Amicus Curiae Brief — Glidden Co. v. Zdanok

iv INDEX

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RIOR ET) co 49

Oe el ernie eee eer 49

es erate Pee eee es 42

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2” SANG ae ese Reecirar ees 49

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Legislative Material:

H.R. Rep. No. 1077, 49th Cong., Ist a ee 30

ELR. Rep. No. 695, 83d Cong., fe.) are 13

S. Rep. No. 261, 83d Cong., Ist Sess... 14

S. Rep. No. 275, 83d Cong., Ist Sess. 14

Cong. Globe, 33d Cong., ee eeee. ca dss 53, o4

Cong. Globe, Appendix, 37th Cong., 2d Sess. ay)

Cong. Globe, 37th Cong., 5d Sess... . _. , 55, 56, 57

Cong. Globe, 39th Cong., Ist Sess. 57, 08

69 Cong. Bee. ...:...--+---+-- re 14, 68

U.S. Constitution :

Re es ve ee - Passi.

Article II ...... oh Bia ee ee ee 6, 66

AREER 0 ec eee oe ee Passim.

Eleventh Amendment ... 46,49

INDEX v

Miscellaneous: Pare

Documentary History of the Constitution of the

United States of America ............. 44

Madison, Journal of the Constitutional Conven-

ter ee ie ns he, Pare 44

Moore, Federal Practice _. ¥, ». 22, 67

Story On the Constitution . | 48, 50

ae Pemerenet.............. 51

Katz, Federal Legislative Courts, 43 a a R.

MR ee ee 26

Watson, The Concept of the Legislative Court, 10

G.W. L. R. 799 | | 35

3 Wall. vii-vili potas oe 1 See | 27

IN THE

| SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1961

No. 242

THE GLIDDEN COMPANY, ETC.,

: Petitioner,

OLGA ZDANOK, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF AP-

PEALS FOR THE SECOND CIRCUIT

BRIEF FOR MARVIN JONES, CHIEF JUDGE OF THE

UNITED STATES COURT OF CLAIMS, AND SAMUEL

E. WHITAKER, DON N. LARAMORE, JAMES R. DUR.

FEE, BENJAMIN H. LITTLETON AND J. WARREN

MADDEN, JUDGES OF THE UNITED STATES COURT

OF CLAIMS, AS AMICI CURIAE

The parties have consented in writing to the filing of

this brief pursuant to Rule 42.

Interest of Amici Curiae

The question before this Court for review under the

limited grant of certiorari is whether the participation by

Judge Madden of the Court of Claims in the hearing and

decision of the Court of Appeals for the Second Cireuit

(1)

2

vitiates the judgment entered by that Court. While the

Judges of the Court of Claims have no concern with the

outcome of the case as such, the question thus presented

raises a number of issues which directly and importantly

affect the Court of Claims and its member judges.

Petitioner would have this Court declare unconstitutional

the statute, 28 U.S.C. § 293(a), authorizing judges of the

Court of Claims ‘‘to perform judicial duties in any circuit,

either in a court of appeals or district court,’’ pursuant

to designation and assignment by the Chief Justice. Any

such ruling, while not necessarily controlling, could also

cast doubt upon the validity of the statutes, 28 U.S.C.

§§291(b), 292(d), authorizing the Chief Justice to assign

circuit and district judges for temporary service on the

Court of Claims. The system established by the Congress

for assigning judges for temporary service on other courts

has, we believe, materially improved the machinery for

the administration of justice in the federal courts. Cer-

tainly, the assigned services of judges of other courts

have greatly assisted the Court of Claims from time to

time in its operations. Petitioner’s constitutional attack

on an important aspect of the assignment system con-

sequently is a matter of substantial concern to the Court

of Claims. .

Petitioner also contends, as a necessary premise to its

argument with respect to the assignment statute, that a

1953 statute (67 Stat. 226, 28 U.S.C. §171) in which the

Congress declared the Court of Claims to be ‘‘a court

established under article III of the Constitution of the

United States,’ is unconstitutional, and that the Court of

Claims. is a ‘“‘legislative court’’ established under Article

I of the Constitution. The status of the Court of Claims

as a constitutional or a legislative court is thus in issue,

and the resolution of that issue by this Court in effect will

3

determine whether the judges of the Court of Claims are

protected by Article III with respect to their tenure and

compensation.

Some of the issues raised by this case, therefore, are

of substantial importance to the status and operation of

the Court of Claims and its member judges. For that

reason and because of a belief that the views expressed

herein may aid this Court in its consideration and decision

of those issues, the Judges of the Court of Claims have

obtained the consent of the parties to appear as amici

curiae.

Summary of Argument

The Court of Claims was created in 1855 and was

authorized to enter final judgment on certain claims against

the United States in 1866. For many years thereafter, the

Court was generally considered to be a constitutional court

created under Article ITI of the Constitution. A dictum in

Ex Parte Bakelite Corp’n., 279 U.S. 438 (1929), however,

expressed the view that the Court of Claims was a so-called

“legislative court’’ created pursuant to the Article I power

of the Congress to pay the debts of the United States, and

Williams v. United States, 289 U.S. 553 (1933), so held. We

believe that Williams erred in holding the Court of Claims

to be a legislative court and should now be overruled. After

thorough consideration, the Congress concluded, in 1953,

that the Court of Claims had initially been created as a

constitutional court and enacted a statute declaring the

Court of Claims ‘‘to be a court established under article III

of the Constitution of the United States.’’ 67 Stat. 226,

8 U.S.C. § 171. This conclusion by the Congress, we believe,

provides justification for reconsideration of Williams, and

the statutory declaration enacted by the Congress estab-

lishes that the Court of Claims has been a constitutional

e:

4

court since 1953 even if Williams is reaffirmed insofar as

it held that the Court of Claims was initially created asa

legislative court.

I

A. Article III vests the ‘‘judicial Power of the United

States’’ in this Supreme Court and in such-inferior courts

as the Congress may establish pursuant to Article III. Arti-

cle III also extends this judicial power to specified cases or.

controversies, and provides that the judges of courts created —

by or under Article I1I—so-called ‘‘constitutional courts”’

—shall hold their offices during good behavior and shall

receive a compensation which shall not be diminished dur-

ng their continuance in office. The purpose of these provi-

sions concerning tenure and compensation was to protect

the independence of the judic-ury from coercive influences

of the legislative and executive branches. O’Donoghue v.

United States, 289 U.S. 516, 529-534 (1933). This purpose

is particularly applicable to the Court of Claims because of

its location at the seat of Government and the nature of its

jurisdiction, so that only the most compelling reasons should

justify depriving the Court of Claims of the,protections of

Article III with respect to tenure and compensation.

The language and history of the Constitution, and the

separation of powers doctrine fundamental to that docu-

ment, all indicate that Article III was intended to be the

exclusive source of judicial power which power was to be

exercised only by Article III courts. American Insurance

Co. v. Canter, I Peters 511 (1828), held, however, that the

territorial courts were created and exercise judicial power

pursuant to the plenary authority of the Congress under

Article I over the territories of the United States. The

legislative-court concept thus introduced has become deeply

embedded and we do not contend that it should now be

rejected entirely. We do contend that it should be limited

5

_inessence to the territorial courts which gave rise to the con-

cept and to which it was confined until the Bakelite case was

decided in 1929.

B. Canter involved the courts of the Territory of Florida,

the judges of which had been limited to four-year terms. A

holding that Article III applied to such courts would either

destroy the judicial system of the Territory or else virtually

nullify the tenure provision of Article III, depending upon

whether the limited tenure of the Florida judges was up-

held. Chief Justice Marshall, in Canter, sought to escape

this dilemma by the legislative-court concept, explaining

that the Florida courts were ‘‘incapable of receiving”’’

Article ITI judicial power because of the limited tenure of

the judges and thus must have been created under Article

I. This explanation opened the possibility, however, that

Article III’s requirement of life tenure could be avoided in

other situations merely by denying such tenure, and was

soon abandoned.

When Florida was admitted to the Union, the status of

its courts was again considered, and it was held that the

judicial power could only be exercised by courts created

pursuant to Article III and staffed by judges possessing the

life tenure required by the Article. Benner vy. Porter, 9

How. 235, 243-244 (1850). That case also suggested that

Canter could be explained on the ground that the Constitu-

tion is inapplicable outside the boundaries of the United

States proper, and this explanation was adopted in Downes

V. Bidwell, 182 U.S. 244, 263-267 (1901). Other cases sought

to explain Canter as being due to the temporary nature of

territorial courts which were superseded when the partic-

ular territory was admitted to the union. McAllister y.

United States, 141 U.S. 174, 187-188 (1891). While these

cases adhered to the Canter decision and held that the courts

of the territories and similar courts, such as the consular

6

courts, situated outside the boundaries of the United States

proper are legislative courts, ro case prior to Bakelite

applied that concept to courts within the United States.

In accordance with this restriction of the legislative-court

concept, the Court of Claims was categorized as a constitu-

tional court, United States v. Union Pacific R. Co., 98 US.

569, 603 (1878), final judgments of the Court of Claims were

reviewed by this Court, United States v. Klein, 13 Wall. 128,

144-145 (1871), and the judges of the Court of Claims were

held to be protected against diminution of their compensa-

tion, Miles v. Graham, 268 U.S. 501 (1925). The Tucker

Act, in 1877, reenacted the basic jurisdiction of the Court of

Claims and conferred concurrent jurisdiction upon the

_ federal district courts during this period when the status

of the Court of Claims as a constitutional court seemed to

be settled and in apparent acceptance of that status..

The Bakelite case, decided in 1929, held the Court of

Customs Appeals to be a legislative court in an opinion

which endeavored to fashion a general theory of legislative

_ courts encompassing the Court of Customs Appeals, the

territorial courts, and a number of other courts, including

the Court of Claims and the District of Columbia courts,

which were classified in dicta as legislative courts. Bakelite

stated that ‘‘the true test lies in the power under which the

court was created and in the jurisdiction conferred,” and

rejected an argument based on the life tenure of the judges

of the Court of Customs Appeals as mistakenly assuming

‘that whether a court is of one class or the other depends

on the intention of Congress.’’ 279 U.S., at Pp. 459, This

‘true test’’ is largely circular, however, in that the basic

issue is the power (Article I or Article III) under which the

particular court was created, and does not really explain

the territorial-court cases as such courts, including the

Florida courts involved in Canter, generally were conferred

federal-question jurisdiction virtually in the language of

7

Article III. Furthermore, this sudden expansion of the

legislative-court concept seriously undermined the purpose.

of Article III to protect the independence of the federal

judiciary.

O’Donoghue v. United States, 289 U.S. 516 (1933), held

the District of Columbia courts to be constitutional courts,

rejecting the contrary dictum in Bakelite. The purpose of

Article III to protect the independence of the judiciary was

stressed and the territorial-court cases once agein were

placed in a special category for which the temporary nature

of territorial governments provided some justification.

Otherwise, the determination of whether a court was created

under Article III depends upon whether ‘‘the judicial power

conferred extend[s! to the cases enumerated in that arti-

cle.”’ Id., at p. 546. The fact that the Congress may have

conferred non-Article III jurisdiction on a court does not

affect its status as a constitutional court. Thus, the District

of Columbia courts were found to be constitutional courts

because they exercised jurisdiction over cases and controver-

sies coming with the scope of Article III and despite the

fact that they also had certain administrative and quasi-

judicial advisory functions. Futhermore; the life tenure of

the judges of the District of Coiumbia courts and other in-

dications that the Congress intended tu create such courts

under Article III were considered to be significant factors.

The Williams case was decided on the same day as

0’Donoghue and the opinions in both cases were written

by Mr. Justice Sutherland. In holding the Court of Claims

to be a legislative court, Williams relied heavily upon the

dictum to that effect in Bakelite, but also held that the Court

of Claims does not exercise jurisdiction over eases or con-

troversies coming within the categories enumated in Article

III. Bakelite “was quoted for the proposition that the

advisory jurisdiction exercised by the Court of Claims in

some instances demonstrated that it had been treated by

8

the Congress as a legislative court. These conclusions,

necessary to harmonize the Williams decision with the cri-

teria expressed in the O’Donoghue opinion rendered the

same day, were, we believe, erroneous.

