Establishing a Federal Judiciary—Talking Points
1. A Federal System
Since its origins in 1789, the nation’s court system has embodied the federal character of the government established by the U.S. Constitution. The Supreme Court guaranteed the authority of the Constitution and federal law throughout the nation, while a system of federal trial courts, organized within state borders, reflected the legal traditions of each judicial district and facilitated citizen access to federal justice. The decentralized federal judiciary ensured that individual federal courts had a strong local orientation, while at the same time it united a geographically dispersed nation within a consistent system of federal law. In contrast to most other federal systems of government, the United States preserved parallel systems of federal and state courts, thus further protecting the local orientation of much of the nation’s legal affairs.
The federal system of a single Supreme Court and regional trial and appellate courts was the subject of regular reassessment and debate as new states entered the Union and federal jurisdiction encompassed more and more of the nation’s legal disputes. For more than a century after the founding of the government, the key debates about the organization of the federal judiciary involved the extension of the court system to new states, the service of Supreme Court justices on lower federal courts, the right of appeal to the Supreme Court, and the balance of state and federal jurisdiction. In the twentieth century, proposals for revisions of the federal court system focused increasingly on the timely processing of growing caseloads and protection of the institutional independence of the judiciary.
2. The Constitutional Outline
Article III of the Constitution, drafted in the summer of 1787, offered only the briefest sketch of the court system for the new nation. The Constitution mandated a Supreme Court, but left for the Congress to decide the size of that court and the schedule for its meetings. The Constitution also granted the Congress the option to establish “such inferior courts” as it saw fit, thus leaving unresolved the delegates’ debate on the need for lower federal courts that would assume jurisdiction otherwise exercised by state courts. The constitutional outline for the judicial branch, which stood in contrast to the far more detailed plans for the legislative and executive branches, reflected the delegates’ preoccupation with balancing the powers of the elected branches. As part of that system of checks and balances, the Constitution granted the judges of the federal courts tenure during good behavior and protection from salary reductions as a guarantee of some independence from the Congress and the President.
The Constitution offered comparatively greater detail about federal jurisdiction, although it left open the option that state courts might exercise much of that jurisdiction. The “judicial power” of the United States would encompass all cases arising under the Constitution, the laws of the nation, and treaties. It would also extend to admiralty and maritime cases; cases in which the federal government was a party; disputes between states or between citizens of different states; and, until the Eleventh Amendment was ratified in 1795, disputes between a state and a citizen of another state. The Supreme Court had very limited original jurisdiction—over cases involving ambassadors and other foreign officials—but the Constitution granted the high court jurisdiction over appeals of all types of cases involving federal jurisdiction, except as Congress made other provision.
3. Congress and the Judiciary Act of 1789
When the First Congress turned to the organization of the judicial branch, much of the debate centered on whether to establish lower federal courts or to rely on existing state courts to exercise federal jurisdiction. Advocates of a strong central government thought a national system of federal courts was an essential requirement for energetic government. Other members of Congress, recalling the colonial experience under British rule, thought that justice was best served by courts tied to local communities. Those who were suspicious of the concentration of national power wanted to grant state courts authority to hear all cases involving federal law or to limit local federal courts to admiralty and maritime law. The judiciary act approved in September 1789 established a federal court system with broad jurisdiction, but the act reserved a significant role for state courts and guaranteed that the diversity of legal traditions throughout the country would be recognized in the local federal courts.
The Judiciary Act of 1789 established three types of federal courts. The Supreme Court, with a chief justice and five associate justices, would meet twice a year in the nation’s capital and hear appeals from lower federal courts and from the state supreme courts. The Supreme Court would also exercise the limited original jurisdiction defined by the Constitution. In each state and in Kentucky and Maine (then parts of other states), a district court with a single judge would have exclusive jurisdiction to hear cases involving admiralty and maritime law and conduct trials of minor federal crimes. The district courts shared with the state courts jurisdiction over small suits brought by the United States.
