaintiff may ordinarily choose 

whether to bring his action in a state court or a federal court. 

Forfeiture to the crown for violation of the laws of the sovereign was in English law an exception to the rule that admiralty 

has exclusive jurisdiction over in rem maritime actions and was 

thus considered a common-law remedy. Although the Supreme 

Court sometimes has used language that would confine all proceedings in rem to admiralty courts, 827 such actions in state courts 

have been sustained in cases of forfeiture arising out of violations 

of state law. 828

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. 829 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.’’ 830

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 831 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. 832 The demands of commerce on western waters led Congress to enact a statute extending 

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833 5 Stat. 726 (1845). 834 53 U.S. (12 How.) 443 (1851). 835Some of the early cases include The Magnolia, 61 U.S. (20 How.) 296 (1857); 

The Eagle, 75 U.S. (8 Wall.) 15 (1868); The Daniel Ball, 77 U.S. (10 Wall.) 557 

(1871). The fact that the body of water is artificial presents no barrier to admiralty 

jurisdiction. Ex parte Boyer, 109 U.S. 629 (1884); The Robert W. Parsons, 191 U.S. 

17 (1903). In United States v. Appalachian Power Co., 311 U.S. 377 (1940), it was 

made clear that maritime jurisdiction extends to include waterways which by reasonable improvement can be made navigable. ‘‘It has long been settled that the admiralty and maritime jurisdiction of the United States includes all navigable waters 

within the country.’’ Southern S.S. Co. v. NLRB, 316 U.S. 31, 41 (1942). 836 E.g., The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870); The Montello, 87 

U.S. (20 Wall.) 430, 441-442 (1874). 837 United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818); Manchester v. Massachusetts, 139 U.S. 240 (1891). 838The Steamer St. Lawrence, 66 U.S. (1 Bl.) 522, 527 (1862). 839 Janney v. Columbia Ins. Co., 23 U.S. (10 Wheat.) 411, 418 (1825); The 

Lottawanna, 88 U.S. (21 Wall.) 558, 576 (1875). 

ters, 833 and in The Genessee Chief v. Fitzhugh 834 Chief Justice 

Taney overruled The Thomas Jefferson and dropped the tidal ebb 

and flow requirement. This ruling laid the basis for subsequent judicial extension of jurisdiction over all waters, salt or fresh, tidal 

or not, which are navigable in fact. 835 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, 836 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. 837

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.’’ 838 But, as with other 

jurisdictions of the federal courts, admiralty jurisdiction can only 

be exercised under acts of Congress vesting it in federal courts. 839

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 

776 ART. III—JUDICIAL DEPARTMENT 

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840 E.g., New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 

U.S. (6 How.) 344 (1848); The Steamboat New York v. Rea, 59 U.S. (18 How.) 223 

(1856); The China, 74 U.S. (7 Wall.) 53 (1868); Ex parte McNiel, 80 U.S. (13 Wall.) 

236 (1872); La Bourgogne, 210 U.S. 95 (1908). 841The General Smith, 17 U.S. (4 Wheat.) 438 (1819); The Lottawanna, 88 U.S. 

(21 Wall.) 558 (1875) (enforcing state laws giving suppliers and repairmen liens on 

ships supplied and repaired). Another example concerns state created wrongful 

death actions. The Hamilton, 207 U.S. 398 (1907). 842 E.g., Hazard’s Administrator v. New England Marine Ins. Co., 33 U.S. (8 

Pet.) 557 (1834); The Belfast, 74 U.S. (7 Wall.) 624 (1869); American Steamboat Co. 

v. Chase, 83 U.S. (16 Wall.) 522 (1872); Quebec Steamship Co. v. Merchant, 133 

U.S. 375 (1890); Belden v. Chase, 150 U.S. 674 (1893); Homer Ramsdell Transp. Co. 

v. La Compagnie Gen. Transatlantique, 182 U.S. 406 (1901). 843 244 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. 844Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917). 845 244 U.S. at 216. 846 244 U.S. at 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. at 221, and the famous statement supfederal courts in admiralty applied the general maritime law, 840

supplemented in some instances by state law which created and defined certain causes of action. 841 Because the Judiciary Act of 1789 

saved to suitors common-law remedies, persons suing in state 

courts or in federal courts in diversity of citizenship actions could 

look to common-law and statutory doctrines for relief in maritimerelated cases in which the actions were noticeable. 842 In Southern

Pacific Co. v. Jensen, 843 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.’’ 844 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.’’ 845 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.’’ 846

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porting 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. at 222. 847 40 Stat. 395 (1917). 848Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 (1920). The decision was 

again five-to-four with the same dissenters. 849 42 Stat. 634 (1922). 850Washington v. Dawson & Co., 264 U.S. 219, 228 (1924). Holmes and Brandeis remained of the four dissenters and again dissented. 851 44 Stat. 1424 (1927), as amended, 33 U.S.C. §§ 901-950. 852 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 

Congress required three opportunities to legislate to meet the 

problem created by the decision, the lack of remedy for maritime 

workers to recover for injuries resulting from the negligence of 

their employers. First, Congress enacted a statute saving to claimants their rights and remedies under state workmen’s compensation laws. 847 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.’’ 848 Second, Congress reenacted the law but excluded masters 

and crew members of vessels from those who might claim compensation for maritime injuries. 849

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.’’ 850 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.’’ 851

With certain exceptions, 852 the federal-state conflict since Jensen has taken place with regard to three areas: (1) the interpretaVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00151 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
778 ART. III—JUDICIAL DEPARTMENT 

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(1961) (state statute of frauds inapplicable to oral contract for medical care between 

seaman and employer). 853Jensen, 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. at 344. See also Sun Ship v. Pennsylvania, 447 U.S. 715 (1980). 854Western Fuel Co. v. Garcia, 257 U.S. 233 (1921); Grant-Smith-Porter Ship 

Co. v. Rohde, 257 U.S. 469 (1922); State Industrial Comm’n v. Nordenholt Corp., 

259 U.S. 263 (1922); Miller’s Indemnity Underwriters v. Braud, 270 U.S. 59 (1926). 

The exception continued to be applied following enactment of the Longshoremen’s 

and Harbor Workers’ Compensation Act. See cases cited in Davis v. Department of 

Labor and Industries, 317 U.S. 249, 253-254 (1942). 855 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). 856 § 3(a), 44 Stat. 1424 (1927), 33 U.S.C. § 903(a). 857 Crowell v. Benson, 284 U.S. 22, 39, (1932); Davis v. Department of Labor and 

Industries, 317 U.S. 249, 252-253 (1942). 

tion of federal and state bases of relief for injuries and death as 

affected by the Longshoremen’s and Harbor Workers’ Compensation Act; (2) the interpretation of federal and state bases of relief 

for personal injuries by maritime workers as affected by the Jones 

Act; and (3) the application of state law to permit recovery in maritime wrongful death cases in which until recently there was no federal maritime right to recover. 853

(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. 854 ‘‘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.’’’ 855 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,’’ 856 it was held that the ‘‘maritime but local’’ exception had been statutorily perpetuated, 857 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 

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858Davis v. Dept of Labor and Industries, 317 U.S. 249 (1942). The quoted 

phrases appear at id. at 253, 256. See also Hahn v. Ross Island Sand & Gravel Co., 

358 U.S. 272 (1959). 859 370 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.’’ 860 86 Stat. 1251, § 2, amending 33 U.S.C. § 902. The Court had narrowly 

turned back an effort to achieve this result through construction in Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969). See also Victory Carriers v. Law, 404 U.S. 

202 (1971). On the interpretation of the amendments, see Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977); Director, Office of Workers Compensation 

Programs v. Perini, 459 U.S. 297 (1983). 861 41 Stat. 1007 (1920), 46 U.S.C. § 688. For the prior-Jones Act law, see The

Osceola, 189 U.S. 158 (1903) 862Supra, ‘‘Cases of Admiralty and Maritime Jurisdiction’’. 863 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). 864Mahnich 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). 

was a ‘‘twilight zone,’’ a ‘‘shadowy area,’’ in which recovery under 

either the federal law or a state law could be justified, and held 

that in such a ‘‘twilight zone’’ the injured party should be enabled 

to recover under either. 858 Then, in Calbeck v. Travelers Ins. 

Co., 859 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. 860

(2) The passage of the Jones Act 861 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 862 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 863 were given new life by Court decisions for seamen; 864 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 

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865Seas 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). 866Garrett v. Moore-McCormack Co., 317 U.S. 239 (1942); McAllister v. Magnolia Petroleum Co., 357 U.S. 221 (1958); Kermarec v. Compagnie Generale 

Transatlantique, 358 U.S. 625 (1959). 867 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). 868 119 U.S. 199 (1886). Subsequent cases are collected in Moragne v. States Marine Lines, 398 U.S. 375 (1970). 869Moragne v. States Marine Lines, 398 U.S. 375 (1970). 870 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. 871 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. 872 44 Stat. 1424 (1927), as amended, 33 U.S.C. §§ 901-950. 873Western 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). 874 358 U.S. 588 (1959). 

cargo. 865 While these actions could have been brought in state 

court, federal law supplanted state law even with regard to injuries 

sustained in state territorial waters. 866 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. 867

(3) In The Harrisburg, 868 the Court held that maritime law did 

not afford an action for wrongful death, a position to which the 

Court adhered until 1970. 869 The Jones Act, 870 the Death on the 

High Seas Act, 871 and the Longshoremen’s and Harbor Workers’ 

Compensation Act 872 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. 873 Thus, in 

The Tungus v. Skovgaard, 874 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 

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875 Justice Brennan, joined by Chief Justice Warren and Justices Black and 

Douglas, argued that the extent of the duties owed the decedent while on board ship 

should be governed by federal maritime law, though the cause of action originated 

in a state statute, just as would have been the result had decedent survived his injuries. See also United N.Y. & N.J. Sandy Hooks Pilot Ass’n v. Halecki, 358 U.S. 

613 (1959). 876 361 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. 877 379 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. 878 398 U.S. 375 (1970). 879 398 U.S. at 396 n.12. For development of the law under Moragne, see SeaLand Services v. Gaudet, 414 U.S. 573 (1974); Miles v. Apex Marine Corp., 498 U.S. 

19 (1990); and Norfolk Shipbuilding and Drydock Co. v. Garris, 532 U.S. 811 (2001) 

(maritime cause of action for death caused by violation of the duty of seaworthiness 

is equally applicable to death resulting from negligence). But, in Yamaha Motor 

Corp. v. Calhoun, 516 U.S. 199 (1996), a case involving a death in territorial waters 

from a jet ski accident, the Court held that Moragne does not provide the exclusive 

remedy in cases involving the death in territorial waters of a ‘‘nonseafarer’’—a person who is neither a seaman covered by the Jones Act nor a longshore worker covered by the LHWCA. 

cepts. 875 And in Hess v. United States, 876 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., 877 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, 878 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. 879

782 ART. III—JUDICIAL DEPARTMENT 

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

880 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

1274 (1833), (emphasis in original). 881Dugan v. United States, 16 U.S. (3 Wheat.) 172 (1818). 882 United States v. San Jacinto Tin Co., 125 U.S. 273 (1888); United States v. 

Beebe, 127 U.S. 338 (1888); United States v. Bell Telephone Co., 128 U.S. 315 

(1888). Whether without statutory authorization the United States may sue to protect the constitutional rights of its citizens has occasioned conflict. Compare United

States v. Brand Jewelers, 318 F. Supp. 1293 (S.D.N.Y. 1970), and United States v. 

Brittain, 319 F. Supp. 1658 (S.D.Ala. 1970), with United States v. Mattson, 600 

F.2d 1295 (9th Cir. 1979), and United States v. Solomon, 563 F.2d 1121 (4th Cir. 

1977). The result in Mattson and Solomon was altered by specific authorization in 

the Civil Rights of Institutionalized Persons Act, Pub. L. 96-247, 94 Stat. 349 (1980), 

42 U.S.C. § 1997 et seq. 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). 883 28 U.S.C. § 1345. By virtue of the fact that the original jurisdiction of the 

Supreme Court extends only to those cases enumerated in the Constitution, jurisdiction over suits brought by the United States against persons or corporations is vested in the lower federal courts. 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). 884 United States v. San Jacinto Tin Co., 125 U.S. 273 (1888). 

Cases to Which the United States Is a Party 

Right of the United States to Sue.—In the first edition of 

his Treatise, Justice Story noted that while ‘‘an express power is no 

where given in the constitution,’’ the right of the United States to 

sue in its own courts ‘‘is clearly implied in that part respecting the 

judicial power. . . . Indeed, all the usual incidents appertaining to a 

personal sovereign, in relation to contracts, and suing, and enforcing rights, so far as they are within the scope of the powers of the 

government, belong to the United States, as they do to other 

sovereigns.’’ 880 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. 881 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. 882

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. 883 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. 884 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 

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ART. III—JUDICIAL DEPARTMENT 783

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

885 United Steelworkers v. United States, 361 U.S. 39, 43-44 (1960), citing In re 

Debs, 158 U.S. 564 (1895). 886 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. 887 136 U.S. 211 (1890). 888 United States v. Texas, 143 U.S. 621 (1892). 889 143 U.S. at 642-46. This suit, it may be noted, was specifically authorized 

by the Act of Congress of May 2, 1890, providing for a temporary government for 

the Oklahoma territory to determine the ownership of Greer County. 26 Stat. 81, 

92, § 25. See also United States v. Louisiana, 339 U.S. 699, 701-02 (1950). 

troversy’’ on which the judicial power can operate and does not impose any legislative, executive, or non-judicial function. Moreover, 

the fact that the rights sought to be protected were those of the 

public in unimpeded production in industries vital to public health, 

as distinguished from the private rights of labor and management, 

was held not to alter the adversary (‘‘case or controversy’’) nature 

of the litigation instituted by the United States as the guardian of 

the aforementioned rights. 885 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.’’ 886

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, 887 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. 888 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.’’ 889

784 ART. III—JUDICIAL DEPARTMENT 

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

890 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). 891 295 U.S. 463 (1935). 892 United States v. Utah, 283 U.S. 64 (1931). 893 United States v. California, 332 U.S. 19 (1947). 894 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) 895 2 U.S. (2 Dall.) 419, 478 (1793). 896 19 U.S. (6 Wheat.) 264, 412 (1821). 897 33 U.S. (8 Pet.) 436, 444 (1834). 

Suits brought by the United States have, however, been infrequent. All of them have arisen since 1889, and they have become 

somewhat more common since 1926. That year the Supreme Court 

decided a dispute between the United States and Minnesota over 

land patents issued to the State by the United States in breach of 

its trust obligations to the Indian. 890 In United States v. West Virginia, 891 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. 892 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. 893 Like suits were decided against Louisiana and Texas in 

1950. 894

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 

embryonic form in an obiter dictum by Chief Justice Jay in Chisholm v. Georgia, where he indicated that a suit would not lie 

against the United States because ‘‘there is no power which the 

courts can call to their aid.’’ 895 In Cohens v. Virginia, 896 also by 

way of dictum, Chief Justice Marshall asserted, ‘‘the universally received opinion is that no suit can be commenced or prosecuted 

against the United States.’’ The issue was more directly in question 

in United States v. Clarke, 897 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 

ART. III—JUDICIAL DEPARTMENT 785

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

898 United States v. McLemore, 45 U.S. (4 How.) 286 (1846); Hill v. United 

States, 50 U.S. (9 How.) 386, 389 (1850); De Groot v. United States, 72 U.S. (5 

Wall.) 419, 431 (1867); United States v. Eckford, 73 U.S. (6 Wall.) 484, 488 (1868); 

The Siren, 74 U.S. (7 Wall.) 152, 154 (1869); Nichols v. United States, 74 U.S. (7 

Wall.) 122, 126 (1869); The Davis, 77 U.S. (10 Wall.) 15, 20 (1870); Carr v. United 

States, 98 U.S. 433, 437-439 (1879). It is also clear that the Federal Government, 

in the absence of its consent, is not liable in tort for the negligence of its agents 

or employees. Gibbons v. United States, 75 U.S. (8 Wall.) 269, 275 (1869); Peabody 

v. United States, 231 U.S. 530, 539 (1913); Koekuk & Hamilton Bridge Co. v. United 

States, 260 U.S. 125, 127 (1922). The reason for such immunity as stated by 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). 899 106 U.S. 196 (1882). 900Lonergan v. United States, 303 U.S. 33 (1938). Waivers of immunity must 

be express. Library of Congress v. Shaw, 461 U.S. 273 (1983) (Civil Rights Act provision that ‘‘the United States shall be liable for costs the same as a private person’’ 

insufficient to waive immunity from awards of interest). The result in Shaw was 

overturned by a specific waiver. Civil Rights Act of 1991, Pub. L. 102-166, 106 Stat. 

1079, § 113, amending 42 U.S.C. § 2000e-16. Immunity was waived, with limitations, for contracts and takings claims in the Tucker Act, 28 U.S.C. § 1346(a)(2). 

Immunity of the United States for the negligence of its employees was waived, again 

with limitations, in the Federal Tort Claims Act. 28 U.S.C. §1346(b). For recent 

waivers of sovereign immunity, see Pub. L. 94-574, § 1, 90 Stat. 2721 (1976), amending 5 U.S.C. § 702 (waiver for nonstatutory review in all cases save for suits for 

money damages); Pub. L. 87-748, § 1(a), 76 Stat. 744 (1962), 28 U.S.C. § 1361 (giving district courts jurisdiction of mandamus actions to compel an officer or employee 

of the United States to perform a duty owed to plaintiff); Westfall Act, 102 Stat. 

4563, 28 U.S.C. § 2679(d) (torts of federal employees acting officially). See FDIC v. 

Meyer, 510 U.S. 471 (1994) (FSLIC’s ‘‘sue-and-be-sued’’ clause waives sovereign immunity; but a Bivens implied cause of action for constitutional torts cannot be used 

directly against FSLIC). 

of some act of Congress, or the court cannot exercise jurisdiction 

over it.’’ He thereupon ruled that the act of May 26, 1830, for the 

final settlement of land claims in Florida condoned the suit. The 

doctrine of the exemption of the United States from suit was repeated in various subsequent cases, without discussion or examination. 898 Indeed, it was not until United States v. Lee 899 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. 900 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 

786 ART. III—JUDICIAL DEPARTMENT 

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

901 United States v. New York Rayon Co., 329 U.S. 654 (1947). 902 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 

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). 903Minnesota 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). 904 Brady v. Roosevelt S.S. Co., 317 U.S. 575 (1943). 905 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. 906 204 U.S. 331 (1907). 907Louisiana v. McAdoo, 234 U.S. 627, 628 (1914). 

to waive such immunity or to confer jurisdiction on a federal 

court. 901 Even when authorized, suits can be brought only in designated courts. 902 These rules apply equally to suits by States 

against the United States. 903 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. 904

Suits Against United States Officials.—United States v. 

