Section 1: Judicial Power, Courts, Judges

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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 suprem...

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Organization of Courts, Tenure, and Compensation of Judges
One Supreme Court
Inferior Courts
Abolition of Courts
Compensation
Diminution of Salaries
Courts of Specialized Jurisdiction
Legislative Courts
Power of Congress Over Legislative Courts
Review of Legislative Courts by Supreme Court
The "Public Rights" Distinction
Constitutional Status of the Court of Claims and the Court of Customs and Patent Appeals
Status of Courts of the District of Columbia
Bankruptcy Courts
Agency Adjudication
Noncourt Entities in the Judicial Branch
Judicial Power
Characteristics and Attributes of Judicial Power
"Shall Be Vested"
Finality of Judgment as an Attribute of Judicial Power
Award of Execution
Ancillary Powers of Federal Courts
The Contempt Power
Categories of Contempt
The Act of 1789
An Inherent Power
First Amendment Limitations on the Contempt Power
Due Process Limitations on Contempt Power: Right to Notice and to a Hearing versus Summary Punishment
Due Process Limitations on Contempt Power: Right to Jury Trial
Due Process Limitations on Contempt Powers: Impartial Tribunal
Contempt by Disobedience of Orders
Contempt Power in Aid of Administrative Power
Sanctions Other Than Contempt
Power to Issue Writs: The Act of 1789
Common Law Powers of District of Columbia Courts
Habeas Corpus: Congressional and Judicial Control
Habeas Corpus: The Process of the Writ
Congressional Limitation of the Injunctive Power
Injunctions Under the Emergency Price Control Act of 1942
The Rule-Making Power and Powers Over Process
Limitations to This Power
Appointment of Referees, Masters, and Special Aids
Power to Admit and Disbar Attorneys


Organization of Courts, Tenure, and Compensation of Judges



The Constitution is almost completely silent concerning the organization of the federal judiciary. "That there should be a national judiciary was readily accepted by all."[1] But whether it was to consist of one high court at the apex of a federal judicial system or a high court exercising appellate jurisdiction over state courts that would initially hear all but a minor fraction of cases raising national issues was a matter of considerable controversy.[2]The Virginia Plan provided for a "National judiciary [to] be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature ...."[3] In the Committee of the Whole, the proposition "that a national judiciary be established" was unanimously adopted,[4] but the clause "to consist of One supreme tribunal, and of one or more inferior tribunals"[5] was first agreed to, then reconsidered, and the provision for inferior tribunals stricken out, it being argued that state courts could adequately adjudicate all necessary matters while the supreme tribunal would protect the national interest and assure uniformity.[6] Wilson and Madison thereupon moved to authorize Congress "to appoint inferior tribunals,"[7] which carried the implication that Congress could in its discretion either designate the state courts to hear federal cases or create federal courts. The word "appoint" was adopted and over the course of the Convention changed into phrasing that suggests something of an obligation on Congress to establish inferior federal courts.[8]

The "good behavior" clause excited no controversy,[9] while the only substantial dispute with regard to denying Congress the power to intimidate judges through actual or threatened reduction of salaries came on Madison's motion to bar increases as well as decreases.[10]

One Supreme Court



The Convention left up to Congress decision on the size and composition of the Supreme Court, the time and place for sitting, its internal organization, save for the reference to the Chief Justice in the impeachment provision,[11] and other matters. These details Congress filled up in the Judiciary act of 1789, one of the seminal statutes of the United States.[12] By the Act, the Court was made to consist of a Chief Justice and five Associate Justices.[13] The number was gradually increased until it reached a total of ten under the act of March 3, 1863.[14] As one of the Reconstruction Congress' restrictions on President Andrew Johnson, the number was reduced to seven as vacancies should occur.[15] The number actually never fell below eight before the end of Johnson's term, and Congress thereupon made the number nine.[16]

Proposals have been made at various times for an organization of the Court into sections or divisions. No authoritative judicial expression is available, although Chief Justice Hughes in a letter to Senator Wheeler in 1937 expressed doubts concerning the validity of such a device and stated that "the Constitution does not appear to authorize two or more Supreme Courts functioning in effect as separate courts."[17]

Congress has also determined the time and place of sessions of the Court. It utilized this power once in 1801 to change its terms so that for fourteen months the Court did not convene, so as to forestall a constitutional attack on the repeal of the Judiciary Act of 1801.[18]

Inferior Courts



Congress also acted in the Judiciary Act of 1789 to create inferior courts. Thirteen district courts were constituted to have four sessions annually,[19] and three circuit courts were established. The circuit courts were to consist of two Supreme Court justices each and one of the district judges, and were to meet twice annually in the various districts comprising the circuit.[20] This system had substantial faults in operation, not the least of which was the burden imposed on the Justices, who were required to travel thousands of miles each year under bad conditions.[21] Despite numerous efforts to change this system, it persisted, except for one brief period, until 1891.[22] Since then, the federal judicial system has consisted of district courts with original jurisdiction, intermediate appellate courts, and the Supreme Court.

Abolition of Courts



That Congress "may from time to time ordain and establish" inferior courts would seem to imply that the system may be reoriented from time to time and that Congress is not restricted to the status quo but may expand and contract the units of the system. But if the judges are to have life tenure what is to be done with them when the system is contracted? Unfortunately, the first exercise of the power occurred in a highly politicized situation, and no definite answer emerged. By the Judiciary Act of February 13, 1801,[23] passed in the closing weeks of the Adams Administration, the districts were reorganized, and six circuit courts consisting of three circuit judges each were created. Adams filled the positions with deserving Federalists, and upon coming to power the Jeffersonians set in motion plans to repeal the Act, which were carried out.[24] No provision was made for the displaced judges, apparently under the theory that if there were no courts there could be no judges to sit on them.[25] The validity of the repeal was questioned in Stuart v. Laird,[26] where Justice Paterson scarely noticed the argument in rejecting it.

Not until 1913 did Congress again utilize its power to abolish a federal court, this time the unfortunate Commerce Court, which had disappointed the expectations of most of its friends.[27] But this time Congress provided for the redistribution of the Commerce Court judges among the circuit courts as well as a transfer of its jurisdiction to the district courts.

Compensation

Diminution of Salaries



"The Compensation Clause has its roots in the longstanding Anglo-American tradition of an independent Judiciary. A Judiciary free from control by the Executive and the Legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government."[28] Thus, once a salary figure has gone into effect, Congress may not reduce it nor rescind any part of an increase, although prior to the time of its effectiveness Congress may repeal a promised increase. This decision was rendered in the context of a statutory salary plan for all federal officers and employees under which increases went automatically into effect on a specified date. Four years running, Congress interdicted the pay increases, but in two instances the increases had become effective, raising the barrier of this clause.[29]

Also implicating this clause was a Depression-era appropriations act reducing "the salaries and retired pay of all judges (except judges whose compensation may not, under the Constitution, be diminished during their continuance in office)," by a fixed amount. While this provision presented no questions of constitutionality, it did require an interpretation as to which judges were excepted. Judges in the District of Columbia were held protected by Article III,[30] while, on the other hand, salaries of the judges of the Court of Claims, that being a legislative court, were held subject to the reduction.[31]

In Evans v. Gore,[32] the Court invalidated the application of the income tax law to a federal judge, over the strong dissent of Justice Holmes, who was joined by Justice Brandeis. This ruling was extended, in Miles v. Graham,[33] to exempt the salary of a judge of the Court of Claims appointed subsequent to the enactment of the taxing act. Evans v. Gore was disapproved, and Miles v. Graham was in effect overruled in O'Malley v. Woodrough,[34]where the Court upheld section 22 of the Revenue Act of 1932, which extended the application of the income tax to salaries of judges taking office after June 6, 1932. Such a tax was regarded neither as an unconstitutional diminution of the compensation of judges nor as an encroachment on the independence of the judiciary.[35] To subject judges who take office after a stipulated date to a nondiscriminatory tax laid generally on an income, said the Court "is merely to recognize that judges are also citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering."[36]

Formally overruling Evans v. Gore, the Court in United States v. Hatter reaffirmed the principle that judges should "share the tax burdens borne by all citizens."[37] "[T]he potential threats to judicial independence that underlie [the Compensation Clause] cannot justify a special judicial exemption from a commonly shared tax."[38] The Medicare tax, extended to all federal employees in 1982, is such a non-discriminatory tax that may be applied to federal judges, the Court held. The 1983 extension of a Social Security tax to then-sitting judges was "a different matter," however, because the judges were required to participate while almost all other federal employees were given a choice about participation.[39]Congress did not cure the constitutional violation by a subsequent enactment that raised judges' salaries by an amount greater than the amount of Social Security taxes that they were required to pay.[40]

Courts of Specialized Jurisdiction



By virtue of its power "to ordain and establish" courts, Congress has occasionally created courts under Article III to exercise a specialized jurisdiction. These tribunals are like other Article III courts in that they exercise "the judicial power of the United States," and only that power, that their judges must be appointed by the President and the Senate and must hold office during good behavior subject to removal by impeachment only, and that the compensation of their judges cannot be diminished during their continuance in office. One example of such courts was the Commerce Court created by the Mann-Elkins Act of 1910,[41] which was given exclusive jurisdiction of all cases to enforce orders of the Interstate Commerce Commission except those involving money penalties and criminal punishment, of cases brought to enjoin, annul, or set aside orders of the Commission, of cases brought under the act of 1903 to prevent unjust discriminations, and of all mandamus proceedings authorized by the act of 1903. This court actually functioned for less than three years, being abolished in 1913, as was mentioned above.

Another court of specialized jurisdiction, but created for a limited time only, was the Emergency Court of Appeals organized by the Emergency Price Control Act of January 30, 1942.[42] By the terms of the statute, this court consisted of three or more judges designated by the Chief Justice from the judges of the Untied States district courts and circuit courts of appeal. The Court was vested with jurisdiction and powers of a district court to hear appeals filed within thirty days against denials of protests by the Price Administrator and with exclusive jurisdiction to set aside regulations, orders, or price schedules, in whole or in part, or to remand the proceeding, but the court was tightly constrained in its treatment of regulations. There was interplay with the district courts, which were charged with authority to enforce orders issued under the Act, although only the Emergency Court had jurisdiction to determine the validity of such orders.[43]

Other specialized courts are the Court of Appeals for the Federal Circuit, which is in many respects like the geographic circuits. Created in 1982,[44] this court has exclusive jurisdiction to hear appeals from the United States Court of Federal Claims, from the Federal Merit System Protection Board, the Court of International Trade, the Patent Office in patent and trademark cases, and in various contract and tort cases. The Court of International Trade, which began life as the Board of General Appraisers, became the United States Customs Court in 1926, and was declared an Article III court in 1956, came to its present form and name in 1980.[45] The Judicial Panel on Multidistrict Litigation, staffed by federal judges from other courts, is authorized to transfer actions pending in different districts to a single district for trial.[46]

To facilitate the gathering of foreign intelligence information, through electronic surveillance, search and seizure, as well as other means, Congress authorized in 1978 a special court, composed of seven regular federal judges appointed by the Chief Justice, to receive applications from the United States and to issue warrants for intelligence activities.[47]

Even greater specialization was provided by the special court created by the Ethics in Government Act;[48] the court was charged, upon the request of the Attorney General, with appointing an independent counsel to investigate and prosecute charges of illegality in the Executive Branch. The court also had certain supervisory powers over the independent counsel.

Legislative Courts



Legislative courts, so-called because they are created by Congress in pursuance of its general legislative powers, have comprised a significant part of the federal judiciary.[49] The distinction between constitutional courts and legislative courts was first made in American Ins. Co. v. Canter,[50] which involved the question of the admiralty jurisdiction of the territorial court of Florida, the judges of which were limited to a four-year term in office. Said Chief Justice Marshall for the Court: "These courts, then, are not constitutional courts, in which the judicial power conferred by the Constitution on the general government, can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3rd article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States."[51] The Court went on to hold that admiralty jurisdiction can be exercised in the States only in those courts which are established in pursuance of Article III, but that the same limitation does not apply to the territorial courts, for in legislating for them "Congress exercises the combined powers of the general, and of a state government."[52]

Canter postulated a simple proposition: "Constitutional courts exercise the judicial power described in Art. III of the Constitution; legislative courts do not and cannot."[53] A two-fold difficulty attended this proposition, however. Admiralty jurisdiction is included within the "judicial power of the United States" specifically in Article III, requiring an explanation how this territorial court could receive and exercise it. Second, if territorial courts could not exercise Article III power, how might their decisions be subjected to appellate review in the Supreme Court, or indeed in other Article III courts, which could exercise only Article III judicial power?[54] Moreover, if in fact some "judicial power" may be devolved upon courts not having the constitutional security of tenure and salary, what prevents Congress from undermining those values intended to be protected by Article III's guarantees by giving jurisdiction to non-protected entities that, being subjected to influence, would be bent to the popular will?

Attempts to explain or to rationalize the predicament or to provide a principled limiting point have from Canter to the present resulted in "frequently arcane distinctions and confusing precedents" spelled out in cases comprising "landmarks on a judicial 'darkling plain' where ignorant armies have clashed by night."[55] Nonetheless, Article I courts are quite usual entities in our judicial system.[56]

Power of Congress Over Legislative Courts



In creating legislative courts, Congress is not limited by the restrictions imposed in Article III concerning tenure during good behavior and the prohibition against diminution of salaries. Congress may limit tenure to a term of years, as it has done in acts creating territorial courts and the Tax Court, and it may subject the judges of legislative courts to removal by the President,[57] or it may reduce their salaries during their terms.[58] Similarly, it follows that Congress can vest in legislative courts nonjudicial functions of a legislative or advisory nature and deprive their judgments of finality. Thus, in Gordon v. United States,[59] there was no objection to the power of the Secretary of the Treasury and Congress to revise or suspend the early judgments of the Court of Claims. Likewise, in United States v. Ferreira,[60] the Court sustained the act conferring powers on the Florida territorial court to examine claims rising under the Spanish treaty and to report its decisions and the evidence on which they were based to the Secretary of the Treasury for subsequent action. "A power of this description," it was said, "may constitutionally be conferred on a Secretary as well as on a commissioner. But [it] is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States."[61]

Review of Legislative Courts by Supreme Court



Chief Justice Taney's view, that would have been expressed in Gordon,[62] that the judgments of legislative courts could never be reviewed by the Supreme Court, was tacitly rejected in De Groot v. United States,[63] in which the Court took jurisdiction from a final judgment of the Court of Claims. Since the decision in this case, the authority of the Court to exercise appellate jurisdiction over legislative courts has turned not upon the nature or status of such courts but rather upon the nature of the proceeding before the lower court and the finality of its judgment. The Supreme Court will neither review the administrative proceedings of legislative courts nor entertain appeals from the advisory or interlocutory decrees of such a body.[64] But in proceedings before a legislative court which are judicial in nature, admit of a final judgment, and involve the performance of judicial functions and therefore the exercise of judicial power, the Court may be vested with appellate jurisdiction.[65]

The "Public Rights" Distinction



A major delineation of the distinction between Article I courts and Article III courts was attempted in Murray's Lessee v. Hoboken Land & Improvement Co.[66] At issue was a summary procedure, without benefit of the courts, for the collection by the United States of moneys claimed to be due from one of its customs collectors. It was objected that the assessment and collection was a judicial act carried out by non-judicial officers and thus invalid under Article III. Accepting that the acts complained of were judicial, the Court nonetheless sustained the act by distinguishing between any act, "which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty," which, in other words, is inherently judicial, and other acts which Congress may vest in courts or in other agencies. "[T]here are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper."[67] The distinction was between those acts which historically had been determined by courts and those which historically had been resolved by executive or legislative acts and comprehended those matters that arose between the government and others. Thus, Article I courts "may be created as special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it. The mode of determining matters of this class is completely within congressional control."[68]

Among the matters susceptible of judicial determination, but not requiring it, are claims against the United States,[69] the disposal of public lands and claims arising therefrom,[70]questions concerning membership in the Indian tribes,[71] and questions arising out of the administration of the customs and internal revenue laws.[72] Other courts similar to territorial courts, such as consular courts and military courts martial, may be justified on like grounds.[73]

The "public rights" distinction appears today to be a description without a significant distinction. Thus, in Crowell v. Benson,[74] the Court approved an administrative scheme for determination, subject to judicial review, of maritime employee compensation claims, although it acknowledged that the case involved "one of private right, that is, of the liability of one individual to another under the law as defined."[75] This scheme was permissible, the Court said, because in cases arising out of congressional statutes, an administrative tribunal could make findings of fact and render an initial decision on legal and constitutional questions, as long as there is adequate review in a constitutional court.[76] The "essential attributes" of decision must remain in an Article III court, but so long as it does, Congress may utilize administrative decision-makers in those private rights cases that arise in the context of a comprehensive federal statutory scheme.[77] That the "public rights" distinction marked a dividing line between those matters that could be assigned to legislative courts and to administrative agencies and those matters "of private right" that could not be was re- asserted in Marathon, but there was much the Court plurality did not explain.[78]

