Earl Warren: The Glidden Company, Incorporated, Petitioner, versus Olga Zdanok, et al.
Chester Bordeau: Mr. Chief Justice, and may it please the Court.
Earl Warren: Mr. Bordeau.
Chester Bordeau: On our last session which was on Wednesday, February 21st, we were in this posture that Mr. Justice Whittaker, as I recall, had put the question as to what was an Article I court. And I made reply to the question of Mr. Justice Whittaker by stating that in my opinion, from the rulings made by this Court in Bakelite and in Williams, that the answer was a -- that Article I court was a court which performed the functions and the powers of Congress. Functions which were cognizable by Congress. Functions and powers which were susceptible of performance by Congress and not requiring judicial determination. I think that is a rule that might be deduced from the statements of this Court in the Bakelite and in the Williams cases. I believe that the rules stated there are sound. I believe that they are sound for these reasons. In that -- in those cases, there was a very careful review made by the members of this Court with respect to the history and res -- and with respect to the powers and functions of the Court of Appeals. It was established, I submit, that the Court of Claims performed only those functions and powers which were adherently the functions and powers of Congress under Article I. I think it was established also the -- from the debates of the Congress in 1854 and 1855 that the purpose for the creation of the Court of Claims was to relieve the Congress of the heavy burden which had come upon it by reason of presentation of bills.
John M. Harlan II: Could I ask you a question? At the time the case was argued at the Court of Appeals, had the Lurk case as it first came to this Court been decided?
Chester Bordeau: I believe the -- I don't think so, Your Honor. I don't know definitely.
John M. Harlan II: What I'm trying to get at is (Voice Overlap) --
Chester Bordeau: I know.
John M. Harlan II: I was wondering why this claim wasn't made before the Court of Appeals.
Chester Bordeau: Well, frankly, we didn't know about it, that's a frank answer to your question. We did not know about it. The -- our case was argued in February of 1961. And I believe that the petition in the Lurk case was on May 29, 1961, some two or three months later. But to answer your question, Mr. Justice Harlan, we didn't know of the existence --
John M. Harlan II: (Voice Overlap)
Chester Bordeau: -- of this objection.
John M. Harlan II: A very frank answer.
Chester Bordeau: Now, in 1929, the Bakelite case. Decided in 1933, the Williams case.
Felix Frankfurter: Would you mind stating again what -- what you -- what reliance you'd place on the debate which you referred a minute ago? What do those debates show?
Chester Bordeau: Those debates show, Mr. Justice Frankfurter, that the purpose -- the purpose, which was referred to over and over again in the debates in 1854 or 1855 was to create a court for the purpose of relieving the Congress of the very heavy burdens which have been placed upon it in connection with the presentation of bills for the payments of moneys or payments of debts of the United States and the consideration thereof. I have a -- at page -- I think it's one -- page 16.
Felix Frankfurter: I take the word for it. Suppose Congress had chosen instead of creating a separate court. Suppose Congress had chosen to confer that jurisdiction to the existing district of Circuit Courts of the United States exclusively no -- no separate Court of Claims, would that have been the conferment of Article III jurisdiction upon the federal court.
Chester Bordeau: I believe the -- I submit the answer could be to your question, Mr. Justice Frankfurter, that Congress could have delegated to the inferior courts created by Congress under Article III the performance of the function --
Felix Frankfurter: Well, does that make a difference -- does it make a difference to the characteristic, the judicial significance in judicial powers sense, in Article III sense that it established the separate court to which that jurisdiction was given exclusively? Would that make a difference to the content of what the business was in order to determine whether it was or wasn't judicial power?
Chester Bordeau: I believe it does, sir.
Felix Frankfurter: It does?
Chester Bordeau: And for this reason that in the creation of inferior courts and the establishment of this inferior courts under Article III, I submit that the distinction in carrying between the two courts is this, that an Article III court possesses the power and the function to pass upon cases and controversies which are not susceptible to determination by an Article I court that would be, for instance, a -- a controversy between the parties in this case. The Glidden Company and the Zdanok an agree -- a breach of contract case, a breach of a collective bargaining agreement, I say that type of case, of course, could not be heard or determined by Congress.
Felix Frankfurter: But --
Chester Bordeau: Is not cognizable by it. Is not susceptible to determination by Congress and it requires a suggestion in the Bakelite and Williams cases a judicial determination under Article III, a court that determines cases and controversies which are not susceptible and which are not cognizable by an Article III cou -- or by Congress.
Felix Frankfurter: Or -- or the inference I would draw --
Chester Bordeau: (Voice Overlap)
Felix Frankfurter: The inference I would draw from what you've just said is that there may be matters, argumentatively to agree with me, there may be matters conferred on courts created under Article I which are not "judicial power in the sense of Article III." But what entitles you to the logical or the reasonable inference that because some tribunals can be created under Article I and give them authority to -- to decide, avoid the word adjudicate, to decide which wouldn't be given to Article III courts that things that could be given to Article III courts can't be vested in a specialized court?
Chester Bordeau: Well, I -- I don't know that I understand your question but I will --
Felix Frankfurter: What I'm saying is, what is there in, excuse me -- was in there in Article III which prevents Congress from establishing Article III courts and vesting in them limited jurisdiction. What is there in Article III --
Chester Bordeau: I --
Felix Frankfurter: -- that says what would have prevented Congress from 1789 or if you please, tomorrow to create separate courts of equity, giving them exclusively equitable jurisdiction in other courts, giving them exclusively jurisdiction on the lower side? What is there in Article III that so fetters and confines Congress?
Chester Bordeau: I don't think there is anything in Article III which prevents Congress from vesting in an Article III court the performance of some of the functions and powers which are susceptible of performance by the Congress. I don't believe that's true. But I think if we're going to have legislative courts and Article III court --
Felix Frankfurter: Well, but you evade the question as soon as you talk, put a label on it called legislative courts.
Chester Bordeau: Well --
Felix Frankfurter: What makes them legislative courts --
Chester Bordeau: What makes the legislative --
Felix Frankfurter: -- in your sense?
Chester Bordeau: In my thinking Your Honor?
Felix Frankfurter: Not in your thinking but in your sense of legislative courts namely --
Chester Bordeau: (Voice Overlap) -- I think --
Felix Frankfurter: -- jurisdiction that can't be conferred on Article III court.
Chester Bordeau: I say where a court performs solely those functions which are the functions of Congress that that court is an Article I court, where it performs those functions inherently the functions and the powers of Congress under Article I and nothing else. I say that court is an Article I court.
Felix Frankfurter: Well then, if I understand you, Congress can confer its legislative function of settling claims against the United States on Article III courts. Is that right?
Chester Bordeau: It's correct.
Felix Frankfurter: It can do it.
Chester Bordeau: That's correct.
Felix Frankfurter: But if it conjoins with that other things then its judicial power or va -- or the converse if it convert -- if it exclusively limits the court to that which Congress could do legislatively then it isn't a court.
Chester Bordeau: It is not a --
Felix Frankfurter: Is that right?
Chester Bordeau: I don't see it's not a court.
Felix Frankfurter: I mean it's not an Article III court.
Chester Bordeau: It's not an Article III court.
Felix Frankfurter: And how do you get that out of Article III?
Chester Bordeau: I get that from Article III from the decisions made by this Court.
Felix Frankfurter: But we are now re-canvassing the local (Voice Overlap) --
Chester Bordeau: And -- well, that's what I wanted to address myself to as to the soundness of the rulings of this Court in Bakelite and in Williams and in the subsequent decisions of this Court to which reference was made the mem -- some of the members of this Court who are sitting here today. I -- if I may proceed from that point, in the year 1941, this Court had before it the case of Sherwood against the United States. On that Court, Mr. Justice Black sat, Mr. Justice Frankfurter sat and Mr. Justice Douglas sat. And that court had before it the question as to whether or not a United States District Court could entertain jurisdiction of a suit commenced by a judgment creditor of a claimant against the United States, a claimant who had claim under the Tucker Act. The Court held that this Court could not -- the U.S. District Court could not entertain jurisdiction of such a suit. The reason being that in that suit, they had to be made a defendant another party, that was the judgment debtor. And it was stated by this Court that in view of that additional feature, that someone else had to be made a party defendant to that lawsuit meant that we did not have just a clear waiver of sovereign immunity where the United States could be sued.
William O. Douglas: What was the citation to that?
