GLIDDEN COMPANY v. ZDANOK ET AL.
No. 242
Supreme Court of the United States
June 25, 1962
370 U.S. 530
*Tоgether with No. 481, Lurk v. United States, on certiorari to the United States Court of Appeals for the District of Columbia Circuit, argued February 21, 1962.
Chester Bordeau argued the cause for petitioner in No. 242. With him on the briefs was William P. Smith.
Morris Shapiro argued the cause for respondents in No. 242. With him on the briefs was Harry Katz.
Solicitor General Cox argued the cause for the United States, as intervenor, in No. 242. With him on the brief were Assistant Attorney General Miller, Oscar H. Davis and Philip R. Monahan.
By special leave of Court, 368 U. S. 973, Francis M. Shea argued the cause in No. 242 for the Chief Judge and Associate Judges of the United States Court of Claims, as amici curiae, urging affirmance. With him on the briefs was Richard T. Conway.
Briefs of amici curiae, in support of the petition in No. 242, were filed by William B. Barton for the Chamber of Commerce of the United States; John E. Branch for the Georgia State Chamber of Commerce; Henry E. Seyfarth for the Illinois State Chamber of Commerce;
Eugene Gressman argued the cause and filed briefs for petitioner in No. 481.
Solicitor General Cox argued the cause for the United States in No. 481. With him on the brief were Assistant Attorney General Miller, Oscar H. Davis, Beatrice Rosenberg and Philip R. Monahan.
By special leave of Court, Roger Robb argued the cause and filed a brief in No. 481 for the Chief Judge and Associate Judges of the United States Court of Customs and Patent Appeals, as amici curiae, urging affirmance.
MR. JUSTICE HARLAN announced the judgment of the Court and an opinion joined by MR. JUSTICE BRENNAN and MR. JUSTICE STEWART.
In Ex parte Bakelite Corp., 279 U. S. 438, and Williams v. United States, 289 U. S. 553, this Court held that the United States Court of Customs and Patent Appeals and the United States Court of Claims were neither confined in jurisdiction nor protected in independence by Article III of the Constitution, but that both had been created by virtue of other, substantive, powers possessed by Congress under Article I. The Congress has since pronounced its disagreement by providing as to each that “such court is hereby declared to be a court established under article III of the Constitution of the United
No. 242 is a suit brought by individual employees in a New York state court to recover damages for breach of a collective bargaining agreement, and removed to the Federal District Court for the Southern District of New York by the defendant employer on the ground of diversity of citizenship. The employees’ right to recover was sustained by a divided panel of the Court of Appeals, in an opinion by Judge J. Warren Madden, then an active judge of the Court of Claims sitting by designation of the Chief Justice of the United States under
The claim advanced by the petitioners, that they were denied the protection of judges with tenure and compensation guaranteed by Article III, has nothing to do with the manner in which either of these judges conducted himself in these proceedings. No contention is made that either Judge Madden or Judge Jackson displayed a lack of appropriate judicial independence, or that either sought by his rulings to curry favor with Congress or the Executive. Both indeed enjoy statutory assurance of tenure and compensation,5 and were it not for the explicit provisions of Article III we should be quite unable to say that either judge‘s participation even colorably denied the petitioners independent judicial hearings.
Article III, § 1, however, is explicit and gives the petitioners a basis for complaint without requiring them to point to particular instances of mistreatment in the record. It provides:
“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.”6
Apart from this provision, it is settled that neither the tenure nor salary of federal officers is constitutionally protected from impairment by Congress. Crenshaw v. United States, 134 U. S. 99, 107-108; cf. Butler v. Pennsylvania, 10 How. 402, 416-418. The statutory declaration, therefore, that the judges of these two courts should serve during good behavior and with undiminished salary, see note 5, supra, was ineffective to bind any subsequent Congress unless those judges were invested at appointment with the protections of Article III. United States v. Fisher, 109 U. S. 143, 145; see McAllister v. United States, 141 U. S. 174, 186. And the petitioners naturally point to the Bakelite and Williams cases, supra, as establishing that no such constitutional protection was in fact conferred.
The distinction referred to in those cases between “constitutional” and “legislative” courts has been productive of much confusion and controversy. Because of the highly theoretical nature of the problem in its present context,7 we would be well advised to decide these cases on narrower grounds if any are fairly available. But for reasons that follow, we find ourselves unable to do so.
No challenge to the authority of the judges was filed in the course of the proceedings before them in either case. The Solicitor General, who submitted briefs and arguments for the United States, has seized upon this circumstance to suggest that the petitioners should be precluded by the so-called de facto doctrine from questioning the validity of these designations for the first time on appeal.
Whatever may be the rule when a judge‘s authority is challenged at the earliest practicable moment, as it was in United States v. American-Foreign S. S. Corp., 363 U. S. 685, in other circumstances involving judicial authority this Court has described it as well settled “that where there is an office to be filled and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto and binding upon the public.” McDowell v. United States, 159 U. S. 596, 602. The rule is founded upon an obviously sound policy of preventing litigants from abiding the outcome of a lawsuit and then overturning it if adverse upon a technicality of which they were previously aware. Although a United States Attorney may be permitted on behalf of the public to upset an order issued upon defective authority, Frad v. Kelly, 302 U. S. 312, a private litigant ordinarily may not. Ball v. United States, 140 U. S. 118, 128-129.
The rule does not obtain, of course, when the alleged defect of authority operates also as a limitation on this Court‘s appellate jurisdiction. Ayrshire Collieries Corp. v. United States, 331 U. S. 132 (three-judge court); United States v. Emholt, 105 U. S. 414 (certificate of divided opinion). In other circumstances as well, when the statute claimed to restrict authority is not merely technical
A fortiori is this so when the challenge is based upon nonfrivolous constitutional grounds. In McDowell v. United States itself, supra, at 598-599, the Court, while holding that any defect in statutory authorization for a particular intracircuit assignment was immunized from examination by the de facto doctrine, specifically passed upon and upheld the constitutional authority of Congress to provide for such an assignment. And in Lamar v. United States, 241 U. S. 103, 117-118, the claim that an intercircuit assignment violated the criminal venue restrictions of the Sixth Amendment and usurped the presidential appointing power under Art. II, § 2, was heard here and determined upon its merits, despite the fact that it had not been raised in the District Court or in the Court of Appeals or even in this Court until the filing of a supplemental brief upon a second request for review.