The Court continued to waver with respect to the importance to decision-making of the public rights/private rights distinction. In two cases following Marathon, it rejected the distinction as "a bright line test," and instead focused on "substance"-i.e., on the extent to which the particular grant of jurisdiction to an Article I court threatened judicial integrity and separation of powers principles.[79] Nonetheless, the Court indicated that the distinction may be an appropriate starting point for analysis. Thus, the fact that private rights traditionally at the core of Article III jurisdiction are at stake leads the Court to "searching" inquiry as to whether Congress is encroaching inordinately on judicial functions, while the concern is not so great where "public" rights are involved.[80]

However, in a subsequent case, the distinction was pronounced determinative not only of the issue whether a matter could be referred to a non-Article III tribunal but whether Congress could dispense with civil jury trials.[81] In so doing, however, the Court vitiated much of the core content of "private" rights as a concept and left resolution of the central issue to a balancing test. That is, "public" rights are, strictly speaking, those in which the cause of action inheres in or lies against the Federal Government in its sovereign capacity, the understanding since Murray's Lessee. However, to accommodate Crowell v. Benson, Atlas Roofing, and similar cases, seemingly private causes of action between private parties will also be deemed "public" rights, when Congress, acting for a valid legislative purpose pursuant to its Article I powers, fashions a cause of action that is analogous to a common- law claim and so closely integrates it into a public regulatory scheme that it becomes a matter appropriate for agency resolution with limited involvement by the Article III judiciary.[82] Nonetheless, despite its fixing by Congress as a "core proceeding" suitable for an Article I bankruptcy court adjudication, the Court held the particular cause of action at issue was a private issue as to which the parties were entitled to a civil jury trial (and necessarily which Congress could not commit to an Article I tribunal, save perhaps through the consent of the parties.[83]

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



Though the Supreme Court for a long while accepted the Court of Claims as an Article III court,[84] it later ruled that court to be an Article I court and its judges without constitutional protection of tenure and salary.[85] Then, in the 1950s, Congress statutorily declared that the Court of Claims, the Customs Court, and the Court of Customs and Patent Appeals were Article III courts,[86] a questionable act under the standards the Court had utilized to determine whether courts were legislative or constitutional.[87] But in Glidden Co. v. Zdanok,[88] five of seven participating Justices united to find that indeed the Court of Claims and the Court of Customs and Patent Appeals, at least, were constitutional courts and their judges eligible to participate in judicial business in other constitutional courts. Three Justices would have overruled Bakelite and Williams and would have held that the courts in question were constitutional courts.[89] Whether a court is an Article III tribunal depends largely upon whether legislation establishing it is in harmony with the limitations of that Article, specifically, "whether . . . its business is the federal business there specified and its judges and judgments are allowed the independence there expressly or impliedly made requisite." When a court is created "to carry into effect [federal] powers . . . over subject matter . . . and not over localities," a presumption arises that the status of such a tribunal is constitutional rather than legislative.[90] The other four Justices expressly declared that Bakelite and Williams should not be overruled,[91] but two of them thought the two courts had attained constitutional status by virtue of the clear manifestation of congressional intent expressed in the legislation.[92] Two Justices maintained that both courts remained legislative tribunals.[93] While the result is clear, no standard for pronouncing a court legislative rather than constitutional has obtained the adherence of a majority of the Court.[94]

Status of Courts of the District of Columbia



Through a long course of decisions, the courts of the District of Columbia were regarded as legislative courts upon which Congress could impose nonjudicial functions. In Butterworth v. United States ex rel. Hoe,[95] the Court sustained an act of Congress which conferred revisory powers upon the Supreme Court of the District in patent appeals and made its decisions binding only upon the Commissioner of Patents. Similarly, the Court later sustained the authority of Congress to vest revisory powers in the same court over rates fixed by a public utilities commission.[96] Not long after this the same rule was applied to the revisory powers of the District Supreme Court over orders of the Federal Radio Commission.[97] These rulings were based on the assumption, express or implied, that the courts of the District were legislative courts, created by Congress in pursuance of its plenary power to govern the District of Columbia. In dictum in Ex parte Bakelite Corp.,[98] while reviewing the history and analyzing the nature of the legislative courts, the Court stated that the courts of the District were legislative courts.

In 1933, nevertheless, the Court, abandoning all previous dicta on the subject, found the courts of the District of Columbia to be constitutional courts exercising judicial power of the United States,[99] with the result that it assumed the task of reconciling the performance of nonjudicial functions by such courts with the rule that constitutional courts can exercise only the judicial power of the United States. This task was accomplished by the argument that in establishing courts for the District, Congress is performing dual functions in pursuance of two distinct powers, the power to constitute tribunals inferior to the Supreme Court, and its plenary and exclusive power to legislate for the District of Columbia. However, Article III, § 1, limits this latter power with respect to tenure and compensation, but not with regard to vesting legislative and administrative powers in such courts. Subject to the guarantees of personal liberty in the Constitution, "Congress has as much power to vest courts of the District with a variety of jurisdiction and powers as a State legislature has in conferring jurisdiction on its courts."[100]

In 1970, Congress formally recognized two sets of courts in the District, federal courts, district courts and a Court of Appeals for the District of Columbia, created pursuant to Article III, and courts equivalent to state and territorial courts, created pursuant to Article I.[101] Congress' action was sustained in Palmore v. United States.[102] When legislating for the District, the Court held, Congress has the power of a local legislature and may, pursuant to Article I, § 8, cl. 17, vest jurisdiction to hear matters of local law and local concerns in courts not having Article III characteristics. The defendant's claim that he was denied his constitutional right to be tried before an Article III judge was denied on the basis that it was not absolutely necessary that every proceeding in which a charge, claim, or defense based on an act of Congress or a law made under its authority need be conducted in an Article III court. State courts, after all, could hear cases involving federal law as could territorial and military courts. "[T]he requirements of Article III, which are applicable where laws of national applicability and affairs of national concern are at stake, must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment."[103]

Bankruptcy Courts



After extended and lengthy debate, Congress in 1978 revised the bankruptcy act and created as an "adjunct" of the district courts a bankruptcy court composed of judges, vested with practically all the judicial power of the United States, serving for 14-year terms, subject to removal for cause by the judicial councils of the circuits, and with salaries subject to statutory change.[104] The bankruptcy courts were given jurisdiction over all civil proceedings arising under the bankruptcy code or arising in or related to bankruptcy cases, with review in Article III courts under a clearly erroneous standard. In a case in which a claim was made against a company for breaches of contract and warranty, purely state law claims, the Court held unconstitutional the conferral upon judges not having the Article III security of tenure and compensation of jurisdiction to hear state law claims of traditional common law actions of the kind existing at the time of the drafting of the Constitution.[105] While the holding was extremely narrow, a plurality of the Court sought to rationalize and limit the Court's jurisprudence of Article I courts. According to the plurality, as a fundamental principle of separation of powers, the judicial power of the United States must be exercised by courts having the attributes prescribed in Article III. Congress may not evade the constitutional order by allocating this judicial power to courts whose judges lack security of tenure and compensation. Only in three narrowly circumscribed instances may judicial power be distributed outside the Article III framework: in territories and the District of Columbia, that is, geographical areas in which no State operated as sovereign and Congress exercised the general powers of government; courts martial, that is, the establishment of courts under a constitutional grant of power historically understood as giving the political branches extraordinary control over the precise subject matter; and the adjudication of "public rights," that is, the litigation of certain matters that historically were reserved to the political branches of government and that were between the government and the individual.[106] In bankruptcy legislation and litigation not involving any of these exceptions, the plurality would have held, the judicial power to process bankruptcy cases could not be assigned to the tribunals created by the act.[107]

The dissent argued that, while on its face Article III provided for exclusivity in assigning judicial power to Article III entities, the history since Canter belied that simplicity. Rather, the precedents clearly indicated that there is no difference in principle between the work that Congress may assign to an Article I court and that which must be given to an Article III court. Despite this, the dissent contended that Congress did not possess plenary discretion in choosing between the two systems; rather, in evaluating whether jurisdiction was properly reposed in an Article I court, the Supreme Court must balance the values of Article III against both the strength of the interest Congress sought to further by its Article I investiture and the extent to which Article III values were undermined by the congressional action. This balancing would afford the Court, the dissent believed, the power to prevent Congress, were it moved to do so, from transferring jurisdiction in order to emasculate the constitutional courts of the United States.[108]

Again, no majority could be marshaled behind a principled discussion of the reasons for and the limitation upon the creation of legislative courts, not that a majority opinion, or even a unanimous one, would necessarily presage the settling of the law.[109] But the breadth of the various opinions not only left unclear the degree of discretion left in Congress to restructure the bankruptcy courts, but also placed in issue the constitutionality of other legislative efforts to establish adjudicative systems outside a scheme involving the creation of life-tenured judges.[110]

Congress responded to Marathon by enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984.[111] Bankruptcy courts were maintained as Article I entities, and overall their powers as courts were not notably diminished. However, Congress did establish a division between "core proceedings," which bankruptcy courts could hear and determine, subject to lenient review, and other proceedings, which, though initially heard and decided by bankruptcy courts, could be reviewed de novo in the district court at the behest of any party, unless the parties consented to bankruptcy-court jurisdiction in the same manner as core proceedings. A safety valve was included, permitting the district court to withdraw any proceeding from the bankruptcy court on cause shown.[112] Notice that in Granfinanciera, S.A. v. Nordberg,[113] the Court found that a cause of action founded on state law, though denominated a core proceeding, was a private right.

Agency Adjudication



The Court in two decisions following Marathon involving legislative courts clearly suggested that the majority was now closer to the balancing approach of the Marathon dissenters than to the position of the Marathon plurality that Congress may confer judicial power on legislative courts in only very limited circumstances. Subsequently, however, Granfinanciera, S.A. v. Nordberg,[114] a reversion to the fundamentality of Marathon, with an opinion by the same author, Justice Brennan, cast some doubt on this proposition. In Thomas v. Union Carbide Agric. Products Co.,[115] the Court upheld a provision of the pesticide law requiring binding arbitration, with limited judicial review , of compensation due one registrant by another for mandatory sharing of registration information, the right arising from federal statutory law. And in CFTC v. Schor,[116] the Court upheld conferral on the agency of authority, in a reparations adjudication under the Act, also to adjudicate "counterclaims" arising out of the same transaction, including those arising under state common law. Neither the fact that the pesticide case involved a dispute between two private parties nor the fact that the CFTC was empowered to decide claims traditionally adjudicated under state law proved decisive to the Court's analysis.

In rejecting a "formalistic" approach and analyzing the "substance" of the provision at issue in Union Carbide, Justice O'Connor's opinion for the Court pointed to several considerations.[117] The right to compensation was not a purely private right, but "bears many of the characteristics of a 'public' right," since Congress was "authoriz[ing] an agency administering a complex regulatory scheme to allocate costs and benefits among voluntary participants in the program."[118] Also important was not "unduly constrict[ing] Congress in its ability to take needed and innovative action pursuant to its Article I powers;"[119] arbitration was "a pragmatic solution to [a] difficult problem." The limited nature of judicial review was seen as a plus in the sense that "no unwilling defendant is subjected to judicial enforcement power;" on the other hand, availability of limited judicial review of the arbitrator's findings and determination for fraud, misconduct, or misrepresentation, and for due process violations, preserved the "'appropriate exercise of the judicial function."'[120] Thus, the Court concluded, Congress in exercise of Article I powers "may create a seemingly 'private' right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary."[121]

In Schor, the Court described Art. III, § 1 as serving a dual purpose: to protect the role of an independent judiciary and to safeguard the right of litigants to have claims decided by judges free from potential domination by the other branches of government. A litigant's Article III right is not absolute, the Court determined, but may be waived. This the litigant had done by submitting to the administrative law judge's jurisdiction rather than independently seeking relief as he was entitled to and then objecting only after adverse rulings on the merits. But the institutional integrity claim, not being personal, could not be waived, and the Court reached the merits. The threat to institutional independence was "weighed" by reference to "a number of factors." The conferral on the CFTC of pendent jurisdiction over common law counterclaims was seen as more narrowly confined than was the grant to bankruptcy courts at issue in Marathon, and as more closely resembling the "model" approved in Crowell v. Benson. The CFTC's jurisdiction, unlike that of bankruptcy courts, was said to be confined to "a particularized area of the law;" the agency's orders were enforceable only by order of a district court,[122] and reviewable under a less deferential standard, with legal rulings being subject to de novo review; and the agency was not empowered, as had been the bankruptcy courts, to exercise "all ordinary powers of district courts."

Granfinanciera followed analysis different from that in Schor, although it preserved Union Carbide through its concept of "public rights." State law and other legal claims founded on private rights could not be remitted to non-Article III tribunals for adjudication unless Congress in creating an integrated public regulatory scheme has so taken up the right as to transform it. It may not simply relabel a private right and place it into the regulatory scheme. The Court is hazy with respect to whether the right itself must be a creature of federal statutory action. The general descriptive language suggests that, but in its determination whether the right at issue in the case, the recovery of preferential or fraudulent transfers in the context of a bankruptcy proceeding, is a "private right," the Court seemingly goes beyond this point. Though a statutory interest, the actions were identical to state-law contract claims brought by a bankrupt corporation to augment the estate.[123] Schor was distinguished solely on the waiver part of the decision, relating to the individual interest, without considering the part of the opinion deciding the institutional interest on the merits and utilizing a balancing test.[124]

Thus, while the Court has made some progress in reconciling its growing line of disparate cases, doctrinal harmony has not yet been achieved.

Noncourt Entities in the Judicial Branch



Passing on the constitutionality of the establishment of the Sentencing Commission as an "independent" body in the judicial branch, the Court acknowledged that the Commission is not a court and does not exercise judicial power. Rather, its function is to promulgate binding sentencing guidelines for federal courts. It acts, therefore, legislatively, and its membership of seven is composed of three judges and three nonjudges. But the standard of constitutionality, the Court held, is whether the entity exercises powers that are more appropriately performed by another branch or that undermine the integrity of the judiciary. Because the imposition of sentences is a function traditionally exercised within congressionally prescribed limits by federal judges, the Court found the functions of the Commission could be located in the judicial branch. Nor did performance of its functions contribute to a weakening of the judiciary, or an aggrandizement of power either, in any meaningful way, the Court observed.[125]

Judicial Power

Characteristics and Attributes of Judicial Power



Judicial power is the power "of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision."[126] It is "the right to determine actual controversies arising between diverse litigants, duly instituted in courts of proper jurisdiction."[127] Although the terms "judicial power" and "jurisdiction" are frequently used interchangeably and jurisdiction is defined as the power to hear and determine the subject matter in controversy between parties to a suit[128] or as the "power to entertain the suit, consider the merits and render a binding decision thereon,"[129] the cases and commentary support, indeed require, a distinction between the two concepts. Jurisdiction is the authority of a court to exercise judicial power in a specific case and is, of course, a prerequisite to the exercise of judicial power, which is the totality of powers a court exercises when it assumes jurisdiction and hears and decides a case.[130]

Judicial power confers on federal courts the power to decide a case, to render a judgment conclusively resolving a case. Judicial power is the authority to render dispositive judgments, and Congress violates the separation of powers when it purports to alter final judgments of Article III courts.[131] After the Court had unexpectedly fixed on a shorter statute of limitations to file certain securities actions than that believed to be the time in many jurisdictions, and after several suits that had been filed later than the determined limitations had been dismissed and had become final because they were not appealed, Congress enacted a statute which, while not changing the limitations period prospectively, retroactively extended the time for suits dismissed and provided for the reopening of the final judgments rendered in the dismissals of suits.

