Article III. Judicial Department |
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ARTICLE III
__________
JUDICIAL DEPARTMENT
__________
CONTENTS
Page
Section 1. Judicial Power, Courts, Judges................. 597
Organization of Courts, Tenure, and Compensation of Judges 597
One Supreme Court................................. 598
Inferior Courts................................... 599
Abolition of Courts....................... 600
Compensation...................................... 600
Diminution of Salaries.................... 600
Courts of Specialized Jurisdiction................ 602
Legislative Courts: The Canter Case............... 604
Power of Congress Over Legislative Courts. 605
Review of Legislative Courts by Supreme
Court................................. 606
The ``Public Rights'' Distinction......... 607
Constitutional Status of the Court of
Claims and the Court of Customs and
Patent Appeals........................ 610
Status of Courts of the District of
Columbia.............................. 611
Bankruptcy Courts......................... 613
Agency Adjudication....................... 615
Noncourt Entities in the Judicial Branch.......... 617
Judicial Power............................................ 618
Characteristics and Attributes of Judicial Power.......... 618
``Shall Be Vested''............................... 619
Finality of Judgment as an Attribute of Judicial Power.... 620
Award of Execution................................ 621
Ancillary Powers of Federal Courts........................ 623
The Contempt Power........................................ 623
Categories of Contempt............................ 623
The Act of 1789................................... 625
An Inherent Power................................. 625
First Amendment Limitations on the Contempt Power. 627
Due Process Limitations on Contempt Power: Right
to Notice and to a Hearing Versus Summary
Punishment.................................... 629
Due Process Limitations on Contempt Power: Right
to Jury Trial................................. 630
Due Process Limitations on Contempt Power:
Impartial Tribunal............................ 631
Contempt by Disobedience of Orders................ 634
Contempt Power in Aid of Administrative Power..... 634
Sanctions Other than Contempt............................. 635
Power to Issue Writs: The Act of 1789..................... 636
Common Law Powers of District of Columbia Courts.. 637
Habeas Corpus: Congressional and Judicial Control. 638
Habeas Corpus: The Process of the Writ............ 639
Congressional Limitation of the Injunctive Power.......... 641
Injunctions Under the Emergency Price Control Act
of 1942....................................... 643
The Rule-Making Power and Powers Over Process............. 644
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Limitations to This Power......................... 645
Appointment of Referees, Masters, and Special Aids 646
Power to Admit and Disbar Attorneys............... 646
Section 2. Judicial Power and Jurisdiction................ 647
Clause 1. Cases and Controversies; Grants of Jurisdiction. 647
Judicial Power and Jurisdiction--Cases and
Controversies................................. 648
The Two Classes of Cases and Controversies 649
Adverse Litigants......................... 651
Collusive and Feigned Suits....... 652
Stockholder Suits................. 653
Substantial Interest: Standing............ 654
Citizens Suits.................... 655
Taxpayer Suits.................... 656
Constitutional Standards: Injury
in Fact and Causation......... 658
Prudential Standing Rules......... 661
Standing to Assert the
Constitutional Rights of
Others........................ 662
Organizational Standing........... 665
Standing of States to Represent
Their Citizens................ 665
Standing of Members of Congress... 666
Standing to Challenge
Nonconstitutional Governmental
Action........................ 668
The Requirement of a Real Interest........ 670
Advisory Opinion.................. 671
Declaratory Judgment.............. 673
Ripeness.......................... 676
Mootness.......................... 679
Retroactivity versus Prospectivity 683
Political Questions....................... 687
Origins and Development........... 688
The Doctrine Before Baker v. Carr. 689
Baker v. Carr..................... 693
Powell v. McCormack............... 694
The Doctrine Reappears............ 696
Judicial Review................................... 698
The Establishment of Judicial Review...... 698
Marbury v. Madison................ 701
Judicial Review and National
Supremacy..................... 703
Limitations on the Exercise of Judicial
Review................................ 705
Constitutional Interpretation..... 705
Prudential Considerations......... 706
The Doctrine of ``Strict
Necessity''................... 707
The Doctrine of Clear Mistake..... 708
Exclusion of Extra-Constitutional
Tests......................... 709
Presumption of Constitutionality.. 710
Disallowance by Statutory
Interpretation................ 710
Stare Decisis in Constitutional
Law........................... 711
Conclusion........................ 712
Jurisdiction of Supreme Court and Inferior Federal
Courts........................................ 713
Cases Arising Under the Constitution,
Laws, and Treaties of the United
States................................ 713
Development of Federal Question
Jurisdiction.................. 713
When a Case Arises Under.......... 714
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Removal From State Court to
Federal Court................. 716
Corporations Chartered by Congress 717
Federal Questions Resulting from
Special Jurisdictional Grants. 718
Civil Rights Act Jurisdiction..... 719
Pendent Jurisdiction.............. 721
Protective Jurisdiction........... 722
Supreme Court Review of State
Court Decisions............... 723
Suits Affecting Ambassadors, Other Public
Ministers, and Consuls................ 726
Cases of Admiralty and Maritime
Jurisdiction.......................... 728
Power of Congress to Modify
Maritime Law.................. 728
Admiralty and Maritime Cases...... 732
Admiralty Proceedings............. 735
Territorial Extent of Admiralty
and Maritime Jurisdiction..... 736
Admiralty and Federalism.......... 737
Cases to Which the United States Is a
Party................................. 743
Right of the United States to Sue. 743
Suits Against States.............. 745
Immunity of the United States From
Suit.......................... 746
Suits Against United States
Officials..................... 748
Suits Against Government
Corporations.................. 751
Suits Between Two or More States.......... 752
Boundary Disputes: The Law Applied 752
Modern Types of Suits Between
States........................ 753
Cases of Which the Court Has
Declined Jurisdiction......... 755
The Problem of Enforcement:
Virginia v. West Virginia..... 756
Controversies Between a State and Citizens
of Another State...................... 757
Jurisdiction Confined to Civil
Cases......................... 758
The State's Real Interest......... 758
The State as Parens Patriae....... 759
Controversies Between Citizens of
Different States...................... 761
The Meaning of ``State'' and the
District of Columbia Problem.. 762
Citizenship of Natural Persons.... 763
Citizenship of Corporations....... 764
Manufactured Diversity............ 766
The Law Applied in Diversity Cases 767
Controversies Between Citizens of the Same
State Claiming Land Under Grants of
Different States...................... 773
Controversies Between a State, Or the
Citizens Thereof, and Foreign States,
Citizens, or Subjects................. 774
Suits by Foreign States........... 774
Indian Tribes..................... 775
Narrow Construction of the
Jurisdiction.................. 776
Clause 2. Original and Appellate Jurisdiction; Exceptions
and Regulations of Appellate Jurisdiction............. 776
The Original Jurisdiction of the Supreme Court.... 776
Power of Congress to Control the Federal Courts... 779
The Theory of Plenary Congressional
Control............................... 779
Appellate Jurisdiction............ 780
Jurisdiction of the Inferior
Federal Courts................ 782
Congressional Control Over Writs
and Processes................. 785
The Theory Reconsidered................... 786
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Express Constitutional
Restrictions on Congress...... 791
Conclusion........................ 792
Federal-State Court Relations..................... 792
Problems Raised by Concurrency............ 792
The Autonomy of State Courts.............. 794
Noncompliance With and
Disobedience of Supreme
Court's Orders by State Courts 794
Use of State Courts in Enforcement
of Federal Law................ 795
State Interference with Federal
Jurisdiction.................. 797
Conflicts of Jurisdiction: Rules of
Accommodation......................... 798
Comity............................ 798
Abstention........................ 798
Exhaustion of State Remedies...... 800
Anti-Injunction Statute........... 801
Res Judicata...................... 802
Three-Judge Court Act............. 803
Conflicts of Jurisdiction: Federal Court
Interference with State Courts........ 803
Federal Restraint of State Courts
by Injunctions................ 804
Habeas Corpus..................... 809
Removal........................... 819
Clause 3. Trial by Jury................................... 821
Section 3. Treason........................................ 821
Clause 1. Definition and Limitations...................... 821
Treason........................................... 821
Levying War............................... 822
The Burr Trial.................... 823
Aid and Comfort to the Enemy.............. 824
The Cramer Case................... 824
The Haupt Case.................... 824
The Kawakita Case................. 826
Doubtful State of the Law of Treason Today 827
Clause 2. Punishment...................................... 827
Corruption of the Blood and Forfeiture............ 827
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ARTICLE III
JUDICIAL DEPARTMENT
Section 1. The judicial Power of the United States, shall be vested in
one supreme Court, and in such inferior Courts as the Congress may from
time to time ordain and establish. The Judges, both of the supreme and
inferior Courts, shall hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services, a Compensation,
which shall not be diminished during their Continuance in Office.
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\
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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\
\1\M. Farrand, The Framing of the Constitution of the United
States (New Haven: 1913), 79.
\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 (New York:
1971), ch. 5.
\3\1 M. Farrand, op. cit., n. 1, 21-22. That this version might
not possibly be an accurate copy, see 3 id., 593-594.
\4\1 id., 95, 104.
\5\Id., 95, 105. The words ``One or more'' were deleted the
following day without recorded debate. Id., 116, 119.
\6\Id., 124-125.
\7\Madison's notes use the word ``institute'' in place of
``appoint'', id., 125, but the latter appears in the Convention Journal,
id., 118, and in Yates' notes, id., 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., 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., 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., 186. Its draft also
authorized Congress ``[t]o constitute tribunals inferior to the Supreme
Court.'' Id., 182. No debate is recorded when the Convention approved
these two clauses, Id. 315, 422-423, 428-430. 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., 600.
\9\The provision was in the Virginia Plan and was approved
throughout, 1 id., 21.
\10\Id, 121; 2 id., 44-45, 429-430.
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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
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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\
\11\Article I, Sec. 3.
\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 (New York: 1928); Warren, New
Light on the History of the Federal Judicial Act of 1789, 37 Harv. L.
Rev. 49 (1923); see also J. Goebel, op. cit., n. 2, ch. 11.
\13\Act of September 24, 1789, 1 Stat. 73, Sec. 1.
\14\12 Stat. 794, Sec. 1.
\15\Act of July 23, 1866, 14 Stat. 209, Sec. 1.
\16\Act of April 10, 1869, 16 Stat. 44.
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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\
\17\Hearings before the Senate Judiciary Committee on S. 1392,
Reorganization of the Judiciary, 75th Congress, 1st sess. (1937), pt. 3,
491. For earlier proposals to have the Court sit in divisions, see F.
Frankfurter & J. Landis, op. cit., n. 12, 74-85.
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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\
\18\1 C. Warren, The Supreme Court in United States History
(Boston: rev. ed. 1926), 222-224.
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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 to
consist jointly of two Supreme Court justices each and one of the
district judges of such districts which 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 ef
[[Page 600]]
forts 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.
\19\Act of September 24, 1789, 1 Stat. 73, Sec. Sec. 2-3.
\20\Id., 74, Sec. Sec. 4-5
\21\Cf. F. Frankfurter & J. Landis, op. cit., n. 12, chs. 1-3:
J. Goebel. op. cit., n. 2, 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., (Washington:
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 (New York: 1858), 293-
296. The letter was apparently never forwarded to the President.
Writings of Washington, op. cit., 31-32 n. 58. When the constitutional
issue was raised in Stuart v. Laird, 1 Cr. (5 U.S.) 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.
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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 scarcely noticed the argument in rejecting it.
\23\Act of February 13, 1801, 2 Stat. 89.
\24\Act of March 8, 1802, 2 Stat. 132. F. Frankfurter & J.
Landis, op. cit., n. 12, 25-32; 1 C. Warren, op. cit., n. 18, 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 (New Haven: 1918), 63-64. The controversy is recounted
fully in id., 58-78.
\26\1 Cr. (5 U.S.) 299 (1803).
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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.
\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, op. cit., n. 12, 153-174; W. Carpenter, op.
cit., n. 25, 78-94.
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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 de
[[Page 601]]
cided 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\
\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., 226.
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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 its own constitutionality, it did require an
interpretation of which judges the clause applied to in order to prevent
the reductions. 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\
\30\O'Donoghue v. United States, 289 U.S. 516 (1933).
\31\Williams v. United States, 289 U.S. 553 (1933). But see
Glidden Company v. Zdanok, 370 U.S. 530 (1962).
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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
[[Page 602]]
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\
\32\253 U.S. 245 (1920).
\33\268 U.S. 501 (1925).
\34\307 U.S. 277 (1939).
\35\Id., 278-282.
\36\Id., 282.
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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,\37\ 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.
\37\36 Stat. 539.
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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.\38\ 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
[[Page 603]]
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.\39\
\38\56 Stat. 23, Sec. Sec. 31-33.
\39\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. P.L. 92-210,
85 Stat. 743, 211(b). Although controls ended in 1974, see 12 U.S.C.
Sec. 1904 note, Congress continued the Temporary Emergency Court of
Appeals and gave it new jurisdiction. Emergency Petroleum Allocation Act
of 1973, P.L. 93-159, 87 Stat. 633, 15 U.S.C. Sec. 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 Sec. 209 of the
Regional Rail Reorganization Act, P. L. 93-226, 87 Stat. 999, 45 U.S.C.
Sec. 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).
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Other specialized courts are the Court of Appeals for the
Federal Circuit, which is in many respects like the geographic circuits.
Created in 1982,\40\ 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.\41\ 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.\42\
\40\By the Federal Courts Improvement Act of 1982, P. L. 97-164,
96 Stat. 37, 28 U.S.C. Sec. 1295. Among other things, this Court assumed
the appellate jurisdiction of the Court of Claims and the Court of
Customs and Patent Appeals.
\41\Act of Oct. 10, 1980, 94 Stat. 1727.
\42\28 U.S.C. Sec. 1407.
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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.\43\
\43\P. L. 95-511,92 Stat. 1788, 50 U.S.C. Sec. 1803.
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Even greater specialization is provided by the special court
created by the Ethics in Government Act;\44\ the court is charged, upon
[[Page 604]]
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 has certain supervisory powers over the
independent counsel.
\44\Ethics in Government Act, Title VI, P. L. 95-521, 92 Stat.
1867, as amended, 28 U.S.C. Sec. Sec. 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. Sec. 49. The constitutionality of the Special Division was
upheld in Morrison v. Olson, 487 U.S. 654, 670-685 (1988).
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Legislative Courts: The Canter Case
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.\45\ The distinction between
constitutional courts and legislative courts was first made in American
Ins. Co. v. Canter,\46\ 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.''\47\ 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.''\48\
\45\In Freytag v. CIR, 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, Sec. 2, cl. 2. See id., 888-892
(majority opinion), and 901-914 (Justice Scalia dissenting).
\46\1 Pet. (26 U.S.) 511 (1828).
\47\Id., 546.
\48\In Glidden Co. v. Zdanok, 370 U.S. 530, 544-545 (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.
. . .''
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Canter postulated a simple proposition: ``Constitutional courts
exercise the judicial power described in Art. III of the Constitution;
legislative courts do not and cannot.''\49\ A two-fold difficulty at
[[Page 605]]
tended 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?\50\
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 nonprotected
entities that, being subjected to influence, would be bent to the
popular will?
\49\Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458
U.S. 50, 106 (1982) (Justice White dissenting).
\50\That the Supreme Court could review the judgments of
territorial courts was established in Durousseau v. United States, 6 Cr.
(10 U.S.) 307 (1810). See also Benner v. Porter, 9 How. (50 U.S.) 235,
243 (1850); Clinton v. Englebrecht, 13 Wall. (80 U.S.) 434 (1872);
Balzac v. Porto Rico, 258 U.S. 298, 312-313 (1922).
---------------------------------------------------------------------------
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''.\51\ Nonetheless,
Article I courts are quite usual entities in our judicial system.\52\
\51\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.
\52\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, Sec. 951, 83 Stat. 730, 26 U.S.C. Sec. 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. Sec. 4051, and the courts of the territories
of the United States. Magistrate judges are adjuncts of the District
Courts, see infra, n. 105, 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. Sec. 867,
although Congress designated it an Article I tribunal and has recently
given the Supreme Court certiorari jurisdiction over its decisions.
---------------------------------------------------------------------------
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,\53\ or it may reduce their
[[Page 606]]
salaries during their terms.\54\ 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,\55\ 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,\56\ 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.''\57\
\53\McAllister v. United States, 141 U.S. 174 (1891).
\54\United States v. Fisher, 109 U.S. 143 (1883); Williams v.
United States, 289 U.S. 553 (1933).
\55\2 Wall. (69 U.S.) 561 (1864).
\56\13 How. (54 U.S.) 40 (1852).
\57\Id., 48.
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Review of Legislative Courts by Supreme Court.--Chief Justice
Taney's view, that would have been expressed in Gordon,\58\ that the
judgments of legislative courts could never be reviewed by the Supreme
Court, was tacitly rejected in DeGroot v. United States,\59\ 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.\60\ But in proceedings before a
legislative court which are judicial in nature, admit of a final
judgment, and involve the per
[[Page 607]]
formance of judicial functions and therefore the exercise of judicial
power, the Court may be vested with appellate jurisdiction.\61\
\58\The opinion in Gordon v. United States, 2 Wall. (69 U.S.)
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.
\59\5 Wall. (72 U.S.) 419 (1867). See also United States v.
Jones, 119 U.S. 477 (1886).
\60\E.g., Postum Cereal Co. v. California Fig Nut Co., 272 U.S.
693 (1927); Federal Radio Comm. 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).
\61\Pope v. United States, 323 U.S. 1, 14 (1944); D. C. Court of
Appeals v. Feldman, 460 U.S. 462 (1983).
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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.\62\ In
this case was challenged 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 nonjudicial
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.''\63\ 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.''\64\
\62\18 How. (59 U.S.) 272 (1856).
\63\Id., 284.
\64\Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929).
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Among the matters susceptible of judicial determination, but not
requiring it, are claims against the United States,\65\ the disposal of
public lands and claims arising therefrom,\66\ questions concerning
membership in the Indian tribes,\67\ and questions arising out of the
administration of the customs and internal revenue
[[Page 608]]
laws.\68\ Other courts similar to territorial courts, such as consular
courts and military courts martial, may be justified on like
grounds.\69\
\65\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).
\66\United States v. Coe, 155 U.S. 76 (1894) (Court of Private
Land Claims).
\67\Wallace v. Adams. 204 U.S. 415 (1907); Stephens v. Cherokee
Nation, 174 U.S. 445 (1899) (Choctaw and Chickasaw Citizenship Court).
\68\Old Colony Trust Co. v. CIR, 279 U.S. 716 (1929); Ex Parte
Bakelite Corp., 279 U.S. 438 (1929).
\69\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, 20 How. (61 U.S.) 65, 79 (1857).
---------------------------------------------------------------------------
The ``public rights'' distinction appears today to be a
description without a significant distinction. Thus, in Crowell v.
Benson,\70\ 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.''\71\ 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 of legal and constitutional questions, as long as there
is adequate review in a constitutional court.\72\ The ``essential
attributes'' of decision must remain in an Article III court, but so
long as it does, Congress may utilize administrative decisionmakers in
those private rights cases that arise in the context of a comprehensive
federal statutory scheme.\73\ 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 reasserted in Marathon, but there
was much the Court plurality did not explain.\74\
\70\285 U.S. 22 (1932).
\71\Id. 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).
\72\Id., 51-65.
\73\Id., 50, 51, 58-63. Thus, Article III concerns were
satisfied by a review of the agency fact finding upon the administrative
record. Id., 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., 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., 76-87.
\74\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., 69 & n. 23. Crowell v. Benson,
however, remained an embarrassing presence.
---------------------------------------------------------------------------
The Court continued to waver with respect to the importance to
decision-making of the public rights/private rights distinction. In
[[Page 609]]
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.\75\
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.\76\
\75\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, supra, 586; and see
id., 596-599 (Justice Brennan concurring).
\76\``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 Carbide Agric.
Products Co., 473 U.S. 568, 589 (1985) (quoting Northern Pipeline,
supra, 458 U.S., 68 (plurality opinion)).
---------------------------------------------------------------------------
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.\77\ 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.\78\ 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 ac
[[Page 610]]
tion 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).\79\
\77\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., 52-53.
\78\Id., 52-54. The Court reiterated that the Government need
not be a party as a prerequisite to a matter being of ``public right.''
Id., 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, 65.
\79\Id., 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., 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. den., 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).
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Constitutional Status of the Court of Claims and the Courts of
Customs and Patent Appeals.--Though the Supreme Court for a long while
accepted the Court of Claims as an Article III court,\80\ it later ruled
that court to be an Article I court and its judges without
constitutional protection of tenure and salary.\81\ 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,\82\ a questionable act under the standards the Court had
utilized to determine whether courts were legislative or
constitutional.\83\ But in Glidden Co. v. Zdanok,\84\ 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.\85\ 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
[[Page 611]]
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.\86\ The other four Justices expressly declared that
Bakelite and Williams should not be overruled,\87\ 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.\88\ Two Justices maintained that both courts remained
legislative tribunals.\89\ 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.\90\
\80\De Groot v. United States, 5 Wall. (72 U.S.) 419 (1866);
United States v. Union Pacific Co., 98 U.S. 569, 603 (1878); Miles v.
Graham, 268 U.S. 501 (1925).
\81\Williams v. United States, 289 U.S. 553 (1933); cf. Ex Parte
Bakelite Corp., 279 U.S. 438, 450-455 (1929).
\82\67 Stat. 226, Sec. 1, 28 U.S.C. Sec. 171 (Court of Claims);
70 Stat. 532. Sec. 1, 28 U.S.C. Sec. 251 (Customs Court); 72 Stat. 848,
Sec. 1, 28 U.S.C. Sec. 211 (Court of Customs and Patent Appeals).
\83\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.''
\84\370 U.S. 530 (1962).
\85\Glidden Co. v. Zdanok, 370 U.S. 530, 531 (1962) (Justices
Harlan, Brennan, and Stewart).
\86\Id., 548, 552.
\87\Id., 585 (Justice Clark and Chief Justice Warren
concurring); 589 (Justices Douglas and Black dissenting).
\88\Id., 585 (Justice Clark and Chief Justice Warren).
\89\Id., 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., 583.
\90\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. Sec. 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, Sec. 902(a)(1), 106 Stat. 4516, 28 U.S.C. Sec. Sec. 171-180.
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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,\91\
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.\92\
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.\93\ 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.,\94\ while
reviewing the history and ana
[[Page 612]]
lyzing the nature of the legislative courts, the Court stated that the
courts of the District were legislative courts.
\91\112 U.S. 50 (1884).
\92\Keller v. Potomac Elec. Co., 261 U.S. 428 (1923).
\93\Federal Radio Comm. v. General Elec. Co., 281 U.S. 464
(1930).
\94\279 U.S. 438, 450-455 (1929).
---------------------------------------------------------------------------
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,\95\ 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, Sec. 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.''\96\
\95\O'Donoghue v. United States, 289 U.S. 516 (1933).
\96\Id., 535-546. 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., 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.C.D.C. 1967) (three-judge court).
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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.\97\ Congress' action was sustained in Palmore v. United States.\98\
When legislating for the District, the Court held, Congress has the
power of a local legislature and may, pursuant to Article I, Sec. 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 na
[[Page 613]]
tional 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.''\99\
\97\P.L. 91-358, 84 Stat. 475, D.C. Code Sec. 11-101.
\98\411 U.S. 389 (1973)
\99\Id., 407-408. 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 postjudgment 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).
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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.\100\ 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.\101\ 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
[[Page 614]]
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.\102\ 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.\103\
\100\Bankruptcy Act of 1978, P.L. 95-598, 92 Stat. 2549,
codified in titles 11, 28. The bankruptcy courts were made ``adjuncts''
of the district courts by Sec. 201(a), 28 U.S.C. Sec. 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).
\101\The statement of the holding is that of the two concurring
Justices, id., 89 (Justices Rehnquist and O'Connor), with which the
plurality agreed ``at the least,'' while desiring to go further. Id., 87
n. 40.
\102\Id., 63-76 (Justice Brennan, joined by Justices Marshall,
Blackmun, and Stevens).
\103\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
assigned 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.
---------------------------------------------------------------------------
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.\104\
\104\Id., 92, 105-113, 113-116 (Justice White, joined by Chief
Justice Burger and Justice Powell).
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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.\105\ But the
breadth of the various opinions left unclear not only the degree of
discretion left in Congress to restructure the bankruptcy courts, but
placed in issue the constitutionality of other legislative efforts
[[Page 615]]
to establish adjudicative systems outside a scheme involving the
creation of life-tenured judges.\106\
\105\Ex parte Bakelite Corp., 279 U.S. 438 (1929), was, after
all, a unanimous opinion and did not long survive.
\106\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. P.L.
90-578, 82 Stat. 1108, as amended, 28 U.S.C. Sec. Sec. 631-639. See
United States v. Raddatz, 447 U.S. 667 (1980); Mathews v. Weber, 423
U.S. 261 (1976).
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Congress responded to Marathon by enactment of the Bankruptcy
Amendments and Federal Judgeship Act of 1984.\107\ 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 the bankruptcy courts could initially hear and decide, any
party could have de novo review in the district court, 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.\108\ Notice that in Granfinanciera, S.A. v. Nordberg,\109\ the
Court found that a cause of action founded on state law, though
denominated a core proceeding, was a private right.
\107\P. L. 98-353, 98 Stat. 333, judiciary provisions at 28
U.S.C. Sec. 151 et seq.
\108\See 28 U.S.C. Sec. 157.
\109\492 U.S. 33 (1989).
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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,\110\ 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.,\111\ 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,\112\
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 pri
[[Page 616]]
vate parties nor the fact that the CFTC was empowered to decide claims
traditionally adjudicated under state law proved decisive to the Court's
analysis.
\110\Id.
\111\473 U.S. 568 (1985).
\112\478 U.S. 833 (1986).
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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.\113\
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.''\114\ Also important was not ``unduly constrict[ing] Congress
in its ability to take needed and innovative action pursuant to its
Article I powers;''\115\ 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.'''\116\
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.''\117\
\113\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.
\114\Id., 473 U.S., 589.
\115\CFTC v. Schor, supra, 478 U.S., 851 (summarizing the Thomas
rule).
\116\Thomas, supra, 473 U.S., 591, 592(quoting Crowell v.
Benson, 285 U.S. 22, 54 (1932)).
\117\473 U.S., 594.
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In Schor, the Court described Art. III, Sec. 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
[[Page 617]]
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,\118\ 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.''
\118\Cf. Union Carbide, supra, 473 U.S., 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'').
---------------------------------------------------------------------------
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 must be itself 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, 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.\119\
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.\120\
\119\Granfinanciera, supra, 492 U.S., 51-55, 55-60.
\120\Id., 59 n. 14.
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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 constitu
[[Page 618]]
tionality, 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.\121\
\121\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).
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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.''\122\ It is ``the right to
determine actual controversies arising between diverse litigants, duly
instituted in courts of proper jurisdiction.''\123\ 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\124\ or as the ``power to entertain the suit, consider the merits
and render a binding decision thereon,''\125\ 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.\126\ Included
within the general power to decide cases are the ancillary powers of
courts to punish for contempts of their authority,\127\ to issue writs
[[Page 619]]
in aid of jurisdiction when authorized by statute,\128\ to make rules
governing their process in the absence of statutory authorizations or
prohibitions,\129\ 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,\130\ to
appoint masters in chancery, referees, auditors, and other
investigators,\131\ and to admit and disbar attorneys.\132\
\122\Justice Samuel Miller, On the Constitution (New York:
1891), 314.
\123\Muskrat v. United States, 219 U.S. 346, 361 (1911).
\124\United States v. Arrendondo, 6 Pet. (31 U.S.) 691 (1832).
\125\General Investment Co. v. New York Central R. Co., 271 U.S.
228, 230 (1926).
\126\William v. United States, 289 U.S. 553, 566 (1933) ; Yakus
v. United States, 321 U.S. 414, 467-468 (1944) (Justice Rutledge
dissenting).
\127\Michaelson v. United States, 266 U.S. 42 (1924).
\128\McIntire v. Wood, 7 Cr. (11 U.S.) 504 (1813); Ex parte
Bollman, 4 Cr. (8 U.S.) 75 (1807).
\129\Wayman v. Southard, 10 Wheat. (23 U.S.) 1 (1825).
\130\Gumble v. Pitkin, 124 U.S. 131 (1888).
\131\Ex parte Peterson, 253 U.S. 300 (1920).
\132\Ex parte Garland, 4 Wall. (71 U.S. ) 333, 378 (1867).
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``Shall Be Vested.''--The distinction between judicial power and
jurisdiction is especially pertinent to the meaning of the words ``shall
be vested'' in Sec. 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,\133\ the Constitution has not been read to mandate Congress to
confer the entire jurisdiction it might.\134\ 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,\135\ and, second, an act of Congress must have conferred
it.\136\ The fact that federal courts are of limited jurisdic
[[Page 620]]
tion means that litigants in them must affirmatively establish that
jurisdiction exists and may not confer nonexistent jurisdiction by
consent or conduct.\137\
\133\Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304, 328-331
(1816). See also 3 J. Story, Commentaries on the Constitution of the
United States (Boston: 1833), 1584-1590.
\134\See, e.g., Turner v. Bank of North America, 4 Dall. (4
U.S.) 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 Symposium: Article III and the
Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990) (with articles by
Amar, Meltzer, and Redish). Briefly, the matter is discussed more fully
infra, Professor Amar argues, in part, from the text of Article III,
Sec. 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.
\135\Which was, of course, the point of Marbury v. Madison, 1
Cr. (5 U.S.) 137 (1803), once the power of the Court to hold legislation
unconstitutional was established.
\136\The Mayor v. Cooper, 6 Wall. (73 U.S.) 247, 252 (1868);
Cary v. Curtis, 3 How. (44 U.S.) 236 (1845); Sheldon v. Sill, 8 How. (49
U.S.) 441 (1850); United States v. Hudson & Goodwin, 7 Cr. (11 U.S.) 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. den., 335 U.S. 887 (1948); Petersen v. Clark, 285 F. Supp. 700.
703 n. 5 (D.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.
\137\Turner v. Bank of North America, 4 Dall. (4 U.S.) 8 (1799);
Bingham v. Cabot, 3 Dall. (3 U.S.) 382 (1798); Jackson v. Ashton, 8 Pet.
(33 U.S.) 148 (1834); Mitchell v. Maurer, 293 U.S. 237 (1934).
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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.''\138\ 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 control by an officer of the executive or the legislature
was not authorized by the Constitution.\139\ 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.\140\
\138\Act of March 23, 1792, 1 Stat. 243.
\139\1 American State Papers: Miscellaneous Documents,
Legislative and Executive, of the Congress of the United States
(Washington : 1832), 49, 51, 52. President Washington transmitted the
remonstrances to Congress. 1 J. Richardson, (comp.), Messages and Papers
of the Presidents (Washington : 1897), 123, 133. The objections are also
appended to the order of the Court in Hayburn's Case, 2 Dall. (2 U.S.)
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, 13 How. (54 U.S.) 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).
\140\Hayburn's Case, 2 Dall. (2 U.S.) 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.
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[[Page 621]]
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
executive or legislative revision.\141\ 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,''\142\ More recently,
the Court avoided a similar situation by a close construction of a
statute.\143\
\141\See United States v. Ferreira, 13 How. (54 U.S.) 40 (1852);
Gordon v. United States, 2 Wall. (69 U.S.) 561 (1865); In re Sanborn,
148 U.S. 222 (1893); cf. McGrath v. Kritensen, 340 U.S. 162, 167-168
(1950).
\142\Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S.
103, 113-114 (1948).
\143\Connor v. Johnson, 402 U.S. 690 (1971). Under Sec. 5 of the
Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. Sec. 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 Board 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.
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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 posthumously-
published opinion.\144\ In Gordon v. United States,\145\ the Court
refused to hear an appeal from a decision of the Court of Claims; the
act establishing the Court of Claims provided for ap
[[Page 622]]
peals 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.''\146\ 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.\147\
\144\The opinion was published in 117 U.S. 697. See infra, n.
58, and text. See United States v. Jones, 119 U.S. 477 (1886). The Chief
Justice's initial effort was in United States v. Ferreira, 13 How. (54
U.S.) 40 (1852).
\145\2 Wall. (69 U.S.) 561 (1865).
\146\Act of February 24, 1855, 10 Stat. 612, as amended, Act of
March 3, 1963, 12 Stat. 737.
\147\Gordon v. United States, 2 Wall. (69 U.S.) 561 (1865).
Following congressional repeal of the objectionable section, Act of
March 17, 1866, 14 Stat. 9, the Court accepted appellate jurisdiction.
United States v. Jones, 119 U.S. 477 (1886); De Groot v. United States,
5 Wall. (72 U.S.) 419 (1867). But note that execution of the judgments
was still dependent upon congressional appropriations. On the effect of
the requirement for appropriations at a time when appropriations had to
be made for judgments over $100,000, see Glidden Co. v. Zdanok, 370 U.S.
530, 568-571 (1962). Cf. Regional Rail Reorganization Act Cases
(Blanchette v. Connecticut General Ins. Corp.), 419 U.S. 102, 148-149 &
n. 35 (1974).
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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.\148\ The rule was most significant in
barring the lower federal courts from hearing proceedings for
declaratory judgments\149\ and in denying appellate jurisdiction in the
Supreme Court from declaratory proceedings in state courts.\150\
\148\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).
\149\Liberty Warehouse Co. v. Grannis, 273 U.S. 70 (1927).
\150\Liberty Warehouse Co. v. Burley Tobacco Growers' Coop.
Marketing Assn., 276 U.S. 71 (1928).
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[[Page 623]]
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.''\151\ 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.\152\ 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.
\151\Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123,
132 (1927).
\152\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. Sec. Sec. 2201-2202, and
unanimously sustained in Aetna Life Ins. Co. v. Haworth, 300 U.S. 227
(1937).
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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,\153\ 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.\154\ In the case of Shillitani v. United
States,\155\ 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.
\153\E.g., United States v. United Mine Workers, 330 U.S. 258
(1947).
\154\Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-443
(1911); Ex parte Grossman, 267 U.S. 87 (1925). See also Bassette v. W.
B. Conkey Co., 194 U.S. 324, 327-328 (1904).
\155\384 U.S. 364 (1966).
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[[Page 624]]
Upon 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.\156\ 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 deterrence.''\157\ The issue of whether a certain contempt
is either civil or criminal can be of great importance as demonstrated
in the dictum of Ex parte Grossman,\158\ 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.\159\
\156\Id., 370.
\157\Id., 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).
\158\267 U.S. 87, 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, Michalson 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).
\159\See United States v. United Mine Workers, 330 U.S. 258, 299
(1947).
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A second but more subtle distinction, with regard to the
categories of contempt, is the difference between direct and indirect
contempt--albeit 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;''\160\
indirect contempt is behavior which the Court did not itself
witness.\161\ 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 multiply
[[Page 625]]
ing of the due process requirements that must otherwise be met when
finding an individual to be in contempt.\162\
\160\Act of March 2, 1831, ch. 99, Sec. 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).
\161\See Fox, The Nature of Contempt of Court, 37 L.Q. Rev. 191
(1921).
\162\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 of
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.
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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.\163\ By the latter part
of the eighteenth century, summary power to punish was extended to all
contempts whether committed in or out of court.\164\ In the United
States, the Judiciary Act of 1789 in section 17\165\ 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 misbehavior 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.\166\
\163\Fox, The King v. Almon, 24 L.Q. Rev. 184, 194-195 (1908).
\164\Fox, The Summary Power to Punish Contempt, 25 L.Q. Rev.
238, 252 (1909).
\165\1 Stat. 83 (1789).
\166\18 U.S.C. Sec. 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).
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An Inherent Power.--The validity of the act of 1831 was
sustained forty-three years later in Ex parte Robinson,\167\ 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 enforce
[[Page 626]]
ment 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.''\168\ 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.
\167\19 Wall. (86 U.S.) 505 (1874).
\168\Id., 505-511.
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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.\169\ In Michaelson
v. United States,\170\ the Court intentionally placed a narrow
interpretation upon those sections of the Clayton Act\171\ 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.\172\ This latter power, to enforce,
the Court has held, includes the authority to appoint private counsel to
prosecute a criminal contempt.\173\
\169\Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450
(1911). See also In re Debs, 158 U.S. 564, 595 (1895).
\170\266 U.S. 42 (1924).
\171\38 Stat. 730, 738 (1914).
\172\266 U.S., 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).
\173\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., 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., 802-808. 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., 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. Sec. 518.
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[[Page 627]]
While the contempt power may be inherent, it is not unlimited.
In Spallone v. United States,\174\ 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.
\174\493 U.S. 265 (1990). The decision was an exercise of the
Court's supervisory power. Id., 276. Four Justices dissented. Id., 281.
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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 in Toledo Newspaper Co. v.
United States\175\ so broadly as to uphold the action of a district
court judge in punishing for contempt a newspaper 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.''\176\ In Craig v. Hecht,\177\ 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.
\175\247 U.S. 402 (1918).
\176\Id., 418-421.
\177\263 U.S. 255 (1923).
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[[Page 628]]
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,\178\ 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\179\ 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.\180\
\178\313 U.S. 33, 47-53 (1941).
\179\314 U.S. 252, 260 (1941).
\180\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 statement attacking a
charge to the grand jury, absent any showing of actual interference with
the activities of the grand jury.
It is now clearly established 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).
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A series of cases involving highly publicized trials and much
news media attention and exploitation,\181\ 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 Shepard v.
Maxwell,\182\ 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 palliatives; 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
[[Page 629]]
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.\183\
\181\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).
\182\384 U.S. 333, 363 (1966).
\183\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).
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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,\184\ 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,\185\ however, the Court
remanded for further proceedings a judgment of the United States Circuit
Court of Texas sustaining the judgment of a United States district judge
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.''\186\
\184\128 U.S. 289 (1888).
\185\267 U.S. 517 (1925).
\186\Id., 535, 534.
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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,\187\ as to
[[Page 630]]
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.''\188\ 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.\189\
\187\343 U.S. 1 (1952).
\188\Id., 11.
\189\Taylor v. Hayes, 418 U.S. 488 (1974). In a companion case,
the Court 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).
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Curbing the judge's power to consider conduct as occurring in
his presence, the Court, in Harris v. United States,\190\ 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.\191\
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.''\192\
\190\382 US. 162 (1965), overruling Brown v. United States, 359
U.S. 41 (1959).
\191\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).
\192\Johnson v. Mississippi, 403 U.S. 212, 215 (1971) (citing In
re Oliver, 333 U.S. 257, 275-276 (1948)).
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Due Process Limitations on Contempt Power: Right to Jury
Trial.--Until recently, it was the rule that the right to a jury trial
was not available in criminal contempt cases.\193\ But in Cheff
[[Page 631]]
v. Schnackenberg,\194\ 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.\195\ 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.''\196\ Presumably, there is no equivalent
right to a jury trial in civil contempt cases,\197\ 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;\198\ however, the
Court has expanded the right to jury trials in federal civil cases on
nonconstitutional grounds,\199\ so that it is possible the process
followed in criminal contempts could be repeated.
\193\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).
\194\384 U.S. 373 (1966).
\195\Bloom v. Illinois, 391 U.S. 194 (1968).
\196\Id., 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 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).
\197\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.
\198\Note that under 28 U.S.C. Sec. 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. Sec. 3331(a).
\199\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).
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Due Process Limitations on Contempt Powers: Impartial
Tribunal.--In Cooke v. United States,\200\ Chief Justice Taft ut
[[Page 632]]
tered 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.''
\200\267 U.S. 517, 539 (1925).
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Sacher v. United States\201\ 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, setting aside others, and denied that due process required
a hearing before a different judge. ``We hold that Rule 42 allows the
[[Page 633]]
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.\202\
\201\343 U.S. 1 (1952). See Dennis v. United States, 341 U.S.
494 (1951).
\202\Id., 13-14.
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In Offutt v. United States,\203\ 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,\204\ 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
[[Page 634]]
by citing and convicting an offender, thus empowering the judge to keep
the trial going,\205\ but if he should wait until the conclusion of the
trial he must defer to another judge.
\203\348 U.S. 11 (1954).
\204\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).
\205\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.
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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,\206\ 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.\207\ Third, on the basis of United States v.
Shipp,\208\ 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.\209\
\206\330 U.S. 258, 293-307 (1947).
\207\See Walker v. City of Birmingham, 388 U.S. 307 (1967).
\208\203 U.S. 563 (1906).
\209\See United States v. United Mine Workers, 330 U.S. 258, 299
(1947). But see Cheff v. Schnackenberg, 384 U.S. 273 (1966), and supra,
630-631, as to due process limitations.
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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,\210\ 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 con
[[Page 635]]
tempt.\211\ 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.\212\
\210\154 U.S. 447 (1894).
\211\Penfield Co. v. SEC, 330 U.S. 585 (1947). Note the dissent
of Justice 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. 61 (1939); Endicott Johnson
Corp. v. Perkins, 317 U.S. 501 (1943); Oklahoma Press Pub. Co. v.
Walling, 327 U.S. 186 (1946).
\212\Gojack v. United States, 384 U.S. 702 (1966). See also
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.
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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.\213\ 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.\214\ Of course, these inherent powers
may be limited by statutes and by rules,\215\ 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
but also 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.\216\
\213\``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 and Goodwin, 7 Cr. (11 U.S.) 32, 34 (1812).
\214\See Anderson v. Dunn, 6 Wheat. (19 U.S.) 204, 227 (1821);
Ex parte Robinson, 19 Wall. (86 U.S.) 505, 510 (1874); Link v. Wabash R.
Co., 370 U.S. 626, 630-631 (1962); Chambers v. NASCO, Inc., 501 U.S. 32,
43-46 (1991); and id., 58 (Justice Scalia dissenting), 60, 62-67
(Justice Kennedy dissenting).
\215\Id., 47.
\216\Id., 46-51. But see id., 62-67 (Justice Kennedy
dissenting).
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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, ordi
[[Page 636]]
narily against the American rule.\217\ 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.\218\ 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.\219\
\217\Id., 49-51. On the implications of the fact that this was a
diversity case, see id., 51-55.
\218\Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980).
\219\Link v. Wabash R. Co., 370 U.S. 626 (1962).
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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.\220\ 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.''\221\ 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.''\222\ 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.\223\
\220\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).
\221\1 Stat. 73, Sec. 81.
\222\Id., Sec. Sec. 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. Sec. 1651(a), gives federal courts the power to employ
the ancient writ of coram nobis.
\223\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).
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[[Page 637]]
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,\224\ 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.\225\ 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.\226\
\224\495 U.S. 33 (1990).
\225\Id., 55 (citing Griffin v. Prince Edward County School Bd.,
377 U.S. 218, 233-234 (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'')).
\226\Id., 50-52.
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Common Law Powers of District of Columbia Courts.--That portion
of Sec. 13 which authorized the Supreme Court to issue writs of mandamus
in the exercise of its original jurisdiction was held invalid in Marbury
v. Madison,\227\ 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,\228\ a litigant
was successful in Kendall v. United States ex rel. Stokes,\229\ 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
[[Page 638]]
limits imposed by the common law and the separation of powers.\230\
\227\1 Cr. (5 U.S.) 137 (1803). Cf. Wiscart v. D'Auchy, 3 Dall.
(3 U.S.) 321 (1796).
\228\McIntire v. Wood, 7 Cr. (11 U.S.) 504 (1813); McClung v.
Silliman, 6 Wheat. (19 U.S.) 598 (1821).
\229\12 Pet. (37 U.S.) 524 (1838).
\230\In 1962, Congress conferred upon all federal district
courts the same power to issue writs of mandamus as was hitherto
exercisable by federal courts in the District of Columbia. 76 Stat. 744,
28 U.S..C Sec. 1361.
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Habeas Corpus: Congressional and Judicial Control.--Although the
writ of habeas corpus\231\ has a special status because its suspension
is forbidden, except in narrow circumstances, by Article I. Sec. 9, cl.
2, nowhere in the Constitution 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 without need
of a statute?\232\ Since Chief Justice Marshall's opinion in Ex parte
Bollman,\233\ 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.''\234\ 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.''\235\ And
so it has been under
[[Page 639]]
stood since,\236\ with a few judicial voices raised to suggest that what
Congress could not do directly it could not do by omission,\237\ 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.\238\
\231\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, 4 Cr. (8 U.S.) 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. Sec. 2255, on a motion to
vacate judgment. Intimating that if Sec. 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 to be 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
Sec. 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).
\232\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).
\233\4 Cr. (8 U.S.) 75 (1807).
\234\Id., 94. And see Ex parte Dorr, 3 How. (44 U.S.) 103
(1845).
\235\Id., 95. Note that in quoting the clause, Marshall renders
``shall not be suspended'' as ``should not be suspended.''
\236\See Ex parte McCardle, 7 Wall. (74 U.S.) 506 (1869). Cf.
Carbo v. United States, 364 U.S. 611, 614 (1961).
\237\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 Justice Black's dissent, id.,
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).
\238\Cf. Ex Parte McCardle, 7 Wall. (74 U.S.) 506 (1869).
---------------------------------------------------------------------------
Having determined that a statute was necessary before the
federal courts had power to issue writs of habeas corpus, Chief Justice
Marshall pointed to Sec. 14 of the Judiciary Act of 1789 as containing
the necessary authority.\239\ 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,\240\ that
legislation specifically empowered federal courts to inquire into the
imprisonment of persons under state authority.\241\ 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.
\239\Ex parte Bollman, 4 Cr. (8 U.S.) 75, 94 (1807). See Fay v.
Noia, 372 U.S. 391, 409 (1963).
\240\Act of March 2, 1833, Sec. 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, Sec. 38, 2 Stat. 19,
32 (habeas corpus for imprisoned debtor discharged in bankruptcy),
repealed by Act of December 19, 1803, 2 Stat. 248.
\241\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, 3 How, (44 U.S.) 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).
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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.\242\
[[Page 640]]
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,\243\ 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.''\244\ 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.\245\
\242\28 U.S.C. Sec. Sec. 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.
\243\McNally v. Hill, 293 U.S. 131 (1934); Parker v. Ellis, 362
U.S. 574 (1960).
\244\28 U.S.C. Sec. 2243. See Peyton v. Rowe, 391 U.S. 54
(1968). See also Maleng v. Cook, 490 U.S. 488 (1989).
\245\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.
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Petitioners coming into federal habeas must first exhaust their
state remedies, a limitation long settled in the case law and codified
in 1948.\246\ 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.\247\ 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,\248\
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.\249\
\246\28 U.S.C. Sec. 2254(b). See Preiser v. Rodriguez, 411 U.S.
475, 490-497 (1973), and id. 500, 512-524 (Justice Brennan dissenting);
Rose v. Lundy, 455 U.S. 509, 515-521 (1982). If a prisoner submits a
petition with both exhausted and unexhausted claims, the habeas court
must dismiss the entire petition. Rose v. Lundy, supra, 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).
\247\Brown v. Allen, 344 U.S. 443, 447-450 (1953); id., 502
(Justice Frankfurter concurring); Castille v. Peoples, 489 U.S. 346, 350
(1989).
\248\Fay v. Noia, 372 U.S. 391, 435 (1963), overruling Darr v.
Burford, 339 U.S. 200 (1950).
\249\28 U.S.C. Sec. 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).
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[[Page 641]]
A federal prisoner in a Sec. 2255 proceeding will file his
motion in the court which sentenced him;\250\ 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.\251\
\250\28 U.S.C. Sec. 2255.
\251\28 U.S.C. Sec. 2241(d). Cf. Braden v. 30th Judicial Circuit
Court, 410 U.S. 484 (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.
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Habeas corpus is not a substitute for an appeal.\252\ 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.\253\
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.\254\
\252\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).
\253\Estelle v. McGuire, 112 S.Ct. 475 (1991); Lewis v. Jeffers,
497 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41-42 (1984)
\254\28 U.S.C. Sec. 2244(b). See Whiteley v. Warden, 401 U.S.
560, 569 (1971); Irvin v. Dowd, 366 U.S. 717, 729 (1961).
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Congressional Limitation of the Injunctive Power
Although the speculations of some publicists and some judicial
dicta\255\ 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 Sec. 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
[[Page 642]]
provision did no more than declare a pre-existing rule long applied in
chancery courts,\256\ it did assert the power of Congress to regulate
the equity powers of the federal courts. The Act of March 2, 1793,\257\
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,\258\ provided
for a three-judge court as a prerequisite to the issuance of injunctions
to restrain the enforcement of state statutes for
unconstitutionality,\259\ for enjoining federal statutes for
unconstitutionality,\260\ and for enjoining orders of the Interstate
Commerce Commission,\261\ limited the power to issue injunctions
restraining rate orders of state public utility commissions,\262\ and
the use of injunctions in labor disputes,\263\ and placed a very rigid
restriction on the power to enjoin orders of the Administrator under the
Emergency Price Control Act.\264\
\255\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 pre-existing 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, Sec. 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.''
\256\Boyce's Executors v. Grundy, 3 Pet. (28 U.S.) 210 (1830).
\257\1 Stat. 333, 28 U.S.C. Sec. 2283.
\258\26 U.S.C. Sec. 7421(a).
\259\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, Sec. 1, 90 Stat. 1119, and Sec. 3, id., 28 U.S.C.
Sec. 2284. Congress occasionally provides for such courts, as in the
Voting Rights Act. 42 U.S.C. Sec. Sec. 1971, 1973c.
\260\Repealed by P. L. 94-381, Sec. 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).
\261\Repealed by P. L. 93-584, Sec. 7, 88 Stat. 1918.
\262\28 U.S.C. Sec. 1342.
\263\29 U.S.C. Sec. Sec. 52, 101-110.
\264\56 Stat. 31, 204 (1942).
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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,\265\ 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.\266\
\265\Freeman v. Howe, 24 How. (65 U.S.) 450 (1861); Gaines v.
Fuentes, 92 U.S. 10 (1876); Ex parte Young, 209 U.S. 123 (1908).
\266\Infra, pp.801-802.
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In Duplex Printing Press v. Deering,\267\ 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
[[Page 643]]
the Norris-LaGuardia Act of 1932, which has not only been declared
constitutional\268\ but has been applied liberally\269\ and in such a
manner as to repudiate the notion of an inherent power to issue
injunctions contrary to statutory provisions.
\267\254 U.S. 443 (1921).
\268\Lauf v. E. G. Shinner & Co., 303 U.S. 323 (1938); New Negro
Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938).
\269\Ibid.; see also 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).
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Injunctions Under the Emergency Price Control Act of 1942.--
Lockerty v. Phillips\270\ 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, Sec. 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.''\271\ Although the Court
avoided passing upon the constitutionality of the prohibition against
interlocutory decrees, the language of the Court was otherwise broad
enough to support it, as was the language of Yakus v. United
[[Page 644]]
States,\272\ which sustained a different phase of the special procedure
for appeals under the Emergency Price Control Act.
\270\319 U.S. 182 (1943).
\271\Id., 187 (quoting Cary v. Curtis, 3 How. (44 U.S.) 236, 245
(1845)). See South Carolina v. Katzenback, 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.
\272\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.
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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.\273\ However, this power too is derived from
the statutes and cannot go beyond them. The landmark case is Wayman v.
Southard,\274\ 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,\275\ 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.''\276\ 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.\277\ Their
[[Page 645]]
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\278\ nor alter the
jurisdiction\279\ of federal courts and the venue of actions
therein\280\ and, thus circumscribed, have been upheld as valid.
\273\Washington-Southern Co. v. Baltimore Co., 263 U.S. 629
(1924).
\274\10 Wheat. (23 U.S.) 1 (1825).
\275\106 U.S. 272, 280 (1882).
\276\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.
\277\In the Act of June 19, 1934, 48 Stat. 1064, and contained
in 28 U.S.C. Sec. 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. 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. P.L. 93-505, 88 Stat. 1926
(1974); P.L. 94-426, 90 Stat. 1334 (1976).
\278\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).
\279\Cf. United States v. Sherwood, 312 U.S. 584, 589-590
(1941).
\280\Mississippi Pub. Corp. v. Murphree, 326 U.S. 438 (1946).
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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.''\281\ 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.\282\
\281\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).
\282\McDonald v. Pless, 238 U.S. 264, 266 (1915); Griffin v.
Thompson, 2 How. (43 U.S.) 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).
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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
[[Page 646]]
of property in the custody of law.\283\ Such powers are said to be
essential to and inherent in the organization of courts of justice.\284\
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.\285\
\283\Gumbel v. Pitkin, 124 U.S. 131 (1888); Covell v. Heyman,
111 U.S. 176 (1884); Buck v. Colbath, 3 Wall. (70 U.S.) 334 (1866).
\284\Eberly v. Moore, 24 How. (65 U.S.) 147 (1861); Arkadelphia
Co. v. St. Louis S.W. Ry. Co., 249 U.S. 134 (1919).
\285\Gagnon v. United States, 193 U.S. 451, 458 (1904).
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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\286\ to be coequal with the organization of the federal courts.
In the leading case of Ex parte Peterson,\287\ 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.''\288\ 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.
\286\2 Wall. (69 U.S.) 123, 128-129 (1864).
\287\253 U.S. 300 (1920).
\288\Id., 312.
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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
[[Page 647]]
``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.''\289\ 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.\290\ 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.\291\
\289\Ex parte Secombe, 19 How. (60 U.S.) 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.
\290\4 Wall. (71 U.S.) 333 (1867).
\291\Id., 378-380. 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 disbarred 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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ARTICLE III
JUDICIAL DEPARTMENT
Section 2. Judicial Power and Jurisdiction
Section 2. The Judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United States,
and Treaties made, or which shall be made, under their Authority;--to
all Cases affecting Ambassadors, other public Ministers and Consuls;--to
all Cases of admiralty
[[Page 648]]
and maritime Jurisdiction; to Controversies to which the United States
shall be a Party;--to Controversies between two or more States; between
a State and Citizens of another State; between Citizens of different
States,--between Citizens of the same State claiming Land under Grants
of different States, and between a State, or the Citizens thereof, and
foreign States, Citizens or Subjects.
JUDICIAL POWER AND JURISDICTION--CASES AND CONTROVERSIES
Late in the Convention, a delegate proposed to extend the
judicial power to cases arising under the Constitution of the United
States as well as under its laws and treaties. Madison's notes continue:
``Mr. Madison doubted whether it was not going too far to extend the
jurisdiction of the Court generally to cases arising under the
Constitution, and whether it ought not to be limited to cases of a
Judiciary Nature. The right of expounding the Constitution in cases not
of this nature ought not to be given to that Department.
``The motion of Docr. Johnson was agreed to nem : con : it being
generally supposed that the jurisdiction given was constructively
limited to cases of a Judiciary nature--''.\292\
\292\2 M. Farrand, op. cit., n. 1, 430.
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That the Framers did not intend for federal judges to roam at
large in construing the Constitution and laws of the United States but
rather preferred and provided for resolution of disputes arising in a
``judicial'' manner is revealed not only in the language of Sec. 2 and
the passage quoted above but as well in the refusal to associate the
judges in the extra-judicial functions which some members of the
Convention--Madison and Wilson notably--conceived for them. Thus, four
times proposals for associating the judges in a council of revision to
pass on laws generally were voted down,\293\ and similar fates befell
suggestions that the Chief Justice be a member of a privy council to
assist the President\294\ and that the President or either House of
Congress be able to request advisory opinions of the Supreme Court.\295\
\293\The proposal was contained in the Virginia Plan. 1 id., 21.
For the four rejections, see id., 97-104, 108-110, 138-140, 2 id., 73-
80, 298.
\294\Id., 328-329, 342-344. Although a truncated version of the
proposal was reported by the Committee of Detail, id., 367, the
Convention never took it up.
\295\Id., 340-341. The proposal was referred to the Committee of
Detail and never heard of again.
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[[Page 649]]
This intent of the Framers was early effectuated when the
Justices declined a request of President Washington to tender him advice
respecting legal issues growing out of United States neutrality between
England and France in 1793.\296\ Moreover, the refusal of the Justices
to participate in the congressional plan for awarding veterans'
pensions\297\ bespoke a similar adherence to the restricted role of
courts. These restrictions have been encapsuled in a series of
principles or doctrines, the application of which determines whether an
issue is meet for judicial resolution and whether the parties raising it
are entitled to have it judicially resolved. Constitutional restrictions
are intertwined with prudential considerations in the expression of
these principles and doctrines, and it is seldom easy to separate out
the two strands.\298\
\296\1 C. Warren, op. cit., n. 18, 108-111; 3 Correspondence and
Public Papers of John Jay, H. Johnston ed. (New York: 1893), 633-635;
Hart & Wechsler, op. cit., n.250, 65-67.
\297\Hayburn's Case, 2 Dall. (2 U.S.) 409 (1792), discussed
supra, pp.620-621.
\298\See, e.g., Justice Brandeis dissenting in Ashwander v. TVA,
297 U.S. 288, 341, 345-348 (1936). Cf. Flast v. Cohen, 392 U.S. 83, 97
(1968); Rescue Army v. Municipal Court, 331 U.S. 549, 568-575 (1947).
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The Two Classes of Cases and Controversies
By the terms of the foregoing section, the judicial power
extends to nine classes of cases and controversies, which fall into two
general groups. In the words of Chief Justice Marshall in Cohens v.
Virginia:\299\ ``In the first, jurisdiction depends on the character of
the cause, whoever may be the parties. This class comprehends `all cases
in law and equity arising under this constitution, the laws of the
United States, and treaties made, or which shall be made, under their
authority.' This cause extends the jurisdiction of the Court to all the
cases described, without making in its terms any exception whatever, and
without any regard to the condition of the party. If there be any
exception, it is to be implied, against the express words of the
article. In the second class, the jurisdiction depends entirely on the
character of the parties. In this are comprehended controversies between
two or more States, between a State and citizens of another State,' and
`between a State and foreign States, citizens or subjects.' If these be
the parties, it is entirely unimportant, what may be the subject of
controversy. Be it what it may, these parties have a constitutional
right to come into the courts of the Union.''\300\
\299\6 Wheat. (19 U.S.) 264 (1821).
\300\Id., 378.
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Judicial power is ``the power of a court to decide and pronounce
a judgment and carry it into effect between persons and parties
[[Page 650]]
who bring a case before it for decision.''\301\ The meaning attached to
the terms ``cases'' and ``controversies''\302\ determines therefore the
extent of the judicial power as well as the capacity of the federal
courts to receive jurisdiction. According to Chief Justice Marshall,
judicial power is capable of acting only when the subject is submitted
in a case and a case arises only when a party asserts his rights ``in a
form prescribed by law.''\303\ ``By cases and controversies are intended
the claims of litigants brought before the courts for determination by
such regular proceedings as are established by law or custom for the
protection or enforcement of rights, or the prevention, redress, or
punishment of wrongs. Whenever the claim of a party under the
Constitution, laws, or treaties of the United States takes such a form
that the judicial power is capable of acting upon it, then it has become
a case. The term implies the existence of present or possible adverse
parties whose contentions are submitted to the Court for
adjudication.''\304\
\301\Muskrat v. United States, 219 U.S. 346, 356 (1911).
\302\The two terms may be used interchangeably, inasmuch as a
``controversy,'' if distinguishable from a ``case'' at all, is so only
because it is a less comprehensive word and includes only suits of a
civil nature. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239 (1937).
\303\Osborn v. United States Bank, 9 Wheat. (22 U.S.) 738, 819
(1824).
\304\In re Pacific Ry. Comm., 32 F. 241, 255 (C.C. Calif. 1887)
(Justice Field). See also Smith v. Adams, 130 U.S. 167, 173-174 (1889).
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Chief Justice Hughes once essayed a definition, which, however,
presents a substantial problem of labels. ``A `controversy' in this
sense must be one that is appropriate for judicial determination. A
justiciable controversy is thus distinguished from a difference or
dispute of a hypothetical character; from one that is academic or moot.
The controversy must be definite and concrete, touching the legal
relations of parties having adverse legal interests. It must be a real
and substantial controversy admitting of specific relief through a
decree of a conclusive character, as distinguished from an opinion
advising what the law would be upon a hypothetical state of
facts.''\305\ Of the ``case'' and ``controversy'' requirement, Chief
Justice Warren admitted that ``those two words have an iceberg quality,
containing beneath their surface simplicity submerged complexities which
go to the very heart of our constitutional form of government. Embodied
in the words `cases' and `controversies' are two complementary but
somewhat different limitations. In part those words limit the business
of federal courts to questions presented in an adversary context and in
a form historically viewed as capable of resolution through the judicial
process. And in part those words define the role assigned to the
judiciary
[[Page 651]]
in a tripartite allocation of power to assure that the federal courts
will not intrude into areas committed to the other branches of
government. Justiciability is the term of art employed to give
expression to this dual limitation placed upon federal courts by the
case and controversy doctrine.''\306\ Justice Frankfurter perhaps best
captured the flavor of the ``case'' and ``controversy'' requirement by
noting that it takes the ``expert feel of lawyers'' often to note
it.\307\
\305\Aetna Life Ins. Co. v. Haworth, 300 U.S. 229, 240-241
(1937). Cf. Public Service Comm. v. Wycoff Co., 344 U.S. 237, 242
(1952).
\306\Flast v. Cohen, 392 U.S. 83, 94-95 (1968).
\307\``The jurisdiction of the federal courts can be invoked
only under circumstances which to the expert feel of lawyers constitute
a `case or controversy.''' Joint Anti-Fascist Refugee Committee v.
McGrath, 341 U.S. 123, 149, 150 (1951).
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From these quotations may be isolated several factors which, in
one degree or another, go to make up a ``case'' and ``controversy.''
Adverse Litigants
The presence of adverse litigants with real interests to contend
for is a standard which has been stressed in numerous cases,\308\ and
the requirement implicates a number of complementary factors making up a
justiciable suit. A concrete example of the requirement being one of the
decisive factors, if not the decisive one, is Muskrat v. United
States,\309\ a case not now deemed of great importance, in which the
Court struck down a statute authorizing certain named Indians to bring a
test suit against the United States to determine the validity of a law
affecting the allocation of Indian lands. Attorneys' fees of both sides
were to be paid out of tribal funds deposited in the United States
Treasury. ``The judicial power,'' said the Court,``. . . is the right to
determine actual controversies arising between adverse litigants, duly
instituted in courts of proper jurisdiction. . . . It is true the United
States is made a defendant to this action, but it has no interest
adverse to the claimants. The object is not to assert a property right
as against the government, or to demand compensation for alleged wrongs
because of action upon its part. The whole purpose of the law is to
determine the constitutional validity of this class of legislation, in a
suit not arising between parties concerning a property right necessarily
involved in the decision in question, but in a proceeding against the
government in its sovereign capacity, and con
[[Page 652]]
cerning which the only judgment required is to settle the doubtful
character of the legislation in question.''\310\
\308\Lord v. Veazie, 8 How. (49 U.S.) 251 (1850); Chicago & G.T.
Ry. Co. v. Wellman, 143 U.S. 339 (1892); South Spring Hill Gold Mining
Co. v. Amador Medean Gold Mining Co., 145 U.S. 300 (1892); California v.
San Pablo & T.R.R., 149 U.S. 308 (1893); Tregea v. Modesto Irrigation
District, 164 U.S. 179 (1896); Lampasas v. Bell, 180 U.S. 276 (1901);
Smith v. Indiana, 191 U.S. 138 (1903); Braxton County Court v. West
Virginia, 208 U.S. 192 (1908); Muskrat v. United States, 219 U.S. 346
(1911); United States v. Johnson, 319 U.S. 302 (1943); Moore v.
Charlotte-Mecklenburg Board of Education, 402 U.S. 47 (1971).
\309\219 U.S. 346 (1911).
\310\Id., 361-362. The Indians obtained the sought-after
decision the following year by the simple expedient of suing to enjoin
the Secretary of the Interior from enforcing the disputed statute.
Gritts v. Fisher, 224 U.S. 640 (1912). Other cases have involved similar
problems, but they resulted in decisions on the merits. E.g., Cherokee
Intermarriage Cases, 203 U.S. 76 (1906); La Abra Silver Mining Co. v.
United States, 175 U.S. 423, 455-463 (1899); South Carolina v.
Katzenbach, 383 U.S. 301, 335 (1966); but see id., 357 (Justice Black
dissenting). The principal effect of Muskrat was to put in doubt for
several years the validity of any sort of declaratory judgment provision
in federal law.
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Collusive and Feigned Suits.--Prime among the cases in which
adverse litigants are required are those suits in which two parties have
gotten together to bring a friendly suit to settle a question of
interest to them. Thus, in Lord v. Veazie,\311\ the latter had executed
a deed to the former warranting that he had certain rights claimed by a
third person and suit was instituted to decide the ``dispute.''
Declaring that ``the whole proceeding was in contempt of the court, and
highly reprehensible,'' the Court observed: ``The contract set out in
the pleadings was made for the purpose of instituting this suit. . . .
The plaintiff and defendant are attempting to procure the opinion of
this court upon a question of law, in the decision of which they have a
common interest opposed to that of other persons, who are not parties to
the suit. . . . And their conduct is the more objectionable, because
they have brought up the question upon a statement of facts agreed upon
between themselves . . . and upon a judgment pro forma entered by their
mutual consent, without any actual judicial decision. . . .''\312\
``Whenever,'' said the Court in another case, ``in pursuance of an
honest and actual antagonistic assertion of rights by one individual
against another, there is presented a question involving the validity of
any act of any legislature, State or federal, and the decision
necessarily rests on the competency of the legislature to so enact, the
court must . . . determine whether the act be constitutional or not; but
such an exercise of power is the ultimate and supreme function of
courts. It is legitimate only in the last resort, and as a necessity in
the determination of real, earnest and vital controversy between
individuals. It never was the thought that, by means of a friendly suit,
a party beaten in the legislature could transfer to the courts an
inquiry as to the constitutionality of the legislative act.''\313\ Yet,
several widely known constitutional decisions have been rendered in
cases in which friendly parties contrived to have the actions brought
and in which the suits were su
[[Page 653]]
pervised and financed by one side.\314\ And there are instances in which
there may not be in fact an adverse party at certain stages, that is,
some instances when the parties do not actually disagree, but in which
the Court and the lower courts are empowered to adjudicate.\315\
\311\8 How. (49 U.S.) 251 (1850).
\312\Id., 254-255.
\313\Chicago & G.T. Ry. Co. v. Wellman, 143 U.S. 339, 345
(1892).
\314\E.g., Hylton v. United States, 3 Dall. (3 U.S.) 171 (1796);
Fletcher v. Peck, 6 Cr. (10 U.S.) 87 (1810); Scott v. Sandford, 19 How.
(60 U.S.) 393 (1857); Cf. 1 C. Warren, op. cit., n. 18, 147, 392-395; 2
id., 279-282. In Powell v. Texas, 392 U.S. 514 (1968), the Court
adjudicated on the merits a challenge to the constitutionality of
criminal treatment of chronic alcoholics although the findings of the
trial court, agreed to by the parties, appeared rather to be ``the
premises of a syllogism transparently designed to bring this case'
within the confines of an earlier enunciated constitutional principle.
But adversity arguably still existed.
\315\Examples are naturalization cases, Tutun v. United States,
270 U.S. 568 (1926), entry of judgment by default or on a plea of
guilty, In re Metropolitan Ry. Receivership, 208 U.S. 90 (1908), and
consideration by the Court of cases in which the Solicitor General
confesses error below. Cf. Young v. United States, 315 U.S. 257, 258-259
(1942); Casey v. United States, 343 U.S. 808 (1952); Rosengart v. Laird,
404 U.S. 908 (1972) (Justice White dissenting). See also Sibron v. New
York, 392 U.S. 40, 58-59 (1968).
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Stockholder Suits.--Moreover, adversity in parties has often
been found in suits by stockholders against their corporation in which
the constitutionality of a statute or a government action is drawn in
question, even though one may suspect that the interests of plaintiffs
and defendant are not all that dissimilar. Thus, in Pollock v. Farmers'
Loan and Trust Co.,\316\ the Court sustained the jurisdiction of a
district court which had enjoined the company from paying an income tax
even though the suit was brought by a stockholder against the company,
thereby circumventing a statute which forbade the maintenance in any
court of a suit to restrain the collection of any tax.\317\
Subsequently, the Court sustained jurisdiction in cases brought by a
stockholder to restrain a company from investing its funds in farm loan
bonds issued by federal land banks\318\ and by preferred stockholders
against a utility company and the TVA to enjoin the performance of
contracts between the company and TVA on the ground that the statute
creating it was unconstitutional.\319\ Perhaps most notorious was Carter
v. Carter Coal Co.,\320\ in which the president of the company brought
suit against the company and its officials, among whom was Carter's fa
[[Page 654]]
ther, a vice president of the company, and in which the Court
entertained the suit and decided the case on the merits.\321\
\316\157 U.S. 429 (1895). The first injunction suit by a
stockholder to restrain a corporation from paying a tax was apparently
Dodge v. Woolsey, 18 How. (59 U.S.) 331 (1856). See also Brushaber v.
Union Pacific R. Co., 240 U.S. 1 (1916).
\317\Cf. Cheatham v. United States, 92 U.S. 85 (1875); Snyder v.
Marks, 109 U.S. 189 (1883).
\318\Smith v. Kansas City Title Co., 255 U.S. 180 (1921).
\319\Ashwander v. TVA, 297 U.S. 288 (1936). See id., 341
(Justice Brandeis dissenting in part).
\320\298 U.S. 238 (1936).
\321\Stern, The Commerce Clause and the National Economy, 59
Harv. L. Rev. 645, 667-668 (1948) (detailing the framing of the suit).
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Substantial Interest: Standing
Perhaps the most important element of the requirement of adverse
parties may be found in the ``complexities and vagaries'' of the
standing doctrine. ``The fundamental aspect of standing is that it
focuses on the party seeking to get his complaint before a federal court
and not on the issues he wishes to have adjudicated.''\322\ The ``gist
of the question of standing'' is whether the party seeking relief has
``alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of
difficult constitutional questions.''\323\ This practical conception of
standing has now given way to a primary emphasis upon separation of
powers as the guide. ``[T]he `case or controversy' requirement defines
with respect to the Judicial Branch the idea of separation of powers on
which the Federal Government is founded. The several doctrines that have
grown up to elaborate that requirement are `founded in concern about the
proper - and properly limited - role of the courts in a democratic
society.'''\324\
\322\Flast v. Cohen, 392 U.S. 83, 99 (1968). That this
characterization is not the view of the present Court, see Allen v.
Wright, 468 U.S. 737, 750, 752, 755-756, 759-761 (1984). In taxpayer
suits, it is appropriate to look to the substantive issues to determine
whether there is a logical nexus between the status asserted and the
claim sought to be adjudicated. Id., 102; United States v. Richardson,
418 U.S. 166, 174-175 (1974); Duke Power Co. v. Carolina Environmental
Study Group, 438 U.S. 59, 78-79 (1978).
\323\Baker v. Carr, 369 U.S. 186, 204 (1962). That persons or
organizations have a personal, ideological interest sufficiently strong
to create adverseness is not alone enough to confer standing; rather,
the adverseness is the consequence of one being able to satisfy the
Article III requisite of injury in fact. Valley Forge Christian College
v. Americans United, 454 U.S. 464, 482-486 (1982); Schlesinger v.
Reservists Com. to Stop the War, 418 U.S. 208, 225-226 (1974). Nor is
the fact that if plaintiffs have no standing to sue, no one would have
standing, a sufficient basis for finding standing. Id., 227.
\324\Allen v. Wright,468 U.S. 737, 750 (1984) (quoting Warth v.
Seldin, 422 U.S. 490, 498 (1975)). All the standards relating to whether
a plaintiff is entitled to adjudication of his claims must be evaluated
``by reference to the Art. III notion that federal courts may exercise
power only in the last resort, and as a necessity,' . . . and only when
adjudication is `consistent with a system of separated powers and [the
dispute is one] traditionally thought to be capable of resolution
through the judicial process.''' Id., 752 (quoting, respectively,
Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 (1892), and
Flast v. Cohen, 392 U.S. 83, 97 (1968)). For the strengthening of the
separation-of-powers barrier to standing, see Lujan v. Defenders of
Wildlife, 112 S.Ct. 2130, 2135-2136, 2142-2146 (1992).
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Standing as a doctrine is composed of both constitutional and
prudential restraints on the power of the federal courts to render
[[Page 655]]
decisions,\325\ and is almost exclusively concerned with such public law
questions as determinations of constitutionality and review of
administrative or other governmental action.\326\ As such, it is often
interpreted according to the prevailing philosophies of judicial
activism and restraint and narrowly or broadly in terms of the viewed
desirability of access to the courts by persons seeking to challenge
legislation or other governmental action. The trend in the 1960s was to
broaden access; in the 1970s, 1980s, and 1990s, it was to stiffen the
requirements of standing, although Court majorities were not entirely
consistent. The major difficulty in setting forth the standards is that
the Court's generalizations and the results it achieves are often at
variance.\327\
\325\E.g., Valley Forge Christian College v. Americans United,
454 U.S. 464, 471-476 (1982); Allen v. Wright, 468 U.S. 737, 750-751
(1984).
\326\C. Wright, Handbook of the Law of Federal Courts (St. Paul:
4th ed. 1983), 60.
\327\``[T]he concept of `Art. III standing' has not been defined
with complete consistency in all of the various cases decided by this
Court . . . [and] this very fact is probably proof that the concept
cannot be reduced to a one-sentence or one-paragraph definition.''
Valley Forge Christian College v. Americans United, 454 U.S. 464, 475
(1982). ``Generalizations about standing to sue are largely worthless as
such.'' Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150, 151
(1970). For extensive consideration of the doctrine, see Hart &
Wechsler, op. cit., n.250, 107-196.
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The standing rules apply to actions brought in federal courts,
and they have no direct application to actions brought in state
courts.\328\
\328\Thus, state courts could adjudicate a case brought by a
person without standing in the federal sense. If the plaintiff lost, he
would have no recourse in the United States Supreme Court, inasmuch as
he lacks standing, Tileston v. Ullman, 318 U.S. 44 (1943); Doremus v.
Board of Education, 342 U.S. 429 (1952), but if plaintiff prevailed, the
losing defendant may be able to appeal, because he might well be able to
assert sufficient injury to his federal interests. ASARCO Inc. v.
Kadish, 490 U.S. 605 (1989).
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Citizen Suits.--Persons do not have standing to sue to enforce a
constitutional provision when all they can show or claim is that they
have an interest or have suffered an injury that is shared by all
members of the public. Thus, a group of persons suing as citizens to
litigate a contention that membership of Members of Congress in the
military reserves constituted a violation of Article I, Sec. 6, cl. 2,
was denied standing.\329\ ``The only interest all citizens share in the
claim advanced by respondents is one which presents injury in the
abstract. . . . [The] claimed nonobservance [of the clause], standing
alone, would adversely affect only the generalized interest of all
citizens in constitutional governance.''\330\
\329\Schlesinger v. Reservists Com. to Stop the War, 418 U.S.
