The Federal Courts in Our Constitutional Democracy: A history of the federal judiciary

Vol 12 Fall 2011


Bruce A. Ragsdale has served since 1995 as director of the Federal
Judicial History Office at the Federal Judicial Center in Washington, D.C. He is the editor-in-chief of the “History of the Federal Judiciary,” an on-line encyclopedia of federal court history at

The Framers of the Federal Constitution ensured that the proposed new government for the United States would have a separate judicial branch, with unprecedented protections for the independence of federal judges. Article III of the Constitution vested the judicial power of the United States in a Supreme Court and whatever inferior courts the Congress decided to establish. The potential range of federal jurisdiction outlined by the Constitution extended to all cases arising under the Constitution, federal statutes, and treaties. The federal courts would also have jurisdiction over admiralty cases, over many cases involving state governments, and, in a potentially enormous grant of judicial authority, over private suits involving citizens from different states. Judges on federal courts would enjoy tenure during good behavior and protection against any reduction in their salaries. While the Constitution never defined good behavior, the restriction of impeachment to cases involving treason, bribery, or “high crimes and misdemeanors” set a high bar for the removal of judges.


Article III, however, was by far the briefest of the constitutional articles establishing the three branches of government and left much about the judiciary undetermined. The Constitution granted to the Congress broad authority to define the organization and the jurisdiction of a federal court system. Congress woulddecide if the nation should have a system of lower federal courts, or if, as some proposed, existing state courts would exercise federal jurisdiction at the trial level. Congress would also determine whether lower federal courts and state courts would share jurisdiction over federal questions and whether the Supreme Court would exercise judicial review of state court decisions. The appointment of judges by the president with the advice and consent of the Senate further guaranteed that the elected branches of the government would have a significant and continuing influence on the role of the federal courts within the constitutional system. While federal judges would be protected against direct political pressure, the “political” branches of the federal government would continue to define much about the structure and responsibilities of the federal courts.

The constitutional outline of the judiciary and, especially, the degree of independence granted judges have been the subjects of popular debate throughout United States history. In a constitutional system based on the consent of the governed and a revolutionary notion of popular sovereignty, the apparent paradox of judicial independence raised questions about what was required to guarantee impartial justice and a protection of the popular will embodied in the Constitution. In The Federalist, Alexander Hamilton explained that only a judiciary free from political interference could enforce the Constitution’s limits on government, but for more than two centuries, the recurring debates on the organization of the federal courts and their jurisdiction have revealed divergent opinions about the best means of devising a court system that maintains public confidence and respect. These debates, one of the most important continuities in federal judicial history, offer opportunities for teachers who want to incorporate the study of the judiciary and citizen participation in the court system into their curriculum.

In the debates over the ratification of the proposed Constitution, critics of the charter of government focused on the inadequacy of the checks and balances on the federal judiciary, which they feared
would marginalize state courts and lead the way to a consolidated national government.

The anti-Federalist writer “Brutus” warned that the Constitution rendered judges “independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.” But even critics of the proposed Constitution, including Brutus, acknowledged the need to protect judges from political pressure. The question for Brutus and many others was how the principle of popular sovereignty might extend to the judiciary without compromising that court’s necessary independence. Anti-Federalists believed that courts needed to be geographically accessible and governed by familiar rules and procedures, which is why many thought the new government should rely on existing state courts to exercise federal jurisdiction at the trial level. The anti-Federalists also argued for additional constitutional protections for civil liberties and for jury trials in civil as well as criminal cases. Their emphasis on proximity, visibility, and stronger checks on judicial power found considerable popular support and influenced the first plans for the court system once the Constitution was ratified.