Holding the statute invalid, the Court held it impermissible for Congress to disturb a final judgment. "Having achieved finality, . . . a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was."[132] On the other hand, the Court ruled in Miller v. French[133] that the Prison Litigation Reform Act's automatic stay of ongoing injunctions remedying violations of prisoners' rights did not amount to an unconstitutional legislative revision of a final judgment. Rather, the automatic stay merely alters "the prospective effect" of injunctions, and it is well established that such prospective relief "remains subject to alteration due to changes in the underlying law."[134]

Included within the general power to decide cases are the ancillary powers of courts to punish for contempts of their authority,[135] to issue writs in aid of jurisdiction when authorized by statute,[136] to make rules governing their process in the absence of statutory authorizations or prohibitions,[137] to order their own process so as to prevent abuse, oppression, and injustice, and to protect their own jurisdiction and officers in the protection of property in custody of law,[138] to appoint masters in chancery, referees, auditors, and other investigators,[139] and to admit and disbar attorneys.[140]

"Shall Be Vested"



The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words "shall be vested" in § 1. Whereas all the judicial power of the United States is vested in the Supreme Court and the inferior federal courts created by Congress, neither has ever been vested with all the jurisdiction which could be granted and, Justice Story to the contrary,[141] the Constitution has not been read to mandate Congress to confer the entire jurisdiction it might.[142] Thus, except for the original jurisdiction of the Supreme Court, which flows directly from the Constitution, two prerequisites to jurisdiction must be present: first, the Constitution must have given the courts the capacity to receive it,[143] and, second, an act of Congress must have conferred it.[144] The fact that federal courts are of limited jurisdiction means that litigants in them must affirmatively establish that jurisdiction exists and may not confer nonexistent jurisdiction by consent or conduct.[145]

Finality of Judgment as an Attribute of Judicial Power



Since 1792, the federal courts have emphasized finality of judgment as an essential attribute of judicial power. In that year, Congress authorized Revolutionary War veterans to file pension claims in circuit courts of the United States, directed the judges to certify to the Secretary of War the degree of a claimant's disability and their opinion with regard to the proper percentage of monthly pay to be awarded, and empowered the Secretary to withhold judicially certified claimants from the pension list if he suspected "imposition or mistake."[146] The Justices then on circuit almost immediately forwarded objections to the President, contending that the statute was unconstitutional because the judicial power was constitutionally committed to a separate department and the duties imposed by the act were not judicial, and because the subjection of a court's opinions to revision or conrol by an officer of the executive or the legislature was not authorized by the Constitution.[147]Attorney General Randolph, upon the refusal of the circuit courts to act under the new statute, filed a motion for mandamus in the Supreme Court to direct the Circuit Court in Pennsylvania to proceed on a petition filed by one Hayburn seeking a pension. Although the Court heard argument, it put off decision until the next term, presumably because Congress was already acting to delete the objectionable features of the act, and upon enactment of a new law the Court dismissed the action.[148] Hayburn's Case has been since followed, so that the Court has rejected all efforts to give it and the lower federal courts jurisdiction over cases in which judgment would have been subject to exective or legislative revision.[149] Thus, in a 1948 case, the Court held that an order of the Civil Aeronautics Board denying to one citizen air carrier and granting to another a certificate of convenience and necessity for an overseas and foreign air route was not reviewable. Such an order was subject to review and confirmance or revision by the President, and the Court decided it could not review the discretion exercised by him in that situation; the lower court had thought the matter could be handled by permitting presidential review of the order after judicial review, but this the Court rejected. "[I]f the President may completely disregard the judgment of the court, it would be only because it is one the courts were not authorized to render. Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government,"[150] More recently, the Court avoided a similar situation by a close construction of a statute.[151]

Award of Execution



- The adherence of the Court to this proposition, however, has not extended to a rigid rule formulated by Chief Justice Taney, given its fullest expression in a post-humously-published opinion.[152] In Gordon v. United States,[153] the Court refused to hear an appeal from a decision of the Court of Claims; the act establishing the Court of Claims provided for appeals to the Supreme Court, after which judgments in favor of claimants were to be referred to the Secretary of the Treasury for payments out of the general appropriation for payment of private claims. But the act also provided that no funds should be paid out of the Treasury for any claims “till after an appropriation therefor shall be estimated by the Secretary of the Treasury.”[154] The opinion of the Court merely stated that the implication of power in the executive officer and in Congress to revise all decisions of the Court of Claims requiring payment of money denied that court the judicial power from the exercise of which “alone” appeals could be taken to the Supreme Court.[155]

In his posthumously-published opinion, Chief Justice Taney, because the judgment of the Court of Claims and the Supreme Court depended for execution upon future action of the Secretary and of Congress, regarded any such judgment as nothing more than a certificate of opinion and in no sense a judicial judgment. Congress could not therefore authorize appeals to the Supreme Court in a case where its judicial power could not be exercised, where its judgment would not be final and conclusive upon the parties, and where processes of execution were not awarded to carry it into effect. Taney then proceeded to enunciate a rule which was rigorously applied until 1933: the award of execution is a part and an essential part of every judgment passed by a court exercising judicial powers and no decision was a legal judgment without an award of execution.[156] The rule was most significant in barring the lower federal courts from hearing proceedings for declaratory judgments[157] and in denying appellate jurisdiction in the Supreme Court from declaratory proceedings in state courts.[158] But, in 1927, the Court began backing away from its absolute insistence upon an award of execution. Unanimously holding that a declaratory judgment in a state court was res judicata in a subsequent proceeding in federal court, the Court admitted that "[w]hile ordinarily a case or judicial controversy results in a judgment requiring award of process of execution to carry it into effect, such relief is not an indispensable adjunct to the exercise of the judicial function."[159] Then, in 1933, the Court interred the award-of-execution rule in its rigid form and accepted an appeal from a state court in a declaratory proceeding.[160] Finality of judgment, however, remains the rule in determination of what is judicial power without regard to the demise of Chief Justice Taney's formulation.

Ancillary Powers of Federal Courts

The Contempt Power

Categories of Contempt



Crucial to an understanding of the history of the law governing the courts' powers of contempt is an awareness of the various kinds of contempt. With a few notable exceptions,[161] the Court has consistently distinguished between criminal and civil contempts on the basis of the vindication of the authority of the courts on the one hand and the preservation and enforcement of the rights of the parties on the other. A civil contempt has been traditionally viewed as the refusal of a person in a civil case to obey a mandatory order. It is incomplete in nature, may be purged by obedience to the court order, and does not involve a sentence for a definite period of time. The classic criminal contempt is one where the act of contempt has been completed, punishment is imposed to vindicate the authority of the court, and a person cannot by subsequent action purge himself of such contempt.[162] In International Union, UMW v. Bagwell,[163] the Court formulated a new test for drawing the distinction between civil and criminal contempts, which has important consequences for the procedural rights to be accorded those cited. Henceforth, the imposition of non-compensatory contempt fines for the violation of any complex injunction will require criminal proceedings. This case, as have so many, involved the imposition of large fines (here, $52 million) upon a union in a strike situation for violations of an elaborate court injunction restraining union activity during the strike. The Court was vague with regard to the standards for determining when a court order is "complex" and thus requires the protection of criminal proceedings.[164] Much prior doctrine remains, however, as in the distinction between remedial sanctions, which are civil, and punitive sanctions, which are criminal, and between in-court and out-of-court contempts. In the case of Shillitani v. United States,[165] the defendants were sentenced by their respective District Courts for two years imprisonment for contempt of court; the sentence contained a purge clause providing for the unconditional release of the contemnors upon agreeing to testify before a grand jury. On appeal, the Supreme Court held that the defendants were in civil contempt, notwithstanding their sentence for a definite period of time, on the grounds that the test for determining whether the contempt is civil or criminal is what the court primarily seeks to accomplish by imposing sentence.[166] Here, the purpose was to obtain answers to the questions for the grand jury, and the court provided for the defendants' release upon compliance; whereas, "a criminal contempt proceeding would be characterized by the imposition of an unconditional sentence for punishment or deterence."[167] The issue of whether a certain contempt is civil or criminal can be of great importance as demonstrated in the dictum of Ex parte Grossman,[168] in which Chief Justice Taft, while holding for the Court on the main issue that the President may pardon a criminal contempt, noted that he may not pardon a civil contempt. Notwithstanding the importance of distinguishing between the two, there have been instances where defendants have been charged with both civil and criminal contempt for the same act.[169]

A second but more subtle distinction, with regard to the categories of contempt, is the difference between direct and indirect contempt-whether civil or criminal in nature. Direct contempt results when the contumacious act is committed "in the presence of the Court or so near thereto as to obstruct the administration of justice;"[170] indirect contempt is behavior which the Court did not itself witness.[171] The nature of the contumacious act, i.e., whether it is direct or indirect, is important because it determines the appropriate procedure for charging the contemnor. As will be evidenced in the following discussion, the history of the contempt powers of the American judiciary is marked by two trends: a shrinking of the court's power to punish a person summarily and a multiplying of the due process requirements that must otherwise be met when finding an individual to be in contempt.[172]

The Act of 1789



- The summary power of the courts of the United States to punish contempts of their authority had its origin in the law and practice of England where disobedience of court orders was regarded as contempt of the King himself and attachment was a prerogative process derived from presumed contempt of the sovereign.[173] By the latter part of the eighteenth century, summary power to punish was extended to all contempts whether committed in or out of court.[174] In the United States, the Judiciary Act of 1789 in section 17[175] conferred power on all courts of the United States "to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same." The only limitation placed on this power was that summary attachment was made a negation of all other modes of punishment. The abuse of this extensive power led, following the unsuccessful impeachment of Judge James H. Peck of the Federal District Court of Missouri, to the passage of the Act of 1831 limiting the power of the federal courts to punish contempts to mis-behavior in the presence of the courts, "or so near thereto as to obstruct the administration of justice," to the misbehavior of officers of courts in their official capacity, and to disobedience or resistance to any lawful writ, process or order of the court.[176]

An Inherent Power



The validity of the act of 1831 was sustained forty-three years later in Ex parte Robinson,[177] in which Justice Field for the Court expounded principles full of potentialities for conflict. He declared: "The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power." Expressing doubts concerning the validity of the act as to the Supreme Court, he declared, however, that there could be no question of its validity as applied to the lower courts on the ground that they are created by Congress and that their "powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction."[178] With the passage of time, later adjudications, especially after 1890, came to place more emphasis on the inherent power of courts to punish contempts than upon the power of Congress to regulate summary attachment.

By 1911, the Court was saying that the contempt power must be exercised by a court without referring the issues of fact or law to another tribunal or to a jury in the same tribunal.[179] In Michaelson v. United States,[180] the Court intentionally placed a narrow interpretation upon those sections of the Clayton Act[181] relating to punishment for contempt of court by disobedience of injunctions in labor disputes. The sections in question provided for a jury upon the demand of the accused in contempt cases in which the acts committed in violation of district court orders also constituted a crime under the laws of the United States or of those of the State where they were committed. Although Justice Sutherland reaffirmed earlier rulings establishing the authority of Congress to regulate the contempt power, he went on to qualify this authority and declared that "the attributes which inhere in the power [to punish contempt] and are inseparable from it can neither be abrogated nor rendered practically inoperative." The Court mentioned specifically "the power to deal summarily with contempt committed in the presence of the courts or so near thereto as to obstruct the administration of justice," and the power to enforce mandatory decrees by coercive means.[182] This latter power, to enforce, the Court has held, includes the authority to appoint private counsel to prosecute a criminal contempt.[183] While the contempt power may be inherent, it is not unlimited. In Spallone v. United States,[184] the Court held that a district court had abused its discretion by imposing contempt sanctions on individual members of a city council for refusing to vote to implement a consent decree remedying housing discrimination by the city. The proper remedy, the Court indicated, was to proceed first with contempt sanctions against the city, and only if that course failed should it proceed against the council members individually.

First Amendment Limitations on the Contempt Power



The phrase "in the presence of the Court or so near thereto as to obstruct the administration of justice" was interpreted so broadly in Toledo Newspaper Co. v. United States[185] as to uphold the action of a district court judge in punishing a newspaper for contempt for publishing spirited editorials and cartoons on questions at issue in a contest between a street railway company and the public over rates. A majority of the Court held that the test to be applied in determining the obstruction of the administration of justice is not the actual obstruction resulting from an act, but "the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty." Similarly, the test whether a particular act is an attempt to influence or intimidate a court is not the influence exerted upon the mind of a particular judge but "the reasonable tendency of the acts done to influence or bring about the baleful result . . . without reference to the consideration of how far they may have been without influence in a particular case."[186] In Craig v. Hecht,[187] these criteria were applied to sustain the imprisonment of the comptroller of New York City for writing and publishing a letter to a public service commissioner which criticized the action of a United States district judge in receivership proceedings. The decision in the Toledo Newspaper case, however, did not follow earlier decisions interpreting the act of 1831 and was grounded on historical error. For these reasons, it was reversed in Nye v. United States,[188] and the theory of constructive contempt based on the "reasonable tendency" rule was rejected in a proceeding wherein defendants in a civil suit, by persuasion and the use of liquor, induced a plaintiff feeble in mind and body to ask for dismissal of the suit he had brought against them. The events in the episode occurred more than 100 miles from where the court was sitting and were held not to put the persons responsible for them in contempt of court. Although Nye v. United States was exclusively a case of statutory construction, it was significant from a constitutional point of view because its reasoning was contrary to that of earlier cases narrowly construing the act of 1831 and asserting broad inherent powers of courts to punish contempts independently of, and contrary to, congressional regulation of this power. Bridges v. California[189] was noteworthy for the dictum of the majority that the contempt power of all courts, federal as well as state, is limited by the guaranty of the First Amendment against interference with freedom of speech or of the press.[190]

It is now clearly establihsed that courtroom conduct to be punishable as contempt "must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil." Craig v. Harney, 331 U.S. 367 , 376 (1947); In re Little, 404 U.S. 553 , 555 (1972).

A series of cases involving highly publicized trials and much news media attention and exploitation,[191] however, caused the Court to suggest that the contempt and other powers of trial courts should be utilized to stem the flow of publicity before it can taint a trial. Thus, Justice Clark, speaking for the majority in Sheppard v. Maxwell,[192] noted that "[i]f publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but pallatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. Neither prosecutors, counsel for defense, the accused, witness, court staff nor law enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures." Though the regulation the Justice had in mind was presumably to be of the parties and related persons rather than of the press, the potential for conflict with the First Amendment is obvious as well as is the necessity for protection of the equally important right to a fair trial.[193]

Due Process Limitations on Contempt Power: Right to Notice and to a Hearing versus Summary Punishment



Included among the notable cases raising questions concerning the power of a trial judge to punish summarily for alleged misbehavior in the course of a trial is Ex parte Terry,[194] decided in 1888. Terry had been jailed by the United States Circuit Court of California for assaulting in its presence a United States marshal. The Supreme Court denied his petition for a writ of habeas corpus. In Cooke v. United States,[195] however, the Court remanded for further proceedings a judgment sentencing to jail an attorney and his client for presenting the judge a letter which impugned his impartiality with respect to their case, still pending before him. Distinguishing the case from that of Terry, Chief Justice Taft, speaking for the unanimous Court, said: "The important distinction . . . is that this contempt was not in open court.... To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court's dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law."[196]

As to the timeliness of summary punishment, the Court at first construed Rule 42(a) of the Federal Rules of Criminal Procedure, which was designed to afford judges clearer guidelines as to the exercise of their contempt power, in Sacher v. United States,[197] as to allow "the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay [would] prejudice the trial.... [On the other hand,] if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power."[198] However, subsequently, interpreting the due process clause and thus binding both federal and state courts, the Court held that, although the trial judge may summarily and without notice or hearing punish contemptuous conduct committed in his presence and observed by him, if he does choose to wait until the conclusion of the proceeding he must afford the alleged contemnor at least reasonable notice of the specific charge and opportunity to be heard in his own defense. Apparently, a "full scale trial" is not contemplated.[199] observed that although its rule conceivably encourages a trial judge to proceed immediately rather than awaiting a calmer moment, "[s]ummary convictions during trials that are unwarranted by the facts will not be invulnerable to appellate review." Codispoti v. Pennsylvania, 418 U.S. 506 , 517 (1974).

Curbing the judge's power to consider conduct as occurring in his presence, the Court, in Harris v. United States,[200] held that summary contempt proceedings in aid of a grand jury probe, achieved through swearing the witness and repeating the grand jury's questions in the presence of the judge, did not constitute contempt "in the actual presence of the court" for purposes of Rule 42(a); rather, the absence of a disturbance in the court's proceedings or of the need to immediately vindicate the court's authority makes the witness' refusal to testify an offense punishable only after notice and a hearing.[201] Moreover, when it is not clear the judge was fully aware of the contemptuous behavior when it occurred, notwithstanding the fact it occurred during the trial, "a fair hearing would entail the opportunity to show that the version of the event related to the judge was inaccurate, misleading, or incomplete."[202]

Due Process Limitations on Contempt Power: Right to Jury Trial



Originally the right to a jury trial was not available in criminal contempt cases.[203] But in Cheff v. Schnackenberg,[204] it was held that when the punishment in a criminal contempt case in federal court is more than the sentence for a petty offense, the Court drew the traditional line at six months, a defendant is entitled to trial by jury. Although the ruling was made pursuant to the Supreme Court's supervisory powers and was thus inapplicable to state courts and presumably subject to legislative revision, two years later the Court held that the Constitution did require jury trials in criminal contempt cases in which the offense was more than a petty one.[205] Whether an offense is petty or not is determined by the maximum sentence authorized by the legislature or, in the absence of a statute, by the sentence actually imposed. Again the Court drew the line between petty offenses and more serious ones at six months imprisonment. Although this case involved an indirect criminal contempt, willful petitioning to admit to probate a will known to be falsely prepared, the majority in dictum indicated that even in cases of direct contempt a jury will be required in appropriate instances. "When a serious contempt is at issue, considerations of efficiency must give way to the more fundamental interest of ensuring the even-handed exercise of judicial power."[206] Presumably, there is no equivalent right to a jury trial in civil contempt cases,[207] although one could spend much more time in jail pursuant to a judgment of civil contempt than would be the case with most criminal contempts.[208] The Court has, however, expanded the right to jury trials in federal civil cases on nonconstitutional grounds.[209]

Due Process Limitations on Contempt Powers: Impartial Tribunal



In Cooke v. United States,[210] Chief Justice Taft uttered some cautionary words to guide trial judges in the utilization of their contempt powers. "The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course, where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place." Cornish v. United States, 299 F. 283, 285; Toledo Newspaper Co. v. United States, 237 F. 986, 988. "The case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows."