208 (1974).
\330\Id., 217. See also United States v. Richardson, 418 U.S.
166, 176-177 (1974); Valley Forge Christian College v. Americans United,
454 U.S. 464, 483 (1982); Allen v. Wright, 468 U.S. 737, 754 (1984);
Whitmore v. 495 U.S. 149 (1990); Lujan v. Defenders of Wildlife, 112
S.Ct. 2130, 2143-2145 (1992). Cf. Ex parte Levitt, 302 U.S. 633 (1937);
Laird v. Tatum, 408 U.S. 1 (1972).
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[[Page 656]]
Taxpayer Suits.--Save for a narrowly cabined exception, standing
is also lacking when a litigant attempts to sue to contest governmental
action that he claims injures him as a taxpayer. In Frothingham v.
Mellon,\331\ the Court denied standing to a taxpayer suing to restrain
disbursements of federal money to those States that chose to participate
in a program to reduce maternal and infant mortality; her claim was that
Congress lacked power to appropriate funds for those purposes and that
the appropriations would increase her taxes in future years in an
unconstitutional manner. Noting that a federal taxpayer's ``interest in
the moneys of the Treasury . . . is comparatively minute and
indeterminate'' and that ``the effect upon future taxation, of any
payment out of the funds . . . [is] remote, fluctuating and uncertain,''
the Court ruled that plaintiff had failed to allege the type of ``direct
injury'' necessary to confer standing.\332\
\331\Usually cited as Massachusetts v. Mellon, 262 U.S. 447
(1923), the two suits being consolidated.
\332\Id., 487, 488.
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Taxpayers were found to have standing, however, in Flast v.
Cohen,\333\ to contest the expenditure of federal moneys to assist
religious-affiliated organizations. The Court asserted that the answer
to the question whether taxpayers have standing depends on whether the
circumstances of each case demonstrate that there is a logical nexus
between the status asserted and the claim sought to be adjudicated.
First, there must be a logical link between the status of taxpayer and
the type of legislative enactment attacked; this means, a taxpayer must
allege the unconstitutionality only of exercises of congressional power
under the taxing and spending clause of Article I, Sec. 8, rather than
also of incidental expenditure of funds in the administration of an
essentially regulatory statute. Second, there must be a logical nexus
between the status of taxpayer and the precise nature of the
constitutional infringement alleged; this means, the taxpayer must show
the challenged enactment exceeds specific constitutional limitations
imposed upon the exercise of the congressional taxing and spending
power, rather than simply to argue the enactment is generally beyond the
powers delegated to Congress. Both Frothingham and Flast met the first
test, because they attacked a spending program. Flast met the second
test, because the establishment clause of the First Amendment operates
as a specific limitation upon the exercise of the taxing and spending
power, while Frothingham had alleged only that the Tenth Amendment had
been exceeded. Reserved was the question
[[Page 657]]
whether other specific limitations constrained the taxing and spending
clause in the same manner as the establishment clause.\334\
\333\392 U.S. 83 (1968).
\334\Id., 105.
---------------------------------------------------------------------------
Since Flast, the Court has refused to expand it. Litigants
seeking standing as taxpayers to challenge legislation permitting the
CIA to withhold from the public detailed information about its
expenditures as a violation of Article I, Sec. 9, cl. 7, and to
challenge certain Members of Congress from holding commissions in the
reserves as a violation of Article I, Sec. 6, cl. 2, were denied
standing, in the former cases because their challenge was not to an
exercise of the taxing and spending power and in the latter because
their challenge was not to legislation enacted under Article I, Sec. 8,
but rather was to executive action in permitting Members to maintain
their reserve status.\335\ An organization promoting church-state
separation was denied standing to challenge an executive decision to
donate surplus federal property to a church-related college, both
because the contest was to executive action under a valid piece of
legislation and because the property transfer was not pursuant to a
taxing and spending clause exercise but was taken under the property
clause of Article IV, Sec. 3, cl. 2.\336\ It seems evident that for at
least the foreseeable future taxpayer standing will be restricted to
establishment clause limitations on spending programs.
\335\United States v. Richardson, 418 U.S. 166 (1974);
Schlesinger v. Reservists Com. to Stop the War, 418 U.S. 208, 227-228
(1974).
\336\Valley Forge Christian College v. Americans United, 454
U.S. 464 (1982).
---------------------------------------------------------------------------
Local taxpayers attacking local expenditures have generally been
permitted more leeway than federal taxpayers insofar as standing is
concerned. Thus, in Everson v. Board of Education,\337\ such a taxpayer
was found to have standing to challenge the use of public funds for
transportation of pupils to parochial schools.\338\ But in Doremus v.
Board of Educ.,\339\ the Court refused an appeal from a state court for
lack of standing of a taxpayer challenging Bible reading in the
classroom. No measurable disbursement of public funds was involved in
this type of activity, so that there was no direct injury to the
taxpayer, a rationale similar to the spending program-regulatory program
distinction of Flast.
\337\330 U.S. 1 (1947).
\338\See Bradfield v. Roberts, 175 U.S. 291, 295 (1899);
Crampton v. Zabriskie, 101 U.S. 601 (1880); Heim v. McCall, 239 U.S. 175
(1915). See also Illinois ex rel. McCollom v. Board of Education, 333
U.S. 203 (1948); Zorach v. Clauson, 343 U.S. 306 (1952); Engel v.
Vitale, 370 U.S. 421 (1962) (plaintiffs suing as parents and taxpayers).
\339\342 U.S. 429 (1952). Compare Alder v. Board of Education,
342 U.S. 485 (1952). See also Richardson v. Ramirez, 418 U.S. 24 (1974).
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[[Page 658]]
Constitutional Standards: Injury in Fact, Causation, and
Redressability.--While the Court has been inconsistent over time, it has
now settled upon the rule that, ``at an irreducible minimum,'' the
constitutional requisites under Article III for the existence of
standing are that the party seeking to sue must personally have suffered
some actual or threatened injury that can fairly be traced to the
challenged action of defendant and that the injury is likely to be
redressed by a favorable decision.\340\
\340\Valley Forge Christian College v. Americans United, 454
U.S. 464, 472 (1982); Allen v. Wright, 468 U.S. 737, 751 (1984); Lujan
v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992). See, however,
United States Parole Comm. v. Geraghty, 445 U.S. 388 (1980), a class
action case, in which the majority opinion appears to reduce the
significance of the personal stake requirement. Id., 404 n. 11,
reserving full consideration of the dissent's argument at id ., 401 n.
1, 420-421.
---------------------------------------------------------------------------
For some time, injury alone was not sufficient; rather, the
injury had to be ``a wrong which directly results in the violation of a
legal right,''\341\ that is, ``one of property, one arising out of
contract, one protected against tortious invasion, or one founded in a
statute which confers a privilege.''\342\ The problem was that the
``legal right'' language was ``demonstrably circular: if the plaintiff
is given standing to assert his claims, his interest is legally
protected; if he is denied standing, his interest is not legally
protected.''\343\ The observable tendency of the Court, however, was to
find standing frequently in cases distinctly not grounded in property
rights.\344\
\341\Alabama Power Co. v. Ickes, 302 U.S. 464, 479 (1938). Cf.
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 151-152
(1951) (Justice Frankfurter concurring). But see Frost v. Corporation
Comm., 278 U.S. 515 (1929); City of Chicago v. Atchison, T. & S.F Ry.,
357 U.S. 77 (1958).
\342\Tennessee Power Co. v. TVA, 306 U.S. 118, 137-138 (1939).
\343\C. Wright, op. cit., n. 326, 65-66.
\344\E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341
U.S. 123 (1951) (indirect injury to organization and members by
governmental maintenance of list of subversive organizations); NAACP v.
Alabama ex rel Patterson, 357 U.S. 449 (1958) (same); Abington School
District v. Schempp, 374 U.S. 203, 224 n. 9 (1963) (parents and school
children challenging school prayers); McGowan v. Maryland, 366 U.S. 420,
430-431 (1961) (merchants challenging Sunday closing laws); Baker v.
Carr 369 U.S. 186, 204-208 (1962) (voting rights).
---------------------------------------------------------------------------
In any event, the ``legal rights'' language has now been
dispensed with. Rejection occurred in two administrative law cases in
which the Court announced that parties had standing when they suffered
``injury in fact'' to some interest, ``economic or otherwise,'' that is
arguably within the zone of interest to be protected or regulated by the
statute or constitutional provision in question.\345\ Now,
[[Page 659]]
environmental, aesthetic, and social interests, when impaired, afford a
basis for making constitutional attacks upon governmental action.\346\
The breadth of the injury in fact concept may be discerned in a series
of cases involving the right of private parties to bring actions under
the Fair Housing Act to challenge alleged discriminatory practices. The
subjective and intangible interests of persons in enjoying the benefits
of living in integrated communities were found sufficient to permit them
to attack actions which threatened or harmed those interests even though
the actions were not directed at them.\347\ Similarly, the interests of
individuals and associations of individuals in using the environment
afforded them the standing to challenge actions which threatened those
environmental conditions.\348\ Nonetheless, the Court has also in
constitutional cases been wary of granting standing to persons who
alleged threats or harm to interests which they shared with the larger
community of people at large, a rule against airing ``generalized
grievances'' through the courts,\349\ although it is unclear whether
this rule (or subrule) has a constitutional or a prudential basis.\350\
[[Page 660]]
And in a number of cases, the Court has refused standing apparently in
the belief that the assertion of harm is too speculative or too remote
to credit.\351\
\345\Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150
(1970); Barlow v. Collins, 397 U.S. 159 (1970). The ``zone of interest''
test is a prudential rather than constitutional standard. The Court
sometimes uses language characteristic of the language. Thus, in Lujan
v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992), the Court refers
to injury in fact as ``an invasion of a legally-protected interest,''
but in context, here and in the cases cited, it is clear the reference
is to any interest that the Court finds protectable under the
Constitution, statutes, or regulations.
\346\E.g., Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2137-
2138 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871, 885
(1991); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S.
59, 72-74 (1978); Village of Arlington Heights v. Metropolitan Housing
Dev. Corp., 429 U.S. 252, 261-263 (1977); Singleton v. Wulff, 428 U.S.
106, 112-113 (1976); Warth v. Seldin, 422 U.S. 490, 498-499 (1975); Shea
v. Littleton, 414 U.S. 488, 493-494 (1974); Linda R.S. v. Richard D.,
410 U.S. 614, 617-618 (1973).
\347\Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205
(1972); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 (1979);
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). While Congress had
provided for standing in the Act, thus removing prudential
considerations affecting standing, it could not abrogate constitutional
constraints. Gladstone, Realtors, supra, 100. Thus, the injury alleged
satisfied Article III.
\348\Sierra Club v. Morton, 405 U.S. 727, 735 (1972); United
States v. SCRAP, 412 U.S. 669, 687-688 (1973); Duke Power Co., v.
Carolina Environmental Study Group, 438 U.S. 59, 72-74 (1978). But the
Court has refused to credit general allegations of injury untied to
specific governmental actions. E.g., Lujan v. Defenders of Wildlife, 112
S.Ct. 2130 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871
(1990). In particular, SCRAP, supra, is disfavored as too broad. Lujan
v. Defenders of Wildlife, supra, 2139-2140. Moreover, unlike the
situation in taxpayer suits, there is no requirement of a nexus between
the injuries claimed and the constitutional rights asserted. In Duke
Power, supra, 78-81, claimed environmental and health injuries grew out
of construction and operation of nuclear power plants but were not
directly related to the governmental action challenged, the limitation
of liability and indemnification in cases of nuclear accident. See also
Metropolitan Washington Airports Auth. v. Citizens for the Abatement of
Aircraft Noise, 501 U.S. 252, 264-265 (1991).
\349\See supra, nn.329-330.
\350\Compare Warth v. Seldin, 422 U.S. 490, 499-500 (1975)
(prudential), with Valley Forge Christian College v. Americans United,
454 U.S. 464, 485, 490 (1982) (apparently constitutional). In Allen v.
Wright, 468 U.S. 737, 751 (1984), it is again prudential.
\351\E.g. Laird v. Tatum, 408 U.S. 1 (1972) (``allegations of a
subjective `chill' are not an adequate substitute for a claim of
specific present objective harm or a threat of specific future harm.'').
See also O'Shea v. Littleton, 414 U.S. 488 (1974); California Bankers
Assn. v. Schultz, 416 U.S. 21 (1974); Rizzo v. Goode, 423 U.S. 262, 371-
373 (1976). In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the
Court held that victim of police chokehold seeking injunctive relief was
unable to show sufficient likelihood of recurrence as to him.
---------------------------------------------------------------------------
Of increasing importance are the second and third element of
standing, recently developed and held to be of constitutional requisite.
Thus, there must be a causal connection between the injury and the
conduct complained of; that is, the Court insists that the plaintiff
show that ``but for'' the action, she would not have been injured. And
the Court has insisted that there must be a ``substantial likelihood''
that the relief sought from the court if granted would remedy the
harm.\352\ Thus, poor people who had been denied service at certain
hospitals were held to lack standing to challenge IRS policy of
extending tax benefits to hospitals that did not serve indigents, since
they could not show that alteration of the tax policy would cause the
hospitals to alter their policies and treat them.\353\ Low-income
persons seeking the invalidation of a town's restrictive zoning
ordinance were held to lack standing, because they had failed to allege
with sufficient particularity that the complained-of injury, inability
to obtain adequate housing within their means, was fairly attributable
to the ordinance instead of to other factors, so that voiding of the
ordinance might not have any effect upon their ability to find
affordable housing.\354\ Similarly, the link between fully integrated
public schools and allegedly lax administration of tax policy permitting
benefits to discriminatory private
[[Page 661]]
schools was deemed too tenuous, the harm flowing from private actors not
before the courts and the speculative possibility that directing denial
of benefits would result in any minority child being admitted to a
school.\355\ But the Court did permit plaintiffs to attack the
constitutionality of a law limiting the liability of private utilities
in the event of nuclear accidents and providing for indemnification, on
a showing that ``but for'' the passage of the law there was a
``substantial likelihood,'' based upon industry testimony and other
material in the legislative history, that the nuclear power plants would
not be constructed and that therefore the environmental and aesthetic
harm alleged by plaintiffs would not occur; thus, a voiding of the law
would likely relieve the plaintiffs of the complained of injuries.\356\
Operation of these requirements makes difficult but not impossible the
establishment of standing by persons indirectly injured by governmental
action, that is, action taken as to third parties that is alleged to
have as a consequence injured the claimants.\357\
\352\Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136
(1992); Allen v. Wright, 468 U.S. 737, 751 (1984). See also ASARCO Inc.
v. Kadish, 490 U.S. 605, 612-617 (1989) (plurality opinion). Although
the two tests were initially articulated as two facets of a single
requirement, the Court now insists they are separate inquiries. Id., 468
U.S., 753 n. 19. ``To the extent there is a difference, it is that the
former examines a causal connection between the assertedly unlawful
conduct and the alleged injury, whereas the latter examines the causal
connection between the alleged injury and the judicial relief
requested.'' Id.
\353\Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26
(1976). See also Linda R.S. v. Richard D., 410 U.S. 614 (1973) (mother
of illegitimate child lacked standing to contest prosecutorial policy of
utilizing child support laws to coerce support of legitimate children
only, since it was ``only speculative'' that prosecution of father would
result in support rather than jailing).
\354\Warth v. Seldin, 422 U.S. 490 (1975). But in Village of
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264
(1974), a person who alleged he was seeking housing in the community and
that he would qualify if the organizational plaintiff were not inhibited
by allegedly racially discriminatory zoning laws from constructing
housing for low-income persons like himself was held to have shown a
``substantial probability'' that voiding of the ordinance would benefit
him.
\355\Allen v. Wright, 468 U.S. 737 (1984). But compare Heckler
v. Mathews, 465 U.S. 728 (1984), where persons denied equal treatment in
conferral of benefits were held to have standing to challenge the
treatment, although a judicial order could only have terminated benefits
to the favored class. In that event, members would have secured relief
in the form of equal treatment, even if they did not receive benefits.
And see Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987);
Orr v. Orr, 440 U.S. 268, 271-273 (1979).
\356\Duke Power Co. v. Carolina Environmental Study Group, 438
U.S. 59, 72-78 1978). The likelihood of relief in some cases appears to
be rather speculative at best. E.g., Bryant v. Yellen, 447 U.S. 352,
366-368 (1980); Watt v. Energy Action Educational Foundation, 454 U.S.
151, 160-162 (1981).
\357\Warth v. Seldin, 422 U.S. 490, 505 (1975); Allen v. Wright,
468 U.S. 737, 756-761 (1984).
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Prudential Standing Rules.--Even when Article III constitutional
standing rules have been satisfied, the Court has held that principles
of prudence may counsel the judiciary to refuse to adjudicate some
claims.\358\ With respect to the prudential rules, it is clear that the
Court feels free to disregard any of these principles in cases in which
it thinks exceptionable circumstances exists,\359\ and Congress is free
to legislate away prudential restraints upon the Court's jurisdiction
and confer standing to the furtherest extent permitted by Article
III.\360\ The Court has identified three
[[Page 662]]
rules as prudential ones,\361\ only one of which has been a significant
factor in the jurisprudence of standing. The first two rules are that
the plaintiff's interest, to which she asserts an injury, must come
within the ``zone of interest'' arguably protected by the constitutional
provision or statute in question\362\ and that plaintiffs may not air
``generalized grievances'' shared by all or a large class of
citizens.\363\ The important rule concerns the ability of a plaintiff to
represent the constitutional rights of third parties not before the
court.
\358\Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91,
99-100 (1979) (``a plaintiff may still lack standing under the
prudential principles by which the judiciary seeks to avoid deciding
questions of broad social import where no individual rights would be
vindicated and to limit access to the federal courts to those litigants
best suited to assert a particular claim'').
\359\Warth v. Seldin, 422 U.S. 490, 500-501 (1975); Craig v.
Boren, 429 U.S. 190, 193-194 (1976).
\360\``Congress may grant an express right of action to persons
who otherwise would be barred by prudential standing rules. Of course,
Art. III's requirement remains: the plaintiff still must allege a
distinct and palpable injury to himself, even if it is an injury shared
by a large class of other possible litigants.'' Warth v. Seldin, 422
U.S. 490, 501 (1975). That is, the actual or threatened injury required
may exist solely by virtue of ``statutes creating legal rights, the
invasion of which creates standing, even though no injury would exist
without the statute.'' Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3
(1973); O'Shea v. Littleton, 414 U.S. 488, 493 n. 2 (1974). Examples
include United States v. SCRAP, 412 U.S. 669 (1973); Trafficante v.
Metropolitan Life Ins. Co ., 409 U.S. 205 (1972); Gladstone, Realtors v.
Village of Bellwood, 441 U.S. 91 (1979). See also Buckley v. Valeo, 424
U.S. 1, 8 n. 4, 11-12 (1976). For a good example of the congressionally-
created interest and the injury to it, see Havens Realty Corp. v.
Coleman, 455 U.S. 363, 373-375 (1982) (Fair Housing Act created right to
truthful information on availability of housing; black tester's right
injured through false information, but white tester not injured because
he received truthful information). It is clear, however, that the Court
will impose separation-of-powers restraints on the power of Congress to
create interests to which injury would give standing. Lujan v. Defenders
of Wildlife, 112 S.Ct. 2130, 2142-2146 (1992).
\361\Valley Forge Christian College v. Americans United, 454
U.S. 464, 474-475 (1982); Allen v. Wright, 468 U.S. 737, 751 (1984).
\362\Assn. of Data Processing Service Orgs. v. Camp, 397 U.S.
150, 153 (1970); Simon v. Eastern Kentucky Welfare Rights Org ., 426
U.S. 26, 39 n. 19 (1976); Valley Forge Christian College v. Americans
United, 454 U.S. 464, 475 (1982); Clarke v. Securities Industry Assn.,
479 U.S. 388 (1987).
\363\United States v. Richardson, 418 U.S. 166, 173, 174-176
(1974); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S.
59, 80 (1978); Allen v. Wright, 468 U.S. 737, 751 (1984). In United
States v. SCRAP, 412 U.S. 669, 687-688 (1973), a congressional conferral
case, the Court agreed that the interest asserted was one shared by all,
but the Court has disparaged SCRAP, asserting that it ``surely went to
the very outer limit of the law,'' Whitmore v. Arkansas, 495 U.S. 149,
159 (1990).
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Standing to Assert the Constitutional Rights of Others.--
Usually, one may assert only one's interest in the litigation and not
challenge the constitutionality of a statute or a governmental action
because it infringes the protectable rights of someone else.\364\ In
Tileston v. Ullman,\365\ an early round in the attack on a state
anticontraceptive law, a doctor sued, charging that he was prevented
from giving his patients needed birth control advice. The Court held he
had no standing; no right of his was infringed, and he could not
represent the interests of his patients. But there are
[[Page 663]]
several exceptions to this part of the standing doctrine that make
generalization misleading. Many cases allow standing to third parties if
they demonstrate a requisite degree of injury to themselves and if under
the circumstances the injured parties whom they seek to represent would
likely not be able to assert their rights. Thus, in Barrows v.
Jackson,\366\ a white defendant who was being sued for damages for
breach of a restrictive covenant directed against African Americans--and
therefore able to show injury in liability for damages--was held to have
standing to assert the rights of the class of persons whose
constitutional rights were infringed.\367\ Similarly, the Court has
permitted defendants who have been convicted under state law--giving
them the requisite injury--to assert the rights of those persons not
before the Court whose rights would be adversely affected through
enforcement of the law in question.\368\ In fact, the Court has
permitted persons who would be subject to future prosecution or future
legal action--thus satisfying the injury requirement--to represent the
rights of third parties with whom the challenged law has interfered with
a relationship.\369\ It is also possible, of course, that one's own
rights can be affected by action directed at someone from another
group.\370\
\364\United States v. Raines, 362 U.S. 17, 21-23 (1960); Yazoo &
M.V.R. Co. v. Jackson Vinegar Co., 226 U.S. 217 (1912). Cf. Bender v.
Williamsport Area School Dist., 475 U.S. 534 (1986).
\365\318 U.S. 44 (1943). See Warth v. Seldin, 422 U.S. 490, 508-
510 (1975) (challenged law did not adversely affect plaintiffs and did
not adversely affect a relationship between them and persons they sought
to represent).
\366\346 U.S. 249 (1953).
\367\See also Buchanan v. Warley, 245 U.S. 60 (1917) (white
plaintiff suing for specific performance of a contract to convey
property to a Negro had standing to contest constitutionality of
ordinance barring sale of property to African Americans, inasmuch as
black defendant was relying on ordinance as his defense); Sullivan v.
Little Hunting Park, 396 U.S. 229 (1969) (white assignor of membership
in discriminatory private club could raise rights of black assignee in
seeking injunction against expulsion from club).
\368\E.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (persons
convicted of prescribing contraceptives for married persons and as
accessories to crime of using contraceptives have standing to raise
constitutional rights of patients with whom they had a professional
relationship; while use of contraceptives was a crime, it was doubtful
any married couple would be prosecuted so that they could challenge the
statute); Eisenstadt v. Baird, 405 U.S. 438 (1972) (advocate of
contraception convicted of giving device to unmarried woman had standing
to assert rights of unmarried persons denied access; unmarried persons
not subject to prosecution and were thus impaired in ability to obtain
them or gain forum to assert rights).
\369\E.g., Doe v. Bolton, 410 U.S. 179, 188-189 (1973) (doctors
have standing to challenge abortion statute since it operates directly
against them and they should not have to await criminal prosecution in
order to determine their validity); Planned Parenthood v. Danforth, 428
U.S. 52, 62 (1976) (same); Craig v. Boren, 429 U.S. 190, 192-197 (1976)
(licensed beer distributor could contest sex discriminatory alcohol laws
because it operated on him, he suffered injury in fact, and was
``obvious claimant'' to raise issue); Carey v. Population Services
Intl., 431 U.S. 678, 682-684 (1977) (vendor of contraceptives had
standing to bring action to challenge law limiting distribution). Older
cases support the proposition. See, e.g., Pierce v. Society of Sisters,
268 U.S. 510 (1925); Bantam Books v. Sullivan, 372 U.S. 58 (1963).
\370\Holland v. Illinois, 493 U.S. 474 (1990) (white defendant
had standing to raise a Sixth Amendment challenge to exclusion of blacks
from his jury, since defendant had a right to a jury comprised of a fair
cross section of the community).
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[[Page 664]]
A substantial dispute was occasioned in Singleton v. Wulff,\371\
over the standing of doctors, who were denied Medicaid funds for the
performance of abortions not ``medically indicated,'' to assert the
rights of absent women to compensated abortions. All the Justices
thought the Court should be hesitant to resolve a controversy on the
basis of the rights of third parties, but they divided with respect to
the standards exceptions. Four Justices favored a lenient standard,
permitting third party representation when there is a close, perhaps
confidential, relationship between the litigant and the third parties
and when there is some genuine obstacle to third party assertion of
their rights; four Justices would have permitted a litigant to assert
the rights of third parties only when government directly interdicted
the relationship between the litigant and the third parties through the
criminal process and when litigation by the third parties is in all
practicable terms impossible.\372\
\371\428 U.S. 106 (1976).
\372\Compare id., 112-118 (Justices Blackmun, Brennan, White,
and Marshall), with id., 123-131 (Justices Powell, Stewart, and
Rehnquist, and Chief Justice Burger). Justice Stevens concurred with the
former four Justices on narrower grounds limited to this case.
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Following Wulff, the Court emphasized the close attorney-client
relationship in holding that a lawyer had standing to assert his
client's Sixth Amendment right to counsel in challenging application of
a drug-forfeiture law to deprive the client of the means of paying
counsel.\373\ However, a ``next friend'' whose stake in the outcome is
only speculative must establish that the real party in interest is
unable to litigate his own cause because of mental incapacity, lack of
access to courts, or other disability.\374\
\373\Caplin & Drysdale v. United States, 491 U.S. 617, 623-624
n. 3 (1989).
\374\Whitmore v. Arkansas, 495 U.S. 149 (1990) (death row
inmate's challenge to death penalty imposed on a fellow inmate who
knowingly, intelligently, and voluntarily chose not to appeal cannot be
pursued).
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A variant of the general rule is that one may not assert the
unconstitutionality of a statute in other respects when the statute is
constitutional as to him.\375\ Again, the exceptions may be more
important than the rule. Thus, an overly broad statute, especially one
that regulates speech and press, may be considered on its face rather
than as applied, and a defendant to whom the statute constitutionally
applies may be enabled to assert its unconstitutionality thereby.\376\
\375\United States v. Raines, 362 U.S. 17, 21-24 (1960).
\376\Lanzetta v. New Jersey, 306 U.S. 451 (1939); Thornhill v.
Alabama, 310 U.S. 88 (1940); Winters v. New York, 333 U.S. 507 (1948);
Dombrowski v. Pfister, 380 U.S. 479, 486-487 (1965); Gooding v. Wilson,
405 U.S. 518 (1972); Lewis v. City of New Orleans, 415 U.S. 130 (1974).
The Court has narrowed its overbreadth doctrine, though not
consistently, in recent years. Broadrick v. Oklahoma, 413 U.S. 601
(1973); Young v. American Mini Theatres, 427 U.S. 50, 59-60 (1976), and
id., 73 (Justice Powell concurring); New York v. Ferber, 458 U.S. 747,
771-773 (1982). But the exception as stated in the text remains strong.
E.g., Secretary of State v. Joseph H. Munson Co., 467 U.S. 947 (1984);
Virginia v. American Booksellers Assn., 484 U.S. 383 (1988).
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[[Page 665]]
Organizational Standing.--Organizations do not have standing as
such to represent their particular concept of the public interest,\377\
but organizations have been permitted to assert the rights of their
members.\378\ In Hunt v. Washington State Apple Advertising Comm.,\379\
the Court promulgated elaborate standards, holding that an organization
or association ``has standing to bring suit on behalf of its members
when: (a) its members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the
organization's purpose; and (c) neither the claim asserted, nor the
relief requested, requires the participation of individual members in
the lawsuit.'' Similar considerations arise in the context of class
actions, in which the Court holds that a named representative with a
justiciable claim for relief is necessary when the action is filed and
when the class is certified, but that following class certification
there need be only a live controversy with the class, provided the
adequacy of the representation is sufficient.\380\
\377\Sierra Club v. Morton, 401 U.S. 727 (1972). An organization
may, of course, sue to redress injuries to itself. See Havens Realty Co.
v. Coleman, 455 U.S. 363, 378-379 (1982).
\378\E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341
U.S. 123 (1951); NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958);
NAACP v. Button, 371 U.S. 415 (1963); Brotherhood of Railroad Trainmen
v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964); United Mine
Workers v. Illinois State Bar Assn., 389 U.S. 217 (1967); United
Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971).
\379\432 U.S. 333, 343 (1977). The organization here was not a
voluntary membership entity but a state agency charged with furthering
the interests of apple growers who were assessed annual sums to support
the Commission. Id., 341-345. See also Warth v. Seldin, 422 U.S. 490,
510-517 (1975); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S.
26, 39-40 (1976); Village of Arlington Heights v. Metropolitan Housing
Dev. Corp., 429 U.S. 252, 263-264 (1977); Harris v. McRae, 448 U.S. 297,
321 (1980); International Union, UAW v. Brock, 477 U.S. 274 (1986).
\380\United States Parole Comm. v. Geraghty, 445 U.S. 388
(1980). Geraghty was a mootness case.
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Standing of States to Represent Their Citizens.--The right of a
State to sue as parens patriae, in behalf of its citizens, has long been
recognized.\381\ No State, however, may be parens patriae of her
citizens ``as against the Federal Government.''\382\ But a State may sue
on behalf of the economic welfare of its citizens to protect
[[Page 666]]
them from environmental harm\383\ and to enjoin other States and private
parties from engaging in actions harmful to the economic or other well-
being of its citizens.\384\ The State must be more than a nominal party
without a real interest of its own, merely representing the interests of
particular citizens who cannot represent themselves;\385\ it must
articulate an interest apart from those of private parties that partakes
of a ``quasi-sovereign interest'' in the health and well-being, both
physical and economic, of its residents in general, although there are
suggestions that the restrictive definition grows out of the Court's
wish to constrain its original jurisdiction and may not fit such suits
brought in the lower federal courts.\386\
\381\Louisiana v. Texas, 176 U.S. 1 (1900) (recognizing the
propriety of parens patriae suits but denying it in this particular
suit).
\382\Massachusetts v. Mellon, 262 U.S. 447, 485-486 (1923). But
see South Carolina v. Katzenbach, 383 U.S. 301 (1966) (denying such
standing to raise two constitutional claims against the United States
but deciding a third); Oregon v. Mitchell, 400 U.S. 112, 117 n. 1 (1970)
(no question raised about standing or jurisdiction; claims adjudicated).
\383\Missouri v. Illinois, 180 U.S. 208 (1901); Kansas v.
Colorado, 206 U.S. 46 (1907); Georgia v. Tennessee Copper Co., 206 U.S.
230 (1907); New York v. New Jersey, 256 U.S. 296 (1921); Pennsylvania v.
West Virginia, 262 U.S. 553 (1923); North Dakota v. Minnesota, 263 U.S.
365 (1923).
\384\Georgia v. Pennsylvania Railroad Co., 324 U.S. 439 (1945)
(antitrust); Maryland v. Louisiana, 451 U.S. 725, 737-739 (1981)
(discriminatory state taxation of natural gas shipped to out-of-state
customers); Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S.
592 (1982) (discrimination by growers against Puerto Rican migrant
workers and denial of Commonwealth's opportunity to participate in
federal employment service laws).
\385\New Hampshire v. Louisiana, 108 U.S. 76 (1883); Oklahoma ex
rel. Johnson v. Cook, 304 U.S. 387 (1938); Oklahoma v. Atchison, T. &
S.F.Ry., 220 U.S. 277 (1911); North Dakota v. Minnesota, 263 U.S. 365,
376 (1923); Pennsylvania v. New Jersey, 426 U.S. 660 (1976).
\386\Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458
U.S. 592, 607-608 (1982). Justice Brennan, joined by Justices Marshall,
Blackmun, and Stevens, argued that the Court's standards should apply
only in original actions and not in actions filed in federal district
courts, where, they contended, the prerogative of a State to bring suit
on behalf of its citizens should be commensurate with the ability of
private organizations to do so. Id., 610. The Court admitted that
different considerations might apply between original actions and
district court suits. Id., 603 n. 12.
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Standing of Members of Congress.--The lower federal courts have
of late developed a body of law with respect to the standing of Members
of Congress, as Members, to bring court actions, usually to challenge
actions of the executive branch. Most of the law has developed in the
District of Columbia Circuit,\387\ and the Supreme Court has yet to
consider the issue on the merits.\388\
[[Page 667]]
It seems clear that a legislator ``receives no special consideration in
the standing inquiry,''\389\ and that he, along with every other person
attempting to invoke the aid of a federal court, must show ``injury in
fact'' as a predicate to standing. What that injury in fact may consist
of, however, is the basis of the controversy.
\387\Member standing has not fared well in other Circuits.
Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir., 1973), cert. den., 416
U.S. 936 (1974); Harrington v. Schlesinger, 528 F.2d 455 (4th Cir.,
1975).
\388\In Coleman v. Miller, 307 U.S. 433, 438 (1939), the Court
recognized that legislators can in some instances suffer an injury in
respect to the effectiveness of their votes that will confer standing.
In Pressler v. Blumenthal, 434 U.S. 1028 (1978), affg. 428 F. Supp. 302
(D.D.C. 1976) (three-judge court), the Court affirmed a decision in
which the lower court had found Member standing but had then decided
against the Member on the merits. The ``unexplicated affirmance'' could
have reflected disagreement with the lower court on standing or
agreement with it on the merits. Note Justice Rehnquist's appended
statement. Ibid. In Goldwater v. Carter, 444 U.S. 996 (1979), the Court
vacated a decision, in which the lower Court had found Member standing,
and directed dismissal, but none of the Justices who set forth reasons
addressed the question of standing. The opportunity to consider Member
standing was strongly pressed in Burke v. Barnes, 479 U.S. 361 (1987),
but the expiration of the law in issue mooted the case.
\389\Reuss v. Balles, 584 F.2d 461, 466 (D.C.Cir.), cert. den.,
439 U.S. 997 (1978).
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A suit by Members for an injunction against continued
prosecution of the Indochina war was held maintainable on the theory
that if the court found the President's actions to be beyond his
constitutional authority, the holding would have a distinct and
significant bearing upon the Members' duties to vote appropriations and
other supportive legislation and to consider impeachment.\390\ The
breadth of this rationale was disapproved in subsequent cases. The
leading decision is Kennedy v. Sampson,\391\ in which a Member was held
to have standing to contest the alleged improper use of a pocket veto to
prevent from becoming law a bill the Senator had voted for. Thus,
Congressmen were held to have a derivative rather than direct interest
in protecting their votes, which was sufficient for standing purposes,
when some ``legislative disenfranchisement'' occurred.\392\ In a
comprehensive assessment of its position, the Circuit distinguished
between (1) a diminution in congressional influence resulting from
executive action that nullifies a specific congressional vote or
opportunity to vote in an objectively verifiable manner, which will
constitute injury in fact, and (2) a diminution in a legislator's
effectiveness, subjectively judged by him, resulting from executive
action, such a failing to obey a statute, where the plaintiff legislator
has power to act through the legislative process, in which injury in
fact does not exist.\393\ Having thus established
[[Page 668]]
a fairly broad concept of Member standing, the Circuit then proceeded to
curtail it by holding that the equitable discretion of the court to deny
relief should be exercised in many cases in which a Member had standing
but in which issues of separation of powers, political questions, and
other justiciability considerations counseled restraint.\394\ The status
of this issue thus remains in confusion.
\390\Mitchell v. Laird, 488 F.2d 611 (D.C.Cir. 1973).
\391\511 F.2d 430 (D.C.Cir. 1974). In Barnes v. Kline, 759 F.2d
21 (D.C.Cir. 1985), the court again found standing by Members
challenging a pocket veto, but the Supreme Court dismissed the appeal as
moot. Sub nom. Burke v. Barnes, 479 U.S. 361 (1987). Whether the injury
was the nullification of the past vote on passage only or whether it was
also the nullification of an opportunity to vote to override the veto
has divided the Circuit, with the majority favoring the broader
interpretation. Goldwater v. Carter, 617 F.2d 697, 702 n. 12 (D.C.Cir.),
and id., 711-712 (Judge Wright), vacated and remanded with instructions
to dismiss, 444 U.S. 996 (1979)
\392\Kennedy v. Sampson, 511 F.2d 430, 435-436 (D.C.Cir. 1974).
See Harrington v. Bush, 553 F.2d 190, 199 n. 41 (D.C.Cir. 1977).
Harrington found no standing in a Member's suit challenging CIA failure
to report certain actions to Congress, in order that Members could
intelligently vote on certain issues. See also Reuss v. Balles, 584 F.2d
461 (D.C.Cir.), cert. den., 439 U.S. 997 (1978).
\393\Goldwater v. Carter, 617 F.2d 697, 702, 703 (D.C.Cir.) (en
banc), vacated and remanded with instructions to dismiss, 444 U.S. 996
(1979). The failure of the Justices to remark on standing is somewhat
puzzling, since it has been stated that courts ``turn initially,
although not invariably, to the question of standing to sue.''
Schlesinger v. Reservists Com. to Stop the War, 418 U.S. 208, 215
(1974). But see Harrington v. Bush, 553 F.2d 190, 207 (D.C.Cir. 1977).
In any event, the Supreme Court's decision vacating Goldwater deprives
the Circuit's language of precedential effect. United States v.
Munsingwear, 340 U.S. 36, 39-40 (1950); O'Connor v. Donaldson, 422 U.S.
563, 577 n. 12 (1975).
\394\Riegle v. FOMC, 656 F.2d 873 (D.C.Cir.), cert. den., 454
U.S. 1082 (1981).
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Standing to Challenge Nonconstitutional Governmental Action.--
Standing in this sense has a constitutional content to the degree that
Article III requires a ``case'' or ``controversy,'' necessitating a
litigant who has sustained or will sustain an injury so that he will be
moved to present the issue ``in an adversary context and in a form
historically viewed as capable of judicial resolution.''\395\
Liberalization of the law of standing in this field has been notable.
The ``old law'' required that in order to sue to contest the lawfulness
of agency administrative action, one must have suffered a ``legal
wrong,'' that is, ``the right invaded must be a legal right,''\396\
requiring some resolution of the merits preliminarily. An injury-in-fact
was insufficient.
\395\Assn. of Data Processing Service Org. v. Camp, 397 U.S.
150, 151-152 (1970), citing Flast v. Cohen, 392 U.S. 83, 101 (1968).
``But where a dispute is otherwise justiciable, the question whether the
litigant is a `proper party to request an adjudication of a particular
issue,' [quoting Flast, supra, 100], is one within the power of Congress
to determine.'' Sierra Club v. Morton, 405 U.S. 727, 732 n. 3 (1972).
\396\Tennessee Power Co. v. TVA, 306 U.S. 118, 137-138 (1939).
See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938); Perkins v.
Lukens Steel Co., 310 U.S. 113 (1940).
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A ``legal right'' could be established in one of two ways. It
could be a common-law right, such that if the injury were administered
by a private party, one could sue on it;\397\ or it could be a right
created by the Constitution or a statute.\398\ The statutory right
[[Page 669]]
most relied on was the judicial review section of the Administrative
Procedure Act, which provided that ``[a] person suffering legal wrong
because of agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is entitled to judicial
review thereof.''\399\ Early decisions under this statute interpreted
the language as adopting the ``legal interest'' and ``legal wrong''
standard then prevailing as constitutional requirements of standing,
which generally had the effect of limiting the type of injury cognizable
in federal court to economic ones.\400\
\397\Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S.
123, 152 (1951) (Justice Frankfurter concurring). This was apparently
the point of the definition of ``legal right'' as ``one of property, one
arising out of contract, one protected against tortious invasion, or one
founded on a statute which confers a privilege.'' Tennessee Power Co. v.
TVA, 306 U.S. 118, 137-138 (1939).
\398\Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S.
123, 152 (1951) (Justice Frankfurter concurring). The Court approached
this concept in two interrelated ways. (1) It might be that a plaintiff
had an interest that it was one of the purposes of the statute in
question to protect in some degree. Chicago Junction Case, 264 U.S. 258
(1924); Alexander Sprunt & Son v. United States, 281 U.S. 249 (1930);
Alton R.R. v. United States, 315 U.S. 15 (1942). Thus, in Hardin v.
Kentucky Utilities Co., 390 U.S. 1 (1968), a private utility was held to
have standing to contest allegedly illegal competition by TVA on the
ground that the statute was meant to give private utilities some
protection from certain forms of TVA competition. (2) It might be that a
plaintiff was a ``person aggrieved'' within the terms of a judicial
review section of an administrative or regulatory statute. Injury to an
economic interest was sufficient to ``aggrieve'' a litigant. FCC v.
Sanders Brothers Radio Station, 309 U.S. 470 (1940); Associated
Industries v. Ickes, 134 F.2d 694 (2d Cir.), cert. dismd. as moot, 320
U.S. 707 (1943).
\399\5 U.S.C. Sec. 702. See also 47 U.S.C. Sec. 202(b)(6)(FCC);
15 U.S.C. Sec. 77i(a) (SEC); 16 U.S.C. Sec. 825a(b)(FPC).
\400\FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 477
(1940); City of Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 83
(1958); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 7 (1968).
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More recently, however, the Court promulgated a two-pronged
standing test: if the litigant (1) has suffered injury-in-fact and if he
(2) shows that the interest he seeks to protect is arguably within the
zone of interests to be protected or regulated by the statutory
guarantee in question, he has standing.\401\ Of even greater importance
was the expansion of the nature of the injury required beyond economic
injury, which followed logically to some extent from the revision of the
standard, to encompass ``aesthetic, conservational, and recreational''
interests as well.\402\ ``Aesthetic and environmental well-being, like
economic well-being, are important ingredients of the quality of life in
our society, and the fact that particular environmental interests are
shared by the many rather than the few does not make them less deserving
of legal protection
[[Page 670]]
through the judicial process.''\403\ Thus, plaintiffs, who had pleaded
that they used the natural resources of the Washington area, that rail
freight rates would deter the recycling of used goods, and that their
use of natural resources would be disturbed by the adverse environmental
impact caused by the nonuse of recyclable goods, had standing as
``persons aggrieved'' to challenge the rates set. Neither the large
numbers of persons allegedly injured nor the indirect and less
perceptible harm to the environment was justification to deny standing.
The Court granted that the plaintiffs might never be able to establish
the ``attenuated line of causation'' from rate setting to injury, but
that was a matter for proof at trial, whereas in the instant case the
Court dealt only with the pleadings.\404\
\401\Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150
(1970); Barlow v. Collins, 397 U.S. 159 (1970). Justices Brennan and
White argued that only injury-in-fact should be requisite for standing.
Id., 167. In Clarke v. Securities Industry Assn., 479 U.S. 388 (1987),
the Court applied a liberalized zone-of-interest test. But see Lujan v.
National Wildlife Federation, 497 U.S. 871, 885-889 (1990); Air Courier
Conference v. American Postal Workers Union, 498 U.S. 517 (1991). In
applying these standards, the Court, once it determined that the
litigant's interests were ``arguably protected'' by the statute in
question, proceeded to the merits without thereafter pausing to inquire
whether in fact the interests asserted were among those protected.
Arnold Tours v. Camp, 400 U.S. 45 (1970); Investment Company Institute
v. Camp, 401 U.S. 617 (1971); Boston Stock Exchange v. State Tax Comm.,
429 U.S. 318, 320 n. 3 (1977). Almost contemporaneously, the Court also
liberalized the ripeness requirement in review of administrative
actions. Gardner v. Toilet Goods Assn., 387 U.S. 167 (1967); Abbott
Laboratories v. Gardner, 387 U.S. 136 (1967).
\402\Assn. of Data Processing Service Org. v. Camp, 397 U.S.
150, 154 (1970).
\403\Sierra Club v. Morton, 405 U.S. 727, 734 (1972), Moreover,
said the Court, once a person establishes that he has standing to seek
judicial review of an action because of particularized injury to him, he
may argue the public interest as a ``representative of the public
interest,'' as a ``private attorney general,'' so that he may contest
not only the action which injures him but the entire complex of actions
of which his injury-inducing action is a part. Id., 737-738, noting
Scripps-Howard Radio v. FCC, 316 U.S. 4 (1942); FCC v. Sanders Brothers
Radio Station, 309 U.S. (1940). See also Gladstone, Realtors v. Village
of Bellwood, 441 U.S. 91, 103 n. (1979); Havens Realty Corp. v. Coleman,
455 U.S. 363, 376 n.16 (1982) (noting ability of such party to represent
interests of third parties).
\404\United States v. SCRAP, 412 U.S. 669, 683-690 (1973). As
was noted above, this case has been disparaged by the later Court. Lujan
v. Defenders of Wildlife, 112 S.Ct. 2130, 2139-2140 (1992); Whitmore v.
Arkansas, 495 U.S. 149, 158-160 (1990).
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Much debate has occurred in recent years with respect to the
validity of ``citizen suit'' provisions in the environmental laws,
especially in light of the Court's retrenchment in constitutional
standing cases. The Court in insisting on injury in fact as well as
causation and redressability has curbed access to citizen suits,\405\
but that Congress may expansively confer substantial degrees of standing
through statutory creations of interests remains true.
\405\See Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992);
Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).
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The Requirement of a Real Interest
Almost inseparable from the requirements of adverse parties and
substantial enough interests to confer standing is the requirement that
a real issue be presented, as contrasted with speculative, abstract,
hypothetical, or moot issues. It has long been the Court's ``considered
practice not to decide abstract, hypothetical or contingent
questions.''\406\ A party cannot maintain a suit ``for a mere
declaration in the air.''\407\ In Texas v. ICC,\408\ the State attempted
to enjoin the enforcement of the Transportation Act of 1920 on the
[[Page 671]]
ground that it invaded the reserved rights of the State. The Court
dismissed the complaint as presenting no case or controversy, declaring:
``It is only where rights, in themselves appropriate subjects of
judicial cognizance, are being, or about to be, affected prejudicially
by the application or enforcement of a statute that its validity may be
called in question by a suitor and determined by an exertion of the
judicial power.''\409\ And in Ashwander v. TVA,\410\ the Court refused
to decide any issue save that of the validity of the contracts between
the Authority and the Company. ``The pronouncements, policies and
program of the Tennessee Valley Authority and its directors, their
motives and desires, did not give rise to a justiciable controversy save
as they had fruition in action of a definite and concrete character
constituting an actual or threatened interference with the rights of the
person complaining.''\411\
\406\Alabama State Federation of Labor v. McAdory, 325 U.S. 450,
461 (1945).
\407\Giles v. Harris, 189 U.S. 475, 486 (1903).
\408\258 U.S. 158 (1922).
\409\Id., 162.
\410\297 U.S. 288 (1936).
\411\Id., 324. Chief Justice Hughes cited New York v. Illinois,
274 U.S. 488 (1927), in which the Court dismissed as presenting abstract
questions a suit about the possible effects of the diversion of water
from Lake Michigan upon hypothetical water power developments in the
indefinite future, and Arizona v. California, 283 U.S. 423 (1931), in
which it was held that claims based merely upon assumed potential
invasions of rights were insufficient to warrant judicial intervention.
See also Massachusetts v. Mellon, 262 U.S. 447, 484-485 (1923); New
Jersey v. Sargent, 269 U.S. 328, 338-340 (1926); Georgia v. Stanton, 6
Wall. (73 U.S.) 50, 76 (1868).
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Concepts of real interest and abstract questions appeared
prominently in United Public Workers v. Mitchell,\412\ an omnibus attack
on the constitutionality of the Hatch Act prohibitions on political
activities by governmental employees. With one exception, none of the
plaintiffs had violated the Act, though they stated they desired to
engage in forbidden political actions. The Court found no justiciable
controversy except in regard to the one, calling for ``concrete legal
issues, presented in actual cases, not abstractions'', and seeing the
suit as really an attack on the political expediency of the Act.\413\
\412\330 U.S. 75 (1947).
\413\Id., 89-91. Justices Black and Douglas dissented,
contending that the controversy was justiciable. Justice Douglas could
not agree that the plaintiffs should have to violate the act and lose
their jobs in order to test their rights. In CSC v. National Assn. of
Letter Carriers, 413 U.S. 548 (1973), the concerns expressed in Mitchell
were largely ignored as the Court reached the merits in an anticipatory
attack on the Act. Compare Epperson v. Arkansas, 393 U.S. 97 (1968).
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Advisory Opinion.--In 1793, the Court unanimously refused to
grant the request of President Washington and Secretary of State
Jefferson to construe the treaties and laws of the United States
pertaining to questions of international law arising out of
[[Page 672]]
the wars of the French Revolution.\414\ Noting the constitutional
separation of powers and functions in his reply, Chief Justice Jay said:
``These being in certain respects checks upon each other, and our being
Judges of a Court in the last resort, are considerations which afford
strong arguments against the propriety of our extra-judicially deciding
the questions alluded to, especially as the power given by the
Constitution to the President, of calling on the heads of departments
for opinions, seem to have been purposely as well as expressly united to
the Executive departments.''\415\ Although the Court has generally
adhered to its refusal, Justice Jackson was not quite correct when he
termed the policy a ``firm and unvarying practice. . . .''\416\ The
Justices in response to a letter calling for suggestions on improvements
in the operation of the courts drafted a letter suggesting that circuit
duty for the Justices was unconstitutional, but they apparently never
sent it;\417\ Justice Johnson communicated to President Monroe,
apparently with the knowledge and approval of the other Justices, the
views of the Justices on the constitutionality of internal improvements
legislation;\418\ and Chief Justice Hughes in a letter to Senator
Wheeler on President Roosevelt's Court Plan questioned the
constitutionality of a proposal to increase the membership and have the
Court sit in divisions.\419\ Other Justices have individually served as
advisers and confidants of Presidents in one degree or another.\420\
\414\1 C. Warren, op. cit., n. 18, 108-111. The full text of the
exchange appears in 3 Correspondence and Public Papers of John Jay, H.
Johnston ed. (New York: 1893), 486-489.
\415\Id., 488.
\416\Chicago & S. Air Lines v. Waterman Steamship Corp., 333
U.S. 103, 113 (1948).
\417\See supra, p.599 n.21.
\418\1 C. Warren, op. cit., n. 18, 595-597.
\419\Hearings Before the Senate Judiciary Committee on S. 1392,
Reorganization of the Judiciary, 75th Congress, 1st sess. (1937), pt. 3,
491. See also Chief Justice Taney's private advisory opinion to the
Secretary of the Treasury that a tax levied on the salaries of federal
judges violated the Constitution. S. Tyler, Memoirs of Roger B. Taney
(Baltimore: 1876), 432-435.
\420\E.g., Acheson, Removing the Shadow Cast on the Courts, 55
A.B.A.J. 919 (1969); Jaffe, Professors and Judges as Advisors to
Government: Reflections on the Roosevelt-Frankfurter Relationship, 83
Harv. L. Rev. 366 (1969). The issue has lately earned the attention of
the Supreme Court, Mistretta v. United States, 488 U.S. 361, 397-408
(1989) (citing examples and detailed secondary sources), when it upheld
the congressionally-authorized service of federal judges on the
Sentencing Commission.
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Nonetheless, the Court has generally adhered to the early
precedent and would no doubt have developed the rule in any event, as a
logical application of the case and controversy doctrine. As stated by
Justice Jackson, when the Court refused to review an order of the Civil
Aeronautics Board, which in effect was a mere
[[Page 673]]
recommendation to the President for his final action: ``To revise or
review an administrative decision which has only the force of a
recommendation to the President would be to render an advisory opinion
in its most obnoxious form--advice that the President has not asked,
tendered at the demand of a private litigant, on a subject concededly
within the President's exclusive, ultimate control. This Court early and
wisely determined that it would not give advisory opinions even when
asked by the Chief Executive. It has also been the firm and unvarying
practice of Constitutional Courts to render no judgments not binding and
conclusive on the parties and none that are subject to later review or
alteration by administrative action.''\421\ The early refusal of the
Court to render advisory opinions has discouraged direct requests for
advice so that the advisory opinion has appeared only collaterally in
cases where there was a lack of adverse parties,\422\ or where the
judgment of the Court was subject to later review or action by the
executive or legislative branches of Government,\423\ or where the
issues involved were abstract or contingent.\424\
\421\Chicago & S. Air Lines v. Waterman Steamship Corp., 333
U.S. 103, 113-114 (1948).
\422\Muskrat v. United States, 219 U.S. 346 (1911).
\423\United States v. Ferreira, 13 How. (54 U.S.) 40 (1852).
\424\United Public Workers v. Mitchell, 330 U.S. 75 (1947).
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Declaratory Judgments.--Rigid emphasis upon such elements of
judicial power as finality of judgment and award of execution coupled
with equally rigid emphasis upon adverse parties and real interests as
essential elements of a case and controversy created serious doubts
about the validity of any federal declaratory judgment procedure.\425\
These doubts were largely dispelled by Court decisions in the late 1920s
and early 1930s,\426\ and Congress quickly responded with the Federal
Declaratory Judgment Act of 1934.\427\ Quickly tested, the Act was
unanimously sustained.\428\ ``The principle involved in this form of
procedure,'' the House Report said, ``is to confer upon the courts the
power to exercise in some instances preventive relief; a function now
performed rather clumsily by our equitable proceedings and inadequately
by the law courts.''\429\ Said the Senate Report: ``The declaratory
judgment differs in no essential respect from any other judgment except
that it is not followed by a decree for damages, injunction, specific
performance, or other immediately coercive decree. It declares conclu
[[Page 674]]
sively and finally the rights of parties in litigations over a contested
issue, a form of relief which often suffices to settle controversies and
fully administer justice.''\430\
\425\Cf. Willing v. Chicago Auditorium Assn., 277 U.S. 274
(1928).
\426\Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123
(1927); Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1963).
\427\48 Stat. 955, as amended, 28 U.S.C. Sec. Sec. 2201-2202.
\428\Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).
\429\H. Rept. No. 1264, 73d Congress, 2d sess. (1934), 2.
\430\S. Rept. No. 1005, 73d Congress, 2d sess. (1934), 2.
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The 1934 Act provided that ``[i]n cases of actual controversy''
federal courts could ``declare rights and other legal relations of any
interested party petitioning for such declaration, whether or not
further relief is or could be prayed. . . .''\431\ Upholding the Act,
the Court said: ``The Declaratory Judgment Act of 1934, in its
limitation to `cases of actual controversy,' manifestly has regard to
the constitutional provision and is operative only in respect to
controversies which are such in the constitutional sense. The word
`actual' is one of emphasis rather than of definition. Thus the
operation of the Declaratory Judgment Act is procedural only. In
providing remedies and defining procedure in relation to cases and
controversies in the constitutional sense the Congress is acting within
its delegated power over the jurisdiction of the federal courts which
the Congress is authorized to establish.''\432\ Finding that the issue
in the case presented a definite and concrete controversy, the Court
held that a declaration should have been issued.\433\
\431\48 Stat. 955. The language remains quite similar. 28 U.S.C.
Sec. 2201.
\432\Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-240
(1937),
\433\Id., 242-244.
---------------------------------------------------------------------------
It has insistently been maintained by the Court that ``the
requirements for a justiciable case or controversy are no less strict in
a declaratory judgment proceeding than in any other type of suit.''\434\
As Justice Douglas has written: ``The difference between an abstract
question and a `controversy' contemplated by the Declaratory Judgment
Act is necessarily one of degree, and it would be difficult, if it would
be possible, to fashion a precise test for determining in every case
whether there is such a controversy. Basically, the question in each
case is whether the facts alleged, under all the circumstances, show
that there is a substantial controversy, between parties having adverse
legal interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.''\435\ It remains, therefore, for
the courts to determine in each case the degree of controversy necessary
to establish a case for purposes of jurisdiction. Even then, however,
the Court is under no compulsion to exercise its jurisdiction.\436\
\434\Alabama State Federation of Labor v. McAdory, 325 U.S. 450,
461 (1945).
\435\Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S.
270, 273 (1941).
\436\Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494
(1942); Public Service Comm. v. Wycoff Co., 344 U.S. 237, 243 (1952);
Public Affairs Associates v. Rickover, 369 U.S. 111, 112 (1962).
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[[Page 675]]
Utilization of declaratory judgments to settle disputes and
identify rights in many private areas, like insurance and patents in
particular but extending into all areas of civil litigation, except
taxes,\437\ is common. The Court has, however, at various times
demonstrated a substantial reluctance to have important questions of
public law, especially regarding the validity of legislation, resolved
by such a procedure.\438\ In part, this has been accomplished by a
strict insistence upon concreteness, ripeness, and the like.\439\
Nonetheless, even at such times, several noteworthy constitutional
decisions were rendered in declaratory judgment actions.\440\
\437\An exception ``with respect to Federal taxes'' was added in
1935. 49 Stat. 1027. The Tax Injunction Act of 1937, 50 Stat. 738,
U.S.C. Sec. 1341, prohibited federal injunctive relief directed at state
taxes but said nothing about declaratory relief. It was held to apply,
however, in California v. Grace Brethren Church, 457 U.S. 393 (1982).
Earlier, in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293
(1943), the Court had reserved the issue but held that considerations of
comity should preclude federal courts from giving declaratory relief in
such cases. Cf. Fair Assessment in Real Estate Assn. v. McNary, 454 U.S.
100 (1981).
\438\E.g., Ashwander v. TVA, 297 U.S. 288 (1936); Electric Bond
& Share, Co. v. SEC, 303 U.S. 419 (1938); United Public Workers v.
Mitchell, 330 U.S. 75 (1947); Eccles v. Peoples Bank, 333 U.S. 426
(1948); Rescue Army v. Municipal Court, 331 U.S. 549, 572-573 (1947).
\439\United Public Workers v. Mitchell, 330 U.S. 75 (1947); Poe
v. Ullman, 367 U.S. 497 (1961); Altvater v. Freeman, 319 U.S. 359
(1943); International Longshoremen's Union v. Boyd, 347 U.S. 222 (1954);
Public Service Comm. v. Wycoff, 344 U.S. 237 (1952).
\440\E.g., Currin v. Wallace, 306 U.S. 1 (1939); Perkins v. Elg,
307 U.S. 325 (1939); Ashwander v. TVA, 297 U.S. 288 (1936); Evers v.
Dwyer, 358 U.S. 202 (1958).
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As part of the 1960s hospitality to greater access to courts,
the Court exhibited a greater hospitality to declaratory judgments in
constitutional litigation, especially cases involving civil liberties
issues.\441\ The doctrinal underpinnings of this hospitality were
sketched out by Justice Brennan in his opinion for the Court in Zwickler
v. Koota,\442\ in which the relevance to declaratory judgments of the
Dombrowski v. Pfister\443\ line of cases involving federal injunctive
relief against the enforcement of state criminal statutes was in issue.
First, it was held that the vesting of ``federal question'' jurisdiction
in the federal courts by Congress following the Civil War, as well as
the enactment of more specific civil rights jurisdictional statutes,
``imposed the duty upon all levels of the federal judiciary to give due
respect to a suitor's choice of a federal forum for the hearing and
decision of his federal constitutional claims.''\444\
\441\E.g., Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v.
Board of Regents, 385 U.S. 589 (1967); Turner v. City of Memphis, 369
U.S. 350 (1962); Powell v. McCormack, 395 U.S. 486 (1969). But see
Golden v. Zwickler, 394 U.S. 103 (1969).
\442\389 U.S. 241 (1967).
\443\380 U.S. 479 (1965).
\444\Zwickler v. Koota, 389 U.S. 241, 248 (1967).
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[[Page 676]]
Escape from that duty might be found only in ``narrow
circumstances,'' such as an appropriate application of the abstention
doctrine, which was not proper where a statute affecting civil liberties
was so broad as to reach protected activities as well as unprotected
activities. Second, the judicially-developed doctrine that a litigant
must show ``special circumstances'' to justify the issuance of a federal
injunction against the enforcement of state criminal laws is not
applicable to requests for federal declaratory relief: ``a federal
district court has the duty to decide the appropriateness and the merits
of the declaratory request irrespective of its conclusion as to the
propriety of the issuance of the injunction.''\445\ This language was
qualified subsequently, so that declaratory and injunctive relief were
equated in cases in which a criminal prosecution is pending in state
court at the time the federal action is filed\446\ or is begun in state
court after the filing of the federal action but before any proceedings
of substance have taken place in federal court,\447\ and federal courts
were instructed not to issue declaratory judgments in the absence of the
factors permitting issuance of injunctions under the same circumstances.
But in the absence of a pending state action or the subsequent and
timely filing of one, a request for a declaratory judgment that a
statute or ordinance is unconstitutional does not have to meet the
stricter requirements justifying the issuance of an injunction.\448\
\445\Zwickler v. Koota, 389 U.S. 241, 254 (1967).
\446\Samuels v. Mackell, 401 U.S. 66 (1971). The case and its
companion, Younger v. Harris, 401 U.S. 37 (1971), substantially undercut
much of the Dombrowski language and much of Zwickler was downgraded.
\447\Hicks v. Miranda, 422 U.S. 332, 349 (1975).
\448\Steffel v. Thompson, 415 U.S. 452 (1974). In cases covered
by Steffel, the federal court may issue preliminary or permanent
injunctions to protect its judgments, without satisfying the Younger
tests. Doran v. Salem Inn, 422 U.S. 922, 930-931 (1975); Wooley v.
Maynard, 430 U.S. 705, 712 (1977).
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Ripeness.--Just as standing historically has concerned who may
bring an action in federal court, the ripeness doctrine concerns when it
may be brought. Formerly, it was a wholly constitutional principle
requiring a determination that the events bearing on the substantive
issue have happened or are sufficiently certain to occur so as to make
necessary adjudication and so as to assure that the issues are
sufficiently defined to permit intelligent resolution; the focus was on
the harm to the rights claimed rather than on the harm to the plaintiff
that gave him standing to bring the action,\449\ although, to be sure,
in most cases the harm is the same. But in liberalizing the doctrine of
ripeness in recent years the Court sub
[[Page 677]]
divided it into constitutional and prudential parts\450\ and conflated
standing and ripeness considerations.\451\
\449\United Public Workers v. Mitchell, 330 U.S. 75 (1947);
International Longshoremen's Union v. Boyd, 347 U.S. 222 (1954).
\450\Regional Rail Reorganization Act Cases, 419 U.S. 102, 138-
148 (1974) (certainty of injury a constitutional limitation, factual
adequacy element a prudential one).
\451\Duke Power Co. v. Carolina Environmental Study Group, 438
U.S. 59, 81-82 (1978) (that plaintiffs suffer injury-in-fact and such
injury would be redressed by granting requested relief satisfies Article
III ripeness requirement; prudential element satisfied by determination
that Court would not be better prepared to render a decision later than
now). But compare Renne v. Geary, 501 U.S. 312 (1991).
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The early cases generally required potential plaintiffs to
expose themselves to possibly irreparable injury in order to invoke
federal judicial review. Thus, in United Public Workers v.
Mitchell,\452\ government employees alleged that they wished to engage
in various political activities and that they were deterred from their
desires by the Hatch Act prohibitions on political activities. As to all
but one plaintiff, who had himself actually engaged in forbidden
activity, the Court held itself unable to adjudicate because the
plaintiffs were not threatened with ``actual interference'' with their
interests. The Justices viewed the threat to plaintiffs' rights as
hypothetical and refused to speculate about the kinds of political
activity they might engage in or the Government's response to it. ``No
threat of interference by the Commission with rights of these appellants
appears beyond that implied by the existence of the law and the
regulations.''\453\ Similarly, resident aliens planning to work in the
Territory of Alaska for the summer and then return to the United States
were denied a request for an interpretation of the immigration laws that
they would not be treated on their return as excludable aliens entering
the United States for the first time, or alternatively, for a ruling
that the laws so interpreted would be unconstitutional, inasmuch as they
had not gone and attempted to return, although other alien workers had
gone and been denied reentry and the immigration authorities were on
record as intending to enforce the laws as they construed them.\454\ Of
course, the Court was not entirely consistent in applying the
doctrine.\455\
\452\330 U.S. 75 (1947).
\453\Id., 90. In CSC v. National Assn. of Letter Carriers, 413
U.S. 548 (1973), without discussing ripeness, the Court decided on the
merits anticipatory attacks on the Hatch Act. Plaintiffs had, however,
alleged a variety of more concrete infringements upon their desires and
intentions than the UPW plaintiffs had.
\454\International Longshoremen's Union v. Boyd, 347 U.S. 222
(1954). See also Electric Bond & Share Co. v. SEC, 303 U.S. 419 (1938);
Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945);
Public Service Comm. v. Wycoff Co., 344 U.S. 237 (1952); Socialist Labor
Party v. Gilligan, 406 U.S. 583 (1972).
\455\In Adler v. Board of Education, 342 U.S. 485 (1952),
without discussing ripeness, the Court decided on the merits a suit
about a state law requiring dismissal of teachers advocating violent
overthrow of the government, over a strong dissent arguing the case was
indistinguishable from Mitchell. Id., 504 (Justice Frankfurter
dissenting). In Cramp v. Board of Public Instruction, 368 U.S. 278
(1961), a state employee was permitted to attack a non-Communist oath,
although he alleged he believed he could take the oath in good faith and
could prevail if prosecuted, because the oath was so vague as to subject
plaintiff to the ``risk of unfair prosecution and the potential
deterrence of constitutionally protected conduct.'' Id., 283-284. See
also Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of
Regents, 385 U.S. 589 (1967).
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[[Page 678]]
It remains good general law that pre-enforcement challenges to
criminal and regulatory legislation will often be unripe for judicial
consideration because of uncertainty of enforcement,\456\ because the
plaintiffs can allege only a subjective feeling of inhibition or fear
arising from the legislation or from enforcement of it,\457\ or because
the courts need before them the details of a concrete factual situation
arising from enforcement in order to engage in a reasoned balancing of
individual rights and governmental interests.\458\ But one who
challenges a statute or possible administrative action need demonstrate
only a realistic danger of sustaining an injury to his rights as a
result of the statute's operation and enforcement and need not await the
consummation of the threatened injury in order to obtain preventive
relief, such as exposing himself to actual arrest or prosecution. When
one alleges an intention to engage in conduct arguably affected with a
constitutional interest but proscribed by statute and there exists a
credible threat of prosecution thereunder, he may bring an action for
declaratory or injunctive relief.\459\ Similarly, the reasonable
certainty of the occurrence of the perceived threat to a constitutional
interest is sufficient to afford a basis for bringing a challenge,
provided the court has sufficient facts before it to enable it to
intelligently adjudicate the issues.\460\ Of considerable uncertainty in
the law of ripeness is the Duke
[[Page 679]]
Power case in which the Court held ripe for decision on the merits a
challenge to a federal law limiting liability for nuclear accidents at
nuclear power plants, on the basis that because plaintiffs had sustained
injury-in-fact and had standing the Article III requisite of ripeness
was satisfied and no additional facts arising out of the occurrence of
the claimed harm would enable the court better to decide the
issues.\461\ Should this analysis prevail, ripeness as a limitation on
justiciability will decline in importance.
\456\E.g., Poe v. Ullman, 367 U.S. 497 (1961) (no adjudication
of challenge to law barring use of contraceptives because in 80 years of
the statute's existence the State had never instituted a prosecution).
But compare Epperson v. Arkansas, 393 U.S. 97 (1987) (merits reached in
absence of enforcement and fair indication State would not enforce it);
Vance v. Amusement Co., 445 U.S. 308 (1980) (reaching merits, although
State asserted law would not be used, although local prosecutor had so
threatened; no discussion of ripeness, but dissent relied on Poe, id.,
317-318).
\457\E.g., Younger v. Harris, 401 U.S. 37, 41-42 (1971); Boyle
v. Landry, 401 U.S. 77 (1971); Golden v. Zwickler, 394 U.S. 103 (1969);
O'Shea v. Littleton, 414 U.S. 488 (1974); Spomer v. Littleton, 414 U.S.
514 (1974); Rizzo v. Goode, 423 U.S. 362 (1976).
\458\E.g., California Bankers Assn. v. Schultz, 416 U.S. 21
(1974); Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S.
264, 294-297 (1981); Renne v. Geary, 501 U.S. 312, 320-323 (1991).
\459\Steffel v. Thompson, 415 U.S. 452 (1974); Wooley v.
Maynard, 430 U.S. 705, 707-708, 710 (1977); Babbitt v. United Farm
Workers, 442 U.S. 289, 297-305 (1979) (finding some claims ripe, others
not). Compare Doe v. Bolton, 410 U.S. 179, 188-189 (1973), with Roe v.
Wade, 410 U.S. 113, 127-128 (1973). See also Planned Parenthood v.
Danforth, 428 U.S. 52 (1976); Colautti v. Franklin, 439 U.S. 379 (1979).
\460\Buckley v. Valeo, 424 U.S. 1, 113-118 (1976); Regional Rail
Reorganization Act Cases, 419 U.S. 102, 138-148 (1974) (holding some but
not all the claims ripe). See also Goldwater v. Carter, 444 U.S. 996,
997 (Justice Powell concurring) (parties had not put themselves in
opposition).
\461\Duke Power Co. v. Carolina Environmental Study Group, 438
U.S. 59, 81-82 (1978). The injury giving standing to plaintiffs was the
environmental harm arising from the plant's routine operation; the
injury to their legal rights was alleged to be the harm caused by the
limitation of liability in the event of a nuclear accident. The standing
injury had occurred, the ripeness injury was conjectural and speculative
and might never occur. See id., 102 (Justice Stevens concurring in the
result). It is evident on the face of the opinion and expressly stated
by the objecting Justices that the Court utilized its standing/ripeness
analyses in order to reach the merits, so as to remove the
constitutional cloud cast upon the federal law by the district court
decision. Id., 95, 103 (Justices Rehnquist and Stevens concurring in the
result).
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Mootness.--It may be that a case presenting all the attributes
necessary for federal court litigation will at some point lose some
attribute of justiciability, will, in other words, become ``moot.'' The
usual rule is that an actual controversy must exist at all stages of
trial and appellate consideration and not simply at the date the action
is initiated.\462\ ``Under Article III of the Constitution, federal
courts may adjudicate only actual, ongoing cases or controversies. . . .
Article III denies federal courts the power `to decide questions that
cannot affect the rights of litigants in the case before them, . . . and
confines them to resolving `real and substantial controvers[ies]
admitting of specific relief through a decree of a conclusive character,
as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.' . . . This case-or-controversy requirement
subsists through all stages of federal judicial proceedings, trial and
appellate. To sustain our jurisdiction in the present case, it is not
enough that a dispute was very much alive when suit was filed, or when
review was obtained in the Court of Appeals. . . . The parties must
continue to have a `personal stake in the outcome' of the
lawsuit.''\463\ Since, with the ad
[[Page 680]]
vent of declaratory judgments, it is open to the federal courts to
``declare the rights and other legal relations'' of the parties with res
judicata effect,\464\ the question in cases alleged to be moot now seems
largely if not exclusively to be decided in terms whether an actual
controversy continues to exist between the parties rather than some
additional older concepts.\465\
\462\E.g., United States v. Munsingwear, 340 U.S. 36 (1950);
Golden v. Zwickler, 394 U.S. 103, 108 (1969); SEC v. Medical Committee
for Human Rights, 404 U.S. 403 (1972); Roe v. Wade, 410 U.S. 113, 125
(1973); Sosna v. Iowa, 419 U.S. 393, 398-399 (1975); United States
Parole Comm. v. Geraghty, 445 U.S. 388, 397 (1980), and id., 411
(Justice Powell dissenting); Burke v. Barnes, 479 U.S. 361, 363 (1987);
Honig v. Doe, 484 U.S. 305, 317 (1988); Lewis v. Continental Bank Corp.,
494 U.S. 472, 477-478 (1990).
\463\Lewis v. Continental Bank Corp., 494 U.S. 472,477-478
(1990) (internal citations omitted). The Court's emphasis upon mootness
as a constitutional rule mandated by Article III is long stated in the
cases. E.g., Liner v. Jafco, 375 U.S. 301, 306 n. 3 (1964); DeFunis v.
Odegaard, 416 U.S. 312, 316 (1974); Sibron v. New York, 392 U.S. 40, 57
(1968). See Honig v. Doe, 484 U.S. 305, 317 (1988), and id., 332
(Justice Scalia dissenting). But compare Franks v. Bowman Transp. Co.,
424 U.S. 747, 756 n. 8 (1976) (referring to mootness as presenting
policy rather than constitutional considerations). If this foundation
exists, it is hard to explain the exceptions, which partake of practical
reasoning. In any event, Chief Justice Rehnquist has argued that the
mootness doctrine is not constitutionally based, or not sufficiently
based only on Article III, so that the Court should not dismiss cases
that have become moot after the Court has taken them for review. Honig,
supra, 329 (concurring).
\464\But see Steffel v. Thompson, 415 U.S. 452, 470-472 (1974);
id., 477 (Justice White concurring), 482 n. 3 (Justice Rehnquist
concurring) (on res judicata effect in state court in subsequent
prosecution). In any event, the statute authorizes the federal court to
grant ``[f]urther necessary or proper relief'' which could include
enjoining state prosecutions.
\465\Award of process and execution are no longer essential to
the concept of judicial power. Aetna Life Ins. Co. v. Haworth, 300 U.S.
227 (1937).
---------------------------------------------------------------------------
Cases may become moot because of a change in the law,\466\ or in
the status of the parties,\467\ or because of some act of one of the
parties which dissolves the controversy.\468\ But the Court has
developed several exceptions, which operate to prevent many of the cases
in which mootness is alleged from being in law moot. Thus, in criminal
cases, although the sentence of the convicted appellant has been served,
the case ``is moot only if it is shown that there is no possibility that
any collateral legal consequences will be imposed on the basis of the
challenged conviction.''\469\ The ``mere possibility'' of such a
consequence, even a ``remote'' one, is enough to find that one who has
served his sentence has retained the req
[[Page 681]]
uisite personal stake giving his case ``an adversary cast and making it
justiciable.''\470\ This exception has its counterpart in civil
litigation in which a lower court judgment may still have certain
present or future adverse effects on the challenging party.\471\
\466\E.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 13
How. (54 U.S.) 518 (1852); United States v. Alaska Steamship Co., 253
U.S. 113 (1920); Hall v. Beals, 396 U.S. 45 (1969); Sanks v. Georgia,
401 U.S. 144 (1971); Richardson v. Wright, 405 U.S. 208 (1972);
Diffenderfer v. Central Baptist Church, 404 U.S. 412 (1972); Lewis v.
Continental Bank Corp., 494 U.S. 481 (1990). But compare City of
Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 288-289 (1982) (case
not mooted by repeal of ordinance, since City made clear its intention
to reenact it if free from lower court judgment).
