Article III of the Constitution establishes and empowers the judicial branch of the national government. The very first sentence of Article III says: “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.” So the Constitution itself says that we will have a Supreme Court, and that this Court is separate from both the legislature (Congress) and the executive (the President). It is up to Congress to decide what other federal courts we will have. But one of the first things Congress did in 1789, the year the new government got going, was to set up a federal judiciary, including the Supreme Court—with six Justices. Today, we have a three-level federal court system—trial courts, courts of appeals, and the Supreme Court—with about 800 federal judges. All those judges, and the Justices of the Supreme Court, are appointed by the President and confirmed by the Senate.
Why did the Framers guarantee that we would have a Supreme Court (unless the Constitution was amended—a very difficult thing to do) but leave open the possibility that there would be no other federal courts, depending on what the politicians in Congress decided? The answer tells us something about the debates at the time the Constitution was written. To some people in the United States at that time, the federal government seemed almost like a foreign government. Those people’s main loyalty was to their states; the federal government was far away, and they did not feel that they had much of a say in who ran it. If you thought that way, an extensive system of federal courts, staffed by judges who were appointed by the President and who might not have a lot of connections to the state and its government, amounted to allowing the “foreign,” federal government to get its tentacles into every corner of the nation. Other Framers, though, thought that the federal government could not be effective unless it had courts to help enforce its laws. If everything were left up to state courts, states that were hostile to the new federal government might thwart it at every turn.
The compromise was that, just as the Constitution and federal laws would be the “supreme Law of the Land,” there would definitely be a Supreme Court—so a court created by the federal government, with judges appointed by the President, would get the last word, in case state courts did something that was too threatening to the new nation. But the extent and shape of the rest of the federal court system—the degree to which the federal government would be present around the nation—would get hashed out in day-to-day politics. The result is the large and powerful federal judiciary we have today.
The second sentence of Article III, Section 1, says: “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.” It’s pretty clear what’s going on here: this provision is designed to make sure that the judges are independent. They can decide cases according to what they think the law requires, without worrying about whether some powerful person—or even a majority of the people—will object. As Alexander Hamilton put it in The Federalist No. 78, judicial independence “is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.”
The language about “holding offices during good behaviour” has been interpreted to mean that the only way federal judges can be removed from office is if the House of Representatives impeaches them, and the Senate convicts them, of “treason, bribery, or other high crimes and misdemeanors.” Only fifteen judges have ever been impeached (that is, formally accused by the House of Representatives) and only eight have been convicted and removed from office. For practical purposes, any judge who does not commit a crime (or do something equally bad) has “lifetime tenure” and will stay in office until he or she dies or voluntarily steps down. And, as the provision says, Congress and the President cannot retaliate against judges by cutting their salaries.
Most state court judges—unlike federal judges—are elected, not appointed; and some have to be re-elected, or approved by the voters, every few years. Those systems of elected judges are often criticized just because, unlike the federal system, judges might think they have to do politically popular things, or build up political connections, in order to keep their jobs, even if that means ruling in a way that doesn’t follow the law. Very few people think that federal judges should be elected. There are, though, some critics of lifetime tenure: those critics say that lifetime tenure causes judges to stay in their positions longer than they should—after they have become too old to do their job well, either just because of age or because they are out of touch with modern times. Maybe, these critics say, judges should be appointed for a fixed term of years—say 14 or 18 years—with no chance of being reappointed. They still couldn’t be fired and, since they would have to leave at the end of their term, they would have no reason to shape their rulings in a way that pleases powerful figures or popular opinion. But a change like this would almost certainly require a constitutional amendment, and the chance of its happening is extremely small.
Although the guarantee that judges will have lifetime tenure seems simple, it actually raises a difficult question in our system. In the federal government, there are many officials who do judge-like things—think of military courts-martial, for example—but who do not have the lifetime tenure that Article III seems to require for federal judges. Many of these officials are members of, or work for, administrative agencies—what is sometimes called the federal bureaucracy. Officials like this will rule on whether, for example, a company has used advertisements that deceive consumers, or a business has wrongly tried to prevent its workers from joining a union, or the government has not paid a person the disability benefits he or she is entitled to. Thousands of decisions of this kind are made every year by federal officials who are not considered “judges” for purposes of Article III, and therefore do not have lifetime tenure, but who are doing the kinds of things judges usually do: settle disputes between people. These administrative officials usually serve only for a few years, after which the President can replace them. There are safeguards to prevent officials of this kind from being openly biased or unfair, but because they are appointed so frequently, they are often thought to be more responsive to day-to-day politics than judges are.
Why do we allow these officials to resolve disputes in the way that judges do, even though they do not have the lifetime tenure guarantee that judges have? The answer is complicated, but the basic idea is that you generally have a right to appeal from a decision of one of these officials to a judge whose independence is protected by lifetime tenure. So judges—including, potentially, the Supreme Court—will have the final word, and that, the Supreme Court has said, is enough to maintain the principle of judicial independence enshrined in Article III.
The Constitution is clear about who has “the judicial Power of the United States”: the federal courts do—not the President, not the Congress, and not the states. It’s less clear, though, when it comes to what that power is. What is it, in other words, that the Constitution gives the “Judges . . . of the supreme and inferior courts” to do? We can assume that these judges do not have the power to enact legislation—the Congress has the federal “legislative Powers”—or the power to enforce the laws that Congress enacts—that’s the President’s job. So, again: what is it that federal judges do, and do not, have the “Power” to do?
