Control of Lower Federal Courts

Control of Lower Federal Courts

The Supreme Court's docket is shaped by two grants of different strength, a self-executing original jurisdiction and an appellate jurisdiction subject to the Exceptions Clause. The inferior federal courts present a simpler picture, because Article III says much less about them. Section 1 vests the judicial power in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish, so the Constitution itself creates only the Supreme Court and leaves every other federal court to a choice Congress makes by statute.¹ The lower-court language has no counterpart to the clause that makes the Supreme Court's appellate docket controversial, and it contains no list of cases the lower courts must hear. The orthodox account therefore holds that Congress has complete control over the jurisdiction of the inferior federal courts and essentially unrestricted power over the Supreme Court's appellate jurisdiction, which makes the lower courts the place where the claim of congressional control is at its strongest.² Few court decisions address the question, and most of the discussion has grown out of proposed legislation that would take controversial subjects away from the federal courts.³

Two separate powers are involved, and the second grows out of the first. The first is the power to decide whether lower federal courts exist at all. The second is the power to define how much of the judicial power those courts may exercise. A court that exists only because Congress chose to create it has only the authority Congress gives it, so the body that could decline to establish a court altogether may also establish one with a limited reach. Congress has used that second power since the beginning: the Judiciary Act of 1789 gave the lower federal courts no general federal question jurisdiction, although Article III would have permitted it, and it provided no direct appeal of federal criminal cases to the Supreme Court.⁴

The breadth of this control bears on the debate over the Supreme Court's docket from the previous sections, because both sides of that debate treat the lower courts as a possible safety valve. On one account, even a wholesale removal of appellate avenues to the Supreme Court would only make the lower federal courts the final decision makers and would leave federal judicial review in place. That outcome is less unusual than it sounds, since limited certiorari review already makes the courts of appeals the practical last word in most cases.⁵ The minimal mandatory theory likewise asks only that some Article III court retain jurisdiction over every case arising under the Constitution, so a lower federal court satisfies it.⁶ Each of these positions assumes that the lower courts remain open, so how far Congress may shape those courts decides whether the safety valve exists. The first subsection, Whether to Create Them, starts with the constitutional text on which the whole power rests.

Whether to Create Them

The first sentence of Article III treats the two layers of the federal judiciary differently, and that difference is the point of this subsection. It vests the judicial power of the United States "in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."⁷ The Supreme Court is named without condition, so Congress cannot decline to have one, while the lower courts appear only as courts Congress may establish if it chooses to.⁸ The commonly accepted view therefore treats the creation of inferior federal courts as discretionary: Congress may exercise the power to constitute them or leave it dormant.⁹

Two features of the text support that reading. The power to constitute tribunals inferior to the Supreme Court appears in Article I, section 8, among the other powers granted to Congress, and none of those powers expressly imposes a duty to act or has been read by the Court as imposing one.¹⁰ The wording of Article III, section 1 points the same way, since "may from time to time ordain and establish" is permissive language that leaves Congress free to use the power or ignore it.¹¹ The history of the Convention then explains why the drafters chose that wording.

Delegates disagreed sharply about lower federal courts. Some wanted none, some would have allowed only admiralty courts, some insisted that the Constitution itself require them, and others would have let Congress create them with jurisdiction over all matters of general concern.¹² The text drew a line between a court the Constitution establishes and courts Congress may create, which gave each side part of what it wanted and passed the unresolved dispute from the Convention to Congress.¹³ The compromise, usually called the Madisonian Compromise, was workable because the case for a constitutional mandate had an answer. Delegates who favored state prerogatives pointed out that the Supreme Court could review state-court decisions on federal questions, so federal interests would stay protected even if state courts were the first forum, and that answer undercut the argument that lower federal courts were indispensable.¹⁴ Congress could therefore rely on state courts as courts of first instance for federal claims and leave the creation of lower federal courts to its later judgment.¹⁵

Congress has acted on the discretionary reading, including by reversing course. In 1802 a Jeffersonian Congress repealed a judiciary law that had created freestanding circuit courts with their own judges and a general grant of federal-question jurisdiction, and the repeal returned many federal-question cases to the state courts and turned sitting judges out of office.¹⁶ Judges today would presumably keep their offices and pay, a result the second sentence of section 1 supports with its guarantees of tenure during good behavior and undiminished compensation.¹⁷ The precedent still shows the breadth of Congress's control, since it may dissolve lower courts it created as well as decline to create them. That discretion stops at the Supreme Court.

The fact that moved the answer is the tier of the judiciary the statute reaches. The Constitution establishes the Supreme Court itself, while every other federal court depends on an act of Congress.¹⁹

A minority position departs from this reading. In Martin v. Hunter's Lessee, Justice Story suggested in dictum, meaning a remark on which the decision did not depend, that the whole range of jurisdiction described in Article III must be vested in the federal judiciary, and that Congress is therefore required to create a system of inferior federal courts.²⁰ His argument began with the text, which says the judicial power "shall be vested" and "shall extend" to the listed cases, and it ran through structure: the Supreme Court's original jurisdiction covers only two subject matters, and state courts cannot hear certain exclusively federal matters, so the Court could review those matters on appeal only if federal tribunals existed to hear them first.²¹ Later variations argue that the scale of the modern legal system, or the inadequacy of state tribunals to review unconstitutional state action, makes lower federal courts a necessity.²²

