Earl Warren: -- versus United States, Mr. Davis you may continue your argument.
Oscar H. Davis: Mr. Chief Justice, may it please the Court. In the time remaining to me, I should like, if I may, to make a few more comments on the threshold in forma pauperis question and then to pass on to the merits of the questions involved in Judge Jackson sitting at the trial of this case. What I would like to say on the issue of in forma pauperis appeals, I mentioned yesterday and that is in on our view, the standard of review given in these cases is no different from that to which a paid appellant or an indigent who has been granted leave by the trial court is entitled. The only difference is that in those cases, the issue on the merits does not come before the Court of Appeals ordinarily until after argument. The judges don't know about the cases. They don't have the kind of conferences that this -- this Court has, but that does not mean that if the issue did happen to arise at a preliminary stage, at some interlocutory stage that comparable action would not be taken. Now we have in a case cited in our brief for another point, an example of that which I would like to tell the Court. It doesn't happen to be a criminal case, it's a civil case but it bears on -- on the issue. It's the Boomhower case, 220 F.2d 488. It was in the Court of Appeals of the District of Columbia about five years ago. There, the appellant, the issue on the merits was very similar to the one here. Judge Robert Wilkin of Ohio, after he'd retired for disability had sat in the District Court here and the -- and the appellant claimed that he had no right -- a judge retired for disability had no right to sit in another circuit and the appeal was taken on that ground. Well the appellant apparently did not file a full record and the appellee made a motion to dismiss the appeal, not on the merits, but on the ground that the record was not in -- full one and not proper for the consideration of the Court of Appeals. Well, what the Court of Appeals did was to dismiss the appeal not only that ground, but they said, we go on to the issue on the merits and since we find nothing of merit in it, we will dismiss the appeal on both grounds, on the ground that the record wasn't properly presented to us or a full record and also on the merits. And I present that as an instance of a case which happens to have come before Court of Appeals at an interlocutory stage and -- and which the Court of Appeals acted on the merits as we think is done in these forma pauperis cases here. And I'm told, though I cannot cite you specific instances that in the District of Columbia Circuit, there had been cases in which an injunctions pendente lite, where an appellant goes to the Court of Appeals to seek an injunction pendente lite that the Court of Appeals, a three-judge panel Court of Appeals, hearing that injunction pendente lite has said, your issue on the merits has -- your issue has no merit at all. We will dismiss the appeal or summarily affirm at this stage. I'm also told that in a -- in an immigration case, again I don't happen to remember the name, that the Second Circuit in the deportation matter where an application was made to the Second Circuit for a stay of deportation, the Second Circuit did the same thing. They went into the issue of the merits. They said there's nothing to it. We will summarily affirm the judgment of the District Court and therefore, it was unnecessary to consider the issue of a stay. Now, I -- I mention all these instances in order to indicate that the -- that the difference is that in the -- in the ordinary case, the prepaid appeal, I'll say, the issue doesn't come before the -- the Court of Appeals until after argument -- until argument of the merits. But if it should happen to come, the Court of Appeals would be entitled to and apparently would do the same thing that's done here and at this point I want to specifically to deny that from our point of view, a statement which Gressman made yesterday. From our point of view, the Court of Appeals is not limited in relation to dismissing an appeal, to deciding only that the appellant has raised issues which are unreviewable. We don't think that's true at all. We think that the Court of Appeals can either dismiss an appeal where there's no absolutely no merit to it or it can summarily affirm and if it's not limited to so called nonreviewable issues.
Earl Warren: Well Mr. Davis, how can you say it's the same when they're in the -- the court's in a better position to dismiss and appeal that is taken in the ordinary way after the briefs are filed, but before argument on the ground that is frivolous and -- and presents no real issue than it is when -- when the defendants through appointed counsel in this way, makes his initial representation?
Oscar H. Davis: What I'm saying Mr. Chief Justice is that in this case and in other comparable cases, the -- what the defendant has done through his appointed counsel is not a mere initial representation. He has gone as far as he really could and that the three judges of the Court of Appeals can say that we are satisfied on the materials that have been presented to us in this case, which is a simple case and on the issues which have been presented to us that we don't need anymore argument just as this Court does when a motion to affirm is filed in a direct and sometimes even in a certiorari case where it affirms or reverses without further argument.
Earl Warren: Can the -- can the court do that in a -- in the case where there is paid counsel to dismiss it on the briefs before argument?
Oscar H. Davis: If -- if the Government should happen to make a motion, yes.
Earl Warren: Have you heard of it being done?
Oscar H. Davis: Well, it is not ordinarily done.
Earl Warren: Is it ever been done to your knowledge?
Oscar H. Davis: Well, I don't know except in an in --
Earl Warren: Well you're -- you--
Oscar H. Davis: I have no knowledge.
Earl Warren: You don't know then?
Oscar H. Davis: No, I don't know of any case.
Earl Warren: I suppose you would know if had been any?
Oscar H. Davis: No, I wouldn't.
Earl Warren: You didn't look for it?
Oscar H. Davis: Well, these are unreported matters.
Earl Warren: You found, you look pretty hard to find that civil case?
Oscar H. Davis: No, I happen to have it in our brief on another point and I read it and found it, (Voice Overlap) that's the way I found it Mr. Chief Justice. It just -- in preparing for this argument, I happen to read it on the Judge Wilkin point and I saw what they had done on -- on this issue and that -- that's why it came up. Well, in essence, that I think is what I have to say on -- on this issue.