Lee, a five-to-four decision, qualified earlier holdings that a judgment affecting the property of the United States was in effect 

against the United States, by ruling that title to the Arlington estate of the Lee family, then being used as a national cemetery, was 

not legally vested in the United States but was being held illegally 

by army officers under an unlawful order of the President. In its 

examination of the sources and application of the rule of sovereign 

immunity, the Court concluded that the rule ‘‘if not absolutely limited to cases in which the United States are made defendants by 

name, is not permitted to interfere with the judicial enforcement of 

the rights of plaintiff when the United States is not a defendant 

or a necessary party to the suit.’’ 905 Except, nevertheless, for an occasional case like Kansas v. United States, 906 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. 907 Even

ART. III—JUDICIAL DEPARTMENT 787

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

908 162 U.S. 255 (1896). Justice Gray endeavored to distinguish between this 

case and Lee. Id. at 271. It was Justice Gray who spoke for the dissenters in Lee. 909Land v. Dollar, 330 U.S. 731, 737 (1947). 910Oregon 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). 911 Cunningham v. Macon & Brunswick R.R., 109 U.S. 446, 451 (1883), quoted 

by Chief Justice Vinson in the opinion of the Court in Larson v. Domestic & Foreign 

Corp., 337 U.S. 682, 698 (1949). 912Larson, 337 U.S. at 708. Justice Frankfurter’s dissent also contains a useful 

classification of immunity cases and an appendix listing them. 913 330 U.S. 731, 735 (1947) (emphasis added). 914 337 U.S. 682 (1949). 

more significant is Stanley v. Schwalby, 908 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 judgment 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. 909 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. 910 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,’’ 911 and, as 

Justice Frankfurter quite justifiably stated in a dissent, ‘‘the subject is not free from casuistry.’’ 912 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,’’ 913 is frequently 

applicable.

The case of Larson v. Domestic & Foreign Corp., 914 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 

788 ART. III—JUDICIAL DEPARTMENT 

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

915 337 U.S. at 689-97. 916 337 U.S. at 701-02. This rule was applied in Goldberg v. Daniels, 231 U.S. 

218 (1913), which also involved a sale of government surplus property. After the 

Secretary of the Navy rejected the highest bid, plaintiff sought mandamus to compel 

delivery. This suit was held to be against the United States. See also Perkins v. Lukens Steel Co., 310 U.S. 113 (1940), which held that prospective bidders for contracts derive no enforceable rights against a federal official for an alleged misinterpretation of his government’s authority on the ground that an agent is answerable 

only to his principal for misconstruction of instructions, given for the sole benefit 

of the principal. In Larson the Court not only refused to follow Goltra v. Weeks, 271 

U.S. 536 (1926), but in effect overruled it. 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. 917 337 U.S. at 703-704. Justice Frankfurter, dissenting, would have applied the 

rule of the Lee case. See Pub. L. 94-574, 1, 90 Stat. 2721 (1976), amending 5 U.S.C. 

§ 702 (action seeking relief, except for money damages, against officer, employee, or 

agency not to be dismissed as action against United States). 

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. 915 The Court then proceeded to repeat the 

rule that ‘‘the action of an officer of the sovereign (be it holding, 

taking, or otherwise legally affecting the plaintiff’s property) can be 

regarded as so individual only if it is not within the officer’s statutory powers, or, if within those powers, only if the powers or their 

exercise in the particular case, are constitutionally void.’’ 916 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.’’ 917

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 

ART. III—JUDICIAL DEPARTMENT 789

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

918Larson v. Domestic & Foreign Corp., 337 U.S. 682, 709-710 (1949). 919Oregon 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). 920 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). 921Philadelphia Co. v. Stimson, 223 U.S. 605 (1912); Waite v. Macy, 246 U.S. 

606 (1918). 922 United States v. Lee, 106 U.S. 196 (1882); Goltra v. Weeks, 271 U.S. 536 

(1926); Ickes v. Fox, 300 U.S. 82 (1937); Land v. Dollar, 330 U.S. 731 (1947). See

also Barr v. Matteo, 360 U.S. 564 (1959); Howard v. Lyons, 360 U.S. 593 (1959). 

An emerging variant is the constitutional tort case, which springs from Bivens v. 

Six Unknown Named Agents, 403 U.S. 388 (1971), and which involves different 

standards of immunity for officers. Butz v. Economou, 438 U.S. 478 (1978); Carlson 

v. Green, 446 U.S. 14 (1980); Harlow v. Fitzgerald, 457 U.S. 800 (1982). 923 306 U.S. 381 (1939). 924FHA 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. 

the Government or calls ‘‘for an assertion of what is unquestionably 

official authority.’’ 918 Such suits, of course, cannot be maintained. 919 Second, cases in which action adverse to the interests of 

a plaintiff is taken under an unconstitutional statute or one alleged 

to be so. In general these suits are maintainable. 920 Third, cases 

involving injury to a plaintiff because the official has exceeded his 

statutory authority. In general these suits are maintainable. 921

Fourth, cases in which an officer seeks immunity behind statutory 

authority or some other sovereign command for the commission of 

a common law tort. 922 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, 923 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. 924

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790 ART. III—JUDICIAL DEPARTMENT 

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

925 United States v. United States Fidelity Co., 309 U.S. 506 (1940). 926Warren, The Supreme Court and Disputes Between States, 34 BULL. OF WILLIAM AND MARY, NO. 4 (1940), 7-11. For a more comprehensive treatment of background as well as the general subject, see C. WARREN, THE SUPREME COURT AND

THE SOVEREIGN STATES (1924). 927 Id. at 13. However, only three such suits were brought in this period, 1789- 

1849. During the next 90 years, 1849-1939, at least twenty-nine such suits were 

brought. Id. at 13, 14. 928 New Jersey v. New York, 30 U.S. (5 Pet.) 284 (1931). 929 Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838). 930 37 U.S. at 736-37. 

munity as sovereigns passed to the United States for their benefit, 

as did their tribal properties. 925

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. 926 It is hardly surprising, therefore, that during 

its first sixty years the only state disputes coming to the Supreme 

Court were boundary disputes 927 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 928 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, 929 that a boundary dispute is a justiciable and not a political question, 930 and that a prescribed rule of 

decision is unnecessary in such cases. On the last point, Justice 

ART. III—JUDICIAL DEPARTMENT 791

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

931 37 U.S. at 737. Chief Justice Taney dissented because of his belief that the 

issue was not one of property in the soil, but of sovereignty and jurisdiction, and 

hence political. Id. at 752-53. For different reasons, it should be noted, a suit between private parties respecting soil or jurisdiction of two States, to which neither 

State is a party, does not come within the original jurisdiction of the Supreme 

Court. Fowler v. Lindsey, 3 U.S. (3 Dall.) 411 (1799). For recent boundary cases, 

see United States v. Maine (Rhode Island and New York Boundary Case), 469 U.S. 

504 (1985); United States v. Louisiana (Alabama and Mississippi Boundary Case), 

470 U.S. 93 (1985); United States v. Maine, 475 U.S. 89 (1986); Georgia v. South 

Carolina, 497 U.S. 336 (1990); Mississippi v. Louisiana, 506 U.S. 73 (1992). 932 180 U.S. 208 (1901). 933 206 U.S. 46 (1907). See also Idaho ex rel. Evans v. Oregon and Washington, 

444 U.S. 380 (1980). 934 283 U.S. 336 (1931). 

Baldwin stated: ‘‘The submission by the sovereigns, or states, to a 

court of law or equity, of a controversy between them, without prescribing any rule of decision, gives power to decide according to the 

appropriate law of the case (11 Ves. 294); which depends on the 

subject-matter, the source and nature of the claims of the parties, 

and the law which governs them. From the time of such submission, the question ceases to be a political one, to be decided by the 

sic volo, sic jubeo, of political power; it comes to the court, to be 

decided by its judgment, legal discretion and solemn consideration 

of the rules of law appropriate to its nature as a judicial question 

depending on the exercise of judicial power; as it is bound to act 

by known and settled principles of national or municipal jurisprudence, as the case requires.’’ 931

Modern Types of Suits Between States.—Beginning with 

Missouri v. Illinois & Chicago District, 932 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, 933 the Court established the principle of the equitable division of river or water resources between conflicting state interests. In New Jersey v. New York, 934 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 

792 ART. III—JUDICIAL DEPARTMENT 

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

935 283 U.S. at 342. See also Nebraska v. Wyoming, 325 U.S. 589 (1945); Idaho 

ex rel. Evans v. Oregon, 462 U.S. 1017 (1983). In Ohio v. Wyandotte Chemicals 

Corp., 401 U.S. 493 (1971), the Court held it had jurisdiction of a suit by a State 

against citizens of other States to abate a nuisance allegedly caused by the dumping 

of mercury into streams that ultimately run into Lake Erie, but it declined to permit 

the filing because the presence of complex scientific issues made the case more 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). 936South Dakota v. North Carolina, 192 U.S. 286 (1904). 937 Virginia v. West Virginia, 220 U.S. 1 (1911). 938 Arkansas v. Texas, 346 U.S. 368 (1953). 939Kentucky v. Indiana, 281 U.S. 163 (1930). 940Texas 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). 941Pennsylvania v. West Virginia, 262 U.S. 553 (1923). The Court, in Maryland 

v. Louisiana, 451 U.S. 725 (1981), over strong dissent, relied on this case in permitting suit contesting a tax imposed on natural gas, the incidence of which fell on the 

suing State’s consuming citizens. And in Wyoming v. Oklahoma, 502 U.S. 437 

(1992), the Court permitted a State to sue another to contest a law requiring that 

all in-state utilities burn a mixture containing at least 10% in-state coal, the plaintiff State having previously supplied 100% of the coal to those utilities and thus suffering a loss of coal-severance tax revenues. 942 379 U.S. 674 (1965). See also Pennsylvania v. New York, 406 U.S. 206 (1972). 

be tolerated. And, on the other hand, equally little could New Jersey be permitted to require New York to give up its power altogether in order that the river might come down to it undiminished. 

Both States have real and substantial interests in the river that 

must be reconciled as best they may be.’’ 935

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, 936 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, 937 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, 938 of one State 

against another to enforce a contract between the two, 939 of a suit 

in equity between States for the determination of a decedent’s 

domicile for inheritance tax purposes, 940 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. 941

In Texas v. New Jersey, 942 the Court adjudicated a multistate 

dispute about which State should be allowed to escheat intangible 

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943 37 U.S. (12 Pet.) 657 (1838). 944 19 U.S. (6 Wheat.) 264 (1821). 945 19 U.S. at 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). 946 291 U.S. 286 (1934). The Court in recent years, with a significant caseload 

problem, has been loath to permit filings of original actions where the parties might 

be able to resolve their disputes in other courts, even in cases in which the jurisdiction over the particular dispute is exclusively original. Arizona v. New Mexico, 425 

U.S. 794 (1976) (dispute subject of state court case brought by private parties); California v. West Virginia, 454 U.S. 1027 (1981). But in Mississippi v. Louisiana, 506 

U.S. 73 (1992), the Court’s reluctance to exercise original jurisdiction ran afoul of 

the ‘‘uncompromising language’’ of 28 U.S.C. § 1251(a) giving the Court ‘‘original 

and exclusive jurisdiction’’ of these kinds of suits. 

tion. Emphasizing that the States could not constitutionally provide a rule of settlement and that no federal statute governed the 

matter, the Court evaluated the possible rules and chose the one 

easiest to apply and least likely to lead to continuing disputes. 

In general, in taking jurisdiction of these suits, along with 

those involving boundaries and the diversion or pollution of water 

resources, the Supreme Court proceeded upon the liberal construction of the term ‘‘controversies between two or more States’’ enunciated in Rhode Island v. Massachusetts, 943 and fortified by Chief 

Justice Marshall’s dictum in Cohens v. Virginia, 944 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.’’ 945

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, 946 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 

794 ART. III—JUDICIAL DEPARTMENT 

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

947Massachusetts v. Missouri, 308 U.S. 1, 15-16, (1939), citing Florida v. Mellon, 

273 U.S. 12 (1927). 948 306 U.S. 398 (1939). 949 308 U.S. at 17, citing Oklahoma v. Atchison, T. & S.F. Ry., 220 U.S. 277, 

286 (1911), and Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387, 394 (1938). See

also New Hampshire v. Louisiana and New York v. Louisiana, 108 U.S. 76 (1883), 

which held that a State cannot bring a suit on behalf of its citizens to collect on 

bonds issued by another State, and Louisiana v. Texas, 176 U.S. 1 (1900), which 

held that a State cannot sue another to prevent maladministration of quarantine 

laws.950 308 U.S. at 17, 19. 

trustees. In holding that the complaint presented no justiciable 

controversy, the Court declared that to constitute such a controversy, the complainant State must show that it ‘‘has suffered a 

wrong through the action of the other State, furnishing ground for 

judicial redress, or is asserting a right against the other State 

which is susceptible of judicial enforcement according to . . . the 

common law or equity systems of jurisprudence.’’ 947 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, 948 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. 949 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. 950 Accordingly, Massachusetts 

was held not to be without an adequate remedy in Missouri’s 

courts or in a federal district court in Missouri. 

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

A very important issue in interstate litigation is the enforcement 

of the Court’s decree, once it has been entered. In some types of 

suits, this issue may not arise, and if it does, it may be easily met. 

Thus, a judgment putting a State in possession of disputed territory is ordinarily self-executing. But if the losing State should oppose execution, refractory state officials, as individuals, would be 

liable to civil suits or criminal prosecutions in the federal courts. 

Likewise an injunction may be enforced against state officials as 

individuals by civil or criminal proceedings. Those judgments, on 

the other hand, 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 proporVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00168 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
ART. III—JUDICIAL DEPARTMENT 795

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

951The 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. 531 (1916); 246 

U.S. 565 (1918). 952 246 U.S. at 591. 953 246 U.S. at 600. 954 246 U.S. at 601. 955 C. WARREN, THE SUPREME COURT AND SOVEREIGN STATES 78-79 (1924). 956 2 U.S. (2 Dall.) 419 (1793). 957See the discussion under the Eleventh Amendment. 

tion of the state debt of original Virginia owed by West Virginia 

after its separate admission to the Union under a compact which 

provided that West Virginia assume a share of the debt. 

The suit was begun in 1906, and a judgment was rendered 

against West Virginia in 1915. Finally, in 1917, Virginia filed a 

suit against West Virginia to show cause why, in default of payment of the judgment, an order should not be entered directing the 

West Virginia legislature to levy a tax for payment of the judgment. 951 Starting with the rule that the judicial power essentially 

involves the right to enforce the results of its exertion, 952 the Court 

proceeded to hold that it applied with the same force to States as 

to other litigants 953 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.’’ 954 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. 955

Controversies Between a State and Citizens of Another 

State

The decision in Chisholm v. Georgia 956 that this category of 

cases included those where a State was a party defendant provoked 

the proposal and ratification of the Eleventh Amendment, and 

since then controversies between a State and citizens of another 

State have included only those cases where the State has been a 

party plaintiff or has consented to be sued. 957 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 simultaVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00169 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
796 ART. III—JUDICIAL DEPARTMENT 

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

958Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. Mellon, 273 U.S. 12 

(1927); New Jersey v. Sargent, 269 U.S. 328 (1926). 959Pennsylvania v. Quicksilver Co., 77 U.S. (10 Wall.) 553 (1871); California v. 

Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities Co., 184 

U.S. 199 (1902). 960Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888). 961 19 U.S. (6 Wheat.) 264, 398-399 (1821). 962Pennsylvania v. Quicksilver Mining Co., 77 U.S. (10 Wall.) 553 (1871). 963 California v. Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities Co., 184 U.S. 199 (1902). 964 19 U.S. (6 Wheat.) at 398-399. 965 127 U.S. 265 (1888). 966 2 U.S. (2 Dall.) 419, 431-432 (1793). 967 127 U.S. at 289-300. 

neously comes within its original jurisdiction, by perhaps an even 

more rigorous application of the concepts of cases and controversies 

than that in cases between private parties. 958 This it does by holding rigorously to the rule that all the party defendants be citizens 

of other States 959 and by adhering to congressional distribution of 

its original jurisdiction concurrently with that of other federal 

courts. 960

Jurisdiction Confined to Civil Cases.—In Cohens v. Virginia, 961 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 that the corporation against which the suit was brought was 

chartered in another State. 962 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. 963 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. 964 Sixty-seven years later, the Court wrote this dictum into 

law in Wisconsin v. Pelican Ins. Co. 965 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, 966 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. 967

The State’s Real Interest.—Ordinarily, a State may not sue 

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ART. III—JUDICIAL DEPARTMENT 797

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

968Pennsylvania v. Wheeling & B. Bridge Co., 54 U.S. (13 How.) 518, 559 

(1852); Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938); Georgia v. Evans, 

316 U.S. 159 (1942). 969South Dakota v. North Carolina, 192 U.S. 286 (1904). 970 New Hampshire v. Louisiana, 108 U.S. 76 (1883). 971Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938). 972 220 U.S. 277 (1911). 973 324 U.S. 439 (1945). 974 324 U.S. at 447-48 (quoting from Georgia v. Tennessee Copper Co., 206 U.S. 

