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Jurisdiction: Appellate

Article III of the Constitution vested the Supreme Court with appellate jurisdiction "both as to Law and Fact" but granted the Congress the power to shape that jurisdiction "with such Exceptions, and under such Regulations" as it would make. Article III did not prescribe any guidelines for the appellate jurisdiction of the inferior courts. In response to criticism that the Supreme Court's jurisdiction over facts might nullify the power of juries, the states ratified the Seventh Amendment to the Constitution, which provided that no facts tried by a jury would be reexamined by a U.S. court.

U.S. Circuit Courts

Although the Judiciary Act of 1789 established the circuit courts as the primary trial courts of the United States, it also granted them appellate jurisdiction over some of the decisions of the federal district courts. Circuit courts could review admiralty cases from the district courts with an amount in controversy over $300 and civil cases with an amount in controversy over $50. In admiralty and equity cases, in which trials were conducted by judges without a jury, circuit court review would be by appeal, through which the court could review both law and facts. In common law cases, circuit court review proceeded by a writ of error, by which the court would accept as conclusive the findings of fact from the court below and scrutinize the record for errors of law only. In those districts without circuit courts, district courts exercised the jurisdiction of both district courts and circuit courts, and appeals from these courts went either to the Supreme Court directly or to a circuit court of another district.

The short-lived Judiciary Act of 1801 extended the right of review in circuit courts to all cases with an amount in controversy greater than $50, a change that was reenacted in 1803. The circuit courts also were granted jurisdiction to hear appeals from the district courts under the Bankruptcy Act of 1841, which resulted in a surge of cases in the short period in which the act was in effect. In 1879, Congress granted the circuit courts appellate jurisdiction over criminal cases in district courts in which the sentence was imprisonment or a fine of over $300.

U.S. Circuit Courts of Appeals

In the Evarts Act of 1891, Congress relieved the existing circuit courts of their appellate jurisdiction, created the circuit courts of appeals, and substantially reduced mandatory review of federal court cases by the Supreme Court. For cases that entered federal court based on diversity of citizenship, admiralty jurisdiction, or under the patent, revenue, and criminal laws, the decisions of the circuit courts of appeals would be final, except when a court certified a question of law to the Supreme Court, or when the Supreme Court agreed to hear a case by issuing a writ of certiorari. The circuit courts of appeals also heard cases arising under federal statutes, with the right of appeal to the Supreme Court preserved in these cases if the amount in controversy was greater than $1,000. The 1891 Act also authorized the circuit courts of appeals to review interlocutory orders granting injunctions, thus reversing the rule limiting appellate review to final judgments or decrees. Cases involving a construction of the Constitution or a claim that a federal or state statute was unconstitutional, as well as prize cases and capital crimes, could still be appealed directly to the Supreme Court from the district and circuit courts.

Since constitutional cases continued to be appealed directly to the Supreme Court, the circuit courts of appeals mostly reviewed civil cases that had entered the district courts based on diversity of citizenship. Many of these civil suits arose in connection with railroad corporations, especially personal injury suits and contract disputes. Appeals in patent cases were an important source of workload in many circuits-for example, patent cases represented the second most common subject of appellate case in the Seventh Circuit from 1900 to 1910. Admiralty cases continued to be an important source of appeals, though they fell as a percentage of total cases throughout the early twentieth century.

The circuit courts of appeals received an increasing number of appeals in cases arising under federal statutes in the early twentieth century. Cases involving federal land, revenue, and Indian laws were a consistent source of appeals and, in the western circuits, appeals in cases involving mining and oil exploration on lands granted under federal law were especially numerous. New federal economic and labor regulation produced an increase in federal question appeals. Review of decisions by administrative agencies like the Interstate Commerce Commission and the Board of Tax Appeals became a major source of appellate business by the 1910s and 1920s. Congress experimented with diverting some of these appeals to specialized courts. The short-lived Commerce Court, for example, established in 1910 and abolished in 1913, reviewed decisions of the Interstate Commerce Commission. In 1909, Congress created the Court of Customs Appeals to hear appeals on tariff disputes from the Board of General Appraisers, and in 1929 Congress added appeals from the Patent Office to that court's jurisdiction.