\467\Atherton Mills v. Johnston, 259 U.S. 13 (1922) (in
challenge to laws regulating labor of youths 14 to 16, Court held case
two-and-one-half years after argument and dismissed as moot since
certainly none of the challengers was now in the age bracket); Golden v.
Zwickler, 394 U.S. 103 (1969); DeFunis v. Odegaard, 416 U.S. 312 (1974);
Dove v. United States, 423 U.S. 325 (1976); Lane v. Williams, 455 U.S.
624 (1982). Compare County of Los Angeles v. Davis, 440 U.S. 625 (1979),
with Vitek v. Jones, 445 U.S. 480 (1980).
\468\E.g. Commercial Cable Co. v. Burleson, 250 U.S. 360 (1919);
Oil Workers Local 8-6 v. Missouri, 361 U.S. 363 (1960); A.L. Mechling
Barge Lines v. United States, 368 U.S. 324 (1961); Preiser v. Newkirk,
422 U.S. 395 (1975); County of Los Angeles v. Davis, 440 U.S. 625
(1979).
\469\Sibron v. New York, 395 U.S. 40, 50-58 (1968).
\470\Benton v. Maryland, 395 U.S. 784, 790-791 (1969). The cases
have progressed from leaning toward mootness to leaning strongly
against. E.g., St. Pierre v. United States, 319 U.S. 41 (1943); Fiswick
v. United States, 329 U.S. 211 (1946); United States v. Morgan, 346 U.S.
502 (1954); Pollard v. United States, 352 U.S. 354 (1957); Ginsberg v.
New York, 390 U.S. 629, 633-634 n. 2 (1968); Sibron v. New York, 392
U.S. 40, 49-58 (1968); but see Lane v. Williams, 455 U.S. 624 (1982).
The exception permits review at the instance of the prosecution as well
as defendant. Pennsylvania v. Mimms, 434 U.S. 106 (1977). When a
convicted defendant dies while his case is on direct review, the Court's
present practice is to dismiss the petition for certiorari. Dove v.
United States, 423 U.S. 325 (1976), overruling Durham v. United States,
401 U.S. 481 (1971).
\471\Southern Pacific Terminal Co. v. ICC, 219 U.S. 433, 452
(1911); Carroll v. President & Comrs. of Princess Anne, 393 U.S. 175
(1968). See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974)
(holding that expiration of strike did not moot employer challenge to
state regulations entitling strikers to state welfare assistance since
the consequences of the regulations would continue).
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A second exception, the ``voluntary cessation'' doctrine,
focuses on whether challenged conduct which has lapsed or the
utilization of a statute which has been superseded is likely to
recur.\472\ Thus, cessation of the challenged activity by the voluntary
choice of the person engaging in it, especially if he contends that he
was properly engaging in it, will moot the case only if it can be said
with assurance ``that `there is no reasonable expectation that the wrong
will be repeated.'''\473\ Otherwise, ``[t]he defendant is free to return
to his old ways'' and this fact would be enough to prevent mootness
because of the ``public interest in having the legality of the practices
settled.''\474\
\472\United States v. Trans-Missouri Freight Assn., 166 U.S. 290
(1897); Walling v. Helmerich & Payne, 323 U.S. 37 (1944); Porter v. Lee,
328 U.S. 246 (1946); United States v. W.T. Grant Co., 345 U.S. 629
(1953); Gray v. Sanders, 372 U.S. 368 (1963); United States v.
Concentrated Phosphate Export Assn., 393 U.S. 199, 202-204 (1969);
DeFunis v. Odegaard, 416 U.S. 312, 318 (1974); County of Los Angeles v.
Davis, 440 U.S. 625, 631-634 (1979), and id., 641-646 (Justice Powell
dissenting); Vitek v. Jones, 445 U.S. 480, 486-487 (1980), and id., 500-
501 (Justice Stewart dissenting); Princeton University v. Schmidt, 455
U.S. 100 (1982); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S.
283, 288-289 (1982).
\473\United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)
(quoting United States v. Aluminum Co. of America, 148 F.2d 416, 448
(2d. Cir., 1945)).
\474\United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953).
But see A.L. Mechling Barge Lines v. United States, 368 U.S. 324 (1961).
---------------------------------------------------------------------------
Still a third exception concerns the ability to challenge short-
term conduct which may recur in the future, which has been denominated
as disputes ``capable of repetition, yet evading review.''\475\ Thus, in
cases in which (1) the challenged action is too short in its duration to
be fully litigated prior to its cessation or expiration, and (2) there
is a reasonable expectation that the same
[[Page 682]]
complaining party would be subjected to the same action again, mootness
will not be found when the complained-of conduct ends.\476\ The
imposition of short sentences in criminal cases,\477\ the issuance of
injunctions to expire in a brief period,\478\ and the short-term factual
context of certain events, such as elections\479\ or pregnancies,\480\
are all instances in which this exception is frequently invoked.
\475\Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515
(1911).
\476\Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Murphy v.
Hunt, 455 U.S. 478, 482 (1982). See Super Tire Engineering Co. v.
McCorkle, 416 U.S. 115, 125-126 (1974), and id., 130-132 (Justice Powell
dissenting). The degree of expectation or likelihood that the issue will
recur has frequently divided the Court. Compare Murphy v. Hunt, supra,
with Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976); compare Honig
v. Doe, 484 U.S. 305, 318-323 (1988), with id., 332 (Justice Scalia
dissenting).
\477\Sibron v. New York, 392 U.S. 40, 49-58 (1968). See Gerstein
v. Pugh, 420 U.S. 103 (1975).
\478\Carroll v. President & Comrs. of Princess Anne, 393 U.S.
175 (1968). See Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976)
(short-term court order restricting press coverage).
\479\E.g., Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Rosario
v. Rockefeller, 410 U.S. 752, 756 n. 5 (1973); Storer v. Brown, 415 U.S.
724, 737 n. 8 (1974). Compare Mills v. Green, 159 U.S. 651 (1895); Ray
v. Blair, 343 U.S. 154 (1952).
\480\Roe v. Wade, 410 U.S. 113, 124-125 (1973).
---------------------------------------------------------------------------
An interesting and potentially significant liberalization of the
law of mootness, perhaps as part of a continuing circumstances
exception, is occurring in the context of class action litigation. It is
now clearly established that, when the controversy becomes moot as to
the plaintiff in a certified class action, it still remains alive for
the class he represents so long as an adversary relationship sufficient
to constitute a live controversy between the class members and the other
party exists.\481\ The Court was closely divided, however, with respect
to the right of the named party, when the substantive controversy became
moot as to him, to appeal as error the denial of a motion to certify the
class which he sought to represent and which he still sought to
represent. The Court held that in the class action setting there are two
aspects of the Article III mootness question, the existence of a live
controversy and the existence of a personal stake in the outcome for the
named class representative.\482\ Finding a live controversy, the Court
determined that the named plaintiff retained a sufficient interest, ``a
personal
[[Page 683]]
stake,'' in his claimed right to represent the class in order to satisfy
the ``imperatives of a dispute capable of judicial resolution;'' that
is, his continuing interest adequately assures that ``sharply presented
issues'' are placed before the court ``in a concrete factual setting''
with ``self-interested parties vigorously advocating opposing
positions.''\483\
\481\Sosna v. Iowa, 419 U.S. 393 (1975); Franks v. Bowman
Transp. Co., 424 U.S. 747, 752-757 (1976). A suit which proceeds as a
class action but without formal certification may not receive the
benefits of this rule. Board of School Comrs. v. Jacobs, 420 U.S. 128
(1975). See also Weinstein v. Bradford, 423 U.S. 147 (1975); Pasadena
City Bd. of Educ. v. Spangler, 427 U.S. 424, 430 (1976). But see the
characterization of these cases in United States Parole Comm. v.
Geraghty, 445 U.S. 388, 400 n. 7 (1980). Mootness is not necessarily
avoided in properly certified cases, but the standards of determination
are unclear. See Kremens v. Bartley, 431 U.S. 119 (1977).
\482\United States Parole Comm. v. Geraghty, 445 U.S. 388, 396
(1980).
\483\Id., 403. Justices Powell, Stewart, Rehnquist, and Chief
Justice Burger dissented, Id., 409, arguing there could be no Article
III personal stake in a procedural decision separate from the outcome of
the case. In Deposit Guaranty National Bank v. Roper, 445 U.S. 326
(1980), in an opinion by Chief Justice Burger, the Court held that a
class action was not mooted when defendant tendered to the named
plaintiffs the full amount of recovery they had individually asked for
and could hope to retain. Plaintiffs' interest in shifting part of the
share of costs of litigation to those who would share in its benefits if
the class were certified was deemed to be a sufficient ``personal
stake,'' although the value of this interest was at best speculative.
---------------------------------------------------------------------------
The immediate effect of the decision is that litigation in which
class actions are properly certified or in which they should have been
certified will rarely ever be mooted if the named plaintiff (or in
effect his attorney) chooses to pursue the matter, even though the named
plaintiff can no longer obtain any personal relief from the decision
sought.\484\ Of much greater potential significance is the possible
extension of the weakening of the ``personal stake'' requirement in
other areas, such as the representation of third-party claims in non-
class actions and the initiation of some litigation in the form of a
``private attorneys general'' pursuit of adjudication.\485\ It may be
that the evolution in this area will be confined to the class action
context, but cabining of a ``flexible'' doctrine of standing may be
difficult.\486\
\484\The named plaintiff must still satisfy the class action
requirement of adequacy of representation. United States Parole Comm. v.
Geraghty, 445 U.S. 388, 405-407 (1980). On the implications of Geraghty,
which the Court has not returned to, see Hart & Wechsler, op. cit.,
n.250, 225-230.
\485\Geraghty, supra, 445 U.S., 404 and n. 11.
\486\Id., 419-424 (Justice Powell dissenting).
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Retroactivity Versus Prospectivity.--One of the distinguishing
features of an advisory opinion is that it lays down a rule to be
applied to future cases, much as does legislation generally. It should
therefore follow that an Article III court could not decide purely
prospective cases, cases which do not govern the rights and disabilities
of the parties to the cases.\487\ The Court asserted that this principle
is true, while applying it only to give retroactive effect to the
parties to the immediate case.\488\ Yet, occasionally, the
[[Page 684]]
Court did not apply its holding to the parties before it,\489\ and in a
series of cases beginning in the mid-1960s it became embroiled in
attempts to limit the retroactive effect of its--primarily but not
exclusively\490\--constitutional-criminal law decisions. The results
have been confusing and unpredictable.\491\
\487\For a masterful discussion of the issue in both criminal
and civil contexts, see Fallon & Meltzer, New Law, Non-Retroactivity,
and Constitutional Remedies, 104 Harv. L. Rev. 1731 (1991).
\488\Stovall v. Denno, 388 U.S. 293, 301 (1967).
\489\England v. Louisiana State Board of Medical Examiners, 375
U.S. 411, 422 (1964); James v. United States, 366 U.S. 213 (1961). See
also Morrissey v. Brewer, 408 U.S. 471, 490 (1972).
\490\Noncriminal constitutional cases included Lemon v.
Kurtzman, 411 U.S. 192 (1973); City of Phoenix v. Kolodziejski, 399 U.S.
204 (1970); Cipriano v. City of Houma, 395 U.S. 701 (1969). Indeed, in
Buckley v. Valeo, 424 U.S. 1 (1976), and Northern Pipeline Constr. Co.
v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the Court postponed the
effectiveness of its decision for a period during which Congress could
repair the flaws in the statute. Noncriminal, nonconstitutional cases
include Chevron Oil Co. v. Huson, 404 U.S. 97 (1971); Allen v. State
Board of Elections, 393 U.S. 544 (1969); Hanover Shoe v. United Shoe
Machinery Corp., 392 U.S. 481 (1968); Simpson v. Union Oil Co., 377 U.S.
13 (1964).
\491\Because of shifting coalitions of Justices, Justice Harlan
complained, the course of retroactivity decisions ``became almost as
difficult to follow as the tracks made by a beast of prey in search of
its intended victim.'' Mackey v. United States, 401 U.S. 667, 676 (1971)
(separate opinion).
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Prior to 1965, ``both the common law and our own decisions
recognized a general rule of retrospective effect for the constitutional
decisions of this Court . . . subject to [certain] limited
exceptions.''\492\ Statutory and judge-made law have consequences, at
least to the extent that people must rely on them in making decisions
and shaping their conduct. Therefore, the Court was moved to recognize
that there should be a reconciling of constitutional interests reflected
in a new rule of law with reliance interests founded upon the old.\493\
In both criminal and civil cases, however, the Court's discretion to do
so has been constrained by later decisions.
\492\Robinson v. Neil, 409 U.S. 505, 507 (1973). The older rule
of retroactivity derived from the Blackstonian notion ``that the duty of
the court was not to `pronounce a new law, but to maintain and expound
the old one.''' Linkletter v. Walker, 381 U.S. 618, 622-623 (1965)
(quoting 1 W. Blackstone, Commentaries *69).
\493\Lemon v. Kurtzman, 411 U.S. 192, 198-199 (1973).
---------------------------------------------------------------------------
When in the 1960s the Court began its expansion of the Bill of
Rights and applied the rulings to the States, a necessity arose to
determine the application of the rulings to criminal defendants who had
exhausted all direct appeals but who could still resort to habeas
corpus, to those who had been convicted but still were on direct appeal,
and to those who had allegedly engaged in conduct but who had not gone
to trial. At first, the Court drew the line at cases in which judgments
of conviction were not yet final, so that all persons in those
situations obtained retrospective use of decisions,\494\ but the Court
then promulgated standards for a balancing process that resulted in
different degrees of retroactivity in dif
[[Page 685]]
ferent cases.\495\ Generally, in cases in which the Court declared a
rule which was ``a clear break with the past,'' it denied retroactivity
to all defendants, with the sometime exception of the appellant
himself.\496\ With respect to certain cases in which a new rule was
intended to overcome an impairment of the truth-finding function of a
criminal trial\497\ or to cases in which the Court found that a
constitutional doctrine barred the conviction or punishment of
someone,\498\ full retroactivity, even to habeas claimants, was the
rule. Justice Harlan strongly argued that the Court should sweep away
its confusing balancing rules and hold that all defendants whose cases
are still pending on direct appeal at the time of a law-changing
decision should be entitled to invoke the new rule, but that no habeas
claimant should be entitled to benefit.\499\
\494\Linkletter v. Walker, 381 U.S. 618 (1965); Tehan v. United
States ex rel. Shott, 382 U.S. 406 (1966).
\495\Johnson v. New Jersey, 384 U.S. 719 (1966); Stovall v.
Denno, 388 U.S. 293 (1967); Adams v. Illinois, 405 U.S. 278 (1972).
\496\Desist v. United States, 394 U.S. 224, 248 (1969); United
States v. Peltier, 422 U.S. 531 (1975); Brown v. Louisiana, 447 U.S.
323, 335-336 (1980) (plurality opinion); Michigan v. Payne, 412 U.S. 47,
55 (1973); United States v. Johnson, 457 U.S. 537, 549-550, 551-552
(1982).
\497\Williams v. United States, 401 U.S. 646, 653 (1971)
(plurality opinion); Brown v. Louisiana, 447 U.S. 323, 328-330 (1980)
(plurality opinion); Hankerson v. North Carolina, 432 U.S. 233, 243
(1977).
\498\United States v. United States Coin & Currency, 401 U.S.
715, 724 (1971); Moore v. Illinois, 408 U.S. 786, 800 (1972); Robinson
v. Neil, 409 U.S. 505, 509 (1973).
\499\Mackey v. United States, 401 U.S. 667, 675 (1971) (separate
opinion); Desist v. United States, 394 U.S. 244, 256 (1969)
(dissenting). Justice Powell also strongly supported the proposed rule.
Hankerson v. North Carolina, 432 U.S. 233, 246-248 (1977) (concurring in
judgment); Brown v. Louisiana, 447 U.S. 323, 337 (1980) (concurring in
judgment).
---------------------------------------------------------------------------
The Court has now drawn a sharp distinction between criminal
cases pending on direct review and cases pending on collateral review.
For cases on direct review, ``a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or
federal, pending on direct review or not yet final, with no exception
for cases in which the new rule constitutes a `clear break' with the
past.''\500\ Justice Harlan's habeas approach was then adopted by a
plurality in Teague v. Lane\501\ and then by the Court in Penry v.
Lynaugh.\502\ Thus, for collateral review in federal courts of state
court criminal convictions, the general rule is that ``new rules'' of
constitutional interpretation, those that break new ground or impose a
new obligation on the States or the Federal Government, announced after
a defendant's conviction has become final will not be applied. For such
habeas cases, a ``new rule'' is defined very broadly to include
interpretations that are a logical outgrowth or application of an
earlier rule unless the result was ``dic
[[Page 686]]
tated'' by that precedent.\503\ The only exceptions are for decisions
placing certain conduct or defendants beyond the reach of the criminal
law, and for decisions recognizing a fundamental procedural right
``without which the likelihood of an accurate conviction is seriously
diminished.''\504\
\500\Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
\501\489 U.S. 288 (1989).
\502\492 U.S. 302 (1989).
\503\Penry, supra, 492 U.S., 314. Put another way, it is not
enough that a decision is ``within the `logical compass' of an earlier
decision, or indeed that it is `controlled' by a prior decision.'' A
decision announces a ``new rule'' if its result ``was susceptible to
debate among reasonable minds'' and if it was not ``an illogical or even
a grudging application'' of the prior decision. Butler v. McKellar, 494
U.S. 407, 412-415 (1990).
\504\Teague v. Lane, 489 U.S. 288, 307, 311-313 (1989)
(plurality opinion); Butler v. McKellar, 494 U.S. 407, 415-416 (1990).
Under the second exception it is ``not enough that a new rule is aimed
at improving the accuracy of a trial. . . . A rule that qualifies under
this exception must not only improve accuracy, but also `alter our
understanding of the bedrock procedural elements' essential to the
fairness of a proceeding.'' Sawyer v. Smith, 497 U.S. 227, 242 (1990)
(emphasis in original).
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What the rule is to be, and indeed if there is to be a rule, in
civil cases has been disputed to a rough draw in recent cases. As was
noted above, there is a line of civil cases, constitutional and
nonconstitutional, in which the Court has declined to apply new rules,
the result often of overruling older cases, retrospectively, sometimes
even to the prevailing party in the case.\505\ As in criminal cases, the
creation of new law, through overrulings or otherwise, may result in
retroactivity in all instances, in pure prospectivity, or in partial
prospectivity in which the prevailing party obtains the results of the
new rule but no one else does. In two cases raising the question when
States are required to refund taxes collected under a statute that is
subsequently ruled to be unconstitutional, the Court revealed itself to
be deeply divided.\506\ The question in Beam was whether the company
could claim a tax refund under an earlier ruling holding
unconstitutional the imposition of certain taxes upon its products. The
holding of a fractionated Court was that it could seek a refund, because
in the earlier ruling the Court had applied the holding to the
contesting
[[Page 687]]
company and once a new rule has been applied retroactively to the
litigants in a civil case considerations of equality and stare decisis
compel application to all.\507\ While partial or selective prospectivity
is thus ruled out, neither pure retroactivity or pure prospectivity is
either required or forbidden.
\505\The standard that has been applied was enunciated in
Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). Briefly, the question of
retroactivity or prospectivity was to be determined by a balancing of
the equities. To be limited to prospectivity, a decision must have
established a new principle of law, either by overruling clear past
precedent on which reliance has been had or by deciding an issue of
first impression whose resolution was not clearly foreshadowed. The
courts must look to the prior history of the rule in question, its
purpose and effect, and whether retrospective operation will further or
retard its operation. Then, the courts must look to see whether a
decision to apply retroactively a decision will produce substantial
inequitable results. Id., 106-107. American Trucking Assns., Inc. v.
Smith, 496 U.S. 167, 179-186 (1990) (plurality opinion).
\506\James B. Beam Distilling Co. v. Georgia, 501 U.S. 529
(1991); American Trucking Assns., Inc. v. Smith, 496 U.S. 167 (1990).
And, of course, the retirements since the decisions were handed down
further complicate discerning the likely Court position.
\507\Beam, supra. The holding described in the text is expressly
that of only a two-Justice plurality. Id., 501 U.S., 534-544 (Justices
Souter and Stevens). Justice White, Justice Blackmun, and Justice Scalia
(with Justice Marshall joining the latter Justices) concurred, id., 544,
547, 548 (respectively), but on other, and in the instance of the three
latter Justices, and broader justifications. Justices O'Connor and
Kennedy and Chief Justice Rehnquist dissented. Id., 549.
---------------------------------------------------------------------------
Four Justices adhered to the principle that new law, new rules,
as defined above, may be applied purely prospectively, without violating
any tenet of Article III or any other constitutional value.\508\ Three
Justices argued that all prospectivity, whether partial or total,
violates Article III by expanding the jurisdiction of the federal courts
beyond true cases and controversies.\509\ Future cases must, therefore,
be awaited for resolution of this issue.
\508\Beam, supra, 501 U.S., 549 (dissenting opinion of Justices
O'Connor and Kennedy and Chief Justice Rehnquist), and id., 544 (Justice
White concurring). And see Smith, supra, 496 U.S., 171 (plurality
opinion of Justices O'Connor, White, Kennedy, and Chief Justice
Rehnquist).
\509\Beam, supra, 501 U.S., 547, 548 (Justices Blackmun, Scalia,
and Marshall concurring). These three Justices, in Smith, supra, 496
U.S., 205, had joined the dissenting opinion of Justice Stevens arguing
that constitutional decisions must be given retroactive effect.
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Political Questions
It may be that there will be a case assuredly within the Court's
jurisdiction presented by parties with standing in which adverseness and
ripeness will exist, a case in other words presenting all the
qualifications we have considered making it a justiciable controversy,
which the Court will nonetheless refuse to adjudicate. The ``label'' for
such a case is that it presents a ``political question.'' Although the
Court has referred to the political question doctrine as ``one of the
rules basic of the federal system and this Court's appropriate place
within that structure,''\510\ a commentator has remarked that ``[i]t is,
measured by any of the normal responsibilities of a phrase of
definition, one of the least satisfactory terms known to the law. The
origin, scope, and purpose of the concept have eluded all attempts at
precise statements.''\511\ That the concept of political questions may
be ``more amenable to description by infinite
[[Page 688]]
itemization than by generalization''\512\ is generally true, although
the Court's development of rationale in Baker v. Carr\513\ has changed
this fact radically, but the doctrine may be approached in two ways, by
itemization of the kinds of questions that have been labeled political
and by isolation of the factors that have led to the labeling.
\510\Rescue Army v. Municipal Court, 331 U.S. 549, 570 (1947);
cf. Baker v. Carr, 369 U.S. 186, 278 (1962) (Justice Frankfurter
dissenting). The most successful effort at conceptualization of the
doctrine is Scharpf, Judicial Review and the Political Question: A
Functional Analysis, 75 Yale L.J. 517 (1966). See Hart & Wechsler, op.
cit., n. 250, 270-294.
\511\Frank, Political Questions, in E. Cahn (ed.), Supreme Court
and Supreme Law (Bloomington: 1954), 36.
\512\Ibid.
\513\Baker v. Carr, 369 U.S. 186, 208-232 (1962).
---------------------------------------------------------------------------
Origins and Development.--In Marbury v. Madison,\514\ Chief
Justice Marshall stated: ``The province of the court is, solely, to
decide on the rights of individuals, not to inquire how the executive,
or executive officers, perform duties in which they have a discretion.
Questions in their nature political, or which are, by the constitution
and laws, submitted to the executive can never be made in this
court.''\515\
\514\1 Cr. (5 U.S.) 137, 170 (1803).
\515\In Decatur v. Paulding, 14 Pet. (39 U.S.) 497, 516 (1840),
the Court, refusing an effort by mandamus to compel the Secretary of the
Navy to pay a pension, said: ``The interference of the courts with the
performance of the ordinary duties of the executive departments of the
government, would be productive of nothing but mischief; and we are
quite satisfied, that such a power was never intended to be given to
them.'' It therefore follows that mandamus will lie against an executive
official only to compel the performance of a ministerial duty, which
admits of no discretion, and may not be invoked to control executive or
political duties which admit of discretion. See Georgia v. Stanton, 6
Wall. (73 U.S.) 50 (1867); Mississippi v. Johnson, 4 Wall. (71 U.S.) 475
(1867); Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524
(1838).
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But the doctrine was asserted even earlier as the Court in Ware
v. Hylton\516\ refused to pass on the question whether a treaty had been
broken. And in Martin v. Mott,\517\ the Court held that the President
acting under congressional authorization had exclusive and unreviewable
power to determine when the militia should be called out. But it was in
Luther v. Borden\518\ that the concept was first enunciated as a
doctrine separate from considerations of interference with executive
functions. This case presented the question of the claims of two
competing factions to be the only lawful government of Rhode Island
during a period of unrest in 1842.\519\ Chief Justice Taney began by
saying that the answer was primarily a matter of state law that had been
decided in favor of one faction by the state courts.\520\
\516\3 Dall. (3 U.S.) 199 (1796).
\517\12 Wheat. (25 U.S.) 19 (1827).
\518\7 How. (48 U.S.) 1 (1849).
\519\Cf. Baker v. Carr, 369 U.S. 186, 218-222 (1962); id., 292-
297 (Justice Frankfurter dissenting).
\520\Luther v. Borden, 7 How. (48 U.S.) 1, 40 (1849).
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Insofar as the Federal Constitution had anything to say on the
subject, the Chief Justice continued, that was embodied in the
[[Page 689]]
clause empowering the United States to guarantee to every State a
republican form of government,\521\ and this clause committed
determination of the issue to the political branches of the Federal
Government. ``Under this article of the Constitution it rests with
Congress to decide what government is the established one in a State.
For as the United States guarantee to each State a republican
government, Congress must neccessarily decide what government is
established in the State before it can determine whether it is
republican or not. And when the senators and representatives of a State
are admitted into the councils of the Union, the authority of the
government under which they are appointed, as well as its republican
character, is recognized by the proper constitutional authority. And its
decision is binding on every other department of the government, and
could not be questioned in a judicial tribunal.''\522\ Here, the contest
had not proceeded to a point where Congress had made a decision, ``[y]et
the right to decide is placed there, and not in the courts.''\523\
\521\Id., 42 (citing Article IV, Sec. 4).
\522\Ibid.
\523\Ibid.
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Moreover, in effectuating the provision in the same clause that
the United States should protect them against domestic violence,
Congress had vested discretion in the President to use troops to protect
a state government upon the application of the legislature or the
governor. Before he could act upon the application of a legislature or a
governor, the President ``must determine what body of men constitute the
legislature, and who is the governor. . . .'' No court could review the
President's exercise of discretion in this respect; no court could
recognize as legitimate a group vying against the group recognized by
the President as the lawful government.\524\ Although the President had
not actually called out the militia in Rhode Island, he had pledged
support to one of the competing governments, and this pledge of military
assistance if it were needed had in fact led to the capitulation of the
other faction, thus making an effectual and authoritative determination
not reviewable by the Court.\525\
\524\Id., 43.
\525\Id., 44.
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The Doctrine Before Baker v. Carr.--Over the years, the
political question doctrine has been applied to preclude adjudication of
a variety of issues. Certain factors appear more or less consistently
through most but not all of these cases, and it is perhaps best to
indicate the cases and issues deemed political before attempting to
isolate these factors.
[[Page 690]]
(1) By far the most consistent application of the doctrine has
been in cases in which litigants asserted claims under the republican
form of government clause,\526\ whether the attack was on the government
of the State itself\527\ or on some manner in which it had acted,\528\
but there have been cases in which the Court has reached the
merits.\529\
\526\Article IV, Sec. 4.
\527\As it was on the established government of Rhode Island in
Luther v. Borden, 7 How. (48 U.S.) 1 (1849). See also Texas v. White, 7
Wall. (74 U.S.) 700 (1869); Taylor v. Beckham, 178 U.S. 548 (1900).
\528\Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912);
Kiernan v. City of Portland, 223 U.S. 151 (1912) (attacks on initiative
and referendum); Marshall v. Dye, 231 U.S. 250 (1913) (state
constitutional amendment procedure); O'Neill v. Leamer, 239 U.S. 244
(1915) (delegation to court to form drainage districts); Ohio ex rel.
Davis v. Hildebrant, 241 U.S. 565 (1916) (submission of legislation to
referendum); Mountain Timber Co. v. Washington, 243 U.S. 219 (1917)
(workmen's compensation); Ohio ex rel. Bryant v. Akron Metropolitan Park
District, 281 U.S. 74 (1930) (concurrence of all but one justice of
state high court required to invalidate statute); Highland Farms Dairy
v. Agnew, 300 U.S. 608 (1937) (delegation of legislative powers).
\529\All the cases, however, predate the application of the
doctrine in Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912). See
Attorney General of the State of Michigan ex rel. Kies v. Lowrey, 199
U.S. 233, 239 (1905) (legislative creation and alteration of school
districts ``compatible'' with a republican form of government); Forsyth
v. City of Hammond, 166 U.S. 506, 519 (1897) (delegation of power to
court to determine municipal boundaries does not infringe republican
form of government); Minor v. Happersett, 21 Wall (88 U.S.) 162, 175-176
(1875) (denial of suffrage to women no violation of republican form of
government).
---------------------------------------------------------------------------
(2) Although there is language in the cases that would if
applied make all questions touching on foreign affairs and foreign
policy political,\530\ whether the courts have adjudicated a dispute in
this area has often depended on the context in which it arises. Thus,
the determination by the President whether to recognize the government
of a foreign state\531\ or who is the de jure or de facto ruler of a
foreign state\532\ is conclusive on the courts, but in the absence of a
definitive executive action the courts will review the record to
determine whether the United States has accorded a sufficient degree of
recognition to allow the courts to take judicial notice of the existence
of the state.\533\ Moreover, the courts have often determined for
themselves what effect, if any, should be accorded the acts of foreign
powers, recognized or unrecognized.\534\ Simi
[[Page 691]]
larly, the Court when dealing with treaties and the treaty power has
treated as political questions whether the foreign party had
constitutional authority to assume a particular obligation\535\ and
whether a treaty has lapsed because of the foreign state's loss of
independence\536\ or because of changes in the territorial sovereignty
of the foreign state,\537\ but the Court will not only interpret the
domestic effects of treaties,\538\ it will at times interpret the
effects bearing on international matters.\539\ The Court has deferred to
the President and Congress with regard to the existence of a state of
war and the dates of the beginning and ending and of states of
belligerency between foreign powers, but the deference has sometimes
been forced.\540\
\530\Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918);
Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111
(1948).
\531\United States v. Palmer, 3 Wheat. (16 U.S.) 610 (1818);
Kennett v. Chambers, 14 How. (55 U.S.) 38 (1852).
\532\Jones v. United States, 137 U.S. 202 (1890); Oetjen v.
Central Leather Co., 246 U.S. 297 (1918). See Ex parte Hitz, 111 U.S.
766 (1884).
\533\United States v. The Three Friends, 166 U.S. 1 (1897); In
re Baiz, 135 U.S. 403 (1890). Cf. Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398 (1964).
\534\United States v. Reynes, 9 How. (50 U.S.) 127 (1850);
Garcia v. Lee, 12 Pet. (37 U.S.) 511 (1838); Keene v. McDonough, 8 Pet.
(33 U.S.) 308 (1834). See also Williams v. Suffolk Ins. Co., 13 Pet. (38
U.S.) 415 (1839); Underhill v. Hernandez, 168 U.S. 250 (1897). But see
United States v. Belmont, 301 U.S. 324 (1937). On the ``act of State''
doctrine, compare Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398
(1964), with First National City Bank v. Banco Nacional de Cuba, 406
U.S. 759 (1972). And see First National City Bank v. Banco Para el
Comercio de Cuba, 462 U.S. 611 (1983); W. S. Kirkpatrick Co. v.
Environmental Tectronics Corp., 493 U.S. 400 (1990)
\535\Doe v. Braden, 16 How. (57 U.S.) 635 (1853).
\536\Terlinden v. Ames, 184 U.S. 270 (1902); Clark v. Allen, 331
U.S. 503 (1947).
\537\Kennett v. Chambers, 14 How. (55 U.S.) 38 (1852). On the
effect of a violation by a foreign state on the continuing effectiveness
of the treaty, see Ware v. Hylton, 3 Dall. (3 U.S.) 199 (1796); Charlton
v. Kelly, 229 U.S. 447 (1913).
\538\Ware v. Hylton, 3 Dall. (3 U.S.) 199 (1796). Cf. Chinese
Exclusion Cases, 130 U.S. 581 (1889) (conflict of treaty with federal
law). On the modern formulation, see Japan Whaling Assn. v. American
Cetacean Society, 478 U.S. 221, 229-230 (1986).
\539\Perkins v. Elg, 307 U.S. 325 (1939); United States v.
Rauscher, 119 U.S. 407 (1886).
\540\Commercial Trust Co v. Miller, 262 U.S. 51 (1923); Woods v.
Miller Co., 333 U.S. 138 (1948); Chastleton Corp. v. Sinclair, 264 U.S.
543 (1924); Ludecke v. Watkins, 335 U.S. 160 (1948); Lee v. Madigan, 358
U.S. 228 (1959); The Divina Pastora, 4 Wheat. (17 U.S.) 52 (1819). The
cases involving the status of Indian tribes as foreign states usually
have presented political questions but not always. The Cherokee Nation
v. Georgia, 5 Pet. (30 U.S.) 1 (1831); United States v. Sandoval, 231
U.S. 28 (1913); Worcester v. Georgia, 6 Pet. (31 U.S.) 515 (1832).
---------------------------------------------------------------------------
(3) Ordinarily, the Court will not look behind the fact of
certification that the standards requisite for the enactment of
legislation\541\ or ratification of a constitutional amendment\542\ have
in fact been met, although it will interpret the Constitution to deter
[[Page 692]]
mine what the basic standards are,\543\ and it will decide certain
questions if the political branches are in disagreement.\544\
\541\Field v. Clark, 143 U.S. 649 (1892); Harwood v. Wentworth,
162 U.S. 547 (1896); cf. Gardner v. The Collector, 6 Wall. (73 U.S.) 499
(1868). See, for the modern formulation, United States v. Munoz-Flores,
495 U.S. 385 (1990).
\542\Coleman v. Miller, 307 U.S. 433 (1939) (Congress'
discretion to determine what passage of time will cause an amendment to
lapse and effect of previous rejection by legislature).
\543\Missouri Pacific Ry. v. Kansas, 248 U.S. 276 (1919); Rainey
v. United States, 232 U.S. 310 (1914); Flint v. Stone Tracy Co., 220
U.S. 107 (1911); Twin City Bank v. Nebeker, 167 U.S. 196 (1897); Lyons
v. Woods, 153 U.S. 649 (1894); United States v. Ballin, 144 U.S. 1
(1892) (statutes); United States v. Sprague, 282 U.S. 716 (1931); Leser
v. Garnett, 258 U.S. 130 (1922); Dillon v. Gloss, 256 U.S. 368 (1921);
Hawke v. Smith, 253 U.S. 221 (1920); National Prohibition Cases, 253
U.S. 350 (1920); Hollingsworth v. Virginia, 3 Dall. (3 U.S.) 378 (1798)
(constitutional amendments).
\544\Pocket Veto Case, 279 U.S. 655 (1929); Wright v. United
States, 302 U.S. 583 (1938).
---------------------------------------------------------------------------
(4) Prior to Baker v. Carr,\545\ cases challenging the
distribution of political power through apportionment and
districting,\546\ weighed voting,\547\ and restrictions on political
action\548\ were held to present nonjusticiable political questions.
\545\369 U.S. 186 (1962).
\546\Colegrove v. Green, 328 U.S. 549 (1946); Colegrove v.
Barrett, 330 U.S. 804 (1947).
\547\South v. Peters, 339 U.S. 276 (1950) (county unit system
for election of statewide officers with vote heavily weighed in favor of
rural, lightly-populated counties).
\548\MacDougall v. Green, 335 U.S. 281 (1948) (signatures on
nominating petitions must be spread among counties of unequal
population).
---------------------------------------------------------------------------
From this limited review of the principal areas in which the
political question doctrine seemed most established, it is possible to
extract some factors that seemingly convinced the courts that the issues
presented went beyond the judicial responsibility. These factors,
necessarily stated baldly in so summary a fashion, would appear to be
the lack of requisite information and the difficulty of obtaining
it,\549\ the necessity for uniformity of decision and deferrence to the
wider responsibilities of the political departments,\550\ and the lack
of adequate standards to resolve a dispute.\551\ But present in all the
political cases was (and is) the most important factor, a ``prudential''
attitude about the exercise of judicial review, which emphasizes that
courts should be wary of deciding on the merits any issue in which
claims of principle as to the issue and of expediency as to the power
and prestige of courts are in sharp conflict. The political question
doctrine was (and is) thus a way of avoiding a principled decision
damaging to the Court or an expedient decision damaging to the
principle.\552\
\549\Thus, see, e.g., Chicago & S. Air Lines v. Waterman
Steamship Corp., 333 U.S. 103, 111 (1948); Coleman v. Miller, 307 U.S.
433, 453 (1939).
\550\Thus, see, e.g., Williams v. Suffolk Ins. Co., 13 Pet. (38
U.S.) 415, 420 (1839). Similar considerations underlay the opinion in
Luther v. Borden, 7 How. (48 U.S.) 1 (1849), in which Chief Justice
Taney wondered how a court decision in favor of one faction would be
received with Congress seating the representatives of the other faction
and the President supporting that faction with military force.
\551\Baker v. Carr, 369 U.S. 186, 217, 226 (1962) (opinion of
the Court); id., 268, 287, 295, (Justice Frankfurter dissenting.)
\552\For a statement of the ``prudential'' view, see generally
A. Bickel, The Least Dangerous Branch--The Supreme Court at the Bar of
Politics (New York: 1962), but see esp. 23-28, 69-71, 183-198. See also
Baker v. Carr, 369 U.S. 186, 267 (1962) (Justice Frankfurter
dissenting.) The opposing view, which has been called the ``classicist''
view, is that courts are duty bound to decide all cases properly before
them. Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 404 (1821). See also
H. Wechsler, Principles, Politics, and Fundamental Law--Selected Essays
(Cambridge: 1961), 11-15.
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[[Page 693]]
Baker v. Carr.--In Baker v. Carr,\553\ the Court undertook a
major rationalization and formulation of the political question
doctrine, which has considerably narrowed its application. Following
Baker, the whole of the apportionment-districting-election restriction
controversy previously immune to federal-court adjudication was
considered and decided on the merits,\554\ and the Court's more recent
rejection of the doctrine discloses the narrowing in other areas as
well.\555\
\553\369 U.S. 186 (1962).
\554\Wesberry v. Sanders, 376 U.S. 1 (1964); Reynolds v. Sims,
377 U.S. 533 (1964); Hadley v. Junior College District, 397 U.S. 50
(1970) (apportionment and districting, congressional, legislative, and
local); Gray v. Sanders, 372 U.S. 368 (1963) (county unit system
weighing statewide elections); Moore v. Ogilvie, 394 U.S. 814 (1969)
(geographic dispersion of persons signing nominating petitions).
\555\Powell v. McCormack, 395 U.S. 486 (1969). Nonetheless, the
doctrine continues to be sighted.
---------------------------------------------------------------------------
According to Justice Brennan, who delivered the opinion of the
Court, ``it is the relationship between the judiciary and the coordinate
branches of the Federal Government, and not the federal judiciary's
relationship to the States, which gives rise to the `political
question.'''\556\ Thus, the ``nonjusticiability of a political question
is primarily a function of the separation of powers.''\557\ ``Deciding
whether a matter has in any measure been committed by the Constitution
to another branch of government, or whether the action of that branch
exceeds whatever authority has been committed, is itself a delicate
exercise in constitutional interpretation, and is a responsibility of
this Court as ultimate interpreter of the Constitution.''\558\ Following
a discussion of several areas in which the doctrine had been used,
Justice Brennan continued: ``It is apparent that several formulations
which vary slightly according to the settings in which the questions
arise may describe a political question,
[[Page 694]]
although each has one or more elements which identify it as essentially
a function of the separation of powers.
\556\Baker v. Carr, 369 U.S. 186, 210 (1962). This formulation
fails to explain cases like Moyer v. Peabody, 212 U.S. 78 (1909), in
which the conclusion of the Governor of a State that insurrection
existed or was imminent justifying suspension of constitutional rights
was deemed binding on the Court. Cf. Sterling v. Constantin, 287 U.S.
378 (1932). The political question doctrine was applied in cases
challenging the regularity of enactments of territorial legislatures.
Harwood v. Wentworth, 162 U.S. 547 (1896); Lyons v. Woods, 153 U.S. 649
(1894); Clough v. Curtis, 134 U.S. 361 (1890). See also In re Sawyer,
124 U.S. 200 (1888); Walton v. House of Representatives, 265 U.S. 487
(1924).
\557\Id., 369 U.S., 210.
\558\Id., 211.
---------------------------------------------------------------------------
``Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination of
a kind clearly for nonjudicial discretion; or the impossibility of a
court's undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by
various departments on one question.''\559\
\559\Id., 217. It remains unclear after Baker whether the
political question doctrine is applicable solely to intrafederal issues
or only primarily, so that the existence of one or more of these factors
in a case involving, say, a State, might still give rise to
nonjusticiability. At one point, id., 210, Justice Brennan says that
nonjusticiability of a political question is ``primarily'' a function of
separation of powers but in the immediately preceding paragraph he
states that ``it is'' the intrafederal aspect ``and not the federal
judiciary's relationship to the States'' that raises political
questions. But subsequently, id., 226, he balances the present case,
which involves a State and not a branch of the Federal Government,
against each of the factors listed in the instant quotation and notes
that none apply. His discussion of why guarantee clause cases are
political presents much the same difficulty, id., 222-226, inasmuch as
he joins the conclusion that the clause commits resolution of such
issues to Congress with the assertion that the clause contains no
``criteria by which a court could determine which form of government was
republican,'' id., 222, a factor not present when the equal protection
clause is relied on. Id., 226.
---------------------------------------------------------------------------
Powell v. McCormack.--Because Baker had apparently restricted
the political question doctrine to intrafederal issues, there was no
discussion of the doctrine when the Court held that it had power to
review and overturn a state legislature's refusal to seat a member-elect
because of his expressed views.\560\ But in Powell v. McCormack,\561\
the Court was confronted with a challenge to the exclusion of a member-
elect by the United States House of Representatives. Its determination
that the political question doctrine did not bar its review of the
challenge indicates the narrowness of application of the doctrine in its
present state. Taking Justice Brennan's formulation in Baker of the
factors that go to make up a political question,\562\ Chief Justice
Warren determined that the only critical one in this case was whether
there was a ``textually demonstrable constitutional commitment'' to the
House to determine in its sole discretion the qualifications of
members.\563\ In
[[Page 695]]
order to determine whether there was a textual commitment, the Court
reviewed the Constitution, the Convention proceedings, and English and
United States legislative practice to ascertain what power had been
conferred on the House to judge the qualifications of its members;
finding that the Constitution vested the House with power only to look
at the qualifications of age, residency, and citizenship, the Court thus
decided that in passing on Powell's conduct and character the House had
exceeded the powers committed to it and thus judicial review was not
barred by this factor of the political question doctrine.\564\ Although
this approach accords with the ``classicist'' theory of judicial
review,\565\ it circumscribes the political question doctrine severely,
inasmuch as all constitutional questions turn on whether a governmental
body has exceeded its specified powers, a determination the Court
traditionally makes, whereas traditionally the doctrine precluded the
Court from inquiring whether the governmental body had exceeded its
powers. In short, the political question consideration may now be one on
the merits rather than a decision not to decide.
\560\Bond v. Floyd, 385 U.S. 116 (1966).
\561\395 U.S. 486 (1969).
\562\Baker v. Carr, 369 U.S. 186, 217 (1962).
\563\Id., 395 U.S., 519.
\564\Id., 519-547. The Court concluded, however, by noting that
even if this conclusion had not been reached from unambiguous evidence,
the result would have followed from other considerations. Id., 547-548.
\565\Supra, n. 552. See H. Wechsler, op. cit., n. 552, 11-12.
Professor Wechsler believed that congressional decisions about seating
members were immune to review. Ibid. Chief Justice Warren noted that
``federal courts might still be barred by the political question
doctrine from reviewing the House's factual determination that a member
did not meet one of the standing qualifications. This is an issue not
presented in this case and we express no view as to its resolution.''
Powell v. McCormack, 395 U.S. 486, 521 n. 42 (1969). And see id., 507 n.
27 (reservation on limitations that might exist on Congress' power to
expel or otherwise punish a sitting member).
---------------------------------------------------------------------------
Chief Justice Warren disposed of the other factors present in
political question cases in slightly more than a page. Since resolution
of the question turned on an interpretation of the Constitution, a
judicial function which must sometimes be exercised ``at variance with
the construction given the document by another branch,'' there was no
lack of respect shown another branch, nor, because the Court is the
``ultimate interpreter of the Constitution,'' will there be
``multifarious pronouncements by various departments on one question,''
nor, since the Court is merely interpreting the Constitution, is there
an ``initial policy determination'' not suitable for courts. Finally,
``judicially . . . manageable standards'' are present in the text of the
Constitution.\566\ The effect of Powell is to discard all the Baker
factors inhering in a political question, with the exception of the
textual commitment factor, and that was interpreted
[[Page 696]]
in such a manner as seldom if ever to preclude a judicial decision on
the merits.
\566\Id., 395 U.S., 548-549. With the formulation of Chief
Justice Warren, compare that of then-Judge Burger in the lower court.
395 F.2d 577, 591-596 (D.C.Cir. 1968).
---------------------------------------------------------------------------
The Doctrine Reappears.--Reversing a lower federal court ruling
subjecting the training and discipline of National Guard troops to court
review and supervision, the Court held that under Article I, Sec. 8, cl.
16, the organizing, arming, and disciplining of such troops are
committed to Congress and by congressional enactment to the Executive
Branch. ``It would be difficult to think of a clearer example of the
type of governmental action that was intended by the Constitution to be
left to the political branches, directly responsible--as the Judicial
Branch is not--to the elective process. Moreover, it is difficult to
conceive of an area of governmental activity in which the courts have
less competence. The complex, subtle, and professional decisions as to
the composition, training, equipping, and control of a military force
are essentially professional military judgments, subject always to
civilian control of the Legislative and Executive Branches.''\567\ The
suggestion of the infirmity of the political question doctrine was
rejected, since ``because this doctrine has been held inapplicable to
certain carefully delineated situations, it is no reason for federal
courts to assume its demise.''\568\ In staying a grant of remedial
relief in another case, the Court strongly suggested that the actions of
political parties in national nominating conventions may also present
issues not meet for judicial resolution.\569\
\567\Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Similar
prudential concerns seem to underlay, though they did not provide the
formal basis for, decisions in O'Shea v. Littleton, 414 U.S. 488 (1974),
and Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605
(1974).
\568\Id., 413 U.S., 11. Other considerations of justiciability,
however, id., 10, preclude using the case as square precedent on
political questions. Notice that in Scheuer v. Rhodes, 416 U.S. 232, 249
(1974), the Court denied that the Gilligan v. Morgan holding barred
adjudication of damage actions brought against state officials by the
estates of students killed in the course of the conduct that gave rise
to both cases.
\569\O'Brien v. Brown, 409 U.S. 1 (1972) (granting stay). The
issue was mooted by the passage of time and was not thereafter
considered on the merits by the Court. Id., 816 (remanding to dismiss as
moot). It was also not before the Court in Cousins v. Wigoda, 419 U.S.
477 (1975), but it was alluded to there. See id., 483 n. 4, and id., 491
(Justice Rehnquist concurring). See also Goldwater v. Carter, 444 U.S.
996, 1002 (1979) (Justices Rehnquist, Stewart, and Stevens, and Chief
Justice Burger using political question analysis to dismiss a challenge
to presidential action). But see id. 997, 998 (Justice Powell rejecting
analysis for this type of case).
---------------------------------------------------------------------------
Despite the occasional resort to the doctrine, the Court
continues to reject its application in language that confines its scope.
Thus, when parties challenged the actions of the Secretary of Commerce
in declining to certify, as required by statute, that Japanese whaling
practices undermined the effectiveness of international conventions, the
Court rejected the Government's argument that
[[Page 697]]
the political question doctrine precluded decision on the merits. The
Court's prime responsibility, it said, is to interpret statutes,
treaties, and executive agreements; the interplay of the statutes and
the agreements in this case implicated the foreign relations of the
Nation. ``But under the Constitution, one of the Judiciary's
characteristic roles is to interpret statutes, and we cannot shirk this
responsibility merely because our decision may have significant
political overtones.''\570\
\570\Japan Whaling Assn. v. American Cetacean Society, 478 U.S.
221, 230 (1986). See also Davis v. Bandemer, 478 U.S. 109 (1986)
(challenge to political gerrymandering is justiciable).
---------------------------------------------------------------------------
After requesting argument on the issue, the Court held that a
challenge to a statute on the ground that it did not originate in the
House of Representatives as required by the origination clause was
justiciable.\571\ Turning back reliance on the various factors set out
in Baker, in much the same tone as in Powell v. McCCormack, the Court
continued to evidence the view that only questions textually committed
to another branch are political questions. Invalidation of a statute
because it did not originate in the right House would not demonstrate a
``lack of respect'' for the House that passed the bill.
``[D]isrespect,'' in the sense of rejecting Congress' reading of the
Constitution, ``cannot be sufficient to create a political question. If
it were every judicial resolution of a constitutional challenge to a
congressional enactment would be impermissible.''\572\ That the House of
Representatives has the power and incentives to protect its prerogatives
by not passing a bill violating the origination clause did not make this
case nonjusticiable. ``[T]he fact that one institution of Government has
mechanisms available to guard against incursions into its power by other
governmental institutions does not require that the Judiciary remove
itself from the controversy by labeling the issue a political
question.''\573\ The Court also rejected the contention that, because
the case did not involve a matter of individual rights, it ought not be
adjudicated. Political questions are not restricted to one kind of
claim, but the Court frequently has decided separation-of-power cases
brought by people in their individual capacities, and the allocation of
powers within a branch, as is the case in interbranch dispositions, is
designed to safeguard liberty.\574\ Finally, the Court was sanguine that
it could develop ``judicially manageable standards'' for dispos
[[Page 698]]
ing of origination clause cases, and, thus, it did not view the issue as
political in that context.\575\
\571\United States v. Munoz-Flores, 495 U.S. 385 (1990).
\572\Id., 390 (emphasis in original).
\573\Id., 392-393.
\574\Id., 393-395.
\575\Id., 395-396.
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In short, the political question doctrine may not be moribund,
but it does seem applicable to a very narrow class of cases.
ARTICLE III
JUDICIAL DEPARTMENT
Section 2. Judicial Power and Jurisdiction
JUDICIAL REVIEW
The Establishment of Judicial Review
Judicial review is one of the distinctive features of United
States constitutional law. It is no small wonder, then, to find that the
power of the federal courts to test federal and state legislative
enactments and other actions by the standards of what the Constitution
grants and withholds is nowhere expressly conveyed. But it is hardly
noteworthy that its legitimacy has been challenged from the first, and,
while now accepted generally, it still has detractors and its supporters
disagree about its doctrinal basis and its application.\576\ Although it
was first asserted in Marbury v. Madison\577\ to strike down an act of
Congress as inconsistent with the Constitution, judicial review did not
spring full-blown from the brain of Chief Justice Marshall. The concept
had been long known, having been utilized in a much more limited form by
Privy Council review of colonial legislation and its validity under the
colonial charters,\578\ and there were several instances known to the
Framers of state court invalidation of state legislation as inconsistent
with state constitutions.\579\
\576\See the richly detailed summary and citations to authority
in G. Gunther, Constitutional Law (Westbury, N.Y., 12th ed.: 1991), 1-
38; For expositions on the legitimacy of judicial review, see L. Hand,
The Bill of Rights (Cambridge: 1958); H. Wechsler, Principles, Politics,
and Fundamental Law--Selected Essays (Cambridge: 1961), 1-15; A. Bickel,
The Least Dangerous Branch--The Supreme Court at the Bar of Politics
(New York: 1962) 1-33; R. Berger, Congress v. The Supreme Court
(Cambridge: 1969). For an extensive historical attack on judicial
review, see 2 W. Crosskey, Politics and the Constitution in the History
of the United States (Chicago: 1953), chs. 27-29, with which compare
Hart, Book Review, 67 Harv. L. Rev. 1456 (1954). A brief review of the
ongoing debate on the subject, in a work that now is a classic attack on
judicial review, is Westin, Introduction: Charles Beard and American
Debate over Judicial Review, 1790-1961, in C. Beard, The Supreme Court
and the Constitution (Englewood Cliffs: 1962 reissue of 1938 ed.), 1-34,
and bibliography at 133-149. While much of the debate focuses on
judicial review of acts of Congress, the similar review of state acts
has occasioned much controversy as well.
\577\1 Cr. (5 U.S.) 137 (1803). A state act was held
inconsistent with a treaty in Ware v. Hylton, 3 Dall. (3 U.S.) 199
(1796).
\578\J. Goebel, op. cit., n. 2, 60-95.
\579\Id., 96-142.
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Practically all of the framers who expressed an opinion on the
issue in the Convention appear to have assumed and welcomed the
[[Page 699]]
existence of court review of the constitutionality of legislation,\580\
[[Page 700]]
and prior to Marbury the power seems very generally to have been assumed
to exist by the Justices themselves.\581\ In enacting the Judiciary Act
of 1789, Congress explicitly made provision for the exercise of the
power,\582\ and in other debates questions of constitutionality and of
judicial review were prominent.\583\ Nonetheless, although judicial
review is consistent with several provisions of the Constitution and the
argument for its existence may be derived from these provisions, they do
not compel the conclusion that the Framers intended judicial review nor
that it must exist. It was
[[Page 701]]
Chief Justice Marshall's achievement that, in doubtful circumstances and
an awkward position, he carried the day for the device, which, though
questioned, has expanded and become solidified at the core of
constitutional jurisprudence.
\580\M. Farrand, op. cit., n. 1, 97-98 (Gerry), 109 (King), 2
id., 28 (Morris and perhaps Sherman). 73 (Wilson), 75 (Strong, but the
remark is ambiguous). 76 (Martin), 78 (Mason), 79 (Gorham, but
ambiguous), 80 (Rutledge), 92-93 (Madison), 248 (Pinckney), 299
(Morris), 376 (Williamson), 391 (Wilson), 428 (Rutledge), 430 (Madison),
440 (Madison), 589 (Madison); 3 id., 220 (Martin). The only expressed
opposition to judicial review came from Mercer with a weak seconding
from Dickinson. ``Mr. Mercer . . . disapproved of the Doctrine that the
Judges as expositors of the Constitution should have authority to
declare a law void. He thought laws ought to be well and cautiously
made, and then to be uncontroulable.'' 2 id., 298. ``Mr. Dickinson was
strongly impressed with the remark of Mr. Mercer as to the power of the
Judges to set aside the law. He thought no such power ought to exist. He
was at the same time at a loss what expedient to substitute.'' Id., 299.
Of course, the debates in the Convention were not available when the
state ratifying conventions acted, so that the delegates could not have
known these views about judicial review in order to have acted knowingly
about them. Views, were, however, expressed in the ratifying conventions
recognizing judicial review, some of them being uttered by Framers. 2 J.
Elliot, Debates in the Several State Conventions on the Adoption of the
Federal Constitution (Philadelphia: 1836). 131 (Samuel Adams,
Massachusetts), 196-197 (Ellsworth, Connecticut). 348, 362 (Hamilton,
New York): 445-446. 478 (Wilson, Pennsylvania), 3 id., 324-325, 539, 541
(Henry, Virginia), 480 (Mason, Virginia), 532 (Madison, Virginia), 570
(Randolph, Virginia); 4 id., 71 (Steele, North Carolina), 156-157
(Davie, North Carolina). In the Virginia convention, John Marshall
observed if Congress ``were to make a law not warranted by any of the
powers enumerated, it would be considered by the judge as an
infringement of the Constitution which they are to guard . . . They
would declare it void. . . . To what quarter will you look for
protection from an infringement on the constitution, if you will not
give the power to the judiciary? There is no other body that can afford
such a protection.'' 3 id., 553-554. Both Madison and Hamilton similarly
asserted the power of judicial review in their campaign for
ratification. The Federalist (J. Cooke ed. 1961). See Nos. 39 and 44, at
256, 305 (Madison), Nos. 78 and 81, at 524-530, 541-552 (Hamilton). The
persons supporting or at least indicating they thought judicial review
existed did not constitute a majority of the Framers, but the absence of
controverting statements, with the exception of the Mercer-Dickinson
comments, indicates at least acquiesence if not agreements by the other
Framers.
To be sure, subsequent comments of some of the Framers indicate
an understanding contrary to those cited in the convention. See, e.g.,
Charles Pinckney in 1799: ``On no subject am I more convinced, than that
it is an unsafe and dangerous doctrine in a republic, ever to suppose
that a judge ought to possess the right of questioning or deciding upon
the constitutionality of treaties, laws, or any act of the legislature.
It is placing the opinion of an individual, or of two or three, above
that of both branches of Congress, a doctrine which is not warranted by
the Constitution, and will not, I hope, long have many advocates in this
country.'' F. Wharton (ed.), State Trials of the United States During
the Administrations of Washington and Adams (Philadelphia: 1849), 412.
Madison's subsequent changes of position are striking. His
remarks in the Philadelphia Convention, in the Virginia ratifying
convention, and in The Federalist, cited above, all unequivocally favor
the existence of judicial review. And in Congress arguing in support of
the constitutional amendments providing a bill of rights, he observed:
``If they are incorporated into the Constitution, independent tribunals
of justice will consider themselves in a peculiar manner the guardians
of those rights; they will be an impenetrable bulwark against every
assumption of power in the Legislature or Executive; they will be
naturally led to resist every encroachment upon rights expressly
stipulated for in the Constitution by the declaration of rights,'' 1
Annals of Congress 457 (1789); 5 Writings of James Madison, G. Hunt ed.
(Philadelphia: 1904), 385. Yet, in a private letter in 1788, he wrote:
``In the state constitutions and indeed in the federal one also, no
provision is made for the case of a disagreement in expounding them; and
as the courts are generally the last in making the decision, it results
to them by refusing or not refusing to execute a law, to stamp it with
the final character. This makes the Judiciary Department paramount in
fact to the legislature, which was never intended and can never be
proper.'' Id., 294. At the height of the dispute over the Alien and
Sedition Acts, Madison authored a resolution ultimately passed by the
Virginia legislature which, though milder, and more restrained than one
authored by Jefferson and passed by the Kentucky legislature, asserted
the power of the States, though not of one State or of the state
legislatures alone, to ``interpose'' themselves to halt the application
of an unconstitutional law. 3 I. Brant, James Madison--Father of the
Constitution, 1787-1800 (New York: 1950), 460-464. 467-471; Report on
the Resolutions of 1798, 6 Writings of James Madison, op. cit., 341-406.
Embarrassed by the claim of the nullificationists in later years that
his resolution supported their position, Madison distinguished his and
their positions and again asserted his belief in judicial review. 6 I.
Brant, op. cit., 481-485, 488-489.
The various statements made and positions taken by the Framers
have been culled and categorized and argued over many times. For a
recent compilation reviewing the previous efforts, see R. Berger, op.
cit., n. 576, chs. 3-4.
\581\Thus, the Justices on circuit refused to adminster a
pension act on grounds of its unconstitutionally, see Hayburn's Case, 2
Dall. (2 U.S.) 409 (1792), and supra, pp. 621-623. Chief Justice Jay and
other Justices wrote that the imposition of circuit duty on Justices was
unconstitutional, although they never mailed the letter, supra, p.599
n.21, in Hylton v. United States, 3 Dall. (3 U.S.) 171 (1796), a feigned
suit, the constitutionality of a federal law was argued before the
Justices and upheld on the merits, in Ware v. Hylton. 3 Dall. (3 U.S.)
199 (1797), a state law was overturned, and dicta in several opinions
asserted the principle. See Calder v. Bull, 3 Dall. (3 U.S.) 386, 399
(1798) (Justice Iredell), and several Justices on circuit, quoted in J.
Goebel, op. cit., n. 2, 589-592.
\582\In enacting the Judiciary Act of 1789, 1 Stat. 73, Congress
chose not to vest ``federal question'' jurisdiction in the federal
courts but to leave to the state courts the enforcement of claims under
the Constitution and federal laws. In Sec. 25, 1 Stat. 85, Congress
provided for review by the Supreme Court of final judgments in state
courts (1) ``. . . where is drawn in question the validity of a treaty
or statute of, or an authority exercised under the United States, and
the decision is against their validity;'' (2) ``. . . where is drawn in
question the validity of a statute of, or an authority exercised under
any State, on the ground of their being repugnant to the constitution,
treaties or laws of the United States, and the decision is in favor of
their validity;'' or (3) ``. . . where is drawn in question the
construction of any clause of the constitution, or of a treaty, or
statute of, or commission held under the United States, and the decision
is against the title, right, privilege or exemption specially set up or
claimed'' thereunder. The ruling below was to be ``re-examined and
reversed or affirmed in the Supreme Court. . . .''
\583\See in particular the debate on the President's removal
powers, discussed supra. pp.522-531, with statements excerpted in R.
Berger, op. cit., n. 576, 144-150. Debates on the Alien and Sedition
Acts and on the power of Congress to repeal the Judiciary Act of 1801
similarly saw recognition of judicial review of acts of Congress. C.
Warren, op. cit., n. 12, 107-124.
---------------------------------------------------------------------------
Marbury v. Madison.--Chief Justice Marshall's argument for
judicial review of congressional acts in Marbury v. Madison\584\ had
been largely anticipated by Hamilton.\585\ For example, he had written:
``The interpretation of the laws is the proper and peculiar province of
the courts. A constitution, is, in fact, and must be regarded by the
judges, as a fundamental law. It therefore belongs to them to ascertain
its meaning, as well as the meaning of any particular act proceeding
from the legislative body. If there should happen to be an
irreconcilable variance between two, that which has the superior
obligation and validity ought, of course, to be preferred; or, in other
words, the constitution ought to be preferred to the statute, the
intention of the people to the intention of their agents.''\586\
\584\1 Cr. (5 U.S.) 137 (1803).
\585\The Federalist, Nos. 78 and 81 (J. Cooke ed. 1961), 521-
530, 541-552.
\586\Id., No. 78, at 525.
---------------------------------------------------------------------------
At the time of the change of Administration from Adams to
Jefferson, several commissions of appointment to office had been signed
but not delivered and were withheld on Jefferson's express instruction.
Marbury sought to compel the delivery of his commission by seeking a
writ of mandamus in the Supreme Court in the exercise of its original
jurisdiction against Secretary of State Madison. Jurisdiction was based
on Sec. 13 of the Judiciary Act of 1789,\587\ which Marbury, and
ultimately the Supreme Court, interpreted to authorize the Court to
issue writs of mandamus in suits in its original jurisdiction.\588\
Though deciding all the other issues in Marbury's favor, the Chief
Justice wound up concluding that the Sec. 13 authorization was an
attempt by Congress to expand the Court's original jurisdiction beyond
the constitutional prescription and was therefore void.\589\
\587\1 Stat. 73, 80.
\588\The section first denominated the original jurisdiction of
the Court and then described the Court's appellate jurisdiction.
Following and indeed attached to the sentence on appellate jurisdiction,
being separated by a semi-colon, is the language saying ``and shall have
power 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.'' The Chief
Justice could easily have interpreted the authority to have been granted
only in cases under appellate jurisdiction or as authority conferred in
cases under both original and appellate jurisdiction when the cases are
otherwise appropriate for one jurisdiction or the other. Textually, the
section does not compel a reading that Congress was conferring on the
Court an original jurisdiction to issue writs of mandamus per se.
\589\Marbury v. Madison, 1 Cr. (5 U.S.) 137, 173-180 (1803). For
a classic treatment of Marbury, see Van Alstyne, A Critical Guide to
Marbury v. Madison, 1969 Duke L. J. 1.
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[[Page 702]]
``The question, whether an act, repugnant to the constitution,
can become the law of the land, is a question deeply interesting to the
United States;'' Marshall began his discussion of this final phase of
the case, ``but, happily, not of an intricacy proportioned to its
interest.''\590\ First, certain fundamental principles warranting
judicial review were noticed. The people had come together to establish
a government. They provided for its organization and assigned to its
various departments their powers and established certain limits not to
be transgressed by those departments. The limits were expressed in a
written constitution, which would serve no purpose ``if these limits
may, at any time, be passed by those intended to be restrained.''
Because the Constitution is ``a superior paramount law,'' it is
unchangeable by ordinary legislative means and ``a legislative act
contrary to the constitution is not law.''\591\ ``If an act of the
legislature, repugnant to the constitution, is void, does it
notwithstanding its invalidity, bind the courts, and oblige them to give
it effect?'' The answer, thought the Chief Justice, was obvious. ``It is
emphatically the province and duty of the judicial department to say
what the law is. . . . If two laws conflict with each other, the courts
must decide on the operation of each.
\590\Id., 1 Cr. (5 U.S.), 176. One critic has written that by
this question Marshall ``had already begged the question-in-chief, which
was not whether an act repugnant to the Constitution could stand, but
who should be empowered to decide that the act is repugnant.'' A Bickel,
op. cit., n. 576, 3. Marshall, however, soon reached this question,
though more by way of assertion than argument. Id., 1 Cr. (5 U.S.), 177-
178.
\591\Id., 176-177.
---------------------------------------------------------------------------
``So if a law be in opposition to the constitution; if both the
law and the constitution apply to a particular case, so that the court
must either decide that case conformably to the law, disregarding the
constitution; or conformably to the constitution, disregarding the law;
the court must determine which of these conflicting rules governs the
case. This is of the very essence of judicial duty.
``If, then, the courts are to regard the constitution, and the
constitution is superior to any ordinary act of the legislature, the
constitution, and not such ordinary act, must govern the case to which
they both apply.''\592\ To declare otherwise, Chief Justice Marshall
said, would be to permit a legislative body to pass at pleasure the
limits imposed on its powers by the Constitution.\593\
\592\Id., 177-178.
\593\Id., 178.
---------------------------------------------------------------------------
Turning, then, from the philosophical justification for judicial
review as arising from the very concept of a written constitution, the
Chief Justice turned to specific clauses of the Constitution. The
judicial power, he observed, was extended to ``all cases arising
[[Page 703]]
under the constitution.''\594\ It was ``too extravagant to be maintained
that the Framers had intended that a case arising under the constitution
should be decided without examining the instrument under which it
arises.''\595\ Suppose, he said, that Congress laid a duty on an article
exported from a State or passed a bill of attainder or an ex post facto
law or provided that treason should be proved by the testimony of one
witness. Would the courts enforce such a law in the face of an express
constitutional provision? They would not, he continued, because their
oath required by the Constitution obligated them to support the
Constitution and to enforce such laws would violate the oath.\596\
Finally, the Chief Justice noticed the supremacy clause, which gave the
Constitution precedence over laws and treaties and provided that only
laws ``which shall be made in pursuance of the constitution'' are to be
the supreme laws of the land.\597\
\594\Ibid. The reference is, of course, to the first part of
clause 1, Sec. 2, Art. III: ``The judicial power shall extend to all
Cases . . . arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their
Authority. . . .'' Compare A. Bickel, op. cit., n. 576, 5-6, with R.
Berger, op. cit., n. 576, 189-222.
\595\Id., 1 Cr. (5 U.S.), 179.
\596\Id., 179-180. The oath provision is contained in Art. VI,
cl. 3. Compare A. Bickel, op. cit., n. 576, 7-8, with R. Berger, op.
cit., n. 576, 237-244.
\597\Id., 1 Cr. (5 U.S.), 180. Compare A. Bickel, op. cit., n.
576, 8-12, with R. Berger, op. cit., n. 576, 223-284.
---------------------------------------------------------------------------
The decision in Marbury v. Madison has never been disturbed,
although it has been criticized and has had opponents throughout our
history. It not only carried the day in the federal courts, but from its
announcement judicial review by state courts of local legislation under
local constitutions made rapid progress and was securely established in
all States by 1850.\598\
\598\E. Corwin, The Doctrine of Judicial Review (Princeton:
1914), 75-78; Nelson, Changing Conceptions of Judicial Review: The
Evolution of Constitution Theory in the State, 1790-1860, 120 U. Pa. L.
Rev. 1166 (1972).
---------------------------------------------------------------------------
Judicial Review and National Supremacy.--Even many persons who
have criticized the concept of judicial review of congressional acts by
the federal courts have thought that review of state acts under federal
constitutional standards is soundly based in the supremacy clause, which
makes the Constitution and constitutional laws and treaties the supreme
law of the land,\599\ to effectuate which Congress enacted the famous
Sec. 25 of the Judiciary Act of 1789.\600\ Five years before Marbury v.
Madison, the Court
[[Page 704]]
held invalid a state law as conflicting with the terms of a treaty,\601\
and seven years after Chief Justice Marshall's opinion a state law was
voided as conflicting with the Constitution.\602\
\599\2. W. Crosskey, op. cit., n. 576, 989. See the famous
remark of Holmes: ``I do not think the United States would come to an
end if we lost our power to declare an Act of Congress void. I do think
the Union would be imperiled if we could not make that declaration as
the laws of the several States.'' O. Holmes, Collected Legal Papers
(Boston: 1921), 295-296.
\600\1 Stat. 73, 85, quoted supra, n. 582.
\601\Ware v. Hylton, 3 Dall. (3 U.S.) 190 (1796).
\602\Fletcher v. Peck, 6 Cr. (10 U.S.) 87 (1810). The case came
to the Court by appeal from a circuit court and not from a state court
under Sec. 25. Famous early cases coming to the Court under Sec. 25 in
which state laws were voided included Sturges v. Crowninshield, 4 Wheat.
(17 U.S.) 122 (1819); McCulloch v. Maryland, 4 Wheat, (17 U.S.) 316
(1819).
---------------------------------------------------------------------------
Virginia provided a states' rights challenge to a broad reading
of the supremacy clause and to the validity of Sec. 25 in Martin v.
Hunter's Lessee\603\ and in Cohens v. Virginia.\604\ In both cases, it
was argued that while the courts of Virginia were constitutionally
obliged to prefer ``the supreme law of the land,'' as set out in the
supremacy clause, over conflicting state constitutional provisions and
laws, it was only by their own interpretation of the supreme law that
they as courts of a sovereign State were bound. Furthermore, it was
contended that cases did not ``arise'' under the Constitution unless
they were brought in the first instance by someone claiming such a
right, from which it followed that ``the judicial power of the United
States'' did not ``extend'' to such cases unless they were brought in
the first instance in the courts of the United States. But answered
Chief Justice Marshall: ``A case in law or equity consists of the right
of the one party, as well as of the other, and may truly be said to
arise under the Constitution or a law of the United States, whenever its
correct decision depends upon the construction of either.''\605\ Passing
on to the power of the Supreme Court to review such decisions of the
state courts, he said: ``Let the nature and objects of our Union be
considered: let the great fundamental principles on which the fabric
stands, be examined: and we think, the result must be, that there is
nothing so extravagantly absurd, in giving to the Court of the nation
the power of revising the decisions of local tribunals, on questions
which affect the nation, as to require that words which import this
power should be restricted by a forced construction.''\606\
\603\1 Wheat (14 U.S.) 304 (1816).
\604\6 Wheat, (19 U.S.) 264 (1821).
\605\Id., 379.
\606\Id., 422-423. Justice Story traversed much of the same
ground in Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304 (1816). In
Ableman v. Booth, 21 How. (62 U.S.) 506 (1859), the Wisconsin Supreme
Court had declared an act of Congress invalid and disregarded a writ of
error from the Supreme Court, raising again the Virginia arguments.
Chief Justice Taney emphatically rebuked the assertions on grounds both
of dual sovereignty and national supremacy. His emphasis on the
indispensability of the federal judicial power to maintain national
supremacy, to protect the States from national encroachments, and to
make the Constitution and laws of the United States uniform all combine
to enhance the federal judicial power to a degree perhaps beyond that
envisaged even by Story and Marshall. As late as Williams v. Bruffy, 102
U.S. 248 (1880), the concepts were again thrashed out with the refusal
of a Virginia court to enforce a mandate of the Supreme Court. And see
Cooper v. Aaron, 358 U.S. 1 (1958).
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[[Page 705]]
Limitations on the Exercise of Judicial Review
Constitutional Interpretation.--In a system such as the one in
the United States in which there is a written constitution, which is law
and is binding on government, the practice of judicial review inherently
raises questions of the relationship between constitutional
interpretation or construction and the Constitution--the law--which is
construed. The legitimacy of construction by an unelected entity in a
republican or democratic system becomes an issue whenever the
construction is controversial, as it was most recently in the 1960s to
the present. Full consideration would carry us far afield, in view of
the immense corpus of writing with respect to the proper mode of
interpretation during this period.
Scholarly writing has identified six forms of constitutional
argument or construction that may be used by courts or others in
deciding a constitutional issue.\607\ These are (1) historical, (2)
textual, (3) structural, (4) doctrinal, (5) ethical, and (6) prudential.
The historical argument is largely, though not exclusively, associated
with the theory of original intent or original understanding, under
which constitutional and legal interpretation is limited to attempting
to discern the original meaning of the words being construed as that
meaning is revealed in the intentions of those who created the law or
the constitutional provision in question. The textual argument, closely
associated in many ways to the doctrine of original intent, concerns
whether the judiciary or another is bound by the text of the
Constitution and the intentions revealed by that language or whether it
may go beyond the four corners of the constitutional document to
ascertain the meaning, a dispute encumbered by the awkward
constructions, interpretivism and noninterpretivism.\608\
[[Page 706]]
Using a structural argument, one seeks to infer structural rules from
the relationships that the Constitution mandates.\609\ The remaining
three modes sound in reasoning not necessarily tied to original intent,
text, or structure, though they may have some relationship.Doctrinal
arguments proceed from the application of precedents. Prudential
arguments seek to balance the costs and benefits of a particular rule.
Ethical arguments derive rules from those moral commitments of the
American ethos that are reflected in the Constitution.
\607\The six forms, or ``modalities'' as he refers to them, are
drawn from P. Bobbitt, Constitutional Fate--Theory of the Constitution
(1982); P. Bobbitt, Constitutional Interpretation (1991). Of course,
other scholars may have different categories, but these largely overlap
these six forms. E.g., Fallon, A Constructivist Coherence Theory of
Constitutional Interpretation, 100 Harv. L. Rev. 1189 (1987); Post,
Theories of Constitutional Interpretation, in R. Post (ed.), Law and the
Order of Culture (1991), 13-41.