The alleged defect of authority here relates to basic constitutional protections designed in part for the benefit of litigants. See O‘Donoghue v. United States, 289 U. S. 516, 532-534. It should be examinable at least on direct review, where its consideration encounters none of the objections associated with the principle of res judicata, that there be an end to litigation. At the most is weighed in opposition the disruption to sound appellate process entailed by entertaining objections not raised below, and that is plainly insufficient to overcome the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers. So this Court has con-
II.
The Court of Appeals for the District of Columbia found it unnecessary to reach the question whether Judge Jackson enjoyed constitutional security of tenure and compensation. It held that even if he did not, Congress might authorize his assignment to courts in the District of Columbia, by virtue of its power “To exercise exclusive Legislation in all Cases whatsoever” over the District. Art. I, § 8, cl. 17. The Solicitor General, in support of that ruling, argues here that because the criminal charge against petitioner Lurk was violation of a local statute,
The question thus raised is itself of constitutional dimension, and one which we need not reach if an Article III judge was in fact assigned. In the companion case, No. 242, the necessity for such a judge is uncontested. The Court of Appeals for the Second Circuit sat to determine a question of state contract law presented for its decision solely by reason of the diverse citizenship of the litigants.8 Authority for the Federal Government to
III.
The next question is whether the character of the judges who sat in these cases may be determined without reference to the character of the courts to which they were originally appointed. If it were plain that these judges were invested upon confirmation with Article III tenure and compensation, it would be unnecessary for present purposes to consider the constitutional status of the Court of Claims and the Court of Customs and Patent Appeals.
No such course, however, appears to be open. The statutes under which Judge Madden and Judge Jackson were appointed speak of service only on those courts.
A more novel suggestion is that the assignment statute itself,
It is significant that Congress did not enact the present broad assignment statute until after it had declared the Court of Claims and the Court of Customs and Patent Appeals to be constitutional courts.
IV.
In determining the constitutional character of the Court of Claims and the Court of Customs and Patent Appeals, as we are thus led to do, we may not disregard Congress’ declaration that they were created under Article III. Of course, Congress may not by fiat overturn the constitutional decisions of this Court, but the legislative history of the 1953 and 1958 declarations makes plain that it was far from attempting any such thing. Typical is a statement in the 1958 House Report that the purpose of the legislation was to “declare which of the powers Congress was intending to exercise when the court was created.” H. R. Rep. No. 2349, 85th Cong., 2d Sess. 3 (1958); accord, H. R. Rep. No. 695, 83d Cong., 1st Sess. 3, 5, 7 (1953); and see S. Rep. No. 275, 83d Cong., 1st Sess. 2 (1953), substituted for S. Rep. No. 261, 83d Cong., 1st Sess. 2 (1953); 99 Cong. Rec. 8943, 8944 (1953) (remarks of Senator Gore).
“Subsequent legislation which declares the intent of an earlier law,” this Court has noted, “is not, of course, conclusive in determining what the previous Congress meant. But the later law is entitled to weight when it comes to the problem of construction.” Federal Housing Administration v. Darlington, Inc., 358 U. S. 84, 90; accord, New York, P. & N. R. Co. v. Peninsula Exchange, 240 U. S. 34, 39. Especially is this so when the Congress has been stimulated by decisions of this Court to investigate the historical materials involved and has drawn from them a contrary conclusion. United States v. Hutcheson, 312 U. S. 219, 235-237. As examination of the House and Senate Reports makes evident, that is what occurred
At the time when Bakelite and Williams were decided, the Court did not have the benefit of this congressional understanding. The Williams case, for example, arose under the
In the Bakelite case, to be sure, Mr. Justice Van Devanter said of an argument drawn from tenuous evidence of congressional understanding that it “mistakenly assumes that whether a court is of one class or the other depends on the intention of Congress, whereas the true test lies in the power under which the court was created and in the jurisdiction conferred.” 279 U. S., at 459. Yet he would hardly have denied that explicit evidence of legislative intendment concerning the factors he thought controlling may be relevant and indeed highly persuasive. In any event, the Bakelite dictum did not embarrass the Court in deciding O‘Donoghue, where it looked searchingly at “congressional practice” to determine what classification that body “recognizes.” 289 U. S., at 548-550. We think the forthright statement of understanding embraced in the 1953 and 1958 declarations may be taken as similarly persuasive evidence for the problem now before us.
To give due weight to these congressional declarations is not of course to compromise the authority or responsi-
Furthermore, apart from this Court‘s considered practice not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases, e. g., United States v. South Buffalo R. Co., 333 U. S. 771, 774-775; see Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 405-408 and n. 1-3 (Brandeis, J., dissenting), there is the fact that Congress has acted on its understanding and has provided for assignment of judges who have made decisions that are now said to be impeachable. In these circumstances, the practical consideration underlying the doctrine of stare decisis—protection of generated expectations—actually militates in favor of reexamining the decisions. We are well-advised, therefore, to regard the questions decided in those cases as entirely open to reconsideration.
V.
The Cоnstitution nowhere makes reference to “legislative courts.” The power given Congress in Art. I, § 8, cl. 9, “To constitute Tribunals inferior to the supreme Court,” plainly relates to the “inferior Courts” provided for in Art. III, § 1; it has never been relied on for establishment of any other tribunals.
“These Courts, then, are not constitutional Courts, in which the judicial power conferred by the Constitution on the general government, can be deposited. They are incapable of receiving it. They are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States.” 1 Pet., at 546.