Potter Stewart: Mr. Davis so long you were being very frank this morning, let me say that with respect to the Sixth Circuit, I have no idea what the practice is there now, I was just thinking about it, as to what at least my practice was when I was there and maybe the practice there is now quite different and I would --
Oscar H. Davis: I -- I haven't seen a case a Sixth Circuit recently. I -- I just happen to look through the last volumes of F.2d to see any reported case from the other circuits and -- and I found them from the Eighth and the Ninth and the Second and there is a case pending in this Court from the Fifth, which I happen to see in the office and so I -- I knew about that as well as the District of Columbia. Well I -- I now have passed -- well what -- and what I have to say on this point by saying that in our view, Section 1915 presents a standing mechanism for bringing the matter if the Court of Appeals so wills and the circuits have so willed, bringing it before the court at an interlocutory stage. But that in essence, it is no different from the situation which would happen if other appeals were -- came before the court at the interlocutory stage. I now pass to the -- to the issues relating -- involving Judge Jackson's participation in the trial. And I think, I should make it clear because I don't think I did yesterday that the Government agrees that subs -- subsumed in the questions presented by the petitioner, are all the issues on the merits relating to Judge Jackson. We do not think that he -- that the petitioner waived those issues because in our view, he limited the issue that he presented to the three-judge court below, to a single facet and didn't raise all -- all the elements. On the other hand, we don't think we that we have waived any defense such as we may have it, as the de facto defense. So we think that if this Court wishes, it can consider the issues on the merit and there is precedent for this in the Pollard case, which is cited at the very end of our brief in a footnote to our conclusion. The court there said it was unnecessary to pass on the issue whether the Court of Appeals had granted -- improperly denied leave in forma pauperis because on -- they went on to the merits and that is a precedent for doing so here and the Bakelite case which if of course, the very important in the whole issue on the merits as far as Judge Jackson is concerned, the -- this Court there said, we won't pass on the issue of whether we have power to issue a writ of prohibition which has been mooted before us. It said, we can't do it because we decided that even if we did have the power, we wouldn't issue it. And -- and judge -- Justice (Inaudible) specifically said that they were reserving the question of their power. So there is precedent for the court for doing that. Now --
Potter Stewart: The ordinary rules of the game Mr. Davis, would be for us if -- if we agree with what -- now, both sides of this controversy can see that there is a non-frivolous issue involved would be simply to remand it to the Court of Appeals and tell them that, wouldn't that be it?
Oscar H. Davis: Well that might --
Potter Stewart: And not hurry the result of complicated constitutional issue that may never come up in this case, because the Court of Appeals might conceivably reverse it on the -- on the evidentiary point?
Oscar H. Davis: Well there, I doubt that Mr. Justice, but --
Potter Stewart: You may doubt it, but if it --
Oscar H. Davis: -- it's possible. There are reasons against that which I like to say and they are practical.
Potter Stewart: The rule is -- is right.
Oscar H. Davis: Yes, but the court has not followed the rule automatically and rigidly, in a situation where it is felt that is was important to resolve a question or in order to avoid pure security of action, because there are other cases involving Judge Jackson. Even if this case should happen to go off on another ground, Judge Jackson has been sitting. I think, I said for two years yesterday, I'm wrong. He's been sitting for four years in the District of Columbia.
William O. Douglas: Are there cases in the Court of Appeals involved?
Oscar H. Davis: Well, four have been held up by the -- by the -- four criminal cases. I think they've only held up the criminal case as far as I know. And there are of course, prior cases, Judge Jackson said on the Parke-Davis antitrust case, which came to this Court. He sat on the Gypsum case which came to this Court.
Potter Stewart: He sat on the Silverman case?
Oscar H. Davis: The Silverman case?
Potter Stewart: Yes, and which came to this Court.
Oscar H. Davis: Well, yes. I didn't -- I didn't know that.
Speaker: (Inaudible)
Oscar H. Davis: No, that's right. I mean -- well, I'm just indicating that there is a --
William J. Brennan, Jr.: (Inaudible)
Oscar H. Davis: No, Mr. Justice Brennan, we stand strongly on the ground by the de facto argument I made yesterday, that if you don't raise it, you're --
Felix Frankfurter: But you -- but you have to stand on that?
Oscar H. Davis: Otherwise, yes.
Felix Frankfurter: You have to stand on that because whether raised or not, a judgment non-jurisdictionally entered, is a piece of paper.
Oscar H. Davis: That's right, we do stand on that, but I also like to point out that Judge Madden has said in various Courts of Appeals throughout the country, the other way around, I understand that several indisputably Article III judges have been sitting on the Court of Customs and Patent Appeals, District Judges Kirkpatrick and Van Dusen and Kraft of Philadelphia, Judge (Inaudible) here, Circuit Judge Burger has sat on the Court of Customs and Patent Appeals recently.
Hugo L. Black: Well that's a different question.
Oscar H. Davis: Well, it's -- it's the other way around, but a -- but the -- I understand that Judge Rich in the Court of Customs and Patent Appeals has sat in -- in the District Court here, in the District of Columbia too and --
Hugo L. Black: But if he's a de facto judge, what --
Oscar H. Davis: Yes, but I'm -- I'm just -- I'm making -- I'm -- I'm giving the Court of Appeals --
Hugo L. Black: How do we know -- how do we know that de factos wouldn't stop or how -- why should we decide this constitutional question on the basis that Judge Jackson might continue the trial cases, maybe they would stop assigning him or maybe he did decide not to try them?