\608\Among the vast writing, see, e.g., R. Bork, The Tempting of
America (1990); J. Ely, Democracy and Distrust: A Theory of Judicial
Review (1980); L. Tribe & M. Dorf, On Reading the Constitution (1991);
H. Wellington, Interpreting the Constitution (1990); Symposium,
Constitutional Adjudication and Democratic Theory, 56 N. Y. U. L. Rev.
259 (1981); Symposium, Judicial Review and the Constitution--The Text
and Beyond, 8 U. Dayton L. Rev 443 (1983); Symposium, Judicial Review
Versus Democracy, 42 Ohio St. L. J. 1 (1981); Symposium, Democracy and
Distrust: Ten Years Later, 77 Va. L. Rev. 631 (1991). See also Farber,
The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L. J.
1085 (1989).
\609\This mode is most strongly association with C. Black,
Structure and Relationship in Constitutional Law (1969).
---------------------------------------------------------------------------
Although the scholarly writing ranges widely, a much more narrow
scope is seen in the actual political-judicial debate. Rare is the judge
who will proclaim a devotion to ethical guidelines, such, for example,
as natural-law precepts. The usual debate ranges from those adherents of
strict construction and original intent to those with loose construction
and adaptation of text to modern-day conditions.\610\ However, it is
with regard to more general rules of prudence and self-restraint that
one usually finds the enunciation and application of limitations on the
exercise of constitutional judicial review.
\610\E.g., Meese, The Attorney General's View of the Supreme
Court: Toward a Jurisprudence of Original Intention, 45 Pub. Admin. Rev.
701 (1985); Addresses--Construing the Constitution, 19 U. C. Davis L.
Rev. 1 (1985), containing addresses by Justice Brennan, id., 2, Justice
Stevens, id., 15, and Attorney General Meese. Id., 22. See also
Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693
(1976).
---------------------------------------------------------------------------
Prudential Considerations.--Implicit in the argument of Marbury
v. Madison\611\ is the thought that with regard to cases meeting
jurisdictional standards, the Court is obligated to take and decide
them. Chief Justice Marshall expressly spelled the thought out in Cohens
v. Virginia:\612\ ``It is most true that this Court will not take
jurisdiction if it should not: but it is equally true, that it must take
jurisdiction if it should. The judiciary cannot, as the legislature may,
avoid a measure because it approaches the confines of the constitution.
We cannot pass it by because it is doubtful. With whatever doubts, with
whatever difficulties, a case may be attended, we must decide it, if it
be brought before us. We have no more right to decline the exercise of
jurisdiction which is given, than to usurp that which is not given. The
one or the other would be treason to the constitution.'' As the comment
recognizes, because judicial review grows out of the fiction that courts
only declare
[[Page 707]]
what the law is in specific cases\613\ and are without will or
discretion,\614\ its exercise is surrounded by the inherent limitations
of the judicial process, most basically, of course, by the necessity of
a case or controversy and the strands of the doctrine comprising the
concept of justiciability.\615\ But, although there are hints of Chief
Justice Marshall's activism in recent cases,\616\ the Court has always
adhered, at times more strictly than at other times, to several
discretionary rules or concepts of restraint in the exercise of judicial
review, the practice of which is very much contrary to the quoted dicta
from Cohens. These rules, it should be noted, are in addition to the
vast discretionary power which the Supreme Court has to grant or deny
review of judgements in lower courts, a discretion fully authorized with
certiorari jurisdiction but in effect in practice as well with regard to
what remains of appeals.\617\
\611\1 Cr. (5 U.S.) 137 (1803).
\612\6 Wheat. (19 U.S.) 264, 404, (1821).
\613\See, e.g., Justice Sutherland in Adkins v. Children's
Hospital, 261 U.S. 525, 544 (1923), and Justice Roberts in United States
v. Butler, 297 U.S. 1, 62 (1936).
\614\``Judicial power, as contradistinguished from the powers of
the law, has no existence. Courts are the mere instruments of the law,
and can will nothing.'' Osborn v. Bank of the United States, 9 Wheat.
(22 U.S.) 738, 866 (1824) (Chief Justice Marshall). See also Justice
Roberts in United States v. Butler, 297 U.S. 1, 62-63 (1936).
\615\The political question doctrine is another limitation
arising in part out of inherent restrictions and in part from prudential
considerations. For a discussion of limitations utilizing both stands,
see Ashwander v. TVA 297 U.S. 288, 346-356 (1936) (Justice Brandeis
concurring).
\616\Powell v. McCormack, 395 U.S. 486, 548-549 (1969); Baker v.
Carr, 369 U.S. 186, 211 (1962); Zwickler v. Koota, 389 U.S. 241, 248
(1967).
\617\28 U.S.C. Sec. Sec. 1254-1257. See F. Frankfurter & J.
Landis, op. cit., n. 12, ch. 7. ``The Supreme Court is not, and never
has been, primarily concerned with the correction of errors in lower
court decisions. In almost all cases within the Court's appellate
jurisdiction, the petitioner has already received one appellate review
of his case. . . . If we took every case in which an interesting legal
question is raised, or our prima facie impression is that the decision
below is erroneous, we could not fulfill the Constitutional and
statutory responsibilities placed upon the Court. To remain effective,
the Supreme Court must continue to decide only those cases which present
questions whose resolution will have immediate importance far beyond the
particular facts and parties involved.'' Chief Justice Vinson, Address
on the Work of the Federal Court, in 69 Sup. Ct. v, vi. It ``is only
accurate to a degree to say that our jurisdiction in cases on appeal is
obligatory as distinguished from discretionary on certiorari.'' Chief
Justice Warren, quoted in Wiener, The Supreme Court's New Rules, 68
Harv. L. Rev. 20, 51 (1954).
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At various times, the Court has followed more strictly than
other times the prudential theorems for avoidance of decisionmaking when
it deemed restraint to be more desirable than activism.\618\
\618\See Justice Brandeis' concurring opinion in Ashwander v.
TVA, 297 U.S. 288, 346 (1936). And contrast A. Bickel, op. cit., n. 576,
111-198, with Gunther, The Subtle Vices of the ``Passive Virtues''--A
Comment on Principle and Expediency in Judicial Review, 64 Colum. L.
Rev. 1 (1964).
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The Doctrine of ``Strict Necessity.''--The Court has repeatedly
declared that it will decide constitutional issues only if strict
[[Page 708]]
necessity compels it to do so. Thus, constitutional questions will not
be decided in broader terms than are required by the precise state of
facts to which the ruling is to be applied, nor if the record presents
some other ground upon which to decide the case, nor at the instance of
one who has availed himself of the benefit of a statute or who fails to
show he is injured by its operation, nor if a construction of the
statute is fairly possible by which the question may be fairly
avoided.\619\
\619\Rescue Army v. Municipal Court, 331 U.S. 549, 568-575
(1947). See also Berea College v. Kentucky, 211 U.S. 45, 53 (1908);
Siler v. Louisville & N.R.R. Co., 213 U.S. 175, 191 (1909); Carter v.
Carter Coal Co., 298 U.S. 238, 325 (1936); Coffman v. Breeze Corp., 323
U.S. 316, 324-325 (1945); Spector Motor Service v. McLaughlin, 323 U.S.
101, 105 (1944); Alma Motor v. Timken Co., 329 U.S. 129 (1946). Judicial
restraint as well as considerations of comity underlie the Court's
abstention doctrine when the constitutionality of state laws is
challenged.
---------------------------------------------------------------------------
Speaking of the policy of avoiding the decision of
constitutional issues except when necessary, Justice Rutledge wrote:
``The policy's ultimate foundations, some if not all of which also
sustain the jurisdictional limitation, lie in all that goes to make up
the unique place and character, in our scheme, of judicial review of
governmental action for constitutionality. They are found in the
delicacy of that function, particularly in view of possible consequences
for others stemming also from constitutional roots; the comparative
finality of those consequences; the consideration due to the judgment of
other repositories of constitutional power concerning the scope of their
authority; the necessity, if government is to function constitutionally,
for each to keep within its power, including the courts; the inherent
limitations of the judicial process, arising especially from its largely
negative character and limited resources of enforcement; withal in the
paramount importance of constitutional adjudication in our
system.''\620\
\620\Rescue Army v. Municipal Court, 331 U.S. 549, 571 (1947).
---------------------------------------------------------------------------
The Doctrine of Clear Mistake.--A precautionary rule early
formulated and at the base of the traditional concept of judicial
restraint was expressed by Professor James Bradley Thayer to the effect
that a statute could be voided as unconstitutional only ``when those who
have the right to make laws have not merely made a mistake, but have
made a very clear one,--so clear that it is not open to rational
question.''\621\ Whether phrased this way or phrased so that a statute
is not to be voided unless it is unconstitutional beyond all reasonable
doubt, the rule is of ancient origin\622\
[[Page 709]]
and of modern adherence.\623\ In operation, however, the rule is subject
to two influences, which seriously impair its efficacy as a limitation.
First, the conclusion that there has been a clear mistake or that there
is no reasonable doubt is that drawn by five Justices if a full Court
sits. If five Justices of learning and detachment to the Constitution
are convinced that a statute is invalid and if four others of equal
learning and attachment are convinced it is valid, the convictions of
the five prevail over the convictions or doubts of the four. Second, the
Court has at times made exceptions to the rule in certain categories of
cases. Statutory interferences with ``liberty of contract'' were once
presumed to be unconstitutional until proved to be valid;\624\ more
recently, presumptions of invalidity have expressly or impliedly been
applied against statutes alleged to interfere with freedom of expression
and of religious freedom, which have been said to occupy a preferred
position in the constitutional scheme of things.\625\
\621\The Origin and Scope of the American Doctrine of
Constitutional Law, in J. Thayer, Legal Essays (Boston: 1908), 1, 21.
\622\See Justices Chase and Iredell in Calder v. Bull, 3 Dall.
(3 U.S.) 386, 395, 399 (1798).
\623\E.g., Flemming v. Nestor, 363 U.S. 603, 611 (1960).
\624\``But freedom of contract is, nevertheless, the general
rule and restraint the exception; and the exercise of legislative
authority to abridge it can be justified only by the existence of
exceptional circumstances.'' Adkins v. Children's Hospital, 261 U.S.
525, 546 (1923).
\625\Kovacs v. Cooper, 336 U.S. 77, 88 (1949). Justice
Frankfurter's concurrence, id., 89-97, is a lengthy critique and review
of the ``preferred position'' cases up to that time. The Court has not
used the expression in recent years but the worth it attributes to the
values of free expression probably approaches the same result. Today,
the Court's insistence on a ``compelling state interest'' to justify a
governmental decision to classify persons by ``suspect'' categories,
such as race, Loving v. Virginia, 388 U.S. 1 (1967), or to restrict the
exercise of a ``fundamental'' interest, such as the right to vote,
Kramer v. Union Free School District, 395 U.S. 621 (1969), or the right
to travel, Shapiro v. Thompson, 394 U.S. 618 (1969), clearly imports
presumption of unconstitutionality.
---------------------------------------------------------------------------
Exclusion of Extra-Constitutional Tests.--Another maxim of
constitutional interpretation is that courts are concerned only with the
constitutionality of legislation and not with its motives, policy, or
wisdom,\626\ or with its concurrence with natural justice, fundamental
principles of government, or the spirit of the Constitu
[[Page 710]]
tion.\627\ In various forms this maxim has been repeated to such an
extent that it has become trite and has increasingly come to be
incorporated in cases in which a finding of unconstitutionality has been
made as a reassurance of the Court's limited review. And it should be
noted that at times the Court has absorbed natural rights doctrines into
the text of the Constitution, so that it was able to reject natural law
per se and still partake of its fruits and the same thing is true of the
laissez faire principles incorporated in judicial decisions from about
1890 to 1937.\628\
\626\``We fully understand . . . the powerful argument that can
be made against the wisdom of this legislation, but on that point we
have no concern.'' Noble State Bank v. Haskell, 219 U.S. 575, 580 (1911)
(Justice Holmes for the Court). See also Trop v. Dulles, 356 U.S. 86,
120 (1958) (Justice Frankfurter dissenting).
A supposedly hallowed tenet is that the Court will not look to
the motives of legislators in determining the validity of a statute.
Fletcher v. Peck, 6 Cr. (10 U.S.) 87 (1810); United States v. O'Brien,
391 U.S. 367 (1968); Palmer v. Thompson, 403 U.S. 217 (1971). Yet an
intent to discriminate is a requisite to finding at least some equal
protection violations, Washington v. Davis, 426 U.S. 229 (1976); Village
of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252
(1977), and a secular or religious purpose is one of the parts of the
tripartite test under the establishment clause. Committee for Public
Education and Religious Liberty v. Regan, 444 U.S. 646, 653 (1980), and
id., 665 (dissent). Other constitutional decisions as well have turned
upon the Court's assessment of purpose or motive. E.g., Gomillion v.
Lightfoot, 364 U.S. 339 (1960); Child Labor Tax Case, 259 U.S. 20
(1922).
\627\Cf. Griswold v. Connecticut, 381 U.S. 479, 522 (1965)
(Justice Black dissenting). But note above the reference to the ethical
mode of constitutional argument.
\628\E.g., Lochner v. New York, 198 U.S. 45 (1905); United
States v. Butler, 297 U.S. 1 (1936).
---------------------------------------------------------------------------
Presumption of Constitutionality.--``It is but a decent respect
to the wisdom, integrity, and patriotism of the legislative body, by
which any law is passed,'' wrote Justice Bushrod Washington, ``to
presume in favor of its validity, until its violation of the
Constitution is proved beyond a reasonable doubt.''\629\ A corollary of
this maxim is that if the constitutional question turns upon
circumstances, courts will presume the existence of a state of facts
which would justify the legislation that is challenged.\630\ It seems
apparent, however, that with regard to laws which trench upon First
Amendment freedoms and perhaps other rights guaranteed by the Bill of
Rights such deference is far less than it would be toward statutory
regulation of economic matters.\631\
\629\Ogden v. Saunders, 12 Wheat. (25 U.S.) 213, 270 (1827). See
also Fletcher v. Peck, 6 Cr. (10 U.S.) 87, 128 (1810); Legal Tender
Cases, 12 Wall. (79 U.S.) 457, 531 (1871).
\630\Munn v. Illinois, 94 U.S. 113, 132 (1877); Lindsley v.
Natural Carbonic Gas Co., 220 U.S. 61, 78-79 (1911); Metropolitan Cas.
Ins. Co. v. Brownell, 294 U.S. 580, 584 (1935).
\631\E.g., United States v. Robel, 389 U.S. 258 (1967); United
Mine Workers v. Illinois State Bar Assn., 389 U.S. 217 (1967). But see
McGowan v. Maryland, 366 U.S. 420, 426 (1961). The development of the
``compelling state interest'' test in certain areas of equal protection
litigation also bespeaks less deference to the legislative judgment.
---------------------------------------------------------------------------
Disallowance by Statutory Interpretation.--If it is possible to
construe a statute so that its validity can be sustained against a
constitutional attack, a rule of prudence is that it should be so
construed,\632\ even though in some instances this maxim has caused the
Court to read a statute in a manner which defeats or impairs the
legislative purpose.\633\ Of course, the Court stresses
[[Page 711]]
that ``[w]e cannot press statutory construction `to the point of
disingenuous evasion' even to avoid a constitutional question.''\634\
The maxim is not followed if the provision would survive constitutional
attack or if the text is clear.\635\ Closely related to this principle
is the maxim that when part of a statute is valid and part is void, the
courts will separate the valid from the invalid and save as much as
possible.\636\ Statutes today ordinarily expressly provide for
separability, but it remains for the courts in the last resort to
determine whether the provisions are separable.\637\
\632\Rust v. Sullivan, 500 U.S. 173, 190-191 (1991); Public
Citizen v. United States Dept. of Justice, 491 U.S. 440, 465-467 (1989)
(quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)); Edward J. DeBartolo
Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S.
568, 575 (1988).
\633\E.g., Michaelson v. United States, 266 U.S. 42 (1924)
(narrow construction of Clayton Act contempt provisions to avoid
constitutional questions): United States v. Harriss, 347 U.S. 612 (1954)
(lobbying act): United States v. Seeger, 380 U.S. 163 (1965): Welsh v.
United States, 398 U.S. 333 (1970) (both involving conscientious
objection statute).
\634\United States v. Locke, 471 U.S. 84, 96 (1985) (quoting
Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933)).
\635\Rust v. Sullivan, 500 U.S. 173, 191 (1991); but compare
id., 204-207 (Justice Blackmun dissenting), and 223-225 (Justice
O'Connor dissenting). See also Peretz v. United States, 501 U.S. 923,
929-930 (1991).
\636\Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987);
Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 635 (1895); but see
Baldwin v. Franks, 120 U.S. 678, 685 (1887), now repudiated. Griffin v.
Breckenridge, 403 U.S. 88, 104 (1971).
\637\Carter v. Carter Coal Co., 298 U.S. 238, 312-316 (1936).
See also, id., 321-324 (Chief Justice Hughes dissenting).
---------------------------------------------------------------------------
Stare Decisis in Constitutional Law.--Adherence to precedent
ordinarily limits and shapes the approach of courts to decision of a
presented question. ``Stare decisis is usually the wise policy, because
in most matters it is more important that the applicable rule of law be
settled than that it be settled right. . . . This is commonly true even
where the error is a matter of serious concern, provided correction can
be had by legislation. But in cases involving the Federal Constitution,
where correction through legislative action is practically impossible,
this Court has often overruled its earlier decisions. The Court bows to
the lessons of experience and the force of better reasoning, recognizing
that the process of trial and error so fruitful in the physical
sciences, is appropriate also in the judicial function.''\638\ Stare
decisis is a principle of policy, not a mechanical formula of adherence
to the latest decision ``however
[[Page 712]]
recent and questionable, when such adherence involves collision with a
prior doctrine more embracing in its scope, intrinsically sounder, and
verified by experience.''\639\ The limitation of stare decisis seems to
have been progressively weakened since the Court proceeded to correct
``a century of error'' in Pollock v. Farmers' Loan & Trust Co.\640\
Since then, more than 200 decisions have seen one or more earlier
decisions overturned,\641\ and the merits of stare decisis seems more
often celebrated in dissents than in majority opinions.\642\ Of lesser
formal effect than outright overruling but with roughly the same result
is a Court practice of ``distinguishing'' precedents which often leads
to an overturning of the principle enunciated in the case while leaving
the actual case more or less alive.\643\
\638\Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408
(1932) (Justice Brandeis dissenting). For recent arguments with respect
to overruling or not overruling previous decisions, see the self-
consciously elaborate opinion for a plurality in Planned Parenthood of
Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791, 2808-2816 (1992)
(Justices O'Connor, Kennedy, and Souter) (acknowledging that as an
original matter they would not have decided Roe v. Wade, 410 U.S. 113
(1973), as the Court did and that they might consider it wrongly
decided, nonetheless applying the principles of stare decisis--they
stressed the workability of the case's holding, the fact that no other
line of precedent had undermined Roe, the vitality of that case's
factual underpinnings, the reliance on the precedent in society, and the
effect upon the Court's legitimacy of maintaining or overruling the
case). See id., 2860-2867 (Chief Justice Rehnquist concurring in part
and dissenting in part), 2880-2885 (Justice Scalia concurring in part
and dissenting in part). See also Payne v. Tennessee, 501 U.S. 808, 827-
830 (1991) (suggesting, inter alia, that reliance is relevant in
contract and property cases), and id., 835, 842-844 (Justice Souter
concurring), 844, 848-856 (Justice Marshall dissenting).
\639\Helvering v. Hallock, 309 U.S. 106, 110 (1940) (Justice
Frankfurter for Court). See also Coleman v. Alabama, 399 U.S. 1, 22
(1970) (Chief Justice Burger dissenting). But see id., 19 (Justice
Harlan concurring in part and dissenting in part); Williams v. Florida,
399 U.S. 78, 117-119 (1970) (Justice Harlan concurring in part and
dissenting in part).
\640\157 U.S. 429, 574-579 (1895).
\641\See Appendix. The list encompasses both constitutional and
statutory interpretation decisions. The Court adheres, at least
formally, to the principle that stare decisis is a stricter rule for
statutory interpretation, Patterson v. McLean Credit Union, 491 U.S.
164, 171-175 (1989), at least in part since Congress may much more
easily revise those decisions, but compare id., 175 n. 1, with id., 190-
205 (Justice Brennan concurring in the judgment in part and dissenting
in part). See also Flood v. Kuhn, 407 U.S. 258 (1972).
\642\E.g., United States v. Rabinowitz, 339 U.S. 56, 86 (1950)
(Justice Frankfurter dissenting); Baker v. Carr, 369 U.S. 186, 339-340
(1962) (Justice Harlan dissenting): Gray v. Sanders, 372 U.S. 368, 383
(1963) (Justice Harlan dissenting). But see Green v. United States, 356
U.S. 165, 195 (1958) (Justice Black dissenting). And compare Justice
Harlan's views in Mapp v. Ohio, 367 U.S.643, 674-675 (1961)
(dissenting), with Glidden v. Zdanok, 370 U.S. 530, 543 (1962) (opinion
of the Court).
\643\Notice that in Planned Parenthood of Southeastern
Pennsylvania v. Casey, 112 S.Ct. 2791 (1992), while the Court purported
to uphold and retain the ``central meaning'' of Roe v. Wade, it
overruled several aspects of that case's requirements. And see, e.g.,
the Court's treatment of Pope v. Williams, 193 U.S. 621 (1904), in Dunn
v. Blumstein, 405 U.S. 330, 337, n. 7 (1972). And see id., 361 (Justice
Blackmun concurring.)
---------------------------------------------------------------------------
Conclusion.--The common denominator of all these maxims of
prudence is the concept of judicial restraint, of judge's restraint.
``We do not sit,'' said Justice Frankfurter, ``like kadi under a tree,
dispensing justice according to considerations of individual
expediency.''\644\ ``[A] jurist is not to innovate at pleasure,'' wrote
Jutice Cardozo. ``He is not a knight-errant, roaming at will in pursuit
of his own ideal of beauty or of goodness. He is to draw his inspiration
from consecrated principles. He is not to yield to spasmodic sentiment,
to vague and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by system, and
subordinated to the primordial necessity of
[[Page 713]]
order in the social life.''\645\ All Justices will, of course, claim
adherence to proper restraint,\646\ but in some cases at least, such as
Justice Frankfurter's dissent in the Flag Salute Case,\647\ the practice
can be readily observed. The degree, however, of restraint, the degree
to which legislative enactments should be subjected to judicial
scrutiny, is a matter of uncertain and shifting opinion.
\644\Terminiello v. City of Chicago, 337 U.S. 1, 11 (1949)
(dissenting).
\645\B. Cardozo, The Nature of the Judicial Process (New Haven:
1921), 141.
\646\Compare Griswold v. Connecticut, 381 U.S. 479, 482 (1965)
(Justice Douglas), with id., 507 (Justice Black).
\647\West Virginia State Board of Education v. Barnette, 319
U.S. 624, 646 (1943) (dissenting).
---------------------------------------------------------------------------
Federal Question Jurisdiction
ARTICLE III
JUDICIAL DEPARTMENT
Section 2. Judicial Power and Jurisdiction
JURISDICTION OF SUPREME COURT AND INFERIOR FEDERAL COURTS
Cases Arising Under the Constitution, Laws, and Treaties of the
United States
Cases arising under the Constitution are cases that require an
interpretation of the Constitution for their correct decision.\648\ They
arise when a litigant claims an actual or threatened invasion of his
constitutional rights by the enforcement of some act of public
authority, usually an act of Congress or of a state legislature, and
asks for judicial relief. The clause furnishes the principal textual
basis for the implied power of judicial review of the constitutionality
of legislation and other official acts.
\648\Cohens v. Virginia, 6 Wheat, (19 U.S.) 264, 378 (1821).
---------------------------------------------------------------------------
Development of Federal Question Jurisdiction.--Almost from the
beginning, the Convention demonstrated an intent to create ``federal
question'' jurisdiction in the federal courts with regard to federal
laws;\649\ such cases involving the Constitution and treaties were added
fairly late in the Convention as floor amendments.\650\ But when
Congress enacted the Judiciary Act of 1789, it did not confer general
federal question jurisdiction on the inferior federal courts but left
litigants to remedies in state courts with appeals to the United States
Supreme Court if judgment went against federal constitutional
claims.\651\ Although there were a few juris
[[Page 714]]
dictional provisions enacted in the early years,\652\ it was not until
the period following the Civil War that Congress, in order to protect
newly created federal civil rights and in the flush of nationalist
sentiment, first created federal jurisdiction in civil rights cases\653\
and then in 1875 conferred general federal question jurisdiction on the
lower federal courts.\654\ Since that time, the trend generally has been
toward conferral of ever-increasing grants of jurisdiction to enforce
the guarantees recognized and enacted by Congress.\655\
\649\M. Farrand, op. cit., n. 1, 22, 211-212, 220, 244; 2 id.,
146-147, 186-187.
\650\Id., 423-424, 430, 431.
\651\1 Stat. 73. The district courts were given cognizance of
``suits for penalties and forfeitures incurred, under the laws of the
United States'' and ``of all causes where an alien sues for a tort only
in violation of the law of nations or a treaty of the United States.
. . .'' Id., 77. Plenary federal question jurisdiction was conferred by
the Act of February 13, 1801, Sec. 11, 2 Stat. 92, but this law was
repealed by the Act of March 8, 1802, 2 Stat. 132. On Sec. 25 of the
1789 Act, providing for appeals to the Supreme Court from state court
constitutional decisions, see supra, n.582.
\652\Act of April 10, 1790, Sec. 5, 1 Stat. 111, as amended, Act
of February 21, 1793, Sec. 6, 1 Stat. 322 (suits relating to patents).
Limited removal provisions were also enacted.
\653\Act of April 9, 1866, Sec. 3, 14 Stat, 27; Act of May 31,
1870, Sec. 8, 16 Stat. 142; Act of February 28, 1871, Sec. 15, 16 Stat.
438; Act of April 20, 1871, Sec. Sec. 2, 6, 17 Stat. 14, 15.
\654\Act of March 3, 1875, Sec. 1, 18 Stat. 470, now 28 U.S.C.
Sec. 1331(a). The classic treatment of the subject and its history is F.
Frankfurter & J. Landis, op. cit., n. 12.
\655\For a brief summary, see Hart & Wechsler, op. cit., n.250,
960-966.
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When a Case Arises Under.--The 1875 statute and its present form
both speak of civil suits ``arising under the Constitution, laws, or
treaties of the United States,''\656\ the language of the Constitution.
Thus, many of the early cases relied heavily upon Chief Justice
Marshall's construction of the constitutional language to interpret the
statutory language.\657\ The result was probably to accept more
jurisdiction than Congress had intended to convey.\658\ Later cases take
a somewhat more restrictive course.
\656\28 U.S.C. Sec. 1331(a). The original Act was worded
slightly differently.
\657\Osborn v. Bank of the United States, 9 Wheat. (22 U.S.) 738
(1824). See also Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 379 (1821).
\658\C. Wright, Handbook of the Law of Federal Courts (St. Paul:
4th ed. 1983), Sec. 17.
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Determination whether there is federal question jurisdiction is
made on the basis of the plaintiff's pleadings and not upon the response
or the facts as they may develop.\659\ Plaintiffs seeking access to
federal courts on this ground must set out a federal claim which is
``well-pleaded'' and the claim must be real and substantial and may not
be without color of merit.\660\ Plaintiffs may not anticipate that
defendants will raise a federal question in answer to the
[[Page 715]]
action.\661\ But what exactly must be pleaded to establish a federal
question is a matter of considerable uncertainty in many cases. It is no
longer the rule that when federal law is an ingredient of the claim,
there is a federal question.\662\
\659\See generally Merrill Dow Pharmaceuticals, Inc. v.
Thompson, 478 U.S. 804 (1986); Franchise Tax Board v. Construction
Laborers Vacation Trust, 463 U.S. 1 (1983).
\660\Newburyport Water Co. v. City of Newburyport, 193 U.S. 561,
576 (1904); Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105
(1933); Binderup v. Pathe Exchange, 263 U.S. 291, 305-308 (1923). If the
complaint states a case arising under the Constitution or federal law,
federal jurisdiction exists even though on the merits the party may have
no federal right. In such a case, the proper course for the court is to
dismiss for failure to state a claim on which relief can be granted
rather than for want of jurisdiction. Bell v. Hood, 327 U.S. 678 (1946).
Of course, dismissal for lack of jurisdiction is proper if the federal
claim is frivolous or obviously insubstantial. Levering & Garrigues Co.
v. Morrin, 289 U.S. 103, 105 (1933).
\661\Louisville & N.R. Co. v. Mottley, 211 U.S. 149 (1908). See
Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950); Phillips
Petroleum Co. v. Texaco, Inc., 415 U.S. 125 (1974).
\662\Such was the rule derived from Osborn v. Bank of the United
States, 9 Wheat. (22 U.S.) 738 (1824). See Franchise Tax Board v.
Construction Laborers Vacation Trust, 463 U.S. 1 (1983); Merrell Dow
Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986).
---------------------------------------------------------------------------
Many suits will present federal questions because a federal law
creates the action.\663\ Perhaps Justice Cardozo presented the most
understandable line of definition, while cautioning that ``[t]o define
broadly and in the abstract `a case arising under the Constitution or
laws of the United States' has hazards [approaching futility].''\664\
``How and when a case arises `under the Constitution or laws of the
United States' has been much considered in the books. Some tests are
well established. To bring a case within the statute, a right or
immunity created by the Constitution or laws of the United States must
be an element, and an essential one, of the plaintiff's cause of action.
. . . The right or immunity must be such that it will be supported if
the Constitution or laws of the United States are given one construction
or effect, and defeated if they receive another. . . . A genuine and
present controversy, not merely a possible or conjectural one, must
exist with reference thereto. . . .\665\
\663\American Well Works Co. v. Layne & Bowler Co., 241 U.S.
257, 260 (1916). Compare Albright v. Teas, 106 U.S. 613 (1883), and
People of Puerto Rico v. Russell & Co., 288 U.S. 476 (1933), with
Feibelman v. Packard. 109 U.S. 421 (1883), and The Fair v. Kohler Die &
Specialty Co., 228 U.S. 22 (1913).
\664\Gully v. First National Bank in Meridian, 299 U.S. 109, 117
(1936).
\665\Id., 112-113. Compare Wheeldin v. Wheeler, 373 U.S. 647
(1963), with Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). See also J. I. Case Co. v. Borak, 377
U.S. 426 (1964): Smith v. Kansas City Title & Trust Co., 255 U.S. 180
(1921).
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It was long evident, though the courts were not very specific
about it, that the federal question jurisdictional statute is and always
was narrower than the constitutional ``arising under'' jurisdictional
standard.\666\ Chief Justice Marshall in Osborn was interpreting the
Article III language to its utmost extent, but the courts sometimes
construed the statute equivalently, with doubtful results.\667\
\666\For an express acknowledgment, see Verlinden B. V. v.
Central Bank of Nigeria, 461 U.S. 480, 495 (1983). See also Shoshone
Mining Co. v. Rutter, 177 U.S. 505 (1900); Romero v. International
Terminal Operating Co., 358 U.S. 354, 379 n. 51 (1959).
\667\E.g., Pacific Railroad Removal Cases, 115 U.S. 1 (1885),
and see id., 24 (Chief Justice Waite dissenting).
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[[Page 716]]
Removal From State Court to Federal Court.--A limited right to
``remove'' certain cases from state courts to federal courts was granted
to defendants in the Judiciary Act of 1789,\668\ and from then to 1872
Congress enacted several specific removal statutes, most of them
prompted by instances of state resistance to the enforcement of federal
laws through harassment of federal officers.\669\ The 1875 Act
conferring general federal question jurisdiction on the federal courts
provided for removal of such cases by either party, subject only to the
jurisdictional amount limitation.\670\ The present statute provides for
the removal by a defendant of any civil action which could have been
brought originally in a federal district court, with no diversity of
citizenship required in ``federal question'' cases.\671\ A special civil
rights removal statute permits removal of any civil or criminal action
by a defendant who is denied or cannot enforce in the state court a
right under any law providing for equal civil rights of persons or who
is being proceeded against for any act under color of authority derived
from any law providing for equal rights.\672\
\668\Sec. 12, 1 Stat. 79.
\669\The first was the Act of February 4, 1815, 8, 3 Stat. 198.
The series of statutes is briefly reviewed in Willingham v. Morgan, 395
U.S. 402, 405-406 (1969), and in H. Hart & H. Wechsler, op. cit., n.250,
1192-1194. See 28 U.S.C. Sec. Sec. 1442, 1442a.
\670\Act of March 3, 1875, Sec. 2, 18 Stat. 471. The present
pattern of removal jurisdiction was established by the Act of March 3,
1887, 24 Stat. 552, as amended, 25 Stat. 433.
\671\28 U.S.C. Sec. 1441.
\672\28 U.S.C. Sec. 1443.
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The constitutionality of congressional provisions for removal
was challenged and readily sustained. Justice Story analogized removal
to a form of exercise of appellate jurisdiction,\673\ and a later Court
saw it as an indirect mode of exercising original jurisdiction and
upheld its constitutionality.\674\ In Tennessee v. Davis,\675\ which
involved a state attempt to prosecute a federal internal revenue agent
who had killed a man while seeking to seize an illicit distilling
apparatus, the Court invoked the right of the National Government to
defend itself against state harassment and restraint. The power to
provide for removal was discerned in the necessary and proper clause
authorization to Congress to pass laws to carry into execution the
powers vested in any other department or officer,
[[Page 717]]
here the judiciary.\676\ The judicial power of the United States, said
the Court, embraces alike civil and criminal cases arising under the
Constitution and laws and the power asserted in civil cases may be
asserted in criminal cases. A case arising under the Constitution and
laws ``is not merely one where a party comes into court to demand
something conferred upon him by the Constitution or by a law or treaty.
A case consists of the right of one party as well as the other, and may
truly be said to arise under the Constitution or a law or a treaty of
the United States whenever its correct decision depends upon the
construction of either. Cases arising under the laws of the United
States are such as grow out of the legislation of Congress, whether they
constitute the right or privilege, or claim or protection, or defence of
the party, in whole or in part, by whom they are asserted. . . .
\673\Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304, 347-351
(1816). Story was not here concerned with the constitutionality of
removal but with the constitutionality of Supreme Court review of state
judgments.
\674\Chicago & Nw. Ry. Co. v. Whitton's Administrator, 13 Wall.
(80 U.S.) 270 (1872). Removal here was based on diversity of
citizenship. See also The Moses Taylor, 4 Wall. (71 U.S.) 411, 429-430
(1867); The Mayor v. Cooper, 6 Wall. (73 U.S.) 247 (1868).
\675\100 U.S. 257 (1880).
\676\Id., 263-264.
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``The constitutional right of Congress to authorize the removal
before trial of civil cases arising under the laws of the United States
has long since passed beyond doubt. It was exercised almost
contemporaneously with the adoption of the Constitution, and the power
has been in constant use ever since. The Judiciary Act of September 24,
1789, was passed by the first Congress, many members of which had
assisted in framing the Constitution; and though some doubts were soon
after suggested whether cases could be removed from State courts before
trial, those doubts soon disappeared.''\677\ The Court has broadly
construed the modern version of the removal statute at issue in this
case so that it covers all cases where federal officers can raise a
colorable defense arising out of their duty to enforce federal law.\678\
Other removal statutes, notably the civil rights removal statute, have
not been so broadly interpreted.\679\
\677\Id., 264-265.
\678\Willingham v. Morgan, 395 U.S. 402 (1969). See also
Maryland v. Soper, 270 U.S. 9 (1926). Removal by a federal officer must
be predicated on the allegation of a colorable federal defense. Mesa v.
California, 489 U.S. 121 (1989). However, a federal agency is not
permitted to remove under the statute's plain meaning. International
Primate Protection League v. Administrators of Tulane Educational Fund,
500 U.S. 72 (1991).
\679\Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood
v. Peacock, 384 U.S. 808 (1966); Johnson v. Mississippi, 421 U.S. 213
(1975).
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Corporations Chartered by Congress.--In Osborn v. Bank of the
United States,\680\ Chief Justice Marshall seized upon the authorization
for the Bank to sue and be sued as a grant by Congress to the federal
courts of jurisdiction in all cases to which the bank
[[Page 718]]
was a party.\681\ Consequently, upon enactment of the 1875 law, the door
was open to other federally chartered corporations to seek relief in
federal courts. This opportunity was made actual when the Court in the
Pacific Railroad Removal Cases\682\ held that tort actions against
railroads with federal charters could be removed to federal courts
solely on the basis of federal incorporation. In a series of acts,
Congress deprived national banks of the right to sue in federal court
solely on the basis of federal incorporation in 1882,\683\ deprived
railroads holding federal charters of this right in 1915,\684\ and
finally in 1925 removed from federal jurisdiction all suits brought by
federally chartered corporations on the sole basis of such
incorporation, except where the United States holds at least half of the
stock.\685\
\680\9 Wheat. (22 U.S.) 738 (1824).
\681\The First Bank could not sue because it was not so
authorized. Bank of the United States v. Deveaux, 5 Cr. (9 U.S.) 61
(1809). The language, which Marshall interpreted as conveying
jurisdiction, was long construed simply to give a party the right to sue
and be sued without itself creating jurisdiction,. Bankers Trust Co. v.
Texas & P. Ry. Co., 241 U.S. 295 (1916), but in American National Red
Cross v. S. G., 112 S.Ct. 2465 (1992), a 5-to-4 decision, the Court held
that when a federal statutory charter expressly mentions the federal
courts in its ``sue and be sued'' provision the charter creates original
federal-question jurisdiction as well, although a general authorization
to sue and be sued in courts of general jurisdiction, including federal
courts, without expressly mentioning them, does not confer jurisdiction.
\682\115 U.S. 1 (1885).
\683\Sec. 4, 22 Stat. 162.
\684\Sec. 5, 38 Stat. 803.
\685\See 28 U.S.C. Sec. 1349.
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Federal Questions Resulting from Special Jurisdictional
Grants.--In the Labor-Management Relations Act of 1947, Congress
authorized federal courts to entertain suits for violation of collective
bargaining agreements without respect to the amount in controversy or
the citizenship of the parties.\686\ Although it is likely that Congress
meant no more than that labor unions could be suable in law or equity,
in distinction from the usual rule, the Court construed the grant of
jurisdiction to be more than procedural and to empower federal courts to
apply substantive federal law, divined and fashioned from the policy of
national labor laws, in such suits.\687\ State courts are not disabled
from hearing actions brought
[[Page 719]]
under the section,\688\ but they must apply federal law.\689\
Developments under this section illustrate the substantive importance of
many jurisdictional grants and indicate how the workload of the federal
courts may be increased by unexpected interpretations of such
grants.\690\
\686\Sec. 301, 61 Stat. 156 (1947), 29 U.S.C. Sec. 185.
\687\Textile Workers Union v. Lincoln Mills, 353 U.S. 448
(1957). Earlier the Court had given the section a restricted reading in
Assn. of Westinghouse Salaried Employees v. Westinghouse Electric Corp.,
348 U.S. 437 (1955), at least in part because of constitutional doubts
that Sec. 301 cases in the absence of diversity of citizenship presented
a federal question sufficient for federal jurisdiction. Id., 449-452,
459-461 (opinion of Justice Frankfurter). In Lincoln Mills, supra, the
Court resolved this difficulty by ruling that federal law was at issue
in Sec. 301 suits and thus cases arising under Sec. 301 presented
federal questions. 353 U.S., 457. The particular holding of
Westinghouse, that no jurisdiction exists under Sec. 301 for suits to
enforce personal rights of employees claiming unpaid wages, was
overturned in Smith v. Evening News Assn., 371 U.S. 195 (1962).
\688\Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962).
\689\Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95
(1962). State law is not, however, to be totally disregarded. ``State
law, if compatible with the purpose of Sec. 301, may be resorted to in
order to find the rule that will best effectuate the federal policy.
. . . Any state law applied, however, will be absorbed as federal law
and will not be an independent source of private rights.'' Textile
Workers Union v. Lincoln Mills, 353 U.S. 448, 457 (1957).
\690\For example, when federal regulatory statutes create new
duties without explicitly creating private federal remedies for their
violation, the readiness or unreadiness of the federal courts to infer
private causes of action is highly significant. While inference is an
acceptable means of judicial enforcement of statutes, e.g., Texas &
Pacific R. Co. v. Rigsby, 241 U.S. 33 (1916), the Court began broadly to
construe statutes to infer private actions only with J.I. Case Co. v.
Boak, 377 U.S. 426 (1964). See Cort v. Ash, 422 U.S. 66 (1975). More
recently, influenced by a separation of powers critique of implication
by Justice Powell, the Court drew back and asserted it will imply an
action only in instances of fairly clear congressional intent. Cannon v.
University of Chicago, 441 U.S. 677 (1979); California v. Sierra Club,
451 U.S. 287 (1981); Middlesex County Sewerage Auth. v. National Sea
Clammers Assn., 453 U.S. 1 (1981); Merrill, Lynch v. Curran, 456 U.S.
353 (1982); Thompson v. Thompson, 484 U.S. 174 (1988); Karahalios v.
National Federation of Federal Employees, 489 U.S. 527 (1989).
The Court appeared more ready to infer private causes of action
for constitutional violations, Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971); Davis v. Passman, 442 U.S. 228 (1979); Carlson v.
Green, 446 U.S. 14 (1980), but it has retreated here as well, hesitating
to find implied actions. E.g., Chappell v. Wallace, 462 U.S. 296 (1983);
Bush v. Lucas, 462 U.S. 367 (1983); Schweiker v. Chilicki, 487 U.S. 412
(1988). ``Federal common law'' may exist in a number of areas where
federal interests are involved and federal courts may take cognizance of
such suits under their ``arising under'' jurisdiction. E.g., Illinois v.
Milwaukee, 406 U.S. 91 (1972); International Paper Co. v. Ouellette, 479
U.S. 481 (1987). And see County of Oneida v. Oneida Indian Nation, 470
U.S. 226, 236-240 (1985); National Farmers Union Ins. Cos. v. Crow
Tribe, 471 U.S. 845 (1985). The Court is, however, somewhat wary of
finding ``federal common law'' in the absence of some congressional
authorization to formulate substantive rules, Texas Industries v.
Radcliff Materials, 451 U.S. 630 (1981), and Congress may always
statutorily displace the judicially created law. City of Milwaukee v.
Illiniois, 451 U.S. 304 (1981). Finally, federal courts have federal
question jurisdiction of claims created by state law if there exists an
important necessity for an interpretation of an act of Congress. Smith
v. Kansas City Title & Trust Co., 255 U.S. 180 (1921).
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Civil Rights Act Jurisdiction.--Perhaps the most important of
the special federal question jurisdictional statutes is that conferring
jurisdiction on federal district courts to hear suits challenging the
deprivation under color of state law or custom of any right, privilege,
or immunity secured by the Constitution or by any act of Congress
providing for equal rights.\691\ Because it contains no
[[Page 720]]
jurisdictional amount provision\692\ (while the general federal question
statute until recently did)\693\ and because the Court has held
inapplicable the judicially-created requirement that a litigant exhaust
his state remedies before bringing federal action,\694\ the statute has
been heavily utilized, resulting in a formidable caseload, by plaintiffs
attacking racial discrimination, malapportionment and suffrage
restrictions, illegal and unconstitutional police practices, state
restrictions on access to welfare and other public assistance, and a
variety of other state and local governmental practices.\695\ Congress
has encouraged utilization of the two statutes by providing for
attorneys' fees under Sec. 1983\696\ and by enacting related and
specialized complementary statutes.\697\ The Court in recent years has
generally interpreted Sec. 1983 and its jurisdictional statute broadly,
but it has also sought to restrict to some extent the kinds
[[Page 721]]
of claims that may be brought in federal courts.\698\ It should be noted
that Sec. 1983 and Sec. 1343(3) need not always go together, inasmuch as
Sec. 1983 actions may be brought in state courts.\699\
\691\28 U.S.C. Sec. 1343(3). The cause of action to which this
jurisdictional grant applies is 42 U.S.C. Sec. 1983, making liable and
subject to other redress any person who, acting under color of state
law, deprives any person of any rights, privileges, or immunities
secured by the Constitution and laws of the United States. For
discussion of the history and development of these two statutes, see
Monroe v. Pape, 365 U.S. 167 (1961); Lynch v. Household Finance Corp.,
405 U.S. 538 (1972); Monell v. New York City Dept. of Social Services,
436 U.S. 658 (1978), Chapman v. Houston Welfare Rights Org., 441 U.S.
600 (1979); Maine v. Thiboutot, 448 U.S. 1 (1980). Although the two
statutes originally had the same wording in respect to ``the
Constitution and laws of the United States,'' when the substantive and
jurisdictional aspects were separated and codified, Sec. 1983 retained
the all-inclusive ``laws'' provision, while Sec. 1343(3) read ``any Act
of Congress providing for equal rights.'' The Court has interpreted the
language of the two statutes literally, so that while claims under laws
of the United States need not relate to equal rights but may encompass
welfare and regulatory laws, Maine v. Thiboutot, supra; but see
Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S.
1 (1981), such suits if they do not spring from an act providing for
equal rights may not be brought under Sec. 1343(3). Chapman v. Houston
Welfare Rights Org., supra. This was important when there was a
jurisdictional amount provision in the federal question statute but is
of little significance today.
\692\See Hague v. CIO, 307 U.S. 496 (1939). Following Hague, it
was argued that only cases involving personal rights, that could not be
valued in dollars, could be brought under Sec. 1343(3), and that cases
involving property rights, which could be so valued, had to be brought
under the federal question statute. This attempted distinction was
rejected in Lynch v. Household Finance Corp., 405 U.S. 538, 546-548
(1972). On the valuation of constitutional rights, see Carey v. Piphus,
435 U.S. 247 (1978). And see Memphis Community School Dist. v. Stachura,
477 U.S. 299 (1986) (compensatory damages must be based on injury to the
plaintiff, not on some abstract valuation of constitutional rights).
\693\28 U.S.C. Sec. 1331 was amended in 1976 and 1980 to
eliminate the jurisdictional amount requirement. P.L. 94-574, 90 Stat.
2721; P.L. 96-486, 94 Stat. 2369.
\694\Patsy v. Board of Regents, 457 U.S. 496 (1982). This had
been the rule since at least McNeese v. Board of Education, 373 U.S. 668
(1963). See also Felder v. Casey, 487 U.S. 131 (1988) (state notice of
claim statute, requiring notice and waiting period before bringing suit
in state court under Sec. 1983, is preempted).
\695\Thus, such notable cases as Brown v. Board of Education,
347 U.S. 483 (1954), and Baker v. Carr, 369 U.S. 186 (1962), arose under
the statutes.
\696\Civil Rights Attorneys' Fees Award Act of 1976, P.L. 94-
559, 90 Stat. 2641, amending 42 U.S.C. Sec. 1988. See Hutto v. Finney,
437 U.S. 678 (1978); Maine v. Thiboutot, 448 U.S. 1 (1980).
\697\Civil Rights of Institutionalized Persons Act, P.L. 96-247,
94 Stat. 349 (1980), 42 U.S.C. Sec. 1997 et seq.
\698\E.g., Parratt v. Taylor, 451 U.S. 527 (1981); Ingraham v.
Wright, 430 U.S. 651 (1977).
\699\Maine v. Thiboutot, 448 U.S. 1 (1980).
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Pendent Jurisdiction.--Once jurisdiction has been acquired
through allegation of a federal question not plainly wanting in
substance,\700\ a federal court may decide any issue necessary to the
disposition of a case, notwithstanding that other non-federal questions
of fact and law may be involved therein.\701\ ``Pendent jurisdiction,''
as this form is commonly called, exists whenever the state and federal
claims ``derive from a common nucleus of operative fact'' and are such
that a plaintiff ``would ordinarily be expected to try them all in one
judicial proceeding.''\702\ Ordinarily, it is a rule of prudence that
federal courts should not pass on federal constitutional claims if they
may avoid it and should rest their conclusions upon principles of state
law where possible.\703\ But the federal court has discretion whether to
hear the pendent state claims in the proper case. Thus, the trial court
should look to ``considerations of judicial economy, convenience and
fairness to litigants'' in exercising its discretion and should avoid
needless decisions of state law. If the federal claim, though
substantial enough to confer jurisdiction, was dismissed before trial,
or if the state claim was substantially predominate, the court would be
justified in dismissing the state claim.\704\
\700\Levering & Garringues Co. v. Morrin, 289 U.S. 103, 105
(1933); Hagans v. Lavine, 415 U.S. 528, 534-543 (1974).
\701\Osborn v. Bank of the United States, 9 Wheat. (22 U.S.)
738, 822-828 (1824); Siler v. Louisville & Nashville R.R. Co., 213 U.S.
175 (1909); Hurn v. Oursler, 289 U.S. 238 (1933); United Mine Workers v.
Gibbs, 383 U.S. 715 (1966).
\702\Id., 725. This test replaced a difficult-to-apply test of
Hurn v. Oursler, 289 U.S. 238, 245-246 (1933).
\703\Siler v. Louisville & Nashville R. Co., 213 U.S. 175
(1909); Greene v. Louisville & Interurban R. Co., 244 U.S. 499 (1917);
Hagans v. Lavine, 415 U.S. 528, 546-550 (1974). In fact, it may be an
abuse of discretion for a federal court to fail to decide on an
available state law ground instead of reaching the federal
constitutional question. Schmidt v. Oakland Unified School Dist., 457
U.S. 594 (1982) (per curiam). However, narrowing previous law, the Court
held in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89
(1984), held that when a pendent claim of state law involves a claim
that is against a State for purposes of the Eleventh Amendment federal
courts may not adjudicate it.
\704\United Mine Workers v. Gibbs, 383 U.S. 715, 726-727 (1966).
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A variant of pendent jurisdiction, sometimes called ``ancillary
jurisdiction,'' is the doctrine allowing federal courts to acquire
jurisdiction entirely of a case presenting two federal issues, although
it might properly not have had jurisdiction of one of the issues if it
[[Page 722]]
had been independently presented.\705\ Thus, in an action under a
federal statute, a compulsory counterclaim not involving a federal
question is properly before the court and should be decided.\706\ The
concept has been applied to a claim otherwise cognizable only in
admiralty when joined with a related claim on the law side of the
federal court and in this way to give an injured seaman a right to jury
trial on all of his claims when ordinarily the claim cognizable only in
admiralty would be tried without a jury.\707\ And a colorable
constitutional claim has been held to support jurisdiction over a
federal statutory claim arguably not within federal jurisdiction.\708\
\705\The initial decision was Freeman v. Howe, 24 How. (65 U.S.)
450 (1861), in which federal jurisdiction was founded on diversity of
citizenship.
\706\Moore v. New York Cotton Exchange, 270 U.S. 593 (1926).
\707\Romero v. International Terminal Operating Co., 358 U.S.
354, 380-381 (1959); Fitzgerald v. United States Lines Co., 374 U.S. 16
(1963).
\708\Rosado v. Wyman, 397 U.S. 397, 400-405 (1970).
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Still another variant is the doctrine of ``pendent parties,''
under which a federal court could take jurisdiction of a state claim
against one party if it were related closely enough to a federal claim
against another party, even though there was no independent
jurisdictional base for the state claim.\709\ While the Supreme Court at
first tentatively found some merit in the idea,\710\ in Finley v. United
States,\711\ by a 5-to-4 vote the Court firmly disapproved of the
pendent party concept and cast considerable doubt on the other prongs of
pendent jurisdiction as well. Pendent party jurisdiction, Justice Scalia
wrote for the Court, was within the constitutional grant of judicial
power, but to be operable it must be affirmatively granted by
congressional enactment.\712\ Within the year, Congress supplied the
affirmative grant, adopting not only pendent party jurisdiction but
codifying as well pendent jurisdiction and ancillary jurisdiction under
the name of ``supplemental jurisdiction.''\713\
\709\Judge Friendly originated the concept in Astor-Honor, Inc.
v. Grosset & Dunlap, Inc., 441 F.2d 627 (2d Cir. 1971); Leather's Best,
Inc. v. S. S. Mormaclynx, 451 F.2d 800 (2d Cir. 1971).
\710\Aldinger v. Howard, 427 U.S. 1 (1976).
\711\490 U.S. 545 (1989).
\712\Id., 553, 556.
\713\Act of Dec. 1, 1990, P. L. 101-650, 104 Stat. 5089,
Sec. 310, 28 U.S.C. Sec. 1367.
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Thus, these interrelated doctrinal standards seem now well-
grounded.
Protective Jurisdiction.--A conceptually difficult doctrine,
which approaches the verge of a serious constitutional gap, is the
concept of protective jurisdiction. Under this doctrine, it is argued
that in instances in which Congress has legislative jurisdiction, it can
confer federal jurisdiction, with the jurisdictional statute itself
[[Page 723]]
being the ``law of the United States'' within the meaning of Article
III, even thoug Congress has enacted no substantive rule of decision and
state law is to be applied. Put forward in controversial cases,\714\ the
doctrine has neither been rejected nor accepted by the Supreme Court. In
Verlinden B. V. v. Central Bank of Nigeria,\715\ the Court reviewed a
congressional grant of jurisdiction to federal courts to hear suits by
an alien against a foreign state, jurisdiction not within the ``arising
under'' provision of article III. Federal substantive law was not
applicable, that resting either on state or international law. Refusing
to consider protective jurisdiction, the Court found that the statute
regulated foreign commerce by promulgating rules governing sovereign
immunity from suit and was a law requiring interpretation as a federal-
question matter. That the doctrine does raise constitutional doubts is
perhaps grounds enough to avoid reaching it.\716\
\714\National Mutual Ins. Co. v. Tidewater Transfer Co., 337
U.S. 582 (1949); Tetile Workers v. Lincoln Mills, 353 U.S. 448 (1957);
and see the bankruptcy cases, Schumacher v. Beeler, 293 U.S. 367 (1934);
Williams v. Austrian, 331 U.S. 642 (1947).
\715\461 U.S. 480 (1983).
\716\E.g., Mesa v. California, 489 U.S. 121, 136-137 (1989)
(would ``present grave constitutional problems).
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Supreme Court Review of State Court Decisions.--In addition to
the constitutional issues presented by 25 of the Judiciary Act of 1789
and subsequent enactments,\717\ questions have continued to arise
concerning review of state court judgments which go directly to the
nature and extent of the Supreme Court's appellate jurisdiction. Because
of the sensitivity of federal-state relations and the delicate nature of
the matters presented in litigation touching upon them, jurisdiction to
review decisions of a state court is dependent in its exercise not only
upon ascertainment of the existence of a federal question but upon a
showing of exhaustion of state remedies and of the finality of the state
judgment. Because the application of these standards to concrete facts
is neither mechanical nor nondiscretionary, the Justices have often been
divided
[[Page 724]]
whether these requisites to the exercise of jurisdiction have been met
in specific cases submitted for review by the Court.
\717\On Sec. 25, see supra. The present statute is 28 U.S.C.
Sec. 1257(a), which provides that review by writ of certiorari is
available where the validity of a treaty or statute of the United States
is drawn in question or where the validity of a statute of any State is
drawn in question on the ground of its being repugnant to the
Constitution, treaties, or laws of the United States, or where any
title, right, privilege, or immunity is specially set up or claimed
under the Constitution or the treaties or statutes of, or any commission
held or authority exercised under, the United States. Prior to 1988,
there was a right to mandatory appeal in cases in which a state court
had found invalid a federal statute or treaty or in which a state court
had upheld a state statute contested under the Constitution, a treaty,
or a statute of the United States. See the Act of June 25, 1948, 62
Stat. 929. The distinction between certiorari and appeal was abolished
by the Act of June 27, 1988, P.L. 100-352, Sec. 3, 102 Stat. 662.
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The Court is empowered to review the judgments of ``the highest
court of a State in which a decision could be had.''\718\ This will
ordinarily be the State's court of last resort, but it could well be an
intermediate appellate court or even a trial court if its judgment is
final under state law and cannot be reviewed by any state appellate
court.\719\ The review is of a final judgment below. ``It must be
subject to no further review or correction in any other state tribunal;
it must also be final as an effective determination of the litigation
and not of merely interlocutory or intermediate steps therein. It must
be the final word of a final court.''\720\ The object of this rule is to
avoid piecemeal interference with state court proceedings; it promotes
harmony by preventing federal assumption of a role in a controversy
until the state court efforts are finally resolved.\721\ For similar
reasons, the Court requires that a party seeking to litigate a federal
constitutional issue on appeal of a state court judgment must have
raised that issue with sufficient precision to have enabled the state
court to have considered it and she must have raised the issue at the
appropriate time below.\722\
\718\28 U.S.C. Sec. 1257(a). See R. Stern & E. Gressman, Supreme
Court Practice (Washington; 6th ed. 1986), ch. 3.
\719\Grovey v. Townsend, 295 U.S. 45, 47 (1935); Talley v.
California, 362 U.S. 60, 62 (1960); Thompson v. City of Louisville, 362
U.S. 199, 202 (1960); Metlakatla Indian Community v. Egan, 363 U.S. 555
(1960); Powell v. Texas, 392 U.S. 516, 517 (1968); Koon v. Aiken, 480
U.S. 943 (1987). In Cohens v. Virginia, 6 Wheat. (19 U.S.) 264 (1821),
the judgment reviewed was that of the Quarterly Session Court for the
Borough of Norfolk, Virginia.
\720\Market Street R. Co., v. Railroad Comm., 324 U.S. 548, 551
(1945). See also San Diego Gas & Electric Co. v. City of San Diego, 450
U.S. 621 (1981); Flynt v. Ohio, 451 U.S. 619 (1981); Minnick v.
California Dept. of Corrections, 452 U.S. 105 (1981). In recent years,
however, the Court has developed a series of exceptions permitting
review when the federal issue in the case has been finally determined
but there are still proceedings in the lower state courts to come. Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469, 476-487 (1975). See also Fort
Wayne Books v. Indiana, 489 U.S. 46, 53-57 (1989); Duquesne Light Co. v.
Barasch, 488 U.S. 299, 304 (1989); NAACP v. Claiborne Hardware Co., 458
U.S. 886, 907 n. 42 (1982).
\721\Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 67-69
(1948); Radio Station WOW v. Johnson, 326 U.S. 120, 123-124 (1945).
\722\New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67
(1928); See also Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71.
77 (1988); Webb v. Webb, 451 U.S. 493, 501 (1981). The same rule applies
on habeas corpus petitions. E.g., Picard v. Connor, 404 U.S. 270 (1972).
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When the judgment of a state court rests on an adequate,
independent determination of state law, the Court will not review the
resolution of the federal questions decided, even though the resolution
may be in error.\723\ ``The reason is so obvious that it has rarely been
thought to warrant statement. It is found in the partitioning
[[Page 725]]
of power between the state and Federal judicial systems and in the
limitations of our own jurisdiction. Our only power over state judgments
is to correct them to the extent that they incorrectly adjudge federal
rights. And our power is to correct wrong judgments, not to revise
opinions. We are not permitted to render an advisory opinion, and if the
same judgment would be rendered by the state court after we corrected
its views of Federal laws, our review could amount to nothing more than
an advisory opinion.''\724\ The Court is faced with two interrelated
decisions: whether the state court judgment is based upon a nonfederal
ground and whether the nonfederal ground is adequate to support the
state court judgment. It is, of course, the responsibility of the Court
to determine for itself the answer to both questions.\725\
\723\Murdock v. City of Memphis, 20 Wall. (87 U.S.) 590 (1874);
Black v. Cutter Laboratories, 351 U.S. 292 (1956); Wilson v. Loew's,
Inc., 355 U.S. 597 (1958).
\724\Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945).
\725\E.g., Howlett by Howlett v. Rose, 496 U.S. 356, 366 (1990);
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455 (1958).
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The first question may be raised by several factual situations.
A state court may have based its decision on two grounds, one federal,
one nonfederal.\726\ It may have based its decision solely on a
nonfederal ground but the federal ground may have been clearly
raised.\727\ Both federal and nonfederal grounds may have been raised
but the state court judgment is ambiguous or is without written opinion
stating the ground relied on.\728\ Or the state court may have decided
the federal question although it could have based its ruling on an
adequate, independent nonfederal ground.\729\ In any event, it is
essential for purposes of review by the Supreme Court that it appear
from the record that a federal question was presented, that the
disposition of that question was necessary to the determination of the
case, that the federal question was actually decided or that the
judgment could not have been rendered without deciding it.\730\
\726\Fox Film Corp. v. Muller, 296 U.S. 207 (1935); Cramp v.
Board of Public Instruction, 368 U.S. 278 (1961).
\727\Wood v. Chesborough, 228 U.S. 672, 676-680 (1913).
\728\Lynch v. New York ex rel. Pierson, 293 U.S. 52, 54-55
(1934); Williams v. Kaiser, 323 U.S. 471, 477 (1945); Durley v. Mayo,
351 U.S. 277, 281 (1956); Klinger v. Missouri, 13 Wall. (80 U.S.) 257,
263 (1872); cf. Department of Mental Hygiene v. Kirchner, 380 U.S. 194
(1965).
\729\Poafpybitty v. Skelly Oil Co., U.S. 365, 375-376 (1968).
\730\Southwestern Bell Tel. Co. v. Oklahoma, 303 U.S. 206
(1938); Raley v. Ohio, 360 U.S. 423, 434-437 (1959). When there is
uncertainty about what the state court did, the usual practice was to
remand for clarification. Minnesota v. National Tea Co., 309 U.S. 551
(1940); California v. Krivda, 409 U.S. 33 (1972). See California Dept.
of Motor Vehicles v. Rios, 410 U.S. 425 (1973). Now, however, in a
controversial decision, the Court has adopted a presumption that when a
state court decision fairly appears to rest on federal law or to be
interwoven with federal law, and when the adequacy and independence of
any possible state law ground is not clear from the face of the opinion
the Court will accept as the most reasonable explanation that the state
court decided the case as it did because it believed that federal law
required it to do so. If the state court wishes to avoid the presumption
it must make clear by a plain statement in its judgment or opinion that
discussed federal law did not compel the result, that state law was
dispositive. Michigan v. Long, 463 U.S. 1032 (1983). See Harris v. Reed,
489 U.S. 255, 261 n. 7 (1989) (collecting cases); Coleman v. Thompson,
501 U.S. 722 (1991) (applying the rule in a habeas case).
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[[Page 726]]
With regard to the second question, in order to preclude Supreme
Court review, the nonfederal ground must be broad enough, without
reference to the federal question, to sustain the state court
judgment,\731\ the nonfederal ground must be independent of the federal
question,\732\ and the nonfederal ground must be a tenable one.\733\
Rejection of a litigant's federal claim by the state court on state
procedural grounds, such as failure to tender the issue at the
appropriate time, will ordinarily preclude Supreme Court review as an
adequate independent state ground,\734\ so long as the local procedure
does not discriminate against the raising of federal claims and has not
been used to stifle a federal claim or to evade vindication of federal
rights.\735\
\731\Murdock v. City of Memphis, 20 Wall. (87 U.S.) 590, 636
(1874). A new state rule cannot be invented for the occasion in order to
defeat the federal claim. E.g., Ford v. Georgia, 498 U.S. 411, 420-425
(1991)
\732\Enterprise Irrigation District v. Farmers' Mutual Canal
Co., 243 U.S. 157, 164 (1917); Ivanhoe Irrigation District v. McCracken,
357 U.S. 275, 290 (1958).
\733\Enterprise Irrigation District v. Farmers' Mutual Canal
Co., 243 U.S. 157, 164 (1917); Ward v. Love County, 253 U.S. 17. 22
(1920); Staub v. Baxley, 355 U.S. 313, 319-320 (1958).
\734\Nickel v. Cole, 256 U.S. 222, 225 (1921); Wolfe v. North
Carolina, 364 U.S. 177, 195 (1960). But see Davis v. Wechsler, 263 U.S.
22 (1923); Brown v. Western Ry. of Alabama, 338 U.S. 294 (1949).
\735\Davis v. Wechsler, 263 U.S. 22, 24-25 (1923); NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449, 455-458 (1958); Barr v. City of
Columbia, 378 U.S. 146, 149 (1964). This rationale probably explains
Henry v. Mississippi, 379 U.S. 443 (1965). See also in the criminal
area, Edelman v. Califonia, 344 U.S. 357, 362 (1953) (dissenting
opinion); Brown v. Allen, 344 U.S. 443, 554 (1953) (dissenting opinion);
Williams v. Georgia, 349 U.S. 375, 383 (1955); Monger v. Florida, 405
U.S. 958 (1972) (dissenting opinion).
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Suits Affecting Ambassadors, Other Public Ministers, and Consuls
The earliest interpretation of the grant of original
jurisdiction to the Supreme Court came in the Judiciary Act of 1789,
which conferred on the federal district courts jurisdiction of suits to
which a consul might be a party. This legislative interpretation was
sustained in 1793 in a circuit court case in which the judges held the
Congress might vest concurrent jurisdiction involving consuls in the
inferior courts and sustained an indictment against a consul.\736\ Many
years later, the Supreme Court held that consuls could be sued in the
federal courts,\737\ and in another case in the same year declared
sweepingly that Congress could grant concur
[[Page 727]]
rent jurisdiction to the inferior courts in cases where Supreme Court
has been invested with original jurisdiction.\738\ Nor does the grant of
original jurisdiction to the Supreme Court in cases affecting
ambassadors and consuls of itself preclude suits in state courts against
consular officials. The leading case is Ohio ex rel. Popovici v.
Agler,\739\ in which a Rumanian vice-consul contested an Ohio judgment
against him for divorce and alimony.
\736\United States v. Ravara, 2 Dall. (2 U.S.) 297 (C.C. Pa.
1793).
\737\Bors v. Preston, 111 U.S. 252 (1884).
\738\Ames v. Kansas ex rel. Johnston, 111 U.S. 449, 469 (1884).
\739\280 U.S. 379, 383, 384 (1930). Now precluded by 28 U.S.C.
Sec. 1351.
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A number of incidental questions arise in connection with the
phrase ``affecting ambassadors and consuls.'' Does the ambassador or
consul to be affected have to be a party in interest, or is a mere
indirect interest in the outcome of the proceeding sufficient? In United
States v. Ortega,\740\ the Court ruled that a prosecution of a person
for violating international law and the laws of the United States by
offering violence to the person of a foreign minister was not a suit
``affecting'' the minister but a public prosecution for vindication of
the laws of nations and the United States. Another question concerns the
official status of a person claiming to be an ambassador or consul.
\740\11 Wheat. (24 U.S.) 467 (1826).
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The Court has refused to review the decision of the Executive
with respect to the public character of a person claiming to be a public
minister and has laid down the rule that it has the right to accept a
certificate from the Department of State on such a question.\741\ A
third question was whether the clause included ambassadors and consuls
accredited by the United States to foreign governments. The Court held
that it includes only persons accredited to the United States by foreign
governments.\742\ However, in matters of especial delicacy, such as
suits against ambassadors and public ministers or their servants, where
the law of nations permits such suits, and in all controversies of a
civil nature in which a State is a party, Congress until recently made
the original jurisdiction of the Supreme Court exclusive of that of
other courts.\743\ By its compliance with the congressional distribution
of exclusive and concurrent original jurisdiction, the Court has tacitly
sanctioned the power of Congress to make such jurisdiction exclusive or
concurrent as it may choose.
\741\In re Baiz, 135 U.S. 403, 432 (1890).
\742\Ex parte Gruber, 269 U.S. 302 (1925).
\743\1 Stat. 80-81 (1789). Jurisdiction in the Supreme Court
since 1978 has been original but not exclusive. P.L. 95-393, Sec. 8(b),
92 Stat. 810, 28 U.S.C. Sec. 1251(b)(1).
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[[Page 728]]
Cases of Admiralty and Maritime Jurisdiction
The admiralty and maritime jurisdiction of the federal courts
had its origins in the jurisdiction vested in the courts of the Admiral
of the English Navy. Prior to independence, vice-admiralty courts were
created in the Colonies by commissions from the English High Court of
Admiralty. After independence, the States established admiralty courts,
from which at a later date appeals could be taken to a court of appeals
set up by Congress under the Articles of Confederation.\744\ Since one
of the objectives of the Philadelphia Convention was the promotion of
commerce through removal of obstacles occasioned by the diverse local
rules of the States, it was only logical that it should contribute to
the development of a uniform body of maritime law by establishing a
system of federal courts and granting to these tribunals jurisdiction
over admiralty and maritime cases.\745\
\744\G. Gilmore & C. Black, The Law of Admiralty (Brooklyn:
1957), ch. 1.
\745\Nothing really appears in the records of the Convention
which sheds light on the Framers' views about admiralty. The present
clause was contained in the draft of the Committee on Detail. 2 M.
Farrand, op. cit., n. 1, 186-187. None of the plans presented to the
Convention, with the exception of an apparently authentic Charles
Pinckney plan. 3 id., 601-604, 608, had mentioned an admiralty
jurisdiction in national courts. See Putnam, How the Federal Courts Were
Given Admiralty Jurisdiction, 10 Corn. L.Q. 460 (1925).
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The Constitution uses the terms ``admiralty and maritime
jurisdiction'' without defining them. Though closely related, the words
are not synonyms. In England the word ``maritime'' referred to the cases
arising upon the high seas, whereas ``admiralty'' meant primarily cases
of a local nature involving police regulations of shipping, harbors,
fishing, and the like. A long struggle between the admiralty and common
law courts had, however, in the course of time resulted in a
considerable curtailment of English admiralty jurisdiction. A much
broader conception of admiralty and maritime jurisdiction existed in the
United States at the time of the framing of the Constitution than in the
Mother Country.\746\ At the very beginning of government under the
Constitution, Congress conferred on the federal district courts
exclusive original cognizance ``of all civil causes of admiralty and
maritime jurisdiction, including all seizures under laws of impost,
navigation or trade of the United States, where the seizures are made,
on waters which are navigable from the sea by vessels of ten or more
tons burthen, within their respective districts as well as upon the high
seas; saving to
[[Page 729]]
suitors, in all cases, the right of a common law remedy, where the
common law is competent to give it; . . .''\747\ This broad legislative
interpretation of admiralty and maritime jurisdiction soon won the
approval of the federal circuit courts, which ruled that the extent of
admiralty and maritime jurisdiction was not to be determined by English
law but by the principles of maritime law as respected by maritime
courts of all nations and adopted by most, if not by all, of them on the
continent of Europe.\748\
\746\G. Gilmore and C. Black, op. cit. n. 744, ch 1. In DeLovio
v. Boit, 7 Fed. Cas. 418 (No. 3776) (C.C.D. Mass 1815), Justice Story
delivered a powerful historical and jurisprudential argument against the
then-restrictive English system. See also Waring v. Clarke, 5 How. (46
U.S.) 441, 451-459 (1847); New Jersey Steam Navigation Co. v. Merchants'
Bank of Boston, 6 How. (47 U.S.) 34, 385-390 (1848).
\747\Sec. 9, 1 Stat. 77 (1789), now 28 U.S.C. Sec. 1333 in only
slightly changed fashion. For the classic exposition, see Black,
Admiralty Jurisdiction: Critique and Suggestions, 50 Colum. L. Rev. 259
(1950).
\748\E.g., DeLovio v. Boit, 7 Fed. Cas. 418 (No. 3776) (C.C.D.
Mass. 1815) (Justice Story); The Seneca, 21 Fed. Cas. 1801 (No. 12670)
C.C.E.D.Pa. 1829) Justice Washington).
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Although a number of Supreme Court decisions had earlier
sustained the broader admiralty jurisdiction on specific issues,\749\ it
was not until 1848 that the Court ruled squarely in its favor, which it
did by declaring that ``whatever may have been the doubt, originally, as
to the true construction of the grant, whether it had reference to the
jurisdiction in England, or to the more enlarged one that existed in
other maritime countries, the question has become settled by legislative
and judicial interpretation, which ought not now to be disturbed.''\750\
The Court thereupon proceeded to hold that admiralty had jurisdiction in
personam as well as in rem over controversies arising out of contracts
of affreightment between New York and Providence.
\749\The Vengeance, 3 Dall. (3 U.S.) 297 (1796); The Schooner
Sally, 2 Cr. (6 U.S.) 406 (1805): The Schooner Betsy, 4 Cr. (8 U.S.) 443
(1808); The Samuel, 1 Wheat. (14 U.S.) 9 (1816); The Octavig, 1 Wheat.
(14 U.S.) 20 (1816).
\750\New Jersey Steam Navigation Co. v. Merchants' Bank of
Boston, 6 How. (47 U.S.) 334, 386 (1848); see also Waring v. Clarke, 5
How. (46 U.S.) 441 (1847).
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Power of Congress To Modify Maritime Law.--The Constitution does
not identify the source of the substantive law to be applied in the
federal courts in cases of admiralty and maritime jurisdiction.
Nevertheless, the grant of power to the federal courts in Article III
necessarily implies the existence of a substantive maritime law which,
if they are required to do so, the federal courts can fashion for
themselves.\751\ But what of the power of Congress in
[[Page 730]]
this area? In The Lottawanna,\752\ Justice Bradley undertook a
definitive exposition of the subject. No doubt, the opinion of the Court
notes, there exists ``a great mass of maritime law which is the same in
all commercial countries,'' still ``the maritime law is only so far
operative as law in any country as it is adopted by the laws and usages
of that country.''\753\ ``The general system of maritime law which was
familiar to the lawyers and statesmen of the country when the
Constitution was adopted, was most certainly intended and referred to
when it was declared in that instrument that the judicial power of the
United States shall extend `to all cases of admiralty and maritime
jurisdiction.' But by what criterion are we to ascertain the precise
limits of the law thus adopted? The Constitution does not define it.
. . .
\751\Swift & Co. Packers v. Compania Columbiana Del Caribe, 339
U.S. 684, 690, 691 (1950); Halcyon Lines v. Haenn Ship Ceiling &
Refitting Corp., 342 U.S. 282, 285 (1952); Romero v. International
Terminal Operating Co., 358 U.S. 354, 360-361 (1959). For a recent
example, see Moragne v. States Marine Lines, 398 U.S. 375 (1970); United
States v. Reliable Transfer Co., 421 U.S. 397 (1975). Compare The
Lottawanna, 21 Wall. (88 U.S.) 558, 576-577 (1875) (``But we must always
remember that the court cannot make the law, it can only declare it. If,
within its proper scope, any change is desired in its rules, other than
those of procedure, it must be made by the legislative department'').
States can no more override rules of judicial origin than they can
override acts of Congress. Wilburn Boat Co. v. Firemen's Fund Ins. Co.,
348 U.S. 310, 314 (1955).
\752\21 Wall. (88 U.S.) 558 (1875).
\753\Id., 572.
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``One thing, however, is unquestionable; the Constitution must
have referred to a system of law coextensive with, and operating
uniformly in, the whole country. It certainly could not have been the
intention to place the rules and limits of maritime law under the
disposal and regulation of the several States, as that would have
defeated the uniformity and consistency at which the Constitution aimed
on all subjects of a commercial character affecting the intercourse of
the States with each other or with foreign states.''\754\
\754\Id., 574-575.