One part of the answer is easy: the federal courts have the power to decide certain cases and resolve certain controversies, in a neutral and objective way, by interpreting the relevant laws and applying them to the relevant facts. However, what if the question before the judge has to do with the legality of the government’s actions or the constitutionality of a rule or law? Here, things get more complicated.
Alexander Hamilton famously wrote, in The Federalist No. 78, that “the judiciary is beyond comparison the weakest” of the federal government’s three branches. This is because, he thought, the judiciary has “no influence over either the sword or the purse”; it has “neither FORCE nor WILL, but merely judgment[.]” True, he admitted, the courts have to exercise what we now call “judicial review,” and decide whether or not legislators’ and officials’ actions are consistent with the Constitution—which is, after all the “supreme Law of the Land”—but this doesn’t mean they are superior to the other branches. It simply means that all branches and officials of the federal government are constrained by the Constitution that “We the People” established.
This essay is part of a discussion about Judicial Power with David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School. Read the full discussion here.
This explanation didn’t satisfy everyone at the Founding—some critics of the Constitution said that the power of judicial review would “enable [the courts] to mold the government into almost any shape they please”—and it is still debated today. After all, it is one thing to say that courts may and should interpret the Constitution, and strike down laws and official actions that are inconsistent with it, but what if Congress, or the President, or state legislators and governors, disagree with the courts’ interpretation? A branch of government that gets to decide what other branches may or may not do, and that gets to overturn policy choices made by elected and accountable branches, hardly seems like “the weakest.”
Yes, judges are independent, and the Founders thought that this independence would protect their ability to uphold the law, even when doing so is unpopular. On the other hand, this independence can look like unaccountability and it can create what the great legal scholar Alexander Bickel called the “countermajoritarian difficulty.” Throughout our history, many of the Supreme Court’s most contested decisions have been in cases—think of cases involving, for example, gun regulations or abortion restrictions—where the Justices struck down duly enacted laws and, critics contend, acted against the will and legitimate choice of the majority. Our written Constitution means that some such cases are probably inevitable. At the same time, our commitment to democracy means that they are, and will continue to be, controversial.
Section One of Article III is a cornerstone of our legal system. It establishes the Supreme Court, and it is the basis of the federal court system. It has served those purposes from the very beginning.
At the same time, though, when we read this part of the Constitution—and many other parts of the Constitution, too—we can see how much things have changed since the nation was founded, in ways that the Framers of the Constitution could not have predicted. The Framers were prepared to have a country in which there was only one federal court: the Supreme Court. If that were the nation we lived in today, anyone who had a complaint about anything—about unlawful discrimination, or a violation of the right to free speech, or police brutality—would have to go to state court. The state court judge might be appointed by a governor or even a mayor, or might be elected. That would all depend on state law. State law would decide what kind of jury, if any, that person would get. You would, ultimately, have a chance to ask the U.S. Supreme Court to hear your case—but the Supreme Court is just one court and can only hear a relatively small number of cases each year.
This essay is part of a discussion about Judicial Power with Richard W. Garnett, Paul J. Schierl/Fort Howard Corporation Professor, Concurrent Professor of Political Science, The Law School, University of Notre Dame. Read the full discussion here.
That is not the nation we live in today. Now it is important not to underestimate how much state courts do, even today. Even today, when we have an extensive federal court system, state courts decide many more cases than federal courts, by far. But while the rules that determine when you can get into federal court can be complicated and technical, federal courts are often available for people who think they have been deprived of their federal constitutional rights, and for people with other kinds of claims, too. At times in our history, federal courts have been havens for people who were victims of discrimination in the states where they lived. At other times, federal courts have been accused of being in the pockets of lawyers for the wealthy and privileged. But the “inferior” federal courts—federal courts other than the Supreme Court—have been tremendously important in the history of our nation even though, as far as the Framers were concerned, those courts might never have existed, or might have played only a small role.
One other way in which the Framers of Article III did not foresee the future is, if anything, even more remarkable. As we said in our joint statement, there are a lot of federal officials who do judge-like things but are not “Judges” who have the life tenure required by Article III. To a degree, the Framers of the Constitution did know about that. If you think about it, even an ordinary police officer acts a little like a judge: she will listen to your excuses and then decide whether to give you a ticket. There was no federal police force when the Constitution was adopted, but there were tax collectors, customs inspectors, and army paymasters, and they all had to make some decisions that were a little judge-like.
What the Framers could not have foreseen was that some day there would be thousands of federal employees like that, hearing millions of cases, often in formal settings that resemble courtroom trials. Important federal programs, like Social Security and Medicare, could not operate without employees like that. But although these employees make decisions that can have a big effect on people’s lives—acting, in many ways, just like judges—they are not Article III “Judges” and do not have the protections, or the prestige, that federal judges have.
The practical accommodation our system has reached (as we said in the joint statement) is that these decisions can be appealed to federal judges who do have life tenure, and ultimately can even go to the Supreme Court. If you just read Article III, Section One, you won’t see any of that. But this hugely important part of the federal government reflects another of the many ways in which our Constitution is not just an unshakable foundation but a flexible institution that can adapt to the needs of a nation, and a world, that are in countless ways different from what the Framers knew.
On February 15, 1879, President Rutherford B. Hayes signed a new law that would admit women as members of the Supreme Court bar…