Chester Bordeau: That citation is 312 U.S., Your Honor. Now, in that case, Mr. Justice Stone delivered the opinion of the Court. And I would just like to quote very briefly from the statement concurred in by unanimous court incidentally. As I say concurred in by Mr. Justice Black, Mr. Justice Frankfurter and Mr. Douglas -- Justice Douglas. The Court acclaimed it is a legislative not a constitutional court. Its judicial power is derived not from the judiciary article of the Constitution but from the congressional parter -- power to pay the debts of United States which it is free to exercise through judicial as well as through non-judicial agencies. That was concurred in as I -- unanimous opinion concurred in by Your Honor, Mr. Justice Frankfurter.
Felix Frankfurter: I'm sure you could bring many commission -- commissions of error against me. That doesn't make it right --
Chester Bordeau: I don't think --
Felix Frankfurter: -- you know.
Chester Bordeau: I won't agree to that. Now, in 1949, this Court also had another case.
Felix Frankfurter: Was there anything that mattered with that decision?
Chester Bordeau: With the --
Felix Frankfurter: As a decision --
Chester Bordeau: -- Judge Stone?
Felix Frankfurter: As a decision, not the talk but a decision.
Chester Bordeau: I think the decision in the Sherwood case is correct.
Felix Frankfurter: And unrelated to this problem?
Chester Bordeau: Unrelated to this problem but I think that the statements which I have read were appropriate and necessary considerations on the part of this Court in coming to the conclusion to which it gave. Now, in 1949, this Court had before it the National Merit -- what's the name of that case?
Felix Frankfurter: Tidewater.
Chester Bordeau: The National Mutual Insurance Company against the Tidewater. Your Honors will recall that in that case, there were four opinions written. There were two majority opinions and two dissenting opinions.
Felix Frankfurter: May I correct you?
Chester Bordeau: If you may call on that.
Felix Frankfurter: May I correct you? There were two opinions contradicting one another to both of which --
Chester Bordeau: Yes.
Felix Frankfurter: -- totaled up to a contradictory but ex --
Chester Bordeau: That's --
Felix Frankfurter: -- inclusive result.
Chester Bordeau: That's exactly correct. Now, in that -- in that case, -- in that case, Your Honors, there was reference made in the opinion of Mr. Justice Jackson who wrote one of the prevailing opinions, joined in by Mr. Justice Black and by Mr. Justice Burton. There was a concurring opinion written by Mr. Justice Rutledge concurred in by Mr. Justice Murphy. A dissenting opinion by Mr. Chief Justice Vinson, joined in by Mr. Justice Douglas. And another dissenting opinion written by Mr. Justice Frankfurter concurred in by Mr. Justice Reed. Now, in that case, references were made to the determination made by this Court in the Bakelite and in the Williams cases. There was no disapproval of the rulings made by this Court in the Bakelite and Williams cases except possibly with respect to a matter to which I shall refer later in our argument but I will advert to very briefly at this time. And that is that there was disagreement with the expressions contained in the opinion of Mr. Justice Sutherland in the Williams case to the effect that that provision in Article III, Section 2 of Article III providing for controversies to which the United States to be a party. With reference to which Mr. Justice Sutherland stated that that was to be construed that where the United States was a party plaintiff and not a party defendant. Now, that statement in the Williams case was not approved by the members of this court in the discussions in the Tidewater case but it defies the holding that the Court of Claims was a legislative court. There was no expressions contained in any of the opinions in that case although reference was made to the Williams case as to its not being approved by this Court. Now, an attempt is now being made to overrule or to have this Court or to ask this Court to overrule both the Bakelite and the Williams case, the Williams case in which I am particularly interested. One of the first reason that it is urged for the overruling of the Williams case is this, it is said that the -- this Court in the Williams case, disregarded the earlier rulings of this Court with respect to the Court of Claims, if not the rulings at least the views expressed by this Court with respect to the Court of Claims. Now, the fact is that in the cases earlier like Bakelite or Williams, there was no discussion, there was no consideration of the question as to whether or not the Court of Claims was an Article I or an Article III court. There were statements made by members of the court to the effect that the Court of Claims was a constitutional or Article III court. But there was no discussion in the briefs. There was no discussion in the opinions and no consideration given to the specific point as to whether or not the Court of Claims was an Article I or an Article III court. It was not until 1929 when this Court considered the Bakelite case where the very full discussion was given with respect to the United States Court of Customs and Appeal or Custom Appeals was engaged in and also a very thorough discussion with respect to the Court of Claims. What was said of course with respect to the Court of Claims was very enlightening and very inspective but was not before the court in the Bakelite case. Although it was so inherent and so inter-involved with the determination as to what the U.S. Customs and Court of Appeals was, I believe it was proper, quite proper for a full discussion to be made with respect to the Court of Claims. And in 1933, of course, there was a specific consideration of the question as to whether or not the Court of Claims was an Article I or an Article III court. For in that case -- for in that case that this court had for determination whether or not legislation which had been passed providing for the reduction in the pay and the remuneration and compensation of judges of the Court of Claims could be effectively made. It was urged on behalf of Judge Williams who was the plaintiff in that case in the Court of Claims which was moved to this Court immediately, that he was a constitutional or Article III court judge. And therefore, under the provisions of Article III of the Constitution, guaranteeing him life tenure and irreducibility in salary or compensation that this legislation was unconstitutional.
Felix Frankfurter: Would you --
Chester Bordeau: The question was squarely put in that case and squarely considered and squarely and fully briefed by the parties to the suit.
Felix Frankfurter: Would you -- how do you explain why what I think is the real -- the real difficulty, with the Court of Claims as a so-called constitutional court has never been canvassed or urged by counsel namely, that its judgments are entirely of the caprice of Congress?
Chester Bordeau: Well, I don't know that so anymore, Your Honor. I think that was true at one time. I don't think that's true --
Felix Frankfurter: But do you say this is --
Chester Bordeau: I think the judgments today and they have been for some years have been final. I don't think they're subject to the approval of Congress --
Felix Frankfurter: Of Congress. -- except insofar as --
Felix Frankfurter: Congress can --
Chester Bordeau: -- appropriation may be necessary --
Felix Frankfurter: Well --
Chester Bordeau: -- for purpose of carrying the judgment into effect.
Felix Frankfurter: But your exception knits -- knits up the whole principle. Congress --
Chester Bordeau: That's true in Article III courts, too, Mr. Justice Frankfurter. Judgments against the United States in an Article III court. There still has to be appropriations --
Felix Frankfurter: Well, I know but --
Chester Bordeau: -- before any judgment can be paid.
Felix Frankfurter: But Article III courts so-called, the ordinary District Courts in courts of -- in Circuit Courts -- the old Circuit Courts and the Courts of Appeal and this Court are not exclusively preoccupied with adjudications against the Government involving exclusively money judgments against the Government to which Congress can whistle.
Chester Bordeau: Oh, I think that's correct.
Felix Frankfurter: (Voice Overlap) you may --
Chester Bordeau: But I think that's also true if I -- if I may submit. I think that's also true of judgments that may be entered in Article III courts in (Inaudible) --
Felix Frankfurter: Yes, but if you cut away those judgments for the Court of -- Court of Claims, you've got nothing there.
Chester Bordeau: That's correct.
Felix Frankfurter: Except advisory opinions --
Chester Bordeau: That's --
Felix Frankfurter: Frankly, advisory opinions. But if you cut away that jurisdiction of the District and Circuit Courts and Courts of Appeals and this Court, you got a vast amount of jurisdiction there.
Chester Bordeau: Oh, I -- I agree with that and I --
Felix Frankfurter: Therefore --
Chester Bordeau: And that --
Felix Frankfurter: Therefore the fact --
Chester Bordeau: That may be -- that may --
Felix Frankfurter: The fact that the Court of Claims' judgments are entirely at the grace of Congress except insofar as a moral -- a moral claim behind it, doesn't apply to the regular courts of United States.
Chester Bordeau: Oh, I think -- I think its part --
Felix Frankfurter: I'm not suggesting that that is (Inaudible) --
Chester Bordeau: I mean --
Felix Frankfurter: -- an answer to my problem. But what I'm suggesting --
Chester Bordeau: No.
Felix Frankfurter: -- that seems to me a real basis for attack.
Chester Bordeau: But I'm -- I'm afraid -- I'm afraid of this sir in -- that in your statement, Mr. Justice Frankfurter, there is a statement of the fact that with respect to judgments entered in the Court of Claims, that an appropriation is still necessary for the purpose of satisfying the judgment. And I may be wrong about this but I think the same is true with respect to judgments entered against the United States in the U.S. District Court.