In National Ins. Co. v. Tidewater Co., 337 U.S. 582 (1949),

four opinions were written, none of which gained the ad-

herence of a majority of the Court. Some aspects of the

legislative court-constitutional court controversy were dis-

cussed in all four opinions, and three of the opinions rep-

resenting six members of this Court indicated disagree-

ment with the holding in Williams that the Court of Claims

does not exercise Article III jurisdiction.

C. Accepting the fact that the legislative-court doctrine

is too firmly enirenched to be uprooted altogether, we believe

that the O’Donoghue approach provides an appropriate

accommodation with the purpose of Article III to protect

the independence of the judiciary. With the exception of

the territorial and similar courts situated outside the bound-

aries of the United States proper which may be said to be

‘Cincapable of receiving’”’ Article III judicial power because

of their presumably temporary nature, any federal court

granted jurisdiction over cases or controversies of a kind

enumerated in Article II] is an Article ITT court and its

tembers are judges entitled to the protections provided in

Article III with respect to tenure and compensation. This

protection is not lost merely because the Congress may

also have conferred non-judicial functions on the court

under Article I, and the intention of the Congress may

be persuasive if there is any doubt as to the Article Ill

jurisdiction and nature of a particular court. While Wil-

liams appears to have accepted the approach enunciated

in O’Donoghue, it erred in concluding that the Court of

Claims does not exercise any Article Ii: jurisdiction and

has been treated by the Congress as a legislative court.

D. Article III extends the judicial power of the United

States to, among other things, ‘‘Controversies to which the

United States shall be a Party.’’ Although the United

States is a party to all litigation in the Court of Claims,

Williams held that such litigation does not come within

Article III because the above-quoied provision is to be

construed as applying only to cases in which the United

States in a party plaintiff. This construction is contrary to

the plain meaning of the term ‘‘party,’’ and no support was

cited or has been found in the debates at the Constitutional

Convention. Chisholm v. Georgia, 2 Dall. 419 (1793), which

was participated in by several members of the Constitu-

tional Convention, held that ‘‘party’’ as used in the provi-

sion of Article III giving this Court original jurisdiction

over cases ‘‘in which a State shall be a Party’’ included

cases in which a state is a defendant as well as those in

which it is a plaintiff. This Court has continued to hold

that it has original jurisdiction over actions brought against

a state as a defendant with respect to those cases and con-

troversies over which the judicial power extends. United

States v. Texas, 143 U.S. 621, 643-644 (1892).

Minnesota v. Hitchcock, 185 U.S. 373, 383 (1902), held

that Article III judicial power over controversies to which

the United States is a party included cases to which the

United States is a defendant when it consents to be sued, as

in the Court of Claims. In overruling this decision and

rewriting the plain language cf Article III, Williams as-

serted that the framers of the Constitution did not con-

template the possibility that the United States might be a

party defendant because of its sovereign immunity from

suit. Hans v. Louisiana, 134 U.S. 1 (1890), which expressed

approval of the dissenting opinion of Mr. Justice Iredell in

Chisholm v. Georgia, was relied upon to support this pro-

position. Both the Hans opinion and the Iredell dissent,

10 -

however, recognized that sovereign immunity could be

waived and that a sovereign could be sued in the federal

courts with its consent. Moreover, the concept of waiver

of sovereign immunity was well known when the Constitu-

tion was adopted. See Monaco v. M ississippi, 292 U.S. 313,

323-324 (1934).

In any event, Williams failed to consider the possibility

that the Court of Claims exercises Article III judicial

spower under the provision extending that power to cases

arising under the Constitution and laws of the United

States. Under the Tucker Act, the Court of Claims and

the federal district courts exercise concurrent jurisdiction

over claims founded upon the Constitution, Acts of Con-

gress, federal regulations or contracts authorized by stat-

ute. All of this jurisdiction would appear to be Article

III federal-question jurisdiction, and six Justices of this

Court so indicated in the Tidewater case. Also, since a

statutory waiver of sovereign immunity is essential to a

suit against the United States, claims brought in the Court

of Claims necessarily must involve a question arising under

the laws of the United States. We believe, therefore, that

Williams erred in holding that the Court of Claims do.

not exercise Article III judicial power.

E. The Court of Claims was constituted in substantially

iis present form during the eleven-year period between

1853 and 1866. The judges of the Court of Claims were

civen life tenure during good behavior, and the legislative

history of the pertinent statutes demonstrates beyond rea-

sonable doubt that the Congress intended to create the

Court of Claims under Article Ii as an inferior court

for the exercise of Article III judicial power. This legis-

lative history, which was not referred to in the Williams

opinion, shows that Williams also erred in concluding that

11

the Congress has treated the Court of Claims as a legis-

lative court.

II

The 1953 statute, which declares the Court of Claims

“to be a court established under article III of the Con-

stitution of the United States,’’ validly establishes the

present status of the Court of Claims as a constitutional

court even if Walliams is reaffirmed in holding that the

Court of Claims initially was created as a legislative court.

Williams conceded that this holding could be reconciled

with the concurrent Tucker Act jurisdiction of the federal

district courts and with the review by this Court of judg-

ments of the Court of Claims, only by the concept adopted

in Williams that the Court of Claims exercises ‘‘ judicial

power’? which can be conferred upon Article III courts

as well as upon Article I courts even though such ‘judicial

power’? is conferred under Article I. While this concept

of ‘judicial power’? apart from that provided in Article

III seems to us to be inconsistent with the language of the

Constitution and the purpose of Article III to assure an

independent judiciary, the concept was vital to the Williams

decision and, we believe, must be accepted if that decision

is reaffirmed. Assuming, therefore, that the Congress

under Article I can confer judicial power over claims

against the United States upon either Article I courts or

Article IIT courts, we see no reason why the Congress

should not be free to declare that the Court of Claims

henceforth shall exercise such judicial power as an Article

II court.

While the Congress in the 1953 Act was expressing its

view that the Court of Claims has always been a con-

stitutional court, this was done in the form of a declaration

entitled to future effect even if the Congress was mistaken

about the past status of the Court of Claims. Postmaster-

ee

12

General v. Early, 12 Wheat. 136, 148-149 (1827). Such

a change in the status of the Court does not, we believe,

necessitate reappointment of its judges. Cf., Shoemaker

v. United States, 147 U.S. 982, 301 (1893). They already

had life tenure, and they were appointed by the President

and confirmed by the Senate as required by the Constitu-

tion. The surrender of any righi that the Congress may

have had to reduce their compensation hardly suffices in

itself to require reappointment. Moreover, the status

of the Court of Claims poses no serious threat, in our

opinion, to its limited advisory functions in congressional

reference cases, in view of the holding in O’Donoghue

that the District of Columbia courts may exercise jurisdic.

tion of a similar nature. In any event, it would seem that

such functions could be performed voluntarily, even if they

could not be required, and the Congress enacted the 1953

Act even though advised that the congressional reference

jurisdiction of the Court of Claims might be affected by

the Act.

Argument

o

The status of the Court of Claims as a constitutional

court established under Article III of the Constitution

seemed to be settled until Ex Parte Bakelite Corp’m., 219

U.S. 438, 452-455 (1929), expressed the view that the Court

of Claims was a legislative court while holding that the

Court.of Customs Appeals (now the Court of Customs

and Patent Appeals) was a legislative court. This dictum

in Bakelite with respect to the status of the Court of Claims

was converted into a holding by Williams v. United States,

989 U.S. 853 (1938). Bakelite and Williams provide the

basis for petitioner’s contention that Judge Madden’s pat

ticipation in the hearing and decision below was uncol-

stitutional, even though his assignment by the Chief Justice

13

to serve temporarily on the Court of Appeals for the Sec-

ond Circuit was authorized by statute.

With all deference, but with the frankness which the

subject demands, we suggest that the dictum of this Court

in Bakelite and its holding in Williams were seriously in

error and should be reexamined. We are encouraged in

this suggestion by the fact that the status of the Court of

Customs and Patent Appeals—the subject of the holding

in Bakelite—is also before this Court at the present time

in Lurk v. United States, No. 481, cert. granted, 368 U.S.

815 (1961). We are further encouraged in this suggestion

by the fact that the Congress, after thorough considera-

tion, has concluded that Bakelite and Willams were wrongly

decided, and has expressed that conclusion in legislation.

In 1953, the Congress enacted a statute (67 Stat. 226,

28 U.S.C. § 171) in which the Court of Claims was ‘‘de-

clared to be a court established under article III of the

Constitution of the United States.’’ A similar statute (72

Stat. 848, 28 U.S.C. § 211) was enacted in 1958 with respect

to the Court of Customs and Patent Appeals.’ The lan-

guage of these acts indicates a congressional belief that

the existing status of the courts in question was being de-

clarea, rather than a changed status, and this is confirmed

by the legislative history of the 1953 Act. H. Rept. No.

695, 83d Cong., Ist Sess., states, at p. 2, that:

‘‘The principal purpose of this bill is to declare the

United States Court of Claims to be a court estab-

lished under article III of the Constitution. Sub-

sequent to a long line of decisions which recognized

the Court of Claims as such a constitutional court,

1A similar statute (70 Stat. 532, 28 U.S.C. § 251) was also enacted, in

1956, with respect to the Customs Court, which another dictum in Bakelite

(279 U.S., at pp. 457-458) had characterized as a legislative court.

14

the United States Supreme Court held in 1933 that the

Court of Claims was not organized under the provi-

sions of article III, but rather was created by Con-

gress as a so-called legislative court in the exercise

of its constitutional power under article I to pay the

debts of the United States. By Congress declaring

unequivocally—as this bill proposes—that the Court of

Claims was in fact established as, and continues to be,

a constitutional court, this measure not only will pro-

tect the independence of the bench of the Court of

Claims, but also will remove any doubt as to the power

of Congress to authorize the Chief Justice of the

United States to assign district and circuit judges to

assist the judges of the Court of Claims whenever

such action is considered necessary or expedient. ...”

See, also, S. Rept. No. 279, 83d Cong., Ist Sess., p. 2.°

The House Report, at pp. 3-9, contains a detailed dis-

cussion of many of the pertinent decisions, including Bake-

lite and Williams, and refers to the legislative history of

the statute initially creating the Court of Claims as ‘‘indi-

cating that Congress intended to create a court under the

power granted to it by article III to create inferior courts.” »

2S. Rept. No. 275 was a “eorrected report” substituted (99 Cong. Ree.

5020) for S. Rept. No. 261, 83d Cong., Ist Sess., which originally a¢-

companied the bill reported to the Senate. Language in the earlier report

(at p. 2) stating that the Committee was of the opinion that the Court of

Claims “more properly should have been so created” under Article Ill,

was replaced in the corrected report by a statement that the Committee

was of the opinion “that Congress intended it to have been so created”

under Article III. When the Senate bill came up for debate on the floor

of the Senate, the House bill was substituted for it at the request of

Senator Gore, who explained that the House bill made entirely clear that

the Congress did “not intend to create a new cou ” by “simply declar-

ing that the existing Court of Claims should be a court established under

article III of the Constitution. .. .” 99 Cong. Ree. 8943.

i

> aes

15

We demonstrate, in Part II of this Argument, that the

declaration by the Congress in the 1953 Act is determina-

tive of the present status of the Court of Claims, even if

this Court should reaffirm Williams and hold that prior to

that Act the Court of Claims was a legislative court. But

we also believe that the 1953 Act, and the considered judg-

ment of the Congress expressed therein that the Court of

Claims has always been a constitutional court, justifies a

reconsideration by this Court of its holding in Williams.