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``It cannot be supposed that the framers of the Constitution
contemplated that the law should forever remain unalterable. Congress
undoubtedly has authority under the commercial power, if no other, to
introduce such changes as are likely to be needed.''\755\ That Congress'
power to enact substantive maritime law was conferred by the commerce
clause was assumed in numerous opinions,\756\ but later opinions by
Justice Bradley firmly established that the source of power was the
admiralty grant itself, as supplemented by the second prong of the
necessary and proper clause.\757\ Thus, ``[a]s the Constitution extends
the judicial power of the United States to `all cases of admiralty and
maritime jurisdiction,' and as this jurisdiction is held to be
exclusive, the power of legislation
[[Page 731]]
on the same subject must necessarily be in the national legislature and
not in the state legislatures.''\758\ Rejecting an attack on a maritime
statute as an infringment of intrastate commerce, Justice Bradley wrote:
``It is unnecessary to invoke the power given the Congress to regulate
commerce in order to find authority to pass the law in question. The act
was passed in amendment of the maritime law of the country, and the
power to make such amendments is coextensive with that law. It is not
confined to the boundaries or class of subjects which limit and
characterize the power to regulate commerce; but, in maritime matters,
it extends to all matters and places to which the maritime law
extends.''\759\
\755\Id., 577.
\756\E.g., The Daniel Ball, 10 Wall, (77 U.S.) 557, 564 (1871);
Moore v. American Transp. Co., 24 How. (65 U.S.) 1, 39 (1861);
Providence & N.Y. S.S. Co. v. Hill Mfg. Co., 109 U.S. 578 (1883); The
Robert W. Parsons, 191 U.S. 17 (1903).
\757\Butler v. Boston & S. S.S. Co., 130 U.S. 527 (1889); In re
Garnett, 141 U.S. 1 (1891). The second prong of the necessary and proper
clause is the authorization to Congress to enact laws to carry into
execution the powers vested in other departments of the Federal
Government. See Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 42
(1934).
\758\Butler v. Boston & S. S.S. Co., 130 U.S. 527, 557 (1889).
\759\In re Garnett, 141 U.S. 1, 12 (1891). See also Southern
Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917); Knickerbocker Ice Co.
v. Stewart, 253 U.S. 149, 160 (1920); Crowell v. Benson, 285 U.S. 22, 55
(1932). The Jones Act, under which injured seamen may maintain an action
at law for damages, has been reviewed as an exercise of legislative
power deducible from the admiralty clause. Panama R.R. Co. v. Johnson,
264 U.S. 375, 386, 388, 391 (1924); Romero v. International Terminal
Operating Co., 358 U.S. 354, 360-361 (1959). On the limits to the
congressional power, see Panama R.R. Co. v. Johnson, supra, 386-387;
Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 43-44 (1934).
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The law administered by federal courts in admiralty is therefore
an amalgam of the general maritime law insofar as it is acceptable to
the courts, modifications of that law by congressional amendment, the
common law of torts and contracts as modified to the extent
constitutionally possible by state legislation, and international prize
law. This body of law is at all times subject to modification by the
paramount authority of Congress acting in pursuance of its powers under
the admiralty and maritime clause and the necessary and proper clause
and, no doubt, the commerce clause, now that the Court's interpretation
of that clause has become so expansive. Of this power there has been
uniform agreement among the Justices of the Court.\760\
\760\Thus, Justice McReynolds' assertion of the paramountcy of
congressional power in Southern Pacific Co. v. Jensen, 244 U.S. 205, 215
(1917), was not disputed by the four dissenters in that case and is
confirmed in subsequent cases critical of Jensen which in effect invite
congressional modification of maritime law. E.g., Davis v. Dept. of
Labor and Industries, 317 U.S. 249 (1942). The nature of maritime law
has excited some relevant controversy. In American Ins. Co. v. Canter, 1
Pet. (26 U.S.) 516, 545 (1828), Chief Justice Marshall declared that
admiralty cases do not ``arise under the Constitution or laws of the
United States'' but ``are as old as navigation itself; and the law,
admiralty and maritime as it has existed for ages, is applied by our
Courts to the cases as they arise.'' In Romero v. International Terminal
Operating Co., 358 U.S. 354 (1959), the plaintiff sought a jury trial in
federal court on a seaman's suit for personal injury on an admiralty
claim, contending that cases arising under the general maritime law are
``civil actions'' that arise ``under the Constitution, laws, or treaties
of the United States,'' 28 U.S.C. Sec. 1331. Five Justices in an opinion
by Justice Frankfurter disagreed. Maritime cases do not arise under the
Constitution or laws of the United States for federal question purposes
and must, absent diversity, be instituted in admiralty where there is no
jury trial. The dissenting four, Justice Brennan for himself and Chief
Justice Warren and Justices Black and Douglas, contended that maritime
law, although originally derived from international sources, is
operative within the United States only by virtue of having been
accepted and adopted pursuant to Article III, and accordingly judicially
originated rules formulated under authority derived from that Article
are ``laws'' of the United States to the same extent as those enacted by
Congress.
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[[Page 732]]
Admiralty and Maritime Cases.--Admiralty and maritime
jurisdiction comprises two types of cases: (1) those involving acts
committed on the high seas or other navigable waters, and (2) those
involving contracts and transactions connected with shipping employed on
the seas or navigable waters. In the first category, which includes
prize cases and torts, injuries, and crimes committed on the high seas,
jurisdiction is determined by the locality of the act, while in the
second category subject matter is the primary determinative factor.\761\
Specifically, contract cases include suits by seamen for wages,\762\
cases arising out of marine insurance policies,\763\ actions for
towage\764\ or pilotage\765\ charges, actions on bottomry or
respondentia bonds,\766\ actions for repairs on a vessel
[[Page 733]]
already used in navigation,\767\ contracts of affreightment,\768\
compensation for temporary wharfage,\769\ agreements of consortship
between the masters of two vessels engaged in wrecking,\770\ and surveys
of damaged vessels.\771\ That is, admiralty jurisdiction ``extends to
all contracts, claims and services essentially maritime.''\772\ But the
courts have never enunciated an unambiguous test which would enable one
to determine in advance whether a given case is a maritime one or
not.\773\ ``The boundaries of admiralty jurisdiction over contracts--as
opposed to torts or crimes--being conceptual rather than spatial, have
always been difficult to draw. Precedent and usage are helpful insofar
as they exclude or include certain common types of contract.
. . .''\774\
\761\DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D.
Mass. 1815) (Justice Story); Waring v. Clarke, 5 How. (46 U.S.) 441
(1847).
\762\Sheppard v. Taylor, 5 Pet. (30 U.S.) 675, 710 (1831). A
seaman employed by the Government making a claim for wages cannot
proceed in admiralty but must bring his action under the Tucker Act in
the Court of Claims or in the district court if his claim does not
exceed $10,000. Amell v. United States, 384 U.S. 158 (1966). In Kossick
v. United Fruit Co., 365 U.S. 731 (1961), an oral agreement between a
seaman and a shipowner whereby the latter in consideration of the
seaman's forbearance to press his maritime right to maintenance and cure
promised to assume the consequences of improper treatment of the seaman
at a Public Health Service Hospital was held to be a maritime contract.
See also Archawski v. Hanioti, 350 U.S. 532 (1956).
\763\Insurance Co. v. Dunham, 11 Wall. (78 U.S.) 1, 31 (1871);
Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310 (1955).
Whether admiralty jurisdiction exists if the vessel is not engaged in
navigation or commerce when the insurance claim arises is open to
question. Jeffcott v. Aetna Ins. Co., 129 F. 2d 582 (2d Cir.), cert.
den., 317 U.S. 663 (1942). Contracts and agreements to procure marine
insurance are outside the admiralty jurisdiction. Compagnie Francaise De
Navigation A Vapeur v. Bonnasse, 19 F. 2d 777 (2d Cir., 1927).
\764\Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638 (1900). For
recent Court difficulties with exculpatory features of such contracts,
see Bisso v. Inland Waterways Corp., 349 U.S. 85 (1955); Boston Metals
Co. v. The Winding Gulf, 349 U.S. 122 (1955); United States v. Nielson,
349 U.S. 129 (1955); Southwestern Sugar & Molasses Co. v. River
Terminals Corp., 360 U.S. 411 (1959); Dixilyn Drilling Corp. v. Crescent
Towage & Salvage Co., 372 U.S. 697 (1963).
\765\Atlee v. Packet Co., 21 Wall. (88 U.S.) 389 (1875); Ex
parte McNiel, 13 Wall. (80 U.S.) 236 (1872). See also Sun Oil v. Dalzell
Towing Co., 287 U.S. 291 (1932).
\766\The Grapeshot, 9 Wall. (76 U.S.) 129 (1870); O'Brien v.
Miller, 168 U.S. 287 (1897); The Aurora, 1 Wheat. (14 U.S.) 94 (1816);
Delaware Mut. Safety Ins. Co. v. Gossler, 96 U.S. 645 (1877). But
ordinary mortgages even though the securing property is a vessel, its
gear, or cargo are not considered maritime contracts. Bogart v. The
Steamboat John Jay, 17 How. (58 U.S.) 399 (1854); Detroit Trust Co. v.
The Thomas Barlum, 293 U.S. 21, 32 (1934).
\767\New Bedford Dry Dock Co. v. Purdy, 258 U.S. 96 (1922); The
General Smith, 4 Wheat. (17 U.S.) 438 (1819). There is admiralty
jurisdiction even though the repairs are not be be made in navigable
waters but, perhaps, in dry dock. North Pacific SS. Co. v. Hall Brothers
Marine R. & S. Co., 249 U.S. 119 (1919). But contracts and agreements
pertaining to the original construction of vessels are not within
admiralty jurisdiction. Peoples Ferry Co. v. Joseph Beers, 20 How. (61
U.S.) 393 (1858); North Pacific S.S. Co. v. Hall Brothers Marine R. & S.
Co., supra, 127.
\768\New Jersey Steam Navigation Co. v. Merchants' Bank of
Boston, 6 How. (47 U.S.) 344 (1848).
\769\Ex Parte Easton, 95 U.S. 68 (1877).
\770\Andrews v. Wall, 3 How. (44 U.S.) 568 (1845).
\771\Janney v. Columbia Ins. Co., 10 Wheat. (23 U.S.) 411, 412,
415, 418 (1825); The Tilton, 23 Fed. Cas. 1277 (No. 14054) (C.C.D. Mass.
1830) (Justice Story).
\772\Ex parte Easton, 95 U.S. 68, 72 (1877). See, for a clearing
away of some conceptual obstructions to the principle, Exxon Corp. v.
Central Gulf Lines, Inc., 500 U.S. 603 (1991).
\773\E.g., DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776)
(C.C.D. Mass. 1815) (Justice Story); The Steamboat Orleans v. Phoebus,
11 Pet. (36 U.S.) 175, 183 (1837); The People's Ferry Co. v. Joseph
Beers, 20 How. (61 U.S.) 393, 401 (1858); New England Marine Ins. Co. v.
Dunham, 11 Wall. (78 U.S.) 1, 26 (1870); Detriot Trust Co. v. The Thomas
Barlum, 293 U.S. 21, 48 (1934).
\774\Kossick v. United Fruit Co., 365 U.S. 731, 735 (1961).
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Maritime torts include injuries to persons,\775\ damages to
property arising out of collisions or other negligent acts,\776\ and
violent dispossession of property.\777\ The Court has expresed a
willingness to ``recogniz[e] products liability, including strict
liability, as part of the general maritime law.''\778\ Unlike contract
cases, maritime tort jurisdiction historically depended exclusively upon
the commission
[[Page 734]]
of the wrongful act upon navigable waters, regardless of any connection
or lack of connection with shipping or commerce.\779\ The Court has now
held, however, that in addition to the requisite situs a significant
relationship to traditional maritime activity must exist in order for
the admiralty jurisdiction of the federal courts to be invoked.\780\
Both the Court and Congress have created exceptions to the situs test
for maritime tort jurisdiction to extend landward the occasions for
certain connected persons or events to come within admiralty, not
without a little controversy.\781\
\775\The City of Panama, 101 U.S. 453 (1880). Reversing a long-
standing rule, the Court allowed recovery under general maritime law for
the wrongful death of a seaman. Moragne v. States Marine Lines, 398 U.S.
375 (1970); Miles v. Apex Marine Corp., 498 U.S. 19 (1991).
\776\The Raithmoor, 241 U.S. 166 (1916); Erie R.R. Co. v. Erie
Transportation Co., 204 U.S. 220 (1907)
\777\L'Invincible, 1 Wheat (14 U.S.) 238 (1816); In re Fassett,
142 U.S. 479 (1892).
\778\East River Steamship Corp. v. Transamerica Delaval, 476
U.S. 858 (1986) (holding, hoever, that there is no products liability
action in admiralty for purely economic injury to the product itself,
unaccompanied by personal injury, and that such actions should be based
on the contract law of warranty).
\779\DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D.
Mass. 1815) (Justice Story); Philadelphia, W. & B. R.R. v. Philadelphia
& Havre De Grace Steam Towboat Co., 23 How. (64 U.S.) 209, 215 (1859);
The Plymouth, 3 Wall. (70 U.S.) 20, 33-34 (1865); Grant Smith-Porter
Ship Co. v. Rohde, 257 U.S. 469, 476 (1922).
\780\Executive Jet Aviation v. City of Cleveland, 409 U.S. 249
(1972) (plane crash in which plane landed wholly fortuitously in
navigable waters off the airport runway not in admiralty jurisdiction).
However, so long as there is maritime activity and a general maritime
commercial nexus, admiralty jurisdiction exists. Foremost Ins. Co. v.
Richardson, 457 U.S. 668 (1982) (collision of two pleasure boats on
navigable waters is within admiralty juridiction); Sisson v. Ruby, 497
U.S. 358 (1990) (fire on pleasure boat docked at marina on navigable
water).
\781\Thus, the courts have enforced seamen's claims for
maintenance and cure for injuries incurred on land. O'Donnell v. Great
Lakes Dredge & Dock Co., 318 U.S. 36, 41-42 (1943). The Court has
applied the doctrine of seaworthiness to permit claims by longshoremen
injured on land because of some condition of the vessel or its cargo.
Gutierrez v. Waterman S.S. Corp., 373 U.S. 206 (1963); Seas Shipping Co.
v. Sieracki, 328 U.S. 85 (1946); Mahnich v. Southern S.S. Co., 321 U.S.
96 (1944). But see Victory Carriers v. Law, 404 U.S. 202 (1971). In the
Jones Act, 41 Stat. 1007, 46 U.S.C. Sec. 688, Congress gave seamen, or
their personal representatives, the right to seek compensation from
their employers for personal injuries arising out of their maritime
employment. Respecting who is a seaman for Jones Act purposes, see
Southwest Marine, Inc. v. Gizoni, 112 S.Ct. 486 (1991); McDermott
International, Inc. v. Wilander, 498 U.S. 337 (1991). The rights exist
even if the injury occurred on land. O'Donnell v. Great Lakes Dredge &
Dock Co., supra, 43; Swanson v. Mara Brothers, 328 U.S. 1, 4 (1946). In
the Extension of Admiralty Jurisdiction Act, 62 Stat. 496, 46 U.S.C.
Sec. 740, Congress provided an avenue of relief for persons injured in
themselves or their property by action of a vessel on navigable water
which is consummated on land, as by the collision of a ship with a
bridge. By the 1972 amendments to the Longshoremen's and Harbor Workers'
Compensation Act, 86 Stat. 1251, amending 33 U.S.C. Sec. Sec. 901-950,
Congress broadened the definition of ``navigable waters'' to include in
certain cases adjoining piers, wharfs, etc., and modified the definition
of ``employee'' to mean any worker ``engaged in maritime employment''
within the prescribed meanings, thus extending the Act shoreward and
changing the test of eligibility from ``situs'' alone to the ``situs''
of the injury and the ``status'' of the injured.
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From the earliest days of the Republic, the federal courts
sitting in admiralty have been held to have exclusive jurisdiction of
prize cases.\782\ Also, in contrast to other phases of admiralty
jurisdiction, prize law as applied by the British courts continued to
provide the basis of American law so far as practicable,\783\ and so far
[[Page 735]]
as it was not modified by subsequent legislation, treaties, or executive
proclamations. Finally, admiralty and maritime jurisdiction comprises
the seizure and forfeiture of vessels engaged in activities in violation
of the laws of nations or municipal law, such as illicit trade,\784\
infraction of revenue laws,\785\ and the like.\786\
\782\Jennings v. Carson, 4 Cr. (8 U.S.) 2 (1807); Taylor v.
Carryl, 20 How. (61 U.S.) 583 (1858).
\783\Thirty Hogsheads of Sugar v. Boyle, 9 Cr. (13 U.S.) 191
(1815); The Siren, 13 Wall. (80 U.S.) 389, 393 (1871).
\784\Hudson v. Guestier, 4 Cr. (8 U.S.) 293 (1808).
\785\The Vengence, 3 Dall. (3 U.S.) 297 (1796); Church v.
Hubbard, 2 Cr. (6 U.S.) 187 (1804); The Schooner Sally, 2 Cr. (6 U.S.)
406 (1805).
\786\The Brig Ann, 9 Cr. (13 U.S.) 289 (1815); The Sarah, 8
Wheat. (21 U.S.) 391 (1823); Maul v. United States, 274 U.S. 501 (1927).
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Admiralty Proceedings.--Procedure in admiralty jurisdiction
differs in few respects from procedure in actions at law, but the
differences that do exist are significant.\787\ Suits in admiralty
traditionally took the form of a proceeding in rem against the vessel,
and, with exceptions to be noted, such proceedings in rem are confined
exclusively to federal admiralty courts, because the grant of exclusive
jurisdiction to the federal courts by the Judiciary Act of 1789 has been
interpreted as referring to the traditional admiralty action, the in rem
action, which was unknown to the common law.\788\ The savings clause in
that Act under which a state court may entertain actions by suitors
seeking a common-law remedy preserves to the state tribunals the right
to hear actions at law where a common-law remedy or a new remedy
analogous to a common-law remedy exists.\789\ Concurrent jurisdiction
thus exists for the adjudication of in personam maritime causes of
action against the owner of the vessel, and a plaintiff may ordinarily
choose whether to bring his action in a state court or a federal court.
\787\G. Gilmore and C. Black, op. cit., n. 744, 30-33. There are
no longer separate rules of procedure governing admiralty, unification
of civil admiralty procedures being achieved in 1966. 7A J. Moore's
Federal Practice (New York: 1971), Sec. .01 et seq.
\788\The Moses Taylor, 4 Wall. (71 U.S.) 411 (1866); The Hine v.
Trevor, 4 Wall. (71 U.S.) 555 (1867). But see Taylor v. Carryl, 20 How.
(61 U.S.) 583 (1858). In Madruga v. Superior Court, 346 U.S. 556 (1954),
the jurisdiction of a state court over a partition suit at the instance
of the majority shipowners was upheld on the ground that the cause of
action affected only the interest of the defendant minority shipowners
and therefore was in personam. Justice Frankfurter's dissent argued:
``If this is not an action against the thing, in the sense which that
has meaning in the law, then the concepts of a res and an in rem
proceeding have an esoteric meaning that I do not understand.'' Id.,
564.
\789\After conferring ``exclusive'' jurisdiction in admiralty
and maritime cases on the federal courts, Sec. 9 of the Judiciary Act of
1789, 1 Stat. 77, added ``saving to suitors, in all cases the right of a
common law remedy, where the common law is competent to give it; . . .''
Fixing the concurrent federal-state line has frequently been a source of
conflict within the court. Southern Pacific Co. v. Jensen, 244 U.S. 205
(1917).
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Forfeiture to the crown for violation of the laws of the
sovereign was in English law an exception to the rule that admiralty has
exclusive jurisdiction over in rem maritime actions and was
[[Page 736]]
thus considered a common-law remedy. Although the Supreme Court
sometimes has used language that would confine all proceedings in rem to
admiralty courts,\790\ such actions in state courts have been sustained
in cases of forfeiture arising out of violations of state law.\791\
\790\The Moses Taylor, 4 Wall. (71 U.S.) 411, 431 (1867).
\791\C. J. Henry Co. v. Moore, 318 U.S. 133 (1943).
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Perhaps the most significant admiralty court difference in
procedure from civil courts is the absence of a jury trial in admiralty
actions, with the admiralty judge trying issues of fact as well as of
law.\792\ Indeed, the absence of a jury in admiralty proceedings appears
to have been one of the principal reasons why the English government
vested a broad admiralty jurisdiction in the colonial vice-admiralty
courts, since they provided a forum where the English authorities could
enforce the Navigation Laws without ``the obstinate resistance of
American juries.''\793\
\792\The Vengeance, 3 Dall. (3 U.S.) 297 (1796); The Schooner
Sally, 2 Cr. (6 U.S.) 406 (1805); The Schooner Betsy, 4 Cr. (8 U.S.) 443
(1808); The Whelan, 7 Cr. (11 U.S.) 112 (1812); The Samuel, 1 Wheat. (14
U.S.) 9 (1816). If diversity of citizenship and the requisite
jurisdictional amounts are present, a suitor may sue on the ``law side''
of the federal court and obtain a jury. Romero v. International Terminal
Operating Co. 358 U.S. 354, 362-363 (1959). Jones Act claims, 41 Stat.
1007 (1920), 46 U.S.C. Sec. 688, may be brought on the ``law side'' with
a jury, Panama R.R. Co. v. Johnson, 264 U.S. 375 (1924), and other
admiralty claims joined with a Jones Act claim may be submitted to a
jury. Romero v. International Terminal Operating Co., supra; Fitzgerald
v. United States Lines Co., 374 U.S. 16 (1963). There is no
constitutional barrier to congressional provision of jury trials in
admiralty. Genessee Chief v. Fitzhugh, 12 How. (53 U.S.) 443 (1851);
Fitzgerald v. United States Lines Co., supra, 20.
\793\C. J. Henry Co. v. Moore, 318 U.S. 133, 141 (1943).
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Territorial Extent of Admiralty and Maritime Jurisdiction.--
Although he was a vigorous exponent of the expansion of admiralty
jurisdiction, Justice Story for the Court in The Steamboat Thomas
Jefferson\794\ adopted a restrictive English rule confining admiralty
jurisdiction to the high seas and upon rivers as far as the ebb and flow
of the tide extended.\795\ The demands of commerce on western waters led
Congress to enact a statute extending admiralty jurisdiction over the
Great Lakes and connecting waters,\796\ and in The Genessee Chief v.
Fitzhugh\797\ Chief Justice Taney overruled The Thomas Jefferson and
dropped the tidal ebb and flow requirement. This ruling laid the basis
for subsequent judicial extension of jurisdiction over all waters, salt
or fresh, tidal
[[Page 737]]
or not, which are navigable in fact.\798\ Some of the older cases
contain language limiting jurisdiction to navigable waters which form
some link in an interstate or international waterway or some link in
commerce,\799\ but these date from the time when it was thought the
commerce power furnished the support for congressional legislation in
this field.
\794\10 Wheat. (23 U.S.) 428 (1825). On the political background
of this decision, see 1 C. Warren, op. cit., n.18, 633-635.
\795\The tidal ebb and flow limitation was strained in some of
its applications. Peyroux v. Howard, 7, Pet. (32 U.S.) 324 (1833);
Waring v. Clarke, 5 How. (46 U.S.) 441 (1847).
\796\5 Stat. 726 (1845).
\797\12 How. (53 U.S.) 443 (1851).
\798\Some of the early cases include The Magnolia, 20 How. (61
U.S.) 296 (1857); The Eagle, 8 Wall. (75 U.S.) 15 (1868); The Daniel
Ball, 10 Wall. (77 U.S.) 557 (1871). The fact that the body of water is
artificial presents no barrier to admiralty jurisdiction. Ex parte
Boyer, 109 U.S. 629 (1884); The Robert W. Parsons, 191 U.S. 17 (1903).
In United States v. Apalachian Power Co., 311 U.S. 377 (1940), it was
made clear that maritime jurisdiction extends to include waterways which
by reasonable improvement can be made navigable. ``It has long been
settled that the admiralty and maritime jurisdiction of the United
States includes all navigable waters within the country.'' Southern S.S.
Co. v. NLRB, 316 U.S. 31, 41 (1942).
\799\E.g., The Daniel Ball, 10 Wall. (77 U.S.) 557, 563 (1870);
The Montello, 20 Wall. (87 U.S.) 430, 441-442 (1874).
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Admiralty and Federalism.--Extension of admiralty and maritime
jurisdiction to navigable waters within a State does not, however, of
its own force include general or political powers of government. Thus,
in the absence of legislation by Congress, the States through their
courts may punish offenses upon their navigable waters and upon the sea
within one marine league of the shore.\800\
\800\United States v. Bevans, 3 Wheat. (16 U.S.) 336 (1818);
Manchester v. Massachusetts, 139 U.S. 240 (1891).
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Determination of the boundaries of admiralty jurisdiction is a
judicial function, and ``no State law can enlarge it, nor can an act of
Congress or a rule of court make it broader than the judicial power may
determine to be its true limits.''\801\ But, as with other jurisdictions
of the federal courts, admiralty jurisdiction can only be exercised
under acts of Congress vesting it in federal courts.\802\
\801\The Steamer St. Lawrence, 1 Bl. (66 U.S.) 522, 527 (1862).
\802\Janney v. Columbia Ins. Co., 10 Wheat. (23 U.S.) 411, 418
(1825); The Lottawanna, 21 Wall. (88 U.S.) 558, 576 (1875).
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The boundaries of federal and state competence, both legislative
and judicial, in this area remain imprecise, and federal judicial
determinations have notably failed to supply definiteness. During the
last century, the Supreme Court generally permitted two overlapping
systems of law to coexist in an uneasy relationship. The federal courts
in admiralty applied the general maritime law,\803\ supplemented in some
instances by state law which created and defined certain causes of
action.\804\ Because the Judiciary Act of 1789
[[Page 738]]
saved to suitors common-law remedies, persons suing in state courts or
in federal courts in diversity of citizenship actions could look to
common-law and statutory doctrines for relief in maritime-related cases
in which the actions were noticeable.\805\ In Southern Pacific Co. v.
Jensen,\806\ a sharply divided Court held that New York could not
constitutionally apply its workmen's compensation system to employees
injured or killed on navigable waters. For the Court, Justice McReynolds
reasoned ``that the general maritime law, as accepted by the federal
courts, constituted part of our national law, applicable to matters
within the admiralty and maritime jurisdiction.''\807\ Recognizing that
``it would be difficult, if not impossible, to define with exactness
just how far the general maritime law may be changed, modified or
affected by state legislation,'' still it was certain that ``no such
legislation is valid if it works material prejudice to the
characteristic features of the general maritime law, or interferes with
the proper harmony or uniformity of that law in its international and
interstate relations.''\808\ The ``savings to suitors'' clause was
unavailing because the workmen's compensation statute created a remedy
``of a character wholly unknown to the common law, incapable of
enforcement by the ordinary process of any court, and is not saved to
suitors from the grant of exclusive jurisdiction.''\809\
\803\E.g., New Jersey Steam Navigation Co. v. Merchants' Bank of
Boston, 6 How. (47 U.S.) 344 (1848); The Steamboat New York v. Rea, 18
How. (59 U.S.) 223 (1856); The China, 7 Wall. (74 U.S.) 53 (1868); Ex
parte McNiel, 13 Wall. (80 U.S.) 236 (1872); La Bourgogne, 210 U.S. 95
(1908).
\804\The General Smith, 4 Wheat. (17 U.S.) 438 (1819); The
Lottawanna, 21 Wall. (88 U.S.) 558 (1875) (enforcing state laws giving
suppliers and repairmen liens on ships supplied and repaired). Another
example concerns state created wrongful death actions. The Hamilton, 207
U.S. 398 (1907).
\805\E.g., Hazard's Administrator v. New England Marine Ins.
Co., 8 Pet. (33 U.S.) 557 (1834); The Belfast, 7 Wall. (74 U.S.) 624
(1869); American Steamboat Co. v. Chase, 16 Wall. (83 U.S.) 522 (1872);
Quebec Steamship Co. v. Merchant, 133 U.S. 375 (1890); Belden v. Chase,
150 U.S. 674 (1893); Homer Ramsdell Transp. Co. v. La Compagnie Gen.
Transatlantique, 182 U.S. 406 (1901).
\806\244 U.S. 205 (1917). The worker here had been killed, but
the same result was reached in a case of nonfatal injury. Clyde S.S.
Co., v. Walker, 244 U.S. 255 (1917). In Chelentis v. Luckenbach S.S.
Co., 247 U.S. 372 (1918), the Jensen holding was applied to preclude
recovery in a negligence action against the injured party's employer
under state law. Under The Osceola, 189 U.S. 158 (1903), the employee
had a maritime right to wages, maintenance, and cure.
\807\Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917).
\808\Id., 216.
\809\Id., 218. There were four dissenters, Justices Holmes,
Brandeis, Clarke, and Pitney. The Jensen dissent featured such Holmesian
epigrams as: ``Judges do and must legislate, but they can do so only
interstitially: they are confined from molar to molecular motions,''
id., 221, and the famous statement supporting the assertion that
supplementation of maritime law had to come from state law inasmuch as
``the common law is not a brooding omnipresence in the sky, but the
articulate voice of some sovereign or quasi-sovereign that can be
identified. It always is the law of some state.'' Id., 222.
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Congress required three opportunities to legislate to meet the
problem created by the decision, the lack of remedy for maritime workers
to recover for injuries resulting from the negligence of their
employers. First, Congress enacted a statute saving to claim
[[Page 739]]
ants their rights and remedies under state workmen's compensation
laws.\810\ The Court invalidated it as an unconstitutional delegation of
legislative power to the States. ``The Constitution itself adopted and
established, as part of the laws of the United States, approved rules of
the general maritime law and empowered Congress to legislate in respect
of them and other matters within the admiralty and maritime
jurisdiction. Moreover, it took from the States all power, by
legislation or judicial decision, to contravene the essential purposes
of, or to work material injury to, characteristic features of such law
or to interfere with its proper harmony and uniformity in its
international and interstate relations.''\811\ Second, Congress
reenacted the law but excluded masters and crew members of vessels from
those who might claim compensation for maritime injuries.\812\
\810\40 Stat. 395 (1917).
\811\Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 (1920).
The decision was again five-to-four with the same dissenters.
\812\42 Stat. 634 (1922).
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The Court found this effort unconstitutional as well, since
``the manifest purpose [of the statute] was to permit any state to alter
the maritime law, and thereby introduce conflicting requirements.''\813\
Finally, Congress passed the Longshoremen's and Harbor Workers'
Compensation Act, which provided accident compensation for injuries,
including those resulting in death, sustained on navigable waters by
employees, other than members of the crew, whenever ``recovery . . . may
not validly be provided by State law.''\814\
\813\Washington v. Dawson & Co., 264 U.S. 219, 228 (1924).
Holmes and Brandeis remained of the four dissenters and again dissented.
\814\44 Stat. 1424 (1927), as amended, 33 U.S.C. Sec. Sec. 901-
950.
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With certain exceptions,\815\ the federal-state conflict since
Jensen has taken place with regard to three areas: (1) the
interpretation of federal and state bases of relief for injuries and
death as affected by the Longshoremen's and Harbor Workers' Compensation
Act; (2) the interpretation of federal and state bases of relief for
personal injuries by maritime workers as affected by the Jones Act; and
(3) the application of state law to permit recovery in mari
[[Page 740]]
time wrongful death cases in which until recently there was no federal
maritime right to recover.\816\
\815\E.g. Maryland Casualty Co. v. Cushing, 347 U.S. 409 (1954)
(state direct action statute applies against insurers implicated in a
marine accident); Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S.
310 (1955) (state statute determines effect of breach of warranty in
marine insurance contract); Southwestern Sugar & Molasses Co. v. River
Terminals Corp., 360 U.S. 411 (1959); Bisso v. Inland Waterways Corp.,
349 U.S. 85 (1955) (federal rather than state law determines effect of
exculpatory provisions in towage contracts); Kossick v. United Fruit
Co., 365 U.S. 731 (1961) (state statute of frauds inapplicable to oral
contract for medical care between seaman and employer).
\816\Jensen, though much criticized, is still the touchstone of
the decisional process in this area with its emphasis on the general
maritime law. E.g., Pope & Talbot v. Hawn, 346 U.S. 406 (1953); Kermarec
v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959). In Askew v.
American Waterways Operators, 411 U.S. 325, 337-344 (1973), the Court,
in holding that the States may constitutionally exercise their police
powers respecting maritime activities concurrently with the Federal
Government, such as by providing for liability for oil spill damages,
noted that Jensen and its progeny, while still possessing vitality, have
been confined to their facts; thus, it is only with regard ``to suits
relating to the relationship of vessels, plying the high seas and our
navigable waters, and to their crews'' that state law is proscribed.
Id., 344. See also Sun Ship v. Pennsylvania, 447 U.S. 715 (1980).
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(1) The principal difficulty here was that after Jensen the
Supreme Court did not maintain the line between permissible and
impermissible state-authorized recovery at the water's edge but created
a ``maritime but local'' exception, by which some injuries incurred in
or on navigable waters could be compensated under state workmen's
compensation laws or state negligence laws.\817\ ``The application of
the State Workmen's Compensation Acts has been sustained where the work
of the employee has been deemed to have no direct relation to navigation
or commerce and the operation of the local law `would work no material
prejudice to the essential features of the general maritime law.'''\818\
Because Congress provided in the Longshoremen's and Harbor Workers'
Compensation Act for recovery under the Act ``if recovery . . . may not
validly be provided by State law,''\819\ it was held that the ``maritime
but local'' exception had been statutorily perpetuated,\820\ thus
creating the danger for injured workers or their survivors that they
might choose to seek relief by the wrong avenue to their prejudice. This
danger was susequently removed by the Court when it recognized that
there was a ``twilight zone,'' a ``shadowy area,'' in which recovery
under either the federal law or a state law could be justified and
forthwith held that in such a ``twilight zone'' the injured party should
be enabled to recover under either.\821\ Then, in Calbeck v. Travel
[[Page 741]]
ers Ins. Co.,\822\ the Court virtually read out of the Act its
inapplicability when compensation would be afforded by state law and
held that Congress' intent in enacting the statute was to extend
coverage to all workers who sustain injuries while on navigable waters
of the United States whether or not a particular injury was also within
the constitutional reach of a state workmen's compensation law or other
law. By the 1972 amendments to the LHWCA, Congress extended the law
shoreward by refining the tests of ``employee'' and ``navigable
waters,'' so as to reach piers, wharfs, and the like in certain
circumstances.\823\
\817\Western Fuel Co. v. Garcia, 257 U.S. 233 (1921); Grant-
Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922); State Industrial
Comm. v. Nordenholt Corp., 259 U.S. 263 (1922); Miller's Indemnity
Underwriters v. Braud, 270 U.S. 59 (1926). The exception continued to be
applied following enactment of the Longshoremen's and Harbor Workers'
Compensation Act. See cases cited in Davis v. Dept. of Labor and
Industries, 317 U.S. 249, 253-254 (1942).
\818\Crowell v. Benson, 285 U.S. 22, 39 n. 3 (1932). The
internal quotation is from Western Fuel Co. v. Garcia, 257 U.S. 233, 242
(1921).
\819\Sec. 3(a), 44 Stat. 1424 (1927), 33 U.S.C. Sec. 903(a).
\820\Crowell v. Benson, 284 U.S. 22, 39, (1932); Davis v. Dept.
of Labor and Industries, 317 U.S. 249, 252-253 (1942).
\821\Davis v. Dept of Labor and Industries, 317 U.S. 249 (1942).
The quoted phrases appear at id, 253, 256. See also Hahn v. Ross Island
Sand & Gravel Co., 358 U.S. 272 (1959).
\822\370 U.S. 114 (1962). In the 1972 amendments, Sec. 2, 86
Stat. 1251, amending 33 U.S.C. Sec. 903(a), Congress ratified Calbeck by
striking out ``if recovery . . . may not validly be provided by State
law.''
\823\86 Stat. 1251, Sec. 2, amending 33 U.S.C. Sec. 902. The
Court had narrowly turned back an effort to achieve this result through
construction in Nacierema Operating Co. v. Johnson, 396 U.S. 212 (1969).
See also Victory Carriers v. Law, 404 U.S. 202 (1971). On the
interpretation of the amendments, see Northeast Marine Terminal Co. v.
Caputo, 432 U.S. 249 (1977); Director, Office of Workers Compensation
Programs v. Perini, 459 U.S. 297 (1983).
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(2) The passage of the Jones Act\824\ gave seamen a statutory
right of recovery for negligently inflicted injuries on which they could
sue in state or federal courts. Because injured parties could obtain a
jury trial in Jones Act suits, there was little attempted recourse under
the savings clause\825\ to state law claims and thus no need to explore
the line between applicable and inapplicable state law. But in the 1940s
personal injury actions based on unseaworthiness\826\ were given new
life by Court decisions for seamen,\827\ and the right was soon extended
to longshoremen who were injured while on board ship or while working on
the dock if the injury could be attributed either to the ship's gear or
its cargo.\828\ While these actions could have been brought in state
court, federal law supplanted state law even with regard to injuries
[[Page 742]]
sustained in state territorial waters.\829\ The 1972 LHWCA amendments,
however, eliminated unseaworthiness recoveries by persons covered by the
Act and substituted a recovery for injuries caused by negligence under
the LHWCA itself.\830\
\824\41 Stat. 1007 (1920), 46 U.S.C. Sec. 688. For the prior-
Jones Act law, see The Osceola, 189 U.S. 158 (1903)
\825\Supra, pp.728-729; p.735, n.789.
\826\Unseaworthiness ``is essentially a species of liability
without fault, analogous to other well known instances in our law.
Derived from and shaped to meet the hazards which performing the service
imposes, the liability is neither limited by conceptions of negligence
nor contractual in character. . . . [T]he owner's duty to furnish a
seaworthy ship is absolute and completely independent of his duty under
the Jones Act to exercise reasonable care.'' Mitchell v. Trawler Racer,
362 U.S. 539, 549 (1960).
\827\Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944). See also
Mitchell v. Trawler Racer, 362 U.S. 539 (1960); Michalic v. Cleveland
Tankers, 364 U.S. 325 (1960); Waldron v. Moore-McCormack Lines, 386 U.S.
724 (1967).
\828\Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946); Pope &
Talbot v. Hawn, 346 U.S. 406 (1953); Alaska S.S. Co. v. Patterson, 347
U.S. 396 (1954); Gutierrez v. Waterman S.S. Corp., 373 U.S. 206 (1963);
But see Usner v. Luckenback Overseas Corp., 400 U.S. 494 (1971); Victory
Carriers v. Law, 404 U.S. 202 (1971).
\829\Garrett v. Moore-McCormack Co., 317 U.S. 239 (1942);
McAllister v. Magnolia Petroleum Co., 357 U.S. 221 (1958); Kermarec v.
Compagnie Generale Transatlantique, 338 U.S. 625 (1959).
\830\86 Stat. 1263, Sec. 18, amending 33 U.S.C. Sec. 905. On the
negligence standards under the amendment, see Scindia Steam Navigation
Co., v. De Los Santos, 451 U.S. 156 (1981).
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(3) In The Harrisburg,\831\ the Court held that maritime law did
not afford an action for wrongful death, a position to which the Court
adhered until quite recently.\832\ The Jones Act,\833\ the Death on the
High Seas Act,\834\ and the Longshoremen's and Harbor Workers'
Compensation Act\835\ created causes of action for wrongful death, but
for cases not falling within one of these laws the federal courts looked
to state wrongful death and survival statutes.\836\ Thus, in The Tungus
v. Skovgaard,\837\ the Court held that a state wrongful death statute
encompassed claims both for negligence and unseaworthiness in the
instance of a land-based worker killed when on board ship in navigable
water; the Court divided five-to-four, however, in holding that the
standards of the duties to furnish a seaworthy vessel and to use due
care were created by the state law as well and not furnished by general
maritime con
[[Page 743]]
cepts.\838\ And in Hess v. United States,\839\ embracing a suit under
the Federal Tort Claims Act for recovery for a death by drowning in a
navigable Oregon river of an employee of a contractor engaged in
repairing the federally-owned Bonneville Dam, a divided Court held that
liability was to be measured by the standard of care expressed in state
law, notwithstanding that the standard was higher than that required by
maritime law. One area existed, however, in which beneficiaries of a
deceased seaman were denied recovery.
\831\119 U.S. 199 (1886). Subsequent cases are collected in
Moragne v. States Marine Lines, 398 U.S. 375 (1970).
\832\Moragne v. States Marine Lines, 398 U.S. 375 (1970).
\833\41 Stat. 1007 (1920). 46 U.S.C. Sec. 688. Recovery could be
had if death resulted from injuries because of negligence but not from
unseaworthiness.
\834\41 Stat. 537 (1920), 46 U.S.C. Sec. 761 et seq. The Act
applies to deaths caused by negligence occurring on the high seas beyond
a marine league from the shore of any State. In Rodrique v. Aetna
Casualty & Surety Co., 395 U.S. 352 (1969), a unanimous Court held that
this Act did not apply in cases of deaths on the artificial islands
created on the continental shelf for oil drilling purposes but that the
Outer Continental Shelf Lands Act, 67 Stat. 462 (1953), 43 U.S.C.
Sec. 1331 et seq., incorporated the laws of the adjacent State, so that
Louisiana law governed. See also Chevron Oil Co. v. Huson, 404 U.S. 97
(1971); Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981).
However, in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986),
the Court held that the Act is the exclusive wrongful death remedy in
the case of OCS platform workers killed in a helicopter crash 35 miles
off shore en route to shore from a platform.
\835\44 Stat. 1424 (1927), as amended, 33 U.S.C. Sec. Sec. 901-
950.
\836\Western Fuel Co. v. Garcia, 257 U.S. 233 (1921); Just v.
Chambers, 312 U.S. 383 (1941); Levinson v. Deupree. 345 U.S. 648 (1953).
\837\358 U.S. 588 (1959).
\838\Justice Brennan, joined by Chief Justice Warren and
Justices Black and Douglas, argued that the extent of the duties owed
the decedent while on board ship should be governed by federal maritime
law, though the cause of action originated in a state statute, just as
would have been the result had decedent survived his injuries. See also
United N.Y. & N.J. Sandy Hooks Pilot Assn. v. Halecki, 358 U.S. 613
(1959).
\839\361 U.S. 314 (1960). The four Tungus dissenters joined two
of the Tungus majority solely ``under compulsion'' of the Tungus ruling;
the other three majority Justices dissented on the ground that
application of the state statute unacceptably disrupted the uniformity
of maritime law.
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The Jones Act provided a remedy for wrongful death resulting
from negligence but not for one caused by unseaworthiness alone; in
Gillespie v. United States Steel Corp.,\840\ the Court held that the
survivors of a seaman drowned while working on a ship docked in an Ohio
port could not recover under the state wrongful death statute even
though the act recognized unseaworthiness as a basis for recovery, the
Jones Act having superseded state laws.
\840\379 U.S. 148 (1964). The decision was based on dictum in
Lindgren v. United States, 281 U.S. 38 (1930), to the effect that the
Jones Act remedy was exclusive.
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Thus did matters stand until 1970 when the Court, in a unanimous
opinion in Moragne v. States Marine Lines\841\ overruled its earlier
cases and held that a right of recovery for wrongful death is sanctioned
by general maritime law and that no statute is needed to bring the right
into being. The Court was careful to note that the cause of action
created in Moragne would not, like the state wrongful death statutes in
Gillespie, be held precluded by the Jones Act, so that the survivor of a
seaman killed in navigable waters within a State would have a cause of
action for negligence under the Jones Act or for unseaworthiness under
the general maritime law.\842\
\841\398 U.S. 375 (1970).
\842\Id., 396 n. 12. For development of the law under Moragne,
see Sea-Land Services v. Gaudet, 414 U.S. 573 (1974); Miles v. Apex
Marine Corp., 498 U.S. 19 (1990).
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Cases to Which the United States Is a Party
Right of the United States to Sue.--In the first edition of his
Treatise, Justice Story noted that while ``an express power is no where
given in the constitution,'' the right of the United States to
[[Page 744]]
sue in its own courts ``is clearly implied in that part respecting the
judicial power. . . . Indeed, all the usual incidents appertaining to a
personal sovereign, in relation to contracts, and suing, and enforcing
rights, so far as they are within the scope of the powers of the
government, belong to the United States, as they do to other
sovereigns.''\843\ As early as 1818, the Supreme Court ruled that the
United States could sue in its own name in all cases of contract without
congressional authorization of such suits.\844\ Later, this rule was
extended to other types of actions. In the absence of statutory
provisions to the contrary, such suits are initiated by the Attorney
General in the name of the United States.\845\
\843\3 J. Story, Commentaries on the Constitution of the United
States (Boston: 1833), 1274 (emphasis in original).
\844\Dugan v. United States, 3 Wheat. (16 U.S.) 172 (1818).
\845\United States v. San Jacinto Tin Co., 125 U.S. 273 (1888);
United States v. Beebe, 127 U.S. 338 (1888); United States v. Bell
Telephone Co., 128 U.S. 315 (1888). Whether without statutory
authorization the United States may sue to protect the constitutional
rights of its citizens has occasioned conflict. Compare United States v.
Brand Jewelers, 318 F. Supp. 1293 (S.D.N.Y. 1970), and United States v.
Brittain, 319 F. Supp. 1658 (S.D.Ala. 1970), with United States v.
Mattson, 600 F.2d 1295 (9th Cir. 1979), and United States v. Solomon,
563 F.2d 1121 (4th Cir. 1977). The result in Mattson and Solomon was
altered by specific authorization in the Civil Rights of
Institutionalized Persons Act, P.L. 96-247, 94 Stat. 349 (1980), 42
U.S.C. Sec. 1997 et seq. And see United States v. City of Philadelphia,
644 F.2d 187 (3d Cir. 1980) (no standing to sue to correct allegedly
unconstitutional police practices).
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By the Judiciary Act of 1789, and subsequent amendments thereof,
Congress has vested in the federal district courts jurisdiction to hear
all suits of a civil nature at law or in equity brought by the United
States as party plaintiff.\846\ As in other judicial proceedings, the
United States, like any party plaintiff, must have an interest in the
subject matter and a legal right to the remedy sought.\847\ Under the
long settled principle that the courts have the power to abate public
nuisances at the suit of the Government, the provision in Sec. 208(2) of
the Labor Management Relations Act of 1949, authorizing federal courts
to enjoin strikes which imperil national health or safety was upheld for
the reason that the statute entrusts the courts with the determination
of a ``case or controversy'' on which the judicial power can operate and
does not impose any legislative, executive, or non-judicial function.
Moreover, the fact that the rights sought to be protected were those of
the public in unimpeded production in industries vital to public health,
as distinguished from the private rights of labor and management,
[[Page 745]]
was held not to alter the adversary (``case or controversy'') nature of
the litigation instituted by the United States as the guardian of the
aforementioned rights.\848\ Also, by reason of the highest public
interest in the fulfillment of all constitutional guarantees,
``including those that bear . . . directly on private rights, . . . it
[is] perfectly competent for Congress to authorize the United States to
be the guardian of that public interest in a suit for injunctive
relief.''\849\
\846\28 U.S.C. Sec. 1345. By virtue of the fact that the
original jurisdiction of the Supreme Court extends only to those cases
enumerated in the Constitution, jurisdiction over suits brought by the
United States against persons or corporation is vested in the lower
federal courts. But suits by the United States against a State may be
brought in the Supreme Court's original jurisdiction, 28 U.S.C.
Sec. 1251(b)(2), but may as well be brought in the district court. Case
v. Bowles, 327 U.S. 92, 97 (1946).
\847\United States v. San Jacinto Tin Co., 125 U.S. 273 (1888).
\848\United Steelworkers v. United States, 361 U.S. 39, 43-44
(1960), citing In re Debs, 158 U.S. 564 (1895).
\849\United States v. Raines, 362 U.S. 17, 27 (1960), upholding
jurisdiction of the federal court as to an action to enjoin state
officials from discriminating against African-American citizens seeking
to vote in state elections. See also Oregon v. Mitchell, 400 U.S. 112
(1970), in which two of the four cases considered were actions by the
United States to enjoin state compliance with the Voting Rights Act
Amendments of 1970.
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Suits Against States.--Controversies to which the United States
is a party include suits brought against States as party defendants. The
first such suit occurred in United States v. North Carolina,\850\ which
was an action by the United States to recover upon bonds issued by North
Carolina. Although no question of jurisdiction was raised, in deciding
the case on its merits in favor of the State, the Court tacitly assumed
that it had jurisdiction of such cases. The issue of jurisdiction was
directly raised by Texas a few years later in a bill in equity brought
by the United States to determine the boundary between Texas and the
Territory of Oklahoma, and the Court sustained its jurisdiction over
strong arguments by Texas to the effect that it could not be sued by the
United States without its consent and that the Supreme Court's original
jurisdiction did not extend to cases to which the United States is a
party.\851\ Stressing the inclusion within the judicial power of cases
to which the United States and a State are parties, the elder Justice
Harlan pointed out that the Constitution made no exception of suits
brought by the United States. In effect, therefore, consent to be sued
by the United States ``was given by Texas when admitted to the Union
upon an equal footing in all respects with the other States.''\852\
\850\136 U.S. 211 (1890).
\851\United States v. Texas, 143 U.S. 621 (1892).
\852\Id., 642-646. This suit, it may be noted, was specifically
authorized by the Act of Congress of May 2, 1890, providing for a
temporary government for the Oklahoma territory to determine the
ownership of Greer County. 26 Stat. 81, 92, Sec. 25. See also United
States v. Louisiana, 339 U.S. 699, 701-702 (1950).
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Suits brought by the United States have, however, been
infrequent. All of them have arisen since 1889, and they have become
somewhat more common since 1926. That year the Supreme Court decided a
dispute between the United States and Minnesota over
[[Page 746]]
land patents issued to the State by the United States in breach of its
trust obligations to the Indian.\853\ In United States v. West
Virginia,\854\ the Court refused to take jurisdiction of a suit in
equity brought by the United States to determine the navigability of the
New and Kanawha Rivers on the ground that the jurisdiction in such suits
is limited to cases and controversies and does not extend to the
adjudication of mere differences of opinion between the officials of the
two governments. A few years earlier, however, it had taken jurisdiction
of a suit by the United States against Utah to quiet title to land
forming the beds of certain sections of the Colorado River and its
tributaries with the States.\855\ Similarly, it took jurisdiction of a
suit brought by the United States against California to determine the
ownership of and paramount rights over the submerged land and the oil
and gas thereunder off the coast of California between the low-water
mark and the three-mile limit.\856\ Like suits were decided against
Louisiana and Texas in 1950.\857\
\853\United States v. Minnesota, 270 U.S. 181 (1926). For an
earlier suit against a State by the United States, see United States v.
Michigan, 190 U.S. 379 (1903).
\854\295 U.S. 463 (1935).
\855\United States v. Utah, 283 U.S. 64 (1931).
\856\United States v. California, 332 U.S. 19 (1947).
\857\United States v. Louisiana, 339 U.S. 699 (1950); United
States v. Texas, 339 U.S. 707 (1950). See also United States v. Maine,
420 U.S. 515 (1975)
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Immunity of the United States From Suit.--Pursuant to the
general rule that a sovereign cannot be sued in its own courts, it
follows that the judicial power does not extend to suits against the
United States unless Congress by general or special enactment consents
to suits against the Government. This rule first emanated in embryo form
in an obiter dictum by Chief Justice Jay in Chisholm v. Georgia, where
he indicated that a suit would not lie against the United States because
``there is no power which the courts can call to their aid.''\858\ In
Cohens v. Virginia,\859\ also by way of dictum, Chief Justice Marshal
asserted, ``the universally received opinion is that no suit can be
commenced or prosecuted against the United States.'' The issue was more
directly in question in United States v. Clarke,\860\ where Chief
Justice Marshall stated that as the United States is ``not suable of
common right, the party who institutes such suit must bring his case
within the authority of some act of Congress, or the court cannot
exercise jurisdiction over it.'' He thereupon ruled that the act of May
26, 1830, for the final settlement of land claims in Florida condoned
the suit. The doctrine of the exemption of the United States from suit
was repeated in various subsequent cases, without discussion or examina
[[Page 747]]
tion.\861\ Indeed, it was not until United States v. Lee\862\ that the
Court examined the rule and the reasons for it, and limited its
application accordingly.
\858\2 Dall. (2 U.S.) 419, 478 (1793).
\859\6 Wheat. (19 U.S.) 264, 412 (1821).
\860\8 Pet. (33 U.S.) 436, 444 (1834).
\861\United States v. McLemore, 4 How. (45 U.S.) 286 (1846);
Hill v. United States, 9 How. (50 U.S.) 386, 389 (1850); De Groot v.
United States, 5 Wall. (72 U.S.) 419, 431 (1867); United States v.
Eckford, 6 Wall. (73 U.S.) 484, 488 (1868); The Siren, 7 Wall. (74 U.S.)
152, 154 (1869); Nichols v. United States, 7 Wall. (74 U.S.) 122, 126
(1869); The Davis, 10 Wall. (77 U.S.) 15, 20 (1870); Carr v. United
States, 98 U.S. 433, 437-439 (1879). ``It is also clear that the Federal
Government, in the absence of its consent, is not liable in tort for the
negligence of its agents or employee. Gibbons v. United States, 8 Wall.
(75 U.S.) 269, 275 (1869); Peabody v. United States, 231 U.S. 530, 539
(1913); Koekuk & Hamilton Bridge Co. v. United States, 260 U.S. 125, 127
(1922). The reason for such immunity as stated by Mr. Justice Holmes in
Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907), is because `there
can be no legal right as against the authority that makes the law on
which the right depends.' See also the Western Maid, 257 U.S. 419, 433
(1922). As the Housing Act does not purport to authorize suits against
the United States as such, the question is whether the Authority--which
is clearly an agency of the United States--partakes of this sovereign
immunity. The answer must be sought in the intention of the Congress.
Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549, 570 (1922).
Federal Land Bank v. Priddy, 295 U.S. 229, 231 (1935). This involves a
consideration of the extent to which other Government-owned corporations
have been held liable for their wrongful acts.'' 39 Ops. Atty. Gen. 559,
562 (1938).
\862\106 U.S. 196 (1882).
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Since suits against the United States can be maintained only by
permission, it follows that they can be brought only in the manner
prescribed by Congress and subject to the restrictions imposed.\863\
Only Congress can take the necessary steps to waive the immunity of the
United States from liability for claims, and hence officers of the
United States are powerless by their actions either to waive such
immunity or to confer jurisdiction on a federal court.\864\ Even when
authorized, suits can be brought only in designated courts.\865\ These
rules apply equally to suits by States
[[Page 748]]
against the United States.\866\ Although an officer acting as a public
instrumentality is liable for his own torts, Congress may grant or
withhold immunity from suit on behalf of government corporations.\867\
\863\Lonergan v. United States, 303 U.S. 33 (1938). Waivers of
immunity must be express. Library of Congress v. Shaw, 461 U.S. 273
(1983) (Civil Rights Act provision that ``the United States shall be
liable for costs the same as a private person'' insufficient to waive
immunity from awards of interest). The result in Shaw was overturned by
a specific waiver. Civil Rights Act of 991, P.L. 102-166, 106 Stat.
1079, Sec. 113, amending 42 U.S.C. Sec. 2000e-16. Immunity was waived,
with limitations, for contracts and takings claims in the Tucker Act, 28
U.S.C. Sec. 1346(a)(2). Immunity of the United States for the negligence
of its employees was waived, again with limitations, in the Federal Tort
Claims Act. 28 U.S.C. Sec. 1346(b). For recent waivers of sovereign
immunity, see P.L. 94-574, Sec. 1, 90 Stat. 2721 (1976), amending 5
U.S.C. Sec. 702(waiver for nonstatutory review in all cases save for
suits for money damages); P.L. 87-748, Sec. 1(a), 76 Stat. 744 (1962),
28 U.S.C. Sec. 1361(giving district courts jurisdiction of mandamus
actions to compel an officer or employee of the United States to perform
a duty owed to plaintiff); Westfall Act, 102 Stat. 4563, 28 U.S.C.
Sec. 2679(d) (torts of federal employees acting officially).
\864\United States v. New York Rayon Co., 329 U.S. 654 (1947).
\865\United States v. Shaw, 309 U.S. 495 (1940). Any consent to
be sued will not be held to embrace action in the federal courts unless
the language giving consent is clear. Great Northern Life Ins. Co. v.
Read, 322 U.S. 47 (1944).
The earlier narrow interpretation of the exceptions to the
waiver of immunity set forth in the Federal Tort Claims Act, 28 U.S.C.
Sec. 1346(b), gradually has given way to a liberal construction. Compare
Dalehite v. United States, 346 U.S. 15 (1953), with Indian Towing Co. v.
United States, 350 U.S. 61 (1955).
\866\Minnesota v. United States, 305 U.S. 382 (1939). The United
States was held here to be an indispensable party defendant in a
condemnation proceeding brought by a State to acquire a right of way
over lands owned by the United States and held in trust for Indian
allottees. See also Block v. North Dakota, 461 U.S. 273 (1983).
\867\Brady v. Roosevelt S.S. Co., 317 U.S. 575 (1943).
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Suits Against United States Officials.--United States v. Lee, a
five-to-four decision, qualified earlier holdings to the effect that
where a judgment affected the property of the United States the suit was
in effect against the United States, by ruling that title to the
Arlington estate of the Lee family, then being used as a national
cemetery, was not legally vested in the United States but was being held
illegally by army officers under an unlawful order of the President. In
its examination of the sources and application of the rule of sovereign
immunity, the Court concluded that the rule ``if not absolutely limited
to cases in which the United States are made defendants by name, is not
permitted to interfere with the judicial enforcement of the rights of
plaintiff when the United States is not a defendant or a necessary party
to the suit.''\868\ Except, nevertheless, for an occasional case like
Kansas v. United States,\869\ which held that a State cannot sue the
United States, most of the cases involving sovereign immunity from suit
since 1883 have been cases against officers, agencies, or corporations
of the United States where the United States has not been named as a
party defendant. Thus, it has been held that a suit against the
Secretary of the Treasury to review his decision on the rate of duty to
be exacted on imported sugar would disturb the whole revenue system of
the Government and would in effect be a suit against the United
States.\870\ Even more significant is Stanley v. Schwalby,\871\ which
resembled without paralleling United States v. Lee, where it was held
that an action of trespass against an army officer to try title in a
parcel of land occupied by the United States as a military reservation
was a suit against the United States because a judg
[[Page 749]]
ment in favor of the plaintiffs would have been a judgment against the
United States.
\868\United States v. Lee, 106 U.S. 196, 207-208 (1882). The
Tucker Act, 20 U.S.C. Sec. 1346(a)(2), now displaces the specific rule
of the case, inasmuch as it provides jurisdiction against the United
States for takings claims.
\869\204 U.S. 331 (1907).
\870\Louisiana v. McAdoo, 234 U.S. 627, 628 (1914).
\871\162 U.S. 255 (1896). Justice Gray endeavored to distinguish
between this case and Lee. Id., 271. It was Justice Gray who spoke for
the dissenters in Lee.
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Subsequent cases repeat and reaffirm the rule of United States
v. Lee that where the right to possession or enjoyment of property under
general law is in issue, the fact that defendants claim the property as
officers or agents of the United States does not make the action one
against the United States until it is determined that they were acting
within the scope of their lawful authority.\872\ Contrariwise, the rule
that a suit in which the judgment would affect the United States or its
property is a suit against the United States has also been repeatedly
approved and reaffirmed.\873\ But, as the Court has pointed out, it is
not ``an easy matter to reconcile all of the decisions of the court in
this class of cases,''\874\ and, as Justice Frankfurter quite
justifiably stated in a dissent, ``the subject is not free from
casuistry.''\875\ Justice Douglas' characterization of Land v. Dollar,
``this is the type of case where the question of jurisdiction is
dependent on decision of the merits,''\876\ is frequently applicable.
\872\Land v. Dollar, 330 U.S. 731, 737 (1947).
\873\Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v.
Garfield, 211 U.S. 70 (1908); New Mexico v. Lane, 243 U.S. 52 (1917);
Wells v. Roper, 246 U.S. 335 (1918); Morrison v. Work, 266 U.S. 481
(1925); Minnesota v. United States, 305 U.S.. 382 (1939); Mine Safety
Co. v. Forrestal, 326 U.S. 371 (1945). See also Minnesota v. Hitchcock,
185 U.S. 373 (1902).
\874\Cunningham v. Macon & Brunswick R.R. Co., 109 U.S. 446, 451
(1883), quoted by Chief Justice Vinson in the opinion of the Court in
Larson v. Domestic & Foreign Corp., 337 U.S. 682, 698 (1949).
\875\Id., 708. Justice Frankfurter's dissent also contains a
useful classification of immunity cases and an appendix listing them.
\876\330 U.S. 731, 735 (1947) (emphasis added).
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The case of Larson v. Domestic & Foreign Corp.,\877\ illuminates
these obscurities somewhat. A private company sought to enjoin the
Administrator of the War Assets in his official capacity from selling
surplus coal to others than the plaintiff who had originally bought the
coal, only to have the sale cancelled by the Administrator because of
the company's failure to make an advance payment. Chief Justice Vinson
and a majority of the Court looked upon the suit as one brought against
the Administrator in his official capacity, acting under a valid statute
and therefore a suit against the United States. It held that although an
officer in such a situation is not immune from suits for his own torts,
yet his official action, though tortious, cannot be enjoined or
diverted, since it is also the action of the sovereign.\878\ The Court
then proceeded to repeat the rule that ``the action of an officer of the
sovereign (be it holding, taking, or otherwise legally affecting the
plaintiff's property) can be
[[Page 750]]
regarded as so individual only if it is not within the officer's
statutory powers, or, if within those powers, only if the powers or
their exercise in the particular case, are constitutionally void.''\879\
The Court rejected the contention that the doctrine of sovereign
immunity should be relaxed as inapplicable to suits for specific relief
as distinguished from damage suits, saying: ``The Government, as
representative of the community as a whole, cannot be stopped in its
tracks by any plaintiff who presents a disputed question of property or
contract right.''\880\
\877\337 U.S. 682 (1949).
\878\Id., 689-697.
\879\Id., 701-702. This rule was applied in Goldberg v. Daniels,
231 U.S. 218 (1913), which also involved a sale of government surplus
property. After the Secretary of the Navy rejected the highest bid,
plaintiff sought mandamus to compel delivery. This suit was held to be
against the United States. See also Perkins v. Lukens Steel Co., 310
U.S. 113 (1940), which held that prospective bidders for contracts
derive no enforceable rights against a federal official for an alleged
misinterpretation of his government's authority on the ground that an
agent is answerable only to his principal for misconstruction of
instructions, given for the sole benefit of the principal. In the Larson
case, the Court not only refused to follow Goltra v. Weeks, 271 U.S. 536
(1926), but in effect overruled it. The Goltra case involved an attempt
of the Government to repossess barges which it had leased under a
contract reserving the right to repossess in certain circumstances. A
suit to enjoin repossession was held not to be a suit against the United
States on the ground that the actions were personal and in the nature of
a trespass.
Also decided in harmony with the Larson decision are the
following, wherein the suit was barred as being against the United
States: (1) Malone v. Bowdoin, 369 U.S. 643 (1962), a suit to eject a
Forest Service Officer from land occupied by him in his official
capacity under a claim of title from the United States; and (2) Hawaii
v. Gordon, 373 U.S. 57 (1963), an original action by Hawaii against the
Director of the Budget for an order directing him to determine whether a
parcel of federal land could be conveyed to that State. In Dugan v.
Rank, 372 U.S. 609 (1963), the Court ruled that inasmuch as the storing
and diverting of water at the Friant Dam resulted, not in a trespass,
but in a partial, although a casual day-by-day, taking of water rights
of claimants along the San Joaquin River below the dam, a suit to enjoin
such diversion by Federal Bureau of Reclamation officers was an action
against the United States, for grant of the remedy sought would force
abandonment of a portion of a project authorized and financed by
Congress, and would prevent fulfillment of contracts between the United
States and local Water Utility Districts. Damages were recoverable in a
suit under the Tucker Act. 28 U.S.C. Sec. 1346.
\880\Id., 337 U.S., 703-704. Justice Frankfurter, dissenting,
would have applied the rule of the Lee case. See P.L. 94-574, 1, 90
Stat. 2721 (1976), amending 5 U.S.C. Sec. 702 (action seeking relief,
except for money damages, against officer, employee, or agency not to be
dismissed as action against United States).
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Suits against officers involving the doctrine of sovereign
immunity have been classified by Justice Frankfurter in a dissenting
opinion into four general groups. First, there are those cases in which
the plaintiff seeks an interest in property which belongs to the
Government or calls ``for an assertion of what is unquestionably
official authority.''\881\ Such suits, of course, cannot be
maintained.\882\ Second, cases in which action adverse to the interests
of
[[Page 751]]
a plaintiff is taken under an unconstitutional statute or one alleged to
be so. In general these suits are maintainable.\883\ Third, cases
involving injury to a plaintiff because the official has exceeded his
statutory authority. In general these suits are maintainable.\884\
Fourth, cases in which an officer seeks immunity behind statutory
authority or some other sovereign command for the commission of a common
law tort.\885\ This category of cases presents the greatest difficulties
since these suits can as readily be classified as falling into the first
group if the action directly or indirectly is one for specific
performance or if the judgment would affect the United States.
\881\Larson v. Domestic & Foreign Corp., 337 U.S. 682, 709-710
(1949).
\882\Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v.
McAdoo, 234 U.S. 627 (1914); Wells v. Roper, 246 U.S. 335 (1918). See
also Belknap v. Schild, 161 U.S. 10 (1896); International Postal Supply
Co. v. Bruce, 194 U.S. 601 (1904).
\883\Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936);
Tennessee Power Co. v. TVA, 306 U.S. 118 (1939) (holding that one
threatened with direct and special injury by the act of an agent of the
Government under a statute may challenge the constitutionality of the
statute in a suit against the agent).
\884\Philadelphia Co. v. Stimson, 223 U.S. 605 (1912); Waite v.
Macy, 246 U.S. 606 (1918).
\885\United States v. Lee, 106 U.S. 196 (1882); Goltra v. Weeks,
271 U.S. 536 (1926); Ickes v. Fox, 300 U.S. 82 (1937); Land v. Dollar,
330 U.S. 731 (1947). See also Barr v. Matteo, 360 U.S. 564 (1959);
Howard v. Lyons, 360 U.S. 593 (1959). An emerging variant is the
constitutional tort case, which springs from Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and
which involves different standards of immunity for officers. Butz v.
Economou, 438 U.S. 478 (1978); Carlson v. Green, 446 U.S. 14 (1980);
Harlow v. Fitzgerald, 457 U.S. 800 (1982).
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Suits Against Government Corporations.--The multiplication of
government corporations during periods of war and depression has
provided one motivation for limiting the doctrine of sovereign immunity.
In Keifer & Keifer v. RFC,\886\ the Court held that the Government does
not become a conduit of its immunity in suits against its agents or
instrumentalities merely because they do its work. Nor does the creation
of a government corporation confer upon it legal immunity. Whether
Congress endows a public corporation with governmental immunity in a
specific instance is a matter of ascertaining the congressional will.
Moreover, it has been held that waivers of governmental immunity in the
case of federal instrumentalities and corporations should be construed
liberally.\887\ On the other hand, Indian nations are exempt from suit
without further congressional authorization; it is as though their
former immunity as sovereigns passed to the United States for their
benefit, as did their tribal properties.\888\
\886\306 U.S. 381 (1939).
\887\FHA v. Burr, 309 U.S. 242 (1940). Nonetheless, the Court
held that a congressional waiver of immunity in the case of a
governmental corporation did not mean that funds or property of the
United States can be levied on to pay a judgment obtained against such a
corporation as the result of waiver of immunity.
\888\United States v. United States Fidelity Co., 309 U.S. 506
(1940).
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[[Page 752]]
Suits Between Two or More States
The extension of federal judicial power to controversies between
States and the vesting of original jurisdiction in the Supreme Court of
suits to which a State is a party had its origin in experience. Prior to
independence, disputes between colonies claiming charter rights to
territory were settled by the Privy Council. Under the Articles of
Confederation, Congress was made ``the last resort on appeal'' to
resolve ``all disputes and differences . . . between two or more States
concerning boundary, jurisdiction, or any other cause whatever,'' and to
constitute what in effect were ad hoc arbitral courts for determining
such disputes and rendering a final judgment therein. When the
Philadelphia Convention met in 1787, serious disputes over boundaries,
lands, and river rights involved ten States.\889\ It is hardly
surprising, therefore, that during its first sixty years the only state
disputes coming to the Supreme Court were boundary disputes\890\ or that
such disputes constitute the largest single number of suits between
States. Since 1900, however, as the result of the increasing mobility of
population and wealth and the effects of technology and
industrialization, other types of cases have occurred with increasing
frequency.
\889\Warren, The Supreme Court and Disputes Between States, 34
Bull. of William and Mary, No. 4 (1940), 7-11. For a more comprehensive
treatment of background as well as the general subject, see C. Warren,
The Supreme Court and the Sovereign States (Boston: 1924).
\890\Id., 13. However, only three such suits were brought in
this period, 1789-1849. During the next 90 years, 1849-1939, at least
twenty-nine such suits were brought. Id., 13, 14.
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Boundary Disputes: The Law Applied.--Of the earlier examples of
suits between States, that between New Jersey and New York\891\ is
significant for the application of the rule laid down earlier in
Chisholm v. Georgia that the Supreme Court may proceed ex parte if a
State refuses to appear when duly summoned. The long drawn out
litigation between Rhode Island and Massachusetts is of even greater
significance for its rulings, after the case had been pending for seven
years, that though the Constitution does not extend the judicial power
to all controversies between States, yet it does not exclude any,\892\
that a boundary dispute is a justiciable and not a political
question,\893\ and that a prescribed rule of decision is unnecessary in
such cases. On the last point, Justice Baldwin stated: ``The submission
by the sovereigns, or states, to a court of law or equity, of a
controversy between them, without prescribing any rule of decision,
gives power to decide according to the
[[Page 753]]
appropriate law of the case (11 Ves. 294); which depends on the subject-
matter, the source and nature of the claims of the parties, and the law
which governs them. From the time of such submission, the question
ceases to be a political one, to be decided by the sic volo, sic jubeo,
of political power; it comes to the court, to be decided by its
judgment, legal discretion and solemn consideration of the rules of law
appropriate to its nature as a judicial question depending on the
exercise of judicial power; as it is bound to act by known and settled
principles of national or municipal jurisprudence, as the case
requires.''\894\
\891\New Jersey v. New York, 5 Pet. (30 U.S.) 284 (1931).
\892\Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 721
(1838).
\893\Id., 736-737.
\894\Id., 737. Chief Justice Taney dissented because of his
belief that the issue was not one of property in the soil, but of
sovereignty and jurisdiction, and hence political. Id., 752-753. For
different reasons, it should be noted, a suit between private parties
respecting soil or jurisdiction of two States, to which neither State is
a party does not come within the original jurisdiction of the Supreme
Court. Fowler v. Lindsey, 3 Dall. (3 U.S.) 411 (1799). For recent
boundary cases, see United States v. Maine (Rhode Island and New York
Boundary Case), 469 U.S. 504 (1985); United States v. Louisiana (Alabama
and Mississippi Boundary Case), 470 U.S. 93 (1985); United States v.
Maine, 475 U.S. 89 (1986); Georgia v. South Carolina, 497 U.S. 336
(1990); Mississippi v. Louisiana, 113 S.Ct. 549 (1992).
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Modern Types of Suits Between States.--Beginning with Missouri
v. Illinois & Chicago District,\895\ which sustained jurisdiction to
entertain an injunction suit to restrain the discharge of sewage into
the Mississippi River, water rights, the use of water resources, and the
like, have become an increasing source of suits between States. Such
suits have been especially frequent in the western States, where water
is even more of a treasure than elsewhere, but they have not been
confined to any one region. In Kansas v. Colorado,\896\ the Court
established the principle of the equitable division of river or water
resources between conflicting state interests. In New Jersey v. New
York,\897\ where New Jersey sought to enjoin the diversion of waters
into the Hudson River watershed for New York in such a way as to
diminish the flow of the Delaware River in New Jersey, injure its shad
fisheries, and increase harmfully the saline contents of the Delaware,
Justice Holmes stated for the Court: ``A river is more than an amenity,
it is a treasure. It offers a necessity of life that must be rationed
among those who have power over it. New York has the physical power to
cut off all the water within its jurisdiction. But clearly the exercise
of such a power to the destruction of the interest of lower States could
not be tolerated. And, on the other hand, equally little could New
Jersey be permitted to require New York to give up its power altogether
in order that the river might come down to it undiminished.
[[Page 754]]
Both States have real and substantial interests in the river that must
be reconciled as best they may be.''\898\
\895\180 U.S. 208 (1901).
\896\206 U.S. 46 (1907). See also Idaho ex rel. Evans v. Oregon
and Washington, 444 U.S. 380 (1980).
\897\283 U.S. 336 (1931).
\898\Id., 342. See also Nebraska v. Wyoming, 325 U.S. 589
(1945); Idaho ex rel. Evans v. Oregon, 462 U.S. 1017 (1983). In Ohio v.
Wyandotte Chemicals Corp., 401 U.S. 493 (1971), the Court held it had
jurisdiction of a suit by a State against citizens of other States to
abate a nuisance allegedly caused by the dumping of mercury into streams
that ultimately run into Lake Erie, but it declined to permit the filing
because the presence of complex scientific issues made the case more
appropriate for first resolution in a district court. See also Texas v.
New Mexico, 462 U.S. 554 (1983); Nevada v. United States, 463 U.S. 110
(1983).
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Other types of interstate disputes of which the Court has taken
jurisdiction include suits by a State as the donee of the bonds of
another to collect thereon,\899\ by Virginia against West Virginia to
determine the proportion of the public debt of the original State of
Virginia which the latter owed the former,\900\ by Arkansas to enjoin
Texas from interfering with the performance of a contract by a Texas
foundation to contribute to the construction of a new hospital in the
medical center of the University of Arkansas,\901\ of one State against
another to enforce a contract between the two,\902\ of a suit in equity
between States for the determination of a decedent's domicile for
inheritance tax purposes,\903\ and of a suit by two States to restrain a
third from enforcing a natural gas measure which purported to restrict
the interstate flow of natural gas from the State in the event of a
shortage.\904\
\899\South Dakota v. North Carolina, 192 U.S. 286 (1904).
\900\Virginia v. West Virginia, 220 U.S. 1 (1911).
\901\Arkansas v. Texas, 346 U.S. 368 (1953).
\902\Kentucky v. Indiana, 281 U.S. 163 (1930).
