Courts, Powers of

Judicial power was defined by Justice Samuel F. Miller in the late nineteenth century as “the power of a court to decide and pronounce a judgment and carry it into effect.”

This power is more tenuous than those granted to the legislative or executive branches under the U.S. system of separation of powers. The Constitution gives Congress the power of the purse (the authority to approve all federal appropriations) and grants the executive branch the power of the sword (the authority to enforce laws).

The courts do not have those powers. The federal judiciary depends on Congress for funding and must look to the executive branch for assistance in enforcing its decisions if voluntary compliance is not forthcoming. Beyond the power of contempt of court, courts have little equipment with which to enforce their rulings.

The limits on judicial power led Alexander Hamilton, writing in The Federalist Papers, No. 78, to call the federal judiciary “the least dangerous” and “the weakest” of the three branches of the proposed new government. Yet in the two centuries since the Constitution was written, the Supreme Court and the federal judiciary have evolved into an extraordinarily powerful institution of government.

The growth of this power can be attributed to the expansive use of court powers derived from English common law, to the constitutional protections for judicial independence, and to the self-asserted power of judicial review, which is the power to decide whether the actions of other branches of government comply with the Constitution.

The Court has also acted to preserve this power through a doctrine of judicial restraint—rules that limit the authority of courts to act in a given case. Ultimately, the power of the judicial branch also depends on the Supreme Court's political strength: public confidence in its judgments and support for its place in the constitutional system. (See Public Opinion and the Court.)

Origins

Although the Articles of Confederation did not provide for a system of national courts, the concept of a separate and relatively independent judiciary was generally accepted by the delegates to the Constitutional Convention. In contrast to the detailed provisions regarding the powers of Congress and the executive branch, however, the judicial article simply sketches the outline of a federal judiciary.

Article III of the Constitution begins by stating, “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.” According to section 2, the judicial power “shall extend” only to specified types of cases or controversies, including cases “arising under” the Constitution or federal laws and treaties and cases involving the states or citizens of different states.

To safeguard judicial independence, section 1 provides that federal judges are to hold their posts during good behavior and that their salaries are not to be diminished during their terms in office. Judges may be removed from office only through the impeachment process described in Article II.

Hamilton viewed the national judiciary as essential to the powers of the new government. “The majesty of the national authority must be manifested through the medium of the courts of justice,” Hamilton wrote in The Federalist Papers, No. 16. Yet some delegates to the convention argued that state courts could handle all judicial business other than what the Supreme Court was to consider. As a compromise, Article III left it up to Congress to decide what lower federal courts to create.

Early Developments

In the Judiciary Act of 1789 Congress began filling in the details of the federal judicial system. Three provisions were important in the development of the powers of the federal judiciary.

First, the act established a system of lower federal courts: district courts in each of the states, and three circuit courts. Although the courts were not given the full measure of jurisdiction allowed under Article III, their creation fulfilled Hamilton's goal of a national judiciary able to carry out the policies of the federal government.

Second, Section 14—the so-called All Writs Act—authorized all federal courts to issue all writs “which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of the law.” The section specifically authorized use of the powerful writ of habeas corpus to determine the legality of federal detentions. This general grant of power helped ensure that as the federal courts' jurisdiction grew, they would have at their disposal the customary judicial instruments for carrying out their decisions.

Third, the act's famous Section 25 gave the Supreme Court the power to review and reverse state court rulings that upheld a state law against a challenge that the law was in conflict with the Constitution, federal laws, or a federal treaty. This provision, viewed as an implementation of the Constitution's Supremacy Clause, was critical to the expansion of national power over that of the states during the next half-century.

The act did not give the Supreme Court the power of judicial review over laws passed by Congress. But it appears that the delegates to the Constitutional Convention expected the Court to have this power. In any event, the Court took the power for itself in the landmark decision Marbury v. Madison (1803). The power was used only twice before the Civil War, but this established the principle that the Court could enforce the Constitution even against one of the coordinate branches of the federal government.

In its early years the Supreme Court acted to establish its powers in another way—by refusing to assume powers outside its judicial functions. In 1792, after Congress had passed a law directing the justices to advise the secretary of war on veterans' pensions, five justices refused, saying the authority conferred was “not of a judicial nature.” When President George Washington sought an advisory opinion on the neutrality issue in 1793, the justices declined.