In the Judiciary Act of 1789, Congress established a federal court system that fulfilled the Constitution’s promise of a strong national judiciary at the same time that it accommodated popular concerns about the dangers of remote, unaccountable courts. A Supreme Court with one chief justice and five associate justices would hear appeals from lower federal courts and from state supreme courts in certain cases raising constitutional questions. The Supreme Court would also exercise the limited original jurisdiction described in the Constitution. Congress established two types of trial courts that would be organized throughout the country. Each state was organized as a judicial district in which a district court with a single judge would have jurisdiction over admiralty cases and minor federal crimes. In each judicial district, a U.S. circuit court would have exclusive jurisdiction over more serious federal crimes and would share with the state courts jurisdiction over most suits involving the U.S. Government and suits between citizens of different states (what is known as diversity jurisdiction). The circuit courts also heard some appeals from the district courts, but for more than 100 years they would serve as the most important trial courts in the federal system. The circuit courts had no judges of their own, but were presided over by the local district judge and two Supreme Court justices, who “rode circuit” through the judicial districts grouped within geographical circuits. (Congress soon revised the law to require only one justice in a circuit court.)

Although Congress would make substantive changes in the federal court system over the following two centuries, the act of 1789 set out the decentralized, state-based organizational structure that still characterizes the federal judiciary. The act institutionalized the local connections that many in 1789 thought would secure public confidence in the new court system. Judicial districts were organized within a state’s borders, and district judges were required to live within their respective districts. The act provided that in most procedural matters, the federal trial courts would follow the rules in effect in the respective state courts. The requirements for circuit riding ensured that Supreme Court justices would learn about the diversity of state law and procedures, and that the justices would be available and visible to citizens throughout the country. At the same time that the Congress defined the organization of the courts, it passed and sent to the states for ratification the Bill of Rights, which added to the Constitution further protections of civil liberties and procedural rights for defendants in the federal courts.

As the nation’s population spread west and new states entered the Union, Congress repeatedly extended the judicial system of 1789. In 1807, 1837, and 1863, Congress increased the number of justices on the Supreme Court and established an equal number of judicial circuits so that new states would have their own U.S. circuit courts and access to the superior wisdom and experience that many litigants expected from the justices on circuit. Although some justices complained about the time and travel required by circuit riding, and a few publicly argued that it was unconstitutional to assign them to courts to which they had not been appointed, Congress repeatedly voted to perpetuate and extend the circuit riding system. Members of Congress referred to the circuit courts as schools in which the justices learned about local law and the details of important cases that were likely to be appealed to the Supreme Court. In fact, in the Supreme Court’s deliberations, justices relied on their colleagues’ circuit experience for a better understanding of appealed cases. Circuit riding also required that the justices regularly participate in jury trials, which members of Congress likened to the “democratic” component of the judiciary. The justices on circuit were considered a crucial link between citizens and the judicial branch, and their service on the regional trial courts became an important foundation of public confidence in the system of justice.

Even the most ardent supporters of circuit riding recognized that the time and travel required of justices would be unsustainable as the nation expanded across the continent and federal caseloads increased. In the 1850s, Congress briefly considered the establishment of a new kind of federal court that would hear appeals from the trial courts and, by making final decisions in many kinds of cases, relieve the Supreme Court of its caseload burden. Following the expansion of federal jurisdiction after 1875 to include all cases arising under federal law, caseloads grew at even faster rates, and the Supreme Court, which had almost no discretion about the appeals it would hear, fell two and then three years behind in deciding pending cases. An 1869 law requiring the justices to attend each assigned circuit court once every two years instead of every year did little to relieve the burden on the Supreme Court justices.

But how could the business of the Supreme Court be reduced without undermining citizens’ right of appeal or eliminating the justices’ highly visible service on the regional trial courts? For more than 15 years, Congress debated competing proposals to reorganize the federal courts and to revise the courts’ jurisdictional authority. Some, who wanted to limit the reach of the federal government and the allegedly pro-business bias of the federal courts, proposed the transfer of most private suits to the state courts. Many others proposed some kind of appeals courts, whether made up of judges appointed for the purpose or of justices from a greatly enlarged Supreme Court that would sit in divisions around the country in addition to sitting together in the nation’s capital. All of the proposals entailed limiting some citizens’ access to the Supreme Court, whether through the elimination of jurisdiction, restrictions on the types of cases that could be automatically appealed to the high Court, or by imposing higher monetary requirements for the subjects of dispute in civil suits.