Sacher v. United States[211] grew out of a tempestuous trial of eleven Communist Party leaders in which Sacher and others were counsel for the defense. Upon the conviction of the defendants, the trail judge at once found counsel guilty of criminal contempt and imposed jail terms of up to six months. At issue directly was whether the contempt charged was one which the judge was authorized to determine for himself or whether it was one which under Rule 42(b) could only be passed upon by another judge and after notice and hearing, but behind this issue loomed the applicability and nature of due process requirements, in particular whether the defense attorneys were constitutionally entitled to trial before a different judge. A divided Court affirmed most of the convictions, set aside others, and denied that due process required a hearing before a different judge. "We hold that Rule 42 allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion, he may do so without extinguishing his power .... We are not unaware or unconcerned that persons identified with unpopular causes may find it difficult to enlist the counsel of their choice. But we think it must be ascribed to causes quite apart from fear of being held in contempt, for we think few effective lawyers would regard the tactics condemned here as either necessary or helpful to a successful defense. That such clients seem to have thought these tactics necessary is likely to contribute to the bar's reluctance to appear for them rather more than fear of contempt. But that there may be no misunderstanding, we make clear that this Court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. But it will not equate contempt with courage or insults with independence. It will also protect the processes of orderly trial, which is the supreme object of the lawyers calling."[212]

In Offutt v. United States,[213] acting under its supervisory powers over the lower federal courts, the Court set aside a criminal contempt conviction imposed on a lawyer after a trial marked by highly personal recriminations between the trial judge and the lawyer. In a situation in which the record revealed that the contumacious conduct was the product of both lack of self-restraint on the part of the contemnor and a reaction to the excessive zeal and personal animosity of the trial judge, the majority felt that any contempt trial must be held before another judge. This holding that when a judge becomes personally embroiled in the controversy with an accused he must defer trial of his contempt citation to another judge, founded on the Court's supervisory powers, was constitutionalized in Mayberry v. Pennsylvania,[214] in which a defendant acting as his own counsel engaged in quite personal abuse of the trial judge. The Court appeared to leave open the option of the trial judge to act immediately and summarily to quell contempt by citing and convicting an offender, thus empowering the judge to keep the trial going,[215] but if he should wait until the conclusion of the trial he must defer to another judge.

Contempt by Disobedience of Orders



Disobedience of injunctive orders, particularly in labor disputes, has been a fruitful source of cases dealing with contempt of court. In United States v. United Mine Workers,[216] the Court held that disobedience of a temporary restraining order issued for the purpose of maintaining existing conditions, pending the determination of the court's jurisdiction, is punishable as criminal contempt where the issue is not frivolous but substantial. Second, the Court held that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings, even though the statute under which the order is issued is unconstitutional.[217] Third, on the basis of United States v. Shipp,[218] it was held that violations of a court's order are punishable as criminal contempt even though the order is set aside on appeal as in excess of the court's jurisdiction or though the basic action has become moot. Finally, the Court held that conduct can amount to both civil and criminal contempt, and the same acts may justify a court in resorting to coercive and punitive measures, which may be imposed in a single proceeding.[219]

Contempt Power in Aid of Administrative Power



Proceedings to enforce the orders of administrative agencies and subpoenas issued by them to appear and produce testimony have become increasingly common since the leading case of ICC v. Brimson,[220] where it was held that the contempt power of the courts might by statutory authorization be utilized in aid of the Interstate Commerce Commission in enforcing compliance with its orders. In 1947 a proceeding to enforce a subpoena duces tecum issued by the Securities and Exchange Commission during the course of an investigation was ruled to be civil in character on the ground that the only sanction was a penalty designed to compel obedience. The Court then enunciated the principle that where a fine or imprisonment imposed on the contemnor is designed to coerce him to do what he has refused to do, the proceeding is one for civil contempt.[221] Notwithstanding the power of administrative agencies to cite an individual for contempt, however, such bodies must be acting within the authority that has been lawfully delegated to them.[222]

Frankfurter. For delegations of the subpoena power to administrative agencies and the use of judicial process to enforce them, see also McCrone v. United States, 307 U.S. 6 1 (1939); Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).

Sanctions Other Than Contempt



Long recognized by the courts as inherent powers are those authorities that are necessary to the administration of the judicial system itself, of which the contempt power just discussed is only the most controversial.[223] Courts, as an independent and coequal branch of government, once they are created and their jurisdiction established, have the authority to do what courts have traditionally done in order to accomplish their assigned tasks.[224] Of course, these inherent powers may be limited by statutes and by rules,[225] but, just as was noted in the discussion of the same issue with respect to contempt, the Court asserts both the power to act in areas not covered by statutes and rules and the power to act unless Congress has not only provided regulation of the exercise of the power but also unmistakably enunciated its intention to limit the inherent powers.[226]

Thus, in the cited Chambers case, the Court upheld the imposition of monetary sanctions against a litigant and his attorney for bad-faith litigation conduct in a diversity case. Some of the conduct was covered by a federal statute and several sanction provisions of the Federal Rules of Civil Procedure, but some was not, and the Court held that, absent a showing that Congress had intended to limit the courts, they could utilize inherent powers to sanction for the entire course of conduct, including shifting attorney fees, ordinarily against the American rule.[227] In another case, a party failed to comply with discovery orders and a court order concerning a schedule for filing briefs. The Supreme Court held that the attorney's fees statute did not allow assessment of such fees in that situation, but it remanded for consideration of sanctions under both the Federal Rule and the trial court's inherent powers, subject to a finding of bad faith.[228] But bad faith is not always required for the exercise of some inherent powers. Thus, courts may dismiss an action for an unexplained failure of the moving party to prosecute it.[229]

Power to Issue Writs: The Act of 1789



From the beginning of government under the Constitution of 1789, Congress has assumed, under the necessary and proper clause, its power to establish inferior courts, its power to regulate the jurisdiction of federal courts and the power to regulate the issuance of writs.[230]The Thirteenth section of the Judiciary Act of 1789 authorized the circuit courts to issue writs of prohibition to the district courts and the Supreme Court to issue such writs to the circuit courts. The Supreme Court was also empowered to issue writs of mandamus "in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."[231] Section 14 provided that all courts of the United States should "have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdiction, and agreeable to the principles and usages of law."[232] Although the Act of 1789 left the power over writs subject largely to the common law, it is significant as a reflection of the belief, in which the courts have on the whole concurred, that an act of Congress is necessary to confer judicial power to issue writs.[233]Whether Article III itself is an independent source of the power of federal courts to fashion equitable remedies for constitutional violations or whether such remedies must fit within congressionally authorized writs or procedures is often left unexplored. In Missouri v. Jenkins,[234] for example, the Court, rejecting a claim that a federal court exceeded judicial power under Article III by ordering local authorities to increase taxes to pay for desegregation remedies, declared that "a court order directing a local government body to levy its own taxes" is plainly a judicial act within the power of a federal court.[235] In the same case, the Court refused to rule on "the difficult constitutional issues" presented by the State's claim that the district court had exceeded its constitutional powers in a prior order directly raising taxes, instead ruling that this order had violated principles of comity.[236]

Common Law Powers of District of Columbia Courts



That portion of § 13 of the Judiciary Act of 1789 which authorized the Supreme Court to issue writs of mandamus in the exercise of its original jurisdiction was held invalid in Marbury v. Madison,[237] as an unconstitutional enlargement of the Supreme Court's original jurisdiction. After two more futile efforts to obtain a writ of mandamus, in cases in which the Court found that power to issue the writ had not been vested by statute in the courts of the United States except in aid of already existing jurisdiction,[238] a litigant was successful in Kendall v. United States ex rel. Stokes,[239] in finding a court that would take jurisdiction in a mandamus proceeding. This was the circuit court of the United States for the District of Columbia, which was held to have jurisdiction, on the theory that the common law, in force in Maryland when the cession of that part of the State that became the District of Columbia was made to the United States, remained in force in the District. At an early time, therefore, the federal courts established the rule that mandamus can be issued only when authorized by a constitutional statute and within the limits imposed by the common law and the separation of powers.[240]

Habeas Corpus: Congressional and Judicial Control



The writ of habeas corpus[241] has a special status because its suspension is forbidden, except in narrow circumstances, by Article I, § 9, cl. 2. The writ also has a venerable common law tradition, long antedating its recognition in the Judiciary Act of 1789,[1] as a means of "reliev[ing] detention by executive authorities without judicial trial." [2] Nowhere in the Constitution, however, is the power to issue the writ vested in the federal courts. Could it be that despite the suspension clause restriction Congress could suspend de facto the writ simply by declining to authorize its issuance? Is a statute needed to make the writ available or does the right to habeas corpus stem by implication from the suspension clause or from the grant of judicial power?[242]Since Chief Justice Marshall's opinion in Ex parte Bollman,[243] it has been generally accepted that "the power to award the writ by any of the courts of the United States, must be given by written law."[244] The suspension clause, Marshall explained, was an "injunction," an "obligation" to provide "efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted."[245] And so it has been understood since,[246] with a few judicial voices raised to suggest that what Congress could not do directly it could not do by omission.[247] But inasmuch as statutory authority has always existed authorizing the federal courts to grant the relief they deemed necessary under habeas corpus, the Court has never had to face the question.[248] In Felker v. Turpin,[249] the Court again passed up the opportunity to delineate Congress' permissive authority over habeas, finding that none of the provisions of the Antiterrorism and Effective Death Penalty Act[250] raised questions of constitutional import.

Justice Black's dissent, id. at 791, 798: "Habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by courts cannot in my judgment be constitutionally abridged by Executive or by Congress." And in Jones v. Cunningham, 371 U.S. 236 , 238 (1963), the Court said: "The habeas corpus jurisdictional statute implements the constitutional command that the writ of habeas corpus be made available." (Emphasis supplied).

Having determined that a statute was necessary before the federal courts had power to issue writs of habeas corpus, Chief Justice Marshall pointed to § 14 of the Judiciary Act of 1789 as containing the necessary authority.[251] As the Chief Justice read it, the authorization was limited to persons imprisoned under federal authority, and it was not until 1867, with two small exceptions,[252] that legislation specifically empowered federal courts to inquire into the imprisonment of persons under state authority.[253] Pursuant to this authorization, the Court expanded the use of the writ into a major instrument to reform procedural criminal law in federal and state jurisdictions.

Habeas Corpus: The Process of the Writ



A petition for a writ of habeas corpus is filed by or on behalf of a person in "custody," a concept which has been expanded so much that it is no longer restricted to actual physical detention in jail or prison.[254] The writ acts upon the custodian, not the prisoner, so the issue under the jurisdictional statute is whether the custodian is within the district court's jurisdiction.[3] Traditionally, the proceeding could not be used to secure an adjudication of a question which if determined in the petitioner's favor would not result in his immediate release, since a discharge from custody was the only function of the writ,[255] but this restraint too the Court has abandoned in an emphasis upon the statutory language directing the habeas court to "dispose of the matter as law and justice require."[256] Thus, even if a prisoner has been released from jail, the presence of collateral consequences flowing from his conviction gives the court jurisdiction to determine the constitutional validity of the conviction.[257]

Petitioners seeking federal habeas relief must first exhaust their state remedies, a limitation long settled in the case law and codified in 1948.[258] It is only required that prisoners once present their claims in state court, either on appeal or collateral attack, and they need not return time and again to raise their issues before coming to federal court.[259] While they were once required to petition the Supreme Court on certiorari to review directly their state convictions, prisoners have been relieved of this largely pointless exercise,[260] although if the Supreme Court has taken and decided a case its judgment is conclusive in habeas on all issues of fact or law actually adjudicated.[261] A federal prisoner in a § 2255 proceeding will file his motion in the court which sentenced him;[262] a state prisoner in a federal habeas action may file either in the district of the court in which he was sentenced or in the district in which he is in custody.[263]

Habeas corpus is not a substitute for an appeal.[264] It is not a method to test ordinary procedural errors at trial or violations of state law but only to challenge alleged errors which if established would go to make the entire detention unlawful under federal law.[265] If after appropriate proceedings, the habeas court finds that on the facts discovered and the law applied the prisoner is entitled to relief, it must grant it, ordinarily ordering the government to release the prisoner unless he is retried within a certain period.[266]

Congressional Limitation of the Injunctive Power



Although the speculations of some publicists and some judicial dicta[267] support the idea of an inherent power of the federal courts sitting in equity to issue injunctions independently of statutory limitations, neither the course taken by Congress nor the specific rulings of the Supreme Court support any such principle. Congress has repeatedly exercised its power to limit the use of the injunction in federal courts. The first limitation on the equity jurisdiction of the federal courts is to be found in § 16 of the Judiciary Act of 1789, which provided that no equity suit should be maintained where there was a full and adequate remedy at law. Although this provision did no more than declare a pre-existing rule long applied in chancery courts,[268] it did assert the power of Congress to regulate the equity powers of the federal courts. The Act of March 2, 1793,[269] prohibited the issuance of any injunction by any court of the United States to stay proceedings in state courts except where such injunctions may be authorized by any law relating to bankruptcy proceedings. In subsequent statutes, Congress prohibited the issuance of injunctions in the federal courts to restrain the collection of taxes,[270] provided for a three-judge court as a prerequisite to the issuance of injunctions to restrain the enforcement of state statutes for unconstitutionality,[271] for enjoining federal statutes for unconstitutionality,[272] and for enjoining orders of the Interstate Commerce Commission,[273] limited the power to issue injunctions restraining rate orders of state public utility commissions,[274] and the use of injunctions in labor disputes,[275] and placed a very rigid restriction on the power to enjoin orders of the Administrator under the Emergency Price Control Act.[276]

Perhaps pressing its powers further than prior legislation, Congress has enacted the Prison Litigation Reform Act of 1996.[277] Essentially, the law imposes a series of restrictions on judicial remedies in prison-conditions cases. Thus, courts may not issue prospective relief that extends beyond that necessary to correct the violation of a federal right that they have found, that is narrowly drawn, is the least intrusive, and that does not give attention to the adverse impact on public safety. Preliminary injunctive relief is limited by the same standards. Consent decrees may not be approved unless they are subject to the same conditions, meaning that the court must conduct a trial and find violations, thus cutting off consent decrees. If a decree was previously issued without regard to the standards now imposed, the defendant or intervenor is entitled to move to vacate it. No prospective relief is to last longer than two years if any party or intervenor so moves. Finally, a previously issued decree that does not conform to the new standards imposed by the Act is subject to termination upon the motion of the defendant or an intervenor. After a short period (30 or 60 days, depending on whether there is "good cause" for a 30-day extension), such a motion operates as an automatic stay of the prior decree pending the court's decision on the merits. The Court upheld the termination and automatic stay provisions in Miller v. French,[278] rejecting the contention that the automatic stay provision offends separation of powers principles by legislative revision of a final judgment. Rather, Congress merely established new standards for the enforcement of prospective relief, and the automatic stay provision "helps to implement the change in the law."[279] A number of constitutional challenges can be expected respecting Congress' power to limit federal judicial authority to remedy constitutional violations.

All of these restrictions have been sustained by the Supreme Court as constitutional and applied with varying degrees of thoroughness. The Court has made exceptions to the application of the prohibition against the stay of proceedings in state courts,[280] but it has on the whole adhered to the statute. The exceptions raise no constitutional issues, and the tendency has been alternately to contract and to expand the scope of the exceptions.[281]

In Duplex Printing Press v. Deering,[282] the Supreme Court placed a narrow construction upon the labor provisions of the Clayton Act and thereby contributed in part to the more extensive restriction by Congress on the use of injunctions in labor disputes in the Norris- LaGuardia Act of 1932, which has not only been declared constitutional[283] but has been applied liberally[284] and in such a manner as to repudiate the notion of an inherent power to issue injunctions contrary to statutory provisions.