The Supreme Court suffered an early rebuff to its power in its first decade. When the Court in 1793 upheld the right of a citizen of one state to sue another state in the Supreme Court, the states rose up in protest and quickly reversed the decision through the Eleventh Amendment.

Expanding Powers

Federal judicial power grew in the nineteenth century. But the growth was gradual and was resisted at various times by the states, Congress, or the president.

The Federalist-dominated judiciary was a political issue in the 1800 presidential campaign. After Thomas Jefferson was elected president, the lame-duck, Federalist-controlled Congress passed and President John Adams signed the Judiciary Act of 1801. The act expanded the lower federal courts and extended the jurisdiction of the federal courts to include virtually the entire power authorized by Article III. After Jefferson took office, the Republican- controlled Congress repealed the act in 1802. Federal courts remained courts of limited jurisdiction, subsidiary to the state courts, until after the Civil War.

Despite that setback, the Supreme Court under Chief Justice John Marshall, an ardent Federalist, solidified its power over the next three decades. Twice, in 1816 and 1821, it firmly rejected challenges to its power, under Section 25, to hold state laws unconstitutional. In 1824 it allowed a circumvention of the Eleventh Amendment by upholding a federal court suit against a state official, on the ground that the state itself was not being sued.

A prolonged confrontation with the state of Georgia over a dispute with the Cherokee Indians in the late 1820s and early 1830s provided the most critical test of the Court's power until the Civil War. The state asserted its control over Cherokee lands—with the support of President Andrew Jackson—even after the Court in 1832 rejected its claim. The Court was powerless to enforce its judgment. But the state ended its defiance when Jackson, to ensure federal supremacy on other issues, decided to take a strong stand against the states' power to nullify federal power.

Under Chief Justice Roger B. Taney, the Court showed more sympathy to states' rights, but without relinquishing any of the powers established under Marshall. The Court also approved some expansion of federal court powers. In 1838 it ruled that federal courts could issue a writ of mandamus directing a federal official to perform “ministerial acts” (actions required by law and not involving exercise of policy discretion). In 1845 the Court made it easier for suits involving corporations to be brought in federal court. And in 1851 the Court extended federal admiralty jurisdiction to all inland waterways that carried interstate or foreign commerce.

On the eve of the Civil War, the Court decisively reaffirmed the federal courts' supremacy over state courts. The dispute involved an abolitionist newspaper editor in Wisconsin who had been convicted of violating the federal Fugitive Slave Act. A state court issued a writ of habeas corpus ordering him freed, but the Supreme Court in 1859 unanimously ruled that state courts had no power to thwart the rulings of federal courts (Abelman v. Booth).

Reconstruction and the Courts

Two major expansions of federal judicial power occurred in the Reconstruction period after the Civil War.

In 1867 Congress authorized federal courts to issue writs of habeas corpus in state cases where a person was being “restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States.” The aim was to prevent imprisonment of federal officials engaged in Reconstruction programs.

Congress the next year repealed the Supreme Court's appellate jurisdiction in such cases to prevent a ruling on the constitutionality of the Reconstruction Acts. The Court in Ex parte McCardle (1869) bowed to the repeal. The basic expansion of federal power was left untouched, however, and Congress later acted to restore the Supreme Court's power as well. In the twentieth century, habeas corpus provided a basis for asserting federal control over state criminal courts.

Congress expanded the federal judiciary's power again with the Judiciary Act of 1875, which gave to the federal courts the jurisdiction permitted by Article III over all cases arising under the Constitution, federal law, or treaties involving more than $500.

Congress had two purposes in bestowing this jurisdiction over federal questions: to provide a federal forum for protecting the civil rights created in Reconstruction laws, and to protect the national railroads from inconsistent—and often unfriendly—state courts. The act also authorized removal of a case from state court to federal court when a federal question was involved.

The 1875 act has been described as bringing about a revolution in the function of the federal courts. For the first time, any issue of federal law could be decided as an original matter in federal rather than state court.

Twentieth-Century Expansion

Federal courts expanded their role enormously in the twentieth century by assuming powers they had not claimed in the 1800s. The two most important were the power to substantively review state criminal proceedings through habeas corpus and the power to issue injunctions against state and local officials. In addition, the courts' federal question jurisdiction grew as Congress passed new laws extending federal power over the economy, enlarging federal criminal jurisdiction, and creating federally protected civil rights.

