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A, Article III.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 28 March 2023

Article III.

The story of Article III, the judiciary article of the Constitution, is in many ways the story of American *constitutionalism itself. The tale has a beginning but no end, and it is fraught with tension, uncertainty, and ambivalence.

Article III of the Constitution defines and delimits the “judicial Power of the United States.” Intended to guarantee an independent federal judiciary, its first section provides that federal judges shall enjoy tenure during good behavior. Section 2 enumerates the categories of cases in which a federal court either may or must have jurisdiction. Section 3 defines the crime of treason.

Although Article III purposely establishes the judicial branch as the coequal of the legislative and executive branches established by Articles I and II, the framers’ plans for judicial power were beset with ambivalence. At the Constitutional Convention, all agreed that there should be “one Supreme Court,” and Article III provides in mandatory terms for that tribunal’s establishment. But the framers, some of whom feared that federal courts would intrude excessively on the states’ lawmaking prerogatives, divided sharply over whether there should be any *lower federal courts at all. The dispute ended in a compromise, under which Article III grants Congress the power to create lower federal courts but does not require it to do so. It is a corollary of this so-called Madisonian Compromise that the jurisdiction of the lower federal courts is subject to congressional limitation.

Even the Constitution’s provision for Supreme Court power is surprisingly laconic and apparently compromised. Article III subjects the Court’s *appellate jurisdiction to “such Exceptions, and under such Regulations as the Congress shall make.”

To some commentators and critics, it is also striking that Article III nowhere provides expressly for the power of *judicial review—the courts’ power to assess the constitutionality of state and federal legislation. Some framers, most notably Alexander *Hamilton in The Federalist, no. 78, argued for the existence of this extraordinary power. But because Article III never mentions judicial review explicitly, the debate is perennial over whether judicial review was intended and, as important, its scope.

Viewed solely as a text, Article III thus determines very little. It affords the potential for what in fact has developed: perhaps the most powerful judicial system in the history of the world. But the words of Article III are also consistent with a relatively insignificant federal judiciary, possibly without the power of judicial review, and with the federal courts’ jurisdiction delimited by Congress to protect claimed congressional and executive prerogatives.

Case or Controversy Requirement.

Judicial power under Article III was given statutory form by the *Judiciary Act of 1789, which set up the federal court system, established federal jurisdiction over many, but not all, of the cases (p. 57) and controversies detailed in Article III, and authorized the Supreme Court to declare state laws unconstitutional. Under Chief Justice John *Marshall, the Supreme Court in *Marbury v. Madison (1803) established a vital precedent for the judicial power to declare laws unconstitutional, and in Durousseau v. United States (1810), it established a vital precedent for the legislative power to limit the appellate jurisdiction of the Court.

At the time that it was introduced, judicial review was breathtaking as a matter of comparative politics, and it remains controversial. The continuing locus of concern involves the question of how, rather than whether, the courts should exercise this extraordinary power. The debate, which has filled countless pages, has tended to organize itself around different polarities at different times: “strict constructionists” have contended with “judicial activists” those who would limit the judicial role to enforcing “the framers’ intent” have disputed with proponents of a “living constitution” (see original intent). But the lines of division have never been wholly clear, perhaps because there is so large a core of shared assumptions among the professed antagonists. All agree that, as an apparent anomaly in a fundamentally democratic society, judicial review must be carefully structured and duly restrained if it is not to subvert other fundamental presuppositions of the constitutional scheme. In addition, courts must assure themselves of the functional requisites of effective judicial decision making.

The principal conceptual device for defining the judicial role and ensuring its effective exercise emerges from the text of Article III, which limits federal judicial power to the decision of *“cases and controversies.” In defining those terms, the courts have developed what are frequently known as *justiciability doctrines.

One set of justiciability doctrines serves largely to protect judicial independence from the legislative and executive branches. Especially during the early years of the republic, both Congress and the president showed some disposition to enlist the federal courts as their advice-giving assistants. Sensing that judicial independence, prestige, and power were at stake, the justices of the Supreme Court quickly established two principles of continuing validity. Article III prohibits the issuance of *advisory opinions by Article III courts. In addition, it requires that judicial decisions possess “finality,” or immunity from executive revision.