Injunctions Under the Emergency Price Control Act of 1942



Lockerty v. Phillips[285]justifies the same conclusion. Here the validity of the special appeals procedure of the Emergency Price Control Act of 1942 was sustained. This act provided for a special Emergency Court of Appeals, which, subject to review by the Supreme Court, was given exclusive jurisdiction to determine the validity of regulations, orders, and price schedules issued by the Office of Price Administration. The Emergency Court and the Emergency Court alone was permitted to enjoin regulations or orders of OPA, and even it could enjoin such orders only after finding that the order was not in accordance with law or was arbitrary or capricious. The Emergency Court was expressly denied power to issue temporary restraining orders or interlocutory decrees, and in addition the effectiveness of any permanent injunction it might issue was to be postponed for thirty days. If review was sought in the Supreme Court by certiorari, effectiveness was to be postponed until final disposition. A unanimous Court, speaking through Chief Justice Stone, declared that there "is nothing in the Constitution which requires Congress to confer equity jurisdiction on any particular inferior federal court." All federal courts, other than the Supreme Court, it was asserted, derive their jurisdiction solely from the exercise of the authority to ordain and establish inferior courts conferred on Congress by Article III, § 1, of the Constitution. This power, which Congress is left free to exercise or not, was held to include the power "'of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good."'[286] Although the Court avoided passing upon the constitutionality of the prohibition against inter-locutory decrees, the language of the Court was otherwise broad enough to support it, as was the language of Yakus v. United States,[287]which sustained a different phase of the special procedure for appeals under the Emergency Price Control Act.[288]

The Rule-Making Power and Powers Over Process



Among the incidental powers of courts is that of making all necessary rules governing their process and practice and for the orderly conduct of their business.[289] However, this power too is derived from the statutes and cannot go beyond them. The landmark case is Wayman v. Southard,[290] which sustained the validity of the Process Acts of 1789 and 1792 as a valid exercise of authority under the necessary and proper clause. Although Chief Justice Marshall regarded the rule-making power as essentially legislative in nature, he ruled that Congress could delegate to the courts the power to vary minor regulations in the outlines marked out by the statute. Fifty-seven years later, in Fink v. O'Neil,[291] in which the United States sought to enforce by summary process the payment of a debt, the Supreme Court ruled that under the process acts the law of Wisconsin was the law of the United States, and hence the Government was required to bring a suit, obtain a judgment, and cause execution to issue. Justice Matthews for a unanimous Court declared that the courts have "no inherent authority to take any one of these steps, except as it may have been conferred by the legislative department; for they can exercise no jurisdiction, except as the law confers and limits it."[292] Conceding, in 1934, the limited competence of legislative bodies to establish a comprehensive system of court procedure, and acknowledging the inherent power of courts to regulate the conduct of their business, Congress authorized the Supreme Court to prescribe rules for the lower federal courts not inconsistent with the Constitution and statutes.[293] Their operation being restricted, in conformity with the proviso attached to the congressional authorization, to matters of pleading and practice, the Federal Rules of Civil Procedure thus judicially promulgated neither affect the substantive rights of litigants[294]nor alter the jurisdiction[295] of federal courts and the venue of actions therein[296] and, thus circumscribed, have been upheld as valid.

Limitations to This Power



The principal function of court rules is that of regulating the practice of courts as regards forms, the operation and effect of process, and the mode and time of proceedings. However, rules are sometimes employed to state in convenient form principles of substantive law previously established by statutes or decisions. But no such rule "can enlarge or restrict jurisdiction. Nor can a rule abrogate or modify the substantive law." This rule is applicable equally to courts of law, equity, and admiralty, to rules prescribed by the Supreme Court for the guidance of lower courts, and to rules "which lower courts make for their own guidance under authority conferred."[297] As incident to the judicial power, courts of the United States possess inherent authority to supervise the conduct of their officers, parties, witnesses, counsel, and jurors by self-preserving rules for the protection of the rights of litigants and the orderly administration of justice.[298]

The courts of the United States possess inherent equitable powers over their process to prevent abuse, oppression, and injustice, and to protect their jurisdiction and officers in the protection of property in the custody of law.[299] Such powers are said to be essential to and inherent in the organization of courts of justice.[300] The courts of the United States also possess inherent power to amend their records, correct the errors of the clerk or other court officers, and to rectify defects or omissions in their records even after the lapse of a term, subject, however, to the qualification that the power to amend records conveys no power to create a record or re-create one of which no evidence exists.[301]

Appointment of Referees, Masters, and Special Aids



The administration of insolvent enterprises, investigations into the reasonableness of public utility rates, and the performance of other judicial functions often require the special services of masters in chancery, referees, auditors, and other special aids. The practice of referring pending actions to a referee was held in Heckers v. Fowler[302] to be coequal with the organization of the federal courts. In the leading case of Ex parte Peterson,[303] a United States district court appointed an auditor with power to compel the attendance of witnesses and the production of testimony. The court authorized him to conduct a preliminary investigation of facts and file a report thereon for the purpose of simplifying the issues for the jury. This action was neither authorized nor prohibited by statute. In sustaining the action of the district judge, Justice Brandeis, speaking for the Court, declared: "Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties.... This power includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause."[304] The power to appoint auditors by federal courts sitting in equity has been exercised from their very beginning, and here it was held that this power is the same whether the court sits in law or equity.

Power to Admit and Disbar Attorneys



Subject to general statutory qualifications for attorneys, the power of the federal courts to admit and disbar attorneys rests on the common law from which it was originally derived. According to Chief Justice Taney, it was well settled by the common law that "it rests exclusively with the Court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed." Such power, he made clear, however, "is not an arbitrary and despotic one, to be exercised at the pleasure of the Court, or from passion, prejudice, or personal hostility; but it is the duty of the Court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the Court, as the right and dignity of the Court itself."[305] The Test-Oath Act of July 2, 1862, which purported to exclude former Confederates from the practice of law in the federal courts, was invalidated in Ex parte Garland.[306] In the course of his opinion for the Court, Justice Field discussed generally the power to admit and disbar attorneys. The exercise of such a power, he declared, is judicial power. The attorney is an officer of the court, and though Congress may prescribe qualifications for the practice of law in the federal courts, it may not do so in such a way as to inflict punishment contrary to the Constitution or to deprive a pardon of the President of its legal effect.[307]

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[1] M. FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES 79 (1913).

[2] The most complete account of the Convention's consideration of the judiciary is J. GOEBEL, ANTECEDENTS AND BEGINNINGS TO 1801, HISTORY OF THE SUPREME COURT OF THE UNITED STATES, VOL. 1 ch. 5 (1971).

[3] 1 M. Farrand, supra at 21-22. That this version might not possibly be an accurate copy, see 3 id. at 593-94.

[4] 1 id. at 95, 104.

[5] Id. at 95, 105. The words "One or more" were deleted the following day without recorded debate. Id. at 116, 119.

[6] Id. at 124-25.

[7] Madison's notes use the word "institute" in place of "appoint", id. at 125, but the latter appears in the Convention Journal, id. at 118, and in Yates' notes, id. at 127, and when the Convention took up the draft reported by the Committee of the Whole "appoint" is used even in Madison's notes. 2 id. at 38, 45.

[8] On offering their motion, Wilson and Madison "observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them." 1 id. at 125. The Committee on Detail provided for the vesting of judicial power in one Supreme Court "and in such inferior Courts as shall, when necessary, from time to time, be constituted by the legislature of the United States." 2 id. at 186. Its draft also authorized Congress "[t]o constitute tribunals inferior to the Supreme Court." Id. at 182. No debate is recorded when the Convention approved these two clauses, Id. at 315, 422-23, 428-30. The Committee on Style left the clause empowering Congress to "constitute" inferior tribunals as was, but it deleted "as shall, when necessary" from the Judiciary article, so that the judicial power was vested "in such inferior courts as Congress may from time to time"-and here deleted "constitute" and substituted the more forceful - "ordain and establish." Id. at 600.

[9] The provision was in the Virginia Plan and was approved throughout, 1 id. at 21.

[10] Id. at 121; 2 id. at 44-45, 429-430.

[11] Article I, § 3, cl. 6.

[12] Act of September 24, 1789, 1 Stat. 73. The authoritative works on the Act and its working and amendments are F. FRANKFURTER & J. LANDIS, THE BUSINESS OF THE SUPREME COURT (1928); Warren, New Light on the History of the Federal Judicial Act of 1789, 37 HARV. L. REV. 49 (1923); see also J. Goebel, supra at ch. 11.

[13] Act of September 24, 1789, 1 Stat. 73, § 1.

[14] 12 Stat. 794, § 1.

[15] Act of July 23, 1866, 14 Stat. 209, § 1.

[16] Act of April 10, 1869, 16 Stat. 44.

[17] Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judiciary Committee, 75th Congress, 1st sess. (1937), pt. 3, 491. For earlier proposals to have the Court sit in divisions, see F. Frankfurter & J. Landis, supra at 74-85.

[18] 1 C. WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 222- 224 (rev. ed. 1926).

[19] Act of September 24, 1789, 1 Stat. 73, §§ 2-3.

[20] Id. at 74, §§ 4-5

[21] Cf. F. Frankfurter & J. Landis, supra at chs. 1-3; J. Goebel, supra at 554-560, 565-569. Upon receipt of a letter from President Washington soliciting suggestions regarding the judicial system, WRITINGS OF GEORGE WASHINGTON, (J. Fitzpatrick ed., 1943), 31, Chief Justice Jay prepared a letter for the approval of the other Justices, declining to comment on the policy questions but raising several issues of constitutionality, that the same man should not be appointed to two offices, that the offices were incompatible, and that the act invaded the prerogatives of the President and Senate. 2 G. MCREE, LIFE AND CORRESPONDENCE OF JAMES IREDELL 293-296 (1858). The letter was apparently never forwarded to the President. Writings of Washington, supra at 31-32 n. 58. When the constitutional issue was raised in Stuart v. Laird, 5 U.S. (1 Cr.) 299, 309 (1803), it was passed over with the observation that the practice was too established to be questioned.

[22] Act of March 3, 1891, 26 Stat. 826. The temporary relief came in the Act of February 13, 1801, 2 Stat. 89, which was repealed by the Act of March 8, 1802, 2 Stat. 132.

[23] Act of February 13, 1801, 2 Stat. 89.

[24] Act of March 8, 1802, 2 Stat. 132. F. Frankfurter & J. Landis, supra at 25- 32; 1 C. Warren, supra at 185-215.

[25] This was the theory of John Taylor of Caroline, upon whom the Jeffersonians in Congress relied. W. CARPENTER, JUDICIAL TENURE IN THE UNITED STATES 63-64 (1918). The controversy is recounted fully in id. at 58- 78.

[26] 5 U.S. (1 Cr.) 299 (1803).

[27] The Court was created by the Act of June 18, 1910, 36 Stat. 539, and repealed by the Act of October 22, 1913, 38 Stat. 208, 219. See F. Frankfurter & J. Landis, supra at 153-174; W. Carpenter, supra at 78-94.

[28] United States v. Will, 449 U.S. 200 , 217 -218 (1980). Hamilton, writing in THE FEDERALIST, No. 79 (J. Cooke ed., 1961), 531, emphasized that "[i]n the general course of human nature, a power over a man's subsistence amounts to a power over his will."

[29] United States v. Will, 449 U.S. 200 , 224 -230 (1980). In one year, the increase took effect of October 1, while the President signed the bill reducing the amount during the day of October 1. The Court held the increase had gone into effect by the time the reduction was signed. Will is also authority for the proposition that a general, nondiscriminatory reduction, affecting judges but not aimed solely at them, is covered by the clause. Id. at 226.

[30] O'Donoghue v. United States, 289 U.S. 516 (1933).

[31] Williams v. United States, 289 U.S. 553 (1933). But see Glidden Co. v. Zdanok, 370 U.S. 530 (1962).

[32] 253 U.S. 245 (1920).

[33] 268 U.S. 501 (1925).

[34] 307 U.S. 277 (1939).

[35] 307 U.S. at 278-82.

[36] 307 U.S. at 282.

[37] 532 U.S. 55 7, 571 (2001).

[38] 532 U.S. at 571.

[39] 532 U.S. at 572.

[40] 532 U.S. at 578-81.

[41] Ch. 309, 36 Stat. 539.

[42] 56 Stat. 23, §§ 31-33.

[43] In Lockerty v. Phillips, 319 U.S. 182 (1943), the limitations on the use of injunctions, except the prohibition against interlocutory decrees, was unanimously sustained.

A similar court was created to be utilized in the enforcement of the economic controls imposed by President Nixon in 1971. Pub. L. 92-210, 85 Stat. 743, 211

  (b). Although controls ended in 1974, see 12 U.S.C. § 1904 note, Congress continued the Temporary Emergency Court of Appeals and gave it new jurisdiction. Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, 87 Stat. 633, 15 U.S.C. § 754, incorporating judicial review provisions of the Economic Stabilization Act. The Court was abolished, effective March 29, 1993, by P. L. 102-572, 106 Stat. 4506.

Another similar specialized court was created by § 209 of the Regional Rail Reorganization Act, P. L. 93-226, 87 Stat. 999, 45 U.S.C. § 719, to review the final system plan under the Act. Regional Rail Reorganization Act Cases (Blanchette v. Connecticut Gen. Ins. Corp.), 419 U.S. 102 (1974).

[44] By the Federal Courts Improvement Act of 1982, P. L. 97-164, 96 Stat. 37, 28 U.S.C. § 1295. Among other things, this Court assumed the appellate jurisdiction of the Court of Claims and the Court of Customs and Patent Appeals.

[45] Act of Oct. 10, 1980, 94 Stat. 1727.

[46] 28 U.S.C. § 1407.

[47] P. L. 95-511, 92 Stat. 1788, 50 U.S.C. § 1803.

[48] Ethics in Government Act, Title VI, P. L. 95-521, 92 Stat. 1867, as amended, 28 U.S.C. §§ 591-599. The court is a "Special Division" of the United States Court of Appeals for the District of Columbia; composed of three regular federal judges, only one of whom may be from the D. C. Circuit, who are designated by the Chief Justice. 28 U.S.C. § 49. The constitutionality of the Special Division was upheld in Morrison v. Olson, 487 U.S. 654 , 670-685 (1988). Authority for the court expired in 1999 under a sunset provision. Pub. L. 103-270, § 2, 108 Stat. 732 (1994).

[49] In Freytag v. Commissioner, 501 U.S. 868 (1991), a controverted decision held Article I courts to be "Courts of Law" for purposes of the appointments clause. Art. II, § 2, cl. 2. See id. at 888-892 (majority opinion), and 901-914 (Justice Scalia dissenting).

[50] 26 U.S. (1 Pet.) 511 (1828).

[51] 26 U.S. at 546.

[52] In Glidden Co. v. Zdanok, 370 U.S. 530 , 544 -45 (1962), Justice Harlan asserted that Chief Justice Marshall in the Canter case "did not mean to imply that the case heard by the Key West court was not one of admiralty jurisdiction otherwise properly justiciable in a Federal District Court sitting in one of the States.... All the Chief Justice meant . . . is that in the territories cases and controversies falling within the enumeration of Article III may be heard and decided in courts constituted without regard to the limitations of that article... ."

[53] Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50 , 106 (1982) (Justice White dissenting).

[54] That the Supreme Court could review the judgments of territorial courts was established in Durousseau v. United States, 10 U.S. (6 Cr.) 307 (1810). See also Benner v. Porter, 50 U.S. (9 How.) 235 , 243 (1850); Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434 (1872); Balzac v. Porto Rico, 258 U.S. 298 , 312 -313 (1922).

[55] Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50 , 90 , 91 (1982) (Justice Rehnquist concurring). The "darkling plain" language is his attribution to Justice White's historical summary.

[56] In addition to the local courts of the District of Columbia, the bankruptcy courts, and the U. S. Court of Federal Claims, considered infra, these include the United States Tax Court, formerly an independent agency in the Treasury Department, but by the Tax Reform Act of 1969, § 951, 83 Stat. 730, 26 U.S.C. § 7441, made an Article I court of record, the Court of Veterans Appeals, Act of Nov. 18, 1988, 102 Stat. 4105, 38 U.S.C. § 4051, and the courts of the territories of the United States. Magistrate judges are adjuncts of the District Courts, see infra, and perform a large number of functions, usually requiring the consent of the litigants. See Gomez v. United States, 490 U.S. 858 (1989); Peretz v. United States, 501 U.S. 923 (1991). The U. S. Court of Military Appeals, strictly speaking, is not part of the judiciary but is a military tribunal, 10 U.S.C. § 867, although Congress designated it an Article I tribunal and has recently given the Supreme Court certiorari jurisdiction over its decisions.

[57] McAllister v. United States, 141 U.S. 174 (1891).

[58] United States v. Fisher, 109 U.S. 143 (1883); Williams v. United States, 289 U.S. 553 (1933).