The proportion of criminal appeals in the circuit courts of appeals increased during the early twentieth century as Congress expanded the scope of federal crimes. In the early 1890s, criminal appeals amounted to only 2 or 3 percent of the docket, but rose to between 5 and 10 percent by the 1910s. During Prohibition, criminal appeals reached a high of 40 percent of caseloads in some circuits, including the Second Circuit, followed by a large drop immediately following repeal of the Prohibition Amendment in 1933.

The caseloads of the courts of appeals grew dramatically in the mid to late twentieth century and shifted from cases based on diversity of citizenship to litigation arising under federal statutes. Total appeals filed with the circuit courts of appeals jumped after 1965, rising from about 6,000 to 23,000 in 1980 and to 35,000 in 1987. One of the primary sources of the rise in caseload was appeals from administrative agencies. By the 1940s, appeals from the National Labor Relations Board joined those from the Tax Court as the largest source of administrative appeals. By the mid-1980s, those accounted for only 40 percent, with an increasing number of appeals coming to the courts of appeals from the Immigration and Naturalization Service, the Federal Energy Regulatory Commission, the Interstate Commerce Commission, and the Environmental Protection Agency. Civil rights suits, especially involving school desegregation, became an increasingly important source of appellate cases during the 1950s and 1960s. In the 1960s, the Supreme Court handed down a number of important decisions expanding the rights of criminal defendants leading to a host of new criminal appeals based on constitutional rights claims. By the 1990s, over half of all appeals in the courts of appeals involved federal question civil suits. Approximately half of these were prisoner petitions, including habeas corpus petitions and prisoner civil rights claims.

In the 1970s, Congress once again experimented with specialized courts to deal with the growth in appellate business. Congress established the Temporary Emergency Court of Appeals in December 1971 and granted it exclusive jurisdiction to hear appeals from the decisions of the U.S. district courts in cases arising under the wage and price control program of the Economic Stabilization Act of 1970. In 1982, Congress established a new circuit court of appeals whose jurisdiction was defined not by geography, but by subject matter. The U.S. Court of Appeals for the Federal Circuit assumed the jurisdiction of the Court of Customs and Patent Appeals and also heard appeals from the Court of Claims, Court of International Trade, and a number of administrative agencies. The Temporary Emergency Court of Appeals continued to hear appeals under a number of energy statutes in the 1970s and was finally abolished in 1992 when its jurisdiction was transferred to the Court of Appeals for the Federal Circuit.

Criminal appeals became a smaller but still sizable portion of appeals court caseloads by the late twentieth century, comprising a little less than a third of all appeals from district courts in 1975. That proportion fell to 17 percent in 1985, was up to over a quarter in 1992, and fluctuated between one-quarter and one-third from the late 1990s to 2012.

Supreme Court of the United States

The 1789 Judiciary Act granted the Supreme Court only a portion of the appellate jurisdiction described in the Constitution. Congress granted the Supreme Court power to review by writ of error final judgments in civil actions in the circuit courts, either filed there originally or on appeal, in which the amount in controversy exceeded $2,000. The Judiciary Act of 1802 also allowed a circuit court, upon a division of opinion between a district judge and a circuit justice, to certify a legal question for review to the Supreme Court. The Supreme Court was limited to review by writ of error in all cases. Congress converted Supreme Court review of equity, admiralty, and prize cases from writ of error to appeal in the Judiciary Act of 1801, and did so again in 1803 after the 1801 Act had been repealed.

Congress in the Judiciary Act of 1789 also granted the Supreme Court power to review the decisions of state courts when federal questions were involved. Section 25 of the 1789 Judiciary Act granted the Supreme Court the power to review by writ of error final judgments from the highest court of a state that had denied the validity of a federal statute, treaty, or authority of the United States or that had upheld a state statute or authority against a constitutional challenge. Section 25 also provided for Supreme Court review of cases in which any claim of a right under the Constitution, laws, or treaties of the United States was denied. Supreme Court review of state decisions was limited by Section 25 of the 1789 Act to the federal questions raised, leaving the state courts supreme in their interpretation of state law.

The Supreme Court had exercised its jurisdiction over state courts for over two decades when the Virginia Court of Appeals challenged it as an unconstitutional infringement on state sovereignty in the 1816 case of Martin v. Hunter's Lessee . In Martin , the Supreme Court ruled that the Constitution deemed federal law the "supreme law of the land" and held that it was the proper duty of the Supreme Court to ensure that national interests were not contravened by state goals or prejudices. In the 1821 case of Cohens v. Virginia , the Supreme Court upheld, in another challenge by Virginia, its authority to review state criminal cases in which claims to federal rights had been denied.