Other Article III justiciability doctrines aim to establish the functional requisites of sound judicial decision making. The most important of these, the *standing doctrine, establishes that no one can bring a lawsuit unless he or she has personally suffered a judicially cognizable injury. This requirement ensures a concrete set of facts to focus issues for judicial resolution. The standing doctrine’s demand for concrete litigants also promotes the adversarial presentation of issues as a means of illuminating judicial decision makers. *Mootness and *ripeness doctrines, which govern the timing of a lawsuit, serve similar interests.

A third and final purpose of Article III justiciability doctrines is that of judicial self-limitation. Reflecting an intuition that judicial review is permanently and even appropriately precarious in a substantially democratic constitutional order, the Supreme Court has created the *political question doctrine. Although deeply contestable, this doctrine reflects a core notion that some questions of constitutional stature must be viewed as entrusted to the political branches and thus as outside the judicial competence. The Court has also held that the standing doctrine has an explicitly “prudential” dimension, developed to keep the Article III courts from deciding questions that are more suitable for decision by politically accountable decision makers.

All of the Article III justiciability doctrines are fuzzy and both their definitions and their applications have evolved over time. In the modern era, a self-confident Supreme Court headed by Chief Justice Earl *Warren eroded the political question, standing, and mootness doctrines to decide questions of deep political significance in cases in which other governmental institutions betrayed insensitivity to constitutional concerns.

The signal case of *Baker v. Carr (1962) held that the political question doctrine did not bar suits challenging the apportionment of state legislatures; it ultimately led to the “one person, one vote” rule (see reapportionment cases). *Flast v. Cohen (1968), upholding a taxpayer’s standing to challenge the lawfulness of government expenditures under the *First Amendment’s *Establishment Clause, sought to permit effective judicial policing of the constitutional bounds between church and state (see religion).

Retrenching from decisions such as these, the Burger and Rehnquist Courts have imposed a new stringency, at least on the standing component of the case or controversy requirement. *Lujan v. Defenders of Wildlife (1992) ruled that persons who might in the future travel to the habitat of certain endangered species did not suffer the sort of injury that warranted constitutional standing to challenge administrative interpretations of the Endangered Species Act of 1973, and that Congress by legislation could not provide standing in the absence of a sufficiently definite injury. *Nixon v. United States (1993), refusing to adjudicate a claim that the procedures used by the Senate to impeach a federal justice were unconstitutional, (p. 58) demonstrated that the political questions doctrine retains some bite.

Federal Sovereign Immunity and Public Rights.

Beyond the case or controversy requirement that is rooted in the text of Article III, two extratextual concepts have limited the role of the Article III courts under the separation of powers doctrine. The first is *sovereign immunity—a traditional doctrine, transplanted from English to American soil, holding that the sovereign cannot be sued without its consent. In a series of cases tracing as far back as *Cohens v. Virginia (1821), the Supreme Court has affirmed that the Constitution, although it nowhere mentions this doctrine and although Article III provides for federal jurisdiction in cases to which the United States is a party, presupposes the sovereign immunity of the United States.

Beyond the doctrine of sovereign immunity, a sundry category of so-called public rights cases has also been viewed as lying beyond the historically intended scope of Article III. The concept of a public right is notoriously vague, shifting, and elusive; it is as often employed to avoid as to advance analysis. But core historical examples can be identified. These include disputes arising from coercive exercises of government power outside of the criminal law, such as the seizure of alleged contraband, and claims of entitlement to governmentally provided benefits. Although capable of being assigned to Article III courts, public rights cases have not been understood to require judicial resolution, and have often been assigned by Congress to decision makers who lack Article III’s safeguards of adjudicatory independence. These non-Article III adjudicators have included administrative agencies, officials of the executive branch, and judges of so-called legislative courts who serve for a term of years rather than enjoying the tenure during good behavior guaranteed to the Article III judiciary.