By these arresting observations the Chief Justice certainly did not mean to imply that the case heard by the Key West court was not one of admiralty jurisdiction otherwise properly justiciable in a Federal District Court sitting in one of the States. Elsewhere in the opinion he distinctly referred to the provisions of Article III to show that it was such a case. 1 Pet., at 545. All the Chief Justice meant, and what the case has ever after been
The reasons for this are not difficult to appreciate so long as the character of the early territоries and some of the practical problems arising from their administration are kept in mind. The entire governmental responsibility in a territory where there was no state government to assume the burden of local regulation devolved upon the National Government. This meant that courts had to be established and staffed with sufficient judges to handle the general jurisdiction that elsewhere would have been exercised in large part by the courts of a State.14 But when the territories began entering into statehood, as they soon did, the authority of the territorial courts over matters of state concern ceased; and in a time when the size of the federal judiciary was still relatively small, that left the National Government with a significant
At the same time as the absence of a federal structure in the territories produced problems not foreseen by the Framers of Article III, the realities of territorial government typically made it less urgent that judges there enjoy the independence from Congress and the President envisioned by that article. For the territories were not ruled immediately from Washington; in a day of poor roads and slow mails, it was unthinkable that they should be. Rather, Congress left municipal law to be developed largely by the territorial legislatures, within the framework of organic acts and subject to a retained power of veto.16 The scope of self-government exercised under these delegations was nearly as broad as that enjoyed by the States, and the freedom of the territories to dispense with protections deemed inherent in a separation of governmental powers was as fully recognized.17
Against this historical background, it is hardly surprising that Chief Justice Marshall decided as he did. It would have been doctrinaire in the extreme to deny the right of Congress to invest judges of its creation with authority to dispose of the judicial business of the territories. It would have been at least as dogmatic, having recognized the right, to fasten on those judges a guarantee
The same confluence of practical considerations that dictated the result in Canter has governed the decision in later cases sanctioning the creation of other courts with judges of limited tenure. In United States v. Coe, 155 U. S. 76, 85-86, for example, the Court sustained the authority of the Court of Private Land Claims to adjudicate claims under treaties to land in the territories, but left it expressly open whether such a course might be followed within the States. The Choctaw and Chickasaw Citizenship Court was similarly created to determine questions of tribal membership relevant to property claims within Indian territory under the exclusive control of the National Government. See Stephens v. Cherokee Nation, 174 U. S. 445; Ex parte Joins, 191 U. S. 93; Wallace v. Adams, 204 U. S. 415. Upon like considerations, Article III has been viewed as inapplicable to courts created in unincorporated territories outside the mainland, Downes v. Bidwell, 182 U. S. 244, 266-267; Balzac v. Porto Rico, 258 U. S. 298, 312-313; cf. Dorr v. United States, 195 U. S. 138, 145, 149, and to the consular courts established by concessions from foreign countries, In re Ross, 140 U. S. 453, 464-465, 480.18
The touchstone of decision in all these cases has been the need to exercise the jurisdiction then and there and for a transitory period. Whether constitutional limitations on the exercise of judicial power have been held inapplicable has depended on the particular local setting,
Since the conditions obtaining in one territory have been assumed to exist in each, this Court has in the past entertained a presumption that even those territorial judges who have been extended statutory assurances of life tenure and undiminished compensation have been so favored as a matter of legislative grace and not of constitutional compulsion. McAllister v. United States, 141 U. S. 174, 186.19 By a parity of reasoning, however, the presumption should be reversed when Congress creates courts the continuing exercise of whose jurisdiction is unembarrassed by such practical difficulties. See Mookini v. United States, 303 U. S. 201, 205. As the Bakelite and Williams opinions recognize, the Court of Claims and the Court of Customs and Patent Appeals were created to carry into effect powers enjoyed by the National Government over subject matter—roughly, payment of debts and collection of customs revenue—and not over localities. What those opinions fail to deal with is whether that distinction deprives American Insurance Co. v. Canter of controlling force.
The Bakelite opinion did not inquire whether there might be suсh a distinction. After sketching the history of the territorial and consular courts, it continued at once:
“Legislative courts also may be created as special tribunals to examine and determine various matters,
arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it.” 279 U. S., at 451.
Since in the Court‘s view the jurisdiction conferred on both the Court of Claims and the Court of Customs and Patent Appeals included “nothing which inherently or necessarily requires judicial determination,”20 both could have been and were created as legislative courts.
We need not pause to assess the Court‘s characterization of the jurisdiction conferred on those courts, beyond indicating certain reservations about its accuracy.21 Nor need we now explore the extent to which Congress may commit the execution of even “inherently” judicial business to tribunals other than Article III courts. We may and do assume, for present purposes, that none of the jurisdiction vested in our two courts is of that sort, so that all of it might be committed for final determination to non-Article III tribunals, be they denominated legislative courts or administrative agencies.
But because Congress may employ such tribunals assuredly does not mean that it must. This is the crucial
non sequitur of the Bakelite and Williams opinions. Each assumed that because Congress might have assigned specified jurisdiction to an administrative agency, it must be deemed to have done so even though it assigned that jurisdiction to a tribunal having every appearance of a court and composed of judges enjoying statutory assurances of life tenure and undiminished compensation. In so doing, each appears to have misunderstood the thrust of the celebrated observation by Mr. Justice Curtis, that
“... there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.” Murray‘s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 284.
This passage, cited in both the Bakelite and Williams opinions,22 plainly did not mean that the matters referred to could not be entrusted to Article III courts. Quite the contrary, the explicit predicate to Justice Curtis’ argument was that such courts could exercise judicial power over such cases. For the very statute whose authorization of summary distress proceedings was sustained in the Murray case, also authorized the distrainee to bring suit to arrest the levy against the United Stаtes in a Federal District Court. And as to this, the author of the opinion stated, just before his more trenchant remark quoted above:
“The United States consents that this fact of indebtedness may be drawn in question by a suit against them. Though they might have withheld
their consent, we think that, by granting it, nothing which may not be a subject of judicial cognizance is brought before the court.” 23
Thus Murray‘s Lessee, far from furnishing authority against the proposition that the Court of Claims is a constitutional court, actually supports it.
To deny that Congress may create tribunals under
What has been said should suffice to demonstrate that whether a tribunal is to be recognized as one created under
VI.
A. Court of Claims.—The Court of Claims was created by the Act of February 24, 1855, c. 122, 10 Stat. 612, primarily to relieve the pressure on Congress caused by the volume of private bills. As an innovation the cоurt was at first regarded as an experiment, and some of its creators were reluctant to give it all the attributes of a court by making its judgments final; instead it was authorized to hear claims and report its findings of fact and opinions to Congress, together with drafts of bills designed to carry its recommendations into effect. § 7, 10 Stat. 613; see Cong. Globe, 33d Cong., 2d Sess. 70-72 (1854) (remarks of Senators Brodhead and Hunter). From the outset, however, a majority of the court‘s proponents insisted that its judges be given life tenure as a means of assuring inde-
By the end of 1861, however, it was apparent that the limited powers conferred on the court were insufficient to relieve Congress from the laborious necessity of examining the merits of private bills. In his State of the Union message that year, President Lincoln recommended that the legislative design to provide for the independent adjudication of claims against the United States be brought to fruition by making the judgments of the Court of Claims final. The pertinent text of his address is as follows, Cong. Globe, 37th Cong., 2d Sess., Appendix, p. 2:
“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 belong 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; but while the court has proved to be an effective and valuable means of investigation, it in great degree fails to effect the object of its creation, for want of power to make its judgments final.”