Despite the controversies over review of state court decisions, the majority of the Supreme Court's appellate caseload in the late eighteenth and nineteenth centuries came from inferior federal courts. In the 1790s and 1800s, the Supreme Court's appellate docket was dominated by admiralty cases, especially appeals of government seizures for violation of the Neutrality, Embargo, and Non-Intercourse Acts. The Supreme Court also heard appeals under its admiralty jurisdiction in cases dealing with Congress's regulation and, after 1808, prohibition of U.S. citizens' involvement in the international slave trade. Appeals in admiralty made up 32 percent of all opinions handed down by the Supreme Court prior to 1815. A large portion of Supreme Court appeals originated in the circuit court for the District of Columbia. In 1816, Congress responded with a statute prohibiting appeals or writs of error from the D.C. Circuit Court to the Supreme Court in cases involving amounts in controversy of less than $1,000, unless a special petition was filed with and approved by a justice of the Supreme Court.

Since the federal trial courts did not possess general federal question jurisdiction, most appeals to the Supreme Court in the nineteenth century entered the federal courts based on diversity of citizenship of the parties. These cases turned on state and common law, rather than federal law. Merchants, brokers, bankers, and other parties engaged in the nation's expanding interstate commerce sought review of contract and property disputes. Suits for collection of debts and payments on negotiable financial instruments were especially common. The Supreme Court heard a large number of appeals in complex land cases, including the question of proper titles to millions of acres in the Louisiana Purchase, Florida, and California. Many of these disputes required the Supreme Court to consider the constitutionality of state statutes and to define or interpret the power of the federal government to protect contracts and preempt state regulation of commerce.

Congress's grant of general federal question jurisdiction to the lower federal courts in 1875 increased the number of appeals dealing with federal law from the circuit courts, while the establishment of the circuit courts of appeals in 1891 decreased the number of appeals in cases based on diversity of citizenship. The passage of the Fourteenth Amendment and civil rights statutes led the Court to hear greater numbers of appeals from state courts that centered on challenges to state government actions.

The Supreme Court also began to receive appeals in criminal cases in the late nineteenth century. An 1889 statute granted appeals from the circuit courts to the Supreme Court in capital cases. The Evarts Act of 1891, which created the circuit courts of appeals, granted a right of direct Supreme Court review in cases of "capital or otherwise infamous crimes," interpreted by the Supreme Court to mean all cases in which a penalty of imprisonment was possible. Congress limited Supreme Court criminal appeals in 1897 when it transferred appellate jurisdiction for all noncapital crimes to the circuit courts of appeals, with the Supreme Court given discretion to review such cases through a writ of certiorari. In 1911, Congress ended direct appeal to the Supreme Court in capital cases as well. While defendants were given rights to appeal, government prosecutors protested in the 1900s that they could not appeal pretrial dismissals of criminal charges in the district courts. In 1907, Congress passed the Criminal Appeals Act, which allowed government prosecutors to appeal to the Supreme Court when a district judge quashed an indictment on the grounds that the statute involved was unconstitutional.

In the early twentieth century, Congress passed a number of statutes that allowed for direct appeal to the Supreme Court from district courts in select cases. In controversial areas of law, like enforcement of the Sherman Antitrust Act or a petition for an injunction to block actions of state and federal administrative agencies, Congress required original proceedings to be conducted by a panel of three district judges. Congress allowed parties in these cases to bypass the circuit courts of appeals and seek review directly in the Supreme Court. In the Judiciary Act of 1937, Congress authorized direct appeal to the Supreme Court from any interlocutory or final judgment of a federal district court holding an act of Congress unconstitutional in any civil action to which the United States, its agencies, or its officers were a party.