That view has not prevailed. At least since 1845 the Supreme Court has said that the federal judicial power is "dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress," which alone may create the tribunals inferior to the Supreme Court and invest them with limited, concurrent, or exclusive jurisdiction, or withhold it as Congress sees fit.²³ Doubts linger at the edges: in 1949 a federal court of appeals asserted that jurisdiction over every case arising under federal law must lie in some district court, though the decision was reversed on other grounds, and the position has had later supporters.²⁴ Even for those who accept Story's premise, the duty is not judicially enforceable, because if no statute vests a federal court with jurisdiction, courts may not adjudicate the case.²⁵ Nearly two centuries of history also stand against the claim that Congress must vest the entire judicial power.²⁶

An answer on this point should state the contrast first and treat Story's view as a minority position. Answers go wrong when they carry the Supreme Court's constitutional guarantee over to the lower federal courts, which exist only if Congress chooses to create them, or when they present Story's dictum as the governing rule. Deciding whether to create lower courts is only the first half of Congress's control, and the second half, taken up in the next subsection, How Far to Limit Them, is the power to define what those courts may hear.

How Far to Limit Them

The discretion to create lower federal courts carries a second power inside it, which is the power to decide how much of the judicial power each court receives. If Congress may decline to establish a lower court at all, it may establish one and give it less than the full range of Article III, since the greater power includes the lesser. This power to define and limit is implicit in the grant of discretion to create the courts, so Congress may give the lower courts it chooses to create either the whole range of Article III judicial power or only a portion of it.²⁸ A rule that left only an all-or-nothing choice would force Congress to burden every court it created with every kind of case Article III permits, however small the dispute. The minimum amount in controversy shows the alternative at work: district courts lack diversity jurisdiction when $75,000 or less is at stake, and no federal court has ever had diversity jurisdiction over cases in which the amount in controversy is insufficient.²⁹ It is hard to see why the Framers would have wanted to forbid a limit that conserves scarce judicial resources.³⁰

The power to limit has a ceiling, and the ceiling sits at the edge of Article III. Section 2 lists the matters to which the judicial power extends, including controversies between citizens of different states.³¹ The power to constitute inferior tribunals is a power to create courts that exercise the judicial power of the United States, and that power reaches only the listed matters. A statute that handed a district court a case outside the list would ask the court to exercise authority the Constitution never vested in the federal judiciary, and Congress has no power to enlarge what the Constitution defines. So Congress may not vest an Article III court with authority over a subject matter Article III does not enumerate, and a suit between private parties that arises wholly under state law is the standard example, because it lies outside the list unless the parties are diverse.³² The same structural idea explains why Congress cannot enlarge the Supreme Court's original list, which the earlier discussion of original jurisdiction traced.³³ The ceiling therefore binds every federal court, while the power to limit runs only downward from it.

Only one variable separates the two statutes, which is whether the matter is within Article III. Listed matters are optional for Congress to confer, and unlisted matters are forbidden. Students go wrong when they read the power to limit as a power to adjust jurisdiction in either direction, because Congress may give the lower courts less than the whole of Article III but never more.

Limiting jurisdiction does not always mean pushing a category of cases out of the federal system. Congress may route cases that would otherwise fall within a district court's jurisdiction to a different tribunal. In Elgin v. Department of the Treasury, Congress could give the Merit Systems Protection Board exclusive jurisdiction over certain federal employee claims that would otherwise fall within the district courts' federal question jurisdiction under 28 U.S.C. § 1331, with Board decisions reviewable in the Federal Circuit.³⁶ Lockerty v. Phillips upheld a comparable arrangement, giving the Emergency Court of Appeals exclusive jurisdiction over suits attacking wartime price-control regulations, and the measure worked much like a venue rule, since cases that could have gone to a district court or a state trial court went to that one court, with appeals running directly to the Supreme Court.³⁷ In both arrangements a forum with review remained, which is why they fit comfortably within the ordinary power to define jurisdiction.

Congress may also limit what a lower court can do with a case it is otherwise permitted to hear, by withholding power to grant a particular remedy. In Lauf v. E.G. Shinner & Co., a federal district court had no jurisdiction to issue an injunction in a labor dispute except as Congress provided, and in Kline v. Burke Construction Co. a district court had no jurisdiction to enjoin a parallel state proceeding.³⁸ A remedy is part of the judicial power Congress hands to the court it creates, so the authority to give a court less than all of that power includes the choice to leave a remedy out.

A presumption governs how courts read these limits when Congress's words are unclear. In federal question cases there is a presumption in favor of federal jurisdiction, and it is not overcome simply because Congress has expressly provided that a certain type of federal question case may be brought in an appropriate state court.³⁹ In Mims v. Arrow Financial Services, LLC, the Court held that a federal district court retains § 1331 jurisdiction over federal question claims unless a federal statute "expressly or by fair implication, excludes federal-court adjudication."⁴⁰ The reasoning follows from what a state-forum provision does. It adds a forum for the claim, and adding a forum says nothing about whether an older forum is closed. The same standard of express words or fair implication governs the opposite move, in which Congress makes federal jurisdiction exclusive of the state courts.⁴¹ Congress may therefore take federal question jurisdiction away from the lower courts, but it must say so clearly, and the final section returns to that demand for clarity where constitutional claims are involved.

The power to limit also stays inside the structural limits that bind Congress everywhere else. Congress may not manipulate inferior court jurisdiction in a manner designed to achieve a particular result in a pending case, which is the rule of Klein, and it may not require a federal court to reopen a final judgment, which is the rule of Plaut v. Spendthrift Farm, Inc.⁴² Those limits apply to lower courts and to the Supreme Court alike, and the last section collects them.