The Constitutional Powers of the Supreme and Inferior Courts
Over the course of the past few years, considerable attention has been given to decisions of the Supreme Court of the United States, with critics often including a focus on the question of who appointed the Justices serving on the Court.
We have now completed a national election, which determined who has the power to nominate (the President) and confirm (the Senate) those who will serve as judges of the Supreme and inferior courts.[1]
The first three articles of the United States Constitution establish the powers of the three branches of the federal government. Article III, Section 1, says that “[t]he 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.”[2]
Article III of the Constitution clearly creates a judicial branch, but does not do so with the same clarity regarding the “head” of this branch as seen in Articles I and II, which establish a legislative branch with Congress as its head and an executive branch with the President at its head. Less detail is offered also regarding the power of this branch than with the other two. Congress controls the establishment of “inferior” courts of the United States, but the role of the Supreme Court regarding these inferior courts is mostly unstated.[3] The relationship is thus not clear–does the Supreme Court control the inferior courts, according to the Constitution? Presumably, that is up to Congress.[4]
Section 2, Clause 1, of Article III–as amended by the Eleventh Amendment[5] to the Constitution–describes the power of the judicial branch and provides a statement of the jurisdiction of the federal courts.[6] The first four items establish subject matter jurisdiction, the remainder establish diversity jurisdiction: “The judicial Power shall extend:
(1) 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;
(2) to all cases affecting ambassadors, other public ministers and consuls;
(3) to all cases of admiralty or other maritime jurisdiction;
(4) to controversies to which the United States shall be a party;
(5) to controversies between two or more States;
(6) to controversies between a State and citizens of a different State;
(7) to controversies between citizens of different States;
(8) to controversies between citizens of the same State claiming lands under grants from different States; and
(9) to controversies between a State, or the citizens thereof, and foreign States, citizens or subjects.[7]
The Federalist addressed the judiciary “department” in Numbers 78 to 83. In addition, The Federalist noted in Number 22 that one of the flaws in the Articles of Confederation was that the Articles lacked a judicial branch.[8] See also, The Founders’ Constitution, Volumes Four and Five.
About the Author: Don LeDuc is the retired president and dean of Cooley Law School. His book, Michigan Administrative Law, is revised and published annually by the West Group. He is a member of Scribes, the American Society of Writers on Legal Subjects, and received the Golden Pen Award from the Legal Writing Institute. This article is part of a multi-part series discussing the meaning of the U.S. Constitution's words.
[1] Article II, Section 2, Clause 2.
[2] The intent of the Constitution to keep the courts independent of the other branches is made clear by two provisions in this Section–the lifetime appointments of the judges and the requirement that the salaries of judges not be diminished while in office.
[3] Article III, Section 2, Clause 2, describes when the Supreme Court has original jurisdiction and when its jurisdiction is appellate.
[4] One of the first efforts of the new Congress was to implement this provision through the Federal Judiciary Act of 1789.
[5] Amendment XI provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by Citizens or Subjects of any foreign State.” This amendment struck the following language from the original Constitution, which granted jurisdiction to a kind of diversity case–those “[b]etween a State and Citizens of another State.” The interpretation of this amendment has been treated inconsistently in the Supreme Court; my interpretation on the effect of the amendment may be incorrect.
[6] See the website of the Federal Judicial Center, listing nine jurisdictional areas.
[7] The numbers inserted in parentheses are not part of the original, but were added by the author. The structure, punctuation, and capitalization are slightly changed.
[8] Congress partially filled the judicial role under the Articles of Confederation, but through a complicated, yet limited, process.