230, 237 (1907), in which the State was permitted to sue 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, 968 and if it 

sues for its own interest as owner of another State’s bonds, rather 

than as an assignee for collection, jurisdiction exists. 969 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. 970 Nor can a State sue on behalf of its own 

citizens the citizens of other States to collect claims. 971

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., 972

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.R., 973 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 rather ‘‘embrace 

the so called ‘quasi-sovereign’ interests which . . . are ‘independent 

of and behind the titles of its citizens, in all the earth and air within its domain.’’’ 974

Discriminatory freight rates, the Justice continued, may cause 

a blight no less serious than noxious gases in that they may arrest 

798 ART. III—JUDICIAL DEPARTMENT 

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

975Georgia v. Pennsylvania R. R. Co., 324 U.S. 439, 468 (1945). Chief Justice 

Stone and Justices Roberts, Frankfurter, and Jackson dissented. 976 In Hawaii v. Standard Oil Co., 405 U.S. 251 (1972), the Court, five-to-two, 

held that the State could not maintain an action for damages parens patriae under

the Clayton Act and limited the previous case to instances in which injunctive relief 

is sought. Hawaii had brought its action in federal district court. The result in Hawaii was altered by Pub. L. 94-435, 90 Stat. 1383 (1976), 15 U.S.C. § 15c et

seq., but the decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), reduced 

in importance the significance of the law. 977Most 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). 978 262 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.’’ 975

The continuing vitality of this case is in some doubt, inasmuch 

as the Court has limited it in a similar case. 976 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. 977

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, 978 ‘‘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 799

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

979 383 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). 980 79 Stat. 437 (1965), 42 U.S.C. § 1973 et seq. 981The 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). 982The 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. R. Co., 

324 U.S. 439.’’ Id. at 307 But surely this did not have reference to that case’s parens

patriae holding. 983See Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. Mellon, 273 

U.S. 12 (1927); Jones ex rel. Louisiana v. Bowles, 322 U.S. 707 (1944). See especially Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867); Mississippi v. Johnson, 71 

U.S. (4 Wall.) 475 (1867). In Oregon v. Mitchell, 400 U.S. 112 (1970), four original 

actions were consolidated and decided. Two were actions by the United States 

against States, but the other two were suits by States against the Attorney General, 

as a citizen of New York, seeking to have the Voting Rights Act Amendments of 

1970 voided as unconstitutional. South Carolina v. Katzenbach was uniformly relied 

on by all parties as decisive of the jurisdictional question, and in announcing the 

judgment of the Court Justice Black simply noted that no one raised jurisdictional 

or justiciability questions. Id. at 117 n.1. And see id. at 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). 984 Bickel, The Voting Rights Cases, 1966 SUP. CT. REV. 79, 80-93. 

flow from that status.’’ But in South Carolina v. Katzenbach, 979

while holding that the State lacked standing under Massachusetts

v. Mellon to attack the constitutionality of the Voting Rights Act 

of 1965 980 under the Fifth Amendment’s due-process clause and 

under the bill-of-attainder clause of Article I, 981 the Court proceeded to decide on the merits the State’s claim that Congress had 

exceeded its powers under the Fifteenth Amendment. 982 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. 983 Either alternative possibility 

would be significant in a number of respects. 984

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 difVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00173 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
800 ART. III—JUDICIAL DEPARTMENT 

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985Friendly, The Historic Basis of Diversity Jurisdiction, 41 HARV. L. REV. 483 

(1928). 986 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. 987 Bank of the United States v. Deveaux, 9 U.S. (5 Cr.) 61, 87 (1809). 988Summarized and discussed in C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 23 (4th ed. 1983); AMERICAN LAW INSTITUTE, STUDY OF THE DIVISION

OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS 99-110, 458-464 (1969). 989The principal proposals are those of the American Law Institute. Id. at 123- 

34. 990 6 U.S. (2 Cr.) 445 (1805). 

ferent States, 985 but since the Judiciary Act of 1789 ‘‘diversity jurisdiction’’ has been bestowed statutorily on the federal courts. 986

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.’’ 987 Other explanations have been offered and controverted, 988 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. 989 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, 990 Chief Justice Marshall for the 

Court confined the meaning of the word ‘‘State’’ as used in the Constitution to ‘‘the members of the American confederacy’’ and ruled 

that a citizen of the District of Columbia could not sue a citizen of 

Virginia on the basis of diversity of citizenship. Marshall noted 

that it was ‘‘extraordinary that the courts of the United States, 

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991 6 U.S. at 453. 992 City of New Orleans v. Winter, 14 U.S. (1 Wheat.) 91 (1816). 993 54 Stat. 143 (1940), as revised, 28 U.S.C. § 1332(d). 994 337 U.S. 582 (1948). 995 337 U.S. at 655 (Justice Frankfurter dissenting). 996The statute’s provision allowing citizens of Puerto Rico to sue in diversity 

was sustained in Americana of Puerto Rico v. Kaplus, 368 F.2d 431 (3d Cir. 1966), 

cert. denied, 386 U.S. 943 (1967), under Congress’ 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). 997 Chicago & N.W.R.R. v. Ohle, 117 U.S. 123 (1886). 998Sun Printing & Pub. Ass’n v. Edwards, 194 U.S. 377 (1904). 999Knox v. Greenleaf, 4 U.S. (4 Dall.) 360 (1802); Shelton v. Tiffin, 47 U.S. (6 

How.) 163 (1848); Williamson v. Osenton, 232 U.S. 619 (1914). 

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.’’ 991 The same rule was subsequently applied to citizens of the territories of the United States. 992

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.’’ 993 In National Mutual Ins. Co. v. Tidewater Transfer Co., 994

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,’’ 995 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. 996

Citizenship of Natural Persons.—For purposes of diversity 

jurisdiction, state citizenship is determined by the concept of domicile 997 rather than of mere residence. 998 That is, while the Court’s 

definition has varied throughout the cases, 999 a person is a citizen 

of the State in which he has his true, fixed, and permanent home 

and principal establishment and to which he intends to return 

802 ART. III—JUDICIAL DEPARTMENT 

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1000Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954). 1001Shelton v. Tiffin, 47 U.S. (6 How.) 163 (1848). 1002Williamson v. Osenton, 232 U.S. 619 (1914). 1003 Jones v. League, 59 U.S. (18 How.) 76 (1855). 1004 28 U.S.C. § 1332(a)(1). 1005Strawbridge v. Curtiss, 7 U.S. (3 Cr.) 267 (1806). 1006 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). 1007 In domestic relations cases and probate matters, the federal courts will not 

act, though diversity exists. Barber v. Barber, 62 U.S. (21 How.) 582 (1858); Ex 

parte Burrus, 136 U.S. 586 (1890); In re Broderick’s Will, 88 U.S. (21 Wall.) 503 

(1875). These cases merely enunciated the rule, without justifying it; when the 

Court squarely faced the issue quite recently, it adhered to the rule, citing justifications. Ankenbrandt v. Richards, 504 U.S. 689 (1992). 1008 9 U.S. (5 Cr.) 61, 86 (1809). 

whenever he is absent from it. 1000 Acts may disclose intention more 

clearly and decisively than declarations. 1001 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, 1002 provided the change is more than a temporary expedient. 1003

If the plaintiff and the defendant are citizens of different 

States, diversity jurisdiction exists regardless of the State in which 

suit is brought. 1004 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. 1005 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. 1006 The Court has also placed some 

issues beyond litigation in federal courts in diversity cases, apparently solely on policy grounds. 1007

Citizenship of Corporations.—In Bank of the United States 

v. Deveaux, 1008 Chief Justice Marshall declared: ‘‘That invisible, intangible, and artificial being, that mere legal entity, a corporation 

aggregate, is certainly not a citizen; and consequently cannot sue 

or be sued in the courts of the United States, unless the rights of 

the members, in this respect, can be exercised in their corporate 

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1009 Commercial & Railroad Bank v. Slocomb, 39 U.S. (14 Pet.) 60 (1840). 1010Strawbridge v. Curtiss, 7 U.S. (3 Cr.) 267 (1806). 1011Louisville, C. & C.R.R. v. Letson, 43 U.S. (2 How.) 497, 558 (1844). 1012Marshall v. Baltimore & Ohio R.R., 57 U.S. (16 How.) 314 (1854). See Muller

v. Dows, 94 U.S. 444 (1877); St. Louis & S.F. Ry. v. James, 161 U.S. 545 (1896). 

The Court has more than once pronounced that the Marshall position is settled. 

E.g., United Steelworkers v. R. H. Bouligny, Inc., 382 U.S. 145, 147 (1965); Carden 

v. Arkoma Associates, 494 U.S. 185, 189 (1990). 1013 § 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). 1014See United Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145, 148 (1965). 1015 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. 

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, 1009 but the pressures were building for change, 

because of the increased economic role of the corporation and because the Strawbridge rule 1010 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.’’ 1011 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. 1012 Through this fiction, substantially unchanged 

today, 1013 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. 1014 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. 1015

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 

804 ART. III—JUDICIAL DEPARTMENT 

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

1016Great 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, Inc., 382 U.S. 145 (1965); Carden v. 

Arkoma Associates, 494 U.S. 185 (1990). But compare Navarro Savings Ass’n v. Lee, 

446 U.S. 458 (1980), distinguished in Carden, 494 U.S. at 195-197. 1017 § 11, 1 Stat. 78, sustained in Turner v. Bank of North America, 4 U.S. (4 

Dall.) 8 (1799), and Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). The present statute, 28 U.S.C. § 1359, provides that no jurisdiction exists in a civil action ‘‘in which 

any party, by assignment or otherwise, has been improperly or collusively made or 

joined to invoke the jurisdiction of such court.’’ See Kramer v. Carribean Mills, 394 

U.S. 823 (1969). 1018Williamson v. Osenton, 232 U.S. 619 (1914); Morris v. Gilmer, 129 U.S. 315 

(1889). 1019Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183 (1931). 1020Miller & Lux v. East Side Canal & Irrigation Co., 211 U.S. 293 (1908). 1021 E.g., Southern Realty Co. v. Walker, 211 U.S. 603 (1909). 1022 276 U.S. 518 (1928). 1023 276 U.S. at 532 (joined by Justices Brandeis and Stone). Justice Holmes 

here presented his view that Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842), had been 

wrongly decided, but he preferred not to overrule it, merely ‘‘not allow it to spread 

... into new fields.’’ 276 U.S. at 535. 

citizenship of each of its members must be considered in determining whether diversity exists. 1016

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. 1017 One could create diversity by a 

bona fide change of domicile even with the sole motive of creating 

domicile. 1018 Similarly, one could create diversity, or defeat it, by 

choosing a personal representative of the requisite citizenship. 1019

By far, the greatest number of attempts to manufacture or create 

diversity have concerned corporations. A corporation cannot get 

into federal court by transferring its claim to a subsidiary incorporated in another State, 1020 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. 1021 But

in Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 1022 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, 1023

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1024The section provided that ‘‘the laws of the several states, except where the 

constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts 

of the United States in cases where they apply.’’ 1 Stat. 92. With only insubstantial 

changes, the section now appears as 28 U.S.C. § 1652. For a concise review of the 

entire issue, see C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS ch. 9 (4th 

ed. 1983). 1025 41 U.S. (16 Pet.) 1 (1842). The issue in the case was whether a pre-existing 

debt was good consideration for an indorsement of a bill of exchange so that the endorsee would be a holder in due course. 1026 41 U.S. at 19. The Justice concluded this portion of the opinion: ‘‘The law 

respecting negotiable instruments may be truly declared in the language of Cicero, 

adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. R. 883, 887, to be in great 

measure, not the law of a single country only, but of the commercial world. Nun

erit alia lex Romae, alia Athenis; alia munc, alia posthac, sed et apud omnes gentes, 

et omni tempore una eademque lex obtenebit.’’ Id. The thought that the same law 

should prevail in Rome as in Athens was used by Justice Story in DeLovio v. Boit, 

7 Fed. Cas. 418, 443 (No. 3776) (C.C.D. Mass. 1815). For a modern utilization, 

see United States v. Jefferson County Board of Education, 372 F.2d 836, 861 (5th 

Cir. 1966); 380 F.2d 385, 398 (5th Cir. 1967) (dissenting opinion). 1027The expansions included: Lane v. Vick, 44 U.S. (3 How.) 464 (1845) (wills); 

City of Chicago v. Robbins, 67 U.S. (2 Bl.) 418 (1862), and Baltimore & Ohio R.R. 

v. Baugh, 149 U.S. 368 (1893) (torts); Yates v. City of Milwaukee, 77 U.S. (10 Wall.) 

497 (1870) (real estate titles and rights of riparian owners); Kuhn v. Fairmont Coal 

Co., 215 U.S. 349 (1910) (mineral conveyances); Rowan v. Runnels, 46 U.S. (5 How.) 

134 (1847) (contracts); Lake Shore & M.S. Ry. v. Prentice, 147 U.S. 101 (1893). It 

was strongly contended that uniformity, the goal of Justice Story’s formulation, was 

not being achieved, in great part because state courts followed their own rules of 

decision even when prior federal decisions were contrary. Frankfurter, Distribution

of Judicial Power Between Federal and State Courts, 13 CORNELL L.Q. 499, 529 n. 

saw no collusion and upheld diversity, meaning that the company 

won whereas it would have lost had it sued in the state court. 

Black & White Taxicab probably more than anything led to a reexamination of the decision on the choice of law to be applied in diversity litigation. 

The Law Applied in Diversity Cases.—By virtue of § 34 of 

the Judiciary Act of 1789, 1024 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, 1025 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.’’ 1026 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. 1027 Although

806 ART. III—JUDICIAL DEPARTMENT 

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150 (1928). Moreover, the Court held that while state court interpretations of state 

statutes or constitutions were to be followed, federal courts could ignore them if they 

conflicted with earlier federal constructions of the same statute or constitutional 

provision, Rowan v. Runnels, 46 U.S. (5 How.) 134 (1847), or if they had been rendered after the case had been tried in federal court, Burgess v. Seligman, 107 U.S. 

20 (1883), thus promoting lack of uniformity. See also Gelpcke v. City of Debuque, 

68 U.S. (1 Wall.) 175 (1865); Williamson v. Berry, 49 U.S. (8 How.) 495 (1850); 

Pease v. Peck, 59 U.S. (18 How.) 595 (1856); Watson v. Tarpley, 59 U.S. (18 How.) 

517 (1856). 1028 Extensions of the scope of Tyson frequently were rendered by a divided 

Court over the strong protests of dissenters. E.g., Gelpcke v. City of Debuque, 68 

U.S. (1 Wall.) 175 (1865); Lane v. Vick, 44 U.S. (3 How.) 463 (1845); Kuhn v. Fairmont Coal Co., 215 U.S. 349 (1910). In Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 

368, 401-404 (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. 1029 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). 1030 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 20 (1967). 1031 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 355 (4th ed. 1983). 

See Judge Friendly’s exposition, In Praise of Erie—And of the New Federal Common 

Law, in H. FRIENDLY, BENCHMARKS 155 (1967). 

dissatisfaction with Swift v. Tyson was almost always present, 

within and without the Court, 1028 it was the Court’s decision in 

Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab 

& Transfer Co., 1029 which brought disagreement to the strongest 

point and perhaps precipitated the overruling of Swift v. Tyson in

Erie Railroad Co. v. Tompkins. 1030

‘‘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.’’ 1031 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 constituVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00180 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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1032 304 U.S. at 157-164, 171 n.71. 1033This 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. denied, 305 U.S. 

637 (1938). 1034 Erie Railroad Co. v. Tompkins, 304 U.S. 64, 72-73 (1938), citing Warren, 

New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. 

REV. 49 84-88 (1923). See C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL

COURTS 353 (4th ed. 1983). 1035 304 U.S. at 77-78 (footnote citations omitted). 1036 Congress had re-enacted § 34 as § 721 of the Revised Statutes, citing Swift

v. Tyson in its annotation, thus presumably accepting the gloss placed on the words 

by that ruling. But note that Justice Brandeis did not think even the re-enacted 

statute was unconstitutional. 304 U.S. at 79-80. See H. FRIENDLY, BENCHMARKS

161-163 (1967). Perhaps a more compelling reason of policy was that stated by Justice Frankfurter rejecting for the Court a claim that the general grant of federal 

question jurisdiction to the federal courts in 1875 made maritime suits cognizable 

on the law side of the federal courts. ‘‘Petitioner now asks us to hold that no student 

of the jurisdiction of the federal courts or of admiralty, no judge, and none of the 

learned and alert members of the admiralty bar were able, for seventy-five years, 

to discern the drastic change now asserted to have been contrived in admiralty jurisdiction by the Act of 1875. In light of such impressive testimony from the past 

tional 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. 1032

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; 1033 the general 

federal law treated him as a licensee who could recover for negligence. Tompkins sued and recovered in federal court in New York 

and the railroad presented the issue to the Supreme Court as one 

covered by ‘‘local’’ law within the meaning of Swift v. Tyson. Justice 

Brandeis for himself and four other Justices, however, chose to 

overrule the early case. 

First, it was argued that Tyson had failed to bring about uniformity of decision and that its application discriminated against 

citizens of a State by noncitizens. Justice Brandeis cited recent researches 1034 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.’’ 1035 For a number 

of reasons, it would not have been wise to have overruled Tyson on

the basis of arguable new discoveries. 1036

808 ART. III—JUDICIAL DEPARTMENT 

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

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 Railroad 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). 1037 304 U.S. at 78. Justice Brandeis does not argue the constitutional issue and 

does not cite either provisions of the Constitution or precedent beyond the views of 

Justices Holmes and Field. Id. at 78-79. Justice Reed thought that Article III and 

the necessary and proper clause might contain authority. Id. at 91-92 (Justice Reed 

concurring in the result). For a formulation of the constitutional argument in favor 

of the Brandeis position, see H. FRIENDLY, BENCHMARKS 167-171 (1967). See also 

Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 202, 208 (1956); Hanna v. 

Plumer, 380 U.S. 460, 471-472 (1965). 1038 304 U.S. at 79-80. 1039 304 U.S. at 78. Erie applies in equity as well as in law. Ruhlin v. New York 

Life Ins. Co., 304 U.S. 202 (1938). 1040West 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). 

Second, the decision 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.’’ 1037 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.’’ 1038

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.’’ 1039

Since 1938, the effect of Erie has first increased and then diminished, as the nature of the problems presented changed. Thus, 

the Court at first indicated that not only were the decisions of the 

highest court of a State binding on a federal court in diversity, but 

also decisions of intermediate appellate courts 1040 and courts of 

ART. III—JUDICIAL DEPARTMENT 809

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

1041Fidelity Union Trust Co., v. Field, 311 U.S. 169 (1940). 1042King v. Order of Commercial Travelers of America, 333 U.S. 153 (1948); 

Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 205 (1956) (1910 decision 

must be followed in absence of confusion in state decisions since there were ‘‘no developing line of authorities that cast a shadow over established ones, no dicta, 

doubts or ambiguities . . . , no legislative development that promises to undermine 

the judicial rule’’). See also Commissioner v. Estate of Bosch, 387 U.S. 456, 465 

(1967). 1043 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). 1044Klaxon 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). 1045 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. 1046Guaranty Trust Co. v. York, 326 U.S. 99 (1945). 

first instance, 1041 even where the decisions bound no other state 

judge except as they were persuasive on their merits. It has now 

retreated from this position, concluding that federal judges are to 

give careful consideration to lower state court decisions and to old, 

perhaps outmoded decisions, but that they must find for themselves the state law if the State’s highest court has not spoken definitively within a period which would raise no questions about the 

continued viability of the decision. 1042 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. 1043 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. 1044

The greatest difficulty in applying the Erie doctrine has been 

in cases in which issues of procedure were important. 1045 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. 1046 The Court regarded the substance-procedure distinction as immaterial. ‘‘[S]ince 

810 ART. III—JUDICIAL DEPARTMENT 

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

1047 326 U.S. at 108-09. 1048 326 U.S. at 109. 1049 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). 1050 Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525 (1958). 1051Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). The decision 

was five-to-four, so that the precedent may or may not be stable for future application.

a federal court adjudicating a state-created right solely because of 

the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State, it cannot afford recovery if the 

right to recover is made unavailable by the State nor can it substantially affect the enforcement of the right as given by the 

State.’’ 1047 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 jurisdiction solely because of the 

diversity of citizenship of the parties, the outcome of the litigation 

in the federal court should be substantially the same, so far as 

legal rules determine the outcome of a litigation, as it would be if 

tried in a State court.’’ 1048 The Court’s application of this standard 

created substantial doubt that the Federal Rules of Civil Procedure 

had any validity in diversity cases. 1049

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. 1050

Some confusion has been injected into consideration of which law 

to apply—state or federal—in the absence of a federal statute or a 

Federal Rule of Civil Procedure. 1051 In an action for damages, the 

federal courts were faced with the issue of the application either 

of a state statute, which gave the appellate division of the state 

courts the authority to determine if an award is excessive or inadequate if it deviates materially from what would be reasonable compensation, or of a federal judicially-created practice of review of 

awards as so exorbitant that it shocked the conscience of the court. 

The Court determined that the state statute was both substantive 

and procedural, which would result in substantial variations beVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00184 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies 

1052 E.g., Guaranty Trust Co. v. York, 326 U.S. 99 (1945). 

1053 E.g., Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958). 

1054 19 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4511, at 311 (2d ed. 1996). 

1055 Hanna v. Plumer, 380 U.S. 460 (1965). 

1056Maternally 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). 