The most important federal cases would be initiated in the third type of court, called circuit courts, which would convene in the same judicial districts in which the district courts met. The circuit courts had no judges of their own, but were served by two Supreme Court justices and the local district judge. (Congress soon revised the law to require only one justice on each circuit court.) Congress grouped the judicial districts into regional circuits for the purpose of assigning justices to serve on the circuit courts within that region. The circuit courts would hear some appeals from the district courts, but they were primarily trial courts. The circuit courts had exclusive jurisdiction over serious federal crimes and shared with the state courts jurisdiction over suits involving disputes above a certain monetary value, suits involving the U.S. government, and suits between citizens of different states.
Congress protected distinctive state legal traditions by drawing the judicial districts to coincide with state boundaries and by providing for the use of the respective state’s rules for most district and circuit court proceedings and for the selection of federal juries. Perhaps most important for protection of regional legal cultures, the assignment of “circuit riding” duties for Supreme Court justices ensured that the judges on the nation’s highest court would learn about local legal procedures and would interact with citizens at the point where cases entered the federal judicial system. The Judiciary Act also promoted a local orientation of the lower courts by requiring district judges to live in the district where they served. In response to widespread concerns that defendants in federal trials would be forced to appear in distant courts, the Judiciary Act required civil trials to be held in the district in which a defendant was served with a writ and trials involving the death penalty to be held in the county where the crime occurred.
4. Partisan Conflicts and the Organization of the Courts
Within ten years of the establishment of the federal judiciary, the organization and jurisdiction of the federal courts became the subjects of fierce battles between the political parties that emerged in the 1790s. In 1801, after several years of debate on reorganization of the courts, the lame-duck Federalist majority in Congress approved an act that created new circuit courts with their own judgeships and greatly expanded federal jurisdiction at the expense of the state courts. The Judiciary Act of 1801 also abolished the circuit-riding duties of the Supreme Court justices. Although the justices had repeatedly asked for relief from circuit duties, the opposition Republicans saw the reorganization of the courts as an attempt by the Federalists to secure their hold on the judiciary soon after they had lost control of the Congress and the presidency. Republicans also feared that the expansion of federal jurisdiction would undermine the state courts and eventually the state governments. Republicans were already suspicious of the federal courts because of what they considered the partisan role of Federalist judges in the prosecution of political enemies under the Sedition Act of 1798.
With the support of President Thomas Jefferson, the new Republican majority in Congress soon repealed the Judiciary Act of 1801 and restored much of the court system, including circuit riding, that had been established in 1789. To Federalists, the repeal and consequent removal of the new circuit judges was a violation of the constitutional protection of judges’ tenure during good behavior. The subsequent impeachment of two partisan judges further inflamed Federalist fears, and Jefferson, along with many of his allies, continued to advocate limits on federal jurisdiction and on judicial tenure. The organizational structure of the court system reestablished in 1802, however, would remain the same until after the Civil War.
5. The Courts in an Expanding Nation
As the population of the United States moved west and new states entered the Union, Congress established additional judicial districts with their own judges. Congress expanded the number of circuits and the number of seats on the Supreme Court—to seven in 1807 and then to nine in 1837—to accommodate the new states and to provide a Supreme Court justice for service on the circuit courts in each of the circuits. Travel was so difficult in some newly admitted states that the district courts temporarily exercised circuit court jurisdiction without a visiting Supreme Court justice, but Congress intended to expand the judicial system defined in 1789 to encompass the entire nation as it grew across the continent, and justices regularly served on the circuit courts in most states in the years before the Civil War.
The growing number of cases before the Supreme Court and the justices’ continuing obligations on the circuit courts tested the limits of the judicial system of 1789, and in the second half of the nineteenth century Congress considered various proposals for new types of courts and judgeships. When California entered the Union in 1850, the limits of transcontinental transportation made circuit riding to that state impossible, and Congress created a temporary circuit judgeship to serve California. In 1863, Congress increased the number of Supreme Court justices to ten so that one of them could preside in a Tenth Circuit comprising the far western states. In 1866, Congress restored the number of circuits to nine, and in 1869 established circuit judgeships for each of the circuits. The new circuit judges relieved some of the pressure on Supreme Court justices, who continued to sit on the circuit courts.
