One Supreme Court



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 is almost completely silent concerning the organization of the federal judiciary. “That there should be a national judiciary was readily accepted by all.”1 But whether it was to consist of one high court at the apex of a federal judicial system or a high court exercising appellate jurisdiction over state courts that would initially hear all but a minor fraction of cases raising national issues was a matter of considerable controversy.2 The Virginia Plan provided for a “National judiciary [to] be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature ....”3 In the Committee of the Whole, the proposition “that a national judiciary be established” was unanimously adopted,4 but the clause “to consist of One supreme tribunal, and of one or more inferior tribunals”5 was first agreed to, then reconsidered, and the provision for inferior tribunals stricken out, it being argued that state courts could adequately adjudicate all necessary matters while the supreme tribunal would protect the national interest and assure uniformity.6 Wilson and Madison thereupon moved to authorize Congress “to appoint inferior tribunals,”7 which carried the implication that Congress could in its discretion either designate the state courts to hear federal cases or create federal courts. The word “appoint” was adopted and over the course of the Convention changed into phrasing that suggests something of an obligation on Congress to establish inferior federal courts.8


2 The most complete account of the Convention’s consideration of the judiciary is J. GOEBEL, ANTECEDENTS AND BEGINNINGS TO 1801, HISTORY OF THE SUPREME


3 1 M. Farrand, supra at 21-22. That this version might not possibly be an accurate copy, see 3 id. at 593-94.

4 1 id. at 95, 104.

5 Id. at 95, 105. The words “One or more” were deleted the following day without recorded debate. Id. at 116, 119.

6 Id. at 124-25.

7 Madison’s notes use the word “institute” in place of “appoint”, id. at 125, but the latter appears in the Convention Journal, id. at 118, and in Yates’ notes, id. at 127, and when the Convention took up the draft reported by the Committee of the Whole “appoint” is used even in Madison’s notes. 2 id. at 38, 45.

8 On offering their motion, Wilson and Madison “observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them.” 1 id. at 125. The Committee on Detail provided for the vesting of judicial power in one Supreme Court “and in such inferior Courts as shall, when necessary, from time to time, be constituted by the legislature of the United States.” 2 id. at 186. Its draft also authorized Congress “[t]o constitute tribunals inferior to the Supreme Court.” Id. at 182. No debate is recorded when the Convention approved these two clauses, Id. at 315, 422-23, 428-30. The Committee on Style left the clause empowering Congress to “constitute” inferior tribunals as was, but it deleted “as shall, when necessary” from the Judiciary article, so that the judicial power was vested “in such inferior courts as Congress may from time to time”—and here deleted “constitute” and substituted the more forceful— “ordain and establish.” Id. at 600.

The “good behavior” clause excited no controversy,9 while the only substantial dispute with regard to denying Congress the power to intimidate judges through actual or threatened reduction of salaries came on Madison’s motion to bar increases as well as decreases.10

One Supreme Court

The Convention left up to Congress decision on the size and composition of the Supreme Court, the time and place for sitting, its internal organization, save for the reference to the Chief Justice in the impeachment provision,11 and other matters. These details Congress filled up in the Judiciary act of 1789, one of the seminal statutes of the United States.12 By the Act, the Court was made to consist of a Chief Justice and five Associate Justices.13 The number was gradually increased until it reached a total of ten under the act of March 3, 1863.14 As one of the Reconstruction Congress’ restrictions on President Andrew Johnson, the number was reduced to seven as vacancies should occur.15 The number actually never fell below eight before the end of Johnson’s term, and Congress thereupon made the number nine.16

9 The provision was in the Virginia Plan and was approved throughout, 1 id. at 21.

10 Id. at 121; 2 id. at 44-45, 429-430.

11 Article I, § 3, cl. 6.

12 Act of September 24, 1789, 1 Stat. 73. The authoritative works on the Act and its working and amendments are F. FRANKFURTER & J. LANDIS, THE BUSINESS OF THE SUPREME COURT (1928); Warren, New Light on the History of the Federal Judicial Act of 1789, 37 HARV. L. REV. 49 (1923); see also J. Goebel, supra at ch. 11.

13 Act of September 24, 1789, 1 Stat. 73, § 1.

14 12 Stat. 794, § 1.

Proposals have been made at various times for an organization of the Court into sections or divisions. No authoritative judicial expression is available, although Chief Justice Hughes in a letter to Senator Wheeler in 1937 expressed doubts concerning the validity of such a device and stated that “the Constitution does not appear to authorize two or more Supreme Courts functioning in effect as separate courts.”17

Congress has also determined the time and place of sessions of the Court. It utilized this power once in 1801 to change its terms so that for fourteen months the Court did not convene, so as to forestall a constitutional attack on the repeal of the Judiciary Act of 1801.18

15 Act of July 23, 1866, 14 Stat. 209, § 1.

16 Act of April 10, 1869, 16 Stat. 44.

17 Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judiciary Committee, 75th Congress, 1st sess. (1937), pt. 3, 491. For earlier proposals to have the Court sit in divisions, see F. Frankfurter & J. Landis, supra at 74-85.


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Last modified: September 5, 2012