\903\Texas v. Florida, 306 U.S. 398 (1939). In California v.
Texas, 437 U.S. 601 (1978), the Court denied a State leave to file an
original action against another State to determine the contested
domicile of a decedent for death tax purposes, with several Justices of
the view that Texas v. Florida had either been wrongly decided or was
questionable. But after determining that an interpleader action by the
administrator of the estate for a determination of domicile was barred
by the Eleventh Amendment, Cory v. White, 457 U.S. 85 (1982), the Court
over dissent permitted filing of the original action. California v.
Texas, 457 U.S. 164 (1982).
\904\Pennsylvania v. West Virginia, 262 U.S. 553 (1923). The
Court, in Maryland v. Louisiana, 451 U.S. 725 (1981), over strong
dissent, relied on this case in permitting suit contesting a tax imposed
on natural gas, the incidence of which fell on the suing State's
consuming citizens. And in Wyoming v. Oklahoma, 112 S.Ct. 789 (1992),
the Court permitted a State to sue another to contest a law requiring
that all in-state utilities burn a mixture containing at least 10% in-
state coal, the plaintiff State having previously supplied 100% of the
coal to those utilities and thus suffering a loss of coal-severance tax
revenues.
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In Texas v. New Jersey,\905\ the Court adjudicated a multistate
dispute about which State should be allowed to escheat intangible
property consisting of uncollected small debts held by a corporation.
Emphasizing that the States could not constitutionally provide a rule of
settlement and that no federal statute governed the
[[Page 755]]
matter, the Court evaluated the possible rules and chose the one easiest
to apply and least likely to lead to continuing disputes.
\905\379 U.S. 674 (1965). See also Pennsylvania v. New York, 406
U.S. 206 (1972).
---------------------------------------------------------------------------
In general, in taking jurisdiction of these suits, along with
those involving boundaries and the diversion or pollution of water
resources, the Supreme Court proceeded upon the liberal construction of
the term ``controversies between two or more States'' enunciated in
Rhode Island v. Massachusetts,\906\ and fortified by Chief Justice
Marshall's dictum in Cohens v. Virginia,\907\ concerning jurisdiction
because of the parties to a case, that ``it is entirely unimportant,
what may be the subject of controversy. Be it what it may, these parties
have a constitutional right to come into the Courts of the Union.''\908\
\906\12 Pet. (37 U.S.) 657 (1838).
\907\6 Wheat. (19 U.S.) 264 (1821).
\908\Id., 378. See Western Union Co. v. Pennsylvania, 368 U.S.
71, 79-80 (1961); Texas v. New Jersey, 379 U.S. 674, 677 (1965);
Pennsylvania v. New York, 407 U.S. 206 (1972).
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Cases of Which the Court Has Declined Jurisdiction.--In other
cases, however, the Court, centering its attention upon the elements of
a case or controversy, has declined jurisdiction. Thus, in Alabama v.
Arizona,\909\ where Alabama sought to enjoin nineteen States from
regulating or prohibiting the sale of convict-made goods, the Court went
far beyond holding that it had no jurisdiction, and indicated that
jurisdiction of suits between States will be exercised only when
absolutely necessary, that the equity requirements in a suit between
States are more exacting than in a suit between private persons, that
the threatened injury to a plaintiff State must be of great magnitude
and imminent, and that the burden on the plaintiff State to establish
all the elements of a case is greater than that generally required by a
petitioner seeking an injunction suit in cases between private parties.
\909\291 U.S. 286 (1934). The Court in recent years, with a
significant caseload problem, has been loath to permit filings of
original actions where the parties might be able to resolve their
disputes in other courts, even in cases in which the jurisdiction over
the particular dispute is exclusively original. Arizona v. New Mexico,
425 U.S. 794 (1976) (dispute subject of state court case brought by
private parties); California v. West Virginia, 454 U.S. 1027 (1981).
---------------------------------------------------------------------------
Pursuing a similar line of reasoning, the Court declined to take
jurisdiction of a suit brought by Massachusetts against Missouri and
certain of its citizens to prevent Missouri from levying inheritance
taxes upon intangibles held in trust in Missouri by resident trustees.
In holding that the complaint presented no justiciable controversy, the
Court declared that to constitute such a controversy, the complainant
State must show that it ``has suffered a wrong through the action of the
other State, furnishing ground for judicial redress, or is asserting a
right against the other State
[[Page 756]]
which is susceptible of judicial enforcement according to . . . the
common law or equity systems of jurisprudence.''\910\ The fact that the
trust property was sufficient to satisfy the claims of both States and
that recovery by either would not impair any rights of the other
distinguished the case from Texas v. Florida,\911\ where the contrary
situation obtained. Furthermore, the Missouri statute providing for
reciprocal privileges in levying inheritance taxes did not confer upon
Massachusetts any contractual right. The Court then proceeded to
reiterate its earlier rule that a State may not invoke the original
jurisdiction of the Supreme Court for the benefit of its residents or to
enforce the individual rights of its citizens.\912\ Moreover,
Massachusetts could not invoke the original jurisdiction of the Court by
the expedient of making citizens of Missouri parties to a suit not
otherwise maintainable.\913\ Accordingly, Massachusetts was held not to
be without an adequate remedy in Missouri's courts or in a federal
district court in Missouri.
\910\Massachusetts v. Missouri, 308 U.S. 1, 15-16, (1939),
citing Florida v. Mellon, 273 U.S. 12 (1927).
\911\306 U.S. 398 (1939).
\912\Id., 308 U.S., 17, citing Oklahoma v. Atchison, T. & S.F.
Ry., 220 U.S. 277 286, (1911), and Oklahoma ex rel Johnson v. Cook, 304
U.S. 387, 394 (1938). See also New Hampshire v. Louisiana and New York
v. Louisiana, 108 U.S. 76 (1883), which held that a State cannot bring a
suit on behalf of its citizens to collect on bonds issued by another
State, and Louisiana v. Texas, 176 U.S. 1 (1900), which held that a
State cannot sue another to prevent maladministration of quarantine
laws.
\913\Id., 308 U.S., 17, 19.
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The Problem of Enforcement: Virginia v. West Virginia.--A very
important issue that presents itself in interstate litigation is the
enforcement of the Court's decree, once it has been entered. In some
types of suits, this issue may not arise, and if it does, it may be
easily met. Thus, a judgment putting a State in possession of disputed
territory is ordinarily self-executing. But if the losing State should
oppose execution, refractory state officials, as individuals, would be
liable to civil suits or criminal prosecutions in the federal courts.
Likewise an injunction may be enforced against state officials as
individuals by civil or criminal proceedings. Those judgments, on the
other hand, which require a State in its governmental capacity to
perform some positive act present the issue of enforcement in more
serious form. The issue arose directly in the long and much litigated
case between Virginia and West Virginia over the proportion of the state
debt of original Virginia owed by West Virginia after its separate
admission to the Union under a compact which provided that West Virginia
assume a share of the debt.
[[Page 757]]
The suit was begun in 1906, and a judgment was rendered against
West Virginia in 1915. Finally, in 1917, Virginia filed a suit against
West Virginia to show cause why, in default of payment of the judgment,
an order should not be entered directing the West Virginia legislature
to levy a tax for payment of the judgment.\914\ Starting with the rule
that the judicial power essentially involves the right to enforce the
results of its exertion,\915\ the Court proceeded to hold that it
applied with the same force to States as to other litigants\916\ and to
consider appropriate remedies for the enforcement of its authority. In
this connection, Chief Justice White declared: ``As the powers to render
the judgment and to enforce it arise from the grant in the Constitution
on that subject, looked at from a generic point of view, both are
federal powers and, comprehensively considered, are sustained by every
authority of the federal government, judicial, legislative, or
executive, which may be appropriately exercised.''\917\ The Court,
however, left open the question of its power to enforce the judgment
under existing legislation and scheduled the case for reargument at the
next term, but in the meantime West Virginia accepted the Court's
judgment and entered into an agreement with Virginia to pay it.\918\
\914\The various litigations of Virginia v. West Virginia are to
be found in 206 U.S. 290 (1907); 209 U.S. 514 (1908); 220 U.S. 1 (1911);
222 U.S. 17 (1911); 231 U.S. 89 (1913); 234 U.S. 117 (1914); 238 U.S.
202 (1915); 241 U.S.C. Sec. 531 (1916); 246 U.S. 565 (1918).
\915\Id., 246 U.S., 591.
\916\Id., 600.
\917\Id., 601.
\918\C. Warren, The Supreme Court and Sovereign States (Boston:
1924), 78-79.
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Controversies Between a State and Citizens of Another State
The decision in Chisholm v. Georgia\919\ that this category of
cases included equally those where a State was a party defendant
provoked the proposal and ratification of the Eleventh Amendment, and
since then controversies between a State and citizens of another State
have included only those cases where the State has been a party
plaintiff or has consented to be sued.\920\ As a party plaintiff, a
State may bring actions against citizens of other States to protect its
legal rights or in some instances as parens patriae to protect the
health and welfare of its citizens. In general, the Court has tended to
construe strictly this grant of judicial power, which simultaneously
comes within its original jurisdiction, by perhaps an even more rigorous
application of the concepts of cases and con
[[Page 758]]
troversies than that in cases between private parties.\921\ This it does
by holding rigorously to the rule that all the party defendants be
citizens of other States\922\ and by adhering to congressional
distribution of its original jurisdiction concurrently with that of
other federal courts.\923\
\919\2 Dall. (2 U.S.) 419 (1793).
\920\See the discussion under the Eleventh Amendment.
\921\Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v.
Mellon, 273 U.S. 12 (1927); New Jersey v. Sargent, 269 U.S. 328 (1926).
\922\Pennsylvania v. Quicksilver Company, 10 Wall. (77 U.S.) 553
(1871); California v. Southern Pacific Co., 157 U.S. 229 (1895);
Minnesota v. Northern Securities Co., 184 U.S. 199 (1902).
\923\Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).
---------------------------------------------------------------------------
Jurisdiction Confined to Civil Cases.--In Cohens v.
Virginia,\924\ there is a dictum to the effect that the original
jurisdiction of the Supreme Court does not include suits between a State
and its own citizens. Long afterwards, the Supreme Court dismissed an
action for want of jurisdiction because the record did not show the
corporation against which the suit was brought was chartered in another
State.\925\ Subsequently, the Court has ruled that it will not entertain
an action by a State to which its citizens are either parties of record
or would have to be joined because of the effect of a judgment upon
them.\926\ In his dictum in Cohens v. Virginia, Chief Justice Marshall
also indicated that perhaps no jurisdiction existed over suits by States
to enforce their penal laws.\927\ Sixty-seven years later, the Court
wrote this dictum into law in Wisconsin v. Pelican Ins. Co.\928\
Wisconsin sued a Louisiana corporation to recover a judgment rendered in
its favor by one of its own courts. Relying partly on the rule of
international law that the courts of no country execute the penal laws
of another, partly upon the 13th section of the Judiciary Act of 1789
which vested the Supreme Court with exclusive jurisdiction of
controversies of a civil nature where a State is a party, and partly on
Justice Iredell's dissent in Chisholm v. Georgia,\929\ where he confined
the term ``controversies'' to civil suits, Justice Gray ruled for the
Court that for purposes of original jurisdiction, ``controversies
between a State and citizens of another State'' are confined to civil
suits.\930\
\924\6 Wheat. (19 U.S.) 264, 398-399 (1821).
\925\Pennsylvania v. Quicksilver Mining Co., 10 Wall. (77 U.S.)
553 (1871).
\926\California v. Southern Pacific Co., 157 U.S. 229 (1895);
Minnesota v. Northern Securities Co., 184 U.S. 199 (1902).
\927\Id., 6 Wheat. (19 U.S.), 398-399.
\928\127 U.S. 265 (1888).
\929\2 Dall. (2 U.S.) 419, 431-432 (1793).
\930\Id., 127 U.S., 289-300.
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The State's Real Interest.--Ordinarily, a State may not sue in
its name unless it is the real party in interest with real inter
[[Page 759]]
ests. It can sue to protect its own property interests,\931\ and if it
sues for its own interest as owner of another State's bonds, rather than
as an assignee for collection, jurisdiction exists.\932\ Where a State
in order to avoid the limitation of the Eleventh Amendment by statute
provided for suit in the name of the State to collect on the bonds of
another State held by one of its citizens, it was refused the right to
sue.\933\ Nor can a State sue on behalf of its own citizens the citizens
of other States to collect claims.\934\
\931\Pennsylvania v. Wheeling & B. Bridge Co., 13 How. (54 U.S.)
518, 559 (1852); Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938);
Georgia v. Evans, 316 U.S. 159 (1942).
\932\South Dakota v. North Carolina, 192 U.S. 286 (1904).
\933\New Hampshire v. Louisiana, 108 U.S. 76 (1883).
\934\Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938).
---------------------------------------------------------------------------
The State as Parens Patriae.--The distinction between suits
brought by States to protect the welfare of its citizens as a whole and
suits to protect the private interests of individual citizens is not
easily drawn. Thus, in Oklahoma v. Atchison, T. & S.F. Ry.,\935\ the
State was refused permission to sue to enjoin unreasonable rate charges
by a railroad on the shipment of specified commodities, inasmuch as the
State was not engaged in shipping these commodities and had no
proprietary interest in them. But in Georgia v. Pennsylvania R.
Co.,\936\ a closely divided Court accepted a suit by the State, suing as
parens patriae and in its proprietary capacity, the latter being treated
by the Court as something of a makeweight, seeking injunctive relief
against twenty railroads on allegations that the rates were
discriminatory against the State and its citizens and their economic
interests and that the rates had been fixed through coercive action by
the northern roads against the southern lines in violation of the
Clayton Antitrust Act. For the Court, Justice Douglas observed that the
interests of a State for purposes of invoking the original jurisdiction
of the Court were not to be confined to those which are proprietary but
to ``embrace the so called `quasi-sovereign' interests which . . . are
`independent of and behind the titles of its citizens, in all the earth
and air within its domain.'''\937\
\935\220 U.S. 277 (1911).
\936\324 U.S. 439 (1945).
\937\Id., 447-448 (quoting from Georgia v. Tennessee Copper Co.,
206 U.S. 230, 237 (1907), in which the State was permitted to sue parens
patriae to enjoin defendant from emitting noxious gases from its works
in Tennessee which caused substantial damage in nearby areas of Georgia)
In Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592,
607-608 (1982), the Court attempted to enunciate the standards by which
to recognize permissible parens patriae assertions. See also Maryland v.
Louisiana, 451 U.S. 725, 737-739 (1981).
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Discriminatory freight rates, the Justice continued, may cause a
blight no less serious than noxious gases in that they may arrest
[[Page 760]]
the development of a State and put it at a competitive disadvantage.
``Georgia as a representative of the public is complaining of a wrong
which, if proven, limits the opportunities of her people, shackles her
industries, retards her development, and relegates her to an inferior
economic position among her sister States. These are matters of grave
public concern in which Georgia has an interest apart from that of
particular individuals who may be affected. Georgia's interest is not
remote; it is immediate. If we denied Georgia as parens patriae the
right to invoke the original jurisdiction of the Court in a matter of
that gravity, we would whittle the concept of justiciability down to the
stature of minor or conventional controversies. There is no warrant for
such a restriction.''\938\
\938\Georgia v. Pennsylvania R. Co., 324 U.S. 439, 468 (1945).
Chief Justice Stone and Justices Roberts, Frankfurter, and Jackson
dissented.
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The continuing vitality of this case is in some doubt, inasmuch
as the Court has limited it in a similar case.\939\ But the ability of
States to act as parens patriae for their citizens in environmental
pollution cases seems established, although as a matter of the Supreme
Court's original jurisdiction such suits are not in favor.\940\
\939\In Hawaii v. Standard Oil Co., 405 U.S. 251 (1972), the
Court, five-to-two, held that the State could not maintain an action for
damages parens patriae under the Clayton Act and limited the previous
case to instances in which injunctive relief is sought. Hawaii had
brought its action in federal district court. The result in Hawaii was
altered by P.L. 94-435, 90 Stat. 1383 (1976), 15 U.S.C. Sec. 15c et
seq., but the decision in Illinois Brick Co. v. Illinois, 431 U.S. 720
(1977), reduced in importance the significance of the law.
\940\Most of the cases, but see Georgia v. Tennessee Copper Co.,
206 U.S. 230 (1907), concern suits by one State against another.
Missouri v. Illinois, 180 U.S. 208 (1901); New York v. New Jersey, 256
U.S. 296 (1921); North Dakota v. Minnesota, 263 U.S. 365 (1923). While
recognizing that original jurisdiction exists when a State sues a
political subdivision of another State or a private party as parens
patriae for its citizens and on its own proprietary interests to abate
environmental pollution, the Court has held that because of the
technical complexities of the issues and the inconvenience of
adjudicating them on its original docket the cases should be brought in
the federal district court under federal question jurisdiction founded
on the federal common law. Illinois v. City of Milwaukee, 406 U.S. 91
(1972); Washington v. General Motors Corp., 406 U.S. 109 (1972). The
Court had earlier thought the cases must be brought in state court. Ohio
v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971).
---------------------------------------------------------------------------
One clear limitation had seemed to be solidly established until
recent litigation cast doubt on its foundation. It is no part of a
State's ``duty or power,'' said the Court in Massachusetts v.
Mellon,\941\ ``to enforce [her citizens'] rights in respect to their
relations with the Federal Government. In that field, it is the United
States and not the State which represents them as parens patriae when
such representation becomes appropriate; and to the former, and not to
the latter, they must look for such protective measures as
[[Page 761]]
flow from that status.'' But in South Carolina v. Katzenbach,\942\ while
holding that the State lacked standing under Massachusetts v. Mellon to
attack the constitutionality of the Voting Rights Act of 1965 \943\
under the Fifth Amendment's due-process clause and under the bill-of-
attainder clause of Article I,\944\ the Court proceeded to decide on the
merits the State's claim that Congress had exceeded its powers under the
Fifteenth Amendment.\945\ Was the Court here sub silentio permitting it
to assert its interest in the execution of its own laws, rather than
those enacted by Congress, or its interest in having Congress enact only
constitutional laws for application to its citizens, an assertion which
is contrary to a number of supposedly venerated cases.\946\ Either
alternative possibility would be significant in a number of
respects.\947\
\941\262 U.S. 447, 486 (1923).
\942\383 U.S. 301 (1966). The State sued the Attorney General of
the United States as a citizen of New Jersey, thus creating the
requisite jurisdiction, and avoiding the problem that the States may not
sue the United States without its consent. Minnesota v. Hitchcock, 185
U.S. 373 (1902); Oregon v. Hitchcock, 202 U.S. 60 (1906); Kansas v.
United States, 204 U.S. 331 (1907). The expedient is, of course, the
same device as is used to avoid the Eleventh Amendment prohibition
against suing a State by suing its officers. Ex parte Young, 209 U.S.
123 (1908).
\943\79 Stat. 437 (1965), 42 U.S.C. Sec. 1973 et seq.
\944\The Court first held that neither of these provisions were
restraints on what the Federal Government might do with regard to a
State. It then added: ``Nor does a State have standing as the parent of
its citizens to invoke these constitutional provisions against the
Federal Government, the ultimate parents patriae of every American
citizen.'' South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966).
\945\The Court did not indicate on what basis South Carolina
could raise the issue. At the beginning of its opinion, the Court did
note the ``[o]riginal jurisdiction is founded on the presence of a
controversy between a State and a citizen of another State under Art.
III, Sec. 2, of the constitution. See Georgia v. Pennsylvania R. Co.,
324 U.S. 439.'' Id., 307 But surely this did not have reference to that
case's parens patriae holding.
\946\See Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida
v. Mellon, 273 U.S. 12 (1927); Jones ex rel. Louisiana v. Bowles, 322
U.S. 707 (1944). See especially Georgia v. Stanton, 6 Wall. (73 U.S.) 50
(1867); Mississippi v. Johnson, 4 Wall. (71 U.S.) 475 (1867). In Oregon
v. Mitchell, 400 U.S. 112 (1970), four original actions were
consolidated and decided. Two were actions by the United States against
States, but the other two were suits by States against the Attorney
General, as a citizen of New York, seeking to have the Voting Rights Act
Amendments of 1970 voided as unconstitutional. South Carolina v.
Katzenbach was uniformly relied on by all parties as decisive of the
jurisdictional question, and in announcing the judgment of the Court
Justice Black simply noted that no one raised jurisdictional or
justiciability questions. Id., 117 n. 1. And see id., 152 n. 1 (Justice
Harlan concurring in part and dissenting in part). See also South
Carolina v. Baker, 485 U.S. 505 (1988); South Carolina v. Regan, 465
U.S. 367 (1984).
\947\Bickel, The Voting Rights Cases, 1966 Sup. Ct. Rev. 79, 80-
93.
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Controversies Between Citizens of Different States
The records of the Federal Convention are silent with regard to
the reasons the Framers included in the judiciary article jurisdiction
in the federal courts of controversies between citizens of dif
[[Page 762]]
ferent States,\948\ but since the Judiciary Act of 1789 ``diversity
jurisdiction'' has been bestowed statutorily on the federal courts.\949\
The traditional explanation remains that offered by Chief Justice
Marshall. ``However true the fact may be, that the tribunals of the
states will administer justice as impartially as those of the nation, to
parties of every description, it is not less true that the Constitution
itself either entertains apprehensions on this subject, or views with
such indulgence the possible fears and apprehensions of suitors, that it
has established national tribunals for the decision of controversies
between aliens and a citizen, or between citizens of different
states.''\950\ Other explanations have been offered and
controverted,\951\ but diversity cases constitute a large bulk of cases
on the dockets of the federal courts today, though serious proposals for
restricting access to federal courts in such cases have been before
Congress for some time.\952\ The essential difficulty with this type of
jurisdiction is that it requires federal judges to decide issues of
local import on the basis of their reading of how state judges would
decide them, an oftentimes laborious process, which detracts from the
time and labor needed to resolve issues of federal import.
\948\Friendly, The Historic Basis of Diversity Jurisdiction, 41
Harv. L. Rev. 483 (1928).
\949\1 Stat. 78, Sec. 11. The statute also created alienage
jurisdiction of suits between a citizen of a State and an alien. See
Holt, The Origins of Alienage Jurisdiction, 14 Okla. City L. Rev. 547
(1989). Subject to a jurisdictional amount, now $50,000, 28 U.S.C.
Sec. 1332, the statute conferred diversity jurisdiction when the suit
was between a citizen of the State in which the suit was brought and a
citizen of another State. The Act of March 3, 1875, Sec. 1. 18 Stat.
470, first established the language in the present statute, 28 U.S.C.
Sec. 1332(a)(1), merely requiring diverse citizenship, so that a citizen
of Maryland could sue a citizen of Delaware in federal court in New
Jersey. Snyder v. Harris, 394 U.S. 332 (1969), held that in a class
action in diversity the individual claims could not be aggregated to
meet the jurisdictional amount. Zahn v. International Paper Co., 414
U.S. 291 (1974), extended Snyder in holding that even though the named
plaintiffs had claims of more than $10,000 they could not represent a
class in which many of the members had claims for less than $10,000.
\950\Bank of the United States v. Deveaux, 5 Cr. (9 U.S.) 61, 87
(1809).
\951\Summarized and discussed in C. Wright, Handbook of the Law
of Federal Courts (St. Paul: 4th ed. 1983), 23; American Law Institute,
Study of the Division of Jurisdiction Between State and Federal Courts
(Philadelphia: 1969), 99-110, 458-464.
\952\The principal proposals are those of the American Law
Institute. Id., 123-134.
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The Meaning of ``State'' and the District of Columbia Problem.--
In Hepburn v. Ellzey,\953\ Chief Justice Marshall for the Court confined
the meaning of the word ``State'' as used in the Constitution to ``the
members of the American confederacy'' and ruled that a citizen of the
District of Columbia could not sue a citizen of Virginia on the basis of
diversity of citizenship. Marshall noted
[[Page 763]]
that it was ``extraordinary that the courts of the United States, which
are open to aliens, and to the citizens of every state in the union,
should be closed upon them. But this is a subject for legislative, not
for judicial consideration.''\954\ The same rule was subsequently
applied to citizens of the territories of the United States.\955\
\953\2 Cr. (6 U.S.) 445 (1805).
\954\Id., 453.
\955\City of New Orleans v. Winter, 1 Wheat. (14 U.S.) 91
(1816).
---------------------------------------------------------------------------
Whether the Chief Justice had in mind a constitutional amendment
or a statute when he spoke of legislative consideration remains unclear.
Not until 1940, however, did Congress attempt to meet the problem by
statutorily conferring on federal district courts jurisdiction of civil
actions, not involving federal questions, ``between citizens of
different States, or citizens of the District of Columbia, the Territory
of Hawaii, or Alaska and any State or Territory.''\956\ In National
Mutual Ins. Co. v. Tidewater Transfer Co.,\957\ this act was upheld in a
five-to-four decision but for widely divergent reasons by a coalition of
Justices. Two Justices thought that Chief Justice Marshall's 1804
decision should be overruled, but the other seven Justices disagreed;
however, three of the seven thought the statute could be sustained under
Congress' power to enact legislation for the inhabitants of the District
of Columbia, but the remaining four plus the other two rejected this
theory. The statute was upheld because a total of five Justices voted to
sustain it, although of the two theories relied on, seven Justices
rejected one and six the other. The result, attributable to
``conflicting minorities in combination,''\958\ means that Hepburn v.
Ellzey is still good law insofar as it holds that the District of
Columbia is not a State, but is overruled insofar as it holds that
District citizens may not utilize federal diversity jurisdiction.\959\
\956\54 Stat. 143 (1940), as revised, 28 U.S.C. Sec. 1332(d).
\957\337 U.S. 582 (1948).
\958\Id., 655 (Justice Frankfurter dissenting).
\959\The statute's provision allowing citizens of Puerto Rico to
sue in diversity was sustained in Americana of Puerto Rico v. Kaplus,
368 F. 2d 431 (3d Cir., 1966), cert. den., 386 U.S. 943 (1967), under
Congress' power to make rules and regulations for United States
territories. Cf. Examining Board v. Flores de Otero, 426 U.S. 572, 580-
597 (1976) (discussing congressional acts with respect to Puerto Rico).
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Citizenship of Natural Persons.--For purposes of diversity
jurisdiction, state citizenship is determined by the concept of
domicile\960\ rather than of mere residence.\961\ That is, while the
Court's definition has varied throughout the cases,\962\ a person is a
citizen of the State in which he has his true, fixed, and permanent home
[[Page 764]]
and principal establishment and to which he intends to return whenever
he is absent from it.\963\ Acts may disclose intention more clearly and
decisively than declarations.\964\ One may change his domicile in an
instant by taking up residence in the new place and by intending to
remain there indefinitely and one may obtain the benefit of diversity
jurisdiction by so changing for that reason alone,\965\ provided the
change is more than a temporary expedient.\966\
\960\Chicago & N.W.R. Co. v. Ohle, 117 U.S. 123 (1886).
\961\Sun Printing & Pub. Assn. v. Edwards, 194 U.S. 377 (1904).
\962\Knox v. Greenleaf, 4 Dall. (4 U.S.) 360 (1802); Shelton v.
Tiffin, 6 How. (47 U.S.) 163 (1848); Williamson v. Osenton, 232 U.S. 619
(1914).
\963\Stine v. Moore, 213 F. 2d 446, 448 (5th Cir. 1954).
\964\Shelton v. Tiffin, 6 How. (47 U.S.) 163 (1848).
\965\Williamson v. Osenton, 232 U.S. 619 (1914).
\966\Jones v. League, 18 How. (59 U.S.) 76 (1855).
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If the plaintiff and the defendant are citizens of different
States, diversity jurisdiction exists regardless of the State in which
suit is brought.\967\ Chief Justice Marshall early established that in
multiparty litigation, there must be complete diversity, that is, that
no party on one side could be a citizen of any State of which any party
on the other side was a citizen.\968\ It has now apparently been decided
that this requirement flows from the statute on diversity rather than
from the constitutional grant and that therefore minimal diversity is
sufficient.\969\ The Court has also placed some issues beyond litigation
in federal courts in diversity cases, apparently solely on policy
grounds.\970\
\967\28 U.S.C. Sec. 1332(a)(1).
\968\Strawbridge v. Curtiss, 3 Cr. (7 U.S.) 267 (1806).
\969\In State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523,
530-531 (1967), holding that congressional provision in the interpleader
statute of minimal diversity, 28 U.S.C. Sec. 1335(a)(1), was valid, the
Court said of Strawbridge. ``Chief Justice Marshall there purported to
construe only ``The words of the act of Congress,' not the Constitution
itself. And in a variety of contexts this Court and the lower courts
have concluded that Article III poses no obstacle to the legislative
extension of federal jurisdiction, founded on diversity, so long as any
two adverse parties are not co-citizens.'' Of course, the diversity
jurisdictional statute not having been changed, complete diversity of
citizenship, outside the interpleader situation, is still required. In
class actions, only the citizenship of the named representatives is
considered and other members of the class can be citizens of the same
State as one or more of the parties on the other side. Supreme Tribe of
Ben-Hur v. Cauble, 255 U.S. 356 (1921); Snyder v. Harris, 394 U.S. 332,
340 (1969).
\970\In domestic relations cases and probate matters, the
federal courts will not act, though diversity exists. Barber v. Barber,
21 How. (62 U.S.) 582 (1858); Ex parte Burrus, 136 U.S. 586 (1890); In
re Broderick's Will, 21 Wall. (88 U.S.) 503 (1875). These cases merely
enunciated the rule, without justifying it; when the Court squarely
faced the issue quite recently, it adhered to the rule, citing
justifications. Ankenbrandt v. Richards, 112 S.Ct. 2206 (1992).
---------------------------------------------------------------------------
Citizenship of Corporations.--In Bank of the United States v.
Deveaux,\971\ Chief Justice Marshall declared: ``That invisible,
intangible, and artificial being, that mere legal entity, a corporation
aggregate, is certainly not a citizen; and consequently cannot sue or be
sued in the courts of the United States, unless the rights of
[[Page 765]]
the members, in this respect, can be exercised in their corporate
name.'' The Court upheld diversity jurisdiction because the members of
the bank as a corporation were citizens of one State and Deveaux was a
citizen of another. The holding was reaffirmed a generation later,\972\
but the pressures were building for change, because of the increased
economic role of the corporation and because the Strawbridge rule\973\
would have soon closed the doors of the federal courts to the larger
corporations with stockholders in many States.
\971\5 Cr. (9 U.S.) 61, 86 (1809).
\972\Commercial & Railroad Bank v. Slocomb, 14 Pet. (39 U.S.) 60
(1840).
\973\Strawbridge v. Curtiss, 3 Cr. (7 U.S.) 267 (1806).
---------------------------------------------------------------------------
Deveaux was overruled in 1844, when after elaborate argument a
divided Court held that ``a corporation created by and doing business in
a particular State, is to be deemed to all intents and purposes as a
person, although an artificial person, an inhabitant of the same State,
for the purposes of its incorporation, capable of being treated as a
citizen of that State, as much as a natural person.''\974\ Ten years
later, the Court abandoned this rationale, but it achieved the same
result by creating a conclusive presumption that all of the stockholders
of a corporation are citizens of the State of incorporation.\975\
Through this fiction, substantially unchanged today,\976\ the Court was
able to hold that a corporation cannot be a citizen for diversity
purposes and that the citizenship of its stockholders controls but to
provide corporations access to federal courts in diversity in every
State except the one in which it is incorporated.\977\ The right of
foreign corporations to resort to federal courts in diversity is not one
which the States may condition as a qualification for doing business in
the State.\978\
\974\Louisville, C. & C.R. Co. v. Letson, 2 How. (43 U.S.) 497,
558 (1844).
\975\Marshall v. Baltimore & Ohio R. Co., 16 How, (57 U.S.) 314
(1854). See Muller v. Dows, 94 U.S. 444 (1877); St. Louis & S.F. Ry. Co.
v. James, 161 U.S. 545 (1896). The Court has more than once pronounced
that the Marshall position is settled. E.g., United Steelworkers of
America v. R. H. Bouligny, Inc., 382 U.S. 272, 273 (1965); Carden v.
Arkoma Associates, 494 U.S. 185, 189 (1990).
\976\Sec. 2, 72 Stat. 415 (1958), amending 28 U.S.C.
Sec. 1332(c), provided that a corporation is to be deemed a citizen of
any State in which it has been incorporated and of the State in which it
has its principal place of business. 78 Stat. 445 (1964), amending 28
U.S.C. Sec. 1332(c), was enacted to correct the problem revealed by
Lumbermen's Mutual Casualty Co. v. Elbert, 348 U.S. 48 (1954).
\977\See United Steelworkers v. R.H. Bouligny, 382 U.S. 145, 148
(1965).
\978\In Terral v. Burke Construction Co., 257 U.S. 529 (1922),
the Court resolved two conflicting lines of cases and voided a state
statute which required the cancellation of the license of a foreign
corporation to do business in the State upon notice that the corporation
had removed a case to a federal court.
---------------------------------------------------------------------------
Unincorporated associations, such as partnerships, joint stock
companies, labor unions, governing boards of institutions, and the like,
do not enjoy the same privilege as a corporation; the actual
[[Page 766]]
citizenship of each of its members must be considered in determining
whether diversity exists.\979\
\979\Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449
(1900); Chapman v. Barney, 129 U.S. 677 (1889); Thomas v. Board of
Trustees, 195 U.S. 207 (1904); United Steelworkers v. R.H. Bouligny, 382
U.S. 145 (1965); Carden v. Arkoma Associates, 494 U.S. 185 (1990). But
compare Navarro Savings Assn. v. Lee, 446 U.S. 458 (1980), distinguished
in Carden, supra, 195-197.
---------------------------------------------------------------------------
Manufactured Diversity.--One who because of diversity of
citizenship can choose whether to sue in state or federal court will
properly consider where the advantages and disadvantages balance; one
who perceives the balance clearly favoring the federal forum where no
diversity exists will no doubt often attempt to create diversity. In the
Judiciary Act of 1789, Congress exempted from diversity jurisdiction
suits on choses of action in favor of an assignee unless the suit could
have been brought in federal court if no assignment had been made.\980\
One could create diversity by a bona fide change of domicile even with
the sole motive of creating domicile.\981\ Similarly, one could create
diversity, or defeat it, by choosing a personal representative of the
requisite citizenship.\982\ By far, the greatest number of attempts to
manufacture or create diversity has concerned corporations. A
corporation cannot get into federal court by transferring its claim to a
subsidiary incorporated in another State,\983\ and for a time the
Supreme Court tended to look askance at collusory incorporations and the
creation of dummy corporations for purposes of creating diversity.\984\
But in Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab &
Transfer Co.,\985\ it became highly important to the plaintiff company
to bring its suit in federal court rather than in a state court. Thus,
Black & White, a Kentucky corporation, dissolved itself and obtained a
charter as a Tennessee corporation; the only change made was the State
of incorporation, the name, officers, shareholders, and location of the
business remaining the same. A majority of the Court, over a strong
dissent by Justice Holmes,\986\ saw no collusion
[[Page 767]]
and upheld diversity, meaning that the company won whereas it would have
lost had it sued in the state court. Black & White Taxicab probably more
than anything led to a reexamination of the decision on the choice of
law to be applied in diversity litigation.
\980\Sec. 11, 1 Stat. 78, sustained in Turner v. Bank of North
America, 4 Dall, (4 U.S.) 8 (1799), and Sheldon v. Sill, 8 How, (49
U.S.) 441 (1850). The present statute, 28 U.S.C. Sec. 1359, provides
that no jurisdiction exists in a civil action ``in which any party, by
assignment or otherwise, has been improperly or collusively made or
joined to invoke the jurisdiction of such court.'' See Kramer v.
Carribean Mills, 394 U.S. 823 (1969).
\981\Williamson v. Osenton, 232 U.S. 619 (1914); Morris v.
Gilmer, 129 U.S. 315 (1889).
\982\Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183 (1931).
\983\Miller & Lux v. East Side Canal & Irrigation Co., 211 U.S.
293 (1908).
\984\E.g., Southern Realty Co. v. Walker, 211 U.S. 603 (1909).
\985\276 U.S. 518 (1928).
\986\Id., 276 U.S., 532 (joined by Justices Brandeis and Stone).
Justice Holmes here presented his view that Swift v. Tyson, 16 Pet. (41
U.S.) 1 (1842), had been wrongly decided, but he preferred not to
overrule it, merely ``not allow it to spread . . . into new fields.''
Id. 535.
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The Law Applied in Diversity Cases.--By virtue of Sec. 34 of the
Judiciary Act of 1789,\987\ state law expressed in constitutional and
statutory form was regularly applied in federal courts in diversity
actions to govern the disposition of such cases. But in Swift v.
Tyson,\988\ Justice Story for the Court ruled that state court decisions
were not laws within the meaning of Sec. 34 and though entitled to
respect were not binding on federal judges, except with regard to
matters of a ``local nature,'' such as statutes and interpretations
thereof pertaining to real estate and other immovables, in contrast to
questions of general commercial law as to which the answers were
dependent not on ``the decisions of the local tribunals, but in the
general principles and doctrines of commercial jurisprudence.''\989\ The
course of decision over the period of almost one hundred years was
toward an expansion of the areas in which federal judges were free to
construct a federal common law and a concomitant contraction of the
definition of ``local'' laws.\990\ Although
[[Page 768]]
dissatisfaction with Swift v. Tyson was almost always present, within
and without the Court,\991\ it was the Court's decision in Black & White
Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.,\992\
which brought disagreement to the strongest point and perhaps
precipitated the overruling of Swift v. Tyson in Erie Railroad Co. v.
Tompkins.\993\
\987\The section provided that ``the laws of the several states,
except where the constitution, treaties, or statutes of the United
States shall otherwise require or provide, shall be regarded as rules of
decision in trials at common law in the courts of the United States in
cases where they apply.'' 1 Stat. 92. With only insubstantial changes,
the section now appears as 28 U.S.C. Sec. 1652. For a concise review of
the entire issue, see C. Wright, Handbook of the Law of Federal Courts
(St. Paul; 4th ed. 1983), ch. 9.
\988\16 Pet. (41 U.S.) 1 (1842). The issue in the case was
whether a pre-existing debt was good consideration for an indorsement of
a bill of exchange so that the endorsee would be a holder in due course.
\989\Id., 19. The Justice concluded this portion of the opinion:
``The law respecting negotiable instruments may be truly declared in the
language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burr.
R. 883, 887, to be in great measure, not the law of a single country
only, but of the commercial world. Nun erit alia lex Romae, alia
Athenis; alia munc, alia posthac, sed et apud omnes gentes, et omni
tempore una eademque lex obtenebit.'' Ibid. The thought that the same
law should prevail in Rome as in Athens was used by Justice Story in
DeLovia v. Boit, 7 Fed. Cas. 418, 443 (No. 3776) (C.C.D. Mass. 1815).
For a modern utilization, see United States v. Jefferson County Board of
Education, 372 F. 2d 836, 861 (5th Cir. 1966); id., 380 F. 2d 385, 398
(5th Cir. 1967) (dissenting opinion).
\990\The expansions included: Lane v. Vick, 3 How. (44 U.S.) 464
(1845) (wills); City of Chicago v. Robbins, 2 Bl. (67 U.S.) 418 (1862),
and Baltimore & Ohio R. Co. v. Baugh 149 U.S. 368 (1893) (torts); Yates
v. City of Milwaukee, 10 Wall. (77 U.S.) 497 (1870) (real estate titles
and rights of riparian owners); Kuhn v. Fairmont Coal Co., 215 U.S. 349
(1910) (mineral conveyances); Rowan v. Runnels, 5 How. (46 U.S.) 134
(1847) (contracts); Lake Shore & M.S. Ry. Co. v. Prentice, 147 U.S. 101
(1893). It was strongly contended that uniformity, the goal of Justice
Story's formulation, was not being achieved, in great part because state
courts followed their own rules of decision even when prior federal
decisions were contrary. Frankfurter, Distribution of Judicial Power
Between Federal and State Courts, 13 Corn. L.Q. 499, 529 n. 150 (1928).
Moreover, the Court held that while state court interpretations of state
statutes or constitutions were to be followed, federal courts could
ignore them if they conflicted with earlier federal constructions of the
same statute or constitutional provision, Rowan v. Runnels, 5 How. (46
U.S.) 134 (1847), or if they had been rendered after the case had been
tried in federal court, Burgess v. Seligman, 107 U.S. 20 (1883), thus
promoting lack of uniformity. See also Gelpcke v. City of Debuque, 1
Wall. (68 U.S.) 175 (1865); Williamson v. Berry, 8 How. (49 U.S.) 495
(1850); Pease v. Peck, 18 How. (59 U.S.) 595 (1856); Watson v. Tarpley,
18 How. (59 U.S.) 517 (1856).
\991\Extensions of the scope of Tyson frequently were rendered
by a divided Court over the strong protests of dissenters. E.g., Gelpcke
v. City of Debuque, 1 Wall. (68 U.S.) 175 (1865); Lane v. Vick, 3 How.
(44 U.S.) 463 (1845); Kuhn v. Fairmont Coal Co., 215 U.S. 349 (1910). In
Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 401-404 (1893), Justice
Field dissented in an opinion in which he expressed the view that
Supreme Court disregarding of state court decisions was
unconstitutional, a view endorsed by Justice Holmes in Black & White
Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276
U.S. 518, 533 (1928) (dissenting opinion), and adopted by the Court in
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Numerous proposals
were introduced in Congress to change the rule.
\992\276 U.S. 518 (1928). B. & W. had contracted with a railroad
to provide exclusive taxi service at its station. B. & Y. began
operating taxis at the same station and B. & W. wanted to enjoin the
operation, but it was a settled rule by judicial decision in Kentucky
courts that such exclusive contracts were contrary to public policy and
were unenforceable in court. Therefore, B. & W. dissolved itself in
Kentucky and reincorporated in Tennessee, solely in order to create
diversity of citizenship and enable itself to sue in federal court. It
was successful and the Supreme Court ruled that diversity was present
and that the injunction should issue. In Mutual Life Ins. Co. v.
Johnson, 293 U.S. 335 (1934), the Court, in an opinion by Justice
Cardozo, appeared to retreat somewhat from its extensions of Tyson,
holding that state law should be applied, through a ``benign and prudent
comity,'' in a case ``balanced with doubt,'' a concept first used by
Justice Bradley in Burgess v. Seligman, 107 U.S. 20 (1883).
\993\304 U.S. 64 (1938). Judge Friendly has written: ``Having
served as the Justice's [Brandeis's] law clerk the year Black & White
Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co. came
before the Court, I have little doubt he was waiting for an opportunity
to give Swift v. Tyson the happy dispatch he thought it deserved.'' H.
Friendly, Benchmarks (Chicago: 1967), 20.
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``It is impossible to overstate the importance of the Erie
decision. It announces no technical doctrine of procedure or
jursidiction, but goes to the heart of the relations between the federal
government and the states, and returns to the states a power that had
for nearly a century been exercised by the federal government.''\994\
Erie was remarkable in a number of ways aside from the doctrine it
announced. It reversed a 96-year-old precedent, which counsel had
specifically not questioned, it reached a constitutional
[[Page 769]]
decision when a statutory interpretation was available though perhaps
less desirable, and it marked the only time in United States
constitutional history when the Court has held that it had undertaken an
unconstitutional action.\995\
\994\C. Wright, Handbook of the Law of Federal Courts (4th ed.
1983), 355. See Judge Friendly's exposition, In Praise of Erie--And of
the New Federal Common Law, in H. Friendly, Benchmarks (Chicago: 1967),
155.
\995\Id., 304 U.S., 157-164, 171 n. 71.
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Tompkins was injured by defendant's train while he was walking
along the tracks. He was a citizen of Pennsylvania, and the railroad was
incorporated in New York. Had he sued in a Pennsylvania court, state
decisional law was to the effect that inasmuch as he was a trespasser,
the defendant owned him only a duty not to injure him through wanton or
willful misconduct;\996\ the general federal law treated him as a
licensee who could recover for negligence. Tompkins sued and recovered
in federal court in New York and the railroad presented the issue to the
Supreme Court as one covered by ``local'' law within the meaning of
Swift v. Tyson. Justice Brandeis for himself and four other Justices,
however, choose to overrule the early case.
\996\This result was obtained in retrial in federal court on the
basis of Pennsylvania law. Tompkins v. Erie Railroad Co., 98 F. 49 (3d
Cir.), cert. den. 305 U.S. 637 (1938).
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First, it was argued that Tyson had failed to bring uniformity
of decision about and that its application discriminated against
citizens of a State by noncitizens. Justice Brandeis cited recent
researches\997\ indicating that Sec. 34 of the 1789 Act included court
decisions in the phrase ``laws of the several States.'' ``If only a
question of statutory construction were involved we should not be
prepared to abandon a doctrine so widely applied throughout nearly a
century. But the unconstitutionality of the course pursued has now been
made clear, and compels us to do so.''\998\ For a number of reasons, it
would not have been wise to have overruled Tyson on the basis of
arguable new discoveries.\999\ Second, then, the decision
[[Page 770]]
turned on the lack of power vested in Congress to have prescribed rules
for federal courts in state cases. ``There is no federal general common
law. Congress has no power to declare substantive rules of common law
applicable in a State whether they be local in their nature or
`general,' be they commercial law or a part of the law of torts. No
clause in the Constitution purports to confer such a power upon the
federal courts.''\1000\ But having said this, Justice Brandeis made it
clear that the unconstitutional assumption of power had been made not by
Congress but by the Court itself. ``[W]e do not hold unconstitutional
Sec. 34 of the Federal Judiciary Act of 1789 or any other Act of
Congress. We merely declare that in applying the doctrine this Court and
the lower courts have invaded rights which in our opinion are reserved
by the Constitution to the several States.''\1001\
\997\Erie Railroad Co. v. Tompkins, 304 U.S. 64, 72-73 (1938),
citing Warren, New Light on the History of the Federal Judiciary Act of
1789, 37 Harv. L. Rev. 49 84-88 (1923). See C. Wright, Handbook of the
Law of Federal Courts (4th ed. 1983), 353.
\998\Id., 304 U.S., 77-78 (footnote citations omitted).
\999\Congress had re-enacted Sec. 34 as Sec. 721 of the Revised
Statutes, citing Swift v. Tyson in its annotation, thus presumably
accepting the gloss placed on the words by that ruling. But note that
Justice Brandeis did not think even the re-enacted statute was
unconstitutional. Infra, text at n. 1001. See H. Friendly, Benchmarks
(Chicago: 1967), 161-163. Perhaps a more compelling reason of policy was
that stated by Justice Frankfurter rejecting for the Court a claim that
the general grant of federal question jurisdiction to the federal courts
in 1875 made maritime suits cognizable on the law side of the federal
courts. ``Petitioner now asks us to hold that no student of the
jurisdiction of the federal courts or of admiralty, no judge, and none
of the learned and alert members of the admiralty bar were able, for
seventy-five years, to discern the drastic change now asserted to have
been contrived in admiralty jurisdiction by the Act of 1875. In light of
such impressive testimony from the past the claim of a sudden discovery
of a hidden latent meaning in an old technical phrase is surely suspect.
``The history of archeology is replete with the unearthing of
riches buried for centuries. Our legal history does not, however, offer
a single archeological discovery of new, revolutionary meaning in
reading an old judiciary enactment. [Here, the Justice footnotes: `For
reasons that would take us too far afield to discuss, Erie R. Co. v.
Tompkins, 304 U.S. 64, is no exception.'] The presumption is powerful
that such a far-reaching, dislocating construction as petitioner would
now have us find in the Act of 1875 was not uncovered by judges, lawyers
or scholars for seventy-five years because it is not there.'' Romero v.
International Terminal Operating Co., 358 U.S. 354, 370-371 (1959).
\1000\Id., 304 U.S., 78. Justice Brandeis does not argue the
constitutional issue and does not cite either provisions of the
Constitution or precedent beyond the views of Justices Holmes and Field.
Id., 78-79. Justice Reed thought that Article III and the necessary and
proper clause might contain authority. Id., 91-92 (Justice Reed
concurring in the result). For a formulation of the constitutional
argument in favor of the Brandeis position, see H. Friendly, Benchmarks
(Chicago: 1967), 167-171. See also Bernhardt v. Polygraphic Co. of
America, 350 U.S. 198, 202, 208 (1956); Hanna v. Plumer, 380 U.S. 460,
471-472 (1965).
\1001\Id., 304 U.S., 79-80.
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Third, the rule of Erie replacing Tyson is that ``[e]xcept in
matters governed by the Federal Constitution or by Acts of Congress, the
law to be applied in any case is the law of the State. Whether the law
of the State shall be declared by its Legislature in a statute or by its
highest court in a decision is not a matter of federal concern.''\1002\
\1002\Id., 78. Erie applies in equity as well as in law. Ruhlin
v. New York Life Ins. Co., 304 U.S. 202 (1938).
---------------------------------------------------------------------------
Since 1938, the effect of Erie has first increased and then
diminished, as the nature of the problems presented changed. Thus, the
Court at first indicated that not only the decision of the highest court
of a State were binding on a federal court in diversity but as well
intermediate appellate courts\1003\ and courts of first in
[[Page 771]]
stance,\1004\ even where the decisions bound no other state judge except
as they were persuasive on their merits. It has now retreated from this
position to the extent that federal judges are to give careful
consideration to lower state court decisions and to old, perhaps
outmoded decisions, but they must find for themselves the state law
where the State's highest court has not spoken definitively and within a
period which would raise no questions about the continued viability of
the decision.\1005\ In the event of a state supreme court reversal of an
earlier decision, the federal courts are, of course, bound by the later
decision, and a judgment of a federal district court, correct when
rendered, must be reversed on appeal if the State's highest court in the
meantime has changed the applicable law.\1006\ In diversity cases which
present conflicts of law problems, the Court has reiterated that the
district court is to apply the law of the State in which it sits, so
that in a case in State A in which the law of State B is applicable,
perhaps because a contract was made there or a tort was committed there,
the federal court is to apply State A's conception of State B's
law.\1007\
\1003\West v. American Tel. & Tel. Co., 311 U.S. 223 (1940); Six
Companies of California v. Joint Highway District, 311 U.S. 180 (1940);
Stoner v. New York Life Ins. Co., 311 U.S. 464 (1940).
\1004\Fidelity Union Trust Co., v. Field, 311 U.S. 169 (1940).
\1005\King v. Order of Commercial Travelers of America, 333 U.S.
153 (1948); Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 205
(1956) (1910 decision must be followed in absence of confusion in state
decisions since, ``no developing line of authorities that cast a shadow
over established ones, no dicta, doubts or ambiguities . . . , no
legislative development that promises to undermine the judicial rule'').
See also Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967).
\1006\Vanderbark v. Owens-Illinois Glass Co., 311 U.S. 538
(1941); Huddleston v. Dwyer, 322 U.S. 232 (1944); Nolan v. Transocean
Air Lines, 365 U.S. 293 (1961).
\1007\Klaxon Co. v. Stentor Manufacturing Co., 313 U.S. 487
(1941); Griffin v. McCoach, 313 U.S. 498 (1941); Wells v. Simonds
Abrasive Co., 345 U.S. 514 (1953); Nolan v. Transocean Air Lines, 365
U.S. 293 (1961).
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The greatest difficulty in applying the Erie doctrine has been
in cases in which issues of procedure were important.\1008\ The process
was initiated in 1945 when the Court held that a state statute of
limitations, which would have barred suit in state court, would bar it
in federal court, although as a matter of federal law the case still
could have been brought in federal court.\1009\ The Court regarded the
substance-procedure distinction as immaterial. ``[S]ince a federal court
adjudicating a state-created right solely because of
[[Page 772]]
the diversity of citizenship of the parties is for that purpose, in
effect, only another court of the State, it cannot afford recovery if
the right to recover is made unavailable by the State nor can it
substantially affect the enforcement of the right as given by the
State.''\1010\ The standard to be applied was compelled by the
``intent'' of the Erie decision, which ``was to insure that, in all
cases where a federal court is exercising jurisdication solely because
of the diversity of citizenship of the parties, the outcome of the
litigation in the federal court should be substantially the same, so far
as legal rules determine the outcome of a litigation, as it would be if
tried in a State court.''\1011\ The Court's application of this standard
created substantial doubt that the Federal Rules of Civil Procedure had
any validity in diversity cases.\1012\
\1008\Interestingly enough, 1938 marked what seemed to be a
switching of positions vis-a-vis federal and state courts of substantive
law and procedural law. Under Tyson, federal courts in diversity actions
were free to formulate a federal common law, while they were required by
the Conformity Act, Sec. 5, 17 Stat. 196 (1872), to conform their
procedure to that of the State in which the court sat. Erie then ruled
that state substantive law was to control in federal court diversity
actions, while by implication matters of procedure in federal court were
subject to congressional governance. Congress authorized the Court to
promulgate rules of civil procedure, 48 Stat. 1064 (1934), which it did
in 1938, a few months after Erie was decided. 302 U.S. 783.
\1009\Guaranty Trust Co. v. York, 326 U.S. 99 (1945).
\1010\Id., 108-109.
\1011\Id., 109.
\1012\Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541
(1949) (state rule making unsuccessful plaintiffs liable for all
expenses and requiring security for such expenses as a condition of
proceeding applicable in federal court); Woods v. Interstate Realty Co.,
337 U.S. 535 (1949) (state statute barring foreign corporation not
qualified to do business in State applicable in federal court); Ragan v.
Merchants Transfer & Warehouse Co., 337 U.S. 530 (1949) (state rule
determinative when an action is begun for purposes of statute of
limitations applicable in federal court although a Federal Rule of Civil
Procedure states a different rule).
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But in two later cases, the Court contracted the application of
Erie in matters governed by the Federal Rules. Thus, in the earlier
case, the Court said that ``outcome'' was no longer the sole determinant
and countervailing considerations expressed in federal policy on the
conduct of federal trials should be considered; a state rule making it a
question for the judge rather than a jury of a particular defense in a
tort action had to yield to a federal policy enunciated through the
Seventh Amendment of favoring juries.\1013\ The latter ruling simplified
the matter greatly. Erie is not to be the proper test when the question
is the application of one of the Rules of Civil Procedure; if the rule
is valid when measured against the Enabling Act and the Constitution, it
is to be applied regardless of state law to the contrary.\1014\
\1013\Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S.
525 (1958).
\1014\Hanna v. Plumer, 380 U.S. 460 (1965).
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Although it seems clear that Erie applies in nondiversity cases
in which the source of the right sued upon is state law,\1015\ it is
equally clear that Erie is not applicable always in diversity cases
whether the nature of the issue be substantive or procedural. Thus,
[[Page 773]]
it may be that there is an overriding federal interest which compels
national uniformity of rules, such as a case in which the issue is the
appropriate rule for determining the liability of a bank which had
guaranteed a forged federal check,\1016\ in which the issue is the
appropriate rule for determining whether a tortfeasor is liable to the
United States for hospitalization of a soldier and loss of his
services,\1017\ and in which the issue is the appropriate rule for
determining the validity of a defense raised by a federal officer sued
for having libeled one in the course of his official duties.\1018\ In
such cases, when the issue is found to be controlled by federal law,
common or otherwise, the result is binding on state courts as well as on
federal.\1019\ Despite, then, Justice Brandeis' assurance that there is
no ``federal general common law,'' there is a common law existing and
developing in the federal courts, even in diversity cases, which will
sometimes control decision.\1020\
\1015\Maternally Yours v. Your Maternity Shop, 234 F. 2d 538,
540 n. 1 (2d Cir. 1956). The contrary view was implied in Levinson v.
Deupree, 345 U.S. 648, 651 (1953), and by Justice Jackson in D'Oench,
Duhme & Co. v. FDIC, 315 U.S. 447, 466-467, 471-472 (1942) (concurring
opinion). See Wichita Royalty Co. v. City National Bank, 306 U.S. 103
(1939).
\1016\Clearfield Trust Co. v. United States, 318 U.S. 363
(1943). See also National Metropolitan Bank v. United States, 323 U.S.
454 (1945); D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942); United
States v. Standard Rice Co., 323 U.S. 106 (1944); United States v. Acri,
348 U.S. 211 (1955); Ivanhoe Irrigation District v. McCracken, 357 U.S.
275 (1958); Bank of America National Trust & Savings Assn. v. Parnell,
352 U.S. 29 (1956). But see United States v. Yazell, 382 U.S. 341
(1966).
\1017\United States v. Standard Oil Co., 332 U.S. 301 (1947).
Federal law applies in maritime tort cases brought on the ``law side''
of the federal courts in diversity cases. Pope & Talbot v. Hawn, 346
U.S. 406 (1953).
\1018\Howard v. Lyons, 360 U.S. 593 (1959). Matters concerned
with our foreign relations also are governed by federal law in
diversity. Banco National de Cuba v. Sabbatino, 376 U.S. 398 (1964).
Federal common law also governs a government contractor defense in
certain cases. Boyle v. United Technologies Corp., 487 U.S. 500 (1988).
\1019\Free v. Bland, 369 U.S. 663 (1962); Yiatchos v. Yiatchos,
376 U.S. 306 (1964).
\1020\The quoted Brandeis phrase is in Erie Railroad Co. v.
Tompkins 304 U.S. 64, 78 (1938). On the same day Erie was decided, the
Court, in an opinion by Justice Brandeis, held that the issue of
apportionment of the waters of an interstate stream between two States
``is a question of `federal common law.''' Hinderlider v. La Plata River
& Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938). On the matter, see
Illinois v. City of Milwaukee, 406 U.S. 91 (1972).
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Controversies Between Citizens of the Same State Claiming Land
Under Grants of Different States
The genesis of this clause was in the report of the Committee of
Detail which vested the power to resolve such land disputes in the
Senate,\1021\ but this proposal was defeated in the Convention,\1022\
which then added this clause to the jurisdiction of the federal
judiciary without reported debate.\1023\ The motivation for this clause
was the existence of boundary disputes affecting ten States at the time
the Convention met. With the adoption of the North
[[Page 774]]
west Ordinance of 1787, the ultimate settlement of the boundary
disputes, and the passing of land grants by the States, this clause,
never productive of many cases, became obsolete.\1024\
\1021\2 M. Farrand, op. cit., n. 1, 162, 171, 184.
\1022\Id., 400-401.
\1023\Id., 431.
\1024\See Pawlet v. Clark, 9 Cr. (13 U.S.) 292 (1815). Cf. City
of Trenton v. New Jersey, 262 U.S. 182 (1923).
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Controversies Between a State, or the Citizens Thereof, and
Foreign States, Citizens, or Subjects
The scope of this jurisdiction has been limited both by judicial
decisions and the Eleventh Amendment. By judicial application of the law
of nations, a foreign state is immune from suit in the federal courts
without its consent,\1025\ an immunity which extends to suits brought by
States of the American Union.\1026\ Conversely, the Eleventh Amendment
has been construed to bar suits by foreign states against a State of the
United States.\1027\ Consequently, the jurisdiction conferred by this
clause comprehends only suits brought by a State against citizens or
subjects of foreign states, by foreign states against American citizens,
citizens of a State against the citizens or subjects of a foreign state,
and by aliens against citizens of a State.\1028\
\1025\The Schooner Exchange v. McFaddon, 7 Cr. (11 U.S.) 116
(1812); Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562 (1926); Compania
Espanola v. The Navemar, 303 U.S. 68 (1938); Guaranty Trust Co. v.
United States, 304 U.S. 126, 134 (1938).
\1026\Principality of Monaco v. Mississippi, 292 U.S. 313, 330
(1934).
\1027\Ibid.
\1028\But in the absence of a federal question, there is no
basis for jurisdiction between the subjects of a foreign State. Romero
v. International Terminal Operating Co., 358 U.S. 354 (1959). The
Foreign Sovereign Immunities Act of 1976, P.L. 94-538, 90 Stat. 2891,
amending various sections of title 28 U.S.C., comprehensively provided
jurisdictional bases for suits by and against foreign states and appears
as well to comprehend suits by an alien against a foreign state which
would be beyond the constitutional grant. However, in the only case in
which that matter has been an issue before it, the Court has construed
the Act as creating a species of federal question jurisdiction.
Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480 (1983).
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Suits by Foreign States.--The privilege of a recognized foreign
state to sue in the courts of another state upon the principle of comity
is recognized by both international law and American constitutional
law.\1029\ To deny a sovereign this privilege ``would manifest a want of
comity and friendly feeling.''\1030\ Although national sovereignty is
continuous, a suit in behalf of a national sovereign can be maintained
in the courts of the United States only by a government which has been
recognized by the political branches of our own government as the
authorized government of
[[Page 775]]
the foreign state.\1031\ As the responsible agency for the conduct of
foreign affairs, the State Department is the normal means of suggesting
to the courts that a sovereign be granted immunity from a particular
suit.\1032\ Once a foreign government avails itself of the privilege of
suing in the courts of the United States, it subjects itself to the
procedure and rules of decision governing those courts and accepts
whatever liabilities the court may decide to be a reasonable incident of
bringing the suit.\1033\ The rule that a foreign nation instituting a
suit in a federal district court cannot invoke sovereign immunity as a
defense to a counterclaim growing out of the same transaction has been
extended to deny a claim of immunity as a defense to a counterclaim
extrinsic to the subject matter of the suit but limited to the amount of
the sovereign's claim.\1034\ Moreover, certain of the benefits extending
to a domestic sovereign do not extend to a foreign sovereign suing in
the courts of the United States. A foreign state does not receive the
benefit of the rule which exempts the United States and its member
States from the operation of the statute of limitations, because those
considerations of public policy back of the rule are regarded as absent
in the case of the foreign sovereign.\1035\
\1029\The Sapphire, 11 Wall. (78 U.S.) 164, 167 (1871).
\1030\Ibid. This case also held that a change in the person of
the sovereign does not affect the continuity or rights of national
sovereignty, including the right to bring suit or to continue one that
has been brought.
\1031\Guaranty Trust Co. v. United States, 304 U.S. 126, 137
(1938), citing Jones v. United States, 137 U.S. 202, 212 (1890); Matter
of Lehigh Valley Railroad Company, 265 U.S. 573 (1924). Whether a
government is to be regarded as the legal representative of a foreign
state is, of course, a political question.
\1032\Ex parte Peru, 318 U.S. 578, 589 (1943), distinguishing
Compania Espanola v. The Navemar, 303 U.S. 68 (1938), which held that
where the Executive Department neither recognizes nor disallows the
claim of immunity, the court is free to examine that question for
itself. Under the latter circumstances, however, a claim that a foreign
vessel is a public ship and immune from suit must be substantiated to
the satisfaction of the federal court.
\1033\Guaranty Trust Co. v. United States, 304 U.S. 126, 134
(1938). Among other benefits which the Court cited as not extending to
foreign states as litigant included exemption from costs and from giving
discovery. Decisions were also cited to the effect that a sovereign
plaintiff ``should so far as the thing can be done, be put in the same
position as a body corporate.''
\1034\National Bank v. Republic of China, 348 U.S. 356, 361
(1955), citing 26 Dept. State Bull. 984 (1952), wherein the Department
``has pronounced broadly against recognizing sovereign immunity for the
commercial operations of a foreign government.''
\1035\Guaranty Trust Co. v. United States, 304 U.S. 126, 135,
137 (1938), citing precedents to the effect that a sovereign plaintiff
``should be put in the same position as a body corporate.''
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Indian Tribes.--Within the terms of Article III, an Indian tribe
is not a foreign state and hence cannot sue in the courts of the United
States. This rule was applied in the case of Cherokee Nation v.
Georgia,\1036\ where Chief Justice Marshall conceded that the Cherokee
Nation was a state, but not a foreign state, being a part of the United
States and dependent upon it. Other passages
[[Page 776]]
of the opinion specify the elements essential of a foreign state for
purposes of jurisdiction, such as sovereignty and independence.
\1036\5 Pet. (30 U.S.) 1, 16-20 (1831).
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Narrow Construction of the Jurisdiction.--As in cases of
diversity jurisdiction, suits brought to the federal courts under this
category must clearly state in the record the nature of the parties. As
early as 1809, the Supreme Court ruled that a federal court could not
take jurisdiction of a cause where the defendants were described in the
record as ``late of the district of Maryland,'' but were not designated
as citizens of Maryland, and plaintiffs were described as aliens and
subjects of the United Kingdom.\1037\ The meticulous care manifested in
this case appeared twenty years later when the Court narrowly construed
Sec. 11 of the Judiciary Act of 1789, vesting the federal courts with
jurisdiction when an alien was a party, in order to keep it within the
limits of this clause. The judicial power was further held not to extend
to private suits in which an alien is a party, unless a citizen is the
adverse party.\1038\ This interpretation was extended in 1870 by a
holding that if there is more than one plaintiff or defendant, each
plaintiff or defendant must be competent to sue or liable to suit.\1039\
These rules, however, do not preclude a suit between citizens of the
same State if the plaintiffs are merely nominal parties and are suing on
behalf of an alien.\1040\
\1037\Hodgson & Thompson v. Bowerbank, 5 Cr. (9 U.S.) 303
(1809).
\1038\Jackson v. Twentyman, 2 Pet. (27 U.S.) 136 (1829); Romero
v. International Terminal Operating Co., 358 U.S. 354 (1959).
\1039\Coal Co. v. Blatchford, 11 Wall. (78 U.S.) 172 (1871).
See, however, Lacassagne v. Chapuis, 144 U.S. 119 (1892), which held
that a lower federal court had jurisdiction over a proceeding to impeach
its former decree, although the parties were new and were both aliens.
\1040\Browne v. Strode, 5 Cr. (9 U.S.) 303 (1809).
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ARTICLE III
JUDICIAL DEPARTMENT
Section 2. Judicial Power and Jurisdiction
Clause 2. In all Cases affecting Ambassadors, other public Ministers
and Consuls, and those in which a State shall be a Party, the Supreme
Court shall have original Jurisdiction. In all other Cases before
mentioned, the Supreme Court shall have appellate Jurisdiction, both as
to Law and Fact, with such Exceptions, and under such Regulations as the
Congress shall make.
THE ORIGINAL JURISDICTION OF THE SUPREME COURT
From the beginning, the Supreme Court has assumed that its
original jurisdiction flows directly from the Constitution and is
[[Page 777]]
therefore self-executing without further action by Congress.\1041\ In
Chisholm v. Georgia,\1042\ the Court entertained an action of assumpsit
against Georgia by a citizen of another State. Congress in Sec. 3 of the
Judiciary Act of 1789\1043\ purported to invest the Court with original
jurisdiction in suits between a State and citizens of another State, but
it did not authorize actions of assumpsit in such cases nor did it
prescribe forms of process for the exercise of original jurisdiction.
Over the dissent of Justice Iredell, the Court, in opinions by Chief
Justice Jay and Justices Blair, Wilson, and Cushing, sustained its
jurisdiction and its power to provide forms of process and rules of
procedure in the absence of congressional enactments. The backlash of
state sovereignty sentiment resulted in the proposal and ratification of
the Eleventh Amendment, which did not, however, affect the direct flow
of original jurisdiction to the Court, although those cases to which
States were parties were now limited to States as party plaintiffs, to
two or more States disputing, or to United States suits against
States.\1044\
\1041\But in Sec. 13 of the Judiciary Act of 1789, 1 Stat. 80,
Congress did so purport to convey the jurisdiction and the statutory
conveyance exists today. 28 U.S.C. Sec. 1251. It does not, however,
exhaust the listing of the Constitution.
\1042\Dall. (2 U.S.) 419 (1793). In an earlier case, the point
of jurisdiction was not raised. Georgia v. Brailsford, 2 Dall. (2 U.S.)
402 (1792).
\1043\1 Stat. 80.
\1044\On the Eleventh Amendment, see infra. On suits involving
States as parties, see supra.
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By 1861, Chief Justice Taney could confidently enunciate, after
review of the precedents, that in all cases where original jusrisdiction
is given by the Constitution, the Supreme Court has authority ``to
exercise it without further act of Congress to regulate its powers or
confer jurisdiction, and that the court may regulate and mould the
process it uses in such manner as in its judgment will best promote the
purposes of justice.''\1045\
\1045\Kentucky v. Dennison, 24 How. (65 U.S.) 66, 98 (1861).
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Although Chief Justice Marshall apparently assumed the Court had
exclusive jurisdiction of cases within its original jurisdiction,\1046\
Congress from 1789 on gave the inferior federal courts concurrent
jurisdiction in some classes of such cases.\1047\ Sustained in the early
years on circuit,\1048\ this concurrent jurisdiction was finally
approved by the Court itself.\1049\ The Court has also relied on the
first Congress' interpretation of the meaning of Article III
[[Page 778]]
in declining original jurisdiction of an action by a State to enforce a
judgment for a precuniary penalty awarded by one of its own
courts.\1050\ Noting that Sec. 13 of the Judiciary Act had referred to
``controversies of a civil nature,'' Justice Gray declared that it ``was
passed by the first Congress assembled under the Constitution, many of
whose members had taken part in framing that instrument, and is
contemporaneous and weighty evidence of its true meaning.''\1051\
\1046\Marbury v. Madison, 1 Cr. (5 U.S.) 137, 174 (1803).
\1047\In Sec. 3 of the 1789 Act. The present division is in 28
U.S.C. Sec. 1251.
\1048\United States v. Ravara, 2 Dall. (2 U.S.) 297 (C.C.Pa.
1793).
\1049\Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657
(1838); Bors v. Preston, 111 U.S. 252 (1884); Ames v. Kansas ex rel.
Johnson, 111 U.S. 449 (1884). Such suits could be brought and maintained
in state courts as well, the parties willing. Plaquemines Tropical Fruit
Co. v. Henderson, 170 U.S. 511 (1898); Ohio ex rel. Poporici v. Alger,
280 U.S. 379 (1930).
\1050\Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).
\1051\Id., 297. See also the dictum in Cohens v. Virginia, 6
Wheat. (19 U.S.) 264, 398-399 (1821); Chisholm v. Georgia, 2 Dall. (2
U.S.) 419, 431-432 (1793).
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However, another clause of Sec. 13 of the Judiciary Act of 1789
was not accorded the same presumption by Chief Justice Marshall, who,
interpreting it as giving the Court power to issue a writ of mandamus on
an original proceeding, declared that as Congress could not restrict the
original jurisdiction neither could it enlarge it and pronounced the
clause void.\1052\ While the Chief Justice's interpretation of the
meaning of the clause may be questioned, no one has questioned the
constitutional principle thereby proclaimed. Although the rule deprives
Congress of power to expand or contract the jurisdiction, it allows a
considerable latitude of interpretation to the Court itself. In some
cases, as in Missouri v. Holland,\1053\ the Court has manifested a
tendency toward a liberal construction of its original jurisdiction, but
the more usual view is that ``our original jurisdiction should be
invoked sparingly.''\1054\ Original jurisdiction ``is limited and
manifestly to be sparingly exercised, and should not be expanded by
construction.''\1055\ Exercise of its original jurisdiction is not
obligatory on the Court but discretionary, to be determined on a case-
by-case basis on grounds of practical necessity.\1056\ It is to be
honored ``only in appropriate cases. And the
[[Page 779]]
question of what is appropriate concerns of course the seriousness and
dignity of the claim; yet beyond that it necessarily involves the
availability of another forum where there is jurisdiction over the named
parties, where the issues tendered may be litigated, and where
appropriate relief may be had. We incline to a sparing use of our
original jurisdiction so that our increasing duties with the appellate
docket will not suffer.''\1057\ But where claims are of sufficient
``seriousness and dignity,'' in which resolution by the judiciary is of
substantial concern, the Court will hear them.\1058\
\1052\Marbury v. Madison, 1 Cr. (5 U.S.) 137 (1803). The Chief
Justice declared that ``a negative or exclusive sense'' had to be given
to the affirmative enunciation of the cases to which original
jurisdiction extends. Id., 174. This exclusive interpretation has been
since followed. Ex parte Bollman, 4 Cr. (8 U.S.) 75 (1807); New Jersey
v. New York, 5 Pet. (30 U.S.) 284 (1831); Ex parte Barry, 2 How, (43
U.S.) 65 (1844); Ex parte Vallandigham, 1 Wall. (68 U.S.) 243, 252
(1864); Ex parte Yerger, 8 Wall. (75 U.S.) 85, 98 (1869). In the curious
case of Ex parte Levitt, 302 U.S. 633 (1937), the Court was asked to
unseat Justice Black on the ground that his appointment violated Article
I. Sec. 6, cl.2. Although it rejected petitioner's application, the
Court did not point out that it was being asked to assume original
jurisdiction in violation of Marbury v. Madison.
\1053\252 U.S. 416 (1920). See also South Carolina v.
Katzenbach, 383 U.S. 301 (1966), and Oregon v. Mitchell, 400 U.S. 112
(1970).
\1054\Utah v. United States, 394 U.S. 89, 95 (1968).
\1055\California v. Southern Pacific Co., 157 U.S. 229, 261
(1895). Indeed, the use of the word ``sparingly'' in this context is all
but ubiquitous. E.g., Wyoming v. Oklahoma, 112 S.Ct. 789, 798-800
(1992); Maryland v. Louisiana, 451 U.S. 725, 739 (1981); United States
v. Nevada, 412 U.S. 534, 538 (1973).
\1056\Texas v. New Mexico, 462 U.S. 554, 570 (1983).
\1057\Illinois v. City of Milwaukee, 406 U.S. 91, 93-94 (1972).
In this case, and in Washington v. General Motors Corp., 406 U.S. 109
(1972), and Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971), the
Court declined to permit adjudication of environmental pollution cases
manifestly within its original jurisdiction because the nature of the
cases required the resolution of complex, novel, and technical factual
questions not suitable for resolution at the Court's level as a matter
of initial decision but which could be brought in the lower federal
courts. Not all such cases, however, were barred. Vermont v. New York
406 U.S. 186 (1972) (granting leave to file complaint). In other
instances, notably involving ``political questions,'' cf. Massachusetts
v. Mellon, 262 U.S. 447 (1923), the Court has simply refused permission
for parties to file bills of complaint without hearing them on the issue
or producing an opinion. E.g., Massachusetts v. Laird, 400 U.S. 886
(1970) (constitutionality of United States action in Indochina);
Delaware v. New York, 385 U.S. 895 (1966) (constitutionality of
electoral college under one-man, one-vote rule).
\1058\Wyoming v. Oklahoma, 112 S.Ct. 789, 798-799 (1982). The
principles are the same whether the Court's jurisdiction is exclusive or
concurrent. Texas v. New Mexico, 462 U.S. 554 (1983); California v. West
Virginia, 454 U.S. 1027 (1981); Arizona v. New Mexico, 425 U.S. 794
(1976).