Cf., United States v. Hutcheson, 312 U.S. 219,’ 235-237

(1941). In Part I of this Argument, we show that such

a reconsideration should lead this Court to overrule Wil-

liams and confine the legislative-court doctrine to its proper

sphere. ‘

|

The Will‘ams Decision Erred in Holding that the Court of

Claims Was Created as A Legislative Court

The Bakelite and Williams decisions are not an integral .

part of a settled doctrine of constitutional law the over-

ruling of which might have far reaching effects. Rather,

those decisions suddenly expanded a narrow, judicially-

created exception to Article III of the Constitution—an

exception for many years limited to territorial courts and

which even as so limited rested on reasoning that is dubi-

ous at best. The ‘‘contradictions, complexities and subtle-

ties’ found by Mr. Justice Rutledge ‘‘in the maze woven by

——_—_—_—_—___

* While an expression by a later Congress of its views is “not conelu-

five” insofar as the intent of an earlier Congress in enacting a statute is

concerned, such an expression is “entitled to great respect” from the courts

in determining that intent. United States v. Clafin, 97 U.S. 546, 548

(1878) ; see, e.g., St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347

US. 298, 310-313 (1954); N.Y. d& Norfolk R.R. v. Peninsula Exchange,

240 U.S. 34, 39 (1916). )

16

the ‘legislative court—constitutional court’ controversy” *

were largely engendered by Bakelite and subsequent de-

cisions, including W illiams, which sought to deal with the

extensive dicta in the Bakelite opinion. In all of this con-

troversy, the important purposes intended to be served by

Article III, and particularly the safeguarding of the in-

dependence of the federal judiciary, seem to us to have

been needlessly slighted. Walliams ignored the plainly ex-

pressed intent of the Congress to create the Court of

Claims as a constitutional court under Article I1I—an in-

tent which would seem to be decisive if the Congress had

an option between a legislative and a constitutional court.

Thus, we show below that, for these and other reasons,

Williams is unsound and should be overruled.

A. The Provisions and Purposes of Article III. In ac-

cordance with the separation of powers doctrine basic to

our Constitution, that document separately provides for

the ‘legislative Powers’’ (Article I), for the ‘“executive

Power” (Article II), and for the ‘‘judicial Power”’ ( Arti-

cle III) of the United Siates. Section 1 of Article Ill

provides that:

‘“‘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

‘nferior Courts, shall hold their Offices during good

Behaviour, and shall, at stated Times, receive for their

Services, a Compensation, which shall not be dimin-

ished) during their Continuance in Office.”’

\

‘Nat. Ins. Conv. Tidewater Co., 337 U.S. 582, 604-605 (1949) (con-

curring opinion).

17

Section 2 of Article III provides that the ‘‘ judicial Power’?

shall extend to specified ¢ases and controversies, includ-

ing cases arising under the\Constitution and laws of the

United States and controversies to which the United States

shall be a party. Section 2 also provides for limited origi-

nal jurisdiction in this Supreme Court and that in ‘‘all

the other Cases before mentioned, the supreme Court shall

have appellate jurisdiction, both as to Law and Fact, with

such Exceptions, and under such Regulations as the Con-

gress shall make.’’ Article III in addition contains pro-

visions respecting the right to jury trials and defining the

crime of treason against the United States.

The purpose of conferring life tenure upon federal judges’

during good behavior and of prohibiting any diminution

of their compensation, undoubtedly was to safeguard the

independence of the judiciary—to assure that federal judges

shall be ‘‘independent not in the sense that they shall not

cooperate to the common end of carrying into effect the

purposes of the Constitution, but in the sense that the acts

of each shall never be controlled by, or subjected, directly

or indirectly, to, the coercive influence of either of the

other departments.’’ O’Donoghue v. United States, 289

U.S. 516, 530 (1933), and see, generally, pp. 529-534; Evans

v. Gore, 253 U.S. 245, 248-254 (1920). The importance at-

tributed to this purpose is indicated by ‘‘the following

strong and frequently quoted language”’ of Chief Justice

Marshall, in the course of the debates of the Virginia State

Convention of 1829-1830, as quoted in O’Donoghue v. United

States, supra at p. 532:

‘‘The Judicial Department comes home in its effects

to every man’s fireside; it passes on his property, his

reputation, his life, his all. Is it not, to the last degree

important, that he [the judge] should be rendered per-

18

fectly and completely independent, with nothing to

influence or control him but God and his conscience!

_.. T have always thought, from my earliest youth

till now, that the greatest scourge an angry Heaven

ever inflicted upon an ungrateful and a sinning people,

was an ignorant, a corrupt, or a dependent Judiciary.”

O’Donoghue pointed out that the reasons which impelled.

the adoption of the limitations in Article III concerning |

the tenure and compensation of federal judges ‘‘apply

with even greater force to the courts of the District [of

Columbia] than to the inferior courts of the United States

located elsewhere, because the judges of the former courts

are in closer contact with, and more immediately open to

’ the influences of, the legislative department, and exercise

a more extensive jurisdiction in cases affecting operations

of the general government and its various departments.”

Id., at p. 535. The Court of Claims, of course, is also

located in the District of Columbia, and is exclusively

concerned with claims to which the United States is a party

and arising out of the ‘‘operations of the general govern-

ment and its various departments.”’ Since the Court of

Claims comes so clearly within the intent and purposes of

Article III, seemingly only the most persuasive reasons

would be sufficient to justify a finding that Article III is

inapplicable to that Court and to the judges thereof.

Indeed, Williams recognized that the Court of Claims

closely resembles the District of Columbia courts in this

respect. ‘‘It is a court of great importance, dealing with

claims against the United States, which, in the aggregate,

amount to a vast sum each year. The questions which it

considers call for the exercise of a high order of intelli-

gence, learning and _ ability. The preservation of its inde-

pendence is a matter of public concern. The sole function

19

of the court being to decide between the goverm. ent and

private suitors, a condition, on the part of the judges, of

entire dependence upon the legislative pleasure for the

tenure of their offices and for a continuance of adequate

compensation during their service in office, to say the least,

is not desirable.’’ 289 U.S., at pp. 561-562. Where Wil-

liams erred, as we attempt to show later in this brief, was

not in recognizing the desirability of affording the pro-

tections of Article III to the Court of Claims and its judges,

but in the reasons given for withholding that protection.

There is nothing in the language of Article ITI, or else-

where in the Constitution, to indicate that the Congress

was intended to have the power to establish so-called legis-

lative courts for the exercise of judicial power unrestricted

by the limitations of Article III. The more natural impli-

cation, we believe, is that the framers of the Constitution

intended Article IiI to be the exclusive source of judicial

power, with the judicial system being limited to courts

established under and exercising jurisdiction within the

limits prescribed by that Article. This implication is re-

inforeed by the fact that Article III represented a careful

compromise of conflicting views, after considerable debate

over the desirability of creating a federal judicial system

and over the scope of the judicial power to be entrusted

to the federal courts.’ It is difficult to believe that the

framers contemplated or intended to permit a facile avoid-

ance of the limitations of Article III through the device

of legislative courts created under Article I. Insofar as

we have been able to discover, the possibility of such legis-

lative courts was never suggested during the debates in

* See the cone arrieg opinion of Mr. Justice Rutledge and the dissenting

opinions of Chief Justice Vinson and Mr. Justive Frankfurter in National

Ins. Co. v. Tidewater Co., 337 U.S. 582, 615-617, 627-634, 647-654 (1949).

20

the Constitutional Convention or over ratification of the

Constitution by the States.

The legislative-court concept was early enunciated, never-

theless, in an opinion by Chief Justice Marshall for an

unanimous Court in American Insurance Co. v. Canter,

1 Peters 511 (1828), and we do not contend that the con-

cept should be or need be entirely eradicated at this late

date. But cf., Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).

We do contend that the legislative-court exception to Article

IIT should be confined to the territorial and other courts

without the boundaries of the United States proper, such

as were involved in Canter and in all applications of the

legislative-court doctrine prior to Bakelite.

B. Development of the Concept of Legislative Courts.

In American Insurance Co. v. Canter, supra, the Insurance

Company had brought an action against Canter to recover

256 bales of cotton purchased by Canter at a salvage sale

pursuant to a decree of a court of the then Territory of

Florida. The Insurance Company contended, among other

things, that the Congress could not vest admiralty juris-

diction in courts created by the Florida territorial legis-

lature because Article II vested the whole of the judicial

power, including cases of admiralty and maritime juris-

diction, ‘‘in one supreme court, and in such inferior courts

as congress shall from time to time ordain and establish.”

1 Peters, at p. 546. Replying to this argument, Chief

Justice Marshall stated (ibid.) that:

‘‘We have only to pursue this subject one step further,

to perceive that this provision of the constitution does

not apply to it. The next sentence [of Article Ii]

declares, that ‘the judges of both of the supreme and

.aferjor court {sic], shall hold their office during good

21

behavior.’ The judges of the superior courts of Florida

hold their offices for four years. These courts, then,

are not constitutional courts, in which the judicial

power conferred by the constitution on the general

government, can be deposited. They are incapable of

receiving it. They are legislative courts, created in

virtue of the general right of sovereignty which exists

in the government, or in virtue of that clause which

enables congress to make all needful rules and regu-

lations, respecting the territory belonging to the United

States. The jurisdiction with which they are investe1,

is not a part of that judicial power which is defined

in the 3d article of the constitution, but is conferred

| by congress, in the execution of those general powers

| which that body possesses over the territories of the

United States. Although admiralty jurisdiction can

be exercised in the states, in those courts only which

are established in pursuance of the third article of

the Constitution; the same limitation does not extend

to the territories. In legislating for them, Congress

exercises the combined powers of the general, and of

a state government.”’

Chief Justice Marshall’s reasons, as stated in Canter,

for holding the Florida territorial courts to be legislative

courts are plainly inapplicable to the Court of Claims.

The Florida courts were said to be ‘‘incapable of receiv-

ing’ Article III judicial power because the judges of those

courts were appointed for a limited term, while the judges

of the Court of Claims ‘‘hold office during good behavior.’’

28 U.S.C. § 173. And the determination and payment of

claims against the United States involves an exercisé ‘of

the powers of the general federal government as such

22

rather than ‘‘the combined powers of the general, and of

a state government.’’ Moreover, there were practical rea-

sons for the Canter decision which are inapplicable here.

Professor Moore has pointed out that this Court was faced

in Canter with the problem of avoiding destruction of the

judicial system in the Territory of Florida despite the

limited tenure of the judges of the Florida courts, and

at the same time avoiding impairment of Article HI’s

guarantee of life tenure during good behavior, insofar as

that could be done. 1 Moore, Federal Practice, pp. 57-908

(2d ed.). In addition, as Webster argued to this Court

in Canter, it would ‘‘be a hard case against the claimant

of the property [Canter], should he lose it, having pur-

chased it in good faith under the decree of a court exercis-

ing jurisdiction over the matter, and to which jurisdiction,

no objection was made by the parties to the proceeding.”

1 Peters, at p. 537.

Whether or not Canter was a hard case which made bad

law, that decision posed a threat to the continued vitality

of Article III, insofar as it was grounded upon thie view

that the Florida courts were ‘Cineapable of receiving”

Article III judicial power because of the limited tenure

of the judges of those courts and, therefore, must have

been created pursuant to some other power of the Cor-

gress. If non-compliance with Article III, at least ins0-

far as tenure was concerned, served to establish the in-

applicability of Article III, the safeguards in that Article

of an independent judiciary could easily he avoided if the

Congress was so minded.

The unsatisfactory nature of this rationale for the legis-

lative-court doctrine was soon recognized, and efforts wert

made to limit the scope of the doctrine and to suggest

other explanations for it. Thus, in Benner v. Porter, 9

23

How. 235, 243-244 (1850), where an issue arose concern-

ing the status of the Florida courts after admission of

that State to the Union, this Court stated that:

‘‘The admission of the State into the Union brought

the Territory under the full and complete operation

of the Federal Constitution, and the judicial power

of the Union could be exercised only in conformity to

the provisions of that instrument. By art. 3, $1, ‘The

judicial power of the United States shall be vested in

one Supreme Court, and in such inferior courts as Con-

gress may, from time to time, ordain and establish.

The judges, both of the supreme and inferior courts,

shall hold their offices during good behaviour.’

‘“‘Congress must not only ordain and establish in-

ferior courts within a State, and prescribe their juris-

diction, but the judges appointed to administer them

must possess the constitutional tenure of office before

they can become invested with any portion of the judi-

cial power of the Union. There is no exception to this

rule in the Constitution. The Territorial courts, there-

fore, were not courts in which the judicial power con-

ferred by the Constitution on the Federal government

could be deposited. They were incapable of receiving

it, as the tenure of the incumbents was but for four

years. (1 Pet., 546.) Neither were they organized by

Congress under the Constitution, as they were invested

with powers and jurisdiction which that body was in-

capable of conferring upon the courts within the limits

of a State.’’