6. Defining Federal Jurisdiction
As the court system expanded with the growing nation, so too did the scope of federal jurisdiction. In the first half of the nineteenth century, the growing reach of the federal government was reflected in new jurisdiction over copyright, land claims, enforcement of the prohibition on the foreign slave trade, and, for a limited time, bankruptcy. As statutes defined more and more federal crimes, Congress in 1842 extended to the district courts concurrent jurisdiction over all federal crimes except those subject to the death penalty. The jurisdiction of the federal courts was also the subject of political controversy, especially as it related to the Supreme Court review of decisions of the state supreme courts. Several state legislatures petitioned Congress to repeal that provision of the Judiciary Act of 1789, but this essential foundation of federal authority over the states remained in place.
The Civil War and Reconstruction led to a substantial extension of federal jurisdiction. The various measures to enhance the authority of the federal courts and limit the reach of state courts culminated in 1875 when Congress granted the U.S. circuit courts jurisdiction to hear all cases arising under the Constitution and federal laws. The 1875 act also allowed parties in a case to remove proceedings from a state court to a federal court whenever a federal question was involved or if parties to the case were from different states.
7. Circuit Courts and American Political Culture
The practical challenges of circuit riding in a growing nation were so great that proposals to reduce or eliminate the responsibility were repeatedly introduced in Congress, often at the suggestion of the Supreme Court justices, but Congress was unwilling to alter the system. In each recurring debate, representatives and senators warned of the risks of severing the connections between Supreme Court justices and regional trial courts. Congressional supporters of circuit riding predicted that justices who presided only over the Supreme Court in Washington would soon be controlled by a “knot of attorneys” and be merely “paper judges.” Daniel Webster, one of the leading lawyers before the Supreme Court as well as a member of Congress, said in a House of Representatives debate that Supreme Court judges would be too isolated to guarantee justice if they did not see in practice the operation and effect of their decisions. As late as 1866, the nation’s leading law journal, the American Law Review, characterized any bill to eliminate travel to the circuits and duties in the trial courts as a measure calculated “to prevent the Justices of the Supreme Court from ever learning any law.” Implicit in these debates were the assumptions that practical law was defined in the regional courts of the federal judiciary and that popular respect for the federal courts depended on the accessibility of justice. Even proponents of eliminating circuit duties spoke of the need to find other ways to make the Supreme Court aware of local jurisprudence, such as requiring geographical representation on the Supreme Court.
8. Justice Delayed
The expansion of federal jurisdiction, increased caseloads throughout the judiciary, and the responsibilities of circuit riding imposed a tremendous burden on the Supreme Court. By the opening of the fall term of 1890, the Supreme Court faced a docket of more than 1,800 cases. Since the 1840s, Congress had considered a succession of proposals to relieve the burden on the Supreme Court, but the congressional debates revealed the difficulty of balancing a guarantee of reasonably speedy justice with the traditionally broad right to review by the Supreme Court and the popular support for justices’ service on the federal trial courts in each state. Initial efforts to restrict appeals to certain types of cases or to disputes involving more than $5,000 raised concerns about limiting access to justice in the federal courts. Proposals for the reorganization of the courts also had implications for ongoing debates on the balance of federal and state jurisdiction at a time when more and more litigation involved the nation’s industrial economy.
Almost all of the proposals for judicial reorganization in the second half of the nineteenth century included some form of appeals court that would have final jurisdiction in designated types of cases. In many bills, the appeals court was composed of all the district judges in a circuit and one Supreme Court justice. Other bills called for the appointment of judges who would sit only on the intermediate appeals courts, and still others proposed that Supreme Court justices, perhaps doubled in number, sit in rotating shifts on regional appeals courts and the Supreme Court. A recurring proposal would have had the Supreme Court itself sit in three panels of three justices to expedite appeals.
9. A New Type of Federal Court
In 1891, Congress established separate courts of appeals in each of the nine regional circuits and authorized an additional circuit judge for each circuit. The circuit judges would sit with district judges or a Supreme Court justice on three-judge panels in the appeals courts. Certain appeals from the trial courts, including those related to constitutional questions and convictions of capital crimes, would go directly to the Supreme Court, but all others would be heard by the courts of appeals. The decisions of the court of appeals would be final in many cases, including the tremendous number of suits involving citizens of different states, revenue laws, and patent laws, as well as in non-capital criminal convictions. A court of appeals could certify a case to the Supreme Court if the appeals court judges wanted further clarification of a legal question. The Supreme Court could also, through its own discretion and issuance of a writ of certiorari, decide to review and determine a case from the lower courts.