[59] 69 U.S. (2 Wall.) 561 (1864).

[60] 54 U.S. (13 How.) 40 (1852).

[61] 54 U.S. at 48.

[62] The opinion in Gordon v. United States, 69 U.S. (2 Wall.) 561 (1864), had originally been prepared by Chief Justice Taney, but following his death and reargument of the case the opinion cited was issued. The Court later directed the publishing of Taney's original opinion at 117 U.S. 697. See also United States v. Jones, 119 U.S. 477 , 478 (1886), in which the Court noted that the official report of Chief Justice Chase's Gordon opinion and the Court's own record showed differences and quoted the record.

[63] 72 U.S. (5 Wall.) 419 (1867). See also United States v. Jones, 119 U.S. 477 (1886).

[64] E.g., Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927); Federal Radio Comm'n v. General Elec. Co., 281 U.S. 464 (1930); D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). See Glidden Co. v. Zdanok, 370 U.S. 530 , 576 , 577-579 (1962).

[65] Pope v. United States, 323 U.S. 1 , 14 (1944); D. C. Court of Appeals v. [66] 59 U.S. (18 How.) 272 (1856).

[67] 59 U.S. at 284.

[68] Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929).

[69] Gordon v. United States, 117 U.S. 697 (1864); McElrath v. United States, 102 U.S. 426 (1880); Williams v. United States, 289 U.S. 553 (1933). On the status of the then-existing Court of Claims, see Glidden Co. v. Zdanok, 370 U. S. 530 (1962).

[70] United States v. Coe, 155 U.S. 76 (1894) (Court of Private Land Claims).

[71] Wallace v. Adams, 204 U.S. 415 (1907); Stephens v. Cherokee Nation, 174 U.S. 445 (1899) (Choctaw and Chickasaw Citizenship Court).

[72] Old Colony Trust Co. v. Commissioner, 279 U.S. 716 (1929); Ex Parte Bakelite Corp., 279 U.S. 438 (1929).

[73] See In re Ross, 140 U.S. 453 (1891) (consular courts in foreign countries). Military courts may, on the other hand, be a separate entity of the military having no connection to Article III. Dynes v. Hoover, 61 U.S. (20 How.) 65 , 79 (1857).

[74] 285 U.S. 22 (1932).

[75] 285 U.S. at 51. On the constitutional problems of assignment to an administrative agency, see Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 , 48 (1937).

[76] 301 U.S. at 51-65.

301 U.S. at 50, 51, 58-63. Thus, Article III concerns were satisfied by a review of the agency fact finding upon the administrative record. Id. at 63-65. The plurality opinion denied the validity of this approach in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 , 86 n.39 (1982), although Justice White in dissent accepted it. Id. at 115. The plurality, rather, rationalized Crowell and subsequent cases on an analysis seeking to ascertain whether agencies or Article I tribunals were "adjuncts" of Article III courts, that is, whether Article III courts were sufficiently in charge to protect constitutional values. Id. at 76-87.

[78] Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 , 67 - 70 (1982) (plurality opinion). Thus, Justice Brennan states that at a minimum a matter of public right must arise "'between the government and others"' but that the presence of the United States as a proper party to the proceeding is a necessary but not sufficient means to distinguish "private rights." Id. at 69 & n.23. Crowell v. Benson, however, remained an embarrassing presence.

[79] Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568 (1985); CFTC v. Schor, 478 U.S. 833 (1986). The cases also abandoned the principle that the Federal Government must be a party for the case to fall into the "public rights" category. Thomas, 473 U.S. at 586; and see id. at 596-99 (Justice Brennan concurring).

[80] "In essence, the public rights doctrine reflects simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that 'could be conclusively determined by the Executive and Legislative Branches,' the danger of encroaching on the judicial powers is reduced." Thomas v. Union Car-bide Agric. Products Co., 473 U.S. 568 , 589 (1985) (quoting Northern Pipeline, 458 U.S. at 68 (plurality opinion)).

[81] Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 , 51 -55 (1989). A seventh Amendment jury-trial case, the decision is critical to the Article III issue as well, because, as the Court makes clear what was implicit before, whether Congress can submit a legal issue to an Article I tribunal and whether it can dispense with a civil jury on that legal issue must be answered by the same analysis. Id. at 52-53.

[82] 492 U.S. at 52-54. The Court reiterated that the Government need not be a party as a prerequisite to a matter being of "public right." Id. at 54. Concurring, Justice Scalia argued that public rights historically were and should remain only those matters to which the Federal Government is a party. Id. at 65.

[83] 492 U.S. at 55-64. The Court reserved the question whether, a jury trial being required, a non-Article III bankruptcy judge could oversee such a jury trial. Id. at 64. That question remains unresolved, both as a matter, first, of whether there is statutory authorization for bankruptcy judges to conduct jury trials, and, second, if there is, whether they may constitutionally do so. E.g., In re Ben Cooper, Inc., 896 F.2d 1394 (2d Cir. 1990), cert. granted, 497 U.S. 1023 , vacated and remanded for consideration of a jurisdictional issue, 498 U. S. 964 (1990), reinstated, 924 F.2d 36 (2d Cir.), cert. denied, 500 U.S. 928 (1991); In re Grabill Corp., 967 F.2d 1152 (7th Cir. 1991), pet. for reh. en banc den., 976 F.2d 1126 (7th Cir. 1992).

[84] De Groot v. United States, 72 U.S. (5 Wall.) 419 (1866); United States v. Union Pacific Co., 98 U.S. 569 , 603 (1878); Miles v. Graham, 268 U.S. 501 (1925).

[85] Williams v. United States, 289 U.S. 553 (1933); cf. Ex parte Bakelite Corp., 279 U.S. 438 , 450 -455 (1929).

[86] 67 Stat. 226, § 1, 28 U.S.C. § 171 (Court of Claims); 70 Stat. 532. § 1, 28 U.S.C. § 251 (Customs Court); 72 Stat. 848, § 1, 28 U.S.C. § 211 (Court of Customs and Patent Appeals).

[87] In Ex parte Bakelite Corp., 279 U.S. 438 . 459 (1929), Justice Van Devanter refused to give any weight to the fact that Congress had bestowed life tenure on the judges of the Court of Customs Appeals because that line of thought "mistakenly assumes that whether a court is of one class or the other depends on the intention of Congress, whereas the true test lies in the power under which the court was created and in the jurisdiction conferred."

[88] 370 U.S. 530 (1962).

[89] Glidden Co. v. Zdanok, 370 U.S. 530 , 531 (1962) (Justices Harlan, Brennan, and Stewart).

[90] 370 U.S. at 548, 552.

[91] 370 U.S. at 585 (Justice Clark and Chief Justice Warren concurring); 589 (Justices Douglas and Black dissenting).

[92] 370 U.S. at 585 (Justice Clark and Chief Justice Warren).

[93] 370 U.S. at 589 (Justices Douglas and Black). The concurrence thought that the rationale of Bakelite and Williams was based on a significant advisory and reference business of the two courts, which the two Justices now thought insignificant, but what there was of it they thought nonjudicial and the courts should not entertain it. Justice Harlan left that question open. Id. at 583.

[94] Aside from doctrinal matters, in 1982, Congress created the United States Court of Appeals for the Federal Circuit, giving it, inter alia, the appellate jurisdiction of the Court of Claims and the Court of Customs and Patent Appeals. 96 Stat. 25, title 1, 28 U.S.C. § 41. At the same time Congress created the United States Claims Court, now the United States Court of Federal Claims, as an Article I tribunal, with the trial jurisdiction of the old Court of Claims. 96 Stat. 26, as amended, § 902(a)(1), 106 Stat. 4516, 28 U.S.C. §§ 171- 180.

[95] 112 U.S. 50 (1884).

[96] Keller v. Potomac Elec. Co., 261 U.S. 428 (1923).

[97] Federal Radio Comm'n v. General Elec. Co., 281 U.S. 464 (1930).

[98] 279 U.S. 43 8, 450 -455 (1929).

[99] O'Donoghue v. United States, 289 U.S. 516 (1933).

[100] 289 U.S. at 535-46. Chief Justice Hughes in dissent argued that Congress' power over the District was complete in itself and the power to create courts there did not derive at all from Article III. Id. at 551. See the discussion of this point of O'Donoghue in National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). Cf. Hobson v. Hansen, 265 F. Supp. 902 (D.D.C. 1967) (three-judge court).

[101] Pub. L. 91-358, 84 Stat. 475, D.C. Code § 11-101.

[102] 411 U.S. 389 (1973)

[103] 411 U.S. at 407-08. See also Pernell v. Southall Realty Co., 416 U.S. 363 , 365 -365 (1974); Swain v. Pressley, 430 U.S. 372 (1977); Key v. Doyle, 434 U. S. 59 (1978). Under Swain, provision for hearing of motions for postjudgement relief by convicted persons in the District, the present equivalent of habeas for federal convicts, is placed in Article I courts. That there are limits to Congress' discretion is asserted in dictum in Territory of Guam v. Olsen, 431 U.S. 195 , 201 -202, 204 (1977).

[104] Bankruptcy Act of 1978, Pub. L. 95-598, 92 Stat. 2549, codified in titles 11, 28. The bankruptcy courts were made "adjuncts" of the district courts by § 201(a), 28 U.S.C. § 151(a). For citation to the debate with respect to Article III versus Article I status for these courts, see Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50 , 61 n.12 (1982) (plurality opinion).

[105] The statement of the holding is that of the two concurring Justices, 458 U.S. at 89 (Justices Rehnquist and O'Connor), with which the plurality agreed "at the least," while desiring to go further. Id. at 87 n.40.

[106] 458 U.S. at 63-76 (Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens).

[107] The plurality also rejected an alternative basis, a contention that as "adjuncts" of the district courts, the bankruptcy courts were like United States magistrates or like those agencies approved in Crowell v. Benson, 285 U.S. 22 (1932), to which could be asigned factfinding functions subject to review in Article III courts, the fount of the administrative agency system. Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50 , 76 -86 (1982). According to the plurality, the act vested too much judicial power in the bankruptcy courts to treat them like agencies, and it limited the review of Article III courts too much.

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

[109] Ex parte Bakelite Corp., 279 U.S. 438 (1929), was, after all, a unanimous opinion and did not long survive.

[110] In particular, the Federal Magistrates Act of 1968, under which judges may refer certain pretrial motions and the trial of certain matters to persons appointed to a specific term, was threatened. Pub. L. 90-578, 82 Stat. 1108, as amended, 28 U.S.C. §§ 631-639. See United States v. Raddatz, 447 U.S. 667 (1980); Mathews v. Weber, 423 U.S. 261 (1976).

[111] P. L. 98-353, 98 Stat. 333, judiciary provisions at 28 U.S.C. § 151 et seq.

[112] See 28 U.S.C. § 157.

[113] 492 U.S. 33 (1989).

[114] 492 U.S. 33 (1989)

[115] 473 U.S. 568 (1985).

[116] 478 U.S. 833 (1986).

[117] Contrast the Court's approach to Article III separation of powers issues with the more rigid approach enunciated in INS v. Chadha and Bowsher v. Synar, involving congressional incursions on executive power.

[118] 473 U.S. at 589.

[119] CFTC v. Schor, 478 U.S. at 851 (summarizing the Thomas rule).

[120] Thomas, 473 U.S. at 591, 592 (quoting Crowell v. Benson, 285 U.S. 22, 54 (1932)).

[121] 473 U.S. at 594.

[122] Cf. Union Carbide, 473 U.S. at 591 (fact that "FIFRA arbitration scheme incorporates its own system of internal sanctions and relies only tangentially, if at all, on the Judicial Branch for enforcement" cited as lessening danger of encroachment on "Article III judicial powers").

[123] Granfinanciera, 492 U.S. at 51-55, 55-60.

[124] 492 U.S. at 59 n.14.

[125] Mistretta v. United States, 488 U.S. 361 , 384 -97 (1989). Clearly, some of the powers vested in the Special Division of the United States Court of Appeals for the District of Columbia Circuit under the Ethics in Government Act in respect to the independent counsel were administrative, but because the major nonjudicial power, the appointment of the independent counsel, was specifically authorized in the appointments clause, the additional powers were miscellaneous and could be lodged there by Congress. Implicit in the Court's analysis was the principle that a line exists that Congress could not cross over. Morrison v. Olson, 487 U.S. 654 , 677 -685 (1988).

[126] JUSTICE SAMUEL MILLER, ON THE CONSTITUTION 314 (1891).

[127] Muskrat v. United States, 219 U.S. 346 , 361 (1911).

[128] United States v. Arrendondo, 31 U.S. (6 Pet.) 691 (1832).

[129] General Investment Co. v. New York Central R.R., 271 U.S. 228 , 230 (1926).

[130] Williams v. United States, 289 U.S. 553 , 566 (1933) ; Yakus v. United States, 321 U.S. 414 , 467 -468 (1944) (Justice Rutledge dissenting).

[131] 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.

[132] 514 U.S. at 227 (emphasis by Court).

[133] 530 U.S. 327 (2000).

[134] 530 U.S. at 344.

[135] Michaelson v. United States, 266 U.S. 42 (1924).

[136] McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).

[137] Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825).

[138] Gumbel v. Pitkin, 124 U.S. 131 (1888).

[139] Ex parte Peterson, 253 U.S. 300 (1920).

[140] Ex parte Garland, 71 U.S. (4 Wall.) 333 , 378 (1867).

[141] 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.

[142] 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 is Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B. U. L. REV. 205 (1985); and see Amar, Meltzer, and Redish, Symposium: Article III and the Judiciary Act of 1789, 138 U. PA. L. REV. 1499 (1990). Briefly, the matter is discussed more fully infra, Professor Amar argues, in part, from the text of Article III, § 2, cl. 1, that the use of the word "all" in each of federal question, admiralty, and public ambassador subclauses means that Congress must confer the entire judicial power to cases involving those issues, whereas it has more discretion in the other six categories.

[143] 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.

[144] 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 Construction Co., 260 U.S. 226 (1922). It should be noted, however, that some judges have expressed the opinion that Congress' authority is limited to some degree by the Constitution, such as by the due process clause, so that a limitation on jurisdiction which denied a litigant access to any remedy might be unconstitutional. Cf. Eisentrager v. Forrestal, 174 F.2d 961, 965-966 (D.C. Cir. 1949), revd. on other grounds sub nom, Johnson v. Eisentrager, 339 U.S. 763 (1950); Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir.), cert. denied, 335 U.S. 887 (1948); Petersen v. Clark, 285 F. Supp. 700, 703 n.5 (N. D. Calif. 1968); Murray v. Vaughn, 300 F. Supp. 688, 694-695 (D.R.I. 1969). The Supreme Court has had no occasion to consider the question.

[145] 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).

[146] Act of March 23, 1792, 1 Stat. 243.

[147] 1 AMERICAN STATE PAPERS: MISCELLANEOUS DOCUMENTS, LEGISLATIVE AND EXECUTIVE, OF THE CONGRESS OF THE UNITED STATES 49, 51, 52 (1832). President Washington transmitted the remonstrances to Congress. 1 MESSAGES AND PAPERS OF THE PRESIDENTS 123, 133 (J. Richardson comp., 1897). The objections are also appended to the order of the Court in Hayburn's Case, 2 U.S. (2 Dall.) 409 , 410 (1792). Note that some of the Justices declared their willingness to perform under the act as commissioners rather than as judges. Cf. United States v. Ferreira, 54 U.S. (13 How.) 40 , 52 -53 (1852). The assumption by judges that they could act in some positions as individuals while remaining judges, an assumption many times acted upon, was approved in Mistretta v. United States, 488 U.S. 361 , 397 -408 (1989).

[148] Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792). The new pension law was the Act of February 28, 1793, 1 Stat. 324. The reason for the Court's inaction may, on the other hand, have been doubt about the proper role of the Attorney General in the matter, an issue raised in the opinion. See Marcus & Teir, Hayburn's Case: A Misinterpretation of Precedent, 1988 WIS. L. REV. 4; Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There was Pragmatism, 1989 DUKE L. J. 561, 590-618. Notice the Court's discussion in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 , 218 , 225-26 (1995).

[149] See United States v. Ferreira, 54 U.S. (13 How.) 40 (1852); Gordon v. United States, 69 U.S. (2 Wall.) 561 (1865); In re Sanborn, 148 U.S. 222 (1893); cf. McGrath v. Kritensen, 340 U.S. 162 , 167 -168 (1950).

[150] Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103 , 113 -114 (1948).