1057 Clearfield Trust Co. v. United States, 318 U.S. 363 (1943). See also National

Metropolitan Bank v. United States, 323 U.S. 454 (1945); D’Oench, Duhme & Co. 

v. FDIC, 315 U.S. 447 (1942); United States v. Standard Rice Co., 323 U.S. 106 

(1944); United States v. Acri, 348 U.S. 211 (1955); Ivanhoe Irrigation District v. 

McCracken, 357 U.S. 275 (1958); Bank of America Nat’l Trust & Savings Ass’n v. 

Parnell, 352 U.S. 29 (1956). But see United States v. Yazell, 382 U.S. 341 (1966). 

But see O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994). 

tween state and federal damage awards depending whether the 

state or the federal approach was applied; it then followed the 

mode of analysis exemplified by those cases emphasizing the importance of federal courts reaching the same outcome as would the 

state courts, 1052 rather than what had been the prevailing standard, in which the Court balanced state and federal interests to determine which law to apply. 1053 Emphasis upon either approach to 

considerations of applying state or federal law reflects a continuing 

difficulty of accommodating ‘‘the constitutional power of the states 

to regulate the relations among their citizens . . . [and] the constitutional power of the federal government to determine how its courts 

are to be operated.’’ 1054 Additional decisions will be required to determine which approach, if either, prevails. The latter ruling simplified the matter greatly. Erie is not to be the proper test when 

the question is the application of one of the Rules of Civil Procedure; if the rule is valid when measured against the Enabling Act 

and the Constitution, it is to be applied regardless of state law to 

the contrary. 1055

Although it seems clear that Erie applies in nondiversity cases 

in which the source of the right sued upon is state law, 1056 it is 

equally clear that Erie is not applicable always in diversity cases 

whether the nature of the issue be substantive or procedural. Thus, 

it may be that there is an overriding federal interest which compels 

national uniformity of rules, such as a case in which the issue is 

the appropriate rule for determining the liability of a bank which 

had guaranteed a forged federal check, 1057 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 

812 ART. III—JUDICIAL DEPARTMENT 

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

1058 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). 1059 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). 1060Free v. Bland, 369 U.S. 663 (1962); Yiatchos v. Yiatchos, 376 U.S. 306 

(1964). 1061The 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). 1062 2 M. Farrand, supra at 162, 171, 184. 1063 Id. at 400-401. 1064 Id. at 431. 1065See Pawlet v. Clark, 13 U.S. (9 Cr.) 292 (1815). Cf. City of Trenton v. New 

Jersey, 262 U.S. 182 (1923). 

services, 1058 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. 1059 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. 1060 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. 1061

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, 1062 but this proposal was defeated in the Convention, 1063 which then added this clause to the jurisdiction of the federal judiciary without reported debate. 1064 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 Northwest Ordinance of 1787, the ultimate settlement of the boundary 

disputes, and the passing of land grants by the States, this clause, 

never productive of many cases, became obsolete. 1065

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 fedVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00186 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
ART. III—JUDICIAL DEPARTMENT 813

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

1066The Schooner Exchange v. McFaddon, 11 U.S. (7 Cr.) 116 (1812); Berizzi 

Bros. Co. v. S.S. Pesaro, 271 U.S. 562 (1926); Compania Espanola v. The Navemar, 

303 U.S. 68 (1938); Guaranty Trust Co. v. United States, 304 U.S. 126, 134 (1938). 1067Principality of Monaco v. Mississippi, 292 U.S. 313, 330 (1934). 1068 292 U.S. at 330. 1069 But in the absence of a federal question, there is no basis for jurisdiction 

between the subjects of a foreign State. Romero v. International Terminal Operating 

Co., 358 U.S. 354 (1959). The Foreign Sovereign Immunities Act of 1976, Pub. L. 

94-538, 90 Stat. 2891, amending various sections of title 28 U.S.C., comprehensively 

provided jurisdictional bases for suits by and against foreign states and appears as 

well to comprehend suits by an alien against a foreign state which would be beyond 

the constitutional grant. However, in the only case in which that matter has been 

an issue before it, the Court has construed the Act as creating a species of federal 

question jurisdiction. Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480 

(1983). 1070The Sapphire, 78 U.S. (11 Wall.) 164, 167 (1871). 1071 78 U.S. at 167 This case also held that a change in the person of the sovereign does not affect the continuity or rights of national sovereignty, including the 

right to bring suit or to continue one that has been brought. 1072Guaranty Trust Co. v. United States, 304 U.S. 126, 137 (1938), citing Jones 

v. United States, 137 U.S. 202, 212 (1890); Matter of Lehigh Valley R.R., 265 U.S. 

573 (1924). Whether a government is to be regarded as the legal representative of 

a foreign state is, of course, a political question. 1073 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. 

eral courts without its consent, 1066 an immunity which extends to 

suits brought by States of the American Union. 1067 Conversely, the 

Eleventh Amendment has been construed to bar suits by foreign 

states against a State of the United States. 1068 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. 1069

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. 1070 To deny a sovereign this privilege ‘‘would 

manifest a want of comity and friendly feeling.’’ 1071 Although national sovereignty is continuous, a suit in behalf of a national sovereign can be maintained in the courts of the United States only 

by a government which has been recognized by the political 

branches of our own government as the authorized government of 

the foreign state. 1072 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. 1073 Once a foreign government avails itself of the 

814 ART. III—JUDICIAL DEPARTMENT 

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

1074Guaranty 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.’’ 1075 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.’’ 1076Guaranty 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.’’ 1077 30 U.S. (5 Pet.) 1, 16-20 (1831). 1078 Hodgson & Thompson v. Bowerbank, 9 U.S. (5 Cr.) 303 (1809). 

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. 1074 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. 1075

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. 1076

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, 1077 where Chief Justice Marshall conceded that 

the Cherokee Nation was a state, but not a foreign state, being a 

part of the United States and dependent upon it. Other passages 

of the opinion specify the elements essential of a foreign state for 

purposes of jurisdiction, such as sovereignty and independence. 

Narrow Construction of the Jurisdiction.—As in cases of 

diversity jurisdiction, suits brought to the federal courts under this 

category must clearly state in the record the nature of the parties. 

As early as 1809, the Supreme Court ruled that a federal court 

could not take jurisdiction of a cause where the defendants were 

described in the record as ‘‘late of the district of Maryland,’’ but 

were not designated as citizens of Maryland, and plaintiffs were described as aliens and subjects of the United Kingdom. 1078 The meticulous care manifested in this case appeared twenty years later 

ART. III—JUDICIAL DEPARTMENT 815

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1079 Jackson v. Twentyman, 27 U.S. (2 Pet.) 136 (1829); Romero v. International 

Terminal Operating Co., 358 U.S. 354 (1959). 1080 Coal Co. v. Blatchford, 78 U.S. (11 Wall.) 172 (1871). See, however, 

Lacassagne v. Chapuis, 144 U.S. 119 (1892), which held that a lower federal court 

had jurisdiction over a proceeding to impeach its former decree, although the parties 

were new and were both aliens. 1081 Browne v. Strode, 9 U.S. (5 Cr.) 303 (1809). 1082 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. 1083 2 U.S. (2 Dall.) 419 (1793). In an earlier case, the point of jurisdiction was 

not raised. Georgia v. Brailsford, 2 U.S. (2 Dall.) 402 (1792). 1084 1 Stat. 80. 

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. 1079

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. 1080 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. 1081

Clause 2. In all Cases affecting Ambassadors, other public 

Ministers and Consuls, and those in which a State shall be a 

Party, the Supreme Court shall have original Jurisdiction. In 

all other Cases before mentioned, the Supreme Court shall 

have appellate Jurisdiction, both as to Law and Fact, with such 

Exceptions, and under such Regulations as the Congress shall 

make.

THE ORIGINAL JURISDICTION OF THE SUPREME 

COURT

From the beginning, the Supreme Court has assumed that its 

original jurisdiction flows directly from the Constitution and is 

therefore self-executing without further action by Congress. 1082 In

Chisholm v. Georgia, 1083 the Court entertained an action of assumpsit against Georgia by a citizen of another State. Congress in 

§ 3 of the Judiciary Act of 1789 1084 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 

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816 ART. III—JUDICIAL DEPARTMENT 

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1085On the Eleventh Amendment, see infra. 1086Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861). 1087Marbury v. Madison, 5 U.S. (1 Cr.) 137, 174 (1803). 1088 In § 3 of the 1789 Act. The present division is in 28 U.S.C. § 1251. 1089 United States v. Ravara, 2 U.S. (2 Dall.) 297 (C.C.Pa. 1793). 1090 Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657 (1838); Bors v. Preston, 111 U.S. 252 (1884); Ames v. Kansas ex rel. Johnston, 111 U.S. 449 (1884). 

Such suits could be brought and maintained in state courts as well, 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). 1091Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888). 1092 127 U.S. at 297. See also the dictum in Cohens v. Virginia, 19 U.S. (6 

Wheat.) 264, 398-99 (1821); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 431-32 (1793). 

nal 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. 1085

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.’’ 1086

Although Chief Justice Marshall apparently assumed the 

Court had exclusive jurisdiction of cases within its original jurisdiction, 1087 Congress from 1789 on gave the inferior federal courts 

concurrent jurisdiction in some classes of such cases. 1088 Sustained

in the early years on circuit, 1089 this concurrent jurisdiction was finally approved by the Court itself. 1090 The Court has also relied on 

the first Congress’ interpretation of the meaning of Article III 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. 1091 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.’’ 1092

ART. III—JUDICIAL DEPARTMENT 817

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1093Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803). The Chief Justice declared 

that ‘‘a negative or exclusive sense’’ had to be given to the affirmative enunciation 

of the cases to which original jurisdiction extends. Id. at 174. This exclusive interpretation has been since followed. Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807); New 

Jersey v. New York, 30 U.S. (5 Pet.) 284 (1831); Ex parte Barry, 43 U.S. (2 How.) 

65 (1844); Ex parte Vallandigham, 68 U.S. (1 Wall.) 243, 252 (1864); Ex parte 

Yerger, 75 U.S. (8 Wall.) 85, 98 (1869). In the curious case of Ex parte Levitt, 302 

U.S. 633 (1937), the Court was asked to unseat Justice Black on the ground that 

his appointment violated Article I. § 6, cl.2. Although it rejected petitioner’s application, the Court did not point out that it was being asked to assume original jurisdiction in violation of Marbury v. Madison. 1094 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). 1095 Utah v. United States, 394 U.S. 89, 95 (1968). 1096 California v. Southern Pacific Co., 157 U.S. 229, 261 (1895). Indeed, the use 

of the word ‘‘sparingly’’ in this context is all but ubiquitous. E.g., Wyoming v. Oklahoma, 502 U.S. 437, 450 (1992); Maryland v. Louisiana, 451 U.S. 725, 739 (1981); 

United States v. Nevada, 412 U.S. 534, 538 (1973). 1097Texas v. New Mexico, 462 U.S. 554, 570 (1983). 1098 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 

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. 1093 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, 1094 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.’’ 1095 Original jurisdiction ‘‘is limited and manifestly to be sparingly exercised, and 

should not be expanded by construction.’’ 1096 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. 1097 It is to be honored ‘‘only in appropriate cases. And the 

question of what is appropriate concerns of course the seriousness 

and dignity of the claim; yet beyond that it necessarily involves the 

availability of another forum where there is jurisdiction over the 

named parties, where the issues tendered may be litigated, and 

where appropriate relief may be had. We incline to a sparing use 

of our original jurisdiction so that our increasing duties with the 

appellate docket will not suffer.’’ 1098 But where claims are of suffiVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00191 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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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). 1099Wyoming v. Oklahoma, 502 U.S. 437, 451 (1982). The principles are the 

same whether the Court’s jurisdiction is exclusive or concurrent. Texas v. New Mexico, 462 U.S. 554 (1983); California v. West Virginia, 454 U.S. 1027 (1981); Arizona 

v. New Mexico, 425 U.S. 794 (1976). 1100 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, supra. 1101 3 U.S. (3 Dall.) 321 (1796). 1102 Judiciary Act of 1789, § 22, 1 Stat. 84. 

cient ‘‘seriousness and dignity,’’ in which resolution by the judiciary 

is of substantial concern, the Court will hear them. 1099

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. 1100 Supreme Court holdings establish clearly the 

breadth of congressional power, and numerous dicta assert an even 

broader power, but that Congress may through the exercise of its 

powers vitiate and overturn constitutional decisions and restrain 

the exercise of constitutional rights is an assertion often made but 

not sustained by any decision of the Court. 

Appellate Jurisdiction.—In Wiscart v. D’Auchy, 1101 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. 1102 A majority of the Court deVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00192 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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1103Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321, 327 (1796). The dissent thought 

that admiralty cases were not ‘‘civil actions’’ and thus that there was no appellate 

review. Id. at 326-27. See also Clarke v. Bazadone, 5 U.S. (1 Cr.) 212 (1803); Turner 

v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799). 1104Durousseau v. United States, 10 U.S. (6 Cr.) 307, 313-314 (1810). ‘‘Courts 

which are created by written law, and whose jurisdiction is defined by written law, 

cannot transcend that jurisdiction.’’ Ex parte Bollman, 8 U.S. (4 Cr.) 75, 93 (1807) 

(Chief Justice Marshall). Marshall had earlier expressed his Durousseau thoughts

in United States v. More, 7 U.S. (3 Cr.) 159 (1805). 1105 Barry v. Mercein, 46 U.S. (5 How.) 103, 119 (1847) (case held nonreviewable 

because minimum jurisdictional amount not alleged). 1106Daniels v. Railroad Co., 70 U.S. (3 Wall.) 250, 254 (1865) (case held nonreviewable because certificate of division in circuit did not set forth questions in dispute as provided by statute.) 

cided 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.’’ 1103 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.’’ 1104 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.’’ 1105 In order for a case to come within its appellate jurisdiction, the Court has said, ‘‘two things must concur: the Constitution must give the capacity to take it, and an act of Congress must 

supply the requisite authority.’’ Moreover, ‘‘it is for Congress to determine how far, within the limits of the capacity of this court to 

take, appellate jurisdiction shall be given, and when conferred, it 

can be exercised only to the extent and in the manner prescribed 

by law. In these respects it is wholly the creature of legislation.’’ 1106

This congressional power, conferred by the language of Article 

III, § 2, cl. 2, which provides that all jurisdiction not original is to 

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1107 73 U.S. (6 Wall.) 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 1864-88 493-495 (1971). 

McCardle is fully reviewed at pp. 433-514. 1108 By the Act of February 5, 1867, § 1, 14 Stat. 386, Congress had authorized 

appeals to the Supreme Court from circuit court decisions denying habeas corpus. Previous to this statute, the Court’s jurisdiction to review habeas corpus decisions, based in § 14 of the Judiciary Act of 1789, 1 Stat. 81, was somewhat fuzzily 

conceived. Compare United States v. Hamilton, 3 U.S. (3 Dall.) 17 (1795), and Ex

parte Burford, 7 U.S. (3 Cr.) 448 (1806), with Ex parte Bollman, 8 U.S. (4 Cr.) 75 

(1807). The repealing statute was the Act of March 27, 1868, 15 Stat. 44. The repealed act was reenacted March 3, 1885. 23 Stat. 437. 1109 Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). In the course of the opinion, Chief Justice Chase speculated about the Court’s power in the absence of any 

legislation in tones reminiscent of Marshall’s comments. Id. at 513. 1110 74 U.S. At 514. 1111Thus, 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 

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, 1107 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. 1108 Although the Court 

had already heard argument on the merits, it then dismissed for 

want of jurisdiction. 1109 ‘‘We are not at liberty to inquire into the 

motives of the legislature. We can only examine into its power 

under the Constitution; and the power to make exceptions to the 

appellate jurisdiction of this court is given by express words.’’ 

‘‘What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court 

cannot proceed at all in any cause. Jurisdiction is power to declare 

the law, and when it ceases to exist, the only function remaining 

to the court is that of announcing the fact and dismissing the 

cause.’’ 1110 Although McCardle grew out of the stresses of Reconstruction, the principle there applied has been similarly affirmed 

and applied in later cases. 1111

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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, 

supra at 79, 109-120. Other limitations noted heretofore include minimum jurisdictional amounts, restrictions of review to questions of law and to questions certified 

from the circuits, and the scope of review of state court decisions of federal constitutional questions. See Walker v. Taylor, 46 U.S. (5 How.) 64 (1847). Though 

McCardle is the only case in which Congress successfully forestalled an expected decision by shutting off jurisdiction, other cases have been cut off while pending on 

appeal, either inadvertently, Insurance Co. v. Ritchie, 72 U.S. (5 Wall.) 541 (1866), 

or intentionally, Railroad Co. v. Grant, 98 U.S. 398 (1878), by raising the requirements for jurisdiction without a reservation for pending cases. See also Bruner v. 

United States, 343 U.S. 112 (1952); District of Columbia v. Eslin, 183 U.S. 62 

(1901).

1112Supra, ‘‘One Supreme Court’’ and ‘‘Inferior Courts’’. 

1113 Article III, § 1, cl. 2. 

1114Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 374 (1816). For an effort 

to reframe Justice Story’s position in modern analytical terms, see the writings of 

Professors Amar and Clinton, supra and infra. 

1115 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). 

Jurisdiction of the Inferior Federal Courts.—The Framers, 

as we have seen, 1112 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.’’ 1113

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, 1114 the

First Congress acted upon a wholly different theory. Inferior courts 

were created, but jurisdiction generally over cases involving the 

Constitution, laws, and treaties of the United States was not given 

them, diversity jurisdiction was limited by a minimal jurisdictional 

amount requirement and by a prohibition on creation of diversity 

through assignments, equity jurisdiction was limited to those cases 

where a ‘‘plain, adequate, and complete remedy’’ could not be had 

at law. 1115 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 jurisVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00195 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
822 ART. III—JUDICIAL DEPARTMENT 

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1116 4 U.S. (4 Dall.) 8 (1799). 1117 ‘‘[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. 1118Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799). 1119 4 U.S. at 10. 1120 In Ex parte Bollman, 8 U.S. (4 Cr.) 75, 93 (1807), Marshall observed that 

‘‘courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.’’ 1121 United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 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, 37 U.S. (12 Pet.) 657, 721-722 (1838). 1122 44 U.S. (3 How.) 236 (1845). 

diction at their discretion. The cases have generally sustained this 

view.

Thus, in Turner v. Bank of North America, 1116 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. 1117

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 1118 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.’’ 1119 Applying § 11, the Court held that the circuit court had 

lacked jurisdiction. 