The Supreme Court had previously limited the use of habeas corpus to question the detention of state prisoners, by inquiring only whether the sentencing court had jurisdiction to impose the sentence. In Frank v. Mangum (1915) the Court adopted a broader rule. First, it held that a court could lose jurisdiction over a defendant by denying his or her federal rights. Second, it construed the 1867 Habeas Corpus Act to require a federal court to examine “the very truth and substance of causes of [the prisoner's] detention.”

Although the Court developed various rules for deferring to state courts in habeas corpus cases, this new power meant that federal courts could order the release of a state prisoner based on constitutional issues that were not raised during his trial and appeal. The Court began tightening the rules for review beginning in the 1970s, but habeas corpus remained a powerful tool even under the restrictions.

The Court first approved the use of injunctions to block the enforcement of unconstitutional state laws in Ex parte Young (1908). The case involved an effort by a railroad to invalidate a state statute concerning rate regulation. Ostensibly, the Eleventh Amendment barred federal court suits against a state. But the Court got around the restriction by viewing the suit as having been brought against a state official, who was to be enjoined as an individual rather than in an official capacity.

Although Ex parte Young was a property rights case, the decision later came to provide remedies for state action infringing civil rights and civil liberties in a broad range of cases. The Court extended the ruling in two separate school desegregation decisions to uphold the power of federal courts to issue injunctions requiring states to pay the cost of future constitutional compliance. In 1977 the Court unanimously upheld a lower court decree requiring the Detroit school district to establish—and pay for—remedial education programs.

More dramatically, the Court in 1990 held, by a vote of 5 to 4, that a lower federal court can require a local government to raise taxes to correct a constitutional violation, such as school segregation. The ruling in Missouri v. Jenkins said that the judge in the case had erred by imposing the tax increase himself, but that an order to local officials was within a judge's power under the Fourteenth Amendment to remedy unlawful discrimination in the states.

The courts' powers have also been increased during the twentieth century by two new procedural devices: the declaratory judgment and the class action.

In a declaratory judgment, parties may seek a judicial declaration of rights at an earlier stage of a dispute. The Court in 1933 agreed to take jurisdiction of such a case, despite former doubts about the procedure; the next year, Congress passed legislation specifically authorizing courts to issue such rulings.

The class action, which allows multiple claims to be consolidated into a single lawsuit, has become the basis for high-impact civil rights and consumer litigation. The procedure has roots in common law. Its use increased after the Court in 1940 confirmed that a ruling in a class action could bind all individuals with the same interest even if they did not participate in the lawsuit.

One other basis for expanded judicial power in the twentieth century was the loosening of some of the doctrines of judicial restraint. One decision stands out: the Supreme Court's landmark reapportionment ruling, Baker v. Carr (1962). That ruling held that the political question doctrine did not prevent a judicial ruling on a state legislature's failure to realign districts to account for shifts in population. The decision drew strong protests from the states, but the courts' role in supervising the drawing of legislative and congressional district lines has now become routine.

Despite the enormous expansion of federal judicial power, some limits remain. The federal courts have no authority to overrule a state court's ruling on an issue of state law. They also have no power to enjoin a state court proceeding except under very limited circumstances. And the rules of judicial restraint are still honored, even if they are applied loosely or inconsistently at times.

The expansive use of federal judicial power in the twentieth century has led to several proposals to curb that power. Labor supporters succeeded in limiting the power of federal courts to issue injunctions in labor disputes. They failed, however, in a broader effort in the 1920s to give Congress the right to override a Supreme Court decision invalidating a federal law on constitutional grounds. Critics of more recent Supreme Court rulings on such issues as reapportionment, school prayer, and busing tried but failed to get Congress to pass laws or constitutional amendments stripping the federal courts of jurisdiction over those issues.

The critics of expanding judicial power contend that the courts often use their power to infringe on the rights of the political majority. Supporters of judicial activism contend that the courts exercise that power to enforce legal rights as provided in the Constitution. The political failure of proposals to curb the courts' authority suggests that the power of the courts is largely accepted, even if the decisions are sometimes unpopular. The Supreme Court's seeming attentiveness at times to public opinion suggests that the justices recognize the need to maintain a measure of public approval if the power of the courts is to be preserved.