Oscar H. Davis: Well, they had no stopped assigning him.
Hugo L. Black: Well, he might decide to try it them, how do we know that.
Oscar H. Davis: He -- he would -- he's been assigned cases up until the present -- present time as of --
Felix Frankfurter: Could you view it?
Oscar H. Davis: -- one they ago or two days.
Tom C. Clark: Who were the other judges?
Oscar H. Davis: Other judges, Mr. Justice?
Tom C. Clark: Judge Rayo?
Oscar H. Davis: Judge Rayo has sat in the Southern District of Florida, Judge Rayo of the Customs Court.
Tom C. Clark: Are there others?
Oscar H. Davis: I don't know of any other.
Earl Warren: Judge Rayo is on the Court now.
Oscar H. Davis: I -- I've understand so --
Earl Warren: Yes, it is.
Oscar H. Davis: In -- in the Southern District of Florida.
Earl Warren: No, I -- I mean he is sitting on the – on the Customs Court now.
Oscar H. Davis: Yes.
Tom C. Clark: He's not retired.
Oscar H. Davis: But he's not retired, but he has been assigned and has sat at the Southern District of Florida.
Earl Warren: Yes.
Hugo L. Black: But one of the points I was making was that if you agree that the action cannot be challenged, because of the de facto judges. How can we know how long this practice would continue if ever? It might stop, it might become all moot.
Oscar H. Davis: It -- it is possible Mr. Justice Black, I happen to get --
Hugo L. Black: By – by avoiding the constitutional issue, we would avoid the constitutional issue permanently, might we not?
Oscar H. Davis: I think it is unlikely.
Hugo L. Black: Well, if it's – (Voice Overlap) if it can't be waived for the count of a de facto judge, why not?
Oscar H. Davis: Because in the future, it will be rest and I think the consignments will continue at least there is -- it is likely that they will until there's definitive adjudication by the Court.
Felix Frankfurter: Well, you're not making an argument that if the Court should choose to say all these sittings were valid because of – unassailable, because they were by de facto judge. That would take care of the facts?
Oscar H. Davis: That's right. I am making that argument.
Felix Frankfurter: So, I say you -- you couldn't object to that it could be?
Oscar H. Davis: Oh, no. I would welcome it and I'm not pressing upon the Court to go any further. I am presenting all the information so the Court can take it into account.
Earl Warren: What do you think if -- if we should merely hold that he's a de facto judge, then assignments should continue of de facto judges?
Oscar H. Davis: I think that's -- that raises a -- a grave question.
Earl Warren: It certainly does to me.
Oscar H. Davis: Yes. [Laughter] And in -- in fact as I would think that – that this is a kind of question which should be resolved by the Court. I do not think it will go away. I -- I think it should be resolved, will ultimately have to be resolved by the Court. But of course, one has – the - the advocate has to leave to the Court ultimately the question of whether it wishes to follow what maybe considered the normal rule or whether because all the circumstances, it wishes to make an exception in -- in this kind of case, as it has done in the past.
Felix Frankfurter: Well the sum of it is that as to the past, if the Court should agree with the Government that these sittings are unassailable because they were de facto, I'm merely repeating now, it was certain, but to point out – to point out the problem, but it would still leave open if nothing is said about the substantive issue namely, the nature of these, the -- the character, the potential power of these judges or for the judges of these miscellaneous courts, I said only characterize them, that would leave open the problem with certainty for Chief Justice of the United States in making assignments with all the difficulties that it involves or perhaps that this is a moot question, if we're going to get a 173 or is 73 new judges?
Oscar H. Davis: Seventy three, I don't think it's a moot question because the District of Columbia is getting none under the statute.
Hugo L. Black: But it might be, might it not?
Oscar H. Davis: It -- it's conceivable. It's not beyond the realm of possibility. In the -- under the law of probability Mr. Justice Black, I think it is unlikely.
Charles E. Whittaker: Is often into the full (Inaudible)
Oscar H. Davis: No, that -- that is right.
Hugo L. Black: It is a piece of the de facto judge, isn't it?
Oscar H. Davis: Well the -- the further question is.
Felix Frankfurter: Not – not --
Hugo L. Black: (Voice Overlap) by the next question.
Oscar H. Davis: Oh, yes.
Potter Stewart: Mr. Davis has said that he's been sitting for four years?
Oscar H. Davis: Yes.
Potter Stewart: So in other words, he was sitting when his court was a legislative court?
Oscar H. Davis: Well there is a – I -- I want to make it explicitly clear that since 1922 by a statute, Congress has authorized judges of Court of Customs and Patent Appeals sit on the courts of the District of Columbia and pursue -- it was pursuant to that direction that he sat prior to 1958.
Potter Stewart: But it was not until three years ago in 1958, that Congress purported to --
Oscar H. Davis: Well --
Potter Stewart: -- declare that this was a -- that the -- his court was an Article III court, isn't that?
Oscar H. Davis: Our position Mr. Justice Stewart is that that was not a merely prospective declaration establishing the Court on a new basis. Our position is and this is borne out by the legislative history, we think that what -- what Congress is doing then is making it explicit --
Potter Stewart: With an affirmation that it always has been --
Oscar H. Davis: That -- that's right.