By the Act of March 3, 1863, c. 92, § 5, 12 Stat. 765, 766, Congress adopted the President‘s recommendation and made the court‘s judgments final, with appeal to the
There was one further impediment. Section 14 of the 1863 Act, 12 Stat. 768, provided that “no money shall be paid out of the treasury for any claim passed upon by the court of claims till after an appropriation therefor shall be estimated for by the Secretary of the Treasury.” In Gordon v. United States, 2 Wall. 561, this Court refused to review a judgment of the Court of Claims because it construed that section as giving the Secretary a revisory authority over the court inconsistent with its exercise of judicial power. Congress promptly repealed the offensive section, Act of March 17, 1866, c. 19, § 1, 14 Stat. 9, once again exhibiting its purpose to liberate the Court of Claims from itself and the Executive. Thereafter, the Supreme Court promulgated rules governing appeals from the court, 3 Wall. vii-viii, and took jurisdiction under them for the first time in De Groot v. United States, 5 Wall. 419.
The early appeals entertained by the Court furnish striking evidence of its understanding that the Court of Claims had been vested with judicial power. In De Groot the court had been given jurisdiction by special bill only after the passage of two private bills had failed to produce agreement by administrative officials upon adequate recompense. This Court was thus presented with a vivid illustration of the ways in which the same matter might be submitted for resolution to a legislative committee, to an executive officer, or to a court, Murray‘s Lessee, supra, and nevertheless accepted appellate jurisdiction over what was, necessarily, an exercise of the judicial power which alone it may review. Marbury v. Madison, 1 Cranch 137, 174-175.
After the repeal of § 14, the Court was quick to protect the Court of Claims’ judgments from executive revision.
“Should it be suggested that the judgment in question was rendered in the Court of Claims, the answer to the suggestion is that the judgment of the Court of Claims, from which no appeal is taken, is just as conclusive under existing laws as the judgment of the Supreme Court, until it is set aside on a motion for a new trial.” 27
Like views abound in the early reports. In United States v. Union Pacific R. Co., 98 U.S. 569, 603, for example, referring to
“Congress has, under this authority, created the district courts, the circuit courts, and the Court of Claims, and vested each of them with a defined portion of the judicial power found in the Constitution.”
Such remained the view of the Court as late as Miles v. Graham, 268 U.S. 501, decided in 1925. There it was held, on the authority of Evans v. Gore, 253 U.S. 245, that the salary of a Court of Claims judge appointed even after enactment of the taxing statute in question was not subject to such diminution. Although the case was afterwards overruled on this point, O‘Malley v. Woodrough, 307 U.S. 277, 283, what is of continuing interest is the
In actuality, the Court‘s pre-Bakelite view of the Court of Claims is supported by the evidence of increasing confidence placed in that tribunal by Congress. The Tucker Act, § 1, 24 Stat. 505 (1887), now
“All claims founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable . . . .”
All of the cases within this grant of jurisdiction arise either immediately or potentially under federal law within the meaning of
Indeed there is reason to believe that the Court of Claims has been constituted as it is precisely to the end that there may be a tribunal specially qualified to hold the Government to strict legal accounting. From the beginning it has been given jurisdiction only to award damages, not specific relief. United States v. Alire, 6 Wall. 573; United States v. Jones, 131 U.S. 1; see Schwartz and Jacoby, Government Litigation (tentative ed. 1960), 123-126. No question can be raised of Congress’ freedom, consistently with
“If there are such things as political axioms,” said Alexander Hamilton, “the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number.” The Federalist,
B. The Court of Customs and Patent Appeals.—The Court of Customs Appeals, as it was first known, was established by § 29 of the Customs Administrative Act of 1890, c. 407, 26 Stat. 131, as added by § 28 of the Payne-Aldrich Tariff Act of August 5, 1909, c. 6, 36 Stat. 11, 105, to review by appeal final decisions of the Board of General Appraisers (now Customs Court) respecting the classification and rate of duty applicable to imported merchandise. The Act was silent about the tenure of the judges, as had been the Judiciary Act of 1789, c. 20, §§ 3, 4, 1 Stat. 73-75. The salary, first set at $10,000, was afterwards lowered to the $7,000 then being paid to circuit judges, Act of February 25, 1910, c. 62, § 1, 36 Stat. 202, 214, but before the first nominations had been received or confirmed, see 45 Cong. Rec. 2959, 4003 (1910); and, although it has since been increased, it has never been diminished.29 After the Bakelite case had
The debates in the Senate at the time of the court‘s creation bear out this observation. See 44 Cong. Rec. 4185-4225 (1909). For under the Customs Administrative Act of 1890, c. 407, § 15, 26 Stat. 131, 138, review of decisions of the Board of General Appraisers had been vested in the Circuit Courts, undoubted
As was said some 35 years ago, “an important phase of the history of the federal judiciary deals with the movement for the establishment of tribunals whose business was to be limited to litigation arising from a restricted
The parallelism with the Commerce Court is especially striking. That court was created to exercise the jurisdiction previously held by the Circuit Courts to review orders of the Interstate Commerce Commission. Mann-Elkins Act of June 18, 1910, c. 309, 36 Stat. 539. It was needed, so its sponsors believed, to afford uniform, expert, and expeditious judicial review. See President Taft‘s message to Congress, 45 Cong. Rec. 379 (1910), in the course of which he stated:
“Reasons precisely analogous to those which induced the Congress to create the court of customs appeals by the provisions in the tariff act of August 5, 1909, may be urged in support of the creation of the commerce court.”
When disfavor with the court caused its abolition three years later, Act of October 22, 1913, c. 32, 38 Stat. 208, 219, it was decided in Congress after extensive debate that the judges then serving on it were protected in tenure by
The Emergency Court of Appeals was similarly created, by the Act of January 30, 1942, c. 26, 56 Stat. 23, to exercise exclusive equity jurisdiction to determine the validity of regulations, price schedules, and orders issued by the wartime Office of Price Administration.31 Its
Of course the judges of those courts were appointed as judges of inferior federal courts generally, or drawn from among those previously appointed as such. See p. 538 and note 11, supra. But by 1942 at least, when the latter court was created, Congress was well aware of the doubt created by the Bakelite and Williams decisions whether
Such an understanding parallels that of previous Congresses since the adoption of the Constitution. Congress has never been compelled to vest the entire jurisdiction provided for in
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — . . . to Controversies to which the United States shall be a Party . . . .”