Felix Frankfurter: But I've given you the answer to that. Suppose therefore, some astute counsel one of these days will say that jurisdiction conferred on the federal courts through the Tucker Act confer a so-called jurisdiction which had the defect namely, that the judgment is merely a moral leading by the court, federal courts and Congress may disregard that. Suppose the Tucker Act jurisdiction was cut away from the federal courts, has all the jurisdiction left on the bankruptcy, admiralty, patents, diversity jurisdiction, constitutional questions which we decide everyday almost or every Monday. All that's left, when if that effect is a -- is a valid effect then nothing is left of the Court of Claims.
Chester Bordeau: Well I think -- I think there is subs --
Felix Frankfurter: It had no tort jurisdiction. It has exclusively contract --
Chester Bordeau: That's correct.
Felix Frankfurter: -- jurisdiction against the United States.
Chester Bordeau: Only against the United States.
Felix Frankfurter: Each of which involves a judgment which for all that Congress is concerned can be a piece of paper.
Chester Bordeau: And it's --
Tom C. Clark: It comes back to jurisdiction, doesn't it?
Chester Bordeau: Pardon?
Tom C. Clark: Does it have to attack jurisdiction?
Chester Bordeau: I think not.
Felix Frankfurter: (Voice Overlap) --
Chester Bordeau: I think I have listed, Mr. Justice Clark, in my -- the appendix to our main brief the various jurisdictional matters that are granted to the Court of Claims and I don't see anything about taxes there. I don't re --
Felix Frankfurter: There is, involving a tax issue but always against the United States.
Chester Bordeau: Oh yes, that could be. That's correct. Well, that's under the general provision about your laws of United States. Yes, that's correct. But not a specific provision about tax claims like the Tax Court that has a provision for its considered tax claims.
Tom C. Clark: (Voice Overlap) negotiation under a term of the contracts, cancelled contracts, (Inaudible). I think (Inaudible) --
Chester Bordeau: I am not too sure about that, sir. Now, as I say one of the reasons that's been urged for the overruling of the Williams case has been this alleged disregard of the earlier cases. I just part -- tried to meet it if I may, the objections that have been made to the Williams case and the reasons that it have been urged here for the overruling of the Williams case. The first has been, as I suggested, that the Williams case did not follow the previous statements of observation of this Court with respect to the Court of Claims but I say that is not true. It's true that there were observations and statements made by courts with respect to the Court of Claims and being a -- an Article III or constitutional court but it was only in Bakelite and in Williams that you have the square presentation of the issue and the consideration of the question and where the question was fully mooted and fully considered and decided by unanimous court. Now, it has also been urged that Williams should be overruled for this reason. It is urged that in the Williams case, it was stated by the unanimous court there that in addition to the fact that the Court of Claims performed solely congre -- congressional matters, susceptible to congressional dissemination, that in that case, it was stated by Mr. Justice Sutherland that in view of the fact that the courts up here -- that the United States District Courts did not have jurisdiction in those cases where the United States was a defendant under that clause reading controversies to which the United States shall be a party. It was stated with reference to that clause in Section 2 of Article III by Mr. Justice Sutherland that under that clause, the United States could not be sued in courts created by Congress under Article III because it was not contemplated that the United States would be a defendant and it's through to that sort. Now, the fact is, however, that in the Williams case, the statements made by Mr. Justice Sutherland were completely unnecessary to that opinion. There had been a full determination and discussion made by the court with respect to the fact that the Court of Claims was a -- an Article I congressional court sitting at the whim and will of Congress, performing the work of Congress, relieving Congress of its burdens. And the fact that it was unnecessary. The fact that it was dictum was pointed out by Mr. Chief Justice Vinson in the Tidewater case, pointed out in the footnote at page 640, pointed out that the discussion there and this Mr. Justice Black joined in this particular opinion, it was pointed out that that statement by Mr. Justice Sutherland was unnecessary and was dictum.
Hugo L. Black: In which opinion did you say?
Chester Bordeau: This is in the Tidewater case, Your Honor.
Hugo L. Black: Justice Jackson's opinion?
Chester Bordeau: Not in Ju -- Justice Jackson and the opinion of Mr. Chief Justice Vinson, think that's page 640. And I believe that Your Honor concurred in the -- that opinion of Mr. Chief Justice Vinson. It was pointed out there that that part of the opinion was not decisive and therefore the reason urged here that because reference was made to that fact in the Williams case, if that is a reason for the overruling of the Williams case, I think is that with much merit.
Felix Frankfurter: Mr. Bordeau, I hope you'll leave --
Chester Bordeau: Yes.
Felix Frankfurter: -- yourself enough time to -- to deal with what was not involved in the Williams case, maybe the 1953 Act namely --
Chester Bordeau: Well, I do -- what I do want to that -- I'm -- I do want to --
Felix Frankfurter: (Inaudible) -- well, it's beyond the power of Congress --
Chester Bordeau: (Inaudible)
Felix Frankfurter: -- that you contend that it can create a constitutional Court of Claims.
Chester Bordeau: I would -- I would like to address myself to that right now although I didn't want to --
Felix Frankfurter: Well, don't -- it take --
Chester Bordeau: -- take a few minutes to discuss the other reasons that are urged for the overruling of the Bakelite and Williams cases which I do not believe.
Felix Frankfurter: I don't mean to derail you. I just think that that's very important.
Chester Bordeau: Well, I -- if it's in Your Honor's mind right now, I -- I would like if I may to answer it right away. In 1953, the Congress enacted an amendment to Section 171 of Title 28 of the United States Code by enacting an additional sentence to provide that the Court of Claims is hereby declared to be a court established to organize whatever particular work was under Article III that was in 1953. In 1956, and again by additional legislation in 1958, the Congress enacted legislation which came out in the form of Section 293 (a) of Title 28 of the Judicial Code to provide that the Chief Justice could decide a justice of the Court of Claim or a judge of the Court of Claims to serve on a United States Court of Appeals as was done in this case with respect to Mr. -- to Judge Madden. Now, it is our intention that that declaration by Congress in 1953 was a mere declaration without any effect. The legislation of 1953 did not undertake to enlarge the powers or the functions of the Court of Claims. It did nothing but spell out this statement a label that that it wanted to give to the Court of Claims. It gave this label or gave this additional amendment to Section 171 for the reason of attempting to repudiate this Court's determination. This Court's ruling with respect to the constitutional applications of the Act in effect in 1932 which Mr. -- Judge Williams attempted to have declared unconstitutional in the Williams case. Now, what Congress has done, they said, we will supersede the Supreme Court of United States and we will interpret the Constitution. And we don't agree with what Supreme Court has said with respect to the Constitution and we're declaring the law to be so and so. We say that is a repudiation, a futile attempt to repudiate the rulings of this Court with respect to the Constitution and is completely ineffective. We say it's also ineffective for this reason, that in making this declaration in 1953, as I stated before, the Congress did not enlarge the powers or functions in the Court of Claims. It's been our contention here that the powers and the functions of a court are the characteristics which determine whether it is an Article I or Article III Court. That was the test that was laid down in Bakelite. In that case, Mr. Justice Van Devanter stated that the test is not what in -- what the intention of Congress was. It was what was the actual jurisdiction conferred on a court. What were the powers? What were the functions conferred upon a court? Those were the matters. Those were the factors which determine its character as an Article I or in Article III court and not what Congress intended. That statement again was then adhered to by Mr. Chief Justice Vinson in the Tidewater case to which I have referred and it's with -- with which opinion Mr. Justice Black concurred.
Hugo L. Black: I didn't think I have.
Chester Bordeau: I -- I think -- I think that's true.
Hugo L. Black: Justice Vinson's opinion?
Chester Bordeau: Oh, I'm sorry. I'm sorry. What I said, Justice Black, I should have said Mr. Justice Douglas.
Hugo L. Black: Yes.
Chester Bordeau: I'm sorry. It's Mr. Justice Douglas who concurred with Mr. Justice -- Chief Justice Vinson.
Felix Frankfurter: Justice Black was one of the men who made harmony out of this Court.
Chester Bordeau: Well, I --
Felix Frankfurter: You made three -- three and three contradictory opinion is equal to one vote company as I mean --
Hugo L. Black: I've tried to make three and three, you mean to say?
Chester Bordeau: Oh, I have --
Felix Frankfurter: In English, that's what --
Hugo L. Black: I'm not a good mathematician.
Felix Frankfurter: That was legal arithmetic.