Felix Frankfurter: Well, one -- does that mean it over – it implicitly overruled Williams?
Oscar H. Davis: We think that not that implicitly overruled Williams because Williams did not have before it, the explicit congressional declaration, but it -- we think that it added to --
Felix Frankfurter: But we then thought in courts.
Oscar H. Davis: Overruling is the word I don't like. We think it sets is aside.
Felix Frankfurter: Right – I would put it -- you quite correctly corrected me, but it nullified Williams?
Oscar H. Davis: Yes. That's what we think the -- the whole intention of Congress was in the three statutes which are really in pari materia. The statute for 1953 which declared that the Court of Claims was established as a constitutional court, the statute of 1956 which declared that the Customs Court was established a constitutional court, an Article III court and the 1958 statute which is before Your Honors now, which related to the Court of Customs and Patent Appeals.
Tom C. Clark: What statute was it that (Inaudible)
Oscar H. Davis: He never had the power with the Court of Customs and Patent Appeals Mr. Justice Clark. He had that with the Customs Court judges in the days when one was called the Board of General Appraisers.
Tom C. Clark: Appraisers -- what did – what to include there?
Oscar H. Davis: 1930, I think.
Felix Frankfurter: Are they not life tenure?
Oscar H. Davis: They have – they have had life tenure.
Felix Frankfurter: Since when?
Oscar H. Davis: They have had life tenure --
Felix Frankfurter: Well, not the Board of General Appraisers, didn't have life --
Oscar H. Davis: Well at least they have life tenure since, I think 1908, --
Felix Frankfurter: Since what?
Oscar H. Davis: The subject -- since 1908, subject to removal by the President on three stated causes, malfeasance in office and so forth.
Felix Frankfurter: (Inaudible) I thought –-
Oscar H. Davis: But in --
Felix Frankfurter: Those were clearly -- that was an adjunct of the Treasury Department.
Oscar H. Davis: In -- in the beginning.
Felix Frankfurter: The Board of General Appraisers?
Oscar H. Davis: Yes. But as far as the Court of Customs and Patent Appeals is concerned, since the court was created in 1909, the judges were appointed for life -- of had life tenure with no power of removal in the President at all and we think that's very important as far as the case before the Court now, is concerned.
Hugo L. Black: You don't think that would conclude the question, determine the question?
Oscar H. Davis: No, no. But we think it's a very important factor if the – if the tenure had been four years as it was in the territorial courts, we think that that would've made it impossible for us to argue with Congress to provide that they – to were constitutional --
Felix Frankfurter: I don't want to thwart your getting into the center of the question by side by side win, but that wasn't the basis of the Williams decision?
Oscar H. Davis: Yes, that --
Felix Frankfurter: And you have to undermine -- you have to undermine the basis of the Williams decision –-
Oscar H. Davis: Well, we think --
Felix Frankfurter: -- in order to sustain your argument that the 1958 act, wholly apart from doing something new, merely affirmed the past?
Oscar H. Davis: I -- I want to embrace both. We think that it -- it affirmed what it done before and if it couldn't have done that or if didn't do that, it did something new for the future.
Felix Frankfurter: But in affirming the past, it certainly was going plump straight against --
Oscar H. Davis: Yes.
Felix Frankfurter: -- the Williams decision?
Oscar H. Davis: Because the basis of the Williams decision is that Congress did not established the Court of Claims and the Bakelite case, the Court of Customs Appeals --
Felix Frankfurter: Not that they didn't, but it couldn't because of the nature of the nature of the function and because in 1789, there was no suability against the United States.
Oscar H. Davis: Well that -- that we – that is certainly a tap. We think that's wholly wrong.
Felix Frankfurter: Well, I don't think you have too difficult adjunct.
Oscar H. Davis: I -- I think that basis of the Bakelite decision and the Williams cases is wholly wrong and we have at length set out on our -- our brief the reasons why we think that. And we think it is -- that what Congress has done in these statutes is to make clear its view that that basis was wrong insofar as it could constitutionally do so and of course, Mr. Shea will probably argue this more than I would be able to. I don't mean to disavow the argument at all, that if Congress could not or did not affirm that the -- these courts have been, Article III courts in the past, that they didn't mean to do so prospectively for the future. We do take that position also.
Felix Frankfurter: Are you planning, may I ask (Inaudible) time, are you planning to begin with – with the – what I think is the - what shall I say, the stiffest little item -- stiffest little or the highest barrier that you have to climb over namely, even granting the brief -- that the Court of Customs Appeals was made a constitutional court in 1958, Judge Jackson began to sit before his court was a constitutional court?
Oscar H. Davis: Began to sit in – in the District Court?
Felix Frankfurter: Yes.
Oscar H. Davis: But in this case, he sat after.
Felix Frankfurter: Well, I mean -- I beg your pardon. He -- he sat -- in this particular case?
Oscar H. Davis: Yes.
Felix Frankfurter: Well that's still a narrower stair you have to climb over.
Oscar H. Davis: Yes.
Felix Frankfurter: But there are cases in which he sat before.
Oscar H. Davis: Yes, but the case here was considerably, it was in 1960.
Felix Frankfurter: But you're hardly suggesting that we should decide this little case and then leave open all the other cases?