The cases heard by the Court of Claims and the Court of Customs and Patent Appeals all arise under federal law, as we have seen; they are also cases in which the United States is a party. But in Williams v. United States, 289 U.S. 553, 572-578, far from making of that circumstance a further proof that the Court of Claims exercises the judicial power contemplated by
The Court‘s opinion dwelt in part upon the omission of the word “all” before “Controversies” in the clause referred to. To derive controlling significance from this semantic circumstance seems hardly to be faithful to John Marshall‘s admonition that “it is a constitution we are expounding.” McCulloch v. Maryland, 4 Wheat. 316, 407. But it would be needlessly literal to suppose that the Court rested its holding on this point. Rather it deemed controlling the rule, “well settled and understood” at the time of the Constitutional Convention, that “the sovereign power is immune from suit.” 289 U.S., at 573. Accordingly it becomes necessary to reconsider whether that principle has the effect claimed of rendering suits against the United States nonjusticiable in a court created under
Hamilton‘s views, quoted in the Williams case, 289 U.S., at 576, are not to the contrary. To be sure, Hamilton argued that “the contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will.” The Federalist, No. 81 (Wright ed. 1961), at 511. But that is because there was no surrender of sovereign immunity in the plan of the convention;32 so
So the Court had given itself to understand before Williams was decided. In United States v. Louisiana, 123 U.S. 32, 35, it held maintainable under
“This is a controversy to which the United States may be regarded as a party. It is one, therefore, to which the judicial power of the United States extends. It is, of course, under that clause a matter of indifference whether the United States is a party plaintiff or defendant.”
Further in the same opinion, 185 U.S., at 386, the Court significantly remarked:
“While the United States as a government may not be sued without its consent, yet with its consent it may be sued, and the judicial power of the United States extends to such a controversy. Indeed, the whole jurisdiction of the Court of Claims rests upon this proposition.”
In truth the District Courts have long been vested with substantial portions of the identical jurisdiction exercised by the Court of Claims. The Tucker Act, § 2, 24 Stat. 505 (1887), as amended,
There have been and are further statutory indications that Congress regards the two courts interchangeably. In 1921, Mr. Justice Brandeis compiled a list of 17 statutes passed during World War I, permitting suits against the United States for the value of property seized for use in the war effort, and authorizing them to be instituted in either the Court of Claims or one of the District Courts.
These evidences of congressional understanding that suits against the United States are justiciable in courts created under
First. Throughout its history the Court of Claims has frequently been given jurisdiction by special act to award recovery for breach of what would have been, on the part of an individual, at most a moral obligation. E. g., 45 Stat. 602 (1928), as amended,
In doing so, as this Court has uniformly held, Congress has enlisted the aid of judicial power whose exercise is amenable to appellate review here. United States v. Alcea Band of Tillamooks, supra; see Colgate v. United States, 280 U.S. 43, 47-48. Indeed the Court has held
The issue was settled beyond peradventure in Pope v. United States, 323 U.S. 1. There the Court held that for Congress to direct the Court of Claims to entertain a claim theretofore barred for any legal reason from recovery—as, for instance, by the statute of limitations, or because the contract had been drafted to exclude such claims—was to invoke the use of judicial power, notwithstanding that the task might involve no more than computation of the sum due. Consent judgments, the Court recalled, are nonetheless judicial judgments. See 323 U.S., at 12, and cases cited. After this decision it cannot be doubted that when Congress transmutes a moral obligation into a legal one by specially consenting to suit, it authorizеs the tribunal that hears the case to perform a judicial function.
Second. Congress has on occasion withdrawn jurisdiction from the Court of Claims to proceed with the disposition of cases pending therein, and has been upheld in so doing by this Court. E. g., District of Columbia v. Eslin, 183 U.S. 62. But that is not incompatible with the possession of Article III judicial power by the tribunal affected. Congress has consistently with that article withdrawn the jurisdiction of this Court to proceed with a case then sub judice, Ex parte McCardle, 7 Wall. 506; its power can be no less when dealing with an inferior federal court, In re Hall, 167 U.S. 38, 42. For as Hamilton assured those of his contemporaries who were concerned about the reach of power that might be vested in a federal judiciary, “it ought to be recollected that the national legislature will have ample authority to make
The authority is not, of course, unlimited. In 1870, Congress purported to withdraw jurisdiction from the Court of Claims and from this Court on appeal over cases seeking indemnification for property captured during the Civil War, so far as eligibility therefor might be predicated upon an amnesty awarded by the President, as both courts had previously held that it might. Despite Ex parte McCardle, supra, the Court refused to apply the statute to a case in which the claimant had already been adjudged entitled to recover by the Court of Claims, calling it an unconstitutional attempt to invade the judicial province by prescribing a rule of decision in a pending case. United States v. Klein, 13 Wall. 128. Surely no such concern would have been manifested if it had not been thought that the Court of Claims was invested with judicial power.33
VIII.
A more substantial question relating to the justiciability of money claims against the United States arises from the impotence of a court to enforce its judgments. It was Chief Justice Taney‘s opinion, in Gordon v. United States,
“The award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power.”
But Taney‘s opinion was not the opinion of the Court. It was a memorandum of his views prepared before his death and circulated among, but not adopted by, his brethren. The opinion of the Court, correctly reported for the first time in United States v. Jones, 119 U.S. 477, 478, makes clear that its refusal to entertain the Gordon appeal rested solely on the revisory authority vested in the Secretary of the Treasury before the repeal of § 14. See also United States v. Alire, 6 Wall. 573, 576; United States v. O‘Grady, 22 Wall. 641, 647; Langford v. United States, 101 U.S. 341, 344-345—in each of which the limitation of the Gordon decision to the difficulties caused by § 14 clearly appears.
Nevertheless the problem remains and should be considered. Its scope has, however, been reduced by the Act of July 27, 1956, § 1302, 70 Stat. 678, 694,
For claims in excess of $100,000,
The problem was recognized in the Congress that created the Court of Claims, where it was pointed out that if ability to enforce judgments were made a criterion of judicial power, no tribunal created under
Ever since Congress first accorded finality to judgments of the Court of Claims, it has sought to avoid interfering with their collection. Section 7 of the Act of March 3, 1863, 12 Stat. 765, 766, provided for the payment of final judgments out of general appropriations. In 1877, Congress shifted for a time to appropriating lump sums for judgments certified to it by the Secretary of the Treasury, not in order to question the judgments but to avoid the possibility that a large judgment might exhaust the prior appropriation. Act of March 3, 1877, c. 105, 19 Stat. 344, 347; see 6 Cong. Rec. 585-588 (1877). A study concluded in 1933 found only 15 instances in 70 years when Congress had refused to pay a judgment. Note, 46 Harv. L. Rev. 677, 685-686 n. 63. This historical record, surely more favorable to prevailing parties than that obtaining in private litigation, may well make us doubt whether the capacity to enforce a judgment is always indispensable for the exercise of judicial power.