Chester Bordeau: Well, I am trying to address myself to the question put by Mr. Justice Frankfurter as to the effect, if any, of the amendment --
Felix Frankfurter: I do want to say before you go on that the Tidewater case really didn't raise these questions.
Chester Bordeau: Its --
Felix Frankfurter: Really didn't raise these questions before. The Tidewater problem --
Chester Bordeau: There's a lot of--
Felix Frankfurter: -- wholly different problem.
Chester Bordeau: There were lots of -- lot of discussion on that and I agree with you Your Honor.
Felix Frankfurter: What I mean is does the simple question was whether diversity jurisdiction --
Chester Bordeau: Is --
Felix Frankfurter: -- could be exercised with reference to denizens of the district.
Chester Bordeau: I must say--
Felix Frankfurter: Whether the district was a state or didn't have to be a state or so on.
Chester Bordeau: But there was full discussion, I assume, given by the justices of this Court that --
Felix Frankfurter: I would say --
Chester Bordeau: -- was considered appropriate for the occasion.
Felix Frankfurter: I would say -- I would say two-fold.
Hugo L. Black: I would say that was equal, certainly enough.
Chester Bordeau: Now, I --
Felix Frankfurter: A field then for discussion.
Chester Bordeau: I don't know that if I have answered the specific question, Mr. Justice Frankfurter, which you have put to me as to the effect if any of the legislation passed in 1953. I say that juri -- that legislation accomplished nothing. Its -- was a pure declaration without meaningful action taken by Congress that is meaningful in the sense that there was a conferring by Congress of any power or any function different from what have been theretofore conferred upon a Court of Claims.
Felix Frankfurter: That's the deduction of your postulate that Congress cannot create a tribunal to which is given as exclusive jurisdiction that with which Congress can deal legislative, alright?
Chester Bordeau: That's correct.
Felix Frankfurter: I've tried to follow your argument, I won't tell you what I think of it --
Chester Bordeau: Well--
Felix Frankfurter: -- but I --
Chester Bordeau: I must say that in the presentation of this argument that I have been set by some of the contrary statements and conflicting statements that are made by this Court and I have been a little confused myself in trying to appreciate the full meaning of what has been said. That is my answer to the question with respect to the legislation passed in 1953. Now, the additional legislation passed in 1956 and in 1958 empowering the Chief Justice to make a designation and assignment of a judge of the Court of Claims to sit on the United States Court of Appeals, I say, is unconstitutional in this way that Mr. Justice or Judge Madden rather was appointed in 1941 confirmed by Senate to a court -- a Court of Claims. Clearly, we submit, an Article I court without the guaran -- guarantee of life tenure and irreducibility in compensation that his assignment to sit in a court where that was a fundamental and basic constitutional requirement is -- was an unconstitutional legislation which permitted the -- the Chief Justice to meet this assignment and designation.
Hugo L. Black: To what do you attribute his life tenure now and his power to hold for life? To what do you exercise --
Chester Bordeau: I -- I -- you mean Judge Madden?
Hugo L. Black: Yes.
Chester Bordeau: I see Judge Madden still doesn't have it. I still see that Judge Madden up -- he's still sitting, I don't know if he resigned or not. But if he is still sitting, he didn't -- retirement or otherwise on the Court of Claims, I say that still the Congress may repeal the statute whereby he was given life tenure --
Hugo L. Black: So you say he has --
Chester Bordeau: -- tenure during --
Hugo L. Black: You say he has a statutory and not a --
Chester Bordeau: That's a --
Hugo L. Black: -- constitutional --
Chester Bordeau: Statutory as dis --
Hugo L. Black: -- life tenure.
Chester Bordeau: Perhaps as distinguished from constitutional. That's correct, sir.
Felix Frankfurter: What you are saying is that's -- as though Congress dis -- tomorrow afternoon pass the statute giving the director amend for the Director of the Budget your life tenure. That's all he has.
Chester Bordeau: That's right. And I say it's only done with respect to Judge Madden and tomorrow or the day after or the next Congress may repeal this legislation. And we must keep in mind, also, that in this legislation which purport -- which gave Judge Madden life tenure. There was no provision as contained in Article III with respect to irreducibility in compensation that was not done. And yet I don't think, maybe assumed so that the Congress could, certainly with respect to the compensation, reduce that at any time. And I think they could do the same with respect to the tenure in office. There is no statute that Congress passes that is irrepealable. Every Congress may act as it sees fit in the interest of the public as it should be -- is required to, any succeeding Congress may do the same.
Hugo L. Black: Would you mind stating to me in a sentence if you could, why, if you accept as fully valid the statement in Sherwood, forget all about dictum or whatever view points of it, you accept it now, why do you say it necessarily follows that Judge Madden's precedents and the -- this Court should invalidate the judgment?
Chester Bordeau: For this reason that Judge Madden not having the constitutional guarantee provided for by Article III of the Constitution with respect --
Hugo L. Black: You mean of life -- you mean of life tenure?
Chester Bordeau: Of life tenure and irreducibility in compensation not having that and his sitting on a court where upon the appointment of a judge to that court, a judge immediately becomes vested with a constitutional guarantee of vesting of life tenure and irreducibility in compensation. And I -- I go on from there to say that a litigant properly in United States District Court, properly in the United States Court of Appeals has the right, the constitutional right to have a court that is constituted of judges who possess that very fundamental qualification under Article III. And that a denial of that right to a litigant in that court is a denial of the protection given the public by Article III with respect to life tenure and irreducibility of compensation and under Amendment V --
Hugo L. Black: You consider --
Chester Bordeau: -- of the Constitution.
Hugo L. Black: You consider it the same as though the Congress had passed the law which said that judges of the Court of Appeals for the Second Circuit should not have life tenure?
Chester Bordeau: That's correct.
Hugo L. Black: Or as though you would say that if they assign eight, they have five judges from the Court of Claims so that the court would have five people there who did not have constitutional --
Chester Bordeau: That's correct.
Hugo L. Black: -- life tenure --
Chester Bordeau: That's correct.
Hugo L. Black: And security of salary and therefore they could not sit in that court.
Chester Bordeau: That's correct, sir. Now, I don't have -- I haven't had the opportunity to discuss all of the reasons why I think that the grounds urged for over ruling.
Felix Frankfurter: You go from your postulate to the irrelevance of these other indicia of life tenure and non-reductibility of sala -- salary instead of going from this indicia to finding out whether it's a court. Isn't that right?
Chester Bordeau: It's a court. I think it's a court. They are courts under --
Felix Frankfurter: I mean it's a court (Voice Overlap).
Chester Bordeau: -- Article I.
Felix Frankfurter: Yes.
Chester Bordeau: They are courts under Article III.
Felix Frankfurter: You go from your postulate -- you go from your postulate that this can't be done to saying that these legislative determinations are irrelevant instead of taking these incidents and from them deducing whether it could be an Article III court.
Chester Bordeau: I -- I don't say--
Felix Frankfurter: Isn't that the test here?
Chester Bordeau: I don't see irrelevant, I say that these legislated enactments are --
Felix Frankfurter: Well, you --
Chester Bordeau: -- are repealable. They're not -- not --
Felix Frankfurter: But I don't mean to say they're not irrelevant but the man doesn't get a salary he gets, but tomorrow it can be changed. That they --
Chester Bordeau: That's correct.
Felix Frankfurter: They'd be talking nothing.
Chester Bordeau: That's correct.
Felix Frankfurter: They'd be talking nothing.
Hugo L. Black: You take the Court of Claims, I assume, as being a court by the Congress has selected these people to serve it and deciding who it would pay what it owed if it does owe and accept them or reject them. And that it could be the same whether they call them a court or commission.
Chester Bordeau: That's correct.
Hugo L. Black: Or a committee of Congress.
Chester Bordeau: That's correct.
Hugo L. Black: Same as giving the power, I assume you would say to the Finance Committee or the court -- the Committee on Claims in the Senate, giving them life tenure.
Chester Bordeau: That's correct, sir.
Hugo L. Black: Are here appointed.
Chester Bordeau: That is correct.
Hugo L. Black: (Inaudible)
Chester Bordeau: And I think that's Congress should have the right to have a court or an agency or a commission or a board to relieve it of the heavy burdens that it has in the performance of its functions. This Court, that is a Court of Claims performs one of those functions.
Hugo L. Black: Well, I can testify that's a heavy burden of tenure service are.