Benner v. Porter, therefore, suggested that the territoriat

courts were nof* subject to the Constitution at all, while

firmly disclaiming the possibility that the legislative-court

doctrine might be extended to courts created by the Con-

Sen nen tanatsroenaniinnaiione ten

24

gress within a State of the Union. This suggestion was

elaborated in Downes V. Bidwell, 182 U.S. 244, 263-267

(1901), where the majority stressed that the territories

were not considered to be part of the United States and for

that reason were beyond the reach of the Constitution and

Article III thereof.* In so doing, they pointed to the diff-

culties which would arise if Canter were placed on any other

basis, as follows (id., at p. 267) :

‘‘But if they be a part of the United States, it is diffi-

cult to see how Congress could create courts in such

territories, except under the judicial clause of the

Constitution. The power to make needful rules and

regulations would certainly not authorize anything in-

consistent with the Constitution if it applied to the ter-

ritories. Certainly no such court could be created

within a State, except under the restrictions of the

judicial clause. It is sufficient to say that this case

[Canter] has ever since been accepted as authority for

the proposition that the judicial clause of the Consti-

tution has no application to courts created in the terri-

tories, and that with respect to them Congress has a

power wholly unrestricted by it.’’

The view that the Constitution 1s inapplicable outside the

territorial limits of the United States proper was also ad-

vanced to uphold the validity of consular courts which

failed to comply with various constitutional guarantees.

In re Ross, 140 U.S. 453 (1891).

6 “As the only judicial power vested in Congress is to create courts whose

judges shall hold their offices during good behavior, it necessarily follows

that, if Congress authorizes the creation of courts and the appointment of

judges for a limited time, it must act independently of the Constitution,

and upon territory which is not part of the United States within the mean-

ing of the Constitution.” 182 U.S., at p. 266.

25

A concurring opinion in Downes v. Bidwell, supra, at p.

993, expressed the view that Canter and similar decisions

with respect to the legislative nature of territorial courts

erew out of ‘‘the presumably ephemeral nature of a terri-

torial government. ...’’ This view had earlier been ad-

vanced in McAllister v. United States, 141 U.S. 174, 187-

188 (1891), where this Court held that judges of territorial

courts were not entitled by Article III to life tenure and

stated that the ‘‘absence from the Constitution of such

euarantees for territorial judges was no doubt due to the

fact that the organization of governments for the Terri-

tories was but temporary, and would be superseded when

the Territories became States of the Union.”’

Thus, while this Court adhered to the holding in Canter

that the territorial courts are legislative courts rather

than constitutional courts created under Article III, the

rationale for that holding was shifted and the holding in

effect was limited to the territorial courts and similar courts

(such as the consular courts) situated without the geo-

graphic boundaries of the United States proper. Prior to

Bakelite, decided in 1929, no case had held that a federal

court situated within the United States proper was a legis-

lative court not subject to the requirements of Article ILI.’

7The courts in Indian Territory were held to be legislative courts,

Stephens v. Cherokee Nation, 174 U.S. 445, 478 (1899) ; Wallace v. Adams,

204 U.S. 415, 422 (1907). While the basis for that holding was not ex-

plained, Indian Territory would not seem te differ in this regard from

other territories of the United States. The United States Court for China,

classified by dicta in Bakelite (279 U.S., at p. 451) as a legislative court,

was similar to the consular courts in being located without the territorial

limits of the United States. Balcelite (279 U.S., at p. 456) cited Coe v.

United States, 155 U.S. 76 (1894), as holding the Court of Private Land

Claims to be a legislative court. But the holding in Coe was expressly

limited to the jurisdiction of that Court over claims to land situated in

the territories, and Coe refused to determine “whether it was within the

power of Congress to create a judicial tribunal of this character for the

26

Consistent with the limited scope of the legislative-court

doctrine prior to Bakelite, this Court repeatedly classified

the Court of Claims as a constitutional court created by

the Congress as an inferior court under Article III.* The

Court of Claims was created in 1855 (10 Stat. 612), but

initially had authority only to investigate claims, report

upon them to the Congress and recommend bills for enact-

ment by the Congress. In 1863, a broad revision of the

law governing the operation of the Court of Claims (12

Stat. 765) purportedly made its judgments final subject

to appeal to this Court, but included a provision that no

money should be paid out of the Treasury on any adjudi-

cated claim until an appropriation therefor had been esti-

mated by the Secretary of the Treasury. Because of this

administrative review to which judgments of the Court of *

Claims apparently were subjected, Gordon v. United States,

2 Wall. 561 (1864), dismissed for want of jurisdiction an

attempted appeal from a judgment of the Court. An elabo-

rate opinion prepared for that case by Chief Justice Taney,

who died before announcement of the decision in the case,

was later published in 117 U.S. 697.

We discuss in a subsequent part of this brief, pp. 53-59,

infra, the legislative history of these early statutes which,

we believe, demonstrates conclusively that the Congress

intended at all times to establish the Court of Claims as an

inferior tribunal under Article III, even though initially

mistaken as to the finality of judgment requisite to such

A

determination of title to property situated in the States.” 155 US., at

pp. 85-86. This Court never had occasion to resolve the issue thus left

open in Coe. See Katz, Federal Legislative Courts, 43 H.L.R. 894, 908

(1930). O’Donoghue v. United States, supra at pp. 550-551, pointed out

that no case prior to Bakelite could properly be understood as holding

the District of Columbia courts to be legislative courts.

8 Legal writers generally agreed with this classification. See Katz, Fed-

eral Legislative Courts, 43 H.L.R. 894, 906 (1930), and authorities there

cited.

.

27

a tribunal. It was this lack of finality, so Chief Justice

Taney explained, which prevented the Court of Claims, as

initially established, fiom being an ‘‘inferior court,’’ and

“this Court ... cannot, under the Constitution, take juris-

diction of any decision, upon appeal, unless it was made

by an inferior court, exercising independently the judicial

power granted to the United States.’’ 117 US., at pp.

702, 704.

Shortly after the Gordon decision, in 1866, the Congress

repealed the objectionabie provision for administrative re-

view of judgments of the Court of Claims (14 Stat. 9),

and this Court thereupon amended its rules to provide for

appeals from judgments of that Court (3 Wall. vii-viii).

Following these amendments to the statute and to the rules,

this Court accepted jurisdiction of the first appeal from

a judgment of the Court of Claims, De Groot v. United

States, 5 Wall. 419 (1866), and, of course, has since taken

jurisdiction of countless appeals from such judgments.

Viewed in the light of thé explanation given by Chief

Justice Taney in Gordon for the initial rejection of such

an appeal, this Court must have considerea .he Court of

Claims to be an inferior tribunal established under Article

III once finality of judgment was provided. And, this

Court soon so stated, in United States v. Klein, 13 Wall.

128, 144-145 (1871), as follows:

“Originally, [the Court of Claims] was a court merely

in name, for its power extended only to the prepara-

tion of bills to be submitted to Congress.

‘‘In 1863 the number of judges was increased from

three to five, its jurisdiction was enlarged, and, in-

stead of being required to prepare bills for Congress,

it was authorized to render final judgment, subject

to appeal to this court and to an estimate by the Secre-

tary of the Treasury of the amount required to pay

28

each claimant. This court being of opinion that the

provision for an estimate was inconsistent with the

finality essential to judicial decisions, Congress re-

pealed that provision. Since then the Court of Claims

has exercised all the functions of a court, and this

court has taken full jurisdiction on appeal.

“The Court of Claims is thus constituted one of

those inferior courts which Congress authorizes, and

has jurisdiction of contracts between the government

and the citizen,.from which appeal lies regularly to

this Court.’’

On numerous subsequent occasions, this Court reiterated

the view that the Court of Claims existed under Article III

as a constitutional court. In United States v. Union Pacific

R. Co., 98 U.S. 569, 603 (1878), for example, this Court

stated:

‘Congress has, under this authority [Article Ij,

created the district courts, the circuit courts, and the

Court of Claims, and vested each of them with a defined

portion of the judicial power found in the Constitu-

tion. It has also regulated the appellate jurisdiction

of the Supreme Court.”’

In United States v. Louisiana, 123 U.S. 32 (1887), an ob-

jection was raised to the jurisdiction of the Court of Claims

over a suit browght by a state against the United States

Refuting that objection, this Court first quoted the pertinent

language of Article ITI and then held (id., at p. 35) that:

“The action before us, being one in which the United

States have consented to be sued, falls within those

designated, to which the judicial power extends; for,

as already stated, both of the demands in controversy

arise under laws of the United States. Congress bas

-_

29

brought it within the jurisdiction of the Court of

Claims by the express terms of the statute defining

the powers of that tribunal, unless the fact that a

State is the petitioner draws it within the original

jurisdiction of the Supreme Court.’’

See also, Minnesota v. Hitchcock; 185 U.S. 373, 386 (1902) ;

Kansas v. United States, 204 U.S. 331, 342 (1907). In

Miles v. Graham, 268 U.S. 501, 509 (1925), this Court held

that imposition of an income tax upon the salary of a

judge of the Court of Claims was ‘‘forbidden by the Con-

stitution.” The reference to the Constitution must have

been to that provision in Article III that the compensation

of judges of courts established pursuant to that Article

“shall net be diminished during their Continuance in Of-

fice.’

Throughout this period of some 60 years during which

the status of the Court of Claims as a constitutional court

seemed to be settled, the Congress never took any action

to change its status to that of a legislative court. Rather,

the Congress in 1877 reenacted the basic jurisdiction of

the Court of Claims as a part of the Tucker Act, 24 Stat.

505, and at the same time extended concurrent jurisdic-

tion over the same claims (up to $10,000) to the federal

district courts, which have always been considered to be

constitutional courts. See Mookini v. United States, 303

US. 201, 205 (1938). The Tucker Act was adopted only

eight years after this Court, in United States v. Union

Pacific R. Co., supra, had expressly referred to the Court

of Claims as having been created under Article III. The

House Report on the bill enacted as the Tucker Act pointed

out the advantages of having a court of justice ascertain

rights as between litigants, and stated that it was proposed

to extend the jurisdiction of the Court of Claims to include

oe A ee et

30

certain claims which ‘‘should be asserted before a judicial,

not a legislative, tribunal.’’ The Report also added that

greater efficiency and justice would be secured ‘‘from the

separation of the legislative and judicial functions.’’ H.

Rept. No. 1077, 49th Cong., Ist Sess., pp. 4, 5.°

The Congress in re-enacting a statute is presumed to

have adopted the construction given to the same language

in the prior statute. See, e.g9., Shapiro v. United States,

335 U.S. 1, 16 (1948), and cases there cited. In re-enacting

as part of the Tucker Act the statutes governing the juris-

diction of the Court of Claims, the Congress must, there-

fore, have accepted the then settled view that the Court

of Claims exercised this jurisdiction under Article ITI of

the Constitution and elected to continue the Court of

Claims in existence under Article III as a constitutional

equrt.

Thus, when Bakelite came up for decision in 1929, the

legislative-court doctrine of the Canter ease had been lin-

ited to territorial and other courts situated outside the

boundaries of the United States proper, and the Court gf

Claims seemed to be firmly established as a constitutional

court. Bakelite, of course, directly involved the status of

® The concurrent jurisdiction under the Tucker Act of the Court of

Claims and the district courts has been a considerable embarassment to

those who would classify the Court of Claims as a legislative court. Inso-

far as we have discovered, there is not even a hint in the legislative history

of the Tucker Act that. the Congress invoked its Article I power to pay

the debts of the United States in conferring jurisdiction upon the Court

of Claims, and invoked ite Article III power in conferring the identical

jurisdiction upon the district courts. Williams suggested that judicial

power may be conferred apart from Article III upon constitutional 88

well as upon legislative courts (289 U.S:, at p. 565), but O’ Donoghue,

decided the same day, expressed the orthodox view that the district courts,

other than in the District of Columbia, can exercise only Article III juris

diction (289 U.S., at p. 546), and that view was a cornerstone of the

Bakelite decision (279 U.S., at p. 449). See the diversity of opinion 93

this issue in National Ins. Co. v. Tidewater Co., 337 U.S. 582, 592-54,

609-611, 640-642, 647-649 (1949). sit!

