Characteristics and Attributes of Judicial Power


Characteristics and Attributes of Judicial Power

Judicial power is the power “of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.”126 It is “the right to determine actual controversies arising between diverse litigants, duly instituted in courts of proper jurisdiction.”127 Although the terms “judicial power” and “jurisdiction” are frequently used interchangeably and jurisdiction is defined as the power to hear and determine the subject matter in controversy between parties to a suit128 or as the “power to entertain the suit, consider the merits and render a binding decision thereon,”129 the cases and commentary support, indeed require, a distinction between the two concepts. Jurisdiction is the authority of a court to exercise judicial power in a specific case and is, of course, a prerequisite to the exercise of judicial power, which is the totality of powers a court exercises when it assumes jurisdiction and hears and decides a case.130


Judicial power confers on federal courts the power to decide a case, to render a judgment conclusively resolving a case. Judicial power is the authority to render dispositive judgments, and Congress violates the separation of powers when it purports to alter final judgments of Article III courts.131 After the Court had unexpectedly fixed on a shorter statute of limitations to file certain securities actions than that believed to be the time in many jurisdictions, and after several suits that had been filed later than the determined limitations had been dismissed and had become final because they were not appealed, Congress enacted a statute which, while not changing the limitations period prospectively, retroactively extended the time for suits dismissed and provided for the reopening of the final judgments rendered in the dismissals of suits.

Holding the statute invalid, the Court held it impermissible for Congress to disturb a final judgment. “Having achieved finality, . . . a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.”132 On the other hand, the Court ruled in Miller v. French133 that the Prison Litigation Reform Act’s automatic stay of ongoing injunctions remedying violations of prisoners’ rights did not amount to an unconstitutional legislative revision of a final judgment. Rather, the automatic stay merely alters “the prospective effect” of injunctions, and it is well established that such prospective relief “remains subject to alteration due to changes in the underlying law.”134

127 Muskrat v. United States, 219 U.S. 346, 361 (1911).

128 United States v. Arrendondo, 31 U.S. (6 Pet.) 691 (1832).

129 General Investment Co. v. New York Central R.R., 271 U.S. 228, 230 (1926).

130 Williams v. United States, 289 U.S. 553, 566 (1933) ; Yakus v. United States, 321 U.S. 414, 467-468 (1944) (Justice Rutledge dissenting).

131 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995). The Court was careful to delineate the difference between attempting to alter a final judgment, one rendered by a court and either not appealed or affirmed on appeal, and legislatively amending a statute so as to change the law as it existed at the time a court issued a decision that was on appeal or otherwise still alive at the time a federal court reviewed the determination below. A court must apply the law as revised when it considers the prior interpretation. Id. at 226-27.

Article III creates or authorizes Congress to create not a collection of unconnected courts, but a judicial department composed of “inferior courts” and “one Supreme Court.” “Within that hierarchy, the decision of an inferior court is not (unless the time for appeal has expired) the final word of the department as a whole.” Id. at 227.

Included within the general power to decide cases are the ancillary powers of courts to punish for contempts of their authority,135 to issue writs in aid of jurisdiction when authorized by statute,136 to make rules governing their process in the absence of statutory authorizations or prohibitions,137 to order their own process so as to prevent abuse, oppression, and injustice, and to protect their own jurisdiction and officers in the protection of property in custody of law,138 to appoint masters in chancery, referees, auditors, and other investigators,139 and to admit and disbar attorneys.140

“Shall Be Vested”.—The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words “shall be vested” in § 1. Whereas all the judicial power of the United States is vested in the Supreme Court and the inferior federal courts created by Congress, neither has ever been vested with all the jurisdiction which could be granted and, Justice Story to the contrary,141 the Constitution has not been read to mandate Congress to confer the entire jurisdiction it might.142 Thus, except for the original jurisdiction of the Supreme Court, which flows directly from the Constitution, two prerequisites to jurisdiction must be present: first, the Constitution must have given the courts the capacity to receive it,143 and, second, an act of Congress must have conferred it.144 The fact that federal courts are of limited jurisdiction means that litigants in them must affirmatively establish that jurisdiction exists and may not confer nonexistent jurisdiction by consent or conduct.145

132 514 U.S. at 227 (emphasis by Court).

133 530 U.S. 327 (2000).

134 530 U.S. at 344.

135 Michaelson v. United States, 266 U.S. 42 (1924).

136 McIntire v. Wood, 11 U.S. (7 Cr.) 504 (1813); Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).

137 Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825).

138 Gumbel v. Pitkin, 124 U.S. 131 (1888).

139 Ex parte Peterson, 253 U.S. 300 (1920).

140 Ex parte Garland, 71 U.S. (4 Wall.) 333, 378 (1867).

141 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 328-331 (1816). See also 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (1833) 1584-1590.

142 See, e.g., Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799)Justice Chase). A recent, sophisticated attempt to resurrect the core of Justice Story’s argument is Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B. U. L. REV. 205 (1985); and see Amar, Meltzer, and Redish, Symposium: Article III and the Judiciary Act of 1789, 138 U. PA. L. REV. 1499 (1990). Briefly, the matter is discussed more fully infra, Professor Amar argues, in part, from the text of Article III, § 2, cl. 1, that the use of the word “all” in each of federal question, admiralty, and public ambassador subclauses means that Congress must confer the entire judicial power to cases involving those issues, whereas it has more discretion in the other six categories.

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Last modified: June 9, 2014