All of the business that comes before the two courts is susceptible of disposition in a judicial manner. What remains to be determined is the extent to which it is in fact disposed of in that manner.
A preliminary consideration that need not detain us long is the absence of provision for jury trial of counterclaims by the Government in actions before the Court of Claims. Despite dictum to the contrary in United States v. Sherwood, 312 U. S. 584, 587, the legitimacy of that nonjury mode of trial does not depend upon the supposed “legislative” character of the court. It derives instead, as indeed was also noted in Sherwood, ibid., from the fact that suits against the Government, requiring as they do a legislative waiver of immunity, are not “suits at common law” within the meaning of the
The principal question raised by the parties under this head of the argument is whether the matters referred by Congress to the Court of Claims and the Court of Customs and Patent Appeals are submitted to them in a form consonant with the limitation of judicial power to “cases or
“Whether a proceeding which results in a grant is a judicial one,” said Mr. Justice Brandeis for a unanimous Court, “does not depend upon the nature of the thing granted, but upon the nature of the proceeding which Congress has provided for securing the grant. The United States may create rights in individuals against itself and provide only an administrative remedy. It may provide a legal remedy, but make resort to the courts available only after all administrative remedies have been exhausted. It may give to the individual the option of either an administrative or a legal remedy. Or it may provide only a legal remedy. [See pp. 549-552, supra.] Whenever the law provides a remedy enforceable in the courts according to the regular course of legal procedure, and that remedy is pursued, there arises a case within the meaning of the Constitution, whether the subject of the litigation be property or status.” Tutun v. United States, 270 U. S. 568, 576-577. (Citations omitted.)
It is unquestioned that the Tucker Act cases assigned to the Court of Claims,
The balance of the court‘s jurisdiction to render final judgments may likewise be assimilated to the traditional business of courts generally. Thus the court has been empowered to render accountings,38 to decide if debts39 or penalties40 are due the United States, and to determine the liability of the United States for patent or copyright infringement41 and for other specially designated torts.42 In addition, it has been given jurisdiction to review, on issues of law including the existence of substantial evidence, decisions of the Indian Claims Commission.43 Each of these cases, like those under the Tucker Act, is contested, is concrete, and admits of a decree of a sufficiently conclusive character. See Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, 240-241.
The same may undoubtedly be said of the customs jurisdiction vested in the Court of Customs and Patent Appeals by
Doubt has been expressed, however, about the jurisdiction conferred by
The latter provision was evidently instrumental in prompting a decision of this Court, at a time when review of Patent Office determinations was vested in the Court of Appeals for the District of Columbia, that the ruling called for by the statute was not of a judicial character. Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693, 699. That is the most that the Postum holding can be taken to stand for, as United States v. Duell, 172 U. S. 576, 588-589, had upheld the judicial nature of the review in all other respects.45 And the continuing vitality of the decision even to this extent has been seriously weakened if not extinguished by the subsequent holding in Hoover Co. v. Coe, 325 U. S. 79, 88, sustaining the justiciability of the alternative remedy by civil action even though the Court deemed “the effect of adjudication in equity the same as that of decision on appeal.” See Kurland and Wolfson, Supreme Court Review of the Court of Customs and Patent Appeals: Patent Office and Tariff Commission Cases, 18 G. W. L. Rev. 192, 194-198 (1950).
It may still be true that Congress has given to the equity proceeding a greater preclusive effect than that accorded to decisions of the Court of Customs and Patent Appeals.46 Even so, that circumstance alone is insufficient to make those decisions nonjudicial. Tutun v. United States, 270 U. S. 568, decided by the same Court as Postum and not there questioned, is controlling authority. For the Court there held that a naturalization proceeding in a Federal District Court was a “case” within the meaning of
Mr. Justice Brandeis, the author of the Tutun opinion, had also prepared the Court‘s opinion in United States v. Ness, 245 U. S. 319, which upheld the Government‘s right to seek denaturalization even upon grounds known to and
The decision in Tutun, coming after Ness, draws the patent and trademark jurisdiction now exercised by the Court of Customs and Patent Appeals fully within the category of cases or controversies. So much was recognized in Tutun itself, 270 U. S., at 578, where Mr. Justice Brandeis observed:
“If a certificate is procured when the prescribed qualifications have no existence in fact, it may be cancelled by suit. ‘It is in this respect,’ as stated in Johannessen v. United States, 225 U. S. 227, 238, ‘closely analogous to a public grant of land (Rev. Stat., § 2289, etc.,) or of the exclusive right to make, use and vend a new and useful invention (Rev. Stat., § 4883, etc.).‘” (Emphasis added.)
Like naturalization proceedings in a District Court, appeals from Patent Office decisions under
X.
We turn finally to the more difficult questions raised by the jurisdiction vested in the Court of Customs and Patent Appeals by
“There is in this district, no division of powers between the general and state governments. Congress has the entire control over the district for every purpose of government; and it is reasonable to suppose, that in organizing a judicial department here, all judicial power necessary for the purposes of government would be vested in the courts of justice.”
Thus those limitations implicit in the rubric “case or controversy” that spring from the Framers’ anxiety not to intrude unduly upon the general jurisdiction of state courts, see Madison‘s Notes of the Debates, in II Farrand, Records of the Federal Convention (1911), 45-46, need have no application in the District. The national courts here may, consistently with those limitations, perform any of the local functions elsewhere performed by state courts.54
But those are not the only limitations embodied in Article III‘s restriction of judicial power to cases or con-
The jurisdictional statutes in issue, § 337 of the Tariff Act of 1930 and
It does not follow, however, from the invalidity, actual or potential, of these heads of jurisdiction, that either the Court of Claims or the Court of Customs and Patent Appeals must relinquish entitlement to recognition as an Article III court. They are not tribunals, as are for example the Interstate Commerce Commission or the Federal Trade Commission, a substantial and integrаl part of whose business is nonjudicial.
The Congress that enacted the assignment statute with its accompanying declarations was apprised of the possibility that a re-examination of the Bakelite and Williams decisions might lead to disallowance of some of these courts’ jurisdiction. See 99 Cong. Rec. 8944 (1953) (remarks of Senator Gore); 104 Cong. Rec. 17549 (1958) (remarks of Senator Talmadge). Nevertheless it chose to pass the statute. We think with it that, if necessary, the particular offensive jurisdiction, and not the courts, would fall.
