Congressional Power to Abolish Federal Courts

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Article III, Section 1:

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. 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.

The Constitution provides that the judicial power shall be vested, at least in part, in “one supreme Court.” 1 Thus, although Congress possesses substantial authority to structure the Supreme Court,2 Congress cannot abolish the high court.

With respect to the lower federal courts, the constitutional authorization for Congress to “from time to time ordain and establish” inferior courts may imply that Congress can alter the system it establishes, including by eliminating exiting federal courts.3 Moreover, having left to Congress the decision whether to establish lower federal courts,4 it would be anomalous for the Constitution to provide that, once a court was established, Congress could never eliminate it. Historical practice suggests that Congress may abolish lower federal courts, though the Constitution may limit its ability to unseat current federal judges in doing so.

The Constitution provides that federal judges “shall hold their Offices during good Behaviour” and shall not have their compensation decreased while in office.5 The Supreme Court has interpreted the Good Behavior Clause to grant Article III judges life tenure, unless they resign voluntarily or are impeached.6 Thus, if Congress elects to eliminate an existing Article III court, it may raise the question of what should happen to the judges on that court.7

The first instance of Congress eliminating lower federal courts did not provide a clear answer to that question. The Judiciary Act of February 13, 1801, passed in the closing weeks of John Adams’s presidency, made major structural changes to the federal courts.8 Among other things, the act reorganized the existing three judicial circuits into six circuits and established six circuit courts consisting of three circuit judges each. President Adams appointed judges to many of the newly created seats, and those so-called “Midnight Judges” were confirmed by the Senate. However, in 1802, following a change in control of both the Executive and Legislative Branches, Congress repealed the Judiciary Act of 1801.9 No provision was made for the displaced judges, apparently under the theory that if there were no courts there could be no judges to sit on them.10

Congress enacted legislation to change the Court’s term to forestall a constitutional attack on the repeal of the Judiciary Act of 1801, with the result that the Court did not convene for fourteen months.11 Once the Court reconvened, it rejected a challenge to the repeal in the 1803 case Stuart v. Laird.12 That case involved a judgment of the U.S. court for the fourth circuit in the eastern district of Virginia, which was created by the 1801 Act and then abolished by the 1802 Act. A challenger argued that the judgment was void because the court that had issued it no longer existed. The Supreme Court disagreed, holding that Congress has “constitutional authority to establish from time to time such inferior tribunals as they may think proper; and to transfer a cause from one such tribunal to another,” and that the present case involved “nothing more than the removal of the suit” from the defunct court to a new one.13 The Stuart Court did not directly address the issue of the displaced judges.14

On subsequent occasions when Congress eliminated Article III courts, the legislation provided for judges from the abolished courts to continue to serve on other Article III courts. In 1891, Congress enacted legislation creating new intermediate appellate courts and eliminating the then-existing federal circuit courts.15 The 1891 Act authorized sitting circuit judges, who had previously heard cases on the circuit courts, to hear cases on the new appellate courts.16 Congress again exercised its power to abolish a federal court in 1913, eliminating the short-lived Commerce Court.17 The 1913 legislation provided for redistribution of the Commerce Court judges among the federal appeals courts.18 In 1982, Congress enacted legislation abolishing the Article III Court of Claims and U.S. Court of Customs and Patent Appeals, instead establishing the Article I Court of Federal Claims and the Article III U.S. Court of Appeals for the Federal Circuit.19 The statute provided for judges from the eliminated courts to serve instead on the Federal Circuit.20

1: U.S. Const. art. III, § 1.
2: See ArtIII.S1.8.3 Supreme Court and Congress.
3: U.S. Const. art. III, § 1.
4: See ArtIII.S1.8.2 Historical Background on Establishment of Article III Courts.
5: U.S. Const. art. III, § 1.
6: For additional discussion of the Good Behavior Clause, see ArtIII.S1.10.2.1 Overview of Good Behavior Clause.
7: In contrast to Article III judges, judges on Article I courts do not enjoy constitutionally mandated life tenure, so the elimination an Article I court does not raise this issue. See ArtIII.S1.9.1 Overview of Congressional Power to Establish Non-Article III Courts.
8: Judiciary Act of 1801, ch. 4, § 3, 2 Stat. 89.
9: Act of Mar. 8, 1802, ch. 8, § 1, 2 Stat. 132.
10: This was the theory of John Taylor of Caroline, upon whom the Jeffersonians in Congress relied. W. Carpenter, Judicial Tenure in the United States 63–64 (1918). For full discussion of the controversy, see id. at 58–78.
11: 1 Charles Warren, The Supreme Court in United States History 222–224 (rev. ed. 1926).
12: 5 U.S. (1 Cr.) 299 (1803).
13: Id. at 309.
14: Chief Justice John Marshall recused himself from the case and later expressed skepticism about the decision, noting ironically in one letter “the memorable distinction as to tenure of office, between removing the Judge from the office, and removing the office from the Judge.” Letter from Chief Justice Marshall to Henry Clay (Dec. 22, 1823), reprinted in Ruth Wedgwood, Cousin Humphrey, 14 Const. Comment 247, 267–69 (1997). For another early example of legislation abolishing federal courts, see Act of March 3, 1863, 12 Stat. 762 (eliminating the then-existing circuit court, district court, and criminal court of the District of Columbia without providing for continued service by the sitting judges).
15: Act of March 3, 1891, 26 Stat. 826.
16: Id. § 3.
17: The Court was created by the Act of June 18, 1910, 36 Stat. 539, and repealed by the Act of October 22, 1913, 38 Stat. 208, 219.
18: 38 Stat. 208, 219.
19: See Federal Courts Improvement Act of 1982, Pub. L. No. 97–164, § 105(a), 171–77, 96 Stat. 25, 27–28; see also 28 U.S.C. § 171(a) ( “The court [of Federal Claims] is declared to be a court established under article I of the Constitution of the United States.” ).
20: 96 Stat. 50.