Chief Justice Marshall himself soon made similar assertions, 1120 and the early decisions of the Court continued to be 

sprinkled with assumptions that the power of Congress to create 

inferior federal courts necessarily implied ‘‘the power to limit jurisdiction of those Courts to particular objects.’’ 1121 In Cary v. Curtis, 1122 a statute making final the decision of the Secretary of the 

Treasury in certain tax disputes was challenged as an unconstituVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00196 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
ART. III—JUDICIAL DEPARTMENT 823

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1123 44 U.S. at 244-45. Justices McLean and Story dissented, arguing that the 

right to construe the law in all matters of controversy is of the essence of judicial 

power. Id. at 264. 1124Supra. 1125 49 U.S. (8 How.) 441 (1850). 1126 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 Tropical Fruit Co. v. Henderson, 170 

U.S. 511, 513-521 (1898); The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 251-252 

(1868). 1127 By the Voting Rights Act of 1965, Congress required covered States that 

wished to be relieved of coverage to bring actions to this effect in the District Court 

of the District of Columbia. In South Carolina v. Katzenbach, 383 U.S. 301, 331 

(1966), Chief Justice Warren for the Court said: ‘‘Despite South Carolina’s argument 

to the contrary, Congress might appropriately limit litigation under this provision 

to a single court in the District of Columbia, pursuant to its constitutional power 

under Art. III, § 1, to ‘ordain and establish’ inferior federal tribunals.’’ See also 

Palmore v. United States, 411 U.S. 389, 400-402 (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. denied, 424 U.S. 948 (1976). 

tional 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.’’ 1123 Five years later, 

the validity of the assignee clause of the Judiciary Act of 1789 1124

was placed in issue in Sheldon v. Sill, 1125 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, 1126 and has been quite 

recently applied. 1127

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, 

824 ART. III—JUDICIAL DEPARTMENT 

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1128 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). 1129The 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).1130 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). 1131F. FRANKFURTER & I. GREENE, THE LABOR INJUNCTION (1930). 1132 47 Stat. 70 (1932), 29 U.S.C. §§ 101-115. 1133 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.’’ 1134 E.g., New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938); 

Brotherhood of Railroad Trainmen v. Chicago River & I. R.R., 353 U.S. 30 (1957); 

Boys Market v. Retail Clerks Union, 398 U.S. 235 (1970). 1135 56 Stat. 23 (1942). 1136 319 U.S. 182 (1943). 1137 321 U.S. 414 (1944). 

citations for contempt, and many other matters which it might be 

supposed courts had some authority of their own to regulate. 1128

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. 1129

Though the courts have variously interpreted these restrictions, 1130

they have not denied the power to impose them. 

Reacting to judicial abuse of injunctions in labor disputes, 1131

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. 1132 The Court seemingly experienced no difficulty upholding the Act, 1133 and it has liberally applied it through the 

years. 1134

Congress’ power to confer, withhold, and restrict jurisdiction is 

clearly revealed in the Emergency Price Control Act of 1942 1135

and in the cases arising from it. Fearful that the price control program might be nullified by injunctions, Congress provided for a 

special court in which persons could challenge the validity of price 

regulations issued by the Government with appeal from the Emergency Court of Appeals to the Supreme Court. The basic constitutionality of the Act was sustained in Lockerty v. Phillips. 1136 In

Yakus v. United States, 1137 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 

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1138 321 U.S. at 468. In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), 

purportedly in reliance on Yakus and other cases, the Court held that a collateral 

challenge must be permitted to the use of a deportation proceeding as an element 

of a criminal offense where effective judicial review of the deportation order had 

been denied. A statutory scheme similar to that in Yakus was before the Court in 

Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978), but statutory construction enabled the Court to pass by constitutional issues that were not perceived to 

be insignificant. See esp. id. at 289 (Justice Powell concurring). See also Harrison

v. PPG Industries, 446 U.S. 578 (1980), and id. at 594 (Justice Powell concurring). 1139This was Justice Story’s theory propounded in Martin v. Hunter’s Lessee, 

14 U.S. (1 Wheat.) 304, 329-336 (1816). Nevertheless, Story apparently did not believe that the constitutional bestowal of jurisdiction was self-executing and accepted 

the necessity of statutory conferral. White v. Fenner, 29 Fed. Cas. 1015 (No. 17,547) 

(C.C.D.R.I. 1818) (Justice Story). In the present day, it has been argued that the 

presence in the jurisdictional-grant provisions of Article III of the word ‘‘all’’ before 

the subject-matter grants—federal question, admiralty, public ambassadors—mandates federal court review at some level of these cases, whereas congressional discretion exists with respect to party-defined jurisdiction—such as diversity. Amar, A

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. at 1569; Redish, Text, Structure, and Common Sense in the Interpretation of Article III, id. at 1633; and a response by Amar, 

id. at 1651. An approach similar to Professor Amar’s is Clinton, A Mandatory View 

of Federal Jurisdiction: A Guided Quest for the Original Understanding of Article 

III, 132 U. PA. L. REV. 741 (1984); Clinton, Early Implementation and Departures 

from the Constitutional Plan, 86 COLUM. L. REV. 1515 (1986). Though perhaps persuasive as an original interpretation, both theories confront a large number of holdings and dicta as well as the understandings of the early Congresses revealed in 

their actions. See Casto, The First Congress’ Understanding of its Authority over the 

Federal Court’s Jurisdiction, 26 B.C. L. REV. 1101 (1985). 1140 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. 

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, 1138 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, 1139 inherent judicial power, 1140 and

a theory, variously expressed, that the Supreme Court has ‘‘essential constitutional functions’’ of judicial review that Congress may 

826 ART. III—JUDICIAL DEPARTMENT 

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1141The 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). 

1142 An extraordinary amount of writing has been addressed to the issue, only 

a fraction of which is touched on here. See Hart & Wechsler, supra at 362-424. 

1143 Johnson v. Robison, 415 U.S. 361, 366-367 (1974); Weinberger v. Salfi, 422 

U.S. 749, 762 (1975); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 

667, 681 n.12 (1986); Webster v. Doe, 486 U.S. 592, 603 (1988). In the last cited 

case, Justice Scalia attacked the reservation and argued for nearly complete congressional discretion. Id. at 611-15 (concurring). 

1144 74 U.S. (7 Wall) 506 (1869). For the definitive analysis of the case, see Van

Alstyne, A Critical Guide to Ex Parte McCardle, 15 ARIZ. L. REV. 229 (1973). 

1145 Article I, § 9, cl. 2. 

not impair through jurisdictional limitations, 1141 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. 1142 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 to construing statutes so as not to deny jurisdiction. 1143

Ex parte McCardle 1144 marks the farthest advance of congressional imposition of its will on the federal courts, and it is significant because the curb related to the availability of the writ of habeas corpus, which is marked out with special recognition by the 

Constitution. 1145

But how far did McCardle actually reach? In concluding its 

opinion, the Court carefully observed: ‘‘Counsel seem to have supposed, if effect be given to the repealing act in question, that the 

whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not exempt from 

that jurisdiction any cases but appeals from Circuit Courts under 

the act of 1867. It does not affect the jurisdiction which was preVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00200 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
ART. III—JUDICIAL DEPARTMENT 827

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1146 Ex parte McCardle, 74 U.S. (7 Wall.) 506, 515 (1869). A restrained reading 

of McCardle is strongly suggested by Felker v. Turpin, 518 U.S. 651 (1996). A 1996 

statute giving to federal courts of appeal a ‘‘gate-keeping’’ function over the filing 

of second or successive habeas petitions limited further review, including denying 

the Supreme Court appellate review of circuit court denials of motions to file second 

or successive habeas petitions. Pub. L. 104-132, § 106, 110 Stat. 1214, 1220, amending 28 U.S.C. § 2244(b). Upholding the limitation, which was nearly identical to the 

congressional action at issue in McCardle and Yerger, the Court held that its jurisdiction to hear appellate cases had been denied, but just as in Yerger the statute 

did not annul the Court’s jurisdiction to hear habeas petitions filed as original matters in the Supreme Court. No constitutional issue was thus presented. 1147 75 U.S. (8 Wall.) 85 (1869). Yerger is fully reviewed in C. FAIRMAN, HISTORY

OF THE SUPREME COURT OF THE UNITED STATES: VOL. VI, PT. I—RECONSTRUCTION

AND REUNION, 1864-88 (New York: 1971), 558-618. 1148 Cf. Eisentrager v. Forrestal, 174 F. 2d 961, 966 (D.C.Cir. 1949), rev’d on 

other grounds sub nom. Johnson v. Eisentrager, 339 U.S. 763 (1950). Justice Douglas, with whom Justice Black joined, said in Glidden Co. v. Zdanok, 370 U.S. 530, 

605 n.11 (1962) (dissenting opinion): ‘‘There is a serious question whether the 

McCardle case could command a majority view today.’’ Justice Harlan, however, 

cited McCardle with apparent approval of its holding, id. at 567-68, while noting 

that Congress’ ‘‘authority is not, of course, unlimited.’’ Id. at 568. McCardle was

cited approvingly in Bruner v. United States, 343 U.S. 112, 117 n.8 (1952), as illustrating the rule ‘‘that when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law... .’’ 1149 80 U.S. (13 Wall.) 128 (1872). See C. Fairman, supra at 558-618. The seminal discussion of Klein may be found in Young, Congressional Regulation of Federal 

Courts’ Jurisdiction and Processes: United States v. Klein Revisited, 1981 WISC. L. 

REV. 1189. While he granted that Klein is limited insofar as its bearing on jurisdictional limitation per se is concerned, he cited an ambiguous holding in Armstrong 

v. United States, 80 U.S. (13 Wall.) 154 (1872), as in fact a judicial invalidation of 

a jurisdictional limitation. Young, id. at 1222-23 n.179. 1150 Congress by the Act of July 17, 1862, §§ 5, 13, authorized the confiscation 

of property of those persons in rebellion and authorized the President to issue pardons on such conditions as he deemed expedient, the latter provision being unnecessary in light of Article II, § 2, cl. 1. The President’s pardons all provided for restoration of property, except slaves, and in United States v. Padelford, 76 U.S. (9 Wall.) 

531 (1870), the Court held the claimant entitled to the return of his property on 

the basis of his pardon. Congress thereupon enacted the legislation in question. 16 

Stat. 235 (1870). 

viously exercised.’’ 1146 A year later, in Ex parte Yerger, 1147 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. 1148

Another Reconstruction Congress attempt to curb the judiciary 

failed in United States v. Klein, 1149 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. 1150 The statute declared that no pardon was to be 

admissible in evidence in support of any claim against the United 

828 ART. III—JUDICIAL DEPARTMENT 

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1151 United States v. Klein, 80 U.S. (13 Wall.) 128, 145-46 (1872). 1152 80 U.S. at 147. 1153 80 U.S. at 146. 1154 80 U.S. at 147. For an extensive discussion of Klein, see United States v. 

Sioux Nation, 448 U.S. 371, 391-405 (1980), and id. at 424, 427-34 (Justice 

Rehnquist dissenting). See also Pope v. United States, 323 U.S. 1, 8-9 (1944); 

Glidden Co. v. Zdanok, 370 U.S. 530, 568 (1962) (Justice Harlan). In Robertson v. 

Seattle Audubon Society, 503 U.S. 429 (1992), the 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. at 441. 1155 United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1872). 

States in the Court of Claims for the return of confiscated property 

of Confederates nor, if already put in evidence in a pending case, 

should it be considered on behalf of the claimant by the Court of 

Claims or by the Supreme Court on appeal. Proof of loyalty was required to be made according to provisions of certain congressional 

enactments, and when judgment had already been rendered on 

other proof of loyalty the Supreme Court on appeal should have no 

further jurisdiction and should dismiss for want of jurisdiction. 

Moreover, it was provided that the recitation in any pardon which 

had been received that the claimant had taken part in the rebellion 

was to be taken as conclusive evidence that the claimant had been 

disloyal and was not entitled to regain his property. 

The Court began by reaffirming that Congress controlled the 

existence of the inferior federal courts and the jurisdiction vested 

in 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.’’ 1151 The statute was void for two reasons; it 

‘‘infring[ed] the constitutional power of the Executive,’’ 1152 and it 

‘‘prescrib[ed] a rule for the decision of a cause in a particular 

way.’’ 1153 Klein thus stands for the proposition that Congress may 

not violate the principle of separation of powers 1154 and that it may 

not accomplish certain forbidden substantive acts by casting them 

in jurisdictional terms. 1155

ART. III—JUDICIAL DEPARTMENT 829

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1156 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). 

1157Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 

272 (1856). 

1158 285 U.S. 22 (1932). Justices Brandeis, Stone, and Roberts dissented. 

1159 285 U.S. at 56, 60, 64. 

Other restraints on congressional power over the federal courts 

may be gleaned from the opinion in the much-disputed Crowell v. 

Benson. 1156 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. 1157 What this might mean was elaborated in Crowell v. 

Benson, 1158 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.’’ 1159

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 

830 ART. III—JUDICIAL DEPARTMENT 

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1160See Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 

76-87 (1982) (plurality opinion), and id. at 100-03, 109-11 (Justice White dissenting) 

(discussing the due process/Article III basis of Crowell). Both the plurality and the 

dissent agreed that later cases had ‘‘undermined’’ the constitutional/jurisdictional 

fact analysis. Id. at 82, n. 34; 110 n.12. For other discussions, see Jacobellis v. Ohio, 

378 U.S. 184, 190 (1964) (Justice Brennan announcing judgment of the Court, joined 

by Justice Goldberg); Pickering v. Board of Education, 391 U.S. 563, 578-79 (1968); 

Agosto v. INS, 436 U.S. 748, 753 (1978); United States v. Raddatz, 447 U.S. 667, 

682-84 (1980), and id. at 707-12 (Justice Marshall dissenting). 1161 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). 1162Williams 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). 1163 52 Stat. 1060, 29 U.S.C. § 201. 1164 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 

by several Justices approvingly, 1160 but the Court has never applied the principle to control another case. 1161

Express Constitutional Restrictions on Congress.—‘‘[T]he

Constitution is filled with provisions that grant Congress or the 

States specific power to legislate in certain areas; these granted 

powers are always subject to the limitations that they may not be 

exercised in a way that violates other specific provisions of the 

Constitution.’’ 1162 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 1163 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 process of law or to take private property 

without just compensation.’’ 1164

ART. III—JUDICIAL DEPARTMENT 831

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

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. at 611-15 (Justice Scalia dissenting). Note the relevance of 

United States v. Mendoza-Lopez, 481 U.S. 828 (1987). 1165Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 204-05 (1824). 

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 or 

from the cases. 

FEDERAL-STATE COURT RELATIONS 

Problems Raised by Concurrency 

The Constitution established a system of government in which 

total power, sovereignty, was not unequivocally lodged in one level 

of government. In Chief Justice Marshall’s words, ‘‘our complex system [presents] the rare and difficult scheme of one general government, whose actions extend over the whole, but which possesses 

only certain enumerated powers, and of numerous state governments, which retain and exercise all powers not delegated to the 

Union... .’’ Naturally, in such a system, ‘‘contests respecting power 

must arise.’’ 1165 Contests respecting power may frequently arise in 

a federal system with dual structures of courts exercising concurrent jurisdiction in a number of classes of cases. Too, the possibilities of frictions grow out of the facts that one set of courts may 

interfere directly or indirectly with the other through injunctive 

and declaratory processes, through the use of habeas corpus and removal to release persons from the custody of the other set, and 

through the refusal by state courts to be bound by decisions of the 

United States Supreme Court. The relations between federal and 

state courts are governed in part by constitutional law, with respect, say, to state court interference with federal courts and state 

court refusal to comply with the judgments of federal tribunals; in 

part by statutes, with respect to the federal law generally enjoining 

federal-court interference with pending state court proceedings; 

and in part by self-imposed rules of comity and restraint, such as 

832 ART. III—JUDICIAL DEPARTMENT 

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1166See 28 U.S.C. §§ 1251, 1331 et seq. Indeed, the presumption is that state 

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 Ry., 260 U.S. 261, 287 (1922). Justice Scalia has argued that, 

inasmuch as state courts have jurisdiction generally because federal law is law for 

them, Congress can provide exclusive federal jurisdiction only by explicit and affirmative statement in the text of the statute, Tafflin v. Levitt, 493 U.S. at 469, but as 

can be seen that is not now the rule. 1167Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). 1168Through the ‘‘saving to suitors’’ clause. 28 U.S.C. § 1333(1). See Madruga

v. Superior Court, 346 U.S. 556, 560-561 (1954). 1169Supra, ‘‘Organization of Courts, Tenure, and Compensation of Judges’’ and 

‘‘Marbury v. Madison’’. See 28 U.S.C. § 1257. 1170 E.g., by a suit against a State by a citizen of another State directly in the 

Supreme Court, Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), which was overturned by the Eleventh Amendment; by suits in diversity or removal from state 

courts where diversity existed, 1 Stat. 78, 79; by suits by aliens on treaties, 1 Stat. 

77, and, subsequently, by removal from state courts of certain actions. 3 Stat. 198. 

And for some unknown reason, Congress passed in 1793 a statute prohibiting federal court injunctions against state court proceedings. See Toucey v. New York Life 

Ins. Co., 314 U.S. 118, 120-132 (1941). 1171 Act of March 3, 1875, 18 Stat. 470. 

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. 1166 Even within this last category, however, state courts, 

though unable to prejudice the harmonious operation and uniformity of general maritime law, 1167 have concurrent jurisdiction 

over cases that occur within the maritime jurisdiction when such 

litigation assumes the form of a suit at common law. 1168 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. 1169 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, 1170 it became much more significant and likely when, 

in the wake of the Civil War, Congress bestowed general federal 

question jurisdiction on the federal courts, 1171 enacted a series of 

civil rights statutes and conferred jurisdiction on the federal courts 

ART. III—JUDICIAL DEPARTMENT 833

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1172 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. 1173See H. WECHSLER, THE NATIONALIZATION OF CIVIL LIBERTIES AND CIVIL

RIGHTS (1969). 1174 Hart & Wechsler, supra. Notable examples include Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 

(1821); Ableman v. Booth, 62 U.S. (21 How.) 506 (1859). For studies, see Note, Final

Disposition of State Court Decisions Reversed and Remanded by the Supreme Court, 

October Term 1931 to October Term 1940, 55 HARV. L. REV. 1357 (1942); Note, Evasion of Supreme Court Mandates in Cases Remanded to State Courts Since 1941, 67 

HARV. L. REV. 1251 (1954); Schneider, State Court Evasion of United States Supreme Court Mandates: A Reconsideration of the Evidence, 7 VALP. U. L. REV. 191 

(1973). 1175Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). See 2 W. 

CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED

STATES 785-817 (1953); 1 C. WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 442-453 (1926). For recent examples, see NAACP v. Alabama, 360 U.S. 240, 

245 (1959); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964), after remand, 

277 Ala. 89, 167 So. 2d 171 (1964); Stanton v. Stanton, 429 U.S. 501 (1977); General 

Atomic Co. v. Felter, 436 U.S. 493 (1978). 1176 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). 1177Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816); McCulloch v. 

Maryland, 17 U.S. (4 Wheat.) 316, 437 (1819); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 

1, 239 (1824); Williams v. Bruffy, 102 U.S. 248 (1880) (entry of judgment); Tyler v. 