Since the Court of Claims and the Court of Customs and Patent Appeals are courts created under
That recognition suffices to dispose of the present cases. For it cаn hardly be contended that the specialized functions of these judges deprive them of capacity, as a matter of due process of law, to sit in judgment upon the staple business of the District Courts and Courts of Appeals. Whether they should be given such assignments may be and has been a proper subject for congressional debate, e. g., 62 Cong. Rec. 190-191, 207-209 (1921), but once legislatively resolved it can scarcely rise to the dignity of a constitutional question. To be sure, a judge of specialized experience may at first need to devote extra time and energy to familiarize himself with criminal, labor relations, or other cases beyond his accustomed ken. But to elevate this temporary disadvantage into a constitutional disability would be tantamount to suggesting that the President may never appoint to the
The judgments of the Courts of Appeals are
Affirmed.
MR. JUSTICE FRANKFURTER took no part in the decision of this case.
MR. JUSTICE WHITE took no part in the consideration or decision of this case.
MR. JUSTICE CLARK, with whom THE CHIEF JUSTICE joins, concurring in the result.
I cannot agree to the unnecessary overruling of Ex parte Bakelite Corp., 279 U. S. 438 (1929), and Williams v. United States, 289 U. S. 553 (1933). Both were unanimous opinions by most distinguished Courts,1 headed in the Bakelite case by Chief Justice Taft and in Williams by Chief Justice Hughes.
Long before Glidden v. Zdanok was filed, the Congress had declared the Court of Claims “to be a court established under
It is true that Congress still makes legislative references to the court, averaging some 10 a year. The acceptance of jurisdiction of either executive or legislative references calling for advisory opinions has never been honored by
Likewise I find that the Court of Customs and Patent Appeals has been an Article III court since 1958. It was created by the Congress in 1909 to exercise exclusive appellate jurisdiction over customs cases. Payne-Aldrich Tariff Act of Aug. 5, 1909, 36 Stat. 11, 105-108. At that time these cases were reviewed by Circuit Courts of Appeals—clearly of
As I have indicated, supra, the handling of the tariff references—numbering only 6 in 40 years—is not an Article III court function. The Congress has declared
I see nothing in the argument that the 1953 and 1958 Acts so changed the character of these courts as to require new presidential appointments. Congress was merely renouncing its power to terminate the functions or reduce the tenure or salary of the judges of the courts. Much more drastic changes have been made without reappointment.5 And there is no significance to the fact that Judge Jackson, who presided over the Lurk trial, was not in active status in 1958 when Congress declared his court to be an Article III court. He remained in office as a judge of that court even though retired, cf. Booth v. United States, 291 U. S. 339 (1934), and his judgeship was controlled by any act concerning the jurisdiction of that court or the status of its judges.
I would affirm.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.
The decision in these cases has nothing to do with the character, ability, or qualification of the individuals who sat on assignment on the Court of Appeals in No. 242 and
Prior to today‘s decision the distinction between the two courts had been clear and unmistakable. By
Mr. Justice Van Devanter in Ex parte Bakelite marked the line between the Court of Claims and the Court of
“Those established under the specific power given in section 2 of Article III are called constitutional courts. They share in the exercise of the judicial power defined in that section, can be invested with no other jurisdiction, and have judges who hold office during good behavior, with no power in Congress to provide otherwise. On the other hand, those created by Congress in the exertion of other powers are called legislative courts. Their functions always are directed to the execution of one or more of such powers and are prescribed by Congress independently of section 2 of Article III; and their judges hold for such term as Congress prescribes, whether it be a fixed period of years or during good behavior.” Id., at 449.
My Brother HARLAN emphasizes that both Judge Madden of the Court of Claims and Judge Jackson of the Court of Customs and Patent Appeals “enjoy statutory assurance of tenure and compensation“; and so they do. But that statement reveals one basic difference between an Article III judge and an Article I judge. The latter‘s tenure is statutory and statutory only; Article I contains no guarantee that the judges of Article I courts have life appointments. Nor does it provide that their salaries may not be reduced during their term of office. On the other hand, the tenure of an Article III judge is during “good behaviour“; moreover, Article III provides that its judges shall have a compensation that “shall not be diminished during their Continuance in Office.” See O‘Malley v. Woodrough, 307 U.S. 277. To repeat, there is not a word in Article I giving its courts such protection in tenure or in salary. A constitutional amendment would be necessary to supply Article I judges with the guaran-
The importance of these provisions to the independence of the judiciary needs no argument. Hamilton stated the entire case in The Federalist No. 79 (Lodge ed. 1908), pp. 491-493:
“Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, a power over a man‘s subsistence amounts to a power over his will. And we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good government in every State, have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head. Some of these indeed have declared that permanent salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention accordingly has provided that the judges of
the United States ‘shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.’ “This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. . . .
“This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges.
“The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and
disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges.”
We should say here what was said in Toth v. Quarles, 350 U.S. 11, 17:
“. . . the Constitution does not provide life tenure for those performing judicial functions in military trials. They are appointed by military commanders and may be removed at will. Nor does the Constitution protect their salaries as it does judicial salaries. Strides have been made toward making courts-martial less subject to the will of the executive department which appoints, supervises and ultimately controls them. But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals.”
Tenure that is guaranteed by the Constitution is a badge of a judge of an Article III court. The argument that mere statutory tenure is sufficient for judges of Article III courts was authoritatively answered in Ex parte Bakelite Corp., supra, at 459-460:
“. . . the argument is fallacious. It mistakenly assumes that whether a court is of one class or the other depends on the intention of Congress, whereas the true test lies in the power under which the court was created and in the jurisdiction conferred. Nor has there been any settled practice on the part of Congress which gives special significance to the absence or presence of a provision respecting the tenure of judges. This may be illustrated by two citations. The same Congress that created the Court of Customs Appeals made provision for five additional circuit judges and declared that they should
hold their offices during good behavior; and yet the status of the judges was the same as it would have been had that declaration been omitted. In creating courts for some of the Territories Congress failed to include a provision fixing the tenure of the judges; but the courts became legislative courts just as if such a provision had been included.” (Italics added.)
Congress could make members of the Interstate Commerce Commission lifetime appointees. Yet I suppose no one would go so far as to say that a member of the Interstate Commerce Commission could be assigned to sit on the District Court or on the Court of Appeals. But if any agency member is disqualified, why is a member of another Article I tribunal, viz., the Court of Claims or the Court of Customs and Patent Appeals, qualified? No distinction can be drawn based on the functions performed by the Interstate Commerce Commission and those performed by the other two legislative tribunals. In each case some adjudicatory functions are performed.4 Though the judicial functions of the Interstate Commerce Commission are as distinct as those of the Court of Claims, they nevertheless derive from Article I; and they are functions that Congress can exercise directly or delegate to an agency. Williams v. United States, supra, pp. 567-571. To make the present decision turn on whether the Court of Claims and the Court of Customs and Patent Appeals perform “judicial” functions is to adopt a false standard. The manner in which the majority reasons exposes the fallacy.