31

only the Court of Customs Appeals. In holding that Court

to be a legislative court, however, Bakelite in dicta as-

signed the same classification to a wide variety of courts,

including the Court of Claims and the wistrict of Colum-

bia courts, and implicitly rejected the previously accepted

limitations on the Canter doctrine.

The Bakelite opinion stated that ‘‘the true test lies in

the power under which the court was created and in the

jurisdiction conferred,’’ in rejecting a contention that the

tenure of the judges should be decisive because that con-

tention ‘‘mistakenly assumes that whether a court is of

one class or the other depends on the intention of Con-

gress. . . .”’ 279 U.S., at p. 459." No authority was cited

for this ‘‘true test,’’ and it does not appear to have been

enunciated in any of the numerous prior cases in which the

issue had been raised. Moreover, ‘‘the power under which

the court was created’’ is merely a restatement of the issue

of whether a particular court is legislative (created under

Article I) or constitutional (created under Article III),

and thus does not appear to be a ‘‘test’’ at all unless (as was

denied) it refers to congressional intent. While ‘‘the juris-

diction conferred’’ obviously may be important, it had not

Despite this seeming rejection of the relevance of congressional in-

tent, the Bakelite opinion found “propriety in mentioning the fact that

Congress has always treated” the Court of Claims as a legislative court

in that “Congress has required it to give merely advisory decisions on many

matters.” 279 U.S., at p. 454. Bakelite also relied on two cases in which

this Court had refused to accept jurisdiction of appeals from advisory

decisions of the Court of Claims as demonstrating that “this Court plainly

was of the opinion that the Court of Claims is a legislative court... .”

279 U.S., at pp. 454-455. However, Gordon v. United States, supra, and

In re Sanborn, 148 U.S. 222 (1893), merely applied the rule that this

Court will not review non-final judgments and nowhere describe the Court

of Claims as a legislative court. We have already shown that this Court

has consistently reviewed final judgments of the Court of Claims, and, as

we shall show, O’Donoghue v. United States, supra, subsequently held that

the existence of advisory jurisdiction is not inconsistent with Article III

status. See pp. 33-34, infra.

32

previously been thought to be decisive. The territorial

courts often were given ‘‘the same jurisdiction in all cases

arising under the Constitution and laws o.: the United

States as is vested in the circuit and district courts of the

United States....’’ Reynolds v. Umted States, 98 U.S. 145,

154 (1878) ; see, also, Mookini v. United States, 303 U.S. 201,

205 (1938); The ‘‘City of Panama,” 101 U.S. 453 (1879) ;

Hornbuckle v. Toombs, 18 Wall. 648, 656 (1873) ; Clinton v.

Englebrecht, 13 Wall. 434, 447 (1871). The Florida superior

court involved in the Canter case was conferred the same

jurisdiction ‘‘within its limits, in all cases arising under the

laws and constitution of the United States, which ... was

vested in the court of Kentucky district.’? 1 Peters, at p.

543.

Bakelite deemed significant the fact that the Court of

Claims and Court of Customs Appeals were ‘‘created as

special tribunals to examine and determine various matters,

arising between the government and others, which from

their nature do not require judicial determination and yet

are susceptible of it. The mode of determining matters of

this class is completely within congressional control. Con-

gress may reserve to itself the power to decide, may dele-

gate that power to executive officers, or may commit it to

judicial tribunals.’’ 279 U.S., at p. 451; see, also, pp. 452,

457-458. But this cannot be determinative that the par-

ticular judicial tribunal to which such power is committed.

by the Congress, in its discretion, is a legislative rather

than a constitutional court. The federal district courts

have often been entrusted with such jurisdiction, as in the

Tucker and Tort Claims Act, yet undoubtedly are con-

stitutional courts.”

11 The references in Bakelite to the Court of Claims as a “special trie

bunal” may indicate that the limited nature of its jurisdiction was & factor

contributing to the conclusion reached. If so, that consideration gub-.

it i tt te tt i i

33

The O’Donoghue and Williams eases were decided on the

same day in 1933, four years after Bakelite. Both cases

erew out of a statute (47 Stat. 402) reducing the compensa-

tion of all judges ‘‘except Judges whose compensation may

not, under the Constitution, be diminished during their

continuance in offiece.’’ O’Donoghue held that the judges of

the District of Columbia courts came within the exception,

rejecting the dictum in Bakelite that such courts were legis-

lative courts. Walliams, on the other hand, followed the

Bakelite dictum that the Court of Claims is a legislative

court and held that the statute applied to reduce the com-

pensation of the judges of that Court.

O’Donoghue reverted to the explanation of Canter and

the other decisions holding territorial courts to be legisla-

tive courts as being based on ‘‘the transitory character of

the territorial governments,’’ 289 U.S., at p. 536, and thus

inapplicable to the District of Columbia courts. The

“purely provisional”’’ nature of the territorial courts pro-

vides justification for the observation in Canter that they

“are incapable of receiving’’ Article IIT judicial power,

but ‘‘we are unable to perceive upon what basis of reason it

can be said that these courts of the District are incapable

of receiving the judicial power under Art. III.’’ 289 U.S.,

at pp. 544-545. Moreover, the ‘‘fact that Congress, under

another and plenary grant of power, has conferred upon

sequently was rejected in Lockerty v. Phillips, 319 U.S. 182 (1943), which

held the Emergency Court of Appeals to be an Article IIT court. The

jurisdiction of that Court, of course, was much narrower than the juris-

dietion of the Court of Claims. As Lockerty pointed out: “The Congres-

sional power to ordain and establish inferior courts ine!udes the power

‘of investing them with jurisdiction either limited, concurrent, or ex-

elusive, and of withholding jurisdiction from them in the exact degrees and

character which to Congress may seem proper for the publie good.’” Id.,

at p. 187. This long-estabiished rule demonstrates the fallacy in petitioner’s

contention (Br., p. 14) that Congress must have granted the Court of

Claims all the jurisdiction mentioned in Article III in order for Congress

to have intended to create the Court of Claims as a constitutional court.

34

these courts jurisdiction over non-federal causes of action,

or over quasi-judicial or administrative matters, does not

affect the question.’’ 289 U.S., at p. 545. ‘‘Since Congress,

then, has the same power under Art. III of the Constitu-

tion to ordain and establish inferior courts in the District

of Columbia as in the states, whether it has done so in any

particular instance depends upon the same inquiry—Does

the judicial power conferred extend to the cases enumerated

in that article?’’ 289 U.S., at p. 546.

O’Donoghue thus enunciated a different ‘‘test”’ for de-

termining the proper classification of a judicial tribunal

than did Bakelite. Under O’Donoghue, a court is an in-

férior court established under Article III if its jurisdic-

{tion extends to cases of the kind enumerated in Article II,

and regardless of whether it may also have jurisdiction over

non-Article III matters.2 O’Donoghue also held that the

tenure during good behavior conferred upon the judges

of the Tistrict of Columbia courts, and other circumstances

in which they had been treated in the same manner as fed-

eral district judges, ‘‘indicates, with some degree of per-

suasive force, that Congress entertained the view that the

courts of the District and the inferior courts of the United

States sitting elsewhere, stood upon the same constitutional

footing. In any event, it,is not without significance that

‘in the acts of Congress from the beginning of the govern-

ment to the present day, nothing has been brought to our

attention which is inconsistent with that view.”’ 289 US.,

at pp. 549-550. Thus, contrary to Bakelite, the intent of the

Congress was considered to be significant and life tenure

12 This test does not explain the territorial court cases, but as noted,

O'Donoghue viewed those eases as being based upon the temporary nature

of territorial.governments which made them incapable of receiving

III judicial power.

39

during good behavior relied upon as indicating an intent-to

create a constitutional court.'*

In holding the Court of Claims to be a legislative court,

Williams relied heavily upon the dictum to that effect in

Bakelite, which was said to have been ‘‘the result of a care-

ful review of the entire matter,’’ and upon the similarity

between the Court of Claims and the Court of Customs Ap-

peals insofar as this issue is concerned. 289 U.S., at pp.

570-571. The contrary views expressed in numerous cases

prior to Bakelite were said to have been expressed ‘‘more

or less irrelevantly.’’ 289 U.S., at p. 568. Apparently in

deference to the test stated in O’Donoghue, however, Wil-

liams went on to hold that the Court of Claims does not

exercise jurisdiction over cases of the kind enumerdted in

Article ITI] because Article III jurisdiction over ‘‘Contro-

versies to which the United States shall be a Party’’ means

only thase controversies to which the United States is a

party plaintiff. 289 U.S., at pp. 571-578. The intention

of the Congress in creating the Court of Claims was re-

ferred to only by quotation of that part uf the Bakelite

opinion expressing the view that the advisory jurisdiction

given to the Court of Claims in some cases demonstrates

that the Congress has treated it as a legislative court.

289 U.S., at p. 569.

We believe that Williams erred: in holding that the Court

of Claims does*not exercise Article III jurisdiction and

in adopting the conclusion in Bakelite that the Congress

intended to create the Court of Claims as a legislative

rather than a constitutional court. Because of the im-

portance of these determinations to the ultimate holding

8 See Watson, The Concept of the Legislative Court, 10 G.W.L.R. 799,

819-822 (1942), where the conclusion is reached that after O'Donoghue

intent is the most important criterion.

36

that the Court of Claims is a legislative court, under the

criteria established in O’Donoghue and presumably applied

in Williams, we shall consider each of them in separate

sections of this brief. Before doing so, however, it seems

appropriate to conclude our discussion of the development

of the concept of legislative courts with a brief account

of pertinent occurrences subsequent to the O’Donoghue

and Williams decisions in 1933.

United States v. Sherwood, 312 U.S. 584, 587 (1941),

cited Williams and Bakelite for the proposition that the

Court of Claims ‘‘is a legislative, not a constitutional

court,’’? which derives its judicial power ‘‘from the Con-

eressional power ‘to pay the debts . . . of the United

States’ ’’ rather than from Article III. The status ofethe

Court of Claims was not at issue in the case, however,

and this statement was a dictwm unnecessary to the de-

cision."

The Solicitor General, who had advocated the result

reached in Williams2° concluded, after further considera-

tion, that Williams had been wrongly decided and urged,

in Pope v. United States, 323 U.S. 1 (1944), that Williams

14 Sherwood also suggested that the status of the Court of Claims as

a legislative court, as well as “the power of the sovereign to attach condi-

tions to its consent to be sued,” was a basis for the established rule “that

Congress, despite the Seventh Amendment, may dispense with a jury

trial in suits brought in the Court of Claims.” 312 U.S., at p. 587. How-

ever, McElrath v. United States, 102 U.S. 426 (1880), which first upheld

the abseance of jury trial in cases before the Court of Claims, relied entirely

upon the power of the Congress to condition its consent to be sued. Me-

Elrath was decided, of course, during the period prior to Bakelite when

the Court of Claims had consistently been categorized by this Court as

a constitutional court, and demonstrates that there is no inconsistency

between that view and the fact-finding procedures of the Court of Claims.

15 On the ground that Bakelite was “a direct and conclusive authority.”

289'U.S., at p. 523. The Solicitor General had, however, argued in Bake-

lite that the Court of Custonis Appeals was a constitutional court. 279

U.S., at p. 445.

37

be overruled. But this Court found ‘‘no oceasion to con-

sider what effect the imposition of non-judicial duties on

the Court of Claims may have affecting its constitutional

status as a court and the permanency of tenure of its

judges,’’ because it was enough for purposes of the issue

before the Court ‘‘that, although the Court of Claims, like

the courts of the District of Columbia, exercises non-judicial

duties, Congress has also authorized it as an inferior court

to perform judicial functions whose exercise is reviewable

here.’’ Id., at pp. 13-14.