Oscar H. Davis: No, but I am suggesting that Judge Jackson had exactly the same status as the active judges and - and that if the active judges were made Article III judges in 1958, so was he and on – on the -- the narrow --
Charles E. Whittaker: (Inaudible)
Oscar H. Davis: Well that's right, that's right. These are all judges of the court and because I have only a few minutes left, I -- I should like if I may to -- to concentrate on a particular point which doesn't go to the whole status of all these courts as well as they're legislative or Article III. I'd like to say just for the moment that whatever else Congress may have done in 1953, 1956 and 1958, we think that it made these judges Article III judges, because they all had life tenure before, the judges of the Court of Claims, of the Customs Court and of the Court of Customs and Patent Appeals. The Court of Customs and Patent Appeals and Court of Claims since the beginning of the constitution of those – of those courts had life tenure. So what was the difference between those judges and the Article III judges sitting in the Circuit and District Court? Only that Congress could if these courts -- the courts we're dealing with here were not constitutional courts before that Congress could reduce their compensation as this Court held in Williams case or could limit their tenure. It could cut down their tenure and what we think that these statutes of 1953, 1956 and 1958 did is irrevocably give up a part of Congress, the right to reduce the tenure or limit or reduce the compensation of these judges, thus making them full Article III judges whatever you may want it, whatever characterization you may want to give to the court on which they were sitting. They -- these judges were made Article III judges.
Felix Frankfurter: But Mr. Davis, the Constitution gives Congress power to constitute tribunals, not judges, to constitute tribunals inferior to the Supreme Court.
Oscar H. Davis: But I think it also gives them power to appoint judges and I think Congress could appoint a -- a core of judges to be assigned to different courts.
Felix Frankfurter: Where is that in the Constitution?
Oscar H. Davis: Well I think -- I think this Court held in the Duval case that a single judge of the Court of Appeals in the District of Columbia was an inferior tribunal under the Constitution.
Felix Frankfurter: Well a judge maybe a tribunal, but a tribunal isn't a judge?
Oscar H. Davis: That -- that's right, but we think that --
Hugo L. Black: May I -- I hate the bother your argument because we're short with that. I would like to understand exactly, suppose Congress were to make -- provide that the members of Interstate Commerce Commission should be judges for life, would that make them bad?
Oscar H. Davis: No.
Hugo L. Black: -- under your argument?
Oscar H. Davis: No, no. Because they would not have had life tenure before, they would be in --
Hugo L. Black: Suppose they gave them life tenure?
Oscar H. Davis: I think that would be a grave question whether they could do that without interfering with the President's appointment prerogative. But the President who appointed Judge Jackson and the other judges of the Court of Customs and Patent Appeals, appointed them for life. In fact, in Judge Jackson's case, he was appointed with knowledge that he would -- he could sit on the District of Columbia because that's been on the books since 1922.
Earl Warren: So how would the -- how would the Interstate Commerce Commission situation that Justice Black spoke about differ from the Customs Court?
Oscar H. Davis: Because they have had life tenure since all the current judges have been appointed for life.
Earl Warren: Well, I know, but they -- at the time that they made it a constitutional court, they were termed (Voice Overlap)
Oscar H. Davis: Oh, no. No, they had -- they have had --
Earl Warren: I'm not talking about the Court of Appeals now. I'm talking about the Customs Court.
Oscar H. Davis: They have had it since at least 1930. The Customs Court has been appointed for life maybe before. At least since 1930, they've been appointed for life without any power in the President to remove them. It may have been 1926, I'm not sure.
Potter Stewart: There used to be a court called the commerce court. Judge Mack is an outstanding member of that court -- and served at the abolition of that court. He was a judge without a court and he sat to the Second Circuit, Seventh Circuit, the Sixth Circuit. Was the commerce court a statutory court or not?
Oscar H. Davis: No, the – the commerce court was a constitutional court.
Potter Stewart: It was without question.
Oscar H. Davis: I think without question.
Potter Stewart: I see.
Oscar H. Davis: I think it was and – and Judge Mack and it think of the other judges sat for many years thereafter.
Felix Frankfurter: All -- all of them were retained.
Potter Stewart: They were left as judges without a court, but they had been retained.
Oscar H. Davis: That's right and they were retained and assigned to other – other courts and we think that would be true in this case. If -- if Congress should have to abolish the Court of Customs and Patent Appeals tomorrow, that these judges having been created Article III judges just like the commerce court, would have to be assigned to the other courts throughout the country.
Earl Warren: Mr. Shea?