Maguire, 84 U.S. (17 Wall.) 253 (1873) (award of execution); Stanley v. Schwalby, 

162 U.S. 255 (1896); Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 270 

(1885) (remand with direction to enter a specific judgment). See 28 U.S.C. § 1651(a), 

2106.

to enforce them, 1172 and most important proposed and saw to the 

ratification of the three constitutional amendments, especially the 

Fourteenth, which made an ever-increasing number of state actions 

subject to federal scrutiny. 1173

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. 1174 When it is alleged that the state court has deviated from 

the Supreme Court’s mandate, the party losing below may appeal 

again 1175 or she may presumably apply for mandamus to compel 

compliance. 1176 Statutorily, the Court may attempt to overcome 

state recalcitrance by a variety of specific forms of judgment. 1177 If,

however, the state courts simply defy the mandate of the Court, 

834 ART. III—JUDICIAL DEPARTMENT 

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1178See 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). 1179 1 C. Warren, supra at 729-79. 1180 Id. at 732-36. 1181 31 U.S. (6 Pet.) 515 (1832). 1182Supra, ‘‘Organization of Courts, Tenure, and Compensation of Judges’’. 1183 Judiciary Act of 1789, §§ 9, 11, 1 Stat. 76, 78, and see id. at § 25, 1 Stat, 

85. 1184 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 

difficult problems face the Court, extending to the possibility of 

contempt citations. 1178

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. 1179 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. 1180 Two years later, 

Georgia again defied the Court when in Worcester v. Georgia, 1181

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, 1182 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, 1183 and early Congresses imposed positive duties on 

state courts to enforce federal laws. 1184 Reaction set in out of hosVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00208 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
ART. III—JUDICIAL DEPARTMENT 835

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

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). 1185 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). 1186 41 U.S. (16 Pet.) 539, 615 (1842), See also Houston v. Moore, 18 U.S. (5 

Wheat.) 1, 69 (1820) (Justice Story dissenting); United States v. Bailey, 34 U.S. (9 

Pet.) 238, 259 (1835) (Justice McLean dissenting). However, it was held that States 

could exercise concurrent jurisdiction if they wished. Claflin v. Houseman, 93 U.S. 

130 (1876), and cases cited. 1187 E.g., Act of June 8, 1872, 17 Stat. 323. 1188 Claflin v. Houseman, 93 U.S. 130 (1876). 1189 35 Stat. 65 (1908), as amended, 45 U.S.C. §§ 51-60. 1190Second Employers’ Liability Cases (Mondou v. New York, N.H. & H. R.R.), 

223 U.S. 1 (1912). 1191 223 U.S. at 59. 1192Douglas v. New York, N.H. & H.R.R., 279 U.S. 377 (1929). 1193 279 U.S. at 388. For what constitutes a valid excuse, compare Missouri ex 

rel. Southern Ry. v. Mayfield, 340 U.S. 1 (1950), with McKnett v. St. Louis & S.F. 

Ry., 292 U.S. 230 (1934). It appears that generally state procedure must yield to 

federal when it would make a difference in outcome. Compare Brown v. Western Ry. 

of Alabama, 338 U.S. 294 (1949), and Dice v. Akron, C. & Y. R.R., 342 U.S. 359 

(1952), with Minneapolis & St. L. R.R. v. Bombolis, 241 U.S. 211 (1916). 

tility to the Embargo Acts, the Fugitive Slave Law, and other 

measures, 1185 and in Prigg v. Pennsylvania, 1186 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, 1187 which the Court sustained, 1188 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. 1189

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. 1190 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,’’ 1191 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. 1192 ‘‘[T]here is nothing in the 

Act of Congress that purports to force a duty upon such Courts as 

against an otherwise valid excuse.’’ 1193 However, ‘‘[a]n excuse that 

836 ART. III—JUDICIAL DEPARTMENT 

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1194 Howlett v. Rose, 496 U.S. 356, 371 (1990). See also Felder v. Casey, 487 U.S. 

131 (1988). 

1195 330 U.S. 386 (1947). 

1196 330 U.S. at 389. See, for a discussion as well as an extension of Testa, FERC 

v. Mississippi, 456 U.S. 742 (1982). Cases since Testa requiring state court enforcement of federal rights have generally concerned federal remedial laws. E.g., Charles 

Dowd Box Co. v. Courtney, 368 U.S. 502 (1962); Sullivan v. Little Hunting Park, 

396 U.S. 229 (1969). The Court has approved state court adjudication under 42 

U.S.C. § 1983, Maine v. Thiboutot, 448 U.S. 1, 3 n.1 (1980), but curiously in Martinez v. California, 444 U.S. 277, 283 n.7 (1980) (emphasis by Court), it noted that 

it has ‘‘never considered . . . the question whether a State must entertain a claim 

under 1983.’’ See also Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 234 

n.7 (1987) (continuing to reserve question). But with Felder v. Casey, 487 U.S. 131 

(1988), and Howlett by Howlett v. Rose, 496 U.S. 356 (1990), it seems dubious that 

state courts could refuse. Enforcement is not limited to federal statutory law; federal 

common law must similarly be enforced. Free v. Brand, 369 U.S. 663 (1962). 

1197Donovan v. City of Dallas, 377 U.S. 408 (1964), and cases cited. Justices 

Harlan, Clark, and Stewart dissented, arguing that a State should have power to 

enjoin vexatious, duplicative litigation which would have the effect of thwarting a 

state-court judgment already entered. See also Baltimore & Ohio R.R. v. Kepner, 

314 U.S. 44, 56 (1941) (Justice Frankfurter dissenting). In Riggs v. Johnson County, 

73 U.S. (6 Wall.) 166 (1868), the general rule was attributed to the complete independence of state and federal courts in their spheres of action, but federal courts, 

of course may under certain circumstances enjoin actions in state courts. 

1198McKim v. Voorhies, 11 U.S. (7 Cr.) 279 (1812); Riggs v. Johnson County, 73 

U.S. (6 Wall.) 166 (1868). 

1199Princess 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, 62 U.S. (21 How.) 506 (1859); Tarble’s Case, 80 U.S. (13 

Wall.) 397 (1872). 

is inconsistent with or violates federal law is not a valid excuse. . . .’’ 1194

In Testa v. Katt, 1195 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. 1196

State Interference with Federal Jurisdiction.—It seems 

settled, though not without dissent, that state courts have no 

power to enjoin proceedings 1197 or effectuation of judgments 1198 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. 1199

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Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1200 Younger v. Harris, 401 U.S. 37, 44 (1971). Compare Fair Assessment in Real 

Estate Ass’n v. McNary, 454 U.S. 100 (1981), with id. at 119-25 (Justice Brennan 

concurring, joined by three other Justices). 1201Mast, 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 Ass’n 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). 1202 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 13 (4th ed. 1983). 

The basic doctrine was formulated by Justice Frankfurter for the Court in Railroad 

Comm’n 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 v. Sun Oil 

Co., 319 U.S. 315 (1943); Alabama Public Service Comm’n v. Southern Ry., 341 U.S. 

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’. . . .’’ 1200 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’’ 1201

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. 1202 Abstention is not proper, however, where the relVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00211 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
838 ART. III—JUDICIAL DEPARTMENT 

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341 (1951); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943); Martin v. Creasy, 360 U.S. 219 (1959); Moses H. Cone Hosp. v. Mercury Constr. Corp., 

460 U.S. 1 (1983); New Orleans Public Service, Inc. v. Council of the City of New 

Orleans, 491 U.S. 350 (1989) (carefully reviewing the scope of the doctrine), especially where state law is unsettled. Meredith v. City of Winter Haven, 320 U.S. 228 

(1943); County of Allegheny v. Frank Mashuda Co., 360 U.S. 185 (1959); Louisiana 

Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959). See also Clay v. Sun 

Insurance Office Ltd., 363 U.S. 207 (1960). Also, 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). But in 

Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996), an exercise in Burford abstention, the Court held that federal courts have power to dismiss or remand cases 

based on abstention principles only where relief being sought is equitable or otherwise discretionary but may not do so in common-law actions for damages. 1203 City of Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958); Zwickler v. 

Koota, 389 U.S. 241, 249-251 (1967). See Babbitt v. United Farm Workers Nat’l. 

Union, 442 U.S. 289, 306 (1979) (quoting Harman v. Forssenius, 380 U.S. 528, 534- 

35 (1965)). 1204 Harman v. Forssenius, 380 U.S. 528, 534-535 (1965); Babbitt v. United 

Farm Workers Nat’l., 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. Constantineau, 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 Comm’rs Court v. Moore, 420 U.S. 77 (1975); Reetz v. 

Bozanich, 397 U.S. 82 (1970), although not if the state and federal constitutional 

provisions are alike. Examining Bd. v. Flores de Otero, 426 U.S. 572, 598 (1976). 1205 American Trial Lawyers Ass’n v. New Jersey Supreme Court, 409 U.S. 467, 

469 (1973); Harrison v. NAACP, 360 U.S. 167 (1959). Dismissal may be necessary 

if the state court will not accept jurisdiction while the case is pending in federal 

court. Harris County Comm’rs v. Moore, 420 U.S. 77, 88 n.14 (1975). 1206 E.g., Spector Motor Service v. McLaughlin, 323 U.S. 101 (1944); Louisiana 

Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959); Harrison v. NAACP, 

360 U.S. 167 (1959). 

evant state law is settled, 1203 or where it is clear that the state 

statute or action challenged is unconstitutional no matter how the 

state court construes state law. 1204 Federal jurisdiction is not 

ousted by abstention; rather it is postponed. 1205 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. 1206

During the 1960s, the abstention doctrine was in disfavor with 

the Supreme Court, suffering rejection in numerous cases, most of 

ART. III—JUDICIAL DEPARTMENT 839

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1207McNeese 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 

(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). 1208 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 305 (4th ed. 1983). 1209 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). 1210 Compare Harrison v. NAACP, 360 U.S. 167 (1959), with McNeese v. Board 

of Education, 373 U.S. 668 (1963). 1211 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). 1212 401 U.S. 37 (1971). There is room to argue whether the Younger line of 

cases represents the abstention doctrine at all, but the Court continues to refer to 

it in those terms. E.g., Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992). 1213The rule was formulated in Prentis v. Atlantic Coast Line Co., 211 U.S. 210 

(1908), and Bacon v. Rutland R.R., 232 U.S. 134 (1914). 1214 City Bank Farmers’ Trust Co. v. Schnader, 291 U.S. 24 (1934); Lane v. Wilson, 307 U.S. 268 (1939). But see Alabama Public Service Comm’n v. Southern Ry., 

341 U.S. 341 (1951). Exhaustion of state court remedies is required in habeas corpus cases and usually in suits to restrain state court proceedings. 

1215Patsy v. Board of Regents, 457 U.S. 496 (1982). Where there are pending 

administrative proceedings that fall within the Younger rule, a litigant must exthem civil rights and civil liberties cases. 1207 Time-consuming

delays 1208 and piecemeal resolution of important questions 1209

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, 1210 and for awhile cases involving First 

Amendment expression guarantees seemed to be sheltered as well, 

but this is no longer the rule. 1211 Abstention developed robustly 

with Younger v. Harris, 1212 and its progeny. 

Exhaustion of State Remedies.—A complainant will ordinarily be required, as a matter of comity, to exhaust all available 

state legislative and administrative remedies before seeking relief 

in federal court. 1213 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. 1214 But when a litigant is suing for protection of federallyguaranteed civil rights, he need not exhaust any kind of state remedy. 1215

840 ART. III—JUDICIAL DEPARTMENT 

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

haust. Younger v. Harris, 401 U.S. 37 (1971), as explicated in Ohio Civil Rights 

Comm’n v. Dayton Christian School, Inc., 477 U.S. 619, 627 n.2 (1986). Under title 

VII of the Civil Rights Act of 1964, barring employment discrimination on racial and 

other specified grounds, the EEOC may not consider a claim until a state agency 

having jurisdiction over employment discrimination complaints has had at least 60 

days to resolve the matter. 42 U.S.C. §§ 2000e-5(c). See Love v. Pullman Co., 404 

U.S. 522 (1972). And under the Civil Rights of Institutionalized Persons Act, there 

is a requirement of exhaustion, where States have federally-approved procedures. 

See Patsy, 457 U.S. at 507-13. 

1216Toucey v. New York Life Ins. Co., 314 U.S. 118, 130-132 (1941). 1217 ‘‘[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. 1218Durfee & Sloss, Federal Injunctions Against Proceedings in State Courts: 

The Life History of a Statute, 30 MICH. L. REV. 1145 (1932). 1219 314 U.S. 118 (1941). 1220 ‘‘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. 1221 Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511 (1955); Atlantic Coast Line R.R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281 (1970). 

See M. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL

POWER ch. 10 (1980). 1222The greatest difficulty is with the ‘‘expressly authorized by Act of Congress’’ 

exception. No other Act of Congress expressly refers to § 2283 and the Court has 

indicated that no such reference is necessary to create a statutory exception. Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511, 516 (1955). Compare

Capital Service, Inc. v. NLRB, 347 U.S. 501 (1954). Rather, ‘‘in order to qualify as 

an ‘expressly authorized’ exception to the anti-injunction statute, an Act of Congress 

must have created a specific and uniquely federal right or remedy, enforceable in 

a federal court of equity, that could be frustrated if the federal court were not 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 

Anti-Injunction Statute.—For reasons unknown, 1216 Congress in 1793 enacted a statute to prohibit the issuance of injunctions by federal courts to stay state court proceedings. 1217 Over

time, a long list of exceptions to the statutory bar was created by 

judicial decision, 1218 but in Toucey v. New York Life Ins. Co., 1219

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. 1220 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. 1221 Nonetheless, some exceptions 

do exist, either expressly or implicitly in statutory language 1222 or

ART. III—JUDICIAL DEPARTMENT 841

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

(1977) (fragmented Court on whether Clayton Act authorization of private suits for 

injunctive relief is an ‘‘expressly authorized’’ exception to § 2283). 

On the interpretation of the § 2283 exception for injunctions to protect or effectuate a federal-court judgment, see Chick Kam Choo v. Exxon Corp., 486 U.S. 140 

(1988). 1223Thus, 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). 1224The statute is to be applied ‘‘to prevent needless friction between state and 

federal courts.’’ Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 

4, 9 (1940); Atlantic Coast Line R.R. v. Brotherhood of Locomotive Engineers, 398 

U.S. 281, 285-286 (1970). 1225 Article IV, § 1, of the Constitution; 28 U.S.C. § 1738. 1226 Allen v. McCurry, 449 U.S. 90, 95-96 (1980). 1227 449 U.S. at 96-105. There were three dissenters. Id. at 105 (Justices Blackmun, Brennan, and Marshall). In England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411 (1964), the Court held that when parties are compelled to go 

to state court under Pullman abstention, either party may reserve the federal issue 

and thus be enabled to return to federal court without being barred by res judicata.

1228Kramer v. Chemical Construction Corp., 456 U.S. 461, 468 (1982). 

through Court interpretation. 1223 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. 1224

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. 1225 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.’’ 1226 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. 1227 An exception to § 1738 ‘‘will not be 

recognized unless a later statute contains an express or implied 

partial repeal.’’ 1228 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 apVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00215 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
842 ART. III—JUDICIAL DEPARTMENT 

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1229 456 U.S. 468-76. There were four dissents. Id. at 486 (Justices Blackmun, 

Brennan, and Marshall), 508 (Stevens). 1230 209 U.S. 123 (1908). 1231 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. 1232Swift & Co. v. Wickham, 382 U.S. 111, 119 (1965); Ex parte Collins, 277 

U.S. 565, 567 (1928). 1233These 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). 1234Pub. 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. 

pealed an adverse state agency decision to state court will be precluded from bringing her federal claim to federal court, since the 

federal court is obligated to give the state court decision ‘‘full faith 

and credit.’’ 1229

Three-Judge Court Act.—When the Court in Ex parte 

Young 1230 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. 1231 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. 1232 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’’ 1233

or in cases involving state legislative or congressional districting, 

were repealed by Congress in 1976. 1234

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 

ART. III—JUDICIAL DEPARTMENT 843

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1235For example, one of the cases decided in Brown v. Board of Education, 347 

U.S. 483 (1954), came from the Supreme Court of Delaware. In Scott v. Germano, 

381 U.S. 407 (1965), the Court set aside an order of the district court refusing to 

defer to the state court which was hearing an apportionment suit and said: ‘‘The 

power of the judiciary of a State to require valid reapportionment or to formulate 

a valid redistricting plan has not only been recognized by this Court but appropriate 

action by the States has been specifically encouraged.’’ See also Scranton v. Drew, 

379 U.S. 40 (1964). 1236 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. 1237 In re Ayers, 123 U.S. 443 (1887). 1238 209 U.S. 123 (1908). 1239The fiction is that while the official is a state actor for purposes of suit 

against him, the claim that his action is unconstitutional removes the imprimatur 

of the State that would shield him under the Eleventh Amendment. 209 U.S. at 

159-60. 1240 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). 

now, this has been done. 1235 But the usual course is to sue in federal court for either an injunction or a declaratory judgment or 

both. In an era in which landmark decisions of the Supreme Court 

and of inferior federal courts have been handed down voiding racial 

segregation requirements, legislative apportionment and congressional districting, abortion regulations, and many other state laws 

and policies, it is difficult to imagine a situation in which it might 

be impossible to obtain such rulings because no one required as a 

defendant could be sued. Yet, the adoption of the Eleventh Amendment in 1798 resulted in the immunity of the State, 1236 and the 

immunity of state officers if the action upon which they were being 

sued was state action, 1237 from suit without the State’s consent. Ex

parte Young 1238 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. 1239

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, 1240 those seeking to enjoin 

844 ART. III—JUDICIAL DEPARTMENT 

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1241Supra, ‘‘Abstention’’. 1242The quoted phrase setting out the general principle is from the Judiciary 

Act of 1789, § 16, 1 Stat. 82. 1243The older cases are Fenner v. Boykin, 271 U.S. 240 (1926); Spielman Motor 

Sales Co. v. Dodge, 295 U.S. 89 (1935); Beal v. Missouri Pac. R.R., 312 U.S. 45 

(1941); Watson v. Buck, 313 U.S. 387 (1941); Williams v. Miller, 317 U.S. 599 

(1942); Douglas v. City of Jeannette, 319 U.S. 157 (1943). There is a stricter rule 

against federal restraint of the use of evidence in state criminal trials. Stefanelli v. 

Minard, 342 U.S. 117 (1951); Pugach v. Dollinger, 365 U.S. 458 (1961). The Court 

reaffirmed the rule in Perez v. Ledesma, 401 U.S. 82 (1971). State officers may not 

be enjoined from testifying or using evidence gathered in violation of federal constitutional restrictions, Cleary v. Bolger, 371 U.S. 392 (1963), but the rule is unclear 

with regard to federal officers and state trials. Compare Rea v. United States, 350 

U.S. 214 (1956), with Wilson v. Schnettler, 365 U.S. 381 (1961). 1244 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). 1245 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). 

state court proceedings must overcome substantial prudential barriers, among them the abstention doctrine 1241 and more important 

than 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.’’ 1242 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. 1243

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. 1244

In Dombrowski v. Pfister, 1245 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 

ART. III—JUDICIAL DEPARTMENT 845

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1246 ‘‘[T]he allegations in this complaint depict a situation in which defense of 

the State’s criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss of or impairment of freedoms of 

expression will occur if appellants must await the state court’s disposition and ultimate review in this Court of any adverse determination. These allegations, if true, 

clearly show irreparable injury.’’ 380 U.S. at 485-86. 1247That is, a statute which reaches both protected and unprotected expression 

and conduct. 1248 380 U.S. at 486-87. 1249See Cameron v. Johnson, 381 U.S. 741 (1965); Cameron v. Johnson, 390 U.S. 

