ArtIII.S1.2.1 Characteristics and Attributes of Judicial Power

Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Judicial power is the power "of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision." 1 It is "the right to determine actual controversies arising between diverse litigants, duly instituted in courts of proper jurisdiction." 2 The terms "judicial power" and "jurisdiction" are frequently used interchangeably, with "jurisdiction" defined as the power to hear and determine the subject matter in controversy between parties to a suit 3 or as the "power to entertain the suit, consider the merits and render a binding decision thereon." 4 The cases and commentary however, support, indeed require, a distinction between the two concepts.

Jurisdiction is the authority of a court to exercise judicial power in a specific case and is, of course, a prerequisite to the exercise of judicial power, which is the totality of powers a court exercises when it assumes jurisdiction and hears and decides a case. 5 Judicial power confers on federal courts the power to decide a case and to render a judgment that conclusively resolves a case. Included within the general judicial power are the ancillary powers of courts to punish for contempt of their authority, 6 to issue writs in aid of jurisdiction when authorized by statute, 7 to make rules governing their process in the absence of statutory authorizations or prohibitions, 8 to order their own process so as to prevent abuse, oppression, and injustice, and to protect their own jurisdiction and officers in the protection of property in custody of law, 9 to appoint masters in chancery, referees, auditors, and other investigators, 10 and to admit and disbar attorneys. 11

As judicial power is the authority to render dispositive judgments, Congress violates the separation of powers when it purports to alter final judgments of Article III courts. 12 One such instance arose when the Court unexpectedly recognized a statute of limitations for certain securities actions that was shorter than what had been recognized in many jurisdictions, resulting in the dismissal of several suits, which then become final because they were not appealed. Congress subsequently enacted a statute that, though not changing the limitations period prospectively, retroactively extended the time for suits that had been dismissed and provided for the reopening of these final judgments. In Plaut v. Spendthrift Farm, Inc., 13 the Court invalidated the statute, holding it impermissible for Congress to disturb a final judgment. "Having achieved finality, . . . a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was." 14 In Miller v. French, 15 by contrast, the Court ruled that the Prison Litigation Reform Act's automatic stay of ongoing injunctions remedying violations of prisoners' rights did not amount to an unconstitutional legislative revision of a final judgment. Rather, the automatic stay merely altered "the prospective effect" of injunctions, and it is well established that such prospective relief "remains subject to alteration due to changes in the underlying law." 16

"Shall Be Vested"

The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words "shall be vested" in § 1. Whereas all the judicial power of the United States is vested in the Supreme Court and the inferior federal courts created by Congress, neither has ever been vested with all the jurisdiction which could be granted and, Justice Story to the contrary, 17 the Constitution has not been read to require that Congress confer the entire jurisdiction it might. 18 Thus, except for the original jurisdiction of the Supreme Court, which flows directly from the Constitution, two prerequisites to jurisdiction must be present: first, the Constitution must have given the courts the capacity to receive it, 19 and, second, an act of Congress must have conferred it. 20 The fact that federal courts are of limited jurisdiction means that litigants in them must affirmatively establish that jurisdiction exists and may not confer nonexistent jurisdiction by consent or conduct. 21

Footnotes

  1.  Justice Samuel Miller, On the Constitution 314 (1891).
  2.  Muskrat v. United States, 219 U.S. 346, 361 (1911).
  3.  United States v. Arrendondo, 31 U.S. (6 Pet.) 691 (1832).
  4.  General Investment Co. v. New York Central R.R., 271 U.S. 228, 230 (1926).
  5.  Williams v. United States, 289 U.S. 553, 566 (1933); Yakus v. United States, 321 U.S. 414, 467-68 (1944) (Justice Rutledge dissenting).
  6.  Michaelson v. United States, 266 U.S. 42 (1924).
  7.  McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).
  8.  Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825).
  9.  Gumbel v. Pitkin, 124 U.S. 131 (1888).
  10.  Ex parte Peterson, 253 U.S. 300 (1920).
  11.  Ex parte Garland, 71 U.S. (4 Wall.) 333, 378 (1867).
  12.  Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995). The Court was careful to delineate the difference between attempting to alter a final judgment, one rendered by a court and either not appealed or affirmed on appeal, and legislatively amending a statute so as to change the law as it existed at the time a court issued a decision that was on appeal or otherwise still alive at the time a federal court reviewed the determination below. A court must apply the law as revised when it considers the prior interpretation. Id. at 226-27. Article III creates or authorizes Congress to create not a collection of unconnected courts, but a judicial department composed of "inferior courts" and "one Supreme Court." "Within that hierarchy, the decision of an inferior court is not (unless the time for appeal has expired) the final word of the department as a whole." Id. at 227.
  13.  514 U.S. 211 (1995).
  14.  514 U.S. at 227 (emphasis supplied by Court).
  15.  530 U.S. 327 (2000).
  16.  530 U.S. at 344.
  17.  Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 328-331 (1816). See also 3 J. Story, Commentaries on the Constitution of the United States (1833) 1584-1590.
  18.  See, e.g., Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799) (Justice Chase). A recent, sophisticated attempt to resurrect the core of Justice Story's argument appears in Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B. U. L. Rev. 205 (1985); see also Amar, Meltzer, and Redish, Symposium: Article III and the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990). Professor Amar argues from the text of Article III, § 2, cl. 1, that the use of the word "all" in each of the federal question, admiralty, and public ambassador subclauses means that Congress must confer the entire judicial power to cases involving those issues, whereas it has more discretion in the other six categories.
  19.  Which was, of course, the point of Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803), once the power of the Court to hold legislation unconstitutional was established.
  20.  The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1868); Cary v. Curtis, 44 U.S. (3 How.) 236 (1845); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850); United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 33 (1812); Kline v. Burke Constr. Co., 260 U.S. 226 (1922). Some judges, however, have expressed the opinion that Congress’s authority is limited by provisions of the Constitution such as the Due Process Clause, so that a limitation on jurisdiction that denied a litigant access to any remedy might be unconstitutional. Cf. Eisentrager v. Forrestal, 174 F.2d 961, 965-966 (D.C. Cir. 1949), rev'd on other grounds sub nom, Johnson v. Eisentrager, 339 U.S. 763 (1950); Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948), cert. denied, 335 U.S. 887 (1948); Petersen v. Clark, 285 F. Supp. 700, 703 n.5 (N.D. Calif. 1968); Murray v. Vaughn, 300 F. Supp. 688, 694-695 (D.R.I. 1969). The Supreme Court has had no occasion to consider the question.
  21.  Turner v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799); Bingham v. Cabot, 3 U.S. (3 Dall.) 382 (1798); Jackson v. Ashton, 33 U.S. (8 Pet.) 148 (1834); Mitchell v. Maurer, 293 U.S. 237 (1934).