Francis M. Shea: Mr. Chief Justice, may it please the Court. I am here on behalf of the judges of the Court of Claims appearing as amicus curie. The interest of those judges, I think, is quite evident. The status, unquestioned status of the Court of Claims which has existed for 60 years as an Article III court was first drawn in question in the Bakelite case, dealing with the Court of Customs and Patent Appeals and then in the Williams case, it was held a legislative court. The court relying on the dictum in the Bakelite case and saying there was no basis for differentiation for these purposes between the two courts. The 1953 legislation relating to the Court of Claims and the 1958 legislation relating to the Court of Customs and Patent Appeals are identical. Now, may I make this suggestion to Your Honors that it seems to me that the clearly wise policy standing behind the settled view of this Court that you should not reach constitutionally issues, where case can be decided on narrower grounds, it seems to me that that policy doesn't exist at least in full measure in the case which is here before you. The issue which is squarely presented, as the Chief Justice has noted, raises very considerable problems with him in the administration of justice. If anybody has the full scope of experience needed to settle this issue, it is this body and it seems to me, we're in a narrow of sense. The validity of the statute relates to the problem of the proper administration of justice, so there is reason to dispose of that issue and not to avoid it, which was if one does not find in dealing with constitutional issues under the broad grants of public. Now, if the court please, I should like first to turn to this point. The Congress in 1953 expressly declared that the Court Claims was constituted as an Article III court. To be sure of legislative history indicates, as Mr. Davis suggests, that the Congress had carefully examined the Williams case and the legislative history behind the earlier statutes and had concluded that Williams was wrong and it intended in that statute to declare that the Court of Claims had at least since the repeal of the appending provision noted in the Gordon case in an Article III court but further that they were mistaken in that or not, as held by this Court in Postmaster General v. Early, if the language of the Act can be given prospective effect and clearly it seems to me in this case it can be given prospective effect then it will be given prospective effect. Now it seems to me that it would be rather clear that if the Congress today constituted a court and invested it with Tucker Act jurisdiction and declared that it was exercised in Article III power in so doing, that that would be a valid act. In my view, quite clearly it would be investing in that court, Article III jurisdiction. Quite clearly it seems to me, Tucker Act jurisdiction arises under the Constitution and laws of the United States. I have to think of also that it involves cases to which the United States is a party as that phrase was used in the Constitution. But whether that be true or not, I suppose there can be no question of the fact that Congress could invest Tucker Act jurisdiction in constitutional courts even if it might at the same time, elect to invest it in legislative courts. Indeed, it has invested in the District Courts and therefore, if it is within the congressional elect to determine which power they've exercised, Article I or Article III power, where they expressly declare that they have exercised Article III power, it seems to me that that should be an end of it. Now, if they could, if they could today establish such a court and invest it with such power and declare finally, it was Article III power, with utmost respect for Mr. Gressman's view, it seems to me that to suggest that you have to disestablish the Court of Claims and then reestablish the Article III court. It seems to me that that argument has had substance. That it must be possible to do this in a single act and equally, I -- I must say I find little substance in the suggestion that there's need for reappointment. These judges, as Mr. Davis has pointed out, were -- were appointed by the President, bind with the advise and the consent of the Senate. They were appointed to serve during good behavior and Congress certainly has done everything it could to relinquish if it ever had any right to reduce their compensation to their -- during their term of office. And moreover, may I point out to the Court that the President and the Senate concurred in legislation which certainly contemplated that the existing judges would continue to serve. Now, it seems to me therefore that since 1953 certainly, the Court has been an Article III court and the judges are Article III judges, but I think that the Congress' right while I share Mr. Douglas' high regard for members of the court set on the Williams case, I think they were plainly wrong. This has been the materials for judgment and this I think had been set out in great detail in the Solicitor General's brief in the Pope case. We put it in capsule form in our brief, but with all the necessary references. I invite the Court, as Mr. Davis has and I think Mr. Gressman but certainly Mr. Davis, to review the Williams case and may I, with a broad rush, note the basis why I think that decision was wrong. In the first place, I think Your Honors will find by review of the legislative history before the original act that those who were managing the Bill, both in it's final form and those who were opposing thought that the option of the election was between either creating a board of commissioners or creating a court under Article III. Now to be sure, some of the chase pointed out to -- laid to the Chief Justice that he didn't think it could be an Article III court, it wasn't to be final. But the men who were managing the legislation thought that that was the election that they were making and they elected to make it a court. When this Court in the Gordon case, noted that the court not take jurisdiction because the Court of Claims did not have finality of judgment because of the intervention of the Secretary of Treasury, immediately Congress repealed the offending provision. Immediately this Court changed its rules, so as to provide for appeals from the Court of Claims and the court that did that as you will find from the opinion of Chief Justice Taney which was prepared and later filed in the case with the approval for surviving judges. This Court that time was of the view that it could only take appellate jurisdiction from Article III courts and so it must be assumed that they did believe that they were taking jurisdiction from an Article III court. Moreover, within six years of the Gordon opinion and Kline, the whole subject was reviewed and unmistakably, this Court stated the view that the Court of Claims was an Article III court and reiterated this view over a period of 60 years. And I ask the Court to note that in 1887, Congress reenacted the basic jurisdictional statute of the Court of Claims and I assume, reenacted it with its gloss on it and the gloss that was on it at that time, was the view of this Court that it contained Article III jurisdiction and was invested in an Article III court and then in Williams, all of this was avoided. The Court did not deal with the question as to whether it was an Article III jurisdiction that the Court of Claims is exercising, because they were dealing with cases arising under the Constitution and laws of the United States.
Earl Warren: Of course, complete your --
Francis M. Shea: It dealt with the – with the issue as to whether or not, they were exercising jurisdiction over cases in which the United States was a party. They said it couldn't have been contemplated that -- that cases involving the United States as a party defendant was within that phrase of the Constitution, because it was well understood at the time that the Constitution was adopted that the sovereign could not sued, he had sovereign immunity. And -- and it was understood, but it was equally well understood and that it existed in England from the 13th Century, that the sovereign waiver of immunity, well established in England and well established in the colonies. And if I may point out to you Your Honors, dealing with cognate problem, Marshall and Madison in the Virginia convention, dealing with the problem of suits involving a state said, of course this doesn't waive the sovereign immunity of the states, but it provides a court and jurisdiction, if the states waive that immunity. And this was the view I believe, Your Honors at the time the Constitution was adopted and was so decided in this Court, in the Hitchcock case. It seems to me, I've had to deal with this obviously only in the suggestive way, but I think Your Honors will find on the review of the materials that despite the fact that they were men of great stature on that bench, but in this regard, they were clearly wrong.