[151] Connor v. Johnson, 402 U.S. 690 (1971). Under § 5 of the Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. § 1973e, no State may "enact or seek to administer" any change in election law or practice different from that in effect on a particular date without obtaining the approval of the Attorney General or the district court in the District of Columbia, a requirement interpreted to reach reapportionment and redistricting. Allen v. State Bd. of Elections, 393 U.S. 544 (1969); Perkins v. Matthews, 400 U.S. 379 (1971). The issue in Connor was whether a districting plan drawn up and ordered into effect by a federal district court, after it had rejected a legislatively-drawn plan, must be submitted for approval. Unanimously, on the papers without oral argument, the Court ruled that, despite the statute's inclusive language, it did not apply to court-drawn plans. Award of Execution.-The adherence of the Court to this proposition, however, has not extended to a rigid rule formulated by Chief Justice Taney, given its fullest expression in a post-humously-published opinion. In Gordon v. United States, the Court refused to hear an appeal from a decision of the Court of Claims; the act establishing the Court of Claims provided for appeals to the Supreme Court, after which judgments in favor of claimants were to be referred to the Secretary of the Treasury for payments out of the general appropriation for payment of private claims. But the act also provided that no funds should be paid out of the Treasury for any claims "till after an appropriation therefor shall be estimated by the Secretary of the Treasury." The opinion of the Court merely stated that the implication of power in the executive officer and in Congress to revise all decisions of the Court of Claims requiring payment of money denied that court the judicial power from the exercise of which "alone" appeals could be taken to the Supreme Court.

[152] The opinion was published in 117 U.S. 697 . See supra, and text. See United States v. Jones, 119 U.S. 477 (1886). The Chief Justice's initial effort was in United States v. Ferreira, 54 U.S. (13 How.) 40 (1852).

[153] 69 U.S. (2 Wall.) 561 (1865).

[154] Act of February 24, 1855, 10 Stat. 612, as amended, Act of March 3, 1963, 12 Stat. 737.

[155] Gordon v. United States, 69 U.S. (2 Wall.) 561 (Cf. Regional Rail Reorganization Act Cases (Blanchette v. Connecticut General Ins. Corp.), 419 U.S. 102 , 148 -149 & n. 35 (1974).

[156] Published at 117 U.S. 697 , 703 . Subsequent cases accepted the doctrine that an award of execution as distinguished from finality of judgment was an essential attribute of judicial power. See In re Sanborn, 148 U.S. 122 , 226 , (1893); ICC v. Brimson, 154 U.S. 447 , 483 (1894); La Abra Silver Mining Co. v. United States, 175 U.S. 423 , 457 (1899); Frasch v. Moore, 211 U.S. 1 (1908); Muskrat v. United States, 219 U.S. 346 , 355 , 361-362 (1911): Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927).

[157] Liberty Warehouse Co. v. Grannis, 273 U.S. 70 (1927).

[158] Liberty Warehouse Co. v. Burley Tobacco Growers' Coop. Marketing Ass'n, 276 U.S. 71 (1928).

[159] Fidelity Nat'l Bank & Trust Co. v. Swope, 274 U.S. 123 , 132 (1927).

[160] Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933). The decisions in Swope and Wallace removed all constitutional doubts previously shrouding a proposed federal declaratory judgment act, which was enacted in 1934, 48 Stat. 955, 28 U.S.C. §§ 2201-2202, and unanimously sustained in Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).

[161] E.g., United States v. United Mine Workers, 330 U.S. 258 (1947).

[162] Gompers v. Bucks Stove & Range Co., 221 U.S. 418 , 441 -443 (1911); Ex parte Grossman, 267 U.S. 87 (1925). See also Bessette v. W. B. Conkey Co., 194 U.S. 324 , 327 -328 (1904).

[163] 512 U.S. 821 (1994).

[164] 512 U.S. at 832-38. Relevant is the fact that the alleged contempts did not occur in the presence of the court and that determinations of violations require elaborate and reliable factfinding. See esp.id. at 837-38.

[165] 384 U.S. 364 (1966).

[166] 384 U.S. at 370.

[167] 384 U.S. at 370 n.6. See Hicks v. Feiock, 485 U.S. 624 (1988) (remanding for determination whether payment of child support arrearages would purge a determinate sentence, the proper characterization critical to decision on a due process claim).

[168] 267 U.S. 8 7, 119 -120 (1925). In an analogous case, the Court was emphatic in a dictum that Congress cannot require a jury trial where the contemnor has failed to perform a positive act for the relief of private parties, Michaelson v. United States ex rel. Chicago, S.P., M. & Ry. Co., 266 U.S. 42 , 65 -66 (1924). But see Bloom v. Illinois, 391 U.S. 194 , 202 (1968).

[169] See United States v. United Mine Workers, 330 U.S. 258 , 299 (1947).

[170] Act of March 2, 1831, ch. 99, § 1, 4 Stat. 488. Cf. Rule 42(a), FRCrP, which provides that "[a] criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court." See also Beale, Contempt of Court, Civil and Criminal, 21 HARV. L. REV. 161, 171-172 (1908).

[171] See Fox, The Nature of Contempt of Court, 37 L.Q. REV. 191 (1921).

[172] Many of the limitations placed on the inferior federal courts have been issued on the basis of the Supreme Court's supervisory power over them rather than upon a constitutional foundation, while, of course, the limitations imposed on state courts necessarily are on constitutional dimensions. Indeed, it is often the case that a limitation, which is applied to an inferior federal court as a superintending measure, is then transformed into a constitutional limitation and applied to state courts. Compare Cheff v. Schnackenberg, 384 U.S. 373 (1966), with Bloom v. Illinois, 391 U.S. 194 (1968). In the latter stage, the limitations then bind both federal and state courts alike. Therefore, in this section, Supreme Court constitutional limitations on state court contempt powers are cited without restriction for equal application to federal courts. The Act of 1789.-The summary power of the courts of the United States to punish contempts of their authority had its origin in the law and practice of England where disobedience of court orders was regarded as contempt of the King himself and attachment was a prerogative process derived from presumed contempt of the sovereign. By the latter part of the eighteenth century, summary power to punish was extended to all contempts whether committed in or out of court. In the United States, the Judiciary Act of 1789 in section 17 conferred power on all courts of the United States "to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same." The only limitation placed on this power was that summary attachment was made a negation of all other modes of punishment. The abuse of this extensive power led, following the unsuccessful impeachment of Judge James H. Peck of the Federal District Court of Missouri, to the passage of the Act of 1831 limiting the power of the federal courts to punish contempts to mis-behavior in the presence of the courts, "or so near thereto as to obstruct the administration of justice," to the misbehavior of officers of courts in their official capacity, and to disobedience or resistance to any lawful writ, process or order of the court.

[173] Fox, The King v. Almon, 24 L.Q. REV. 184, 194-195 (1908).

[174] Fox, The Summary Power to Punish Contempt, 25 L.Q. REV.238, 252 (1909).

[175] 1 Stat. 83 (1789).

[176] 18 U.S.C. § 401. For a summary of the Peck impeachment and the background of the act of 1831, see Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in 'Inferior' Federal Courts-A Study in Separation of Powers, 37 HARV. L. REV. 1010, 1024-1028 (1924).

[177] 86 U.S. (19 Wall.) 505 (1874).

[178] 86 U.S. at 505-11.

[179] Gompers v. Bucks Stove & Range Co., 221 U.S. 418 , 450 (1911). See also In re Debs, 158 U.S. 564 , 595 (1895).

[180] 266 U.S. 42 (1924).

[181] 38 Stat. 730, 738 (1914).

[182] 266 U.S. at 65-66. See, generally, Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in 'Inferior' Federal Courts -A Study in Separation of Powers, 37 HARV. L. REV. 1010 (1924).

[183] Young v. United States ex rel. Vuitton, 481 U.S. 787 , 793 -801 (1987). However, the Court, invoking its supervisory power, instructed the lower federal courts first to request the United States Attorney to prosecute a criminal contempt and only if refused should they appoint a private lawyer. Id. at 801- 802. Still using its supervisory power, the Court held that the district court had erred in appointing counsel for a party that was the beneficiary of the court order; disinterested counsel had to be appointed. Id. at 802-08. Justice Scalia contended that the power to prosecute is not comprehended within Article III judicial power and that federal judges had no power, inherent or otherwise, to initiate a prosecution for contempt or to appoint counsel to pursue it. Id. at 815. See also United States v. Providence Journal Co., 485 U.S. 693 (1988), which involved the appointment of a disinterested private attorney. The Supreme Court dismissed the writ of certiorari after granting it, however, holding that only the Solicitor General representing the United States could bring the petition to the Court. See 28 U.S.C. § 518.

[184] 493 U.S. 265 (1990). The decision was an exercise of the Court's supervisory power. Id. at 276. Four Justices dissented. Id. at 281.

[185] 247 U.S. 402 (1918).

[186] 247 U.S. at 418-21.

[187] 263 U.S. 255 (1923).

[188] 313 U.S. 3 3, 47 -53 (1941).

[189] 314 U.S. 25 2, 260 (1941).

[190] See also Wood v. Georgia, 370 U.S. 375 (1962), further clarifying the limitations imposed by the First Amendment upon this judicial power and delineating the requisite serious degree of harm to the administration of law necessary to justify exercise of the contempt power to punish the publisher of an out-of-court statment attacking a charge to the grand jury, absent any showing of actual interference with the activities of the grand jury.

[191] E.g., Estes v. Texas, 381 U.S. 532 (1965); Marshall v. United States, 360 U. S. 310 (1959); Sheppard v. Maxwell, 384 U.S. 333 (1966).

[192] 384 U.S. 33 3, 363 (1966).

[193] For another approach, bar rules regulating the speech of counsel and the First Amendment standard, see Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).

[194] 128 U.S. 289 (1888).

[195] 267 U.S. 517 (1925).

[196] 267 U.S. at 535, 534.

[197] 343 U.S. 1 (1952).

[198] 343 U.S. at 11.

[199] Taylor v. Hayes, 418 U.S. 488 (1974). In a companion case, the Court

[200] 382 US. 162 (1965), overruling Brown v. United States, 359 U.S. 41 (1959).

[201] But see Green v. United States, 356 U.S. 165 (1958) (noncompliance with order directing defendants to surrender to marshal for execution of their sentence is an offense punishable summarily as a criminal contempt); Reina v. United States, 364 U.S. 507 (1960).

[202] Johnson v. Mississippi, 403 U.S. 212 , 215 (1971) (citing In re Oliver, 333 U.S. 257 , 275 -276 (1948)).

[203] See Green v. United States, 356 U.S. 165 (1958); United States v. Barnett, 376 U.S. 681 (1964), and cases cited. The dissents of Justices Black and Douglas in those cases prepared the ground for the Court's later reversal. On the issue, see Frankfurter and Landis, Power of Congress over Procedure in Criminal Contempts in 'Inferior' Federal Courts-A Study in Separation of Powers, 37 HARV. L. REV. 1010, 1042-1048 (1924).

[204] 384 U.S. 373 (1966).

[205] Bloom v. Illinois, 391 U.S. 194 (1968). See also International Union, UMW v. Bagwell, 512 U.S. 821 (1994) (refining the test for when contempt citations are criminal and thus require jury trials).

[206] 391 U.S. at 209. In Codispoti v. Pennsylvania, 418 U.S. 506 (1974) the Court held required a jury trial when the trial judge awaits the conclusion of the proceeding and then imposes separate contempt sentences in which the total aggregated more than six months. For a tentative essay at defining a petty offense when a fine is levied, see Muniz v. Hoffman, 422 U.S. 454 , 475 -477 (1975). In International Union, UMW v. Bagwell, 512 U.S. 821 , 837 n.5 (1994), the Court continued to reserve the question of the distinction between petty and serious contempt fines, because of the size of the fine in that case.

[207] The Sixth Amendment is applicable only to criminal cases and the Seventh to suits at common law, but the due process clause is available if needed.

[208] Note that under 28 U.S.C. § 1826 a recalcitrant witness before a grand jury may be imprisoned for the term of the grand jury, which can be 36 months. 18 U.S.C. § 3331(a).

[209] E.g., Beacon Theatres v. Westover, 359 U.S. 500 (1959); Dairy Queen v. Wood, 369 U.S. 469 (1962); Ross v. Bernhard, 396 U.S. 531 (1970). However, the Court's expansion of jury trial rights may have halted with McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

[210] 267 U.S. 51 7, 539 (1925).

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

[212] 343 U.S. at 13-14.

[213] 348 U.S. 11 (1954).

[214] 400 U.S. 455 (1971). See also Johnson v. Mississippi, 403 U.S. 212 (1971); Holt v. Virginia, 381 U.S. 131 (1965). Even in the absence of a personal attack on a judge that would tend to impair his detachment, the judge may still be required to excuse himself and turn a citation for contempt over to another judge if the response to the alleged misconduct in his courtroom partakes of the character of "marked personal feelings" being abraded on both sides, so that it is likely the judge has felt a "sting" sufficient to impair his objectivity. Taylor v. Hayes, 418 U.S. 488 (1974).

[215] See Illinois v. Allen, 397 U.S. 337 (1970), in which the Court affirmed that summary contempt or expulsion may be used to keep a trial going.

[216] 330 U.S. 25 8, 293 -307 (1947). See also International Union, UMW v. Bagwell, 512 U.S. 821 (1994).

[217] See Walker v. City of Birmingham, 388 U.S. 307 (1967).

[218] 203 U.S. 563 (1906).

[219] See United States v. United Mine Workers, 330 U.S. 258 , 299 (1947). But see Cheff v. Schnackenberg, 384 U.S. 273 (1966), and "Due Process Limitations on Contempt Power: Right to Jury Trial ", supra.

[220] 154 U.S. 447 (1894).

[221] Penfield Co. v. SEC, 330 U.S. 585 (1947). Note the dissent of Justice

[222] Gojack v. United States, 384 U.S. 702 (1966). See also Sanctions of the Investigatory Power: Contempt , supra for a discussion on Congress' power to cite an individual for contempt by virtue of its investigatory duties, which is applicable, at least by analogy, to administrative agencies.

[223] "Certain implied powers must necessarily result to our Courts of justice from the nature of their institution.... To fine for contempt-imprison for contumacy- inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute... ." United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 34 (1812).

[224] See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 , 227 (1821); Ex parte Robinson, 86 U.S. (19 Wall.) 505 , 510 (1874); Link v. Wabash R.R., 370 U.S. 626 , 630 -631 (1962); Chambers v. NASCO, Inc., 501 U.S. 32 , 43 -46 (1991); and id. at 58 (Justice Scalia dissenting), 60, 62-67 (Justice Kennedy dissenting).

[225] Chambers v. NASCO, Inc., 501 U.S. at 47.

[226] 501 U.S. at 46-51. But see id. at 62-67 (Justice Kennedy dissenting).

[227] 501 U.S. at 49-51. On the implications of the fact that this was a diversity case, see id. at 51-55.

[228] Roadway Express, Inc. v. Piper, 447 U.S. 752 , 764 (1980).

[229] Link v. Wabash R.R., 370 U.S. 626 (1962).

[230] Frankfurter & Landis, Power of Congress Over Procedure in Criminal Contempts in 'Inferior' Federal Courts-A Study in Separation of Powers, 37 HARV. L. REV. 1010, 1016-1023 (1924).

[231] 1 Stat. 73, § 81.

[232] Id. at §§ 81-82. See also United States v. Morgan, 346 U.S. 502 (1954), holding that the All Writs section of the Judicial Code, 28 U.S.C. § 1651(a), gives federal courts the power to employ the ancient writ of coram nobis.

[233] This proposition was recently reasserted in Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34 (1985) (holding that a federal district court lacked authority to order U.S. marshals to transport state prisoners, such authority not being granted by the relevant statutes).

[234] 495 U.S. 33 (1990).

[235] 495 U.S. at 55 (citing Griffin v. Prince Edward County School Bd., 377 U. S. 218 , 233 -34 (1964) (an order that local officials "exercise the power that is theirs" to levy taxes in order to open and operate a desegregated school system "is within the court's power if required to assure . . . petitioners that their constitutional rights will no longer be denied them")).

[236] 495 U.S. at 50-52.

[237] 5 U.S. (1 Cr.) 137 (1803). Cf. Wiscart v. D'Auchy, 3 U.S. (3 Dall.) 321 (1796).

[238] McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); McClung v. Silliman, 19 U. S. (6 Wheat.) 598 (1821).

[239] 37 U.S. (12 Pet.) 524 (1838).

[240] In 1962, Congress conferred upon all federal district courts the same power to issue writs of mandamus as was exercisable by federal courts in the District of Columbia. 76 Stat. 744, 28 U.S.C. § 1361.