611 (1968). 1250 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. 1251 It was clear that the statute could not be construed by a state court to 

render a federal constitutional decision unnecessary. 389 U.S. at 248-52. 1252 389 U.S. at 254. 

‘‘irreparable injury’’ justifying federal injunctive relief. 1246 But the 

formulation of standards by Justice Brennan for the majority 

placed great emphasis upon the fact that the state criminal statute 

in issue regulated expression. Any criminal prosecution under a 

statute regulating expression might of itself inhibit the exercise of 

First Amendment rights, it was said, and prosecution under an 

overbroad 1247 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. 1248 The principle apparently established by the 

Court was two-phased: a federal court should not abstain when 

there is a facially unconstitutional statute infringing upon speech 

and application of that statute discourages protected activities, and 

the court should further enjoin the state proceedings when there is 

prosecution or threat of prosecution under an overbroad statute 

regulating expression if the prosecution or threat of prosecution 

chills the exercise of freedom of expression. 1249 These formulations 

were reaffirmed in Zwickler v. Koota, 1250 in which a declaratory 

judgment was sought with regard to a statute prohibiting anonymous election literature. Abstention was deemed improper, 1251 and

further it was held that adjudication for purposes of declaratory 

judgment is not hemmed in by considerations attendant upon injunctive relief. 1252

The aftermath of the Dombrowski and Zwickler decisions was 

a considerable expansion of federal-court adjudication of constituVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00219 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
846 ART. III—JUDICIAL DEPARTMENT 

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1253Maraist, Federal Injunctive Relief Against State Court Proceedings: The Significance of Dombrowski, 48 TEX. L. REV. 535 (1970). 

1254 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). 

1255Only Justice Douglas dissented. 401 U.S. at 58. Justices Brennan, White, 

and Marshall generally concurred in somewhat restrained fashion. Id. at 56, 75, 93. 

tional attack through requests for injunctive and declaratory relief, 

which gradually spread out from First Amendment areas to other 

constitutionally-protected activities. 1253 However, these developments 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. 1254 The important difference 

between this series of cases and the Dombrowski- Zwickler line was 

that in the latter 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, 1255

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 

ART. III—JUDICIAL DEPARTMENT 847

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1256 401 U.S. at 54. On bad faith enforcement, see id. at 56 (Justices Stewart and 

Harlan concurring); 97 (Justices Brennan, White, and Marshall concurring in part 

and dissenting in part). For an example, see Universal Amusement Co. v. Vance, 

559 F. 2d 1286, 1293-1301 (5th Cir. 1977), affd. per curiam sub nom., Dexter v. Butler, 587 F. 2d 176 (5th Cir.) (en banc), cert. denied, 442 U.S. 929 (1979). 1257 401 U.S. at 44. 1258Samuels 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). 1259Samuels v. Mackell, 401 U.S. 66, 72 (1971). 1260Steffel v. Thompson, 415 U.S. 452 (1974). 1261Doran 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). 

other unusual circumstances that would call for equitable relief.’’ 1256

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. 1257

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. 1258 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.’’ 1259

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. 1260 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. 1261

848 ART. III—JUDICIAL DEPARTMENT 

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1262 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 Comm. v. Garden State Bar Ass’n, 457 U.S. 423 

(1982). 1263Ohio Civil Rights Comm’n 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). 1264Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987). 1265 ‘‘[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. at 14 n.12 (quoting Judice v. Vail, 430 U.S. 327, 336 n.12 (1977)). 1266 481 U.S. at 14. 1267 Ex parte Watkins, 28 U.S. (3 Pet.) 193 (1830) (Chief Justice Marshall); 

cf. Ex parte Parks, 93 U.S. 18 (1876). But see Fay v. Noia, 372 U.S. 391, 404-415 

(1963). 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. 1268 Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874). 

Of much greater significance is the extension of Younger to

civil proceedings in state courts 1262 and to state administrative proceedings of a judicial nature. 1263 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. 1264 Comity, the Court said, requires abstention when 

States have ‘‘important’’ interests in pending civil proceedings between private parties, 1265 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.’’ 1266

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. 1267 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. 1268

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 

ART. III—JUDICIAL DEPARTMENT 849

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1269 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). 1270 Ex parte Wilson, 114 U.S. 417 (1885); In re Nielsen, 131 U.S. 176 (1889); 

In re Snow, 120 U.S. 274 (1887); but see Ex parte Parks, 93 U.S. 18 (1876); Ex parte 

Bigelow, 113 U.S. 328 (1885). It is possible that the Court expanded the office of 

the writ because its reviewing power over federal convictions was closely limited. 

F. Frankfurter & J. Landis, supra. Once such review was granted, the Court began 

to restrict the use of the writ. E.g., Glasgow v. Moyer, 225 U.S. 420 (1912); In re 

Lincoln, 202 U.S. 178 (1906); In re Morgan, 203 U.S. 96 (1906). 1271 237 U.S. 309 (1915). 1272 261 U.S. 86 (1923). 1273Waley 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, 505 

U.S. 277, 285-87 & n.3 (1992) (Justice Thomas for a plurality of the Court), 

with id. at 297-301 (Justice O’Connor concurring). 

1274 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 

its jurisdiction. 1269 Other cases expanded the want-of-jurisdiction 

rationale. 1270 But the present status of the writ of habeas corpus may be said to have been started in its development in Frank

v. Mangum, 1271 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, 1272 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. 1273

The landmark case was Brown v. Allen, 1274 in which the Court laid 

850 ART. III—JUDICIAL DEPARTMENT 

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

expansive interpretation of federal constitutional rights; previously, there was not 

a substantial corpus of federal rights to protect through habeas. See Wright v. West, 

505 U.S. 277, 297-99 (1992) (Justice O’Connor concurring). In Fay v. Noia, 372 U.S. 

391 (1963), Justice Brennan, for the Court, and Justice Harlan, in dissent, engaged 

in a lengthy, informed historical debate about the legitimacy of Brown and its premises. Compare id. at 401-24, with id. at 450-61. See the material gathered and cited 

in Hart & Wechsler, supra at 1487-1505. 1275Sanders 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. 1276Townsend v. Sain, 372 U.S. 293, 310-12 (1963). If the district judge concluded that the habeas applicant was afforded a full and fair hearing by the state 

court resulting in reliable findings, the Court said, he may, and ordinarily should, 

defer to the state factfinding. Id. at 318. Under the 1966 statutory revision, a habeas court must generally presume correct a state court’s written findings of fact 

from a hearing to which the petitioner was a party. A state finding cannot be set 

aside merely on a preponderance of the evidence and the federal court granting the 

writ must include in its opinion the reason it found the state findings not fairly supported by the record or the existence of one or more listed factors justifying disregard of the factfinding. 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, 110-16 (1985). However, in Wright v. West, 

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.’’ 1275 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 as to when district courts must hold a hearing 

and find facts. 1276 ‘‘Where the facts are in dispute, the federal court 

ART. III—JUDICIAL DEPARTMENT 851

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

505 U.S. 277 (1992), the Justices argued inconclusively whether deferential review 

of questions of law or especially of law and fact should be adopted. 1277Townsend v. Sain, 372 U.S. 293, 312 (1963). The Court was unanimous on 

the statement, but it divided 5-to-4 on application. 1278 372 U.S. at 313-18. 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. 

Tamayo-Reyes, 504 U.S. 1, 10, n.5 (1992). Compare id. at 20-21 (Justice O’Connor 

dissenting). Keeney formally overruled part of Townsend. Id. at 5. 1279 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). 1280 373 U.S. at 8. The statement accorded with the established view that principles of res judicata were not applicable in habeas. E.g., Price v. Johnston, 334 U.S. 

266 (1948); Wong Doo v. United States, 265 U.S. 239 (1924); Salinger v. Loisel, 265 

U.S. 224 (1924). Congress in 1948 had appeared to adopt some limited version of 

res judicata for federal prisoners but not for state prisoners, Act of June 25, 1948, 

62 Stat. 965, 967, 28 U.S.C. §§ 2244, 2255, but the Court in Sanders held the same 

standards applicable and denied the statute changed existing caselaw. 373 U.S. at 

11-14. But see id. at 27-28 (Justice Harlan dissenting). 

in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing 

in a state court, either at the time of the trial or in a collateral proceeding.’’ 1277 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. 1278

Second, Sanders v. United States 1279 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,’’ 1280 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 haVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00225 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
852 ART. III—JUDICIAL DEPARTMENT 

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1281 373 U.S. at 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). 1282 373 U.S. at 17-19. 1283 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). 1284 E.g., Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875); Herb v. 

Pitcairn, 324 U.S. 117 (1945). In the habeas context, the procedural-bar rules are 

ultimately a function of the requirement that petitioners first exhaust state avenues 

of relief before coming to federal court. 1285 344 U.S. 443 (1953). 1286Fay v. Noia, 372 U.S. 391, 424-34 (1963). 

beas court might but was not obligated to deny relief without considering the claim on the merits. 1281 With respect to grounds not 

previously asserted, a federal court considering a successive petition could refuse to hear the new claim only if it decided the petitioner had deliberately bypassed the opportunity in the prior proceeding to raise it; if not, ‘‘[n]o matter how many prior applications 

for federal collateral relief a prisoner has made,’’ the court must 

consider the merits of the new claim. 1282

Third, the most controversial of the 1963 cases, Fay v. 

Noia, 1283 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. 1284 Whether a similar result 

prevailed upon habeas divided the Court in Brown v. Allen, 1285 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. 1286

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 

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ART. III—JUDICIAL DEPARTMENT 853

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1287 372 U.S. at 438-40. 1288 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 284-91. 1289Wainwright v. Sykes, 433 U.S. 72, 81 (1977). The present Court’s emphasis 

in habeas cases is, of course, quite different from that of the Court in the 1963 trilogy. Now, the Court favors decisions that promote finality, comity, judicial economy, 

and channeling the resolution of claims into the most appropriate forum. Keeney v. 

Tamayo-Reyes, 504 U.S. 1, 8-10 (1992). Overall, federalism concerns are critical. 

See Coleman v. Thompson, 501 U.S. 722, 726 (1991) (‘‘This is a case about federalism.’’ First sentence of opinion). The seminal opinion on which subsequent cases 

have drawn is Justice Powell’s concurrence in Schneckloth v. Bustamonte, 412 U.S. 

218, 250 (1973). He suggested that habeas courts should entertain only those claims 

that go to the integrity of the fact-finding process, thus raising questions of the 

value of a guilty verdict, or, more radically, that only those prisoners able to make 

a credible showing of ‘‘factual innocence’’ could be heard on habeas. Id. at 256-58, 

274-75. As will be evident infra, some form of innocence standard now is pervasive 

in much of the Court’s habeas jurisprudence.

cretion 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. 1287

Liberalization of the writ thus made it possible for convicted 

persons who had fully litigated their claims at state trials and on 

appeal, who had because of some procedural default been denied 

the opportunity to have their claims reviewed, or who had been at 

least once heard on federal habeas, to have the chance to present 

their grounds for relief to a federal habeas judge. In addition to opportunities to relitigate the facts and the law relating to their convictions, prisoners could also take advantage of new constitutional 

decisions that were retroactive. The filings in federal courts increased year by year, but the numbers of prisoners who in fact obtained either release or retrial remained quite small. A major effect, however, was to exacerbate the feelings of state judges and 

state law enforcement officials and to stimulate many efforts in 

Congress to enact restrictive habeas amendments. 1288 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.’’ 1289 The emphasis from early on has been 

upon the equitable nature of the habeas remedy and the judiciary’s 

854 ART. III—JUDICIAL DEPARTMENT 

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1290 433 U.S. at 83; Stone v. Powell, 428 U.S. 465, 495 n.37 (1976); Francis v. 

Henderson, 425 U.S. 536, 538 (1976); Fay v. Noia, 372 U.S. 391, 438 (1963). The 

dichotomy between power and discretion goes all the way back to the case imposing 

the rule of exhaustion of state remedies. Ex parte Royall, 117 U.S. 241, 251 (1886). 1291Stone 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. at 493-95. 1292Stone 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). 1293 Issues of admissibility of confessions (Miranda violations) and eyewitness 

identifications are obvious candidates. See, e.g., Duckworth v. Eagan, 492 U.S. 195, 

205 (1989) (Justice O’Connor concurring); Brewer v. Williams, 430 U.S. 387, 413- 

14 (1977) (Justice Powell concurring), and id. at 415 (Chief Justice Burger dissenting); Wainwright v. Sykes, 433 U.S. 72, 87 n.11 (1977) (reserving Miranda). 1294The 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). 

responsibility to guide the exercise of that remedy in accordance 

with equitable principles; thus, the Court time and again underscores that the federal courts have plenary power under the statute 

to implement it to the fullest while the Court’s decisions may deny 

them the discretion to exercise the power. 1290

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. 1291 Grounded as it is in the Court’s dissatisfaction with the 

exclusionary rule, the case has not since been extended to other 

constitutional grounds, 1292 but the rationale of the opinion suggests 

the likelihood of reaching other exclusion questions. 1293

Second, the Court has formulated a ‘‘new rule’’ exception to habeas cognizance. That is, subject to two exceptions, 1294 a case deVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00228 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
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1295Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion); Penry v. Lynaugh, 

492 U.S. 302, 313-319 (1989). 1296 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)). 1297 494 U.S. at 415. See also Stringer v. Black, 503 U.S. 222, 228-29 (1992). 

This latter case found that two decisions relied on by petitioner merely drew on existing precedent and so did not establish a new rule. See also O’Dell v. Netherland, 

521 U.S. 151 (1997); Lambrix v. Singletary, 520 U.S. 518 (1997); Gray v. 

Netherland, 518 U.S. 152 (1996). But compare Bousley v. Brooks, 523 U.S. 614 

(1998). 1298Townsend v. Sain, 372 U.S. 293, 313, 317 (1963), imported the ‘‘deliberate 

bypass’’ standard from Fay v. Noia, 372 U.S. 391, 438 (1963). 1299Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). This standard is imported from 

the cases abandoning Fay v. Noia and is discussed infra. 1300 373 U.S. 1, 15-18 (1963). The standards are embodied in 28 U.S.C. § 

2244(b). 1301 477 U.S. 436 (1986). 

cided after a petitioner’s conviction and sentence became final may 

not be the predicate for federal habeas relief if the case announces 

or applies a ‘‘new rule.’’ 1295 A decision announces a new rule ‘‘if the 

result was not dictated by precedent existing at the time the defendant’s conviction became final.’’ 1296 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.’’ 1297

Third, the Court has largely maintained the standards of 

Townsend v. Sain, as embodied in somewhat modified form in statute, with respect to when federal judges must conduct an evidentiary hearing. However, one Townsend factor, not expressly set 

out in the statute, has been overturned in order to bring the case 

law into line with other decisions. Townsend had held that a hearing was required if the material facts were not adequately developed at the state-court hearing. If the defendant had failed to develop the 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. 1298 The Court overruled that 

point and substituted a much-stricter ‘‘cause-and-prejudice’’ standard. 1299

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. 1300 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 1301 argued that the ‘‘ends of jusVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00229 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
856 ART. III—JUDICIAL DEPARTMENT 

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1302Sawyer v. Whitley, 503 U.S. 333 (1992). Language in the opinion suggests 

that the standard is not limited to capital cases. Id. at 339. 1303The 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). 1304 499 U.S. 467 (1991). 1305 499 U.S. at 489-97. The ‘‘actual innocence’’ element runs through the cases 

under all the headings. 1306 Coleman v. Thompson, 501 U.S. 722, 744-51 (1991). 

tice’’ standard would be met only if a petitioner supplemented her 

constitutional claim with a colorable showing of factual innocence. 

While the Court has not expressly adopted this standard, a later 

capital case utilized it, holding that a petitioner sentenced to death 

could escape the bar on successive petitions by demonstrating ‘‘actual innocence’’ of the death penalty by showing by clear and convincing evidence that no reasonable juror would have found the 

prisoner eligible for the death penalty under applicable state 

law. 1302

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.’’ 1303 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, 1304 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.’’ 1305

Fifth, the Court abandoned the rules of Fay v. Noia, although 

it was not until 1991 that it expressly overruled the case. 1306

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 alVerDate Apr<15>2004 08:36 Apr 29, 2004 Jkt 077500 PO 00000 Frm 00230 Fmt 8222 Sfmt 8222 C:\CONAN\CON013.SGM PRFM99 PsN: CON013
ART. III—JUDICIAL DEPARTMENT 857

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1307 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. 1308 E.g., Smith v. Murray, 477 U.S. 527, 538-39 (1986); Murray v. Carrier, 477 

U.S. 478, 496 (1986). In Bousley v. Brooks, 523 U.S. 614 (1998), a federal post-conviction relief case, petitioner had pled guilty to a federal firearms offense. Subsequently, the Supreme Court interpreted more narrowly the elements of the offense 

than had the trial court in Bousley’s case. The Court held that Bousley by his plea 

had defaulted, but that he might be able to demonstrate ‘‘actual innocence’’ so as 

to excuse the default if he could show on remand that it was more likely than not 

that no reasonable juror would have convicted him of the offense, properly defined. 1309Murray v. Carrier, 477 U.S. at 488. This case held that ineffective assistance of counsel is not ‘‘cause’’ unless it rises to the level of a Sixth Amendment violation. See also Coleman v. Thompson, 501 U.S. 722, 752-57 (1991) (because petitioner had no right to counsel in state postconviction proceeding where error occurred, he could not claim constitutionally ineffective assistance of counsel). The actual novelty of a constitutional claim at the time of the state court proceeding is 

‘‘cause’’ excusing the petitioner’s failure to raise it then, Reed v. Ross, 468 U.S. 1 

(1984), although the failure of counsel to anticipate a line of constitutional argument 

then foreshadowed in Supreme Court precedent is insufficient ‘‘cause.’’ Engle v. 

Isaac, 456 U.S. 107 (1982). 1310 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’’). 

ways had power to review the claim but that it had discretion to 

deny relief to a habeas claimant if it found that the prisoner had 

intentionally waived his right to pursue his state remedy through 

a ‘‘deliberate bypass’’ of state procedure. 

That is no longer the law. ‘‘In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an 

independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate 

cause for the default and actual prejudice as a result of the alleged 

violation of federal law, or demonstrate that failure to consider the 

claims will result in a fundamental miscarriage of justice. Fay was

based on a conception of federal/state relations that undervalued 

the importance of state procedural rules.’’ 1307 The ‘‘miscarriage-ofjustice’’ element is probably limited to cases in which actual innocence or actual impairment of a guilty verdict can be shown. 1308

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.’’ 1309 As for the ‘‘prejudice’’ 

factor, it is an undeveloped concept, but the Court’s only case establishes a high barrier. 1310

858 ART. III—JUDICIAL DEPARTMENT 

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1311 506 U.S. 390 (1993). 1312 506 U.S. at 398-417. However, in a subsequent part of the opinion, the 

Court purports to reserve the question whether ‘‘a truly persuasive demonstration 

of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional,’’ and it imposed a high standard for making this showing. Id. at 417- 

19. Justices Scalia and Thomas would have unequivocally held that ‘‘[t]here is no 

basis in text, tradition, or even in contemporary practice . . . for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.’’ Id. at 427-28 (Concurring). However, it 

is not at all clear that all the Justices joining the Court believe innocence to be nondispositive on habeas. Id. at 419 (Justices O’Connor and Kennedy concurring), 429 

(Justice White concurring). 1313 513 U.S. 298 (1995). 1314 513 U.S. at 334 (Chief Justice Rehnquist dissenting, with Justices Kennedy 

and Thomas), 342 (Justice Scalia dissenting, with Justice Thomas). This standard 

was drawn from Sawyer v. Whitney, 505 U.S. 333 (1995). 1315 513 U.S. at 327. This standard was drawn from Murray v. Carrier, 477 U.S. 