The majority says that once the United States consents to be sued all problems of “justiciability” are satisfied; and
As Mr. Justice Brandeis made clear in Tutun v. United States, 270 U.S. 568, 576-577, an administrative remedy may be “judicial.” The question here is different; it is whether the procedures utilized by the tribunal must comport with those set forth in the Bill of Rights and in the body of the Constitution. Yet who would maintain that in an administrative action for damages a jury trial was necessary?
Judges of the Article III courts work by standards and procedures which are either specified in the Bill of Rights or supplied by well-known historic precedents. Article III courts are law courts, equity courts, and admiralty courts5—all specifically named in Article III. They sit
to determine “cases” or “controversies.” But Article I courts have no such restrictions. They need not be confined to “cases” or “controversies” but can dispense legislative largesse. See United States v. Tillamooks, 329 U.S. 40; 341 U.S. 48. Their decisions may affect vital interests; yet like legislative bodies, zoning commissions, and other administrative bodies they need not observe the same standards of due process required in trials of Article III “cases” or “controversies.” See Bi-Metallic Co. v. Colorado, 239 U.S. 441. That is what Chief Justice Marshall meant when he said in American Ins. Co. v. Canter, 1 Pet. 511, 545-546, that an Article I court (in that case a territorial court) could make its adjudications without regard to the limitations of Article III. On the other hand, as the Court in O‘Donoghue v. United States, supra, at 546, observed, Article III courts could not be endowed with the administrative and legislative powers (or with the power to render advisory opinions) which Article I tribunals or agencies exercise.
In other words, the question, apart from the constitutional guarantee of tenure and the provision against diminution of salary, concerns the functions of the particular tribunal. Article III courts have prescribed for them constitutional standards some of which are in the Bill of Rights, while some (as for example those concerning bills of attainder and ex post facto laws) are in the body of the Constitution itself. Article I courts, on the other hand, are agencies of the legislative or executive branch. Thus while Article III courts of law must sit with a jury in suits where the value in controversy exceeds $20, the Court of Claims—an Article I court—is not so confinеd by the Seventh Amendment. The claims which
The judicial functions exercised by Article III courts cannot be performed by Congress nor delegated to agencies under its supervision and control.6 The bill of
attainder is banned by
“Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.”
Moreover, when an Article III court of law acts, there is a precise procedure that must be followed:
“An accused in court must be tried by an impartial jury, has a right to be represented by counsel, he must be clearly informed of the charge against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be compelled to incriminate himself, he cannot twice be put in jeopardy for the same offense, and even after conviction no cruel and unusual punishment can be inflicted upon him.” Id., at 317-318.
Neither of these limitations is germane to litigation in the Court of Claims or in the Court of Customs and Patent Appeals. Those courts, moreover, exercise no criminal jurisdiction, no admiralty jurisdiction, no equity jurisdiction.
As noted, the advisory opinion is beyond the capacity of Article III courts to render. Muskrat v. United States, 219 U.S. 346. Yet it is part and parcel of the function of legislative tribunals.7
Thus I cannot say, as some do, that the distinction between the two kinds of courts is a “matter of lаnguage.”8 The majority over and again emphasizes the declaration by Congress that each of the courts in question is an Article III court. It seems that the majority tries to gain momentum for its decision from those congressional declarations. This Court, however, is the expositor of the meaning of the Constitution, as Marbury v. Madison, 1 Cranch 137, held; and a congressional enactment in the field of Article III is entitled to no greater weight than in other areas. The declarations by Congress that these legislative tribunals are Article III
An appointment is made by the President and confirmed by the Senate in light of the duties of the particular office. Men eminently qualified to sit on Article I tribunals or agencies are not picked or confirmed in light of their qualifications to preside at jury trials or to process on appeal the myriad of constitutional and procedural problems involved in Article III “cases” or “controversies.” A President who sent a name to the Senate for the Interstate Commerce Commission or Federal Trade Commission might never dream of entrusting the nominee with the powers of an Article III judge. The tasks are so different, the responsibilities and the qualifications so diverse that it is difficult for one who knows the federal system to see how in the world of practical affairs these offices are interchangeable.
In the Senate debate on the Court of Customs Appeals, Senator Cummins stated that the judges who were to man it were to become tariff “experts” whose judicial business would be “confined to the matter of the duties on imports.” 44 Cong. Rec. 4185. Senator McCumber, who spoke for the Committee, emphasized the technical nature of the work of those judges and the unique specialization of their work.
“The law governing the development of the human intellect is such that constant study of a particular question necessarily broadens and expands and intensifies and deepens the mind on that particular sub-
Could there be any doubt that the late John J. Parker, rejected by the Senate for this Court, would have been confirmed for one of these Article I courts?
It is said that Congress could separate law and equity and create federal judges who, though Article III judges, sit entirely on the equity side. If Congress can do that, it is said that Congress can divide up all judicial power as it chooses and by making tenure permanent allow judges to be assigned from an Article I to an Article III court. The fact that Article III judicial power may be so divided as to produce judges with no experience in the trial of jury cases or in the review of them on appeal is no excuse for allowing legislative judges to be imported into the important fields that Article III preserves and that are partly safeguarded by the Bill of Rights and partly represented by ancient admiralty practice10 and equity procedures. Federal judges named to Article III courts are picked in light of the functions entrusted to them. No one knows whether a President would have appointed to an Article III court a man he named to an Article I court.
My view is that we subtly undermine the constitutional system when we treat federal judges as fungible. If members of the Court of Claims and of the Court of Cus-
In sum, judges who do not perform Article III functions, who do not enjoy constitutional tenure and whose salaries are not constitutionally protected against diminution during their term of office cannot be Article III judges.
Judges who perform “judicial” functions on Article I courts do not adjudicate “cases” or “controversies” in the sense of Article III. They are not bound by the requirements of the
Judges who sit on Article I courts are chosen for administrative or allied skills, not for their qualifications to sit in cases involving the vast interests of life, liberty, or property for whose protection the Bill of Rights and the other guarantees in the main body of the Constitution, including the ban on bills of attainder and ex post facto laws, were designed. Judges who might be confirmed for an Article I court might never pass muster for the onerous and life-or-death duties of Article III judges.
For these reasons I would reverse the judgments below.