In 1891, in the most sweeping change in the judiciary since 1789, Congress established courts of appeals for each of the nine regional circuits in the United States. The act of 1891 gave the Supreme Court some control over the cases that it would hear, and made the new courts of appeals the final word on appeals in whole categories of cases. Supreme Court justices were still assigned to circuit duties, and they could sit with circuit judges and district court judges on the three-judge panels that heard arguments in the new courts of appeals. The initial result of the circuit court act was a reduction in the number of cases appealed to the Supreme Court each year, but a continuing increase in federal caseload and the consequent appeals to the Supreme Court soon outpaced the ability of the justices to keep up with the workload. In 1911 Congress abolished the circuit trial courts, consolidating all trial jurisdiction in the district courts and eliminating the requirement for regular circuit attendance of the Supreme Court justices. In 1925, Congress sharply restricted the right of automatic appeal to the Supreme Court so that the justices, through the grant of certiorari, would be able to determine the great majority of cases that would come before the Court. The circuit courts of appeals grew in proportional importance as more and more of their decisions became the final authority in the federal courts, and the Supreme Court became the court we know today, focused largely on constitutional questions and the resolution of conflicting findings in the courts of appeals.

The creation of the circuit courts of appeals, the elimination of the justices’ circuit riding duties, and the restrictions on appeals to the Supreme Court represented fundamental changes in the judicial system created in 1789. Gone was the emphasis on citizen access to the Supreme Court justices and diverse state legal cultures, replaced by a commitment to a dependable and equal application of the law. The greatest challenge to the judiciary in the second half of the twentieth century was managing the exponential growth in the scope of court business, and many of the subsequent institutional changes in the court system were efforts to facilitate the speedy and reliable resolution of cases. More and more states were divided into multiple judicial districts, and additional judges were authorized for district and appeals courts. New regional circuits were established to handle the increase in appellate cases. After 1968, magistrate judges were appointed to assist district judges in many preliminary proceedings, and following an act of 1978, bankruptcy judges were appointed to handle that growing area of jurisdiction.

The institutional history of the federal judiciary reflects more than two centuries of debate about the role of the courts within our constitutional system. Article III of the Constitution has protected judges and courts from the political pressures of shifting majorities or of individual officeholders, but it has also allowed the elected branches of the government to shape and reshape a court system to facilitate the delivery of justice as the country grew in size and population and experienced dramatic social and economic change. The political debates on the organization and role of the federal courts provide an opportunity for teachers to broaden students’ understanding of the judiciary beyond the narrow focus on constitutional cases decided by the Supreme Court. Public expectations for the judiciary and enduring questions about our constitutional order are evident in the most notable debates on the future of the court system. In the early years of the Republic, the judiciary became one of the principal dividing lines between Federalists and Republicans (anti-Federalists). Federalists wanted a court system that would counter what they saw as the excesses of popular politics, while Republicans sought to restrain what they saw as the political bias of federal judges. In the late-nineteenth and early-twentieth centuries, the Progressive critique of federal courts included proposals to impose term limits on judges, to restrict the courts’ ability to halt labor strikes, and to limit the Supreme Court’s judicial review. Public reaction to Franklin Roosevelt’s proposed “court-packing” legislation and the opposition from the president’s fellow Democrats indicated how deeply committed most Americans were to judicial independence from an overbearing executive, even one whose policies they supported.

Another valuable opportunity to engage student interest in the judiciary is found in the stories of dramatic, high-profile trials in the federal courts. For most citizens, the trial courts located throughout the country have been the face of the federal judiciary, and the stories of citizens’ interaction with the courts have frequently shaped public opinion about the legal system and thus informed political debates on proposed institutional changes to the federal judiciary. The federal trial courts have been the forum for legal disputes reflecting significant public policy debates, and these courts have been the critical stage for the assertion and defense of citizens’ legal rights. Notable trials provide another rich perspective that is not available from a curriculum that limits judicial history to a very small selection of Supreme Court decisions. The dramatic stories and personalities revealed through trials also provide the likeliest means of engaging student interest in legal proceedings. The Teaching Judicial History project, developed through a partnership of the Federal Judicial Center and the American Bar Association, offers ten examples of cases that can bring the judicial perspective into students’ exploration of familiar topics in United States history and government classes. The study of these individual trials, like the examination of political debates on the federal court system, can be rewarding opportunities to bring the least examined, and least understood, branch of government into students’ exploration of our constitutional system.





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