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Cl 2.--Power of Congress to Control the Federal Courts
POWER OF CONGRESS TO CONTROL THE FEDERAL COURTS
The Theory of Plenary Congressional Control
Unlike its original jurisdiction, the appellate jurisdiction of
the Supreme Court is subject to ``exceptions and regulations''
prescribed by Congress, and the jurisdiction of the inferior federal
courts is subject to congressional prescription. Additionally, Congress
has power to regulate modes and practices of proceeding on the part of
the inferior federal courts. Whether there are limitations to the
exercise of these congressional powers, and what the limitations may be,
are matters that have vexed scholarly and judicial interpretation over
the years, inasmuch as congressional displeasure with judicial decisions
has sometimes led to successful efforts to ``curb'' the courts and more
frequently to proposed but unsuccessful curbs.\1059\ Supreme Court
holdings establish clearly the
[[Page 780]]
breadth of congressional power, and numerous dicta assert an even
broader power, but that Congress may through the exercise of its powers
vitiate and overturn constitutional decisions and restrain the exercise
of constitutional rights is an assertion often made but not sustained by
any decision of the Court.
\1059\A classic but now dated study is Warren, Legislative and
Judicial Attacks on the Supreme Court of the United States--A History of
the Twenty-Fifth Section of the Judiciary Act, 47 Am. L. Rev. 1, 161
(1913). The most comprehensive consideration of the constitutional issue
is Hart, The Power of Congress to Limit the Jurisdiction of Federal
Courts: An Exercise in Dialectic, 66 Harv, L. Rev. 1362 (1953),
reprinted in Hart & Wechsler, op. cit., n.250, 393.
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Appellate Jurisdiction.--In Wiscart v. D'Auchy,\1060\ the issue
was whether the statutory authorization for the Supreme Court to review
on writ of error circuit court decisions in ``civil actions'' gave it
power to review admiralty cases.\1061\ A majority of the Court decided
that admiralty cases were ``civil actions'' and thus reviewable; in the
course of decision, it was said that ``[i]f Congress had provided no
rule to regulate our proceedings, we cannot exercise an appellate
jurisdiction; and if the rule is provided, we cannot depart from
it.''\1062\ Much the same thought was soon to be expressed by Chief
Justice Marshall, although he seems to have felt that in the absence of
congressional authorization, the Court's appellate jurisdiction would
have been measured by the constitutional grant. ``Had the judicial act
created the supreme court, without defining or limiting its
jurisdiction, it must have been considered as possessing all the
jurisdiction which the constitution assigns to it. The legislature would
have exercised the power it possessed of creating a supreme court, as
ordained by the constitution; and in omitting to exercise the right of
excepting from its constitutional powers, would have necessarily left
those powers undiminished.
\1060\3 Dall. (3 U.S) 321 (1796).
\1061\Judiciary Act of 1789, Sec. 22, 1 Stat. 84.
\1062\Wiscart v. D'Auchy, 3 Dall. (3 U.S.) 321, 327 (1796). The
dissent thought that admiralty cases were not ``civil actions'' and thus
that there was no appellate review. Id., 326-327. See also Clarke v.
Bazadone, 1 Cr. (5 U.S.) 212 (1803); Turner v. Bank of North America, 4
Dall. (4 U.S.) 8 (1799).
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``The appellate powers of this court are not given by the
judicial act. They are given by the constitution. But they are limited
and regulated by the judicial act, and by such other acts as have been
passed on the subject.''\1063\ Later Justices viewed the matter
differently than had Marshall. ``By the constitution of the United
States,'' it was said in one opinion, ``the Supreme Court possesses no
appellate power in any case, unless conferred upon it by act of
Congress.''\1064\ In order for a case to come within its appellate
jurisdiction, the Court has said, ``two things must concur: the Con
[[Page 781]]
stitution must give the capacity to take it, and an act of Congress must
supply the requisite authority.'' Moreover, ``it is for Congress to
determine how far, within the limits of the capacity of this court to
take, appellate jurisdiction shall be given, and when conferred, it can
be exercised only to the extent and in the manner prescribed by law. In
these respects it is wholly the creature of legislation.''\1065\
\1063\Durousseau v. United States, 6 Cr. (10 U.S.) 307, 313-314
(1810). ``Courts which are created by written law, and whose
jurisdiction is defined by written law, cannot transcend that
jurisdiction.'' Ex parte Bollman, 4 Cr. (4 U.S.) 75, 93 (1807) (Chief
Justice Marshall). Marshall had earlier expressed his Durousseau
thoughts in United States v. More, 3 Cr. (7 U.S.) 159 (1805).
\1064\Barry v. Mercein, 5 How. (46 U.S.) 103, 119 (1847) (case
held nonreviewable because minimum jurisdictional amount not alleged).
\1065\Daniels v. Railroad Co., 3 Wall. (70 U.S.) 250, 254 (1865)
(case held nonreviewable because certificate of division in circuit did
not set forth questions in dispute as provided by statute.)
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This congressional power, conferred by the language of Article
III, Sec. 2, cl. 2, which provides that all jurisdiction not original is
to be appellate, ``with such Exceptions, and under such Regulations as
the Congress shall make,'' has been utilized to forestall a decision
which the congressional majority assumed would be adverse to its course
of action. In Ex parte McCardle,\1066\ the Court accepted review on
certiorari of a denial of a petition for a writ of habeas corpus by the
circuit court; the petition was by a civilian convicted by a military
commission of acts obstructing Reconstruction. Anticipating that the
Court might void, or at least undermine, congressional reconstruction of
the Confederate States, Congress enacted over the President's veto a
provision repealing the act which authorized the appeal McCardle had
taken.\1067\ Although the Court had already heard argument on the
merits, it then dismissed for want of jurisdiction.\1068\ ``We are not
at liberty to inquire into the motives of the legislature. We can only
examine into its power under the Constitution; and the power to make
exceptions to the appellate jurisdiction of this court is given by
express words.
\1066\6 Wall. (73 U.S.) 318 (1868). That Congress' apprehensions
might have had a basis in fact, see C. Fairman, History of the Supreme
Court of the United States: Vol. VI, Pt. I--Reconstruction and Reunion
1864-88 (New York: 1971), 493-495. McCardle is fully reviewed in id.,
433-514.
\1067\By the Act of February 5, 1867, Sec. 1, 14 Stat. 386,
Congress had authorized appeals to the Supreme Court from circuit court
decisions denying habeas corpus. Previous to this statute, the Court's
jurisdiction to review habeas corpus decisions, based in Sec. 14 of the
Judiciary Act of 1789, 1 Stat. 81, was somewhat fuzzily conceived.
Compare United States v. Hamilton, 3 Dall. (3 U.S.) 17 (1795), and Ex
parte Burford, 3 Cr. (7 U.S.) 448 (1806), with Ex parte Bollman, 4 Cr.
(8 U.S.) 75 (1807). The repealing statute was the Act of March 27, 1868,
15 Stat. 44. The repealed act was reenacted March 3, 1885. 23 Stat. 437.
\1068\Ex parte McCardle, 7 Wall. (74 U.S.) 506 (1869). In the
course of the opinion, Chief Justice Chase speculated about the Court's
power in the absence of any legislation in tones reminiscent of
Marshall's comments. Id., 513.
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``What, then, is the effect of the repealing act upon the case
before us? We cannot doubt as to this. Without jurisdiction the court
cannot proceed at all in any cause. Jurisdiction is power to declare the
law, and when it ceases to exist, the only function remaining to the
court is that of announcing the fact and dismissing the
[[Page 782]]
cause.''\1069\ Although McCardle grew out of the stresses of
Reconstruction, the principle there applied has been similarly affirmed
and applied in later cases.\1070\
\1069\Id., 514.
\1070\Thus, see Justice Frankfurter's remarks in National Mutual
Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 655 (1948)
(dissenting): ``Congress need not give this Court any appellate power;
it may withdraw appellate jurisdiction once conferred and it may do so
even while a case is sub judice.'' In The Francis Wright, 105 U.S. 381,
385-386 (1882), upholding Congress' power to confine Supreme Court
review in admiralty cases to questions of law, the Court said: ``[W]hile
the appellate power of this court under the Constitution extends to all
cases within the judicial power of the United States, actual
jurisdiction under the power is confined within such limits as Congress
sees fit to prescribe. . . . What those powers shall be, and to what
extent they shall be exercised, are, and always have been, proper
subjects of legislative control. Authority to limit the jurisdiction
necessarily carries with it authority to limit the use of the
jurisdiction. Not only may whole classes of cases be kept out of the
jurisdiction altogether, but particular classes of questions may be
subjected to reexamination and review, while others are not.'' See also
Luckenbuch S. S. Co. v. United States, 272 U.S. 533, 537 (1926);
American Construction Co. v. Jacksonville, T. & K.W. RY., 148 U.S. 372,
378 (1893); United States v. Bitty, 208 U.S. 393 (1908); United States
v. Young, 94 U.S. 258 (1876). Numerous restrictions on the exercise of
appellate jurisdiction have been upheld. E.g., Congress for a hundred
years did not provide for a right of appeal to the Supreme Court in
criminal cases, except upon a certification of division by the circuit
court: at first appeal was provided in capital cases and then in others.
F. Frankfurter & J. Landis, op. cit., n. 12, 79, 109-120. Other
limitations noted heretofore include minimum jurisdictional amounts,
restrictions of review to questions of law and to questions certified
from the circuits, and the scope of review of state court decisions of
federal constitutional questions. See Walker v. Taylor, 5 How. (46 U.S.)
64 (1847). Though McCardle is the only case in which Congress
successfully forestalled an expected decision by shutting off
jurisdiction, other cases have been cut off while pending on appeal,
either inadvertently, Insurance Co. v. Ritchie, 5 Wall. (72 U.S.) 541
(1866), or intentionally, Railroad Co. v. Grant, 98 U.S. 398 (1878), by
raising the requirements for jurisdiction without a reservation for
pending cases. See also Bruner v. United States, 343 U.S. 112 (1952);
District of Columbia v. Eslin, 183 U.S. 62 (1901).
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Jurisdiction of the Inferior Federal Courts.--The Framers, as we
have seen,\1071\ divided with regard to the necessity of courts inferior
to the Supreme Court, simply authorized Congress to create such courts,
in which, then, judicial power ``shall be vested'' and to which nine
classes of cases and controversies ``shall extend.''\1072\ While Justice
Story deemed it imperative of Congress to create inferior federal courts
and, when they had been created, to vest them with all the jurisdiction
they were capable of receiving,\1073\ the First Congress acted upon a
wholly different theory. Inferior courts were created, but jurisdiction
generally over cases involving the Constitution, laws, and treaties of
the United States was not given them, diversity jurisdiction was limited
by a minimal jurisdictional
[[Page 783]]
amount requirement and by a prohibition on creation of diversity through
assignments, equity jurisdiction was limited to those cases where a
``plain, adequate, and complete remedy'' could not be had at law.\1074\
This care for detail in conferring jurisdiction upon the inferior
federal courts bespoke a conviction by Members of Congress that it was
within their power to confer or to withhold jurisdiction at their
discretion. The cases have generally sustained this view.
\1071\Supra, pp.597-598, 599-600.
\1072\Article III, Sec. 1, 2.
\1073\Martin v. Hunter's Lessee. 1 Wheat. (14 U.S.) 304, 374
(1816). For an effort to reframe Justice Story's position in modern
analytical terms, see the writings of Professors Amar and Clinton,
supra, n.134; infra, n.1098.
\1074\Judiciary Act of 1789, 1 Stat. 73. See Warren, New Light
on the History of the Judiciary Act of 1789, 37 Harv. L. Rev. 49 (1923).
A modern study of the first Judiciary Act that demonstrates the
congressional belief in discretion to structure jurisdiction is Casto,
The First Congress's Understanding of Its Authority over the Federal
Courts' Jurisdiction, 26 B. C. L. Rev. 1101 (1985).
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Thus, in Turner v. Bank of North America,\1075\ the issue was
the jurisdiction of the federal courts in a suit to recover on a
promissory note between two citizens of the same State but in which the
note had been assigned to a citizen of a second State so that suit could
be brought in federal court under its diversity jurisdiction, a course
of action prohibited by Sec. 11 of the Judiciary Act of 1789.\1076\
Counsel for the bank argued that the grant of judicial power by the
Constitution was a direct grant of jurisdiction, provoking from Chief
Justice Ellsworth a considered doubt\1077\ and from Justice Chase a firm
rejection. ``The notion has frequently been entertained, that the
federal courts derive their judicial power immediately from the
constitution: but the political truth is, that the disposal of the
judicial power (except in a few specified instances) belongs to
Congress. If Congress has given the power to this Court, we possess it,
not otherwise: and if Congress has not given the power to us, or to any
other Court, it still remains at the legislative disposal. Besides,
Congress is not bound, and it would, perhaps, be inexpedient, to enlarge
the jurisdiction of the federal courts, to every subject, in every form,
which the constitution might warrant.''\1078\ Applying Sec. 11, the
Court held that the circuit court had lacked jurisdiction.
\1075\4 Dall. (4 U.S.) 8 (1799).
\1076\"``N]or shall any district or circuit court have
cognizance of any suit to recover the contents of any promissory note or
other chose in action in favour of an assignee, unless a suit might have
been prosecuted in such court to recover the said contents if no
assignment had been made, except in cases of foreign bills of
exchange.'' 1 Stat. 79.
\1077\Turner v. Bank of North America, 4 Dall. (4 U.S.) 8, 10
(1799).
\1078\Ibid.
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Chief Justice Marshall himself soon made similar
assertions,\1079\ and the early decisions of the Court continued to be
[[Page 784]]
sprinkled with assumptions that the power of Congress to create inferior
federal courts necessarily implied ``the power to limit jurisdiction of
those Courts to particular objects.''\1080\ In Cary v. Curtis,\1081\ a
statute making final the decision of the Secretary of the Treasury in
certain tax disputes was challenged as an unconstitutional deprivation
of the judicial power of the courts. The Court decided otherwise.
``[T]he judicial power of the United States, although it has its origin
in the Constitution, is (except in enumerated instances applicable
exclusively to this court), dependent for its distribution and
organization, and for the modes of its exercise, entirely upon the
action of Congress, who possess the sole power of creating tribunals
(inferior to the Supreme Court), for the exercise of the judicial power,
and 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.''\1082\ Five years later, the validity of the assignee clause of
the Judiciary Act of 1789\1083\ was placed in issue in Sheldon v.
Sill,\1084\ in which diversity of citizenship had been created by
assignment of a negotiable instrument. It was argued that inasmuch as
the right of a citizen of any State to sue citizens of another flowed
directly from Article III, Congress could not restrict that right.
Unanimously, the Court rejected these contentions and held that because
the Constitution did not create inferior federal courts but rather
authorized Congress to create them, Congress was also empowered to
define their jurisdiction and to withhold jurisdiction of any of the
enumerated cases and controversies in Article III. The case and the
principle has been cited and reaffirmed numerous times,\1085\ and has
been quite recently applied.\1086\
\1079\In Ex parte Bollman, 4 Cr. (8 U.S.) 75, 93 (1807),
Marshall observed that ``courts which are created by written law, and
whose jurisdiction is defined by written law, cannot transcend that
jurisdiction.''
\1080\United States v. Hudson & Goodwin, 7 Cr. (11 U.S.) 32, 33
(1812). Justice Johnson continued: ``All other Courts [beside the
Supreme Court] created by the general Government possess no jurisdiction
but what is given them by the power that creates them, and can be vested
with none but what the power ceded to the general Government will
authorize them to confer.'' See also Rhode Island v. Massachusetts, 12
Pet. (37 U.S.) 657, 721-722 (1838).
\1081\3 How. (44 U.S.) 236 (1845).
\1082\Id., 244-245. Justices McLean and Story dissented, arguing
that the right to construe the law in all matters of controversy is of
the essence of judicial power, Id., 264.
\1083\Supra, n.1076.
\1084\8 How. (49 U.S.) 441 (1850).
\1085\E.g., Kline v. Burke Construction Co., 260 U.S. 226, 233-
234 (1922); Ladew v. Tennessee Copper Co., 218 U.S. 357, 358 (1910);
Venner v. Great Northern R. Co., 209 U.S. 24, 35 (1908); Kentucky v.
Powers, 201 U.S. 1, 24 (1906); Stevenson v. Fain, 195 U.S. 165, 167
(1904); Plaquemines Fruit Co. v. Henderson, 170 U.S. 511, 513-521
(1898); The Mayor v. Cooper, 6 Wall, (73 U.S.) 247, 251-252 (1868).
\1086\By the Voting Rights Act of 1965, Congress required
covered States that wished to be relieved of coverage to bring actions
to this effect in the District Court of the District of Columbia. In
South Carolina v. Katzenbach, 383 U.S. 301, 331 (1966), Chief Justice
Warren for the Court said: ``Despite South Carolina's argument to the
contrary, Congress might appropriately limit litigation under this
provision to a single court in the District of Columbia, pursuant to its
constitutional power under Art. III, Sec. 1, to `ordain and establish'
inferior federal tribunals.'' See also Palmore v. United States, 411
U.S. 389, 400-402 (1973); Swain v. Pressley, 430 U.S. 372 (1977). And
see Taylor v. St. Vincent's Hosp., 369 F. Supp. 948 (D. Mont. 1973),
affd., 523 F.2d 75 (9th Cir.), cert. den., 424 U.S. 948 (1976).
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[[Page 785]]
Congressional Control Over Writs and Processes.--The Judiciary
Act of 1789 contained numerous provisions relating to the times and
places for holding court, even of the Supreme Court, to times of
adjournment, appointment of officers, issuance of writs, citations for
contempt, and many other matters which it might be supposed courts had
some authority of their own to regulate.\1087\ The power to enjoin
governmental and private action has frequently been curbed by Congress,
especially as the action has involved the power of taxation at either
the federal or state level.\1088\ Though the courts have variously
interpreted these restrictions,\1089\ they have not denied the power to
impose them.
\1087\1 Stat. 73. For a comprehensive discussion with
itemization, see 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 (1924).
\1088\The Act of March 2, 1867, 10, 14 Stat. 475, as amended,
now 26 U.S.C. Sec. 7421 (federal taxes): Act of August 21, 1937, 50
Stat. 738, 28 U.S.C. Sec. 1341 (state taxes). See also Act of May 14,
1934, 48 Stat. 775, 28 U.S.C. Sec. 1342 (state rate-making).
\1089\Compare Snyder v. Marks, 109 U.S. 189 (1883), with Dodge
v. Brady, 240 U.S. 122 (1916); with Allen v. Regents, 304 U.S. 439
(1938).
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Reacting to judicial abuse of injunctions in labor
disputes,\1090\ Congress in 1932 enacted the Norris-La Guardia Act which
forbade the issuance of injunctions in labor disputes except through
compliance with a lengthy hearing and fact-finding process which
required the district judge to determine that only through the
injunctive process could irremediable harm through illegal conduct be
prevented.\1091\ The Court seemingly experienced no difficulty upholding
the Act,\1092\ and it has liberally applied it through the years.\1093\
\1090\F. Frankfurter & I. Greene, The Labor Injunction (New
York: 1930).
\1091\47 Stat. 70 (1932), 29 U.S.C. Sec. Sec. 101-115.
\1092\In Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938),
the Court simply declared: ``There can be no question of the power of
Congress thus to define and limit the jurisdiction of the inferior
courts of the United States.''
\1093\E.g., New Negro Alliance v. Sanitary Grocery Co., 303 U.S.
552 (1938); Brotherhood of Railroad Trainmen v. Chicago River & Indiana
R.R. Co., 353 U.S. 30 (1957); Boys Market v. Retail Clerks Union, 398
U.S. 235 (1970).
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Congress' power to confer, withhold, and restrict jurisdiction
is clearly revealed in the Emergency Price Control Act of 1942\1094\ and
in the cases arising from it. Fearful that the price control pro
[[Page 786]]
gram might be nullified by injunctions, Congress provided for a special
court in which persons could challenge the validity of price regulations
issued by the Government with appeal from the Emergency Court of Appeals
to the Supreme Court. The basic consitutionality of the Act was
sustained in Lockerty v. Phillips.\1095\ In Yakus v. United
States,\1096\ the Court upheld the provision of the Act which conferred
exclusive jurisdiction on the special court to hear challenges to any
order or regulation and foreclosed a plea of invalidity of any such
regulation or order as a defense to a criminal proceeding under the Act
in the regular district courts. Although Justice Rutledge protested in
dissent that this provision conferred jurisdiction on district courts
from which essential elements of the judicial power had been
abstracted,\1097\ Chief Justice Stone for the Court declared that the
provision presented no novel constitutional issue.
\1094\56 Stat. 23 (1942).
\1095\319 U.S. 182 (1943).
\1096\321 U.S. 414 (1944).
\1097\Id., 468. In United States v. Mendoza-Lopez, 481 U.S. 828
(1987), purportedly in reliance on Yakus and other cases, the Court held
that a collateral challenge must be permitted to the use of a
deportation proceeding as an element of a criminal offense where
effective judicial review of the deportation order had been denied. A
statutory scheme similar to that in Yakus was before the Court in Adamo
Wrecking Co. v. United States, 434 U.S. 275 (1978), but statutory
construction enabled the Court to pass by constitutional issues that
were not perceived to be insignificant. See esp. id., 289 (Justice
Powell concurring). See also Harrison v. PPG Industries, 446 U.S. 578
(1980), and id., 594 (Justice Powell concurring).
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The Theory Reconsidered
Despite the breadth of the language of many of the previously
cited cases, the actual holdings constitute something less than an
affirmance of plenary congressional power to do anything desired by
manipulation of jurisdiction and indeed the cases reflect certain
limitations. Setting to one side various formulations, such as mandatory
vesting of jurisdiction,\1098\ inherent judicial power,\1099\ and
[[Page 787]]
a theory, variously expressed, that the Supreme Court has ``essential
constitutional functions'' of judicial review that Congress may not
impair through jurisdictional limitations,\1100\ which lack textual and
subsequent judicial support, one can see nonetheless the possibilities
of restrictions on congressional power flowing from such basic
constitutional underpinnings as express prohibitions, separation of
powers, and the nature of the judicial function.\1101\ Whether because
of the plethora of scholarly writing contesting the existence of
unlimited congressional power or because of another reason, the Court of
late has taken to noting constitutional reservations about legislative
denials of jurisdiction for judicial review of constitutional issues and
construing statutes so as not to deny jurisdiction.\1102\
\1098\This was Justice Story's theory propounded in Martin v.
Hunter's Lessee, 1 Wheat. (14 U.S.) 304, 329-336 (1816). Nevertheless,
Story apparently did not believe that the constitutional bestowal of
jurisdiction was self-executing and accepted the necessity of statutory
conferral. White v. Fenner, 29 Fed. Cas. 1015 (No. 17,547) (C.C.D.R.I.
1818) (Justice Story). In the present day, it has been argued that the
presence in the jurisdictional-grant provisions of Article III of the
word ``all'' before the subject-matter grants - federal question,
admiralty. public ambassadors - mandates federal court review at some
level of these cases, whereas congressional discretion exists with
respect to party-defined jurisdiction - such as diversity. Amar, A Neo-
Federalist View of Article III: Separating the Two-Tiers of Federal
Jurisdiction, 65 B. U. L. Rev. 205 (1985); Amar, The Two-Tiered
Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990).
Rebuttal articles include Meltzer, The History and Structure of Article
III, id., 1569; Redish, Text, Structure, and Common Sense in the
Interpretation of Article III, id., 1633; and a response by Amar, id.,
1651. An approach similar to Professor Amar's is Clinton, A Mandatory
View of Federal Jurisdiction: A Guided Quest for the Original
Understanding of Article III, 132 U. Pa. L. Rev. 741 (1984); Clinton,
Early Implementation and Departures from the Constitutional Plan, 86
Colum. L. Rev. 1515 (1986). Though perhaps persuasive as an original
interpretation, both theories confront a large number of holdings and
dicta as well as the understandings of the early Congresses revealed in
their actions. See Casto, supra, n.1074.
\1099\Justice Brewer in his opinion for the Court in United
States v. Detroit Timber & Lumber Co., 200 U.S. 321, 339 (1906), came
close to asserting an independent, inherent power of the federal courts,
at least in equity. See also Paine Lumber Co. v. Neal, 244 U.S. 459,
473, 475-476 (1917) (Justice Pitney dissenting). The acceptance by the
Court of the limitations of the Norris-LaGuardia Act, among other
decisions, contradicts these assertions.
\1100\The theory was apparently first developed in Ratner,
Congressional Power Over the Appellate Jurisdiction of the Supreme
Court, 109 U. Pa. L. rev. 157 (1960). See also Ratner, Majoritarian
Constraints on Judicial Review: Congressional Control of Supreme Court
Jurisdiction, 27 Vill. L. Rev. 929 (1981-82). The theory was endorsed by
Attorney General William French Smith as the view of the Department of
Justice. 128 Cong. Rec. 9093-9097 (1982) (Letter to Hon. Strom
Thurmond).
\1101\An extraordinary amount of writing has been addressed to
the issue, only a fraction of which is touched on here. See Hart &
Wechsler, op. cit., n.250, 362-424.
\1102\Johnson v. Robison, 415 U.S. 361, 366-367 (1974);
Weinberger v. Salfi, 422 U.S. 749, 762 (1975); Bowen v. Michigan Academy
of Family Physicians, 476 U.S. 667, 681 n. 12 (1986); Webster v. Doe,
486 U.S. 592, 603 (1988). In the last cited case, Justice Scalia
attacked the reservation and argued for nearly complete congressional
discretion. Id., 611-615 (concurring).
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Ex parte McCardle\1103\ marks the furtherest advance of
congressional imposition of its will on the federal courts, and it is
significant because the curb related to the availability of the writ of
habeas corpus, which is marked out with special recognition by the
Constitution.\1104\
\1103\7 Wall (74 U.S.) 506 (1869). For the definitive analysis
of the case, see Van Alstyne, A Critical Guide to Ex Parte McCardle, 15
Ariz. L. Rev. 229 (1973).
\1104\Article I, Sec. 9, cl. 2.
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But how far did McCardle actually reach? In concluding its
opinion, the Court carefully observed: ``Counsel seem to have supposed,
if effect be given to the repealing act in question, that the whole
appellate power of the court, in cases of habeas corpus, is de
[[Page 788]]
nied. But this is an error. The act of 1868 does not exempt from that
jurisdiction any cases but appeals from Circuit Courts under the act of
1867. It does not affect the jurisdiction which was previously
exercised.''\1105\ A year later, in Ex parte Yerger,\1106\ the Court
held that it did have authority under the Judiciary Act of 1789 to
review on certiorari a denial by a circuit court of a petition for writ
of habeas corpus on behalf of one held by the military in the South. It
thus remains unclear whether the Court would have followed its language
suggesting plenary congressional control if the effect had been to deny
absolutely an appeal from a denial of a writ of habeas corpus.\1107\
\1105\Ex parte McCardle, 7 Wall, (74 U.S.) 506, 515 (1869).
\1106\8 Wall. (75 U.S.) 85 (1869). Yerger is fully reviewed in
C. Fairman, History of the Supreme Court of the United States: Vol. VI,
Pt. I--Reconstruction and Reunion, 1864-88 (New York: 1971), 558-618.
\1107\Cf. 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). Justice Douglas, with whom Justice Black joined, said in
Glidden Co. v. Zdanok, 370 U.S. 530, 605 n. 11 (1962) (dissenting
opinion): ``There is a serious question whether the McCardle case could
command a majority view today.'' Justice Harlan, however, cited McCardle
with apparent approval of its holding, id., 567-568, while noting that
Congress' ``authority is not, of course, unlimited.'' Id., 568. McCardle
was cited approvingly in Bruner v. United States, 343 U.S. 112, 117 n. 8
(1952), as illustrating the rule ``that when a law conferring
jurisdiction is repealed without any reservation as to pending cases,
all cases fall with the law. . . .''
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Another Reconstruction Congress attempt to curb the judiciary
failed in United States v. Klein,\1108\ in which a statute, couched in
jurisdictional terms, which attempted to set aside both the effect of a
presidential pardon and the judicial effectuation of such a pardon was
voided.\1109\ The statute declared that no pardon was to be admissible
in evidence in support of any claim against the United States in the
Court of Claims for the return of confiscated property of Confederates
nor, if already put in evidence in a pending case, should it be
considered on behalf of the claimant by the Court of
[[Page 789]]
Claims or by the Supreme Court on appeal. Proof of loyalty was required
to be made according to provisions of certain congressional enactments
and when judgment had already been rendered on other proof of loyalty
the Supreme Court on appeal should have no further jurisdiction and
should dismiss for want of jurisdiction. Moreover, it was provided that
the recitation in any pardon which had been received that the claimant
had taken part in the rebellion was to be taken as conclusive evidence
that the claimant had been disloyal and was not entitled to regain his
property.
\1108\13 Wall. (80 U.S.) 128 (1872). See C. Fairman, History of
the Supreme Court of the United States: Vol. VI, Pt. I--Reconstruction
and Reunion 1864-88 (New York: 1971), 558-618. The seminal discussion of
Klein may be found in Young, Congressional Regulation of Federal Courts'
Jurisdiction and Processes: United States v. Klein Revisited, 1981 Wisc.
L. Rev. 1189. While he granted that Klein is limited insofar as its
bearing on jurisdictional limitation per se is concerned, he cited an
ambiguous holding in Armstron v. United States, 13 Wall. (80 U.S.) 154
(1872), as in fact a judicial invalidation of a jurisdictional
limitation. Young, id., 1222-1223 n. 179.
\1109\Congress by the Act of July 17, 1862, Sec. Sec. 5, 13,
authorized the confiscation of property of those persons in rebellion
and authorized the President to issue pardons on such conditions as he
deemed expedient, the latter provision being unnecessary in light of
Article II, Sec. 2, cl. 1. The President's pardons all provided for
restoration of property, except slaves, and in United States v.
Padelford, 9 Wall, (76 U.S.) 531 (1870), the Court held the claimant
entitled to the return of his property on the basis of his pardon.
Congress thereupon enacted the legislation in question. 16 Stat. 235
(1870).
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The Court began by reaffirming that Congress controlled the
existence of the inferior federal courts and the jurisdiction vested in
them and the appellate jurisdiction of the Supreme Court. ``But the
language of this provision shows plainly that it does not intend to
withhold appellate jurisdiction except as a means to an end. . . . It is
evident . . . that the denial of jurisdiction to this court, as well as
to the Court of Claims, is founded solely on the application of a rule
of decision, in causes pending, prescribed by Congress. The Court has
jurisdiction of the cause to a given point; but when it ascertains that
a certain state of things exists, its jurisdiction is to cease and it is
required to dismiss the cause for want of jurisdiction.
``It seems to us that this is not an exercise of the
acknowledged power of Congress to make exceptions and prescribe
regulations to the appellate power.''\1110\ The statute was void for two
reasons; it ``infring[ed] the constitutional power of the
Executive,''\1111\ and it ``prescrib[ed] a rule for the decision of a
cause in a particular way.''\1112\ Klein thus stands for the proposition
that Congress may not violate the principle of separation of
powers\1113\ and that it may not accomplish certain forbidden
substantive acts by casting them in jurisdictional terms.\1114\
\1110\United States v. Klein, 13 Wall. (80 U.S.) 128, 145-146
(1872).
\1111\Id., 147.
\1112\Id., 146.
\1113\Id., 147. For an extensive discussion of Klein, see United
States v. Sioux Nation, 448 U.S. 371, 391-405 (1980), and id., 424, 427-
434 (Justice Rehnquist dissenting). See also Pope v. United States, 323
U.S. 1, 8-9 (1944); Glidden Co. v. Zdanok, 370 U.S. 530, 568 (1962)
(Justice Harlan). In Robertson v. Seattle Audubon Society, 112 S.Ct.
1407 (1992), the 9th Circuit had held unconstitutional under Klein a
statute that it construed to deny the federal courts power to construe
the law, but the Supreme Court held that Congress had changed the law
that the courts were to apply. The Court declined to consider whether
Klein was properly to be read as voiding a law ``because it directed
decisions in pending cases without amending any law.'' Id., 1414.
\1114\United States v. Klein, 13 Wall. (80 U.S.) 128, 147
(1872).
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Other restraints on congressional power over the federal courts
may be gleaned from the opinion in the much-disputed Crowell v.
[[Page 790]]
Benson.\1115\ In an 1856 case, the Court distinguished between matters
of private right which from their nature were the subject of a suit at
the common law, equity, or admiralty and which cannot be withdrawn from
judicial cognizance and those matters of public right which, though
susceptible of judicial determination, did not require it and which
might or might not be brought within judicial cognizance.\1116\ What
this might mean was elaborated in Crowell v. Benson,\1117\ involving the
finality to be accorded administrative findings of jurisdictional facts
in compensation cases. In holding that an employer was entitled to a
trial de novo of the constitutional jurisdictional facts of the matter
of the employer-employee relationship and of the occurrence of the
injury in interstate commerce, Chief Justice Hughes fused the due
process clause of the Fifth Amendment and Article III but emphasized
that the issue ultimately was ``rather a question of the appropriate
maintenance of the Federal judicial power'' and ``whether the Congress
may substitute for constitutional courts, in which the judicial power of
the United States is vested, an administrative agency . . . for the
final determination of the existence of the facts upon which the
enforcement of the constitutional rights of the citizen depend.'' The
answer was stated broadly. ``In cases brought to enforce constitutional
rights, the judicial power of the United States necessarily extends to
the independent determination of all questions, both of law and fact,
necessary to the performance of that supreme function. . . . We think
that the essential independence of the exercise of the judicial power of
the United States in the enforcement of constitutional rights requires
that the Federal court should determine such an issue upon its own
record and the facts elicited before it.''\1118\
\1115\285 U.S. 22 (1932). See also Ng Fung Ho v. White, 259 U.S.
276 (1922); Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287
(1920); St. Joseph Stock Yard Co. v. United States, 298 U.S. 38 (1936).
\1116\Murray's Lessee v. Hoboken Land & Improvement Co., 18 How.
(59 U.S.) 272 (1856).
\1117\285 U.S. 22 (1932). Justices Brandeis, Stone, and Roberts
dissented.
\1118\Id., 56, 60, 64.
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It is not at all clear that, in this respect, Crowell v. Benson
remains good law. It has never been overruled, and it has been cited
[[Page 791]]
by several Justices approvingly,\1119\ but the Court has never applied
the principle to control another case.\1120\
\1119\See Northern Pipeline Const. Co. v. Marathon Pipe Line
Co., 458 U.S. 50, 76-87 (1982) (plurality opinion), and id., 100-103,
109-111 (Justice White dissenting) (discussing the due process/Article
III basis of Crowell). Both the plurality and the dissent agreed that
later cases had ``undermined'' the constitutional/jurisdictional fact
analysis. Id., 82, n. 34; 110 n. 12. For other discussions, see
Jacobellis v. Ohio, 378 U.S. 184, 190 (1964) (Justice Brennan announcing
judgment of the Court, joined by Justice Goldberg); Pickering v. Board
of Education, 391 U.S. 563, 578-579 (1968); Agosto v. INS, 436 U.S. 748,
753 (1978); United States v. Raddatz, 447 U.S. 667, 682-684 (1980), and
id., 707-712 (Justice Marshall dissenting).
\1120\Compare Permian Basin Area Rate Cases, 390 U.S. 747, 767,
792 (1968); Cordillo v. Liberty Mutual Ins. Co., 330 U.S. 469 (1947);
South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251 (1940). Justice
Frankfurter was extremely critical of Crowell. Estep v. United States,
327 U.S. 114, 142 (1946); City of Yonkers v. United States, 320 U.S. 685
(1944).
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Express Constitutional Restrictions on Congress.--``[T]he
Constitution is filled with provisions that grant Congress or the States
specific power to legislate in certain areas;'' Justice Black said in a
different context, ``these granted powers are always subject to the
limitations that they may not be exercised in a way that violates other
specific provisions of the Constitution.''\1121\ The Supreme Court has
had no occasion to deal with this principle in the context of Congress'
power over its jurisdiction and the jurisdiction of the inferior federal
courts, but the passage of the Portal-to-Portal Act\1122\ presented the
lower courts such an opportunity. The Act extinguished back-pay claims
growing out of several Supreme Court interpretations of the Fair Labor
Standards Act; it also provided that no court should have jurisdiction
to enforce any claim arising from these decisions. While some district
courts sustained the Act on the basis of the withdrawal of jurisdiction,
this action was disapproved by the Courts of Appeals which indicated
that the withdrawal of jurisdiction would be ineffective if the
extinguishment of the claims as a substantive matter was invalid. ``We
think . . . that the exercise by Congress of its control over
jurisdiction is subject to compliance with at least the requirements of
the Fifth Amendment. That is to say, while Congress has the undoubted
power to give, withhold, and restrict the jurisdiction of the courts
other than the Supreme Court, it must not so exercise that power as to
deprive any person of life, liberty, or property without due
[[Page 792]]
process of law or to take private property without just
compensation.''\1123\
\1121\Williams v. Rhodes, 393 U.S. 23, 29 (1968) (opinion of the
Court.) The elder Justice Harlan perhaps had the same thought in mind
when he said that, with regard to Congress' power over jurisdiction,
``what such exceptions and regulations should be it is for Congress, in
its wisdom to establish, having of course due regard to all the
Constitution.'' United States v. Bitty, 208 U.S. 393, 399-400 (1908).
\1122\52 Stat. 1060, 29 U.S.C. Sec. 201.
\1123\Battaglia v. General Motors Corp., 169 F. 2d 254, 257 (2d
Cir.), cert. den. 335 U.S. 887 (1948) (Judge Chase). See also Seese v.
Bethlehem Steel Co., 168 F. 2d 58, 65 (4th Cir. 1948) (Chief Judge
Parker). For recent dicta, see Johnson v. Robison, 415 U.S. 361, 366-367
(1974); Weinberger v. Salfi, 422 U.S. 749, 761-762 (1975); Territory of
Guam v. Olsen, 431 U.S. 195, 201-202, 204 (1977); Adamo Wrecking Co. v.
United States, 434 U.S. 275 (1978); Bowen v. Michigan Academy of Family
Physicians, 476 U.S. 667, 681 n. 12 (1986); Webster v. Doe, 486 U.S.
592, 603 (1988); but see id., 611-615 (Justice Scalia dissenting). Note
the relevance of United States v. Mendoza-Lopez, 481 U.S. 828 (1987).
---------------------------------------------------------------------------
Conclusion.--There thus remains a measure of doubt that
Congress' power over the federal courts is as plenary as some of the
Court's language suggests it is. Congress has a vast amount of
discretion in conferring and withdrawing and structuring the original
and appellate jurisdiction of the inferior federal courts and the
appellate jurisdiction of the Supreme Court; so much is clear from the
practice since 1789 and the holdings of many Court decisions. That its
power extends to accomplishing by means of its control over jurisdiction
actions which it could not do directly by substantive enactment is by no
means clear from the text of the Constitution nor from the cases.
FEDERAL-STATE COURT RELATIONS
Problems Raised by Concurrency
The Constitution established a system of government in which
total power, sovereignty, was not unequivocally lodged in one level of
government. In Chief Justice Marshall's words, ``our complex system
[presents] the rare and difficult scheme of one general government,
whose actions extend over the whole, but which possesses only certain
enumerated powers, and of numerous state governments, which retain and
exercise all powers not delegated to the Union. . . .'' Naturally, in
such a system, ``contests respecting power must arise.''\1124\ Contests
respecting power may frequently arise in a federal system with dual
structures of courts exercising concurrent jurisdiction in a number of
classes of cases. Too, the possibilities of frictions grow out of the
facts that one set of courts may interfere directly or indirectly with
the other through injunctive and declaratory processes, through the use
of habeas corpus and removal to release persons from the custody of the
other set, and through the refusal by state courts to be bound by
decisions of the United States Supreme Court. The relations between
federal and state courts are governed in part by constitutional law,
with respect, say, to state court interference with federal courts and
[[Page 793]]
state court refusal to comply with the judgments of federal tribunals,
in part by statutes, with respect to the federal law generally enjoining
federal-court interference with pending state court proceedings, and in
part by self-imposed rules of comity and restraint, such as the
abstention doctrine, all applied to avoid unseemly conflicts, which,
however, have at times occurred.
\1124\Gibbons v. Ogden. 9 Wheat. (22 U.S.) 1.204-205 (1824).
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Subject to congressional provision to the contrary, state courts
have concurrent jurisdiction over all the classes of cases and
controversies enumerated in Article III, except suits between States,
those to which the United States is a party, those to which a foreign
state is a party, and those within the traditional admiralty
jurisdiction.\1125\ Even within this last category, however, state
courts, though unable to prejudice the harmonious operation and
uniformity of general maritime law,\1126\ have concurrent jurisdiction
over cases that occur within the maritime jurisdiction when such
litigation assumes the form of a suit at common law.\1127\ Review of
state court decisions by the United States Supreme Court is intended to
protect the federal interest and promote uniformity of law and decision
relating to the federal interest.\1128\ The first category of conflict
surfaces here. The second broader category arises from the fact that
state interests, actions, and wishes, all of which may at times be
effectuated through state courts, are variously subject to restraint by
federal courts. Although the possibility always existed,\1129\ it became
much more significant and likely when, in the wake of the Civil War,
Congress bestowed general fed
[[Page 794]]
eral question jurisdiction on the federal courts,\1130\ enacted a series
of civil rights statutes and conferred jurisdiction on the federal
courts to enforce them,\1131\ and most important of all proposed and saw
to the ratification of the three constitutional amendments, especially
the Fourteenth, which made subject to federal scrutiny an ever-
increasing number of state actions.\1132\
\1125\See 28 U.S.C. Sec. Sec. 1251, 1331 et seq. Indeed, the
presumption is that states courts enjoy concurrent jurisdiction, and
Congress must explicity or implicitly confine jurisdiction to the
federal courts to oust the state courts. See Gulf Offshore Co. v. Mobil
Oil Corp., 453 U.S. 473, 477-484 (1981); Tafflin v. Levitt, 493 U.S. 455
(1990); Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990).
Federal courts have exclusive jurisdiction of the federal antitrust
laws, even though Congress has not spoken expressly or impliedly. See
General Investment Co. v. Lake Shore & Michigan Southern R. Co., 260
U.S. 261, 287 (1922). Justice Scalia has argued that, inasmuch as state
courts have jurisdiction generally because federal law is law for them,
Congress can provide exclusive federal jurisdiction only by explicit and
affirmative statement in the text of the statute, Tafflin v. Levitt,
supra, 469, but as can be seen that is not now the rule.
\1126\Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917).
\1127\Through the ``saving to suitors'' clause. 28 U.S.C.
Sec. 1333(1). See Madruga v. Superior Court, 346 U.S. 556, 560-561
(1954).
\1128\Supra, pp.597-598, 701-703. See 28 U.S.C. Sec. 1257.
\1129\E.g., by a suit against a State by a citizen of another
State directly in the Supreme Court, Chisholm v. Georgia, 2 Dall. (2
U.S.) 419 (1793), which was overturned by the Eleventh Amendment; by
suits in diversity or removal from state courts where diversity existed,
1 Stat. 78, 79; by suits by aliens on treaties, 1 Stat. 77, and,
subsequently, by removal from state courts of certain actions. 3 Stat.
198. And for some unknown reason, Congress passed in 1793 a statute
prohibiting federal court injunctions against state court proceedings.
See Toucey v. New York Life Ins. Co., 314 U.S. 118, 120-132 (1941).
\1130\Act of March 3, 1875, 18 Stat. 470.
\1131\Civil Rights Act of 1871, Sec. 1, 17 Stat. 13. The
authorization for equitable relief is now 42 U.S.C. Sec. 1983, while
jurisdiction is granted by 28 U.S.C. Sec. 1343.
\1132\See H. Wechsler, The Nationalization of Civil Liberties
and Civil Rights (Austin: 1969).
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The Autonomy of State Courts
Noncompliance With and Disobedience of Supreme Court Orders by
State Courts.--The United States Supreme Court when deciding cases on
review from the state courts usually remands the case to the state court
when it reverses for ``proceedings not inconsistent'' with the Court's
opinion. This disposition leaves open the possibility that unresolved
issues of state law will be decided adversely to the party prevailing in
the Supreme Court or that the state court will so interpret the facts or
the Court's opinion to the detriment of the party prevailing in the
Supreme Court.\1133\ When it is alleged that the state court has
deviated from the Supreme Court's mandate, the party losing below may
appeal again\1134\ or she may presumably apply for mandamus to compel
compliance.\1135\ Statutorily, the Court may attempt to overcome state
recalcitrance by a variety of specific forms of judgment.\1136\
[[Page 795]]
If, however, the state courts simply defy the mandate of the Court,
difficult problems face the Court, extending to the possibility of
contempt citations.\1137\
\1133\Hart & Wechsler, op. cit., n. 250, 518-521. Notable
examples include Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304
(1816); Cohens v. Virginia, 6 Wheat. (19 U.S.) 264 (1821); Ableman v.
Booth, 21 How. (62 U.S.) 506 (1859). For studies, see Note, Final
Disposition of State Court Decisions Reversed and Remanded by the
Supreme Court, October Term 1931 to October Term 1940, 55 Harv. L. Rev.
1357 (1942); Note, Evasion of Supreme Court Mandates in Cases Remanded
to State Courts Since 1941, 67 Harv. L. Rev. 1251 (1954); Schneider,
State Court Evasion of United States Supreme Court Mandates: A
Reconsideration of the Evidence, 7 Valp. L. Rev. 191 (1973).
\1134\Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304 (1816).
See 2 W. Crosskey, Politics and the Constitution in the History of the
United States (Chicago: 1953), 785-817; 1 C. Warren, The Supreme Court
in United States History (Boston: 1926), 442-453. For recent examples,
see NAACP v. Alabama, 360 U.S. 240, 245 (1959); NAACP v. Alabama ex rel.
Flowers, 377 U.S. 288 (1964), after remand, 277 Ala. 89, 167 So. 2d 171
(1964); Stanton v. Stanton, 429 U.S. 501 (1977); General Atomic Co. v.
Felter, 436 U.S. 493 (1978).
\1135\It does not appear that mandamus has ever actually issued.
See In re Blake, 175 U.S. 114 (1899); Ex parte Texas, 315 U.S. 8 (1942);
Fisher v. Hurst, 333 U.S. 147 (1948); Lavender v. Clark, 329 U.S. 674
(1946); General Atomic Co. v. Felter, 436 U.S. 493 (1978).
\1136\Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304 (1816);
McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 437 (1819); Gibbons v.
Ogden, 9 Wheat. (22 U.S.) 1, 239 (1824); Williams v. Bruffy, 102 U.S.
248 (1880) (entry of judgment); Tyler v. Maguire, 17 Wall. (84 U.S.) 253
(1873) (award of execution); Stanley v. Schwalby, 162 U.S. 255 (1896);
Poindexter v. Greenhow, 114 U.S. 270 (1885) (remand with direction to
enter a specific judgment). See 28 U.S.C. Sec. 1651(a), 2106.
\1137\See 18 U.S.C. Sec. 401. In United States v. Shipp, 203
U.S. 563 (1906), 214 U.S. 386 (1909); 215 U.S. 580 (1909), on action by
the Attorney General, the Court appointed a commissioner to take
testimony, rendered judgment of conviction, and imposed sentence on a
state sheriff who had conspired with others to cause the lynching of a
prisoner in his custody after the Court had allowed an appeal from a
circuit court's denial of a petition for a writ of habeas corpus. A
question whether a probate judge was guilty of contempt of an order of
the Court in failing to place certain candidates on the ballot was
certified to the district court, over the objections of Justices Douglas
and Harlan, who wished to follow the Shipp practice. In re Herndon, 394
U.S. 399 (1969). See In re Herndon, 325 F. Supp. 779 (M.D. Ala. 1971).
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The most spectacular disobedience of federal authority arose out
of the conflict between the Cherokees and the State of Georgia, which
was seeking to remove them and seize their lands, with the active
support of President Jackson.\1138\ In the first instance, after the
Court had issued a writ of error to the Georgia Supreme Court to review
the murder conviction of a Cherokee, Corn Tassel, and after the writ was
served, Corn Tassel was executed on the day set for the event, contrary
to the federal law that a writ of error superseded sentence until the
appeal was decided.\1139\ Two years later, Georgia again defied the
Court when in Worcester v. Georgia,\1140\ it set aside the conviction of
two missionaries for residing among the Indians without a license.
Despite the issuance of a special mandate to a local court to discharge
the missionaries, they were not released, and the State's governor
loudly proclaimed resistance. Consequently, the two remained in jail
until they agreed to abandon further efforts for their discharge by
federal authority and to leave the State, whereupon the governor
pardoned them.
\1138\1 C. Warren, The Supreme Court in United States History
(Boston: 1926), 729-779.
\1139\Id., 732-736.
\1140\6 Pet. (31 U.S.) 515 (1832).
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Use of State Courts in Enforcement of Federal Law.--Although the
states-rights proponents in the Convention and in the First Congress
wished to leave to the state courts the enforcement of federal law and
rights rather than to create inferior federal courts,\1141\ it was not
long before they or their successors began to argue that state courts
could not be required to adjudicate cases based on federal law. The
practice in the early years was to make the jurisdiction of federal
courts generally concurrent with that of state courts,\1142\ and early
Congresses imposed positive duties on
[[Page 796]]
state courts to enforce federal laws.\1143\ Reaction set in out of
hostility to the Embargo Acts, the Fugitive Slave Law, and other
measures,\1144\ and in Prigg v. Pennsylvania,\1145\ involving the
Fugitive Slave Law, the Court indicated that the States could not be
compelled to enforce federal law. After a long period, however, Congress
resumed its former practice,\1146\ which the Court sustained,\1147\ and
it went even further in the Federal Employers' Liability Act by not only
giving state courts concurrent jurisdiction but also by prohibiting the
removal of cases begun in state courts to the federal courts.\1148\
\1141\Supra, pp.597-598.
\1142\Judiciary Act of 1789, Sec. Sec. 9, 11, 1 Stat. 76, 78,
and see id., Sec. 25, 1 Stat. 85.
\1143\E.g., Carriage Tax Act, 1 Stat. 373 (1794); License Tax on
Wine & Spirits Act, 1 Stat. 376 (1794): Fugitive Slave Act, 1 Stat. 302
(1794); Naturalization Act of 1795, 1 Stat. 414; Alien Enemies Act of
1798, 1 Stat. 577. State courts in 1799 were vested with jurisdiction to
try criminal offenses against the postal laws. 1 Stat. 733, 28. The Act
of March 3, 1815, 3 Stat. 244, vested state courts with jurisdiction of
complaints, suits, and prosecutions for taxes, duties, fines, penalties,
and forfeitures. See Warren, Federal Criminal Laws and State Courts, 38
Harv. L. Rev. 545, 577-581 (1925).
\1144\Embargo Acts, 2 Stat. 453, 473, 499, 506, 528, 550, 605,
707 (1808-1812); 3 Stat. 88 (1813); Fugitive Slave Act, 1 Stat. 302
(1793).
\1145\16 Pet. (41 U.S.) 539, 615 (1842), See also Houston v.
Moore, 5 Wheat. (18 U.S.) 1, 69 (1820) (Justice Story dissenting);
United States v. Bailey, 9 Pet. (34 U.S.) 238, 259 (1835) (Justice
McLean dissenting). However, it was held that States could exercise
concurrent jurisdiction if they wished. Claflin v. Houseman, 93 U.S. 130
(1876), and cases cited.
\1146\E.g., Act of June 8, 1872, 17 Stat. 323.
\1147\Claflin v. Houseman, 93 U.S. 130 (1876).
\1148\35 Stat. 65 (1908), as amended, 45 U.S.C. Sec. Sec. 51-60.
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When Connecticut courts refused to enforce an FELA claim on the
ground that to do so was contrary to the public policy of the State, the
Court held on the basis of the supremacy clause that when Congress
enacts a law and declares a national policy, that policy is as much
Connecticut's and every other State's as it is of the collective United
States.\1149\ The Court's suggestion that the Act could be enforced ``as
of right, in the courts of the States when their jurisdiction, as
prescribed by local laws, is adequate to the occasion,''\1150\ leaving
the impression that state practice might in some instances preclude
enforcement in state courts, was given body when the Court upheld New
York's refusal to adjudicate an FELA claim which fell in a class of
cases in which claims under state law would not be entertained.\1151\
``[T]here is nothing in the Act of Congress that purports to force a
duty upon such Courts as against an otherwise valid excuse.''\1152\
However, ``[a]n excuse that
[[Page 797]]
is inconsistent with or violates federal law is not a valid excuse.
. . .''\1153\
\1149\Second Employers' Liability Cases (Mondou v. New York,
N.H. & H. R. Co.), 223 U.S. 1 (1912).
\1150\Id., 59.
\1151\Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377 (1929).
\1152\Id., 388. For what constitutes a valid excuse, compare
Missouri ex rel. Southern Ry. v. Mayfield, 340 U.S. 1 (1950), with
McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230 (1934). It appears
that generally state procedure must yield to federal when it would make
a difference in outcome. Compare Brown v. Western Ry. of Alabama, 338
U.S. 294 (1949), and Dice v. Akron, C. & Y. R. Co., 342 U.S. 359 (1952),
with Minneapolis & St. L. R. Co. v. Bombolis, 241 U.S. 211 (1916).
\1153\Howlett by Howlett v. Rose, 496 U.S. 356, 371 (1990). See
also Felder v. Casey, 487 U.S. 131 (1988).
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In Testa v. Katt,\1154\ the Court unanimously held that state
courts, at least in regard to claims and cases analogous to claims and
cases enforceable in those courts under state law, are as required to
enforce penal laws of the United States as they are to enforce remedial
laws. Respecting Rhode Island's claim that one sovereign cannot enforce
the penal laws of another, Justice Black observed that the assumption
underlying this claim flew ``in the face of the fact that the States of
the Union constitute a nation'' and the fact of the existence of the
supremacy clause.\1155\
\1154\330 U.S. 386 (1947).
\1155\Id., 389. See, for a discussion as well as an extension of
Testa, FERC v. Mississippi, 456 U.S. 742 (1982). Cases since Testa
requiring state court enforcement of federal rights have generally
concerned federal remedial laws. E.g., Charles Dowd Box Co. v. Courtney,
368 U.S. 502 (1962); Sullivan v. Little Hunting Park, 396 U.S. 229
(1969). The Court has approved state court adjudication under 42 U.S.C.
Sec. 1983, Maine v. Thiboutot, 448 U.S. 1, 3 n. 1 (1980), but curiously
in Martinez v. California, 444 U.S. 277, 283 n. 7 (1980) (emphasis by
Court), it noted that it has ``never considered . . . the question
whether a State must entertain a claim under 1983.'' See also Arkansas
Writers' Project, inc. v. Ragland, 481 U.S. 221, 234 n. 7 (1987)
(continuing to reserve question). But with Felder v. Casey, 487 U.S. 131
(1988), and Howlett by Howlett v. Rose, 496 U.S. 356 (1990), it seems
dubious that state courts could refuse. Enforcement is not limited to
federal statutory law; federal common law must similarly be enforced.
Free v. Brand, 369 U.S. 663 (1962).
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State Interference with Federal Jurisdiction.--It seems settled,
though not without dissent, that state courts have no power to enjoin
proceedings\1156\ or effectuation of judgments\1157\ of the federal
courts, with the exception of cases in which a state court has custody
of property in proceedings in rem or quasi in rem, where the state court
has exclusive jurisdiction to proceed and may enjoin parties from
further action in federal court.\1158\
\1156\Donovan v. City of Dallas, 377 U.S. 408 (1964), and cases
cited. Justices Harlan, Clark, and Stewart dissented, arguing that a
State should have power to enjoin vexatious, duplicative litigation
which would have the effect of thwarting a state-court judgment already
entered. See also Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44, 56
(1941) (Justice Frankfurter dissenting). In Riggs v. Johnson County, 6
Wall. (73 U.S.) 166 (1868), the general rule was attributed to the
complete independence of state and federal courts in their spheres of
action, but federal courts, of course may under certain circumstances
enjoin actions in state courts.
\1157\McKim v. Voorhies, 7 Cr. (11 U.S.) 279 (1812); Riggs v.
Johnson County, 6 Wall. (73 U.S.) 166 (1868).
\1158\Princess Lida v. Thompson, 305 U.S. 456 (1939). Nor do
state courts have any power to release by habeas corpus persons in
custody pursuant to federal authority. Ableman v. Booth, 21 How. (62
U.S.) 506 (1859); Tarble's Case, 13 Wall. (80 U.S.) 397 (1872).
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[[Page 798]]
Conflicts of Jurisdiction: Rules of Accommodation
Federal courts primarily interfere with state courts in three
ways: by enjoining proceedings in them, by issuing writs of habeas
corpus to set aside convictions obtained in them, and by adjudicating
cases removed from them. With regard to all three but particularly with
regard to the first, there have been developed certain rules plus a
statutory limitation designed to minimize needless conflict.
Comity.--``[T]he notion of `comity,''' Justice Black asserted,
is composed of ``a proper respect for state functions, a recognition of
the fact that the entire country is made up of a Union of separate state
governments, and a continuance of the belief that the National
Government will fare best if the States and their institutions are left
free to perform their separate functions in their separate ways. This,
perhaps for lack of a better and clearer way to describe it, is referred
to by many as `Our Federalism'. . . .''\1159\ Comity is a self-imposed
rule of judicial restraint whereby independent tribunals of concurrent
or coordinate jurisdiction act to moderate the stresses of coexistence
and to avoid collisions of authority. It is not a rule of law but ``one
of practice, convenience, and expediency''\1160\ which persuades but
does not command.
\1159\Younger v. Harris, 401 U.S. 37, 44 (1971). Compare Fair
Assessment in Real Estate Assn. v. McNary, 454 U.S. 100 (1981), with
id., 119-125 (Justice Brennan concurring, joined by three other
Justices).
\1160\Mast, Foos & Co. v. Stover Manufacturing Co., 177 U.S.
458, 488 (1900). Recent decisions emphasize comity as the primary reason
for restraint in federal court actions tending to interfere with state
courts. E.g., O'Shea v. Littleton, 414 U.S. 488, 499-504 (1974); Huffman
v. Pursue, Ltd., 420 U.S. 592, 599-603 (1975); Trainor v. Hernandez, 431
U.S. 434, 441 (1977); Moore v. Sims, 442 U.S. 415, 430 (1979). The Court
has also cited comity as a reason to restrict access to federal habeas
corpus. Francis v. Henderson, 425 U.S. 536, 541 and n. 31 (1976);
Wainwright v. Sykes, 433 U.S. 72, 83, 88, 90 (1977); Engle v. Isaac, 456
U.S. 107, 128-129 (1982). See also Rosewell v. LaSalle National Bank,
450 U.S. 503 (1981); Fair Assessment in Real Estate Assn. v. McNary, 454
U.S. 100 (1981) (comity limits federal court interference with state tax
systems). And see Missouri v. Jenkins, 495 U.S. 33 (1990).
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Abstention.--Perhaps the fullest expression of the concept of
comity may be found in the abstention doctrine. The abstention doctrine
instructs federal courts to abstain from exercising jurisdiction if
applicable state law, which would be dispositive of the controversy, is
unclear and a state court interpretation of the state law question might
obviate the necessity of deciding a federal constitutional issue.\1161\
Abstention is not proper, however, where the rel
[[Page 799]]
evant state law is settled,\1162\ nor where it is clear that the state
statute or action challenged is unconstitutional no matter how the state
court construes state law.\1163\ Federal jurisdiction is not ousted by
abstention; rather it is postponed.\1164\ Federal-state tensions would
be ameliorated through federal-court deference to the concept that state
courts are as adequate a protector of constitutional liberties as the
federal courts and through the minimization of the likelihood that state
programs would be thwarted by federal intercession. Federal courts would
benefit because time and effort would not be expended in decision of
difficult constitutional issues which might not require decision.\1165\
\1161\C. Wright, Handbook of the Law of Federal Courts (St.
Paul: 4th ed. 1983), 13. The basic doctrine was formulated by Justice
Frankfurter for the Court in Railroad Comm. v. Pullman Co., 312 U.S. 496
(1941). Other strands of the doctrine are that a federal court should
refrain from exercising jurisdiction in order to avoid needless conflict
with the administration by a State of its own affairs, Burford v. Sun
Oil Co., 319 U.S. 315 (1943); Alabama Pubic Service Comm. v. Southern
Ry., 341 U.S. 341 (1951); Great Lakes Dredge & Dock Co. v. Huffman, 319
U.S. 293 (1943); Martin v. Creasy, 360 U.S. 219 (1959); Moses H. Cone
Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983); New Orleans Public
Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350 (1989)
(carefully reviewing the scope of the doctrine), especially where state
law is unsettled. Meredith v. City of Winter Haven, 320 U.S. 228 (1943);
County of Allegheny v. Frank Mashuda Co., 360 U.S. 185 (1959); Louisiana
Power & Light Co. v. City of Thiobodaux, 360 U.S. 25 (1959). See also
Clay v. Sun Insurance Office Ltd., 363 U.S. 207 (1960). Also, while
pendency of an action in state court will not ordinarily cause a federal
court to abstain, there are ``exceptional'' circumstances in which it
should. Colorado River Water Conservation Dist. v. United States, 424
U.S. 800 (1976); Will v. Calvert Fire Insurance Co., 437 U.S. 655
(1978); Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983).
\1162\City of Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77
(1958); Zwickler v. Koota, 389 U.S. 241, 249-251 (1967). See Babbitt v.
United Farm Workers Nat. Union, 442 U.S. 289, 306 (1979) (quoting Harman
v. Forssenius, 380 U.S. 528, 534-535 (1965)).
\1163\Harman v. Forssenius, 380 U.S. 528, 534-535 (1965);
Babbitt v. United Farm Workers, 442 U.S. 289, 305-312 (1979). Abstention
is not proper simply to afford a state court the opportunity to hold
that a state law violates the federal Constitution. Wisconsin v.
Constanineau, 400 U.S. 433 (1971); Zablocki v. Redhail, 434 U.S. 374,
379 n. 5 (1978); Douglas v. Seacoast Products, 431 U.S. 265, 271 n. 4
(1977); City of Houston v. Hill, 482 U.S. 451 (1987) (``A federal court
may not properly ask a state court if it would care in effect to rewrite
a statute''). But if the statute is clear and there is a reasonable
possibility that the state court would find it in violation of a
distinct or specialized state constitutional provision, abstention may
be proper, Harris County Comrs. Court v. Moore, 420 U.S. 77 (1975);
Reetz v. Bozanich, 397 U.S. 82 (1970), although not if the state and
federal constitutional provisions are alike. Examining Bd. v. Flores de
Otero, 426 U.S. 572, 598 (1976).
\1164\American Trial Lawyers Assn. v. New Jersey Supreme Court,
409 U.S. 467, 469 (1973); Harrison v. NAACP, 360 U.S. 167 (1959).
Dismissal may be necessary if the state court will not accept
jurisdiction while the case is pending in federal court. Harris County
Comrs. v. Moore, 420 U.S. 77, 88 n. 14 (1975).
\1165\E.g., Spector Motor Service v. McLaughlin, 323 U.S. 101
(1944); Louisiana Power & Light Co. v. City of Thiobodaux, 360 U.S. 25
(1959); Harrison v. NAACP, 360 U.S. 167 (1959).
---------------------------------------------------------------------------
During the 1960s, the abstention doctrine was in disfavor with
the Supreme Court, suffering rejection in numerous cases, most of them
civil rights and civil liberties cases.\1166\ Time-consuming
[[Page 800]]
delays\1167\ and piecemeal resolution of important questions\1168\ were
cited as a too-costly consequence of the doctrine. Actions brought under
the civil rights statutes seem not to have been wholly subject to the
doctrine,\1169\ and for awhile cases involving First Amendment
expression guarantees seemed to be sheltered as well, but this is no
longer the rule.\1170\ Abstention developed robustly with Younger v.
Harris,\1171\ and its progeny.
\1166\McNeese v. Board of Education, 373 U.S. 668 (1963);
Griffin v. School Board, 377 U.S. 218 (1964); Hostetter v. Idlewild Bon
Voyage Liquor Corp., 377 U.S. 324 (1964); Baggett v. Bullitt, 377 U.S.
360 (1964); Davis v. Mann, 377 U.S. 678 (1964); Dombrowski v. Pfister,
380 U.S. 479 (1965); Harman v. Forssenius, 380 U.S. 528 (1965); Zwickler
v. Koota, 389 U.S. 241 (1967); Wisconsin v. Constanineau, 400 U.S. 433
(1971).
\1167\England v. Louisiana State Bd. of Medical Examiners, 375
U.S. 411, 426 (1964) (Justice Douglas concurring). See C. Wright,
Handbook of the Law of Federal Courts (St. Paul: 4th ed. 1983), 305.
\1168\Baggett v. Bullitt, 377 U.S. 360, 378-379 (1964). Both
consequences may be alleviated substantially by state adoption of
procedures by which federal courts may certify to the State's highest
court questions of unsettled state law which would be dispositive of the
federal court action. The Supreme Court has actively encouraged resort
to certification where it exists. Clay v. Sun Insurance Office Ltd., 363
U.S. 207 (1960); Lehman Brothers v. Schein, 416 U.S. 386 (1974);
Bellotti v. Baird, 428 U.S. 132, 151 (1976).
\1169\Compare Harrison v. NAACP, 360 U.S. 167 (1959), with
McNeese v. Board of Education, 373 U.S. 668 (1963).
\1170\Compare Baggett v. Bullitt, 377 U.S. 360 (1964), and
Dombrowski v. Pfister, 380 U.S. 479 (1965), with Younger v. Harris, 401
U.S. 37 (1971), and Samuels v. Mackell, 401 U.S. 66 (1971). See Babbitt
v. United Farm Workers, 442 U.S. 289, 305-312 (1979).
\1171\401 U.S. 37 (1971). There is room to argue whether the
Younger line of cases represents the abstention doctrine at all, but the
Court continues to refer to it in those terms. E.g., Ankenbrandt v.
Richards, 112 S.Ct. 2206, 2215 (1992).
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Exhaustion of State Remedies.--A complainant will ordinarily be
required, as a matter of comity, to exhaust all his state legislative
and administrative remedies before seeking relief in federal court where
such remedies are, of course, available.\1172\ To do so may make
unnecessary federal-court adjudication. The complainant will ordinarily
not be required, however, to exhaust his state judicial remedies,
inasmuch as it is a litigant's choice to proceed in either state or
federal courts when the alternatives exist and a question for judicial
adjudication is present.\1173\ But when a litigant is suing for
protection of federally-guaranteed civil rights, he need not exhaust any
kind of state remedy.\1174\
\1172\The rule was formulated in Prentis v. Atlantic Coast Line
Co., 211 U.S. 210 (1908), and Bacon v. Rutland R. Co., 232 U.S. 134
(1914).
\1173\City Bank Farmers' Trust Co. v. Schnader, 291 U.S. 24
(1934); Lane v. Wilson, 307 U.S. 268 (1939). But see Alabama Public
Service Comm. v. Southern Ry. Co., 341 U.S. 341 (1951). Exhaustion of
state court remedies is required in habeas corpus cases and usually in
suits to restrain state court proceedings.
\1174\Patsy v. Board of Regents, 457 U.S. 496 (1982). Where
there are pending administrative proceedings that fall within the
Younger rule, a litigant must exhaust. Younger v. Harris, 401 U.S. 37
(1971), as explicated in Ohio Civil Rights Comm. v. Dayton Christian
School, Inc., 477 U.S. 619, 627 n. 2 (1986). Under title VII of the
Civil Rights Act of 1964, barring employment discrimination on racial
and other specified grounds, the EEOC may not consider a claim until a
state agency having jurisdiction over employment discrimination
complaints has had at least 60 days to resolve the matter. 42 U.S.C.
Sec. Sec. 2000e-5(c). See Love v. Pullman Co., 404 U.S. 522 (1972). And
under the Civil Rights of Institutionalized Persons Act, there is a
requirement of exhaustion, where States have federally-approved
procedures. See Patsy, supra, 507-513.
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[[Page 801]]
Anti-Injunction Statute.--For reasons unknown,\1175\ Congress in
1793 enacted a statute to prohibit the issuance of injunctions by
federal courts to stay state court proceedings.\1176\ Over time, a long
list of exceptions to the statutory bar was created by judicial
decision,\1177\ but in Toucey v. New York Life Ins. Co.,\1178\ the Court
in a lengthy opinion by Justice Frankfurter announced a very liberal
interpretation of the anti-junction statute so as to do away with
practically all the exceptions that had been created. Congress' response
was to redraft the statute and to indicate that it was restoring the
pre-Toucey interpretation.\1179\ Considerable disagreement exists over
the application of the statute, however, and especially with regard to
the exceptions permissible under its language. The present tendency
appears to be to read the law expansively and the exceptions
restrictively in the interest of preventing conflict with state
courts.\1180\ Nonetheless, some exceptions do exist, either expressly or
implicitly in statutory language\1181\ or
[[Page 802]]
through Court interpretation.\1182\ The Court's general policy of
application, however, seems to a considerable degree to effectuate what
is now at least the major rationale of the statute, deference to state
court adjudication of issues presented to them for decision.\1183\
\1175\Toucey v. New York Life Ins. Co., 314 U.S. 118, 130-132
(1941).
\1176\``[N]or shall a writ of injunction be granted to stay
proceedings in any court of a state; . . .'' Sec. 5, 1 Stat. 334 (1793),
now, as amended, 28 U.S.C. Sec. 2283.
\1177\Durfee & Sloss, Federal Injunctions Against Proceedings in
State Courts: The Life History of a Statute, 30 Mich. L. Rev. 1145
(1932).
\1178\314 U.S. 118 (1941).
\1179\``A Court of the United States may not grant an injunction
to stay proceedings in a State court except as expressly authorized by
Act of Congress, or where necessary in aid of its jurisdiction, or to
protect or effectuate its judgments.'' 28 U.S.C. Sec. 2283. The
Reviser's Note is appended to the statute, stating intent.
\1180\Amalgamated Clothing Workers v. Richman Bros., 348 U.S.
511 (1955); Atlantic Coast Line R. Co. v. Brotherhood of Locomotive
Engineers, 398 U.S. 281 (1970). See M. Redish, Federal Jurisdiction:
Tensions in the Allocation of Judicial Power (Charlottesville: 1980),
ch. 10.
\1181\The greatest difficulty is with the ``expressly authorized
by Act of Congress'' exception. No other Act of Congress expressly
refers to Sec. 2283 and the Court has indicated that no such reference
is necessary to create a statutory exception. Amalgamated Clothing
Workers v. Richman Bros., 348 U.S. 511, 516 (1955). Compare Capital
Serv, Inc. v. NLRB, 347 U.S. 501 (1954). Rather, ``in order to qualify
as an `expressly authorized' exception to the anti-injunction statute,
an Act of Congress must have created a specific and uniquely federal
right or remedy, enforceable in a federal court of equity, that could be
frustrated if the federal court were not empowered to enjoin a state
court proceeding.'' Mitchum v. Foster, 407 U.S. 225, 237 (1972).
Applying this test, the Court in Mitchum held that a 42 U.S.C. Sec. 1983
suit is an exception to Sec. 2283 and that persons suing under this
authority may, if they satisfy the requirements of comity, obtain an
injunction against state court proceedings. The exception is, of course,
highly constrained by the comity principle. On the difficulty of
applying the test, see Vendo Co. v. Lektco-Vend Corp., 433 U.S. 623
(1977) (fragmented Court on whether Clayton Act authorization of private
suits for injunctive relief is an ``expressly authorized'' exception to
Sec. 2283).
On the interpretation of the Sec. 2283 exception for injunctions
to protect or effectuate a federal-court judgment, see Chick Kam Choo v.
Exxon Corp., 486 U.S. 140 (1988).
\1182\Thus, the Act bars federal court restraint of pending
state court proceedings but not restraint of the institution of such
proceedings. Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2 (1965).
Restraint is not barred if sought by the United States or an officer or
agency of the United States. Leiter Minerals v. United States, 352 U.S.
220 (1957); NLRB v. Nash-Finch Co., 404 U.S. 138 (1971). Restraint is
not barred if the state court proceeding is not judicial but rather
administrative. Prentis v. Atlantic Coast Line Co., 211 U.S. 210 (1908);
Roudebush v. Hartke, 405 U.S. 15 (1972). Compare Hill v. Martin, 296
U.S. 393, 403 (1935), with Lynch v. Household Finance Corp., 405 U.S.
538, 552-556 (1972).
\1183\The statute is to be applied ``to prevent needless
friction between state and federal courts.'' Oklahoma Packing Co. v.
Oklahoma Gas & Electric Co., 309 U.S. 4, 9 (1940); Atlantic Coast Line
R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 285-286
(1970).
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Res Judicata.--Both the Constitution and a contemporaneously-
enacted statute require federal courts to give ``full faith and credit''
to state court judgments, to give, that is, preclusive effect to state
court judgments when those judgments would be given preclusive effect by
the courts of that State.\1184\ The present Court views the
interpretation of ``full faith and credit'' in the overall context of
deference to state courts running throughout this section. ``Thus, res
judicata and collateral estoppel not only reduce unnecessary litigation
and foster reliance on adjudication, but also promote the comity between
state and federal courts that has been recognized as a bulwark of the
federal system.''\1185\ The Court in this case, after reviewing
enactment of the statute that is now 42 U.S.C. Sec. 1983, held that
Sec. 1983 is not an exception to the mandate of the res judicata
statute.\1186\ An exception to Sec. 1738 ``will not be recognized unless
a later statute contains an express or implied partial repeal.''\1187\
Thus, a claimant who pursued his employment discrimination remedies
through state administrative procedures, as the federal law requires her
to do (within limits), and then appealed an adverse state agency
decision to state court will be precluded from bringing her federal
claim to federal court, since the
[[Page 803]]
federal court is obligated to give the state court decision ``full faith
and credit.''\1188\
\1184\Article IV, Sec. 1, of the Constitution; 28 U.S.C.
Sec. 1738.
\1185\Allen v. McCurry, 449 U.S. 90, 95-96 (1980).
\1186\Id., 96-105. There were three dissenters. Id., 105
(Justices Blackmun, Brennan, and Marshall). In England v. Louisiana
State Board of Medical Examiners, 375 U.S. 411 (1964), the Court held
that when parties are compelled to go to state court under Pullman
abstention, either party may reserve the federal issue and thus be
enabled to return to federal court without being barred by res judicata.
\1187\Kramer v. Chemical Construction Corp., 456 U.S. 461, 468
(1982).
\1188\Id., 468-476. There were four dissents. Id., 486 (Justices
Blackmun, Brennan, and Marshall), 508 (Stevens).