Congressional Control of Federal Jurisdiction.

Although permitted by Article III to define the jurisdiction of the lower federal courts and to make exceptions to the jurisdiction of the Supreme Court, Congress was at the center of early controversies over whether federal courts should be vested with jurisdiction to decide all cases involving questions of federal law. The *Removal Act of 1875 settled these doubts in favor of full federal question jurisdiction. The most significant statutes affecting the Supreme Court’s jurisdiction at present have authorized the Court to choose which cases to decide. At the founding of the republic, the number of appeals was sufficiently small so that the Supreme Court could decide all of the cases in which its jurisdiction was lawfully invoked. Today, the volume is so large that the Court can no longer function in this way, and it generally selects those cases that it regards as most interesting and important (see judicial improvements and access to justice act).

The most perplexing question surrounding Congress’s Article III power to define the federal courts’ jurisdiction involves the use of that power to insulate arguably unconstitutional action from federal judicial review. Although old Supreme Court cases suggest otherwise, Professor Henry Hart, in a famous commentary that relies on the structure and spirit of the constitutional plan, terms it “preposterous” that the Article III power to control jurisdiction could be relied on to nullify constitutional rights. Despite a raging academic debate, there are few if any modern cases in which Congress has actually enacted legislation with this purpose or effect.

Article III, Federalism, and State Sovereign Immunity.

As the framers well appreciated, the scope of federal jurisdiction under Article III implicates *state political power. The most important question is well settled. Section 25 of the Judiciary Act of 1789 authorized the Supreme Court to review *state court decisions, including decisions handed by state Supreme courts, and this authority was sustained in *Martin v. Hunter’s Lessee (1816). Martin v. Hunter’s Lessee and subsequent legislative refusals to repeal section 25 helped to establish a workable scheme of American *federalism. Justice Oliver Wendell *Holmes once remarked that the federal republic could have survived without the federal courts exercising judicial review of acts of Congress. But it could not have survived, he said, without federal judicial review of state laws and executive action.

Although Martin v. Hunter’s Lessee established a vital federal authority, state judicial prerogatives are amply protected by the 1875 holding of *Murdock v. Memphis that the Supreme Court will not second-guess state courts’ decisions about state law. The conjunction of Murdock with Martin v. Hunter’s Lessee means that state courts are the ultimate expositors of state law, while the federal Supreme Court has the last word on questions of federal law.

Also mediating the relationship between the Article III federal courts and state political authority are various doctrines founded on the traditional concept of “equitable discretion.” These judge-made doctrines call upon federal trial courts to “abstain” from deciding certain kinds of cases that implicate important state interests at least until a state court has pronounced on relevant state-law issues. The *abstention doctrines are motivated by two kinds of concerns. One involves the functional interest in an efficient allocation of business between the state and federal judiciaries. The other reflects a largely political interest in (p. 59) curbing perceived *“judicial activism” by the lower federal courts.

The scope of Article III judicial authority remains clouded, however, by the traditional doctrine of state sovereign immunity. In the early case of *Chisholm v. Georgia (1793), the Supreme Court held that Article III deprived the states of sovereign immunity when sued by citizens of another state in federal court. But Chisholm was met with a firestorm of adverse reaction, which culminated in the oddly worded *Eleventh Amendment to the Constitution of the United States. Though clearly intended to protect the states from federal judicial power under Article III in some way, the Eleventh Amendment makes no explicit reference to sovereign immunity, and it contains no literal barrier to federal suits to enforce the Constitution and laws of the United States.

After an early period of narrow constructions, the Supreme Court, in its 1890 decision in Hans v. Louisiana, ruled that the Eleventh Amendment bars all unconsented suits brought by citizens against the states in federal courts, including suits to enforce the Constitution. Hans was sharply narrowed by Ex parte *Young (1908), which held that the Eleventh Amendment does not bar suits for injunctions against state officials, and other decisions handed down by the Supreme Court during the first ninety years of the twentieth century, creating the impression that state sovereign immunity was largely a relic easily overcome by competent pleading.