The act of 1891 preserved certain aspects of the old judicial system, such as the circuit courts and the assignment of Supreme Court justices to circuits, although the appellate jurisdiction of the circuit courts was abolished. The chief sponsor of the act, Senator William Evarts of New York, expected that the new appeals courts would reduce backlogs throughout the federal judiciary, thus allowing Supreme Court justices and circuit judges more time to sit in the circuit trial courts. Evarts believed it was still important that the justices and appellate judges “be brought in contact with the profession and the suitors and the people in the courts of first instance as often as possible.”
The establishment of the courts of appeals almost immediately contributed to a reduction of the Supreme Court’s caseload, but the Supreme Court still faced more cases than the justices could decide within a term. Justices were unable to attend circuit courts regularly, and in 1911 Congress repealed the required circuit duties for justices and abolished the circuit courts, thus making the district courts the sole general jurisdiction trial courts of the federal judiciary. (Justices were still assigned to circuits and were authorized to sit as judges on the courts of appeals.) Most courts of appeals soon had three judges of their own to make up the required panel. To relieve the continuing burden on Supreme Court justices, Congress in 1925 limited to just a few categories of cases the right to review in the Supreme Court. With the justices able to determine most of the cases they would hear, the Supreme Court was able to focus largely on constitutional questions and the settlement of conflicting decisions in the circuit courts of appeals. In 1988, Congress eliminated almost all mandatory appellate jurisdiction of the Supreme Court.
10. The Modern Federal Judiciary
The most notable changes in the federal court system over the twentieth century were those of scale. Congress divided existing circuits to create a Tenth Circuit in 1929 and an Eleventh Circuit in 1980. The District of Columbia circuit gained a court of appeals in 1893, and by the mid-twentieth century, Congress, through a series of acts, granted that court the same status as the other courts of appeals. In 1982, Congress established the U.S. Court of Appeals for the Federal Circuit with jurisdiction over special categories of cases, including patent law and international trade. Many states were further divided to establish additional judicial districts, and the district courts were served by multiple judges. The number of district judges increased from 67 in 1900 to 212 in 1950 and 678 in 2006.
In the second half of the twentieth century, caseloads increased at a rate far greater than population growth. The increase in federal litigation had many sources, including new federal regulation, the enactment of more federal rights, the federalization of crimes formerly prosecuted in state courts, and a greater reliance on federal courts for private suits. New kinds of judgeships helped to expedite this growing business of the courts. In 1968, Congress established the position of magistrates, later called magistrate judges, to replace the commissioners who had long helped to process cases before the formal beginning of trials. Magistrate judges have since assumed greater responsibility for pretrial proceedings and the trial of some misdemeanors. In 1978, Congress established a formal position of bankruptcy judge, replacing the referees who had assumed judicial duties in addition to their administrative responsibility for bankruptcy cases. The bankruptcy judges serve as a unit of the district courts and preside over almost all bankruptcy proceedings. In the second half of the twentieth century, the number of court staff also grew to meet the administrative demands of increased caseloads.
Over the course of the twentieth century, Congress provided the judiciary with its own independent administrative bodies. The Conference of Senior Circuit Judges, established in 1922 (now called the Judicial Conference of the United States), provided the judiciary with a panel of judges who advised Congress on needed legislation and later became the courts’ governing board in administrative matters. The Administrative Office of the U.S. Courts, established in 1939, provides the judiciary with the administrative support that formerly came from departments in the executive branch. The Federal Judicial Center, established in 1967, provides education for judges and court staff and conducts research on improving case management and judicial administration.
11. An Enduring Federalism
The three-tiered structure of courts established in 1891 continues to define the federal judiciary, and the decentralized system of district courts established in 1789 preserves the federal character of the court system—the unique mixture of the national and the local—as envisioned by the founding generation. The history of the federal judiciary suggests that it will always be subject to debates on the most effective organization of individual courts and circuits and on the proper extent of federal jurisdiction. As it has throughout its history, however, the federal judiciary will likely continue to represent a balance between the principle of a consistent and authoritative body of federal law and a commitment to a court system accessible to citizens in every part of the nation.
Talking Points on Judicial History