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Three-Judge Court Act.--When the Court in Ex parte Young\1189\
held that federal courts were not precluded by the Eleventh Amendment
from restraining state officers from enforcing state laws determined to
be in violation of the federal Constitution, serious efforts were made
in Congress to take away the authority thus asserted, but the result
instead was legislation providing that suits in which an interlocutory
injunction was sought against the enforcement of state statutes by state
officers were to be heard by a panel of three federal judges, rather
than by a single district judge, with appeal direct to the Supreme
Court.\1190\ The provision was designed to assuage state feeling by
vesting such determinations in a court more prestigious than a single-
judge district court, to assure a more authoritative determination, and
to prevent the assertion of individual predilections in sensitive and
emotional areas.\1191\ Because, however, of the heavy burden that
convening a three-judge court placed on the judiciary and that the
direct appeals placed on the Supreme Court, the provisions for such
courts, save in cases ``when otherwise required by an Act of
Congress''\1192\ or in cases involving state legislative or
congressional districting, were repealed in Congress in 1976.\1193\
\1189\209 U.S. 123 (1908).
\1190\36 Stat. 557 (1910). The statute was amended in 1925 to
apply to requests for permanent injunctions, 43 Stat. 936, and again in
1937 to apply to constitutional attacks on federal statutes. 50 Stat.
752.
\1191\Swift & Co. v. Wickham, 382 U.S. 111, 119 (1965); Ex parte
Collins, 277 U.S. 565, 567 (1928).
\1192\These now are primarily limited to suits under the Voting
Rights Act, 42 U.S.C. Sec. Sec. 1973b(a), 1973c, 1973h(c), and to
certain suits by the Attorney General under public accommodations and
equal employment provisions of the 1964 Civil Rights Act. 42 U.S.C.
Sec. Sec. 2000a-5(b), 2000e-6(b).
\1193\Pub. L. 94-381, 90 Stat. 1119, 28 U.S.C. Sec. 2284. In
actions still required to be heard by three-judge courts, direct appeals
are still available to the Supreme Court. 28 U.S.C. Sec. 1253.
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Conflicts of Jurisdiction; Federal Court Interference with State
Courts
One challenging the constitutionality, under the United States
Constitution, of state actions, statutory or otherwise, could, of
course, bring suit in state court; indeed, in the time before conferral
of federal-question jurisdiction on lower federal courts plaintiffs had
to bring actions in state courts, and on some occasions now, this has
been done.\1194\ But the usual course is to sue in federal
[[Page 804]]
court for either an injunction or a declaratory judgment or both. In an
era in which landmark decisions of the Supreme Court and of inferior
federal courts have been handed down voiding racial segregation
requirements, legislative apportionment and congressional districting,
abortion regulations, and many other state laws and policies, it is
difficult to imagine a situation in which it might be impossible to
obtain such rulings because no one required as a defendant could be
sued. Yet, the adoption of the Eleventh Amendment in 1798 resulted in
the immunity of the State,\1195\ and the immunity of state officers if
the action upon which they were being sued was state action,\1196\ from
suit without the State's consent. Ex parte Young\1197\ is a seminal case
in American constitutional law because it created a fiction by which the
validity of state statutes and other actions could be challenged by
suits against state officers as individuals.\1198\
\1194\For example, one of the cases decided in Brown v. Board of
Education, 347 U.S. 483 (1954), came from the Supreme Court of Delaware.
In Scott v. Germano, 381 U.S. 407 (1965), the Court set aside an order
of the district court refusing to defer to the state court which was
hearing an apportionment suit and said: ``The power of the judiciary of
a State to require valid reapportionment or to formulate a valid
redistricting plan has not only been recognized by this Court but
appropriate action by the States has been specifically encouraged.'' See
also Scranton v. Drew, 379 U.S. 40 (1964).
\1195\By its terms, the Eleventh Amendment bars only suits
against a State by citizens of other States, but in Hans v. Louisiana,
134 U.S. 1 (1890), the Court deemed it to embody principles of sovereign
immunity which applied to unconsented suits by its own citizens.
\1196\In re Ayers, 123 U.S. 443 (1887).
\1197\209 U.S. 123 (1908).
\1198\The fiction is that while the official is a state actor
for purposes of suit against him, the claim that his action is
unconstitutional removes the imprimatur of the State that would shield
him under the Eleventh Amendment. Id., 159-160.
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Conflict between federal and state courts is inevitable when the
federal courts are open to persons complaining about unconstitutional or
unlawful state action which could as well be brought in the state courts
and perhaps is so brought by other persons, but the various rules of
restraint flowing from the concept of comity reduce federal interference
here some considerable degree. It is rather in three fairly well defined
areas that institutional conflict is most pronounced.
Federal Restraint of State Courts by Injunctions.--Even where
the federal anti-injunction law is inapplicable, or where the question
of application is not reached,\1199\ those seeking to enjoin state court
proceedings must overcome substantial prudential barriers, among them
the abstention doctrine\1200\ and more important
[[Page 805]]
than that the equity doctrine that suits in equity are to be withheld
``in any case where plain, adequate and complete remedy may be had at
law.''\1201\ The application of this latter principle has been most
pronounced in the reluctance of federal courts to interfere with a
State's good faith enforcement of its criminal law. Here, the Court has
required of a litigant seeking to bar threatened state prosecution not
only a showing of irreparable injury which is both great and immediate
but an inability to defend his constitutional right in the state
proceeding. Certain types of injury, such as the cost, anxiety, and
inconvenience of having to defend against a single criminal prosecution,
are insufficient to be considered irreparable in this sense. Even if a
state criminal statute is unconstitutional, a person charged under it
usually has an adequate remedy at law by raising his constitutional
defense in the state trial.\1202\ The policy has never been stated as an
absolute, recognizing that in exceptional and limited circumstances,
such as the existence of factors making it impossible for a litigant to
protect his federal constitutional rights through a defense of the state
criminal charges or the bringing of multiple criminal charges, a federal
court injunction could properly issue.\1203\
\1199\28 U.S.C. Sec. 2283 may be inapplicable because no state
court proceeding is pending or because the action is brought under 42
U.S.C. Sec. 1983. Its application may never be reached because a court
may decide that equitable principles do not justify injunctive relief.
Younger v. Harris, 401 U.S. 37, 54 (1971).
\1200\Supra, pp.798-800.
\1201\The quoted phrase setting out the general principle is
from the Judiciary Act of 1789, Sec. 16, 1 Stat. 82.
\1202\The older cases areFenner v. Boykin 271 U.S. 240 (1926);
Spielman Motor Sales Co. v. Dodge, 295 U.S. 89 (1935); Beal v. Missouri
Pac. R. Co., 312 U.S. 45 (1941); Watson v. Buck, 313 U.S. 387 (1941);
Williams v. Miller, 317 U.S. 599 (1942); Douglas v. City of Jeannette,
319 U.S. 157 (1943). There is a stricter rule against federal restraint
of the use of evidence in state criminal trials. Stefanelli v. Minard,
342 U.S. 117 (1951); Pugach v. Dollinger, 365 U.S. 458 (1961). The Court
reaffirmed the rule in Perez v. Ledesma, 401 U.S. 82 (1971). State
officers may not be enjoined from testifying or using evidence gathered
in violation of federal constitutional restrictions, Cleary v. Bolger,
371 U.S. 392 (1963), but the rule is unclear with regard to federal
officers and state trials. Compare Rea v. United States, 350 U.S. 214
(1956), with Wilson v. Schnettler, 365 U.S. 381 (1961).
\1203\E.g., Douglas v. City of Jeannette, 319 U.S. 157, 163-164
(1943); Stefanelli v. Minard, 342 U.S. 117, 122 (1951). See also Terrace
v. Thompson, 263 U.S. 197, 214 (1923), Future criminal proceedings were
sometimes enjoined. E.g., Hague v. CIO, 307 U.S. 496 (1939).
---------------------------------------------------------------------------
In Dombrowski v. Pfister,\1204\ the Court appeared to change the
policy somewhat. The case on its face contained allegations and offers
of proof that may have been sufficient alone to establish the
``irreparable injury'' justifying federal injunctive relief.\1205\ But
the
[[Page 806]]
formulation of standards by Justice Brennan for the majority placed
great emphasis upon the fact that the state criminal statute in issue
regulated expression. Any criminal prosecution under a statute
regulating expression might of itself inhibit the exercise of First
Amendment rights, it was said, and prosecution under an overbroad\1206\
statute like the one in this case might critically impair exercise of
those rights. The mere threat of prosecution under such an overbroad
statute ``may deter . . . almost as potently as the actual application
of sanctions.''
\1204\380 U.S. 479 (1965). Grand jury indictments had been
returned after the district court had dissolved a preliminary
injunction, erroneously in the Supreme Court's view, so that it took the
view that no state proceedings were pending as of the appropriate time.
For a detailed analysis of the case, see Fiss, Dombrowski, 86 Yale L. J.
1103 (1977).
\1205\``[T]he allegations in this complaint depict a situation
in which defense of the State's criminal prosecution will not assure
adequate vindication of constitutional rights. They suggest that a
substantial loss of or impairment of freedoms of expression will occur
if appellants must await the state court's disposition and ultimate
review in this Court of any adverse determination. These allegations, if
true, clearly show irreparable injury.'' Id., 380 U.S., 485-486.
\1206\That is, a statute which reaches both protected and
unprotected expression and conduct.
---------------------------------------------------------------------------
In such cases, courts could no longer embrace the assumption
that defense of the criminal prosecution ``will generally assure ample
vindication of constitutional rights,'' because either the mere threat
of prosecution or the long wait between prosecution and final
vindication could result in a ``chilling effect'' upon First Amendment
rights.\1207\ The principle apparently established by the Court was two-
phased: a federal court should not abstain when there is a facially
unconstitutional statute infringing upon speech and application of that
statute to discourage protected activities, and the court should further
enjoin the state proceedings when there is prosecution or threat of
prosecution under an overbroad statute regulating expression if the
prosecution or threat of prosecution chills the exercise of freedom of
expression.\1208\ These formulations were reaffirmed in Zwickler v.
Koota,\1209\ in which a declaratory judgment was sought with regard to a
statute prohibiting anonymous election literature. Abstention was deemed
improper,\1210\ and further it was held that adjudication for purposes
of declaratory judgment is not hemmed in by considerations attendant
upon injunctive relief.\1211\
\1207\Id., 486-487.
\1208\See Cameron v. Johnson, 381 U.S. 741 (1965); Cameron v.
Johnson, 390 U.S. 611 (1968.)
\1209\389 U.S. 241 (1967). The state criminal conviction had
been reversed by a state court on state law grounds and no new charge
had been instituted.
\1210\It was clear that the statute could not be construed by a
state court and thus a federal constitutional decision rendered
unnecessary. Id., 248-252.
\1211\Id., 254.
---------------------------------------------------------------------------
The aftermath of the Dombrowski-Zwickler decisions was a
considerable expansion of federal-court adjudication of constitutional
attack through requests for injunctive and declaratory relief, which
gradually spread out from First Amendment areas to other
constitutionally-protected activities.\1212\ However, these develop
[[Page 807]]
ments were highly controversial and after three arguments on the issue,
the Court in a series of cases receded from its position and
circumscribed the discretion of the lower federal courts to a
considerable and ever-broadening degree.\1213\ The important difference
between this series of cases and Dombrowski-Zwickler was that in the
latter for particular reasons there were no prosecutions pending whereas
in the former there were. Nevertheless, the care with which Justice
Black for the majority undertook to distinguish and limit Dombrowski
signified a limitation of its doctrine, which proved partially true in
later cases.
\1212\Maraist, Federal Injunctive Relief Against State Court
Proceedings: The Significance of Dombrowski, 48 Tex. L. Rev. 535 (1970).
\1213\Younger v. Harris, 401 U.S. 37 (1971); Samuels v. Mackell,
401 U.S. 66 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Perez v.
Ledesma, 401 U.S. 82 (1971); Dyson v. Stein, 401 U.S. 200 (1971); Byrne
v. Karalexis, 401 U.S. 216 (1971).
---------------------------------------------------------------------------
Justice Black reviewed and reaffirmed the traditional rule of
reluctance to interfere with state court proceedings except in
extraordinary circumstances. The holding in Dombrowski, as distinguished
from some of the language, did not change the general rule, because
extraordinary circumstances had existed. Thus, Justice Black, with
considerable support from the other Justices,\1214\ went on to affirm
that where a criminal proceeding is already pending in a state court, if
it is a single prosecution about which there is no allegation that it
was brought in bad faith or that it was one of a series of repeated
prosecutions which would be brought, and the defendant may put in issue
his federal-constitutional defense at the trial, federal injunctive
relief is improper, even if it is alleged that the statute on which the
prosecution was based regulated expression and was overbroad.
\1214\Only Justice Douglas dissented. Id., 58. Justices Brennan,
White, and Marshall generally concurred in somewhat restrained fashion.
Id., 56, 75, 93.
---------------------------------------------------------------------------
Many statutes regulating expression were valid and some
overbroad statutes could be validly applied and attacks on facial
unconstitutionality abstracted from concrete factual situations was not
a sound judicial method. ``It is sufficient for purposes of the present
case to hold, as we do, that the possible unconstitutionality of a
statute `on its face' does not in itself justify an injunction against
good faith attempts to enforce it, and that appellee Harris has failed
to make any showing of bad faith, harassment, or any other unusual
circumstances that would call for equitable relief.''\1215\
\1215\Id., 54. On bad faith enforcement, see id., 56 (Justices
Stewart and Harlan concurring); 97 (Justices Brennan, White, and
Marshall concurring in part and dissenting in part). For an example, see
Universal Amusement Co. v. Vance, 559 F. 2d 1286, 1293-1301 (5th Cir.
1977), affd. per curiam sub nom., Dexter v. Butler, 587 F. 2d 176 (5th
Cir. (en banc), cert. den., 442 U.S. 929 (1979).
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[[Page 808]]
The reason for the principle, said Justice Black, flows from
``Our Federalism,'' which requires federal courts to defer to state
courts when there are proceedings pending in them.\1216\
\1216\Id., 44.
---------------------------------------------------------------------------
Moreover, in a companion case, the Court held that when
prosecutions are pending in state court, ordinarily the propriety of
injunctive and declaratory relief should be judged by the same
standards.\1217\ A declaratory judgment is as likely to interfere with
state proceedings as an injunction, whether the federal decision be
treated as res judicata or whether it is viewed as a strong precedent
guiding the state court. Additionally, ``the Declaratory Judgment Act
provides that after a declaratory judgment is issued the district court
may enforce it by granting `further necessary or proper relief' and
therefore a declaratory judgment issued while state proceedings are
pending might serve as the basis for a subsequent injunction against
those proceedings to `protect or effectuate' the declaratory judgment,
28 U.S.C. Sec. 2283, and thus result in a clearly improper interference
with the state proceedings.''\1218\
\1217\Samuels v. Mackell, 401 U.S. 66 (1971). The holding was in
line with Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943).
\1218\Samuels v. Mackell, 401 U.S. 66, 72 (1971).
---------------------------------------------------------------------------
When, however, there is no pending state prosecution, the Court
is clear, ``Our Federalism'' is not offended if a plaintiff in a federal
court is able to demonstrate a genuine threat of enforcement of a
disputed criminal statute, whether the statute is attacked on its face
or as applied, and becomes entitled to a federal declaratory
judgment.\1219\ And, in fact, when no state prosecution is pending, a
federal plaintiff need not demonstrate the existence of the Younger
factors to justify the issuance of a preliminary or permanent injunction
against prosecution under a disputed state statute.\1220\
\1219\Steffel v. Thompson, 415 U.S. 452 (1974).
\1220\Doran v. Salem Inn, 422 U.S. 922 (1975) (preliminary
injunction may issue to preserve status quo while court considers
whether to grant declaratory relief); Wooley v. Maynard, 430 U.S. 705
(1977) (when declaratory relief is given, permanent injunction may be
issued if necessary to protect constitutional rights). However, it may
not be easy to discern when state proceedings will be deemed to have
been instituted prior to the federal proceeding. E.g., Hicks v. Miranda,
422 U.S. 332 (1975); Huffman v. Pursue. Ltd., 420 U.S. 592 (1975); see
also Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 238 (1984).
---------------------------------------------------------------------------
Of much greater significance is the extension of Younger to
civil proceedings in state courts\1221\ and to state administrative
[[Page 809]]
proceedings of a judicial nature.\1222\ The principle is that the
Younger principle applies whenever in civil or administrative
proceedings important state interests are involved which the State, or
its officers or agency, is seeking to promote. Indeed, the presence of
important state interests in state proceedings has been held to raise
the Younger bar to federal relief in proceedings which are entirely
between private parties.\1223\ Comity, the Court said, requires
abstention when States have ``important'' interests in pending civil
proceedings between private parties,\1224\ as long as litigants are not
precluded from asserting federal rights. Thus, the Court explained,
``proper respect for the ability of state courts to resolve federal
questions presented in state court litigation mandates that the federal
court stay its hand.''\1225\
\1221\ Huffman v. Pursue, Ltd., 420 U.S. 592 (1975); Judice v.
Vail, 430 U.S. 327 (1977); Trainor v. Hernandez, 431 U.S. 434 (1977);
Moore v. Sims, 442 U.S. 415 (1979); Middlesex County Ethics Committee v.
Garden State Bar Assn, 457 U.S. 423 (1982).
\1222\Ohio Civil Rights Comm. v. Dayton Christian Schools, Inc.,
477 U.S. 619 (1986). The ``judicial in nature'' requirement is more
fully explicated in New Orleans Public Service, Inc. v. Council of City
of New Orleans, 491 U.S. 350, 366-373 (1989).
\1223\Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987).
\1224\``[T]he State's interest in protecting `the authority of
the judicial system, so that its orders and judgments are not rendered
nugatory''' was deemed sufficient. Id., 14 n. 12 (quoting Judice v.
Vail, 430U.S. 327, 336 n. 12 (1977)).
\1225\Id., 14.
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Habeas Corpus: Scope of the Writ.--At the English common law,
habeas corpus was available to attack pretrial detention and confinement
by executive order; it could not be used to question the conviction of a
person pursuant to the judgment of a court with jurisdiction over the
person. That common law meaning was applied in the federal courts.\1226\
Expansion began after the Civil War through more liberal court
interpretation of ``jurisdiction.'' Thus, one who had already completed
one sentence on a conviction was released from custody on a second
sentence on the ground that the court had lost jurisdiction upon
completion of the first sentence.\1227\ Then, the Court held that the
constitutionality of the statute upon which a charge was based could be
examined on habeas, because an unconstitutional statute was said to
deprive the trial court of its jurisdiction.\1228\ Other cases expanded
the want-of-jurisdiction rationale.\1229\ But the present status of the
writ of
[[Page 810]]
habeas corpus may be said to have been started in its development in
Frank v. Mangum,\1230\ in which the Court reviewed on habeas a murder
conviction in a trial in which there was substantial evidence of mob
domination of the judicial process. This issue had been considered and
rejected by the state appeals court. The Supreme Court indicated that,
though it might initially have had jurisdiction, the trial court could
have lost it if mob domination rendered the proceedings lacking in due
process.
\1226\Ex parte Watkins, 3 Pet. (28 U.S.) 193 (1830) (Chief
Justice Marshall); cf. Ex parte Parks, 93 U.S. 18 (1876). But see Fay v.
Noia, 372 U.S. 391, 404-415 (1963). It should be noted that the
expansive language used when Congress in 1867 extended the habeas power
of federal courts to state prisoners ``restrained of . . . liberty in
violation of the constitution, or of any treaty or law of the United
States. . . .'', 14 Stat. 385, could have encouraged an expansion of the
writ to persons convicted after trial.
\1227\Ex parte Lange, 18 Wall. (85 U.S.) 163 (1874).
\1228\Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Royall,
117 U.S. 241 (1886); Crowley v. Christensen, 137 U.S. 86 (1890); Yick Wo
v. Hopkins, 118 U.S. 356 (1886).
\1229\Ex parte Wilson, 114 U.S. 417 (1885); Nielsen, Petitioner,
131 U.S. 176 (1889); In re Snow, 120 U.S. 274 (1887); but see Ex parte
Parks, 93 U.S. 18 (1876); Ex parte Bigelow, 113 U.S. 328 (1885). It is
possible that the Court expanded the office of the writ because its
reviewing power over federal convictions was closely limited. F.
Frankfurter & J. Landis, op. cit., n. 12, 109-113. Once such review was
granted, the Court began to restrict the use of the writ. E.g., Glasgow
v. Moyer, 225 U.S. 420 (1912); In re Lincoln, 202 U.S. 178 (1906); In re
Morgan, 203 U.S. 96 (1906).
\1230\237 U.S. 309 (1915).
---------------------------------------------------------------------------
Further, in order to determine if there had been a denial of due
process, a habeas court should examine the totality of the process,
including the appellate proceedings. Since Frank's claim of mob
domination was reviewed fully and rejected by the state appellate court,
he had been afforded an adequate corrective process for any denial of
rights, and his custody was not in violation of the Constitution. Then,
eight years later, in Moore v. Dempsey,\1231\ involving another
conviction in a trial in which the court was alleged to have been
influenced by a mob and in which the state appellate court had heard and
rejected Moore's contentions, the Court directed that the federal
district judge himself determine the merits of the petitioner's
allegations.
\1231\261 U.S. 86 (1923).
---------------------------------------------------------------------------
Moreover, the Court shortly abandoned its emphasis upon want of
jurisdiction and held that the writ was available to consider
constitutional claims as well as questions of jurisdiction.\1232\ The
landmark case was Brown v. Allen,\1233\ in which the Court laid
[[Page 811]]
down several principles of statutory construction of the habeas statute.
First, all federal constitutional questions raised by state prisoners
are cognizable in federal habeas. Second, a federal court is not bound
by state court judgments on federal questions, even though the state
courts may have fully and fairly considered the issues. Third, a federal
habeas court may inquire into issues of fact as well as of law, although
the federal court may defer to the state court if the prisoner received
an adequate hearing. Fourth, new evidentiary hearings must be held when
there are unusual circumstances, when there is a ``vital flaw'' in the
state proceedings, or when the state court record is incomplete or
otherwise inadequate.
\1232\Waley v. Johnston, 316 U.S. 101 (1942). See also Johnson
v. Zerbst, 304 U.S. 458 (1938); Walker v. Johnson, 312 U.S. 275 (1941).
The way one reads the history of the developments is inevitably a
product of the philosophy one brings to the subject. In addition to the
recitations cited in other notes, compare Wright v. West, 112 S.Ct.
2482, 2486-2487 & n. 3 (1992) (Justice Thomas for a plurality of the
Court), with id., 2493-2495 (Justice O'Connor concurring).
\1233\344 U.S. 443 (1953). Brown is commonly thought to rest on
the assumption that federal constututional rights cannot be adequately
protected only by direct Supreme Court review of state court judgments
but that independent review, on habeas, must rest with federal judges.
It is, of course, true that Brown coincided with the extension of most
of the Bill of Rights to the States by way of incorporation and
expansive interpretation of federal constitutional rights; previously,
there was not a substantial corpus of federal rights to protect through
habeas. See Wright v. West, 112 S.Ct. 2482, 2493-2494 (1992) (Justice
O'Connor concurring). In Fay v. Noia, 372 U.S. 391 (1963), Justice
Brennan, for the Court, and Justice Harlan, in dissent, engaged in a
lengthy, informed historical debate about the legitimacy of Brown and
its premises. Compare id., 401-424, with id., 450-461. See the material
gathered and cited in Hart & Wechsler, op. cit., n. 250, 1487-1505.
---------------------------------------------------------------------------
Almost plenary federal habeas review of state court convictions
was authorized and rationalized in the Court's famous ``1963
trilogy.''\1234\ First, the Court dealt with the established principle
that a federal habeas court is empowered, where a prisoner alleges facts
which if proved would entitle him to relief, to relitigate facts, to
receive evidence and try the facts anew, and sought to lay down broad
guidelines in order to guide district courts as to when they must hold a
hearing and find facts.\1235\ ``Where the facts are in dispute, the
federal court in habeas corpus must hold an evidentiary hearing if the
habeas applicant did not receive a full and fair evidentiary hearing in
a state court, either at the time of the trial or
[[Page 812]]
in a collateral proceeding.''\1236\ To ``particularize'' this general
test, the Court went on to hold that an evidentiary hearing must take
place when (1) the merits of the factual dispute were not resolved in
the state hearing; (2) the state factual determination is not fairly
supported by the record as a whole; (3) the fact finding procedure
employed was not adequate to afford a full and fair hearing; (4) there
is a substantial allegation of newly discovered evidence; (5) the
material facts were not adequately developed at the state hearing; or
(6) for any reason it appears that the state trier of fact did not
afford the habeas applicant a full and fair fact hearing.\1237\
\1234\Sanders v. United States, 373 U.S. 1 (1963); Fay v. Noia,
372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 293 (1963). These cases
dealt, respectively, with the treatment to be accorded a habeas petition
in the three principal categories in which they come to the federal
court: when a state court has rejected petitioner's claims on the
merits, when a state court has refused to hear petitioner's claims on
the merits because she has failed properly or timely to present them, or
when the petition is a second or later petition raising either old or
new, or mixed, claims. Of course, as will be demonstrated infra, these
cases have now been largely drained of their force.
\1235\Townsend v. Sain, 372 U.S. 293, 310-312 (1963). If the
district judge concluded that the habeas applicant was afforded a full
and fair hearing by the state court resulting in reliable findings, the
Court said, he may, and ordinarily should, defer to the state
factfinding. Id., 318. Under the 1966 statutory revision, a habeas court
must generally presume correct a state court's written findings of fact
from a hearing to which the petitioner was a party. A state finding
cannot be set aside merely on a preponderance of the evidence and the
federal court granting the writ must include in its opinion the reason
it found the state findings not fairly supported by the record or the
existence of one or more listed factors justifying disregard of the
factfinding. P.L. 89-711, 80 Stat. 1105, 28 U.S.C. Sec. 2254(d). See
Sumner v. Mata, 449 U.S. 539 (1981); Sumner v. Mata, 455 U.S. 591
(1982); Marshall v. Lonberger, 459 U.S. 422 (1983); Patton v. Yount, 467
U.S. 1025 (1984); Parker v. Dugger, 498 U.S. 308 (1991); Burden v. Zant,
498 U.S. 433 (1991). The presumption of correctness does not apply to
questions of law or to mixed questions of law and fact. Miller v.
Fenton, 474 U.S. 104, 110-116 (1985). However, in Wright v. West, 112
S.Ct. 2482 (1992), the Justices argued inconclusively whether
deferential review of questions of law or especially of law and fact
should be adopted.
\1236\Townsend v. Sain, 372 U.S. 293, 312 (1963). The Court was
unanimous on the statement, but it divided 5-to-4 on application.
\1237\Id., 313-318. Congress in 1966 codified the factors in
somewhat different form but essentially codified Townsend. P.L. 89-711,
80 Stat. 1105, 28 U.S.C. Sec. 2254. The present Court is of the view
that Congress neither codified Townsend nor precluded the Court from
altering the Townsend standards. Keeney v. Tamayo-Reyes, 112 S.Ct. 1715,
1720 n. 5 (1992). Compare id., 1725-1727 (Justice O'Connor dissenting).
Keeney formally overruled part of Townsend. Id., 1717.
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Second, Sanders v. United States\1238\ dealt with two
interrelated questions: the effects to be given successive petitions for
the writ, when the second or subsequent application presented grounds
previously asserted or grounds not theretofore raised. Emphasizing that
``[c]onventional notions of finality of litigation have no place where
life or liberty is at stake and infringement of constitutional rights is
alleged,''\1239\ the Court set out generous standards for consideration
of successive claims. As to previously asserted grounds, the Court held
that controlling weight may be given to a prior denial of relief if (1)
the same ground presented was determined adversely to the applicant
before, (2) the prior determination was on the merits, and (3) the ends
of justice would not be served by reaching the merits of the subsequent
application, so that the habeas court might but was not obligated to
deny relief without considering the claim on the merits.\1240\ With
respect to grounds not
[[Page 813]]
previously asserted, a federal court considering a successive petition
could refuse to hear the new claim only if it decided the petitioner had
deliberately bypassed the opportunity in the prior proceeding to raise
it; if not, ``[n]o matter how many prior applications for federal
collateral relief a prisoner has made,'' the court must consider the
merits of the new claim.\1241\
\1238\373 U.S. 1 (1963). Sanders was a Sec. 2255 case, a federal
prisoner petitioning for postconviction relief. The Court applied the
same liberal rules with respect to federal prisoners as it did for
state. See Kaufman v. United States, 394 U.S. 217 (1969). As such, the
case has also been eroded by subsequent cases. E.g., Davis v. United
States, 411 U.S. 233 (1973); United States v. Frady, 456 U.S. 152
(1982).
\1239\Id., 373 U.S., 8. The statement accorded with the
established view that principles of res judicata were not applicable in
habeas. E.g., Price v. Johnston, 334 U.S. 266 (1948); Wong Doo v. United
States, 265 U.S. 239 (1924); Salinger v. Loisel, 265 U.S. 224 (1924).
Congress in 1948 had appeared to adopt some limited version of res
judicata for federal prisoners but not for state prisoners, Act of June
25, 1948, 62 Stat. 965, 967, 28 U.S.C. Sec. Sec. 2244, 2255, but the
Court in Sanders held the same standards applicable and denied the
statute changed existing caselaw. Id., 373 U.S., 11-14. But see id., 27-
28 (Justice Harlan dissenting).
\1240\Id., 15. In codifying the Sanders standards in 1966, P.L.
89-711, 80 Stat. 1104, 28 U.S.C. Sec. 2244(b), Congress omitted the
``ends of justice'' language. Although it was long thought that the
omission probably had no substantive effect, this may not be the case.
Kuhlmann v. Wilson, 477 U.S. 436 (1986).
\1241\Id., 373 U.S., 17-19.
---------------------------------------------------------------------------
Third, the most controversial of the 1963 cases, Fay v.
Noia,\1242\ dealt with the important issue of state defaults, of, that
is, what the effect on habeas is when a defendant in a state criminal
trial has failed to raise in a manner in accordance with state procedure
a claim which he subsequently wants to raise on habeas. If, for example,
a defendant fails to object to the admission of certain evidence on
federal constitutional grounds in accordance with state procedure and
within state time constraints, the state courts may therefore simply
refuse to address the merits of the claim, and the State's ``independent
and adequate state ground'' bars direct federal review of the
claim.\1243\ Whether a similar result prevailed upon habeas divided the
Court in Brown v. Allen,\1244\ in which the majority held that a
prisoner, refused consideration of his appeal in state court because his
papers had been filed a day late, could not be heard on habeas because
of his state procedural default. The result was changed in Fay v. Noia,
in which the Court held that the adequate and independent state ground
doctrine was a limitation only upon the Court's appellate review, but
that it had no place in habeas. A federal court has power to consider
any claim that has been procedurally defaulted in state courts.\1245\
\1242\372 U.S. 391 (1963). Fay was largely obliterated over the
years, beginning with Davis v. United States, 411 U.S. 233 (1973), a
federal-prisoner postconviction relief case, and Wainwright v. Sykes,
433 U.S. 72 (1977), but it was not formally overruled until Coleman v.
Thompson, 501 U.S. 722, 744-751 (1991).
\1243\E.g., Murdock v. City of Memphis, 20 Wall. (87 U.S.) 590
(1875); Herb v. Pitcairn, 324 U.S. 117 (1945). In the habeas context,
the procedural-bar rules are ultimately a function of the requirement
that petitioners first exhaust state avenues of relief before coming to
federal court.
\1244\344 U.S. 443 (1953).
\1245\Fay v. Noia, 372 U.S. 391, 424-434 (1963).
---------------------------------------------------------------------------
Still, the Court recognized that the States had legitimate
interests that were served by their procedural rules, and that it was
important that state courts have the opportunity to afford a claimant
relief to which he might be entitled. Thus, a federal court had
discretion to deny a habeas petitioner relief if it found that he had
deliberately bypassed state procedure; the discretion could be exercised
only if the court found that the prisoner had intentionally waived his
right to pursue his state remedy.\1246\
\1246\Id., 438-440.
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[[Page 814]]
Liberalization of the writ thus made it possible for convicted
persons who had fully litigated their claims at state trials and on
appeal, who had because of some procedural default been denied the
opportunity to have their claims reviewed, or who had been at least once
heard on federal habeas, to have the chance to present their grounds for
relief to a federal habeas judge. In addition to opportunities to
relitigate the facts and the law relating to their convictions,
prisoners could as well take advantage of new constitutional decisions
that were retroactive. The filings in federal courts increased year by
year, but the numbers of prisoners who in fact obtained either release
or retrial remained quite small. A major effect, however, was to
exacerbate the feelings of state judges and state law enforcement
officials and to stimulate many efforts in Congress to enact restrictive
habeas amendments.\1247\ While the efforts were unsuccessful, complaints
were received more sympathetically in a newly-constituted Supreme Court
and more restrictive rulings ensued.
\1247\In 1961, state prisoner habeas filings totaled 1,020, in
1965, 4,845, in 1970, a high (to date) of 9,063, in 1975, 7,843 in 1980,
8,534 in 1985, 9,045 in 1986. On relief afforded, no reliable figures
are available, but estimates indicate that at most 4% of the filings
result in either release or retrial. C. Wright, A. Miller, & E. Cooper,
Federal Practice and Procedure (1988 & supps.), Sec. 4261, at 284-291.
---------------------------------------------------------------------------
The discretion afforded the Court was sounded by Justice
Rehnquist, who, after reviewing the case law on the 1867 statute,
remarked that the history ``illustrates this Court's historic
willingness to overturn or modify its earlier views of the scope of the
writ, even where the statutory language authorizing judicial action has
remained unchanged.''\1248\ The emphasis from early on has been upon the
equitable nature of the habeas remedy and the judiciary's responsibility
to guide the exercise of that remedy in accordance with equitable
principles; thus, the Court time and again underscores that the federal
courts have plenary power under the statute
[[Page 815]]
to implement it to the fullest while the Court's decisions may deny them
the discretion to exercise the power.\1249\
\1248\Wainwright v. Sykes, 433 U.S. 72, 81 (1977). The present
Court's emphasis in habeas cases is, of course, quite different from
that of the Court in the 1963 trilogy. Now, the Court favors decisions
that promote finality, comity, judicial economy, and channeling the
resolution of claims into the most appropriate forum. Keeney v. Tamayo-
Reyes, 112 S.Ct. 1715, 1719-1720 (1992). Overall, federalism concerns
are critical. See Coleman v. Thompson, 501 U.S. 722, 726 (1991) (``This
is a case about federalism.'' First sentence of opinion). The seminal
opinion on which subsequent cases have drawn is Justice Powell's
concurrence in Schneckloth v. Bustamonte, 412 U.S. 218, 250 (1973). He
suggested that habeas courts should entertain only those claims that go
to the integrity of the fact-finding process, thus raising questions of
the value of a guilty verdict, or, more radically, that only those
prisoners able to make a credible showing of ``factual innocence'' could
be heard on habeas. Id., 256-258, 274-275. As will be evident infra,
some form of innocence standard now is pervasive in much of the Court's
habeas jurisprudence.
\1249\Id., 83; Stone v. Powell, 428 U.S. 465, 495 n. 37 (1976);
Francis v. Henderson, 425 U.S. 536, 538 (1976); Fay v. Noia, 372 U.S.
391, 438 (1963). The dichotomy between power and discretion goes all the
way back to the case imposing the rule of exhaustion of state remedies.
Ex parte Royall, 117 U.S. 241, 251 (1886).
---------------------------------------------------------------------------
Change has occurred in several respects in regard to access to
and the scope of the writ. It is sufficient to say that the more recent
rulings have eviscerated the content of the 1963 trilogy and that Brown
v. Allen itself is threatened with extinction.
First, the Court in search and seizure cases has returned to the
standard of Frank v. Mangum, holding that where the state courts afford
a criminal defendant the opportunity for a full and adequate hearing on
his Fourth Amendment claim, his only avenue of relief in the federal
courts is to petition the Supreme Court for review and that he cannot
raise those claims again in a habeas petition.\1250\ Grounded as it is
in the Court's dissatisfaction with the exclusionary rule, the case has
not since been extended to other constitutional grounds,\1251\ but the
rationale of the opinion suggests the likelihood of reaching other
exclusion questions.\1252\
\1250\Stone v. Powell, 428 U.S. 465 (1976). The decision is
based as much on the Court's dissatisfaction with the exclusionary rule
as with its desire to curb habeas. Holding that the purpose of the
exclusionary rule is to deter unconstitutional searches and seizures
rather than to redress individual injuries, the Court reasoned that no
deterrent purpose was advanced by applying the rule on habeas, except to
encourage state courts to give claimants a full and fair hearing. Id.,
493-495.
\1251\Stone does not apply to a Sixth Amendment claim of
inneffective assistance of counsel in litigating a search and seizure
claim. Kimmelman v. Morrison, 477 U.S. 365, 382-383 (1986). See also
Rose v. Mitchell, 443 U.S. 545 (1979) (racial discrimination in
selection of grand jury foreman); Jackson v. Virginia, 443 U.S. 307
(1979) (insufficient evidence to satisfy reasonable doubt standard).
\1252\Issues of admissibility of confessions (Miranda
violations) and eyewitness identifications are obvious candidates. See,
e.g., Duckworth v. Eagan, 492 U.S. 195, 205 (1989) (Justice O'Connor
concurring); Brewer v. Williams, 430 U.S. 387, 413-414 (1977) (Justice
Powell concurring), and id., 415 (Chief Justice Burger dissenting);
Wainwright v. Sykes, 433 U.S. 72, 87 n. 11 (1977) (reserving Miranda).
---------------------------------------------------------------------------
Second, the Court has formulated a ``new rule'' exception to
habeas cognizance. That is, subject to two exceptions,\1253\ a case
decided after a petitioner's conviction and sentence became final may
not be the predicate for federal habeas relief if the case announces
[[Page 816]]
or applies a ``new rule.''\1254\ A decision announces a new rule ``if
the result was not dictated by precedent existing at the time the
defendant's conviction became final.''\1255\ If a rule ``was susceptible
to debate among reasonable minds,'' it could not have been dictated by
precedent, and therefore it must be classified as a ``new rule.''\1256\
\1253\The first exception permits the retroactive application on
habeas of a new rule if the rule places a class of private conduct
beyond the power of the State to proscribe or addresses a substantive
categorical guarantee accorded by the Constitution. The rule must, to
say it differently, either decriminalize a class of conduct or prohibit
the imposition of a particular punishment on a particular class of
persons. The second exception would permit the application of
``watershed rules of criminal procedure'' implicating the fundamental
fairness and accuracy of the criminal proceeding. Saffle v. Parks, 494
U.S. 484, 494-495 (1990) (citing cases); Sawyer v. Smith, 497 U.S. 227,
241-245 (1990).
\1254\Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion);
Penry v. Lynaugh, 492 U.S. 302, 313-319 (1989).
\1255\Butler v. McKellar, 494 U.S. 407, 412 (1990) (quoting
Penry v. Lynaugh, 492 U.S. 302, 314 (1989) (quoting Teague v. Lane, 489
U.S. 288, 314 (1989) (plurality opinion) (emphasis in original)).
\1256\Id., 415. See also Stringer v. Black, 112 S.Ct. 1130, 1135
(1992). This latter case found that two decisions relied on by
petitioner merely drew on existing precedent and so did not establish a
new rule.
---------------------------------------------------------------------------
Third, the Court has largely maintained the standards of
Townsend v. Sain, as embodied in somewhat modified form in statute, with
respect to when federal judges must conduct an evidentiary
hearing.\1257\ However, one Townsend factor, not expressly set out in
the statute, has been overturned, in order to bring the case law into
line with other decisions. Townsend had held that a hearing was required
if the material facts were not adequately developed at the state-court
hearing. If the defendant had failed to develop the material facts in
the state court, however, the Court held that unless he had
``deliberately bypass[ed]'' that procedural outlet he was still entitled
to the hearing.\1258\ The Court overruled that point and substituted a
much-stricter ``cause-and-prejudice'' standard.\1259\
\1257\Supra, nn. 1235-1237.
\1258\Townsend v. Sain, 372 U.S. 293, 313, 317 (1963), imported
the ``deliberate bypass'' standard from Fay v. Noia, 372 U.S. 391, 438
(1963).
\1259\Keeney v. Tamayo-Reyes, 112 S.Ct. 1715 (1992). This
standard is imported from the cases abandoning Fay v. Noia and is
discussed infra, nn.1266-1270.
---------------------------------------------------------------------------
Fourth, the Court has significantly stiffened the standards
governing when a federal habeas court should entertain a second or
successive petition filed by a state prisoner, which was dealt with by
Sanders v. United States.\1260\ A successive petition may be dismissed
if the same ground was determined adversely to petitioner previously,
the prior determination was on the merits, and ``the ends of justice''
would not be served by reconsideration. It is with the latter element
that the Court has become more restrictive. A plurality in Kuhlmann v.
Wilson\1261\ argued that the ``ends of justice'' standard would be met
only if a petitioner supplemented her constitutional claim with a
colorable showing of factual innocence. While the Court has not
expressly adopted this standard, a later
[[Page 817]]
capital case utilized it, holding that a petitioner sentenced to death
could escape the bar on successive petitions by demonstrating ``actual
innocence'' of the death penalty by showing by clear and convincing
evidence that no reasonable juror would have found the prisoner eligible
for the death penalty under applicable state law.\1262\
\1260\373 U.S. 1, 15-18 (1963). The standards are embodied in 28
U.S.C. Sec. 2244(b).
\1261\477 U.S. 436 (1986).
\1262\Sawyer v. Whitley,112 S.Ct. 2514 (1992). Language in the
opinion suggests that the standard is not limited to capital cases. Id.,
2519.
---------------------------------------------------------------------------
Even if the subsequent petition alleges new and different
grounds, a habeas court may dismiss the petition if the prisoner's
failure to assert those grounds in the prior, or first, petition
constitutes ``an abuse of the writ.''\1263\ Following the 1963 trilogy
and especially Sanders, the federal courts had generally followed a rule
excusing the failure to raise claims in earlier petitions unless the
failure was a result of ``inexcusable neglect'' or of deliberate
relinguishment. In McClesky v. Zant,\1264\ the Court construed the
``abuse of the writ'' language to require a showing of both ``cause and
prejudice'' before a petitioner may allege in a second or later petition
a ground or grounds not alleged in the first. In other words, to avoid
subsequent dismissal, a petitioner must allege in his first application
all the grounds he may have, unless he can show cause, some external
impediment, for his failure and some actual prejudice from the error
alleged. If he cannot show cause and prejudice, the petitioner may be
heard only if she shows that a ``fundamental miscarriage of justice''
will occur, which means she must make a ``colorable showing of factual
innocence.''\1265\
\1263\The standard is in 28 U.S.C. Sec. 2244(b), along with the
standard that if a petitioner ``deliberately withheld'' a claim, the
petition can be dismissed. See also 28 U.S.C. Sec. 2254 Rule 9(b) (judge
may dismiss successive petition raising new claims if failure to assert
them previously was an abuse of the writ).
\1264\499 U.S. 467 (1991).
\1265\Id., 489-497. On ``cause and prejudice,'' see infra,
nn.1267-1270. The ``actual innocence'' element runs through the cases
under all the headings.
---------------------------------------------------------------------------
Fifth, the Court abandoned the rules of Fay v. Noia, although it
was only very recently that it expressly overruled the case.\1266\ Fay,
it will be recalled, dealt with so-called procedural-bar circumstances;
that is, if a defendant fails to assert a claim at the proper time or in
accordance with proper procedure under valid state rules, and if the
State then refuses to reach the merits of his claim and holds against
him solely because of the noncompliance with state procedure, when may a
petitioner present the claim in federal habeas? The answer in Fay was
that the federal court always had power to review the claim but that it
had discretion to deny relief to a habeas claimant if it found that the
prisoner had
[[Page 818]]
intentionally waived his right to pursue his state remedy through a
``deliberate bypass'' of state procedure.
\1266\Coleman v. Thompson, 501 U.S. 722, 744-751 (1991).
---------------------------------------------------------------------------
That is no longer the law. ``In all cases in which a state
prisoner has defaulted his federal claims in state court pursuant to an
independent and adequate state procedural rule, federal habeas review of
the claims is barred unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice. Fay was based on a
conception of federal/state relations that undervalued the importance of
state procedural rules.''\1267\ The ``miscarriage-of-justice'' element
is probably limited to cases in which actual innocence or actual
impairment of a guilty verdict can be shown.\1268\ The concept of
``cause'' excusing failure to observe a state rule is extremely narrow;
``the existence of cause for procedural default must ordinarily turn on
whether the prisoner can show that some objective factor external to the
defense impeded counsel's efforts to comply with the State's procedural
rule.''\1269\ As for the ``prejudice'' factor, it is an undeveloped
concept, but the Court's only case establishes a high barrier.\1270\
\1267\Coleman v. Thompson, 501 U.S. 722, 750 (1991). The
standard has been developed in a long line of cases. Davis v. United
States, 411 U.S. 233 (1973) (under federal rules); Francis v. Henderson,
425 U.S. 536 (1976); Engle v. Isaac, 456 U.S. 107 (1982); Murray v.
Carrier, 477 U.S. 478 (1986); Harris v. Reed, 489 U.S. 255 (1989).
Coleman arose because the defendant's attorney had filed his appeal in
state court three days late. Wainwright v. Sykes involved the failure of
defendant to object to the admission of inculpatory statements at the
time of trial. Engle v. Isaac involved a failure to object at trial to
jury instructions.
\1268\E.g., Smith v. Murray, 477 U.S. 527, 538-539 (1986);
Murray v. Carrier, 477 U.S. 478, 496 (1986).
\1269\Id., 488. This case held that ineffective assistance of
counsel is not ``cause'' unless it rises to the level of a Sixth
Amendment violation. See also Coleman v. Thompson, 501 U.S. 722, 752-757
(1991) (because petitioner had no right to counsel in state
postconviction proceeding where error occurred, he could not claim
constitutionally ineffective assistance of counsel). The actual novelty
of a constitutional claim at the time of the state court proceeding is
``cause'' excusing the petitioner's failure to raise it then, Reed v.
Ross, 468 U.S. 1 (1984), although the failure of counsel to anticipate a
line of constitutional argument then foreshadowed in Supreme Court
precedent is insufficient ``cause.'' Engle v. Isaac, 456 U.S. 107
(1982).
\1270\United States v. Frady, 456 U.S. 152, 169 (1982) (under
federal rules) (with respect to erroneous jury instruction, inquiring
whether the error ``so infected the entire trial that the resulting
conviction violates due process'').
---------------------------------------------------------------------------
For the future, barring changes in Court membership, other
curtailing of habeas jurisdiction can be expected. Perhaps the Court
will impose some form of showing of innocence as a predicate to
obtaining a hearing. More far reaching would be, as the Court continues
to emphasize broad federalism concerns, rather than simply comity and
respect for state courts, an overturning of Brown v. Allen itself and
the renunciation of any oversight, save for the ex
[[Page 819]]
tremely limited direct review of state court convictions in the Supreme
Court.
Removal.--In the Judiciary Act of 1789, Congress provided that
civil actions commenced in the state courts which could have been
brought in the original jurisdiction of the inferior federal courts
could be removed by the defendant from the state court to the federal
court.\1271\ Generally, as Congress expanded the original jurisdiction
of the inferior federal courts, it similarly expanded removal
jurisdiction.\1272\ Although there is potentiality for intra-court
conflict here, of course, in the implied mistrust of state courts'
willingness or ability to protect federal interests, it is rather with
regard to the limited areas of removal that do not correspond to federal
court original jurisdiction that the greatest amount of conflict is
likely to arise.
\1271\Sec. 12, 1 Stat. 79. The removal provision contained the
same jurisdictional amount requirement as the original jurisdictional
statute. It applied in the main to aliens and defendants not residents
of the State in which suit was brought.
\1272\Thus the Act of March 3, 1875, Sec. 2, 18 Stat. 470,
conferring federal question jurisdiction on the inferior federal courts,
provided for removal of such actions. The constitutionality of
congressional authorization for removal is well-established. Chicago &
N.W. Ry. Co. v. Whitton's Administrator, 13 Wall. (80 U.S.) 270 (1871);
Tennessee v. Davis, 100 U.S. 257 (1879)); Ames v. Kansas ex rel.
Johnston, 111 U.S. 449 (1884). See City of Greenwood v. Peacock, 384
U.S. 808, 833 (1966).
---------------------------------------------------------------------------
If a federal officer is sued or prosecuted in a state court for
acts done under color of law\1273\ or if a federal employee is sued for
a wrongful or negligent act that the Attorney General certifies was done
while she was acting within the scope of her employment,\1274\ the
actions may be removed. But the statute most open to federal-state court
dispute is the civil rights removal law, which authorizes removal of any
action, civil or criminal, which is commenced in a state court
``[a]gainst any person who is denied or cannot enforce in the courts of
such State a right under any law providing for the equal civil rights of
citizens of the United States, or of all persons within the jurisdiction
thereof.''\1275\ In the years after
[[Page 820]]
enactment of this statute, however, the court narrowly construed the
removal privilege granted,\1276\ and recent decisions for the most part
confirm this restrictive interpretation,\1277\ so that instances of
successful resort to the statute are fairly rare.
\1273\See 28 U.S.C. Sec. 1442. This statute had its origins in
the Act of February 4, 1815, Sec. 8, 3 Stat. 198 (removal of civil and
criminal actions against federal customs officers for official acts),
and the Act of March 2, 1833, Sec. 3, 4 Stat. 633 (removal of civil and
criminal actions against federal officers on account of acts done under
the revenue laws), both of which grew out of disputes arising when
certain States attempted to nullify federal laws, and the Act of March
3, 1863, Sec. 5, 12 Stat. 756 (removal of civil and criminal actions
against federal officers for acts done during the existence of the Civil
War under color of federal authority). In Mesa v. California, 489 U.S.
121 (1989), the Court held that the statute authorized federal officer
removal only when the defendant avers a federal defense. See Willingham
v. Morgan, 395 U.S. 402 (1969).
\1274\28 U.S.C. Sec. 2679(d), enacted after Westfall v. Erwin,
484 U.S. 292 (1988).
\1275\28 U.S.C. Sec. 1443(1). Subsection (2) provides for the
removal of state court actions ``[f]or any act under color of authority
derived from any law providing for equal rights, or for refusing to do
any act on the ground that it would be inconsistent with such law.''
This subsection ``is available only to federal officers and to persons
assisting such officers in the performance of their official duties.''
City of Greenwood v. Peacock, 384 U.S. 808, 815 (1966).
\1276\Strauder v. West Virginia, 100 U.S. 303 (1880); Virginia
v. Rives, 100 U.S. 313 (1880); Neal v. Delaware, 103 U.S. 370 (1880);
Bush v. Kentucky, 107 U.S. 110 (1883); Gibson v. Mississippi, 162 U.S.
565 (1896); Smith v. Mississippi, 162 U.S. 592 (1896); Murray v.
Louisiana, 163 U.S. 101 (1896); Williams v. Mississippi, 170 U.S. 213
(1898); Kentucky v. Powers, 201 U.S. 1 (1906).
\1277\Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood
v. Peacock, 384 U.S. 808 (1966). There was a hiatus of cases reviewing
removal from 1906 to 1966 because from 1887 to 1964 there was no
provision for an appeal of an order of a federal court remanding a
removed case to the state courts. Sec. 901 of the Civil Rights Act of
1964, 78 Stat. 266, 28 U.S.C. Sec. 1447(d).
---------------------------------------------------------------------------
Thus, the Court's position holds, one may not obtain removal
simply by an assertion that he is being denied equal rights or that he
cannot enforce the law granting equal rights. Because the removal
statute requires the denial to be ``in the courts of such State,'' the
pretrial conduct of police and prosecutors was deemed irrelevant,
because it afforded no basis for predicting that state courts would not
vindicate the federal rights of defendants.\1278\ Moreover, in
predicting a denial of rights, only an assertion founded on a facially
unconstitutional state statute denying the right in question would
suffice. From the existence of such a law, it could be predicted that
defendant's rights would be denied.\1279\ Furthermore, the removal
statute's reference to ``any law providing for . . . equal rights''
covered only laws ``providing for specific civil rights
[[Page 821]]
stated in terms of racial equality.''\1280\ Thus, apparently federal
constitutional provisions and many general federal laws do not qualify
as a basis for such removal.\1281\
\1278\Georgia v. Rachel, 384 U.S. 780, 803 (1966); City of
Greenwood v. Peacock, 384 U.S. 808, 827 (1966). Justice Douglas in
dissent, joined by Justices Black, Fortas, and Chief Justice Warren,
argued that ``in the courts of such State'' modified only ``cannot
enforce,'' so that one could be denied rights prior to as well as during
a trial and police and prosecutorial conduct would be relevant.
Alternately, he argued that state courts could be implicated in the
denial prior to trial by certain actions. Id., 844-855.
\1279\Georgia v. Rachel, 384 U.S. 780, 797-802 (1966). Thus, in
Strauder v. West Virginia, 100 U.S. 303 (1880), African-Americans were
excluded by statute from service on grand and petit juries, and it was
held that a black defendant's criminal indictment should have been
removed because federal law secured nondiscriminatory jury service and
it could be predicted that he would be denied his rights before a
discriminatorily-selected state jury. In Virginia v. Rives, 100 U.S. 313
(1880), there was no state statute, but there was exclusion of Negroes
from juries pursuant to custom and removal was denied. In Neal v.
Delaware, 103 U.S. 370 (1880), the state provision authorizing
discrimination in jury selection had been held invalid under federal law
by a state court, and a similar situation existed in Bush v. Kentucky,
107 U.S. 110 (1882). Removal was denied in both cases. The dissenters in
City of Greenwood v. Peacock, 384 U.S. 808, 848-852 (1966), argued that
federal courts should consider facially valid statutes which might be
applied unconstitutionally and state court enforcement of custom as well
in evaluating whether a removal petitioner could enforce his federal
rights in state court.
\1280\Georgia v. Rachel, 384 U.S. 780, 788-794 (1966); City of
Greenwood v. Peacock, 384 U.S. 808, 824-827 (1966), See also id., 847-
848 (Justice Douglas dissenting).
\1281\Id., 824-827. See also Johnson v. Mississippi, 421 U.S.
213 (1975).
Clause 3. The Trial of all Crimes, except in Cases of Impeachment,
shall be by Jury; and such Trial shall be held in the State where the
said Crimes shall have been committed; but when not committed within any
State, the Trial shall be at such Place or Places as the Congress may by
Law have directed.\1282\
\1282\See the Sixth Amendment.
---------------------------------------------------------------------------
ARTICLE III
JUDICIAL DEPARTMENT
Section 3. Treason against the United States, shall consist only in
levying War against them, or in adhering to their Enemies, giving them
Aid and Comfort. No Person shall be convicted of Treason unless on the
testimony of two Witnesses to the same overt Act, or on Confession in
open court.
TREASON
The treason clause is a product of the awareness of the Framers
of the ``numerous and dangerous excrescences'' which had disfigured the
English law of treason and was therefore intended to put it beyond the
power of Congress to ``extend the crime and punishment of
treason.''\1283\ The debate in the Convention, remarks in the ratifying
conventions, and contemporaneous public comment make clear that a
restrictive concept of the crime was imposed and that ordinary partisan
divisions within political society were not to be escalated by the
stronger into capital charges of treason, as so often had happened in
England.\1284\
\1283\2 J. Elliot, Debates in the Several State Conventions on
Adoption of the Constitution (Philadelphia: 1836), 469 (James Wilson).
Wilson was apparently the author of the clause in the Committee of
Detail and had some first hand knowledge of the abuse of treason
charges. J. Hurst, The Law of Treason in the United States--Selected
Essays (Westport, Conn.: 1971), 90-91, 129-136.
\1284\2 M. Farrand, op. cit., n.1, 345-350; 2 J. Elliot, op.
cit., n. 1283, 469, 487 (James Wilson); 3 id., 102-103, 447, 451, 466; 4
id., 209, 219, 220; The Federalist No. 43 (J. Cooke ed. 1961), 290
(Madison); id., No. 84, 576-577 (Hamilton); The Works of James Wilson,
R. McCloskey ed. (Cambridge: 1967 ed), 663-669. The matter is
comprehensively studied in J. Hurst, op. cit., n. 1283, chs. 3, 4.
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[[Page 822]]
Thus, the Framers adopted two of the three formulations and the
phraseology of the English Statute of Treason enacted in 1350,\1285\ but
they conspicuously omitted the phrase defining as treason the
``compass[ing] or imagin[ing] the death of our lord the King,''\1286\
under which most of the English law of ``constructive treason'' had been
developed.\1287\ Beyond limiting the power of Congress to define
treason,\1288\ the clause also prescribes limitations upon Congress'
ability to make proof of the offense easy to establish\1289\ and its
ability to define punishment.\1290\
\1285\25 Edward III, Stat. 5, ch. 2, See J. Hurst, op. cit., n.
1283, ch 2.
\1286\Id., 15, 31-37, 41-49, 51-55.
\1287\Ibid. ``[T]he record does suggest that the clause was
intended to guarantee nonviolent political processes against prosecution
under any theory or charge, the burden of which was the allegedly
seditious character of the conduct in question. The most obviously
restrictive feature of the constitutional definition is its omission of
any provision analogous to that branch of the Statute of Edward III
which punished treason by compassing the death of the king. In a narrow
sense, this provision perhaps had no proper analogue in a republic.
However, to interpret the silence of the treason clause in this way
alone does justice neither to the technical proficiency of the
Philadelphia draftsmen nor to the practical statecraft and knowledge of
English political history among the Framers and proponents of the
Constitution. The charge of compassing the king's death had been the
principal instrument by which `treason' had been used to suppress a wide
range of political opposition, from acts obviously dangerous to order
and likely in fact to lead to the king's death to the mere speaking or
writing of views restrictive of the royal authority.'' Id., 152-153.
\1288\The clause does not, however, prevent Congress from
specifying other crimes of a subversive nature and prescribing
punishment, so long as Congress is not merely attempting to evade the
restrictions of the treason clause. E.g., Ex parte Bollman, 4 Cr. (8
U.S.) 75, 126 (1807); Wimmer v. United States, 264 Fed. 11, 12-13 (6th
Cir. 1920), cert den., 253 U.S. 494 (1920).
\1289\By the requirement of two witnesses to the same overt act
or a confession in open court.
\1290\Cl. 2, infra, pp. 827-828.
---------------------------------------------------------------------------
Levying War
Early judicial interpretation of the meaning of treason in terms
of levying war was conditioned by the partisan struggles of the early
nineteenth century, in which were involved the treason trials of Aaron
Burr and his associates. In Ex parte Bollman,\1291\ which involved two
of Burr's confederates, Chief Justice Marshall, speaking for himself and
three other Justices, confined the meaning of levying war to the actual
waging of war. ``However flagitious may be the crime of conspiring to
subvert by force the government of our country, such conspiracy is not
treason. To conspire to levy war, and actually to levy war, are distinct
offences. The first must be brought into open action by the assemblage
of men for a purpose treasonable in itself, or the fact of levying war
cannot have been committed. So far has this principle been carried, that
. . . it has been determined that the actual enlistment of men to serve
against
[[Page 823]]
the government does not amount to levying of war.'' Chief Justice
Marshall was careful, however, to state that the Court did not mean that
no person could be guilty of this crime who had not appeared in arms
against the country. ``On the contrary, if it be actually levied, that
is, if a body of men be actually assembled for the purpose of effecting
by force a treasonable purpose, all those who perform any part, however
minute, or however remote from the scene of action, and who are actually
leagued in the general conspiracy, are to be considered as traitors. But
there must be an actual assembling of men, for the treasonable purpose,
to constitute a levying of war.''
\1291\4 Cr. (8 U.S.) 75 (1807).
---------------------------------------------------------------------------
On the basis of these considerations and due to the fact that no
part of the crime charged had been committed in the District of
Columbia, the Court held that Bollman and Swartwout could not be tried
in the District and ordered their discharge. He continued by saying that
``the crime of treason should not be extended by construction to
doubtful cases'' and concluded that no conspiracy for overturning the
Government and ``no enlisting of men to effect it, would be an actual
levying of war.''\1292\
\1292\Id., 126-127.
---------------------------------------------------------------------------
The Burr Trial.--Not long afterward, the Chief Justice went to
Richmond to preside over the trial of Burr himself. His ruling\1293\
denying a motion to introduce certain collateral evidence bearing on
Burr's activities is significant both for rendering the latter's
acquittal inevitable and for the qualifications and exceptions made to
the Bollman decision. In brief, this ruling held that Burr, who had not
been present at the assemblage on Blennerhassett's Island, could be
convicted of advising or procuring a levying of war only upon the
testimony of two witnesses to his having procured the assemblage. This
operation having been covert, such testimony was naturally unobtainable.
The net effect of Marshall's pronouncements was to make it extremely
difficult to convict one of levying war against the United States short
of the conduct of or personal participation in actual hostilities.\1294\
\1293\United States v. Burr, 4 Cr. (8 U.S.), 469, Appx. (1807).
\1294\There have been a number of lower court cases in some of
which convictions were obtained. As a result of the Whiskey Rebellion,
convictions of treason were obtained on the basis of the ruling that
forcible resistance to the enforcement of the revenue laws was a
constructive levying of war. United States v. Vigol, 29 Fed. Cas. 376
(No. 16621) (C.C.D. Pa. 1795); United States v. Mitchell, 26 Fed. Cas.
1277 (No. 15788) (C.C.D. Pa. 1795). After conviction, the defendants
were pardoned. See also for the same ruling in a different situation the
Case of Fries, 9 Fed. Cas. 826, 924 (Nos. 5126, 5127) (C.C.D. Pa. 1799,
1800). The defendant was again pardoned after conviction. About a half
century later participation in forcible resistance to the Fugitive Slave
Law was held not to be a constructive levying of war. United States v.
Hanway, 26 Fed. Cas. 105 (No. 15299) (C.C.E.D. Pa. 1851). Although the
United States Government regarded the activities of the Confederate
States as a levying of war, the President by Amnesty Proclamation of
December 25, 1868, pardoned all those who had participated on the
southern side in the Civil War. In applying the Captured and Abandoned
Property Act of 1863 (12 Stat. 820) in a civil proceeding, the Court
declared that the foundation of the Confederacy was treason against the
United States. Sprott v. United States, 20 Wall. (87 U.S.) 459 (1875).
See also Hanauer v. Doane, 12 Wall. (79 U.S.) 342 (1871); Thorington v.
Smith, 8 Wall. (75 U.S.) 1 (1869); Young v. United States, 97 U.S. 39
(1878). These four cases bring in the concept of adhering to the enemy
and giving him aid and comfort, but these are not criminal cases and
deal with attempts to recover property under the Captured and Abandoned
Property Act by persons who claimed that they had given no aid or
comfort to the enemy. These cases are not, therefore, an interpretation
of the Constitution.
---------------------------------------------------------------------------
[[Page 824]]
Aid and Comfort to the Enemy
The Cramer Case.--Since the Bollman case, the few treason cases
which have reached the Supreme Court were outgrowths of World War II and
have charged adherence to enemies of the United States and the giving of
aid and comfort. In the first of these, Cramer v. United States,\1295\
the issue was whether the ``overt act'' had to be ``openly manifest
treason'' or if it was enough if, when supported by the proper evidence,
it showed the required treasonable intention.\1296\ The Court in a five-
to-four opinion by Justice Jackson in effect took the former view
holding that ``the two-witness principle'' interdicted ``imputation of
incriminating acts to the accused by circumstantial evidence or by the
testimony of a single witness,''\1297\ even though the single witness in
question was the accused himself. ``Every act, movement, deed, and word
of the defendant charged to constitute treason must be supported by the
testimony of two witnesses,''\1298\ Justice Jackson asserted. Justice
Douglas in a dissent, in which Chief Justice Stone and Justices Black
and Reed concurred, contended that Cramer's treasonable intention was
sufficiently shown by overt acts as attested to by two witnesses each,
plus statements made by Cramer on the witness stand.
\1295\325 U.S. 1 (1945).
\1296\89 Law. Ed. 1443-1444 (Argument of Counsel).
\1297\Id., 325 U.S., 35.
\1298\Id., 34-35. Earlier, Justice Jackson had declared that
this phase of treason consists of two elements: ``adherence to the
enemy; and rendering him aid and comfort.'' A citizen, it was said, may
take actions ``which do aid and comfort the enemy . . . but if there is
no adherence to the enemy in this, if there is no intent to betray,
there is no treason.'' Id., 29, Justice Jackson states erroneously that
the requirement of two witnesses to the same overt act was an original
invention of the Convention of 1787. Actually it comes from the British
Treason Trials Act of 1695. 7 Wm. III, c.3.
---------------------------------------------------------------------------
The Haupt Case.--The Supreme Court sustained a conviction of
treason, for the first time in its history, in 1947 in Haupt v. United
States.\1299\ Here it was held that although the overt acts relied upon
to support the charge of treason--defendant's harboring
[[Page 825]]
and sheltering in his home his son who was an enemy spy and saboteur,
assisting him in purchasing an automobile, and in obtaining employment
in a defense plant--were all acts which a father would naturally perform
for a son, this fact did not necessarily relieve them of the treasonable
purpose of giving aid and comfort to the enemy. Speaking for the Court,
Justice Jackson said: ``No matter whether young Haupt's mission was
benign or traitorous, known or unknown to the defendant, these acts were
aid and comfort to him. In the light of this mission and his
instructions, they were more than casually useful; they were aids in
steps essential to his design for treason. If proof be added that the
defendant knew of his son's instruction, preparation and plans, the
purpose to aid and comfort the enemy becomes clear.''\1300\
\1299\330 U.S. 631 (1947).
\1300\Id., 635-636
---------------------------------------------------------------------------
The Court held that conversation and occurrences long prior to
the indictment were admissible evidence on the question of defendant's
intent. And more important, it held that the constitutional requirement
of two witnesses to the same overt act or confession in open court does
not operate to exclude confessions or admissions made out of court,
where a legal basis for the conviction has been laid by the testimony of
two witnesses of which such confessions or admissions are merely
corroborative. This relaxation of restrictions surrounding the
definition of treason evoked obvious satisfaction from Justice Douglas
who saw in the Haupt decision a vindication of his position in the
Cramer case. His concurring opinion contains what may be called a
restatement of the law of treason and merits quotation at length:
``As the Cramer case makes plain, the overt act and the intent
with which it is done are separate and distinct elements of the crime.
Intent need not be proved by two witnesses but may be inferred from all
the circumstances surrounding the overt act. But if two witnesses are
not required to prove treasonable intent, two witnesses need not be
required to show the treasonable character of the overt act. For proof
of treasonable intent in the doing of the overt act necessarily involves
proof that the accused committed the overt act with the knowledge or
understanding of its treasonable character.
``The requirement of an overt act is to make certain a
treasonable project has moved from the realm of thought into the realm
of action. That requirement is undeniably met in the present case, as it
was in the case of Cramer.
``The Cramer case departed from those rules when it held that
`The two-witness principle is to interdict imputation of incriminat
[[Page 826]]
ing acts to the accused by circumstantial evidence or by the testimony
of a single witness.' 325 U.S. p. 35. The present decision is truer to
the constitutional definition of treason when it forsakes that test and
holds that an act, quite innocent on its face, does not need two
witnesses to be transfomred into a incriminating one.''\1301\
\1301\Id., 645-646, Justice Douglas cites no cases for these
propositions. Justice Murphy in a solitary dissent stated: ``But the act
of providing shelter was of the type that might naturally arise out of
petitioner's relationship to his son, as the Court recognizes. By its
very nature, therefore, it is a non-treasonous act. That is true even
when the act is viewed in light of all the surrounding circumstances.
All that can be said is that the problem of whether it was motivated by
treasonous or non-treasonous factors is left in doubt. It is therefore
not an overt act of treason, regardless of how unlawful it might
otherwise be.'' Id., 649.
---------------------------------------------------------------------------
The Kawakita Case.--Kawakita v. United States\1302\ was decided
on June 2, 1952. The facts are sufficiently stated in the following
headnote: ``At petitioner's trial for treason, it appeared that
originally he was a native-born citizen of the United States and also a
national of Japan by reason of Japanese parentage and law. While a
minor, he took the oath of allegiance to the United States; went to
Japan for a visit on an American passport; and was prevented by the
outbreak of war from returning to this country. During the war, he
reached his majority in Japan; changed his registration from American to
Japanese, showed sympathy with Japan and hostility to the United States;
served as a civilian employee of a private corporation producing war
materials for Japan; and brutally abused American prisoners of war who
were forced to work there. After Japan's surrender, he registered as an
American citizen; swore that he was an American citizen and had not done
various acts amounting to expatriation; and returned to this country on
an American passport.'' The question whether, on this record Kawakita
had intended to renounce American citizenship, said the Court, in
sustaining conviction, was peculiarly one for the jury and their verdict
that he had not so intended was based on sufficient evidence. An
American citizen, it continued, owes allegiance to the United States
wherever he may reside, and dual nationality does not alter the
situation.\1303\
\1302\343 U.S. 717 (1952).
\1303\Id., 732. For citations in the subject of dual
nationality, see id., 723 n. 2. Three dissenters asserted that
Kawakita's conduct in Japan clearly showed he was consistently
demonstrating his allegiance to Japan. ``As a matter of law, he
expatriated himself as well as that can be done.'' Id., 746.
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[[Page 827]]
Doubtful State of the Law of Treason Today
The vacillation of Chief Justice Marshall between the
Bollman\1304\ and Burr\1305\ cases and the vacillation of the Court in
the Cramer\1306\ and Haupt\1307\ cases leave the law of treason in a
somewhat doubtful condition. The difficulties created by the Burr case
have been obviated to a considerable extent through the punishment of
acts ordinarily treasonable in nature under a different label,\1308\
within a formula provided by Chief Justice Marshall himself in the
Bollman case. The passage reads: ``Crimes so atrocious as those which
have for their object the subversion by violence of those laws and those
institutions which have been ordained in order to secure the peace and
happiness of society, are not to escape punishment, because they have
not ripened into treason. The wisdom of the legislature is competent to
provide for the case; and the framers of our Constitution . . . must
have conceived it more safe that punishment in such cases should be
ordained by general laws, formed upon deliberation, under the influence
of no resentments, and without knowing on whom they were to operate,
than that it should be inflicted under the influence of those passions
which the occasion seldom fails to excite, and which a flexible
definition of the crime, or a construction which would render it
flexible, might bring into operation.''\1309\
\1304\Ex parte Bollman, 4 Cr. (8 U.S.) 75 (1807).
\1305\United States v. Burr, 4 Cr. (8 U.S.) 469 (1807).
\1306\Cramer v. United States, 325 U.S. 1 (1945).
\1307\Haupt v. United States, 330 U.S. 631 (1947).
\1308\Cf. United States v. Rosenberg, 195 F.2d 583 (2d. Cir.),
cert den., 344 U.S. 889 (1952), holding that in a prosecution under the
Espionage Act for giving aid to a country, not an enemy, an offense
distinct from treason, neither the two-witness rule nor the requirement
as to the overt act is applicable.
\1309\Ex parte Bollman, 4 Cr. (8 U.S.) 126, 127 (1807). Justice
Frankfurter appended to his opinion in Cramer v. United States, 325 U.S.
1, 25 n. 38 (1945), a list taken from the Government's brief of all the
cases prior to Cramer in which construction of the treason clause was
involved. The same list, updated, appears in J. Hurst, op. cit., n.
1283, 260-267. Professor Hurst was responsible for the historical
research underlaying the Government's brief in Cramer.
---------------------------------------------------------------------------
Clause 2. The Congress shall have Power to declare the Punishment of
Treason, but no Attainder of Treason shall work Corruption of Blood, or
Forfeiture except during the Life of the Person attainted.
CORRUPTION OF THE BLOOD AND FORFEITURE
The Confiscation Act of 1862 ``to suppress Insurrection, to
punish Treason and Rebellion, to seize and confiscate the Property of
[[Page 828]]
Rebels''\1310\ raised issues under Article III, Sec. 3, cl.2. Because of
the constitutional doubts of the President, the act was accompanied by
an explanatory joint resolution which stipulated that only a life estate
terminating with the death of the offender could be sold and that at his
death his children could take the fee simple by descent as his heirs
without deriving any title from the United States. In applying this act,
passed in pursuance of the war power and not the power to punish
treason,\1311\ the Court in one case\1312\ quoted with approval the
English distinction between a disability absolute and perpetual and one
personal or temporary. Corruption of blood as a result of attainder of
treason was cited as an example of the former and was defined as the
disability of any of the posterity of the attained person ``to claim any
inheritance in fee simple, either as heir to him, or to any ancestor
above him.''\1313\
\1310\12 Stat. 589. This act incidentally did not designate
rebellion as treason.
\1311\Miller v. United States, 11 Wall. (78 U.S.) 268, 305
(1871).
\1312\Wallach v. Van Riswick, 92 U.S. 202, 213 (1876).
\1313\Lord de la Warre's Case, 11 Coke Rept. 1a, 77 Eng. Rept.
1145 (1597). A number of cases dealt with the effect of a full pardon by
the President of owners of property confiscated under this act. They
held that a full pardon relieved the owner of forfeiture as far as the
Government was concerned but did not divide the interest acquired by
third persons from the Government during the lifetime of the offender.
Ill. Central Railroad v. Bosworth, 133 U.S. 92, 101 (1890); Knote v.
United States, 95 U.S. 149 (1877); Wallach v. Van Riswick, 92 U.S. 202,
203 (1876); Armstrong's Foundry, 6 Wall. (73 U.S.) 766, 769 (1868).
There is no direct ruling on the question of whether only citizens can
commit treason. In Carlisle v. United States, 16 Wall. (83 U.S.) 147,
154-155 (1873), the Court declared that aliens while domiciled in this
country owe a temporary allegiance to it and may be punished for treason
equally with a native-born citizen in the absence of a treaty
stipulation to the contrary. This case involved the attempt of certain
British subjects to recover claims for property seized under the
Captured and Abandoned Property Act, 12 Stat. 820 (1863), which provided
for the recovery of property or its value in suits in the Court of
Claims by persons who had not rendered aid and comfort to the enemy.
Earlier in United States v. Wiltberger, 5 Wheat. (18 U.S.) 76, 97
(1820), which involved a conviction for manslaughter under an act
punishing manslaughter and treason on the high seas, Chief Justice
Marshall going beyond the necessities of the case stated that treason
``is a breach of allegiance, and can be committed by him only who owes
allegiance either perpetual or temporary.'' However, see In re
Shinohara, Court Martial Orders, No. 19, September 8, 1949, p. 4, Office
of the Judge Advocate General of the Navy, reported in 17 Geo. Wash. L.
Rev. 283 (1949). In the latter, an enemy alien resident in United States
territory (Guam) was held guilty of treason for acts done while the
enemy nation of which he was a citizen occupied such territory. Under
English precedents, an alien residing in British territory is open to
conviction for high treason on the theory that his allegiance to the
Crown is not suspended by foreign occupation of the territory. DeJager
v. Attorney General of Natal (1907), A.C., 96 L.T.R. 857. See also 18
U.S.C. Sec. 2381.
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