478 (1986). 

The Court continues, with some modest exceptions, to construe 

habeas jurisdiction quite restrictively, but it has now been joined 

by new congressional legislation that is also restrictive. In Herrera

v. Collins, 1311 the Court appeared, though ambiguously, to take the 

position that, while it requires a showing of actual innocence to 

permit a claimant to bring a successive or abusive petition, a claim 

of innocence is not alone sufficient to enable a claimant to obtain 

review of his conviction on habeas. Petitioners are entitled in federal habeas courts to show that they are imprisoned in violation of 

the Constitution, not to seek to correct errors of fact. But a claim 

of innocence does not bear on the constitutionality of one’s conviction or detention, and the execution of a person claiming actual innocence would not itself violate the Constitution. 1312

But, in Schlup v. Delo, 1313 the Court adopted the plurality 

opinion of Kuhlmann v. Wilson and held that, absent a sufficient 

showing of ‘‘cause and prejudice,’’ a claimant filing a successive or 

abusive petition must, as an initial matter, make a showing of ‘‘actual innocence’’ so as to fall within the narrow class of cases implicating a fundamental miscarriage of justice. The Court divided, 

however, with respect to the showing a claimant must make. One 

standard, found in some of the cases, was championed by the dissenters; ‘‘to show ‘actual innocence’ one must show by clear and 

convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death 

penalty.’’ 1314 The Court adopted a second standard, under which 

the petitioner must demonstrate that ‘‘a constitutional violation 

has probably resulted in the conviction of one who is actually innocent.’’ To meet this burden, a claimant ‘‘must show that it is more 

likely than not that no reasonable juror would have convicted him 

in the light of the new evidence.’’ 1315

ART. III—JUDICIAL DEPARTMENT 859

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

1316P. L. 104-132, Title I, 110 Stat. 1217-21, amending 28 U.S.C. §§ 2244, 2253, 

2254, and Rule 22 of the Federal Rules of Appellate Procedure. 1317 518 U.S. 651 (1996). 1318The amended 28 U.S.C. § 2254(d) (emphasis supplied). The provision was 

applied in Bell v. Cone, 122 S. Ct. 1843 (2002). For analysis of its constitutionality, 

see the various opinions in Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc), 

rev’d on other grounds, 521 U.S. 320 (1997); Drinkard v. Johnson, 97 F.3d 751 (5th 

Cir. 1996), cert. denied, 520 U.S. 1107 (1997); Hall v. Washington, 106 F.3d 742 (7th 

Cir. 1997); O’Brien v. Dubois, 145 F.3d 16 (1st Cir. 1998); Green v. French, 143 F.3d 

865 (4th Cir. 1998), cert. denied,525 U.S. 1090 (1999). 1319 § 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. 1320Thus the Act of March 3, 1875, § 2, 18 Stat. 470, conferring federal question 

jurisdiction on the inferior federal courts, provided for removal of such actions. The 

constitutionality of congressional authorization for removal is well-established. Chicago & N.W. Ry. v. Whitton’s Administrator, 80 U.S. (13 Wall.) 270 (1871); TenIn the Antiterrorism and Effective Death Penalty Act of 

1996, 1316 Congress imposed tight new restrictions on successive or 

abusive petitions, including making the circuit courts ‘‘gate keepers’’ in permitting or denying the filing of such petitions, with bars 

to appellate review of these decisions, provisions that in part were 

upheld in Felker v. Turpin. 1317 An important new restriction on the 

authority of federal habeas courts found in the new law provides 

that a habeas court shall not grant a writ to any person in custody 

pursuant to a judgment of a state court ‘‘with respect to any claim 

that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—(1) resulted in a decision that 

was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the 

United States.’’ 1318

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 extremely 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. 1319 Generally, as Congress expanded the original 

jurisdiction of the inferior federal courts, it similarly expanded removal jurisdiction. 1320 Although there is potentiality for intra-court 

860 ART. III—JUDICIAL DEPARTMENT 

Sec. 2—Judicial Power and Jurisdiction Cl. 2—Original and Appellate Jurisdiction 

nessee 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). 1321See 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). 1322 28 U.S.C. § 2679(d), enacted after Westfall v. Erwin, 484 U.S. 292 (1988). 1323 28 U.S.C. § 1443(1). Subsection (2) provides for the removal of state court 

actions ‘‘[f]or any act under color of authority derived from any law providing for 

equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.’’ This subsection ‘‘is available only to federal officers and to 

persons assisting such officers in the performance of their official duties.’’ City of 

Greenwood v. Peacock, 384 U.S. 808, 815 (1966). 1324Strauder 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). 1325Georgia 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). 

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 1321 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, 1322

the actions may be removed. But the statute most open to federalstate court dispute is the civil rights removal law, which authorizes 

removal of any action, civil or criminal, which is commenced in a 

state court ‘‘[a]gainst any person who is denied or cannot enforce 

in the courts of such State a right under any law providing for the 

equal civil rights of citizens of the United States, or of all persons 

within the jurisdiction thereof.’’ 1323 In the years after enactment of 

this statute, however, the court narrowly construed the removal 

privilege granted, 1324 and recent decisions for the most part confirm this restrictive interpretation, 1325 so that instances of successful resort to the statute are fairly rare. 

ART. III—JUDICIAL DEPARTMENT 861

Sec. 2—Judicial Power and Jurisdiction Cl. 3—Trial By Jury 

1326Georgia v. Rachel, 384 U.S. 780, 803 (1966); City of Greenwood v. Peacock, 

384 U.S. 808, 827 (1966). Justice Douglas in dissent, joined by Justices Black, 

Fortas, and Chief Justice Warren, argued that ‘‘in the courts of such State’’ modified 

only ‘‘cannot enforce,’’ so that one could be denied rights prior to as well as during 

a trial and police and prosecutorial conduct would be relevant. Alternately, he argued that state courts could be implicated in the denial prior to trial by certain actions. Id. at 844-55. 1327Georgia 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. 1328Georgia v. Rachel, 384 U.S. 780, 788-94 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 824-27 (1966), See also id. at 847-48 (Justice Douglas dissenting). 1329 City of Greenwood v. Peacock, 384 U.S. at 824-27. See also Johnson v. Mississippi, 421 U.S. 213 (1975). 

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. 1326

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. 1327 Furthermore, the removal statute’s reference to ‘‘any law providing for . . . 

equal rights’’ covered only laws ‘‘providing for specific civil rights 

stated in terms of racial equality.’’ 1328 Thus, apparently federal 

constitutional provisions and many general federal laws do not 

qualify as a basis for such removal. 1329

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 

862 ART. III—JUDICIAL DEPARTMENT 

Sec. 3—Treason Cl. 1—Definition and Limitations 

1330See the Sixth Amendment. 1331 2 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON ADOPTION OF

THE CONSTITUTION 469 (1836) (James Wilson). Wilson was apparently the author of 

the clause in the Committee of Detail and had some first hand knowledge of the 

abuse of treason charges. J. HURST, THE LAW OF TREASON IN THE UNITED STATES—

SELECTED ESSAYS 90-91, 129-136 (1971). 1332 2 M. Farrand, supra at 345-50; 2 J. Elliot, supra at 469, 487 (James Wilson); 

3 id. at 102-103, 447, 451, 466; 4 id. at 209, 219, 220; THE FEDERALIST No. 43 (J. 

Cooke ed. 1961), 290 (Madison); id. at No. 84, 576-577 (Hamilton); THE WORKS OF

JAMES WILSON 663-69 (R. McCloskey ed. 1967). The matter is comprehensively studied in J. Hurst, supra at chs. 3, 4. 1333 25 Edward III, Stat. 5, ch. 2, See J. Hurst, supra at ch 2. 1334 Id. at 15, 31-37, 41-49, 51-55. 

such Place or Places as the Congress may by Law have directed. 1330

IN GENERAL 

See analysis under the Sixth Amendment. 

SECTION 3. Clause 1. Treason against the United States, 

shall consist only in levying War against them, or in adhering 

to their Enemies, giving them Aid and Comfort. No Person 

shall be convicted of Treason unless on the testimony of two 

Witnesses to the same overt Act, or on Confession in open 

court.

TREASON

The treason clause is a product of the awareness of the Framers of the ‘‘numerous and dangerous excrescences’’ which had disfigured the English law of treason and was therefore intended to 

put it beyond the power of Congress to ‘‘extend the crime and punishment of treason.’’ 1331 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. 1332

Thus, the Framers adopted two of the three formulations and 

the phraseology of the English Statute of Treason enacted in 

1350, 1333 but they conspicuously omitted the phrase defining as 

treason the ‘‘compass[ing] or imagin[ing] the death of our lord the 

King,’’ 1334 under which most of the English law of ‘‘constructive 

ART. III—JUDICIAL DEPARTMENT 863

Sec. 3—Treason Cl. 1—Definition and Limitations 

1335 Id. ‘‘[T]he record does suggest that the clause was intended to guarantee 

nonviolent political processes against prosecution under any theory or charge, the 

burden of which was the allegedly seditious character of the conduct in question. 

The most obviously restrictive feature of the constitutional definition is its omission 

of any provision analogous to that branch of the Statute of Edward III which punished treason by compassing the death of the king. In a narrow sense, this provision 

perhaps had no proper analogue in a republic. However, to interpret the silence of 

the treason clause in this way alone does justice neither to the technical proficiency 

of the Philadelphia draftsmen nor to the practical statecraft and knowledge of 

English political history among the Framers and proponents of the Constitution. 

The charge of compassing the king’s death had been the principal instrument by 

which ‘treason’ had been used to suppress a wide range of political opposition, from 

acts obviously dangerous to order and likely in fact to lead to the king’s death to 

the mere speaking or writing of views restrictive of the royal authority.’’ Id. at 152- 

53. 1336The clause does not, however, prevent Congress from specifying other crimes 

of a subversive nature and prescribing punishment, so long as Congress is not merely attempting to evade the restrictions of the treason clause. E.g., Ex parte Bollman, 

8 U.S. (4 Cr.) 75, 126 (1807); Wimmer v. United States, 264 Fed. 11, 12-13 (6th Cir. 

1920), cert den., 253 U.S. 494 (1920). 1337 By the requirement of two witnesses to the same overt act or a confession 

in open court. 1338 Cl. 2, infra, ‘‘Corruption of the Blood and Forfeiture’’. 1339 8 U.S. (4 Cr.) 75 (1807). 

treason’’ had been developed. 1335 Beyond limiting the power of Congress to define treason, 1336 the clause also prescribes limitations 

upon Congress’ ability to make proof of the offense easy to establish 1337 and its ability to define punishment. 1338

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, 1339 which

involved two of Burr’s confederates, Chief Justice Marshall, speaking for himself and three other Justices, confined the meaning of 

levying war to the actual waging of war. ‘‘However flagitious may 

be the crime of conspiring to subvert by force the government of 

our country, such conspiracy is not treason. To conspire to levy 

war, and actually to levy war, are distinct offences. The first must 

be brought into open action by the assemblage of men for a purpose 

treasonable in itself, or the fact of levying war cannot have been 

committed. So far has this principle been carried, that . . . it has 

been determined that the actual enlistment of men to serve against 

the government does not amount to levying 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 

864 ART. III—JUDICIAL DEPARTMENT 

Sec. 3—Treason Cl. 1—Definition and Limitations 

1340 8 U.S. at 126-27. 1341 United States v. Burr, 8 U.S. (4 Cr.) 469, Appx. (1807). 1342There 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 

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, 87 U.S. (20 Wall.) 459 (1875). See also 

Hanauer v. Doane, 79 U.S. (12 Wall.) 342 (1871); Thorington v. Smith, 75 U.S. (8 

Wall.) 1 (1869); Young v. United States, 97 U.S. 39 (1878). These four cases bring 

in the concept of adhering to the enemy and giving him aid and comfort, but these 

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. Marshall continued by saying that ‘‘the crime of treason should not be extended 

by construction to doubtful cases’’ and concluded that no conspiracy 

for overturning the Government and ‘‘no enlisting of men to effect 

it, would be an actual levying of war.’’ 1340

The Burr Trial.—Not long afterward, the Chief Justice went 

to Richmond to preside over the trial of Aaron Burr himself. His 

ruling 1341 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. 1342

ART. III—JUDICIAL DEPARTMENT 865

Sec. 3—Treason Cl. 1—Definition and Limitations 

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. 1343 325 U.S. 1 (1945). 1344 89 Law. Ed. 1443-1444 (Argument of Counsel). 1345 325 U.S. at 35. 1346 325 U.S. at 34-35. Earlier, Justice Jackson had declared that this phase of 

treason consists of two elements: ‘‘adherence to the enemy; and rendering him aid 

and comfort.’’ A citizen, it was said, may take actions ‘‘which do aid and comfort 

the enemy . . . but if there is no adherence to the enemy in this, if there is no intent 

to betray, there is no treason.’’ Id. at 29. Justice Jackson states erroneously that 

the requirement of two witnesses to the same overt act was an original invention 

of the Convention of 1787. Actually it comes from the British Treason Trials Act 

of 1695. 7 Wm. III, c.3. 1347 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, 1343 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. 1344 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,’’ 1345 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,’’ 1346 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. 1347 Here it was held that although the overt acts relied upon to support the charge of treason—defendant’s harboring 

and sheltering in his home his son who was an enemy spy and saboteur, assisting him in purchasing an automobile, and in obtaining 

employment in a defense plant—were all acts which a father would 

naturally perform for a son, this fact did not necessarily relieve 

them of the treasonable purpose of giving aid and comfort to the 

enemy. Speaking for the Court, Justice Jackson said: ‘‘No matter 

866 ART. III—JUDICIAL DEPARTMENT 

Sec. 3—Treason Cl. 1—Definition and Limitations 

1348 330 U.S. at 635-36. 

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.’’ 1348

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 incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness. 325 U.S. p. 35. The present decision is 

truer to the constitutional definition of treason when it forsakes 

ART. III—JUDICIAL DEPARTMENT 867

Sec. 3—Treason Cl. 1—Definition and Limitations 

1349 330 U.S. at 645-46. Justice Douglas cites no cases for these propositions. 

Justice Murphy in a solitary dissent stated: ‘But the act of providing shelter was 

of the type that might naturally arise out of petitioner’s relationship to his son, as 

the Court recognizes. By its very nature, therefore, it is a non-treasonous act. That 

is true even when the act is viewed in light of all the surrounding circumstances. 

All that can be said is that the problem of whether it was motivated by treasonous 

or non-treasonous factors is left in doubt. It is therefore not an overt act of treason, 

regardless of how unlawful it might otherwise be.’ Id. at 649. 1350 343 U.S. 717 (1952). 1351 343 U.S. at 732. For citations in the subject of dual nationality, see id. at 

723 n.2. Three dissenters asserted that Kawakita’s conduct in Japan clearly showed 

he was consistently demonstrating his allegiance to Japan. ‘‘As a matter of law, he 

expatriated himself as well as that can be done.’’ Id. at 746. 1352 Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807). 1353 United States v. Burr, 8 U.S. (4 Cr.) 469 (1807). 1354 Cramer v. United States, 325 U.S. 1 (1945). 1355 Haupt v. United States, 330 U.S. 631 (1947). 

that test and holds that an act, quite innocent on its face, does not 

need two witnesses to be transfomred into a incriminating one.’ 1349

The Kawakita Case.—Kawakita v. United States 1350 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. 1351

Doubtful State of the Law of Treason Today 

The vacillation of Chief Justice Marshall between the 

Bollman 1352 and Burr 1353 cases and the vacillation of the Court in 

the Cramer 1354 and Haupt 1355 cases leave the law of treason in a 

somewhat doubtful condition. The difficulties created by the 

868 ART. III—JUDICIAL DEPARTMENT 

Sec. 3—Treason Cl. 2—Punishment 

1356 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. 1357 Ex parte Bollman, 8 U.S. (4 Cr.) 126, 127 (1807). Justice Frankfurter appended to his opinion in Cramer v. United States, 325 U.S. 1, 25 n.38 (1945), a list 

taken from the Government’s brief of all the cases prior to Cramer in which construction of the treason clause was involved. The same list, updated, appears in J. 

Hurst, supra at 260-67. Professor Hurst was responsible for the historical research 

underlaying the Government’s brief in Cramer. 1358 12 Stat. 589. This act incidentally did not designate rebellion as treason. 

Burr case have been obviated to a considerable extent through the 

punishment of acts ordinarily treasonable in nature under a different label, 1356 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.’’ 1357

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 BLOOD AND FORFEITURE 

The Confiscation Act of 1862 ‘‘to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the Property of 

Rebels’’ 1358 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 

ART. III—JUDICIAL DEPARTMENT 869

Sec. 3—Treason Cl. 2—Punishment 

1359Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1871). 1360Wallach v. Van Riswick, 92 U.S. 202, 213 (1876). 1361Lord de la Warre’s Case, 11 Coke Rept. 1a, 77 Eng. Rept. 1145 (1597). A 

number of cases dealt with the effect of a full pardon by the President of owners 

of property confiscated under this act. They held that a full pardon relieved the 

owner of forfeiture as far as the Government was concerned but did not divide the 

interest acquired by third persons from the Government during the lifetime of the 

offender. Illinois Central R.R. v. Bosworth, 133 U.S. 92, 101 (1890); Knote v. United 

States, 95 U.S. 149 (1877); Wallach v. Van Riswick, 92 U.S. 202, 203 (1876); Armstrong’s Foundry, 73 U.S. (6 Wall.) 766, 769 (1868). There is no direct ruling on the 

question of whether only citizens can commit treason. In Carlisle v. United States, 

83 U.S. (16 Wall.) 147, 154-155 (1873), the Court declared that aliens while domiciled in this country owe a temporary allegiance to it and may be punished for treason equally with a native-born citizen in the absence of a treaty stipulation to the 

contrary. This case involved the attempt of certain British subjects to recover claims 

for property seized under the Captured and Abandoned Property Act, 12 Stat. 820 

(1863), which provided for the recovery of property or its value in suits in the Court 

of Claims by persons who had not rendered aid and comfort to the enemy. Earlier 

in United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 97 (1820), which involved a 

conviction for manslaughter under an act punishing manslaughter and treason on 

the high seas, Chief Justice Marshall going beyond the necessities of the case stated 

that treason ‘‘is a breach of allegiance, and can be committed by him only who owes 

allegiance either perpetual or temporary.’’ However, see In re Shinohara, Court Martial Orders, No. 19, September 8, 1949, p. 4, Office of the Judge Advocate General 

of the Navy, reported in 17 Geo. Wash. L. Rev. 283 (1949). In 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. 

the power to punish treason, 1359 the Court in one case 1360 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.’’ 1361