The Rehnquist Court has since the mid 1990s put the bite back into state sovereign immunity. In a series of cases beginning with *Seminole Tribe of Florida v. Florida (1996), the judiciary majority has asserted that federal courts may not adjudicate suits against states without federal authorization and that the Commerce Clause does not give Congress the power to abrogate state sovereign immunity. Nevada Department of Human Resources v. Hibbs (2003) makes clear, however, that Congress may abrogate state sovereign immunity when exercising legislative powers under section 5 of the Fourteenth Amendment.

Legislative Courts, Administrative Agencies, Military Tribunals.

Although Article III provides that “the judicial Power of the United States” shall be vested in judges who enjoy tenure during good behavior and protection against reduction in salary, this stricture has not been stringently construed. Beginning with military courts (see military justice), and with the early appointment of territorial judges to terms of years, Congress has provided for a miscellaneous assortment of cases—most but not all of which have involved public rights—to be tried before federal adjudicators who are not “Article III judges.” This longstanding but problematic practice took on new importance with the burgeoning of administrative agencies, many of which are authorized to pursue a mix of rule making and adjudicative activities (see administrative state).

Although hard to square with the letter of Article III, the concept of administrative adjudication received a reasonable jurisprudential foundation in the pathbreaking case of Crowell v. Benson (1932). Crowell found that the exercise of the federal judicial power through appellate review of agency action is both necessary and sufficient to reconcile administrative adjudication with Article III’s requirement that “the judicial Power of the United States” be vested in life-tenured judges.

Surprisingly, the Supreme Court revisited the problem of administrative adjudication in Northern Pipeline Construction Co. v. Marathon Pipe Line Co. (1982). Although the case before it involved a narrow question about the permissible powers of non–Article III bankruptcy courts, the plurality opinion painted with a broad brush. The Court’s inclination in Northern Pipeline, and apparently in subsequent cases, has been to limit the permissibility of administrative adjudication to a set of historically defined exceptions to Article III’s apparently simple textual norm that the federal judicial power, if vested at all, must be vested in Article III courts. The principal effect of the Court’s stance is to legitimate administrative adjudication in public rights cases—a classification whose ancient but troublesome lineage was noted above—but generally not elsewhere.

The “war” on terrorism brought the relationship between Article I courts and Article III to the forefront. The administration of George W. Bush declared broad power to detain claimed “unlawful combattants” and use military tribunals to try persons suspected of being or assisting terrorists. Critics responded that military tribunals should generally be limited to military personnel and that federal jurisdiction under Article III extends to all persons in detention outside the zone of combat. The Supreme Court in fall 2003 took *certiorari to decide whether federal courts had the power to adjudicate lawsuits from the military detention center in Guantanomo Bay, but as of October 2004 had not yet reached a decision.

Akhil Amar, “A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, Boston University Law Review 65 (1985): 205–272. Paul M. Bator, Daniel J. Meltzer, Paul J. Mishkin, and David L. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System, 3d ed. (1988). Erwin Chemerinsky, Federal Jurisdiction (1989). Richard H. Fallon, Jr., “The Ideologies of Federal Courts Law,” Virginia Law Review 74 (1988): 1141–1251. Richard H. Fallon, Jr., “Of Legislative Courts, Administrative Agencies, and Article (p. 60) III,” Harvard Law Review 101 (1988): 915–999. Mark A. Graber, “Establishing Judicial Review: Marbury and the Judiciary Act of 1789,” Tulsa Law Review 38 (2003): 609–650. Martin H. Redish, Federal Jurisdiction: Tensions in the Allocation of Federal Judicial Power, 2d ed. (1990); James S. Liebman and William F. Ryan, “Some Effectual Power”: The Quantity and Quality of Decisionmaking Required of Article III Courts, Columbia Law Review 98 (1998): 696–887.

Richard H. Fallon, Jr.; revised by Mark A. Graber