The most recent significant decision of this Court for

present purposes is that in National Ins. Co. v. Tidewater

Co., 337 U.S. 582 (1949). That decision held that the

federal district courts could be given diversity jurisdiction

over cases between citizens of the District of Columbia

and citizens of a state, but the members of the majority

were not able to agree upon a common ground. Three

members of the majority, in an opinion by Mr. Justice

Jackson, were of the view that such jurisdiction could be

conferred under the Article I power of the Congress over

the Distriet of Columbia, although not under Article IT],

relying in part upon Williams. See id., at pp. 592-59... All

other members of the Court, however, rejected this view

in opinions which evinced disagreement with tHe holding

in Williams that the Court of Claims does not exercise

Article III jurisdiction.’ *

16 Justices Rutledge and Murphy concurred in the Tidewater decision,

but on the ground that the District of Columbia is a “State” for purposes

of diversity jurisdiction under Article III. In an opinion by Mr. Justice

Rutledge, they expressed the view that the Tucker Act jurisdiction of the

Court of Claims and the district courts came within the federal-question

jurisdiction of Article III, even assuming that Williams correctly held

Article III jurisdiction over suits to which the United States “shall be a

Party” was limited to suits in which the United States is the plaintiff. Id.,

38

C. The Standards for a A Court As Consti-

tutional or Legislative in Nature. The foregoing account

of the development ‘of the concept of legislative courts

reveals the difficulties which this Court has experienced

in rationalizing that concept. None of the various ra-

tionales which have been put forward from time to time

seems to us to be wholly satisfactory. The basic problem,

and one which we doubt can be successfully overcome

insofar as logic or constitutional theory is concerned, is

that the legislative-court concept is not compatible with

the language and purposes of Article III or with the

separation of powers principle expressed in the Consti-

tution as a whole. If the Article I power of the Congress

to pay the debts of the United States authorizes the Con-

gress to establish a court for the exercise of judicial power

over claims against the United States apart from Article

III and without being subject to the provisions of that

Article, the Article I power of the Congress over interstate

commerce, for example, should similarly authorize the

Congress to establish legislative courts for the exercise

of judicial power with respect to issues arising under

substantive laws enacted pursuant to the commerce clause.

There would seem to be no barrier to the transfer of afl

federal-question jurisdiction to legislative courts for de-

termination by judges unprotected as to tenure and com-

pensation and thus dependent upon the legislative and

executive bodies in a manner which Article III was in-

tended to avoid.

at pp. 609-610. Chief Justice Vinson, joined by Mr. Justice Douglas

dissenting, agreed, although they thought Williams could be justified on

another ground. Id., at pp. 40-642, fns. 20, 21. Mr. Justice Frank

furter, joined by Mr. Justice Reed, dissenting, also appeared to agree

that the Tucker Act invoked Article III federal-question jurisdiction. Id.,

at p. 649. ,

39

Accepting the fact that the legislative-court doctrine has

become too deeply entrenched to be uprooted altogether,

the O’Donoghue case, in our opinion, adopted a statesman-

like accommodation of that doctrine with the language and

purposes of Article III. Canter and similar cases dealing

with the courts of the territories or other extraterritorial

courts are to be confined to their own special niche, rather

than treated as merely one aspect of a general theory of

legislative courts as was attempted in the Bakelite opinion.

For such courts, it suffices to say that they are ‘‘incapable

of receiving’’ Article- III judicial power because of their

presumably temporary nature or because Article III has

historically been considered to be inapplicable outside the

limits of the United States proper. But this explanation

will not do, as O’Donoghue held, for the District of Colum-

bia courts which are situated within the bounds of the

United States and which from all that appears were in-

tended to be as permanent as the nature of things allows.

The Court of Claims also is situated within the bounds

of the United States proper and from all the evidence is

a relatively permanent institution, so that it equally will

not do to say that the Court of Claims is ‘‘inecapable of

receiving’’ Article III power.

For such institutions which are not ‘‘incapable of. re-

ceiving’’ Article III power and which the Congress could

establish as inferior courts under Article III, O’Donoghue

holds that whether the Congress ‘‘has done so in any par-

ticular instance depends upon the same inquiry—Does the

judicial power conferred extend to the cases enumerated

in that article?’ If it does, the judicial power thus con-

ferred is not and cannot be affected by additional con-

gressional legislation, enacted under Article I... . im-

posing upon such courts other duties . . . . The two powers

40

are not incompatible; and we perceive no reason for holding

that the plenary power given by the District clause [in

Article I] of the Constitution may be used to destroy the

operative effect of the judicial clause within the District,

where, unlike the territories occupying a different status,

that clause is entirely appropriate and adequate.’’ 289

U.S., at p. 546.

The ‘‘inquiry’’ thus posed in O’Donoghue accords with

the purposes of Article III and provides an appropriate

means for distinguishing true courts exercising judicial

power from administrative agencies exercising executive

or delegated legislative powers.” If the Congress confers |

upon an institution the power to render final judgments

with respect to any cases of the kind enumerated in Article

III, then that institution is an Article III court and its

members are judges entitled to the protections provided

‘ in Article III with respect to their tenure and compensa-

tion. This protection of the independence of the institu-

tion in question cannot be destroyed by the fact that the

Congress may have, and may have exercised, the power

under Article I to confer non-judicial functions un that

institution. Hence, all federal judicial power of the kind

encompassed by Article III will be exercised by independ-

ent Article III courts, except in the territories or otherwise

outside the limits of the United States proper where unique

circumstances may justify an exception. As O’ Donoghue

also illustrates, if there is any doubt as to whether a par-

ticular institution was intended by the Congress to. be an

17 Qld Colony Tr. Co. v. Comm’r Int. Rev., 279 US. 716, 726 (1929), for

example, held the Board of Tax Appeals, now the Tax Court, to be an

administrative agency rather than a court. Since the Tax Court is &

pressly declared to be “an independent agency in the Executive Branch

of the Government,” 26 U.S.C. § 7441, it is difficult to see how any other

conelusion could be reached. See Commissioner v. Gooch Co., 320 U.S.

418, 420 (1943). |

41

' Article III court exercising Article III judicial power, the

tenure provided and other indicia of the intent of the

Congress may be consulted.

The standards proclaimed in O’Donoghue are the most

recent expression hy this Court on the subject,’® as well

as affording an appropriate accommodation of Article ITI

with the legislative-court doctrine. While Williams is

somewhat confusing in that it quotes extensively from the

Bakelite opinion which applied a wholly different test, there

is every reason to believe that this Court in Willams

accepted and sought to apply the views expressed in

0O’Donoghue. The O’Donoghue and Williams opinions were

both written by Mr. Justice Sutherland and were delivered

on the same day. As we have shown, Williams held that

the Court of Claims did not exercise any jurisdiction over

cases of the kind enumerated in Article III, and adopted

the Bakelite view that the Congress has consistently treated

the Court of Claims as a non-Article III institution. See

pp. 35-36, supra. If those conclusions were correct, then

the Court of Claims would not be an Article III court

wider the standards established in O’Donoghue. But, as

we now attempt to demonstrate, those conclusions with

respect to the nature of the jurisdiction of the Court of

Claims and to the intent ef the Congress were in error.

D. The Court of Claims Exercises Article III Jurisdic-

flow. The principal jurisdiction of the Court of Claims

is that conferred by the Tucker Act over ‘‘any claim

against the United States founded either upon the Con-

stitution, or any Act of Congress, or any regulation of an

'S While all the opinions in the Tidewater ease touched upon this prob-

lem, none did so in detail and, of course, none was joined by a majority

of the Court.

42

executive department, or upon any express or implied

contract with the United States, or for liquidated or un-

liquidated damages in cases not sounding in tort.’’ 28

U.S.C. § 1491. Concurrent jurisdiction over such claims,

where not exceeding $10,000 in amount, also was conferred

by the Tucker Act upon the federal district courts. 28

U.S.C. § 1346(a) (2). A number of statutes.confer jurisdic.

tion upon the Court of Claims to render judgments upon

claims against the United States arising from particular

circumstances.’® Appellate jurisdiction is exercised by the

Court of Claims over determinations of the Indian Claims

Commission, 25 U.S.C. § 70s, and over final judgments

of the federal district courts in cases arising under the

Tort Claims Act where the appellees consent in writing to

the taking of an appeal to the Court of Claims, 28 US.C.

§ 1504. Finally, the Court of Claims has ‘* jurisdiction to

report to either House of Congress on any bill referred

to the court by such House, except a bill for a pension,

and to render judgment if the claim against the United

States is . . . one over which the court has jurisdiction

under other Acts of Congress.’? 28 U.S.C. § 1492.

The Court of Claims renders final judgment (subject

to review by this Court) on cases brought under the

19 The Court of Claims has jurisdiction to: determine the amount due

to or from the United States on certain unsettled accounts of its officers,

agents and contractors, 28 U.S.C. § 1494; render judgment upon claims

for damages by persons unjustly convicted and imprisoned by the United

States, 28 U.S.C. § 1495; render judgment upon certain claims by federal

disbursing officers, 28 U.S.C. § 1496; render judgment upon certain claims

for damages to oyster growers, 28 U.S.C. § 1497; award compensation

for use or manufacture of patented articles without license or other lawful

right, 28 U.S.C. § 1498; render judgment on claims for certain penalties

withheld by the United States, 28 U.S.C. § 1499; render judgment upon

any set-off or demand asserted by the United States against a plaintiff, 2

U.S.C. § 1503; determine certain Indian claims, 28 U.S.C. § 1505; and

to render judgment on elaims transmitted by the Comptroller

and which would be within the jurisdiction of the Court it volun

broncht by the claimant, 28 U.S.C. § 2510.

43

*

jurisdiction thus conferred, with the very. limited excep-

tion of congressional reference cases not otherwise within

the jurisdiction of the Court. The United States is a

party to all of the cases brought in the Court of Claims,

and Article III of the Constitution expressly provides

that the ‘‘judicial Power shall extend . . . to Controversies

to which the United States shall be a Party... .’’ Walliams

held, however, that this language in Article III should

not be given its plain meaning, but rather is to be construed

as extending the judicial power of the United States only

to those controversies in which the United States is a

party plaintiff. Since the United States is the defendant

in litigation brought in the Court of Claims, Williams con-

cluded that the Court of Claims was not exercising Article

III judicial power in deciding that litigation. 289 U.S.,

at pp. 571-578.

We believe that the restricted interpretation given by

Williams to ‘Controversies to which the United States

shall be a Party’’ cannot be justified from the language

and history of Article III or in reason. But assuming,

arguendo, that that interpretation was proper and should

be adhered to, Williams erred in failing to consider and

to recognize that the Court of Claims exercises federal-

question jurisdiction within the meaning of the provision

in Article III extending the judicial power to all cases

“arising under this Constitution [and] the Laws of the

‘United States... .”’

The language, ‘‘Controversies to which the United States

shall be a Party,’’ could*hardly be plainer. Certainly,

‘‘party,’? when used in connection with a case or contro-

versy and without a qualifying adjective, normally would

not be understood as necessarily referring to the plain-

tiff. It is almost beyond belief that the framers of a

document as carefully drafted as the Constitution of the

United States would have failed to use the language ‘‘con- »

44

troversies to which the United States shall be a plaintiff”

if that was what they intended. Williams did not refer

to anything said in the debates at the Constitutional Con.

vention to support its interpretation, and we have not dis-

covered any such support.”°

The term ‘‘party’’ also appears in that part of Article

III conferring upon this Court original jurisdiction over

all cases ‘‘in which a State shall be a Party.’’ In the early

and well-known case of Chisholm v. Georgia, 2 Dall. 419

(1793), tris Court accepted original jurisdiction of an ac-

tion brought against the State of Georgia by a citizen of

another state. The attorney for the plaintiff was Edmund

Randolph, a member of the Constitution Convention and

Attorney-General of the United States at the time. He

argued, among other things, that (2 Dall., at p. 420):

‘‘Ist. The constitution vests a jurisdiction in the

supreme court over a state, as a defendant, at the

suit of a private citizen of another state. Consult

the letter of the constitution, or rather the influential

words of the clause in question. The judicial power is

extended to controversies between a state and citizens

of another state. I pass over the word ‘between,’ as

in no respect indicating who is to be plaintiff or who

defendant. In the succeeding paragraph, we read a

comment on these words, when it is said that in cases

in which a state shall be a party the supreme court

shail have original jurisdiction. Is not a defendant

a party, as well as a plaintiff??? (Emphasis in the

original.)

20 Madison’s Journal of ihe Constitutional Convention shows that the

language in question was inserted in Article IIf by an amendment pro

posed by Madison and by Geuverneur Morris, which amendment was

approved apparently without opposition or debate. See III Documentary

History of the Constitution of the United States of America 626 (Depart

ment of State, 1900).