Chester Bordeau: Not having been honored but I've heard a great deal about it. Now, as I -- in a few remaining minutes that I have, I would like to address myself very briefly to the question that's made by the opposition to the effect that we're right about all of these things. And the court was improperly constituted and so forth then our opponents urged -- well, then we will consider Judge Madden as a de facto judge. Let us consider him that. Now, the cases that they cite with respect to de facto are cases, I submit to Your Honors, cases where there have been omissions to carry out formalities in the making of a designation or an assignment of a judge. They have not been cases and there is no case that I know of whether you have what we have here, a constitutional impediment on the part of Judge Madden in sitting in the United States Court of Appeals. I might -- I see my --
Hugo L. Black: Can I ask you, am I wrong in taking that the court has -- that the Congress has now -- I'm -- I'm not sure about it, provided military Courts of Appeals with life tenure?
Earl Warren: No.
Hugo L. Black: Have they done that here?
Chester Bordeau: I don't think they had.
Hugo L. Black: What -- what term do they have?
Chester Bordeau: I don't think -- you consider it a term. I don't know if a term has even set but those courts I can -- I understand are not the Article III courts.
Tom C. Clark: 15 years?
Hugo L. Black: No, I --
Chester Bordeau: 15 -- 15 years.
Earl Warren: (Inaudible) Mr. Bordeau, you may have five minutes to summarize in conclusion if you -- if you wish it.
Chester Bordeau: I'd be happy sir.
Earl Warren: And you, Mr. Shapiro, if you need it, you may have five minutes more too. Mr. Shapiro.
Morris Shapiro: Mr. Chief Justice, may it please the Court. I should like to address myself preliminarily to the question as to whether the question which this petitioner has raised in this Court for the first time, is a question that he can't raise. And for that purpose, we associate ourselves fully with the argument made by Solicitor General in the Lurk case that the issue of Judge Madden's competence to sit in the Court of Appeals for Second Circuit has been waived by not being raised in that court when the appeal was heard. May I indicate to this Court the extent of the neglect of this petitioner to raise that question. The appeal was argued in the Court of Appeals on February the 8th, 1961. The petition for certiorari was filed in this Court on July 21st, five months and 13 days later. That was the first time this issue was raised by the petitioner. It is no answer for the petitioner to say, "We weren't aware of this question. We didn't know about the issue being raised in the Lurk case." The fact is that the issue came up first in the Bakelite case. That was decided in 1929 and reported in the official reports. It was followed by the Williams case in 1933 that was, likewise, reported. And that was followed by the comment which has been quoted from the Sherwood case in 1941. And I think it's no answer from my adversary to say that he was unaware of what this Court said in these several cases as an excuse for not having raised that issue before the Court of Appeals. Now, the public policy phase of this question, I think, is also relevant. The Administrative Office of the United States Court in answer to an inquiry by me indicated on the date of December 26, 1961 that three judges of the Court of Claims have from time to time been assigned by the Chief Justice to sit in the various Courts of Appeal both in the District of Columbia and in the Second Circuit. The only statistics available as to the number of cases which they heard and participated in decision apply only for the year 1961 at which time the record indicates that Judge Madden in a period of one week. We can question where this particular case was argued during that one week where which statistics are available participated in 18 cases. Now, if we follow my adversary's position, that there is a jurisdictional defect in the sitting of Judge Madden and the assignment of Judge Madden to Court of Appeals and that that jurisdictional defect can be raised at any time five months and 13 days later as it was in this case for five years later. Then of course, the decisions in all of these cases would be of no effect. And the questions could be raised by a motion to vacate the judgments.
William O. Douglas: Of course, you have here the unique fact that without Madden there's one judge on each side of the question below.
Morris Shapiro: Well, I don't know but that may have occurred in other cases, too. There -- there are no statistics available to us although we've made inquiry which might not indicate that that's situation might prevail. But, I think it's mere coincidence that you have this situation of one judge dissenting with Judge Madden being part of the majority. I think that's pure coincidence because if the question should have been raised then as a matter of a public policy that I believe disposes of the question.
John M. Harlan II: Are there any figures showing a number of times the Court of Claims judges have been assigned to Courts of Appeals or --
Morris Shapiro: Yes, I have those.
John M. Harlan II: Have you?
Morris Shapiro: Yes.
John M. Harlan II: Were --
Morris Shapiro: Judge --
John M. Harlan II: Are they -- are they printed in your brief?
Morris Shapiro: No, they are not. This information came to us later. And we would be pleased to submit it in the supplemental brief would you --
John M. Harlan II: You got it by years? Is it tabulated by years or --
Morris Shapiro: We -- we only know the period of time that they sat tabulated by years. We don't know the number of cases. May I just indicate, Your Honor, what that situation is?
Felix Frankfurter: Beginning with what year?
Morris Shapiro: At 1958. And Judge Madden has sat regularly each year since 1958. In 1958, he sat for a period in February and again in June in the Court of Appeals for the District of Columbia. Commencing in 1959, Judge Madden has sat regularly in the Court of Appeals for the Second Circuit for a period of one week each year, 1959, 1960, 1961. In addition to that, Judge Laramore and Judge Whittaker of the Court of Claims have sat in the Court of Appeals for the District of Columbia only in the year 1958 and not since. In other words, just to summarize, Judge Madden has been the only Judge who has sat for any longer period of time beyond the year 1958. And of course, in the Lurk case, we have the situation of Judge Jackson and so far as Judge Jackson is concerned, he sat in the Court of Appeals for the District Court of Columbia for the period of 10 days in 1958.
Hugo L. Black: If you assume that they are right, just assuming that, and telling the court its different, just assume that, you assume they are right in saying that -- that no judge of the Court of Claims has constitutional rights to sit on the Court of Appeals, suppose all three of them have been judges of Court of Claims, would you still say they'd have to raise it?
Morris Shapiro: Yes. And I think if Your Honors will examine the three cases which have been cited by the petitioner on this appeal, the American-Foreign Steamship case, the Ayrshire Collierie case and Frad against Kelly. In all three cases where there was a claim of the lack of jurisdiction in the court in all three cases it appeared beyond contradiction that the protest was made at once at the earliest possible moment when the protest was made apparent or the basis for the protest was made apparent. And in -- in my view, I think the reverse of that situation would be true that absent such a protest when the defect becomes apparent, the question cannot be raised at a later date. Of course, in our case, we take a position that in the absence of a protest by the petitioner in the Court of Appeals, Judge Ma -- Madden had all of the characteristics of a de facto judge in the Court of Appeals.
Hugo L. Black: Suppose -- suppose that Congress had provided that United States Commissioners could be designated, they had their jobs for life. Would say they could sit, could have to be no (Inaudible) there has to be challenge?
Morris Shapiro: Well, I think you have to go one step further. In other words, the man who was appointed to sit in the Court of Appeals must be a judge. He must have been performing judicial duties. In other words, I think to take the question posed by --one raised by Mr. Justice Douglas, you couldn't take a commissioner from the Security and Exchange Commission or a retired Commissioner from the Securities and Exchange Commission and permit him to sit on the Court of Appeals. You have to have a judge who has been performing judicial duties and who has engaged in judicial business and who has come from a court and authorized him to sit and there must have been some regularity or attempted regularity of his designation.
Hugo L. Black: And where would you draw the lines, suppose of the Court of Military Appeals?
Morris Shapiro: A Court of Military Appeals is -- is composed of judges who do not have life tenure.
Hugo L. Black: Suppose, they give them life tenure.
Morris Shapiro: Well, I should suppose that if you have a Court of Military Appeals that had all of the premise that exist with respect to the U.S. Court of Appeals and if they were performing judicial business if they had life tenure and so on, all of these things --
Hugo L. Black: They had legislated life tenure, you mean.
Morris Shapiro: If the--
Hugo L. Black: Not constitutionally.
Morris Shapiro: If -- if they were performing judicial business which could be placed within the scope of Article III -- Article III, I must emphasize that as a necessary element in this situation.
William O. Douglas: For some commiss -- Commissioners do -- perform that kind of business.
Morris Shapiro: A commission may perform such functions. But it doesn't follow that just because a commission may perform such functions that a commissioner may be assigned to the Court of Appeals. In other words, you have to have that total picture. And you can't segregate and carve out some of the elements and say, "Well, could this man go to the Court of Appeals and sit." Obviously, not. But in this case, we had all of the elements that went into the making of Judge Madden as at least a de facto judge of the Court of Appeals.