Earl Warren: Mr. Shea may I ask you this question, do you consider that the status of the -- the Court of Appeals of the Customs and Patents is in all respect, identical with the status of the Court of Claims, is that what you are arguing to us --
Francis M. Shea: I would suppose that I have to concede that there are some differences in the legislative history, but basically I think that -- that that is the case.
Earl Warren: Are you interested on behalf of the Court of Claims, in the first phase of Mr. Gressman's argument concerning a retired judge, a man who is retired before the – the court became a constitutional court?
Francis M. Shea: Well, I -- I'm not certain that there are -- but it seems to me that the argument made by Mr. Davis on that point is conclusive.
Earl Warren: Yes, but Court of Claims' interest --
Francis M. Shea: I -- I just must say Your Honor, I don't know if there are judges of the Court of Claims – oh, Judge Letemer that's right. I suppose there is a – a retired judge.
Felix Frankfurter: As -- did I not see that Judge Madden is speaking of retiring?
Francis M. Shea: Yes, but I suppose he was on the --
Earl Warren: He's on the (Voice Overlap)
Francis M. Shea: -- he was on the bench that (Voice Overlap)
Earl Warren: Sure, thank you Mr. Shea.
Francis M. Shea: Thank you, sir. Thank you, Your Honor.
Earl Warren: Mr. Gressman.
Eugene Gressman: Mr. Chief Justice. I would like to address myself in my remaining time to this constitutional issue and with particular reference to the 1958 declaration by Congress. Parenthetically, I might say just as a matter of clarity of the proceeding below that I disagree with Mr. Davis' analysis of the issue that I sought to raise there in these constitutional terms. I think a fair reading of the memorandum will demonstrate that I sought to erase the basic constitutional issue which has been fully developed before the court in the briefs before it. And that it is unfair to single out any particular argumentative statement that may have been made and seek to confine that in terms of an issue raised. In fact, I think this demonstrates better than anything else the desirability at the appellate level below, of having an opportunity fully to brief a basic constitutional issue such as this. I think that it's unfair to confine and to limit what was before the Court of Appeals in terms of the issue before it, by any single statement that might have been made and particularly with reference to the fact that we are dealing here with a retired judge. Now whether that has any significance or not, remains to be one of the matters to be considered on full briefing of the issue which has never occurred until we've arrived in this Court. Now with reference to the de facto doctrine, which is the first line of defense taken by the United States here, I will say only this. I think Mr. Justice Frankfurter yesterday pointed out the -- the real answer to the de facto defense in this case and that is, as I have developed in my reply brief at length, that the de facto doctrine does not apply. It does not help where there is a constitutional or a statutory reason why a judge cannot sit in a particular type of case and that is what we have alleged here. What is involved here is the claim that there is there constitutional prohibition against Judge Jackson sitting in an Article III court. And when that type of claim is made, something that goes far beyond any technical defect in Judge Jackson's assignment such as a failure to file his assignment with the office of the clerk of the District Court or to – to -- a failure to obey some technical aspect of the statutory assignment provisions, but where we have this --
Speaker: (Inaudible)
Eugene Gressman: That is the inevitable conclusion to which this argument goes, yes, Your Honor. I don't think you can avoid that. I mean it's either one or the other and the -- the cases are cited, Norton against Shelby County says precisely that where the -- there is a constitutional or a statutory prohibition against a judge participating in the case and these -- this was the case that the -- the Solicitor General relied on last term in the American Foreign Steamship case in order to avoid the judgment of the Court of Appeals for the Second Circuit in that case. They pointed out and I think accurately that the de facto doctrine there could not be interjected to say the -- the judgment no more than it can be interjected in this case, I submit. Now, turning to the 1958 declaration by Congress which has been described as irrevocable declaration by the Congress of the United States, I submit that there is nothing irrevocable about any declaration by Congress in this field or in any other field. What Congress says today, it can change tomorrow and the whole theory is that the -- in fact, that history has demonstrated how Congress has treated this Court on and off, as a legislative court from -- from its very beginning. In 1932, Congress cut the salaries of the Court of Claims and the Court of Customs and Patent Appeals, an obvious recognition of the fact that it was dealing with a legislative court and this Court sustained it, precisely in that term.
Potter Stewart: You think the --
Earl Warren: What year was that?
Potter Stewart: Excuse me (Voice Overlap)
Eugene Gressman: Pardon?
Earl Warren: What year was that?
Eugene Gressman: 1932, the Appropriation Act of 1932, which was in the midst of the depression and they cut salaries of many administrative and judicial officials. Now, that was the -- it gave rise to the Williams and the O'Donoghue litigation. So --
Potter Stewart: You know Mr. Gressman that Congress could validly declare that all the District Courts of the United States and the United States Courts of Appeals are declared to be legislative courts?