@

45

Mr. Justice Blair, also a member of the Constitutional

Convention, stated in his opinion (2 Dall., at p. 451) that:

‘‘After describing, generally, the judicial powers of

the United States, the constitution goes on to speak

of it distributively, and gives to tlie supreme court

original jurisdiction, among other instances, in the

case where a state shall be a party; but is not a state

a party as well in the condition of a defendant, as in

that of a plaintiff? And is the whole force of that

expression satisfied, by confining its meaning to the

case of a plaintiff-state? It seems to me, that if this

court should refuse to hold.jurisdiction of a case where

a state is a defendant, it would renounce part of the

authority conferred, and consequently, part of the duty

imposed on it by the constitution; because, it would

be a refusal to take cognisance of a case, where a state

is a party.”’

Mr. Justice Wilson, another member of the Constitu-

tional Convention, in deciding that ‘‘the state of Georgia

is amenable to the jurisdiction of this court,’’ stated that

this view was ‘‘confirmed, beyond all doubt, by the direct

and explicit declaration of the constitution itself.’’ 2 Dall.,

at p. 466. He referred, particularly, to the provision of

Article IIT extending the judicial power to ‘‘Controversies

between two or more States’’ as demonstrating conclu-

sively that there was no intention to exclude jurisdiction

of cases in which a state was a defendant. Justices Blair

and Wilson were joined by Chief Justice J ay, one of the

authors of The Federalist, and by Justice Cushing, while

Justice Iredell dissented.

The ruling in Chisholm v. Georgia, made some six years

after the Constitution was drafted and participated in

by prominent members of the Constitutional Convention,

46

seems to us virtually conclusive that the term ‘‘party”

as used in Article III was not intended to be limited to

plaintiffs. It is hardly conceivable that the term as used

in the phrase extending the judicial power to controversies

‘*to which the United States shall be a Party’’ was in.

tended to refer only to the United States as a plaintiff,

if the term as usec in the phrase conferring original juris-

diction upon this Court over cases ‘‘in which a State shall

be a Party’’ applies whether the state is a plaintiff ora

defendant.

The Eleventh Amendment to the Constitution, adopted

in reaction to the decision in Chisholm v. Georgia, supra,

withdrew from the federal courts all jurisdiction over

suits against a state by citizens of another state or of

a foreign nation. But with respect to those cases and con-

troversies to which Article III judicial power continued

to extend, an criginal action still may be brought in this

Court against a state. Thus, United States v. Texas, 148

U.S. 621, 643-644 (1892), held that the original jurisdiction

of this Court in cases to which a state shall be a party

‘‘necessarily refer[s] to all cases mentioned in the pre-

ceding clause [of Article III] in which a State may be made,

of right, a party defendant, or in which a State may, of

right, be a party plaintiff.’’ See, also, Minnesota v. Hitch-

cock, 185 U.S. 373, 388 (1902); Kentucky v. Denison, 24

How. 66, 98 (1360). This doctrine was recently reaffirmed

in the Tidelands cases. See United States v. Louisiana, 339

U.S. 699, 701-702 (1950); United States v. Texas, 339 US.

707, 709-710 (1950).

In Minnesota v. Hitchcock, supra, this Court expressly

held that the judicial power over controversies to which

the United States shall be a party included cases in whieli

the United States is a party defendant. That was a

original action by*Minnesota in this Court to enjoin the

“\

_— a

47

Secretary of Interior and the Commissioner of the Gen-

eral Land Office. In order for such jurisdiction to attach,

the State had to establish that the case came within one

of the categories in paragraph 1, section 2 of Article III

to which the judicial power of the United States extends.

185 U.S., at p. 383. This Court held that:

“This is a controversy to which the United States may

be regarded as a party. It is one, therefore, to which

the judicial power of the United States extends. It is,

of course, under that clause a matter of indifference

whether the United States is a party plaintiff or de-

fendant. It could not fairly be adjudged that the judi-

cial power of the United States extends to those eases

in which the United States is a party plaintiff and does

not extend to those cases in which it is a party defend-

ant.’’ 185 U.S., at p. 384.

* x * * * * *»

‘‘While the United States as a government may not

be sued without its consent, yet with its consent it

may be sued, and the judicial power of the United States

extends to such a controversy. Indeed, the whole jur-

isdiction of the Court of Claims rests upon this proposi-

tion.”’ 185 U.S., at p. 386.

See, also, Kansas v. United States, 204 U.S. 331, 342 (1907).

The most tangible reason given by the Williams opinion

for overruling Hitchcock and rewritine the plain language

of the Constitution was that, because of the sovereign im-

munity of the United States from suit, ‘‘it is not reasonably

Possible to assume that it was within the contemplation

of the framers of the Constitution that the words, ‘con-

troversies to which the United States shall be a party,’

f

should include controversies to which the United States

shall be a party defendant.’’ 289 U.S. at p. 577.7" Hans

v. Louisiana, 134 U.S. 1 (1890), was strongly relied upon

for this proposition. That case held that a state could not

be sued in the federal courts by one of its citizens, without

its consent, under that part of Article III extending the

judicial power to cases arising under the laws and Con.

stitution of the United States. In so ruling, the inajor.

ity opinion animadverted on the decision in Chisholu vy.

Georgia, supra, and expressed agreement with the dissent

of Mr. Justice Iredell in that case. (But see South Dakoia

v. North Dakota, 192 U.S. 286, 318 (1904), where this court

refused to be bound by the approval in Hans of the Iredell

dissent and took jurisdiction of a suit by one state against

another even though the defendant state had not consented

to suit.)

With all due respect, we submit that Williams missed the

point of the Hans decision and of Justice Iredell’s dissent.

21 Williams also relied upon the fact that the provision relating to

“eontroversies to which the United States shall be a party” omitted the

word “all” which is found in provisions relating to certain other juris-

dictional categories, such as “all cases of admiralty and maritime jurs-

diction.” 289 U.S., at pp. 572-573. But as Mr. Justice Story pointed out,

in Martin v. Hunter’s Lessee, 1 Wheat. 304, 334-336 (1816); “In respect

to the first class, it may well have been the intention of the framers of the

constitution imperatively to extend the judicial power . . . to all cases; and

in the latter class, to leave it to congress to qualify the jurisdiction, original

or appellate, in such manner as publie policy might dictate.” Thus, “al

though it might be fit, that the judicial power should extend to all con-

troversies to which the United States should be a party, yet this power

might not have been imperatively given, lest it should imply a right to

take cognisance of original suits brought against the United Stutes as

defendants in their own courts. It might not have been deemed proper

to submit the sovereignty of the United States, against their own will, to

judicial cognisance, either to enforce rights or to prevent wrongs; and as

to the other cases of the second class, they might well be left to be exercised

under the exceptions and regulations which congress might, in thelr

wisdom, choose to apply.” See, also, II Story On the Constitution, § 16%,

p. 459 (4th ed.).

49

They did not hold or contend that the judicial power never

could extend to a case in which a state was a defendant,

but only that a state could not be made a defendant without

its consent; 2.¢., unless the state waived its sovereign im-

munity. Thus, Hans said that the ‘‘suability of a State

without its consent was a thing unknown to the law. This

has been so often laid down and acknowledged by courts

and jurists that it is hardly necessary to be formally as-

serted. It was fully shown by an exhaustive examination of

the old law by Mr. Justice Iredell in his opinion in Chisholm

v. Georgia; ...’? 134 U.S., at p. 16 (emphasis added). ‘‘Un-

doubtedly a State may be sued by its own consent, as was

the case in Curran v. Arkansas et al., 15 How. 304, 309,

and in Clark v. Barnard, 108 U.S. 436, 447.’’ 134 U.S., at p.

17. The Barnard case referred to was one brought in a

federal court in which a state was held to have consented

to suit by entering a voluntary appearance. The Eleventh

Amendment provides ‘‘an immunity which a State may

waive at its pleasure . . . as by a general appearance in

litigation in a federal court ... or by statute.’ Petty v.

Tenness: >-Missouri Comm’n., 359 U.S. 275, 276 (1959).

While Justice Iredell’s dissent is not as clear as it might

be, he nowhere explicitly objected to the holding of the

majority in Chisholm v. Georgia that this Court’s original

jurisdiction over cases ‘‘in which a State shall be a Party’’

extended to cases in which a state was a defendant. His

objection appears to have been directed at the further hold-

ing of the majority that Georgia did not have the defense

of sovereign immunity to the claim mace in that suit, be-

cause such immunity had been waived by ratification of the

Constitution, or because the states were no longer sov-

ereigns, or because the concept of sovereign immunity

should not be adopted in this country—all of which were

Suggested in one or more of the separate opinions written

aU

by the four Justices in the majority. Mr. Justice Iredell

based his dissent on the premise that (2 Dall., at p. 436):

‘‘The authority extends only to the decision of con-

troversies in which a state is a party, and providing

laws necessary for that purpose. That surely can

refer only to controversies in which a state can be a

party; in respect to which, if any question arises, it

can be determined, according to the principles I have

supported, in no other manner than by reference either

to pre-existent laws, or laws passed under the consti-

tution and in conformity to it.’’ (Emphasis in the

original. )

He then examined the petition of right and other actions

in which a suit against the Crown had been permitted, and

determined to his satisfaction that they were inapplicable

to the suit at bar. 2 Dall., at pp. 436-448.

The seriatim opinions in Chisholm v. Georgia, including

that of Justice Iredell in his discussion of the petition of

right, show that the concept of waiver of sovereign: im-

munity was known when the Constitution was adopted.”

In the debates at the Virginia Convention on ratification

of the Constitution, Madison defended the provision of

Article III conferring jurisdiction over controversies be-

tween a state and a foreign nation, as he did not ‘‘conceive

that any controversy can ever be decided, in these [Article

TIT] courts, between an American state and a foreign state,

without the consent of the parties. If they consent, pro-

vision is here made.’’ Similarly, Marshall at the same Con-

22 Appendix B to the Brief for the United States in Pope v. United

States, 323 U.S. 1 (1944), contains a detailed resume of the development

of the concept of sovereign immunity, and demonstrates that this 200

cept was recognized both in English law and in the States prior to adop-

tion of the Constitution. See, also, II Story On the Constitution, § 1678,

pp. 460-462 (4th ed.).

by 9

a

vention and with respect to the same subject, stated that:

“The previous consent of the parties is necessary; and,

as the federal judiciary will decide, each party will acqui-

esce.’’ See Monaco v. Mississippi, 292 U.S. 313, 323-324

(1934), where these statements are quoted and which held

that a foreign nation may not invoke the original jurisdic-

tion of this Court over suits to which a state is a party ez-

cept where the state has consented to suit.”

It is difficult to believe that the framers of the Consti-

tution did not contemplate the possibility that the United

States, as well as its component states, might waive jts

sovereign immunity so as to be amenable to suit, or that,

Article III was intended to extend the judicial power to

suits against the states when such consent is given but not

to suits against the United States when such consent is

given as in the Tucker Aci. We are convinced, therefore,

that suits against the United States in the Court of Claims

are “Controversies to which the United States shall be a

Party’’ to which the judicial power extends under Article

IIT, and that Williams erred in holding to the contrary.

Assuming, however, that Williams was correct in this

holding, the opinion in that ea-e failed to consider the pas-

sibility that the Court of Claims exercises Article III

judicial power by reason of the provision extending that

power to cases arising under the Constitution and laws

of the United States. That the jurisdiction conferred by

the Tucker Act comes under this category of Article TIT

judicial power seems to have been the view of. six of the

Justices in the Tidewater case. See p. 37, fn. 16, supra.

We do not see how any other conelusion ean be reached

eee

*3 Hamilton, in The "ederalist, No. 81, stated that: “It is inherent in the

nature of sovereignty not to be amenable to the suit of an individual with-

oul ils consent.” {Tudor Pub, Co. ed., 1937; emphasis in the original.)

See, also, Cohens vy. Virginia, 6 Wheat. 264, 378 (1821).

52

with respect to Tucker Act jurisdiction over claims

‘‘founded either upon the Constitution, or any Act of Con-

egress, or any regulation of an executive department. . . .”

Tucker Act jurisdiction over claims founded ‘‘upon any

express or implied contract of the United States,’’ extends

only to those contracts authorized by statute, Eastern Ez.

tension Tel. Co. v. United States, 251 U.S. 355 (1920), so

that such claims also arise under the laws of the United

States. ‘‘Congress can authorize the making of contracts;

it ean therefore authorize suit thereon in any district

court.’’ National Ins. Co. v. Tidewater Co., supra at p.