Earl Warren: (Inaudible)
Morris Shapiro: One important element --
Earl Warren: Mr. Shapiro, the -- the Congress, at least in the last session was giving some consideration to the establishment of a -- a court to settle the pension claims, veterans claims of all kinds. And suppose they did set up a court just for that -- just for that purpose and said we'll give life tenure and -- and protection against reducing their salaries, would that -- would that in and of itself make -- make that the kind of a court that -- that would be Article III court?
Morris Shapiro: Well, I don't want to stray too far on --
Earl Warren: Well, I don't think that straying very far. They are -- they are deciding claims against the Government just as the Court of Claims is deciding claims against the Government and -- and supposing that they give them that power and -- and said, "Well, now, they are an Article III court, would that -- would -- would those things in and of themselves make it a three-judge court?"
Morris Shapiro: I --
Earl Warren: Or (Inaudible) --
Morris Shapiro: I would -- I would say --
Earl Warren: That they would -- Article III court --
Morris Shapiro: I would say that if they were handling cases, determining cases which arise under the laws of the United States in the language of Article III, if they were given life tenure, irreducibility of compensation and if their judgments became final and they had the authority to render final judgments and if they were constituted as a court engaged in the performance of judicial duties and they had all of that trappings of a court, they are a court vested with judicial power.
Earl Warren: Yes, I just --
Morris Shapiro: And it isn't an answer to say, "Well, its specialized jurisdiction."
Felix Frankfurter: Congress created a few years ago there is now sitting an Indian -- a Commission on Indian Claims, I'd like to have somebody tell me why Congress can, instead of doing what it did to creating a commission with limited tenure because it was expected, hopefully expected that those claims will be settled in a few years and therefore you don't want to have a lot of life long functionary. I wish somebody would tell me so I can understand it, why Congress cannot create a court to deal with claims arising under treatise with the Indians and under statutes in relation to the Indians and give determination of those issues with adjudication that is not subject at least to revision by the Secretary of the Interior or Secretary of the Treasury, bring to one side the power Congress to withhold appropriation. Why Congress couldn't -- instead of giving that jurisdiction as it well might as it has in the past the regular so-called Article III court? Why it couldn't deposit that adjudicatory function into a separate court. I like to have somebody explain that to me.
Earl Warren: Well, of course the issue --
Morris Shapiro: Of course --
Earl Warren: Is that the question -- is that question before us? There is no -- I don't think anybody questioned with what Congress could establish a court of that kind. But my question knowning the -- went to this, does that in and of itself make it an Article III court. And that's the only problem we've got here. I don't know that anybody is contending that Congress had no power to establish a court of that kind.
Felix Frankfurter: But I was --
Earl Warren: (Voice Overlap)
Felix Frankfurter: -- addressing myself to the Chief Justice's question that -- but as to -- I see no reason why Congress couldn't have done what it didn't do in the cases giving rise to the so-called Hayburn's case, which involved six separate determination for the determination of pension claims by veterans of the revolutions, of the American Revolution. I see -- I don't see why Congress can't confer that either on court spread throughout the country or a tribunal exclusively dealing with it if it didn't do -- if it -- if it avoids doing what it did in that case, namely to make the determinations contingent upon the Secretary of Treasury or War, I forget which, I think Treasury instead of War, approving of it. But I was addressing myself with reference to these Indian claims, of these pension claims to Mr. Bordeau's postulate that because Congress would pass an act, it couldn't turn it into an honest to God litigation before an honest to God court.
Morris Shapiro: Well I -- I take the position that although we -- we -- one say that this was necessary to reach that point. In our case, that Congress can do this and if we meet all of the elements that are essential to the creation of an Article III court that is to say, the creation of a court within the scope of the language of Section 2 of Article III vested with that kind of jurisdiction with the power to render final judgment. The mere circumstance that the court is exercising jurisdiction between litigant A and litigant United States Government is not in court here.
Felix Frankfurter: Mr. --
Morris Shapiro: If --
Felix Frankfurter: -- Shapiro, I find the two lawyers don't dwell on what seems to me to be the operative concept of this problem, namely the term of the concept "judicial power." The question is, is it judicial power in the undefined sense in which Article III used them and the undefined sense which defines from the practice of those people that Holdsworth and (Inaudible) construe that clause the things familiarly were decided by Courts of Westminster. That's the guts of the case to me. What its judicial power -- of its judicial power and there's nothing in Article III or any other part of the Constitution which says you can't give specialized limited jurisdiction as Congress had done time and again with reference to the court, the federal courts the so-called "unquestioned federal court."
Morris Shapiro: May I, in this context, read to Your Honors what President Lincoln said in 1861 when the issue was of considerable and critical importance to give to the Court of Claims as it had recently been constituted the power to render final judgments as -- as one of the elements of the judicial power. And I think it's important as denoting the statutory intent when Congress acted as it did in 1863 and ultimately in 1866.
Felix Frankfurter: Well, you should state what preceded that message of Lincoln.
Morris Shapiro: I -- I should be delighted to do that. Here, up to 1855, as the Court knows, all claims against the United States Government -- Government were presented to the Congress. In 1855, the question arose as to the manner in which Congress could divest itself of the burden of passing upon these claims. And so they decided after the consideration of whether a commission should be appointed or commissioners delegated to the task, they decided to create a court, and that court was the Court of Claims. And it was delegated with the job -- vested with the job of hearing and determining claims against the United States Government. But Congress at once modified this power to hear and determine by saying that the report on these claims as they were determined were to be referred back to Congress which in effect gave to Congress the right to reverse, to ignore --
Felix Frankfurter: I must correct you -- I must correct you. Section 14 of that Act gave the Secretary of Treasury -- of the Treasury power to modify the determination of the Court of Claims. That was the violence.
Morris Shapiro: In -- in -- in 1861, at the outset of the civil war and with the enormous rise in claims against the United States Government, the issue arose of having a speedier and a final determination of these claims. And the message of President Lincoln was indicative of the desire of the President and the later action of Congress confirmed that, that the intent was to vest them with judicial power. And if I may be permitted, I should like to quote from President Lincoln's message. "It is as much the duty of Government to render prompt justice against itself in favor of citizens as it is to administer the same between private individuals. The investigation and adjudication of claims in their nature belonged to the judicial department. It was intended by the organization of the Court of Claims, mainly to remove this branch of business from the halls of Congress." Now, Congress acted once again in the light of this message. And this Court, after Congress acted in the Gordon case, held that the act of Congress did not represent a final judgment in the legal sense because there was a necessity of the Court of Claims reporting to the Secretary of the Treasury for the purpose of appropriation. And Congress once again acted in 1866 by removing this offensive clause that was referred to in the Gordon case. And so from 1866 until 1929, for all purposes, the Court of Claims had all of the characteristics of a court vested with those powers which in the total sum represent the judicial power. And there was never any question raised about it until Bakelite and Williams. Now, when this Court held as it did in Bakelite and Williams, Congress once again acted in 1953. And Congress declared that the Court of Claims was an Article III court. Now, at the very least --
Hugo L. Black: Does that --
Morris Shapiro: At --
Hugo L. Black: -- settle it?
Morris Shapiro: What, sir?
Hugo L. Black: Does that settle it? Does that settle the question?
Morris Shapiro: In my view, it does. But I say at the very least. That Act of Congress in 1953 is entitled to great respect as indicating what Congress has decided was its own intent as a body acting at some prior time.
Hugo L. Black: Would you agree or disagree with the statement that Article III at least contemplates that this shall be some courts exercising some kind of judicial power where the judges have to be appointed for life and where they cannot have their salaries reduced?
Morris Shapiro: Yes. I agree to that. And the Court of Claims is such a court.
Hugo L. Black: Would you agree that Congress could've exalt this, create new courts, legislative courts so that they can take the place of all the courts that heretofore have had judges appointed for life just by naming other courts. Saying they could have a job for life, Congress could thereby do away with any courts under Cons -- under Article III.
Morris Shapiro: Well, I -- I should suppose that Congress could do that. But the point of the -- of the argument is this, that having created the Court of Claims and having provided for life tenure. So far as the judges of that court are concerned and having granted to them what we termed the judicial power that is --
Hugo L. Black: And -- and granted them by legislative exercise of legislative power, life tenure which could be taken away tomorrow.
Morris Shapiro: Well, how else could this be done? The power to -- the power to create inferior courts has been vested in the Congress. The only court mentioned in Article III is this Court, and then it goes on to refer to inferior courts. And inferior courts such will have the --
Hugo L. Black: Are they to be appointed for life or not?
Morris Shapiro: What's sir?
Hugo L. Black: Are they do be appointed for life or not?