Eugene Gressman: No Your Honor, I don't think they can. I think it would be meaningless gesture just as it was in this case. I don't think --
Potter Stewart: You say what they did yesterday, they can do tomorrow. They can change any of these courts back to (Voice Overlap)
Eugene Gressman: Well, but I don't think that the constitutional status of the District Courts or the Courts of Appeals depends upon a congressional declaration to that effect. I think it depends, as the Bakelite case pointed out it does not depend upon the expressed or the over legislative intention. It -- the true test that this Court unanimously in the Bakelite case, lies in the power under which the court was created and in the jurisdiction conferred. And it is ultimately the function of this Court to determine under what power those courts were created and what Congress says as to its Article III status or as to legislative status, particularly at a subsequent time as they did in this case, is absolutely meaningless and that is precisely what the Bakelite case forecast would happen and which was declared to be completely without relevance.
Felix Frankfurter: But why is it meaningless for Congress to say we create a tribunal under Article III of the Constitution rather than have this Court find that in fact, it created it under Article I Section 8.
Eugene Gressman: Well --
Felix Frankfurter: Why does this Court know better than Congress under which power it was – which power it was exercising?
Eugene Gressman: Because Congress I think -- you look back originally to wonder what Congress did at the time it created the court. Now, the Congress in --
Felix Frankfurter: (Voice Overlap) it's mine.
Eugene Gressman: Congress in 1958 is no -- certainly no better judge of what Congress in 1909 meant to do, then is this Court when called upon to interpret the power under which the court was created.
Felix Frankfurter: No, but can Congress in 1958 transform a tribunal of one kind into -- by saying, we are now conserving with a different power, in giving future scope and authority to this tribunal.
Eugene Gressman: You – you can Your Honor if Congress at the same time changes the nature so as to have a new act of creation, a new jurisdiction, a new function, a new scope to that court, but Congress was very careful to point out here, Your Honor that we are in way changing this jurisdiction or the function or the scope of the Court of Customs and Patent Appeals and leaving it just as it was presumably as described and delineated in the Bakelite case.
Felix Frankfurter: Because it wanted it to have those functions and it would have those functions if ab initio it had created the court under Article III?
Eugene Gressman: Well, if I -- I don't see where it --
Felix Frankfurter: And all – all this -- all that means is that Congress was satisfied in 1958 that what the Court of Claims was doing is what the District Court of New York is doing when it had the Tucker Act case?
Eugene Gressman: Well I don't think that -- that Congress at that point is the final arbiter of what was created in 1909 or what was created in 1854 in the Court of Claims.
Felix Frankfurter: But everybody was doing, it was doing a creative thing in 1958, namely saying, from today on, instead of establishing a brand new tribunal, we say there is an existence of tribunal which – which -- the jurisdiction of which is the business of which is to be very concrete, the business of which is – the business in – which is – which is conducted in a way, the finality of its judgment as such that it will be doing it all over again today, we could call it an Article III court and so we call that court an Article III court.
Eugene Gressman: Well, Your Honor I think that the -- the facts of its jurisdiction and -- and its nature, negative is that kind of an interpretation of the 1958 act. Only last moth the court claims for example, issued four decisions on legislative reference from Congress which are the type of advisory opinions which this Court said has time and again cannot be rendered by a constitutional court.
Felix Frankfurter: But the Court of Appeals of the district does business which cannot be reviewed by this Court because it is not judicial adjudication subject to review by this Court?
Eugene Gressman: There --
Felix Frankfurter: So that the Court of Appeals of the district deemed a constitutional court does non-constitutional business.
Eugene Gressman: That is conceivable, that are a few --
Felix Frankfurter: Not conceivable, it's true. That's the Keller case.
Eugene Gressman: In Keller against Potomac, that's right. Exactly, Your Honor, but the -- that has been described in the O'Donoghue case as having both a -- a legislative and an Article III status. Now, there's never been declared that there is --
Felix Frankfurter: But for those are just words, those are just words.
Eugene Gressman: Although that's a constitutional interpretation by this Court, Your Honor.
Felix Frankfurter: I know, but we're reexamining that, that's why we're here.
Eugene Gressman: And I can only say in conclusion that as Senator Gore stated with respect to this very type of jurisdiction of over advisory opinions on reference from Congress. In 1953 he said and I quoted this on page 62 of my brief, “And I think it epitomizes the ephemeral nature of these congressional declarations that if in the future, the judges of the Court of Claims had refused to act upon congressional reference cases on grounds, they are not within the proper scope of jurisdiction of the constitutional court, I suppose the simple remedy will be for Congress to re-designate the Court of Claims as a legislative court.” Now I submit that this is an indication of the view and I think a legitimate view as each – as Congress views it, that they can turn the constitutional and legislative nature of these courts on and off like a faucet.
Felix Frankfurter: Could they do that with reference to the District Court of -- the Court of the District?
Eugene Gressman: I do not believe they can, Your Honor.
Felix Frankfurter: Why, because they said in another meaning that that's the constitutional court?
Eugene Gressman: That is true. If there is no constitution --
Felix Frankfurter: It all depends on what an opinion says, is that it?
Eugene Gressman: Well it does when interpreting the Constitution Your Honor, yes.
Felix Frankfurter: We are here to re-examine the reason of these cases.
Eugene Gressman: Well that – that a full re-examination and a different decision of course, would produce a different law, but that is the status to the laws as exists today, Your Honor. Thank you.