[241] Reference to the "writ of habeas corpus" is to the "Great Writ," habeas corpus ad subjiciendum, by which a court would inquire into the lawfulness of a detention of the petitioner. Ex parte Bollman, 8 U.S. (4 Cr.) 75 , 95 (1807). For other uses, see Carbo v. United States, 364 U.S. 611 (1961); Price v. Johnston, 334 U.S. 266 (1948). Technically, federal prisoners no longer utilize the writ of habeas corpus in seeking post-conviction relief, now the largest office of the writ, but proceed under 28 U.S.C. § 2255, on a motion to vacate judgment. Intimating that if § 2255 afforded prisoners a less adequate remedy than they would have under habeas corpus, it would be unconstitutional, the Court in United States v. Hayman, 342 U.S. 205 (1952), held the two remedies tobe equivalent. Cf. Sanders v. United States, 373 U.S. 1 , 14 (1963). The claims cognizable under one are cognizable under the other. Kaufman v. United States, 394 U.S. 217 (1969). Therefore, the term habeas corpus is used here to include the § 2255 remedy. There is a plethora of writings about the writ. See, e.g., P. BATOR, ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM (Westbury, N.Y.: 3d ed. 1988), Ch. XI, 1465-1597 (hereinafter Hart & Wechsler); Developments in the Law-Federal Habeas Corpus, 83 HARV. L. REV. 1038 (1970).

[1] Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82.

[2] INS v. St. Cyr, 533 U.S. 289 , 301 (2001), as quoted in Rasul v. Bus h, 124 S. Ct. 2686, 2692 (2004).

[242] Professor Chafee contended that by the time of the Constitutional Convention the right to habeas corpus was so well established no affirmative authorization was needed. The Most Important Human Right in the Constitution, 32 B.U.L. REV. 143, 146 (1952). But compare Collins, Habeas Corpus for Convicts-Constitutional Right or Legislative Grace?, 40 CALIF. L. REV. 335, 344-345 (1952).

[243] 8 U.S. (4 Cr.) 75 (1807).

[244] 8 U.S. at 94. And see Ex parte Dorr, 44 U.S. (3 How.) 103 (1845).

[245] 8 U.S. at 95. Note that in quoting the clause, Marshall renders "shall not be suspended" as "should not be suspended."

[246] See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). Cf. Carbo v. United States, 364 U.S. 611 , 614 (1961).

[247] E.g., Eisentrager v. Forrestal, 174 F.2d 961, 966 (D.C. Cir. 1949), revd. on other grounds sub nom., Johnson v. Eisentrager, 339 U.S. 763 (1950); and see

[248] Cf. Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869).

[249] 518 U.S. 651 (1996).

[250] Pub. L. 104-132, §§ 101-08, 110 Stat. 1214, 1217-26, amending, inter alia, 28 U.S.C. §§ 2244, 2253, 2254, 2255, and Fed. R. App. P. 22.

[251] Ex parte Bollman, 8 U.S. (4 Cr.) 75 , 94 (1807). See Fay v. Noia, 372 U.S. 391 , 409 (1963).

[252] Act of March 2, 1833, § 7, 4 Stat. 634 (federal officials imprisoned for enforcing federal law); Act of August 29, 1842, 5 Stat. 539 (foreign nationals detained by a State in violation of a treaty). See also Bankruptcy Act of April 4, 1800,§ 38, 2 Stat. 19, 32 (habeas corpus for imprisoned debtor discharged in bankruptcy), repealed by Act of December 19, 1803, 2 Stat. 248.

[253] Act of February 5, 1867, 14 Stat. 385, conveyed power to federal courts "to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States... ." On the law with respect to state prisoners prior to this statute, see Ex parte Dorr, 44 U.S. (3 How.) 103 (1845); cf. Elkison v. Deliesseline, 8 Fed. Cas. 493 (No. 4366) (C.C.D.S.C. 1823) (Justice Johnson); Ex parte Cabrera, 4 Fed. Cas. 964 (No. 2278) (C.C.D.Pa. 1805) (Justice Washington).

[254] 28 U.S.C. §§ 2241(c), 2254(a). "Custody" does not mean one must be confined; a person on parole or probation is in custody. Jones v. Cunningham, 371 U.S. 236 (1963). A person on bail or on his own recognizance is in custody, Justices of Boston Mun. Court v. Lydon, 466 U.S. 294 , 300 -301 (1984); Lefkowitz v. Newsome, 420 U.S. 283 , 291 n.8 (1975); Hensley v. Municipal Court, 411 U.S. 345 (1973), and Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), held that an inmate of an Alabama prison was sufficiently in custody as well of Kentucky authorities who had lodged a detainer with Alabama to obtain the prisoner upon his release.

[3] Braden v. 30th Judicial Circuit Court, 410 U.S. 484 , 494 -95 (1973) (issue is whether "the custodian can be reached by service of process"). See also Rasul v. Bush , 124 S. Ct. 2686 (federal district court for District of Columbia had jurisdiction of habeas petitions from prisoners held at U.S. Naval base at Guantanamo Bay, Cuba); Rumsfeld v. Padilla , 124 S. Ct. 2711 (2004) (federal district court in New York lacks jurisdiction over prisoner being held in a naval brig in Charleston, South Carolina; the commander of the brig, not the Secretary of Defense, is the immediate custodian and proper respondent).

[255] McNally v. Hill, 293 U.S. 131 (1934); Parker v. Ellis, 362 U.S. 574 (1960).

[256] 28 U.S.C. § 2243. See Peyton v. Rowe, 391 U.S. 54 (1968). See also Maleng v. Cook, 490 U.S. 488 (1989).

[257] Carafas v. LaVallee, 391 U.S. 234 (1968), overruling Parker v. Ellis, 362 U. S. 574 (1960). In Peyton v. Rowe, 391 U.S. 54 (1968), the Court overruled McNally v. Hill, 293 U.S. 131 (1934), and held that a prisoner may attack on habeas the second of two consecutive sentences while still serving the first. See also Walker v. Wainwright, 390 U.S. 335 (1968) (prisoner may attack the first of two consecutive sentences although the only effect of a successful attack would be immediate confinement on the second sentence). Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), held that one sufficiently in custody of a State could use habeas to challenge the State's failure to bring him to trial on pending charges.

[258] 28 U.S.C. § 2254(b). See Preiser v. Rodriguez, 411 U.S. 475 , 490 -497 (1973), and id. at 500, 512-24 (Justice Brennan dissenting); Rose v. Lundy, 455 U.S. 509 , 515 -21 (1982). If a prisoner submits a petition with both exhausted and unexhausted claims, the habeas court must dismiss the entire petition. Rose v. Lundy, 455 U.S. at 518-519. Exhaustion first developed in cases brought by persons in state custody prior to any judgment. Ex parte Royall, 117 U.S. 241 (1886); Urquhart v. Brown, 205 U.S. 179 (1907).

[259] Brown v. Allen, 344 U.S. 443 , 447 -450 (1953); id. at 502 (Justice Frankfurter concurring); Castille v. Peoples, 489 U.S. 346 , 350 (1989).

[260] Fay v. Noia, 372 U.S. 391 , 435 (1963), overruling Darr v. Burford, 339 U. S. 200 (1950).

[261] 28 U.S.C. § 2244(c). But an affirmance of a conviction by an equally divided Court is not an adjudication on the merits. Neil v. Biggers, 409 U.S. 188 (1972).

[262] 28 U.S.C. § 2255.

[263] 28 U.S.C. § 2241(d). Cf. Braden v. 30th Judicial Circuit Court, 410 U.S. (1973), overruling Ahrens v. Clark, 335 U.S. 188 (1948), and holding a petitioner may file in the district in which his custodian is located although the prisoner may be located elsewhere.

[264] Glasgow v. Moyer, 225 U.S. 420 , 428 (1912); Riddle v. Dyche, 262 U.S. 333 , 335 (1923); Eagles v. United States ex rel. Samuels, 329 U.S. 304 , 311 (1946). But compare Brown v. Allen, 344 U.S. 443 , 558 -560 (1953) (Justice Frankfurter dissenting in part).

[265] Estelle v. McGuire, 502 U.S. 62 (1991); Lewis v. Jeffers, 497 U.S. 764 , 780 (1990); Pulley v. Harris, 465 U.S. 37 , 41 -42 (1984)

[266] 28 U.S.C. § 2244(b). See Whiteley v. Warden, 401 U.S. 560 , 569 (1971); Irvin v. Dowd, 366 U.S. 717 , 729 (1961). US Supreme Court Cases | by Volume

[267] In United States v. Detroit Timber & Lumber Co., 200 U.S. 321 , 339 (1906), Justice Brewer, speaking for the Court, approached a theory of inherent equity jurisdiction when he declared: "The principles of equity exist independently of and anterior to all Congressional legislation, and the statutes are either enunciations of those principles or limitations upon their application in particular cases." It should be emphasized, however, that the Court made no suggestion that it could apply preexisting principles of equity without jurisdiction over the subject matter. Indeed, the inference is to the contrary. In a dissenting opinion in which Justices McKenna and Van Devanter joined, in Paine Lumber Co. v. Neal, 244 U.S. 459 , 475 (1917). Justice Pitney contended that Article III, § 2, "had the effect of adopting equitable remedies in all cases arising under the Constitution and laws of the United States where such remedies are appropriate."

[268] Boyce's Executors v. Grundy, 28 U.S. (3 Pet.) 210 (1830).

[269] 1 Stat. 333, 28 U.S.C. § 2283.

[270] 26 U.S.C. § 7421(a).

[271] This provision was repealed in 1976, save for apportionment and districting suits and when otherwise required by an Act of Congress. P. L. 94-381, § 1, 90 Stat. 1119, and § 3, 28 U.S.C. § 2284. Congress occasionally provides for such courts, as in the Voting Rights Act. 42 U.S.C. §§ 1971, 1973c.

[272] Repealed by P. L. 94-381, § 2, 90 Stat. 1119. Congress occasionally provides for such courts now, in order to expedite Supreme Court consideration of constitutional challenges to critical federal laws. See Bowsher v. Synar, 478 U.S. 714 , 719 -721 (1986) (3-judge court and direct appeal to Supreme Court in the Balanced Budget and Emergency Deficit Control Act of 1985).

[273] Repealed by P. L. 93-584, § 7, 88 Stat. 1918.

[274] 28 U.S.C. § 1342.

[275] 29 U.S.C. §§ 52, 101-110.

[276] 56 Stat. 31, 204 (1942).

[277] The statute was part of an Omnibus Appropriations Act signed by the President on April 26, 1996. P. L. 104-134, §§ 801-10, 110 Stat. 1321-66-77, amending 18 U.S.C. § 3626.

[278] 530 U.S. 327 (2000).

[279] 530 U.S. at 348.

[280] Freeman v. Howe, 65 U.S. (24 How.) 450 (1861); Gaines v. Fuentes, 92 U. S. 10 (1876); Ex parte Young, 209 U.S. 123 (1908).

[281] Infra, Anti-Injunction Statute.

[282] 254 U.S. 443 (1921).

[283] Lauf v. E. G. Shinner & Co., 303 U.S. 323 (1938); New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938).

[284] In addition to Lauf and New Negro Alliance, see Drivers' Union v. Valley Co., 311 U.S. 91 , 100 -103 (1940), and compare Sinclair Refining Co. v. Atkinson, 370 U.S. 195 (1962), with Boys Markets v. Retail Clerks Union, 398 U.S. 235 (1970).

[285] 319 U.S. 182 (1943).

[286] 319 U.S. at 187 (quoting Cary v. Curtis, 44 U.S. (3 How.) 236 , 245 (1845). See South Carolina v. Katzenbach, 383 U.S. 301 , 331 -332 (1966), upholding a provision of the Voting Rights Act of 1965 that made the district court for the District of Columbia the only avenue of relief for States seeking to remove the coverage of the Act.

[287] 321 U.S. 414 (1944). But compare Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978) (construing statute in way to avoid the constitutional issue raised in Yakus). In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the Court held that, when judicial review of a deportation order had been precluded, due process required that the alien be allowed to make a collateral challenge to the use of that proceeding as an element of a subsequent criminal proceeding.

[288] Ch. 26, 56 Stat. 31, § 204 (1942).

[289] Washington-Southern Nav. Co. v. Baltimore & P.S.B.C. Co., 263 U.S. 629 (1924).

[290] 23 U.S. (10 Wheat.) 1 (1825).

[291] 106 U.S. 27 2, 280 (1882).

[292] See Miner v. Atlass, 363 U.S. 641 (1960), holding that a federal district court, sitting in admiralty, has no inherent power, independent of any statute or the Supreme Court's Admiralty Rules, to order the taking of deposition for the purpose of discovery. See also Harris v. Nelson, 394 U.S. 286 (1969), in which the Court found statutory authority in the "All Writs Statute" for a habeas corpus court to propound interrogatories.

[293] In the Act of June 19, 1934, 48 Stat. 1064, and contained in 28 U.S.C. § 2072, Congress, in authorizing promulgation of rules of civil procedure, reserved the power to examine and override or amend rules proposed pursuant to the act which it found to be contrary to its legislative policy. See Sibbach v. Wilson, 312 U.S. 1 , 14 -16 (1941). Congress also has authorized promulgation of rules of criminal procedure, habeas, evidence, admiralty, bankruptcy, and appellate procedure. See Hart & Wechsler, supra at 749-765 (discussing development of rules and citing secondary authority). Congress in the 1970s disagreed with the direction of proposed rules of evidence and of habeas practice, and, first postponing their effectiveness, enacted revised rules. Pub. L. 93-505, 88 Stat. 1926 (1974); Pub. L. 94-426, 90 Stat. 1334 (1976). On this and other actions, see Hart & Wechsler, supra.

[294] However, the abolition of old rights and the creation of new ones in the course of litigation conducted in conformance with these judicially prescribed federal rules has been sustained as against the contention of a violation of substantive rights. Sibbach v. Wilson, 312 U.S. 1 , 14 (1941).

[295] Cf. United States v. Sherwood, 312 U.S. 584 , 589 -590 (1941).

[296] Mississippi Pub. Corp. v. Murphree, 326 U.S. 438 (1946).

[297] Washington-Southern Nav. Co. v. Baltimore & P.S.B.C. Co., 263 U.S. 629 , 635 , 636 (1924). It is not for the Supreme Court to prescribe how the discretion vested in a Court of Appeals should be exercised. As long as the latter court keeps within the bounds of judicial discretion, its action is not reviewable. In re Burwell, 350 U.S. 521 (1956).

[298] McDonald v. Pless, 238 U.S. 264 , 266 (1915); Griffin v. Thompson, 43 U. S. (2 How.) 244 , 257 (1844). See Thomas v. Arn, 474 U.S. 140 (1985) (court of appeal rule conditioning appeal on having filed with the district court timely objections to a master's report). In Rea v. United States, 350 U.S. 214 , 218 (1956), the Court, citing McNabb v. United States, 318 U.S. 332 (1943), asserted that this supervisory power extends to policing the requirements of the Court's rules with respect to the law enforcement practices of federal agents. But compare United States v. Payner, 447 U.S. 727 (1980).

[299] Gumbel v. Pitkin, 124 U.S. 131 (1888); Covell v. Heyman, 111 U.S. 176 (1884); Buck v. Colbath, 70 U.S. (3 Wall.) 334 (1866).

[300] Eberly v. Moore, 65 U.S. (24 How.) 147 (1861); Arkadelphia Co. v. St. Louis S.W. Ry., 249 U.S. 134 (1919).

[301] Gagnon v. United States, 193 U.S. 451 , 458 (1904).

[302] 69 U.S. (2 Wall.) 12 3, 128 -129 (1864).

[303] 253 U.S. 300 (1920).

[304] 253 U.S. at 312.

[305] Ex parte Secombe, 60 U.S. (19 How.) 9 , 13 (1857). In Frazier v. Heebe, 482 U.S. 641 (1987), the Court exercised its supervisory power to invalidate a district court rule respecting the admission of attorneys. See In re Sawyer, 360 U.S. 622 (1959), with reference to the extent to which counsel of record during a pending case may attribute error to the judiciary without being subject to professional discipline.

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

[307] 71 U.S. at 378-80. Although a lawyer is admitted to practice in a federal court by way of admission to practice in a state court, he is not automatically sent out of the federal court by the same route, when "principles of right and justice" require otherwise. A determination of a state court that an accused practitioner should be disbarred is not conclusively binding on the federal courts. Theard v. United States, 354 U.S. 278 (1957), citing Selling v. Radford, 243 U.S. 46 (1917). Cf. In re Isserman, 345 U.S. 286 , 288 (1953), where it was acknowledged that upon disbarment by a state court, Rule 2, par. 5 of the Rules of the Supreme Court imposes upon the attorney the burden of showing cause why he should not be dis-barred in the latter, and upon his failure to meet that burden, the Supreme Court will "follow the finding of the state that the character requisite for membership in the bar is lacking." In 348 U.S. 1 (1954), Isserman's disbarment was set aside for reason of noncompliance with Rule 8 requiring concurrence of a majority of the Justices participating in order to sustain a disbarment. See also In re Disbarment of Crow, 359 U.S. 1007 (1959). For an extensive treatment of disbarment and American and English precedents thereon, see Ex parte Wall, 107 U.S. 265 (1883).


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