Morris Shapiro: They shall have life tenure. But the power to create inferior courts is vested in the Congress, every inferior court derives its authority and its powers at its source of appointment from legislation enacted by Congress. And that applies to the District Courts, the Courts of Appeal, the Court of Claims, the Court of Custom and Patent Appeals and many other courts of a wide variety.
Felix Frankfurter: And abolish them tomorrow, all of them?
Morris Shapiro: That's correct, sir.
Felix Frankfurter: It couldn't -- it couldn't terminate the service the tenure of the judges but it could abolish the court, not with all court out, in connection with the Commerce Court.
Morris Shapiro: That's correct, sir.
Felix Frankfurter: The court was -- the court was created. The court was abolished. They were judges having all the incidence of article -- so-called Article III judges and therefore their tenure couldn't be terminated but their business was put out of business.
Hugo L. Black: Does it follow from that that the Congress has power to create courts to try murder cases, contract cases, all other kinds of litigation between different parties and provide that they shall not have tenure for life. Does that follow from the fact that they can abolish them?
Morris Shapiro: I would say that if they seek to this in a court, judicial power as we understand it from Article III Section 2, then all the other things must follow and that is to say that --
Hugo L. Black: What other things?
Morris Shapiro: Such as life tenure, that irreducibility of compensation --
Hugo L. Black: You mean follow constitutionally?
Morris Shapiro: Yes.
Earl Warren: Does that include cases and controversies?
Morris Shapiro: Yes.
Earl Warren: Only?
Morris Shapiro: Well, it would include those types of cases which are within the scope of Article III that is to say, those cases in whi -- lower equity arising out of the Constitution, the laws of the United States, treaties made and so on. If they don't arise in that fashion, of course, Congress could do otherwise. And that was always the attitude of this Court for a period of 101 years from Canter until Bakelite from 1828 until 1929. There was no deviation at all in the attitude of that court. And in the Canter case, we had a very specialized situation thereof necessity the -- the life of the court which was adjudicating controversies in the territory of Florida was temporary. The tenure of the judges was temporary. And -- and this Court in 1828 carved out for the first time this concept of a legislative court which would apply and which they did apply to courts in territories and to counsel of courts. But for 101 years, that principle was not extended until the issue came up in Bakelite and in Williams. And I say, that if you have the Bakelite and Williams case on the one hand, dealing as they said with what they refer to as the intent of the Congress as to the power of the court. And on the other hand, a manifestation of the intent of the Congress as exemplified, characterized by the 1953 Act, then I say that Bakelite and Williams must yield to the 1953 Act.
Hugo L. Black: Does that mean that in order to sustain your position, Bakelite and Williams must be overruled?
Morris Shapiro: Not at all. The contrary --
Hugo L. Black: Why?
Morris Shapiro: The contrary because the 1953 Act came after Bakelite against Williams and this Court could in all --
Hugo L. Black: Of the 1953 Act, was an act of Congress providing for that which these other cases, as I read them, indicated was required by the Constitution.
Morris Shapiro: In the Bakelite -- in the Williams case, this Court held the basis of the court's reasoning was that the fact that the United States was a party defendant did not make the cases of -- as -- of cases considered by the Court of Claims, cases which involved the judicial power of the United States. In the Williams opinion and in the Bakelite opinion, the Court never touched upon the question of the judicial power as it extended to all cases arising under the laws of the United States. Now, I don't know whether the Court considered it or not. But clearly here was a broader, a broader scope for the grant of judicial power. And I say that the Court of Claims is dealing constantly with cases which arise under the laws of the United States and it does all of the other things that any other court could do with the jurisdiction that it exercise are under appropriate legislation. And the mere circumstance that it's an act of Congress doesn't differentiate the Court of Claims from the District Court or the Court of Appeals. And while I -- I want to emphasize once again that Williams and Bakelite need not be overruled. I -- I want to say that they need not be overruled for several reasons. This Court could hold that there was a waiver of this question. This Court could hold that at the very least, Judge Madden exercised de facto authority. And this Court could hold that the 1953 Act was an expression by Congress that this Court was vested beyond all prevention of doubt with judicial power. And in our view, Congress is the source of such a declaration in all cases.
Felix Frankfurter: If we don't reach -- if we don't reach the question, the ultimate reach of the question that whether the Court of Claims is a constitutional court, whether the Court of Customs and Patent Appeal, whether the District Court has rightly deemed the constitutional court or whether dissenters were right in O'Donoghue. If we go off on this national law adjudicate on de facto jurisdiction of a specialized situation of the district, we leave this whole apostating, metaphysical mess where it is now.
Morris Shapiro: I just want to make one final comment, and I think these deals with the question raised by Mr. Justice Frankfurter. The Court of Claims' determinations are not subjected to the will of Congress. The characteristic of a court is to adjudicate a controversy between litigant A and litigant B whether they'd be private litigants or the Government. Once that court has made a final determination, it has acted in terms of an expression of judicial power. The fact that Congress could sit back and say try to enforce that judgment is of no relevance whatever in terms of a consideration of judicial power. The fact is that when the Court of Claims act, it renders a judgment which is final for all purpose. And it is a judgment which Congress cannot reverse by any act of Congress. That it cannot do. A judgment may be ineffective, but the judgment itself is not at the whim of Congress. And for those reasons, we say that the judgment of the court below should be affirmed.
Earl Warren: Mr. Solicitor General.
Archibald Cox: Mr. Chief Justice, may it please the Court. The United States sought and was granted leave to intervene in this case because it drew and question the -- the constitutionality of an act of Congress. In this instance, the Act of Congress authorizing the Chief Justice to assign judges to the Court of Claims to sit in other courts. And of course, it was under that statute that Judge Madden was assigned to the Second Circuit. I intend to direct the bulk of my argument to the constitutional question with which we're directly concerned here. But I would like to emphasize that in our view, this case like the Lurk case argued last Wednesday, can and should be decided upon the ground that this issue concerning the qualifications of a particular judge to sit in the court, is an issue which can and was waived by the failure to raise it in the court below. And we think it's therefore unnecessary and would indeed be wise not to embark into this constitutional thinking, if I may call it, sir.
Felix Frankfurter: Why do you think that? Except on the general question with which I have great sympathy, you shouldn't reach constitutional questions but it leaves -- it leaves the Chief Justice of United States hanging on a limb, does it?
Archibald Cox: It -- it leaves that question unresolved.
Felix Frankfurter: Yes.
Archibald Cox: Yes, no doubt about -- there was no doubt about that. Well, I simply think that a -- of the -- the general failing that Your Honor expressed I think, where one has a series of cases that there's uncertainty about them, where the problem in terms of our history, as well as the analysis as a confused and confusing one that it is wise to decide as little as one can at a time. That's the only -- I've no particularsm that it's conceivable that in view of the administrative problems that that general admonition is applicable. I have a sense that it -- is --
Felix Frankfurter: The reason I --
Archibald Cox: -- particularly pertinent here.
Felix Frankfurter: I think it's particularly not pertinent here, because we are not dealing with a social policy. We're not dealing with a legislative policy. We're dealing with something regarding which this Court as -- or ought to have peculiar competence for decision since it concerns the internal arrangements of the federal judiciary.
Archibald Cox: Well, I -- I have prepared to go on and argue the question and give the Court such assistance as I can on the constitutional question.
Felix Frankfurter: I quite appreciate your position and as you know it goes against my --
Archibald Cox: Yes --
Felix Frankfurter: -- strong general attitude most of the time.
Archibald Cox: I would like to develop in the half hour available to me four points. First, I shall argue to the Court and I think they're really can be very little dispute about this. The judge by the character of its business by its organization has the powers that it exercises, by the quality including the finality of its judgments, and by the security of tenure and compensation that the Congress sought to give the judges. The Court of Claims is like our normal Article III courts. Second, I shall point out that Congress has from at least 1863 forward and we think from the beginning, intended to establish the court as an art -- Court of Claims as an Article III court. Then I would like to say a few words about the -- what we deem to be the faults and the reasoning in the Williams case. And finally to discuss the congressional reference jurisdiction of the Court of Claims, under which it does occasionally, not more than once a year on the average render reports to the Congress of which are not strict in judge -- judgments and which therefore does bear upon its standing in the constitutional separation of powers. May I first say just one word about the jurisdiction of the Court of Claims, it is conferred jurisdiction under the statute to hear claims against the United States founded upon the Constitution, upon any statute, upon a regulation of an executive department, or upon a contract expressed or implied. That is the great bulk of the Court of Claims' jurisdiction. It also has a certain appellate power in tort cases against the United States under the Tort Claims Act. The parties may by agreement go to the Court of Claims from the District Court, instead of going to the Circuit Courts of Appeals.