During the 1910s and 1920s, Congress expanded the Supreme Court's discretion to decide what cases to hear. In 1914, Congress expanded the Supreme Court's jurisdiction over the decisions of state courts to include cases in which a state court invalidated a state statute based on a claim to a federal constitutional right. The Supreme Court would only hear such cases through a writ of certiorari, however. A 1915 statute ended appeals as of right in bankruptcy cases, and Congress in 1916 abolished the Court's obligation to hear appeals from circuit appeals courts under a host of specific federal laws. Congress in 1916 also expanded the Court's discretion over appeals from the state courts by limiting appeals as of right to cases in which a statute or treaty of, or authority exercised under, the United States was challenged as unconstitutional and the state court denied its validity, and in which a state statute was challenged as unconstitutional and was upheld. Cases involving state court construction of a federal statute, or in which a federal right was asserted without challenging the validity of a statute, were now subject to the Court's discretion to grant certiorari. In addition, in 1922 the Supreme Court held, in Zucht v. King, that it would only review state court decisions if they presented what the Court deemed a "substantial" issue of federal law.

In 1925, Congress passed the so-called Judges' Bill, which gave the Supreme Court the discretion to accept by writ of certiorari the vast majority of appeals. Appeals from the circuit courts of appeals were mandatory only when a state statute was declared unconstitutional. Other constitutional cases for which final decision had been left with the Supreme Court in the 1891 Evarts Act were transferred to the circuit courts of appeals, giving those courts an expanded role in articulating constitutional law. The Judges' Bill also directed appeals in habeas corpus petitions, which had previously gone to the Supreme Court, to the circuit courts of appeals. Appeals from the Court of Claims, the Court of Customs Appeals, and the Court of Appeals of the District of Columbia-courts that had become voluminous sources of appeals to the Supreme Court during and after World War I-were henceforth subject to the discretion of the Supreme Court. Congress preserved direct appeal as of right to the Supreme Court in cases tried before a three-judge panel in district court.

With the decrease of its mandatory appellate jurisdiction, the Supreme Court became less important as a forum for correcting error in the inferior courts and more of an institution devoted to resolving legal and constitutional issues of national importance. The Supreme Court received close to 1,000 petitions for certiorari each term in the 1930s and 1940s, growing to over 2,000 by 1960. The Court agreed to review only a small portion of these cases, and heard oral arguments in even fewer.

Throughout the second half of the twentieth century, Congress further reduced the mandatory appellate jurisdiction of the Supreme Court. In 1950, Congress ended direct Supreme Court review from the decisions of all administrative agencies except for the Interstate Commerce Commission, which were also transferred to the courts of appeals in 1975. In 1970, Congress withdrew the government's right of direct appeals to the Supreme Court under the 1907 Criminal Appeals Act and placed this jurisdiction in the courts of appeals. In 1976, Congress eliminated the three-judge district courts for all cases except for certain legislative apportionment cases and in the process removed a host of obligatory direct appeals to the Supreme Court. In 1988, Congress eliminated the last vestiges of the Supreme Court's mandatory jurisdiction with a statute that converted all remaining appeals from state courts and courts of appeals to writs of certiorari. In the 1970s, the Supreme Court heard appeals from between two and three percent of the decisions from the courts of appeals, a proportion that decreased to less than one percent by the 1990s.

Further Reading:
Felix Frankfurter and James Landis, The Business of the Supreme Court (New York: Macmillan, 1928).

Charles Alan Wright and Mary Kay Kane, Law of Federal Courts (St. Paul: West Group, 2002).

William Wirt Blume, "Review of Facts in Non-Jury Cases," Journal of the American Judicature Society 20 (1936): 68-73.

Herbert Wechsler, "The Appellate Jurisdiction of the Supreme Court: Reflections on the Law and the Logistics of Direct Review," Washington and Lee Law Review 34, no. 4 (Fall 1977): 1043-64.

George Lee Haskins and Herbert A. Johnson, Foundations of Power: John Marshall, 1801-15 , Holmes Devise History of the Supreme Court, Vol. II (New York: MacMillan, 1981).

Annual Report of the Director of the Administrative Office of the U.S. Courts , Judicial Business of the U.S. Courts , various years.

Richard Posner, The Federal Courts: Challenge and Reform (Cambridge: Harvard University Press, 1996).

Carl B. Swisher, The Taney Period, 1836-1864 , Holmes Devise History of the Supreme Court, Volume V (New York: MacMillan, 1974).

G. Edward White, The Marshall Court and Cultural Change, 1815-1835 , Holmes Devise History of the Supreme Court, Volume IV (New York: MacMillan, 1991).