Potter Stewart: Under the Federal Tort Claims Act?
Archibald Cox: Yes.
Potter Stewart: Does that ever in fact happen?
Archibald Cox: I know of no instance in which it happened but I didn't make a thorough study. It requires consent of both parties and it seems to me rather unlikely that would happen. But I thought perhaps it should be useful to have described what kind of cases the court may get. It may, of course, hear tax cases and does hear tax cases seeking a refund under the first general head of jurisdiction. It hears cases from the Indian Claims Commission. And it does have today this congressional reference jurisdiction. It's only the old executive reference, as been abolished by statute but the Congress does very occasionally ask the Court of Claims to report the facts in a situation where it does not grant judgment. And I'm going to deal with that at the end of my argument even though it does seem to me to be one of the very essential considerations.
Earl Warren: General, are those Indian claims really cases and controversies --
Archibald Cox: As to -- as to some of them, I think, there's a question, Mr. Chief Justice. The authority of the Indian Claims Commissions to make the words to the Indians, as I understand it, and I think I'm right with that. I'd -- I don't want to go too far in assuring the Court of things that I've -- have only a general idea about it. As I understand it, the Indian Claims Commission, may make awards to the Indians on grounds that would not be applicable in a suit between Your Honor and myself or other private citizen. And it therefore occurred to me when the question was asked earlier about setting up a court to hear claims of the Indians that if they -- it had the full power that the Indian Claims Commission does but then it would seem to me that it was not the type of case or controversy or the type of judicial business that the framers of the Constitution had in mind when they wrote Article III. And that therefore, a man appointed to sit whatever term he was given by Congress would not be entitled to the security that Article III gives to a federal judge.
Felix Frankfurter: We've had a petition for certiorari coming from the Court of Claims reviewing Indian Commission issues?
Archibald Cox: I -- that's true. But it's my understanding is that since the jurisdiction of that commission was increased and it was brought in the early 1950s, I think --
Felix Frankfurter: I mean within a year, I think, we had a petition.
Archibald Cox: You -- you've granted just one since that broadening of jurisdiction. And it may be that some questions will arise if the cases that are taken up are not ones founded upon the narrower grounds, I think were applicable in all instances.
Felix Frankfurter: But if you are suggesting that Congress cannot create a court to which is given what I call traditional conventional Westminster court jurisdiction but also gives it none such or give it a valuable opinion that that precluded from being a court for cases that are cases in controversy, is that what you're suggesting? Then you'll get into a lot of trouble I suggest, suppose with the reference to the Court of Claims and with reference to the District Court of Columbia.
Archibald Cox: Well if it -- it involves a lot of trouble and I was not intending to go beyond saying at this moment that some of the business that may come before the Indian Claims Commission is not necessarily judicial business judge by the time -- by what was heard at Westminster or thought of his judicial business in 1789. I -- I did not intend to go beyond that point at all to reply anything further.
Earl Warren: I -- the reason I asked you the question, I seem to remember I may be wrong but that there's something in that Act which says that the Indian Claims Commission may decide those claims without regard to law --
Archibald Cox: Yes.
Earl Warren: -- correctly.
Archibald Cox: Yes. They -- it does have a -- it has a broader power. And I don't think this Court has ever -- has taken a case involving a grant based on the broader ground. I've -- it has taken at least one case since the jurisdiction was brought. But I don't think that that involved the claim on the broader ground. And I know we've had discussion in the department as to whether some of the denials of certiorari in these cases might not have been based in part of the theory that the Indian Claims Commission was no longer simply awarding judicial judgment.
William O. Douglas: We had one --
Archibald Cox: But that's --
William O. Douglas: We had one case where the question arose as to the right of the parties to get interest on the judgment. You remember that case?
Archibald Cox: Yes.
William O. Douglas: So in that I -- I gather we ended up rather sort of an advisory opinion.
Archibald Cox: Well in -- that the underlying judgments may have been based upon contract say, or --
William O. Douglas: Knowing --
Archibald Cox: -- something that wasn't simply generalized --
William O. Douglas: We've --
Archibald Cox: -- yes, by the Federal Government.
William O. Douglas: We refused the allowance of interest.
Archibald Cox: Well, for that -- that -- that still could be based on a judgment based on legal right underneath.
Felix Frankfurter: But -- that the question before us wasn't this but the power of a Commission, the question was as to the judgment of the Court of Claims on review of something that the Commission did.
Archibald Cox: Commission had done.
Felix Frankfurter: And therefore, of course, it was not only the Court of Claims but all the courts of the -- all the Courts of Appeal of this country review determinations of non-judicial bodies.
Archibald Cox: This would take us into an area where I -- I'm afraid I'm not qualified to be much help as to whether the scope for the grounds of review by the Court of Claims. If they were confined to questions of law in the conventional sense then, of course, this would be like review of other administrative agency action.
William O. Douglas: I don't see why you should be reluctant to get into that field. We've been in and out of it for several times in the last few days.
Archibald Cox: I guess that I had a different field in mind that Your Honor does. I do sub -- submit --
Hugo L. Black: Before you leave the Indian business, I may say that I think there has been a question raised about that being judicial whether that's a power to exercise in a judicial way or just under the power of Congress to give away its fund as it wishes?
Felix Frankfurter: But it would have -- it would've had to be not what we thought about the Indian Commision but what we thought about the exercise of power by the Court of Claims.
Archibald Cox: Yes, yes, though there -- there's no -- when one is concerned with the --
Hugo L. Black: I think (Voice Overlap)--
Archibald Cox: -- judicial quality of the --
Hugo L. Black: -- about that also?
Felix Frankfurter: That's a very different question because this Court react and reviewed time out of mind since the 16th -- no the second Gordon case early in the 1917, I think. This Court have been reviewing adjudication by the Court of Claims for nearly 100 years during all of which time the Court of Claims had also had what you indicated, inquisitorial or investigatorial power before Congress. But for 100 years, this Court had been sitting and deciding that the Court of Claims is a -- the judicial body for purposes of case of controversy to give this Court jurisdiction although contemporaneously the Court of Claims have been doing a lot of non-judicial business.
Archibald Cox: Not only does it seem to be to establish that, but to establish two other points which are relevant here. One is that this is not only a case that the Court of Claims' business. It's not only concerned with cases or controversies but that these are cases or controversies to which the United States is a party or in the other event which arise under the laws of the United States. I think that it's quite clear that they fall under both heads of Article III power and in that respect that the Williams case was erroneous. Furthermore, I would emphasize one other thing about the nature of the Court of Claims' business. It's been suggested during the argument by Mr. Bordeau and by Mr. Gressman last week, that a court cannot be an Article III court unless it hears some cases that must be heard by courts. Apparently, they've conceived of two kinds of judicial power, one which only Article III courts can exercise and another which Article III courts can but don't have to. Now, some of the business of the Court of Claims, it seems to me, is the kind -- involves the kind of question, which this Court has held, must be the subject of a judicial determination. I have in mind particularly the cases where the United States is sued for a taking not by eminent domain but simply by a superior force, the Standard Oil. The early case of the Monongahela Navigation Company, this Court said that the determination of what is just compensation is peculiarly a judicial function and must be det -- must be made in the last instance by a court. So that we think on this account, the Court of Claims clearly exercises judicial power in the ordinary sense of looking to see what it does. It's also plain that the Court is organized in the manner and has the powers including the contempt powers and subpoena power which go to the court. And I would emphasize third that its judgments every since the Act of 1866 have been final and binding. It is true that the Court has no power to levy execution. The payment depends of a -- upon Congress passing in appropriation. And there is a suggestion in the opinion prepared by Chief Judge -- Justice Taney in the Gordon case that -- that was the -- that the lack of power to levy execution was the fault in the 1863 statute. Indeed, he dwelt on that somewhat more, I think, than he did on the power of the Secretary of the Treasury to revise. But since the power of the Secretary of the Treasury to revise was struck down, no one has ever questioned of the finality of the Court of Claims' judgment or the justiciability of the cases that are submitted to him. Indeed, each judgments are exactly like those rendered by the District Courts under the Tucker Act, exactly in this respect like those rendered by the District Courts under the Tort Claims Act. And I think our history makes it plain that one can have a legally binding judgment at least against the sovereign without having to have the Court have power to levy execution.
Earl Warren: We'll recess now until 2:30.