649 (dissenting opinion of Mr. Justice Frankfurter). More-

over, as Chief Justice Vinson contended in the Tidewater

ease, supra at pp. 641-642, fn. 21: ‘‘Since any right of

action against the United States is completely and wholly

dependent upon whether an Act of Congress has authorized

the suit . . ., a question arising under the laws of the

United States, as that phrase is used in Art. III, is clearly

presented by any claim against the federal government.”

For the reasons stated, we believe that the Court of

Claims does exercise Article III judicial power, that Wil

liams erred in reaching the contrary conclusion, and that

that erroneous conclusion was fundamental under the

standards established in the O’Donoghue case to the ulti-

mate holding in Williams that the Court of Claims is 4

legislative court. Should there be any remaining doubt

that the Court of Claims was created as a constitutional

court to exercise Article III judicial power, however, it is

appropriate, as O’Donoghue holds, to look to the tenure

of the judges and other indicia of the intent of the Con-

gress. We demonstrate in the next section of this brief

that the Congress undoubtedly intended to create the Court

of Ciaims under Article III and for that Court to exercise

Article III judicial power.

o3

E. The Congress Intended to Create the Court of Claims

under Article III, The statutes governing the constitution

and operation of the Court of Claims have always, since

that Court was first established in 1855, provided life

tenure during good behavior for the judges of the Court.

The same circumstance with respect to the judges of the

District of Columbia courts was said by O’Donoghue to

indicate ‘‘with' some degree of persuasive force’’ that such

courts ‘‘stood upon the same constitutional footing’’ as

did the other federal district courts. 289 U.S., at pp.

549-550. We need not rely upon that factor alone, how-

_ ever, because the legislative history of the statutes basic

to the creation of the Court of Claims establishes beyond

any reasonable doubt, we believe, that the Congress in-

tended to create the Court of Claims under Article IIT as

a constitutional court.

The status of the Court of Claims in the governmental

hierarchy was developed and, it was supposed, determined

during the first eleven years of its existence. The bill

initially introduced, in 1854, proposed the establishment

of a board of three commissioners. Cong. Globe, 33d

Cong., 2d Sess., p. 70. Senator Hunter stated that he

would ‘‘vastly prefer, on account of the tenure, that, in-

stead of commissioners appointed for four or five years,

and removable at the pleasure of the President, we should

have two judges sitting here, who should hold their offices

as judges do under the Constitution of the United States aa

; thus, he was in favor of a ‘‘court”’ rather than a board

of commissioners. Id., at p. 71. Senator Jones thought

that ‘‘there is but one safe mode of doing it, and that is

to establish a court of claims—an independent judiciary.

upon the same principle as the Supreme Court.’’ Jd., at

p. 74. Others spoke in favor of a court, only Senator

Brodhead supported a board of commissioners, and the

eo

54

bill was referred back to a select committee, on motion

of Senator Jones, ‘‘to make a bill that may be acceptable

to all.’’ ZJd., at p. 73; see, generally, pp. 71-74. .

The select committee reported back an amended bill pro-

viding for a ‘‘Court of Claims’’ of three judges holding

office during good behavior. Id., at pp. 105-106. Senator

Weller proposed an amendment to create a board of com.

missioners, because: ‘‘ Under the Constitution of the United

States, if there be a court established, the judges of that

court are to be appointed during good behavior.’’ Jd., at

p. 107. After considerable debate, this proposed amend-

ment was rejected. Id., at pp. 107-114. Senator Hunter

stated that there were only two alternatives—a court whose

members would have tenure during good behavior or a

board whose members could be removed at any time by the

President, and that the nature of the tribunal proposed and

of its jurisdiction made particularly important that it be

an independent court. Id., at pp. 108-109. While Senators

Weller, Chase and Butler did not see how a true court

could be established unless given the power to render final

judgments rather than the mere reports to Congress whieh

were proposed (id., at pp. 110, 112), Senators Stuart and

Douglas disagreed and substantially coficluded the debate

by stating their belief that the bill would establish ‘‘a court

under the provisions of the Constitution, and that the Con-

stitution prescribes the tenure of office.’’ id., at p. 113

Senator Clayton had expressed the same thought, and also

noted that Article III judicial power expressly extended

to controversies to which the United States shall be a

party as would be true of ‘‘every one of these private

claims on the government... .’’ I7d., at p. 111.

The Senate bill was passed by the House without debate.

Id., at p. 909. The Senate debates are suffic’ent to demon

strate, however, that the choice was believed to be hetweel

55

a court established under Article III and staffed by

judges holding office during good behavior as provided in

Article III, and an administrative board or commission.

The majority clearly elected to create an Article III court,

even though they mistakenly thought that finality of judg-

ment was not necessary for a judicial decision. Thus, the

bill that became law on February 24, 1855, 10 Stat. 612,

did not give finality to the decisions of the court which

were made subject to review and approval by the Con-

gress.

A few years later, President Lincoln recommended that

the decisions of the Court of Claims be made final, stating

that the ‘‘investigation and adjudication of claims, in

their nature belong to the judicial department”’ and should

be removed from the legislature. Cong. Globe, Dec. 3,

1861, Appendix, p. 2, 37th Cong., 2d Sess. A bill was in-

troducea increasing the number of judges on the Court of

Claims to five, making its judgmerts final, and providing

for appeal from such judgments to the Supreme Court.

In the House debates on this bill, it was generally recog-

ized that the Court of Claims was a court only in name

because its judgments lacked finality, and that the bill in

effect would, as stated by Representative Diven, establish

a new court with ‘‘all the paraphernalia and dignity of a

court of the United States. . . .” Cong. Globe, 37th

Cong., 2d Sess., p. 1672.24 Whether this should be done

was the principal issue in the debate.

” See, also, statements of Representatives Porter, Watts, Bingham and

Hickman. Id., at pp. 1673-1674. Representatives Bingham (id., at p.

1674) and Pendleton (id., at p. 1676), in supporting the oill against

objections that it was dangerous to permit the Court of Claims to render

al judgments obligating the payment of money out of the Treasury,

pointed out that the judges could be impeached for any misfeasance or

easance in office, thus implying that they could not otherwise be

removed under the Constitution.

56

During the course of this debate, Representative Hick.

man, the Chairman of the Judiciary Committee, stated that

the bill reported ‘‘proposes to make this organization a

court, and to give it the powers of a court, and the determi-

nations of a court,’’ id., at p. 1674, but stated that in his

opinion the bill should provide for removal of the judges

‘Cat the pleasure of the Executive,’’ that he saw no reason

why this would not be feasible, and that he intended to

offer an amendment to that effect. Id., at p. 1675. The

following colloquy then occurred (id., at p. 1675):

‘‘Mr, SarivaparcEer: I wish to make an inquiry of

the learned chairman of the Judiciary Committce. |

understand him to take the ground—and I suppose it

is the true one—that this is intended to be a court

within the meaning of the Constitution. If that be so,

then I wish to make an inquiry in relation to a point

to which he has just alluded, and which is an important

one, and which he proposes to bring before the House

in the shape of an amendment. My inquiry is whether

it is competent to provide that the judges of any court

shall be removable at the pleasure of the Executive—

whether their tenure is not during good behavior?

‘Mr. Hickman: Well, sir, the objection which has

been raised by the gentleman from Ohio proves con-

clusively that the present is no court. The suggestion

which he has made proves that conclusively; and if

the amendment which I have suggested is objectionable

—and it may be so; it occurred to me on the spur of

the moment—of course I do not insist upon it. It

strikes me that it may be objectionable.”’

Representative Hickman in fact did not insist upon his

proposed amendment, and the bill as passed by the House

shortly thereafter (id., at p. 1677) and eventually enacted

57

(12 Stat. 765) provided the judges of the Court of Claims

with life tenure during good behavior. In the light of this

colloquy, there is little room for doubt that the House

intended the Court of Claims to be a constitutional court

established under Article III when that Court was sub-

stantially reconstituted in 1863. While this issue was not

sharply raised during the Senate debate on the bill passed

by the House, it seems relatively clear that the Senate

shared the same purpose.”°

The statute thus enacted in 1863 expressly made judg-

ments of the Court of Claims final and provided for appeal

to the Supreme Court. The statute also included a pro-

vision, however, that no money should be paid out of the

Treasury on any claim adjudicated by the Court of Claims

until an appropriation therefor had been estimated by the

Secretary of the Treasury.** We have already referred

to the holding in Gordon y. United States, supra, that this

> Senator Trumbull, in reporting the bill, stated that the Court of Claims

had heen initially established “with a view of sending all claimants to a

judicial iribunal,” but this purpose had failed of achievement because the

judgments of the Court of Claims were not final—which defect would be

remedied by the proposed bill. Cong. Globe, 37th Cong., 3d Sess., p. 303.

Senator Sherman referred to the Court of Claims as an “inferior tribunal”

created by the Congress, and composed of persons “appointed to hold their

office during good behavior.” Id., at p. 399. Senator Cowan rebutted an

argument to the effect that no state had theretofore surrendered power

over claims against it to a court, by pointing out that: “The Constitution

of the United States provides that the judiciary shall have cognizance of

all eases in which the United States is a party.” Id., at p. 416. Senator

Bayard expressed the opinion that the determination of claims “ought to be

a judicial act” rather than a matter for the legislature, noting, among other

things, that Congress did not have tenure unlike the judges of the Court

of Claims. /¢., at p. 419.

“The provision in question was added by an amendment proposed on

the floor of the Senate, and approved without debate after the floor leader

for the bill (Senator Trumbull) accepted the amendmert and expressed

the view that it made no change in established procedures. Cong. Globe,

ne 3d Sess., p. 426; see, also, Cong. Globe, 39th Cong., Ist Sess.,

08

provision subjected the judgments of the Court of Claims

to administrative and legislative review so as to prevent

such judgments from being final for purposes of appeal

to this Court. Shortly thereafter, in 1866, the provision

in question was repealed (14 Stat. 9) so as to remove this

objection to review of Court of Claims judgments (see

Cong. Globe, 39th Cong., 1st Sess., pp. 770-771), and, as

we have shown, this Court subsequently has accepted

jurisdiction of appeals from such judgments. See pp. 26-

28, supra. - | |

We submit, therefore, that the Congress in the first eleven

years of the existence of the Court of Claims, during which

its organization and jurisdiction were substantially settled,

was constantly motivated by the purpose of constituting

the Court of Claims as a true Article III court, acting

promptly to correct deficiencies in the basic statutes which

were found to interfere with that purpose. The judges of

the Court of Claims were given life tenure during good

behavior, and at no time did the Congress indicate any-

thing other than a purpose to create a constitutional court

under Article ITI.

We have already referred to the re-enactment, in ‘the

Tucker Act, of the basic jurisdiction of the Court of Claims

at a time when decisions of this Court seemed to have

settled the status of the Court of Claims as a constitutional

court. See pp. 99-30, supra. That circumstance, together

with the fact that the Tucker Act conferred concurrent

jurisdiction upon the federal district courts, provides am

additional indication of the consistent congressional treat-

ment of the Court of Claims as an Article III court. Fur-

ther evidence is provided by the appellate jurisdiction of

the Court of Claims over decisions of the federal district

courts under the Tort Claims Act, where the appellees

consent in writing to the taking of an appeal to the Court

a9

of Claims. 28 U.S.C. $1504. It is hardly conceivable that

the Congress would have provided for such appeals from

decisions of constitutional courts unless the Court of Claims

was also considered to be a constitutional court. Finally,

as we noted at the outset, the Congress in 1953 concluded

after thorough consideration that the Court of Claims had

initially been created as an Article III court and enacted

a statute declaring it to be ‘‘a court established under

article III of the Constitution of the United States.’’ See

pp. 13-14, supra.

Insofar as the Wiliiams opinion reveais, the legislative

history and other circumstances discussed above were not

considered in reaching the conclusion that the Court of

Claims was created as a legislative court. We believe that

the intent of the Congress should be considered and given

weight by this Court, and that the evidence of congressional

intent set forth above buttresses our contention that the

Court of Claims was created under Article III for the

exercise of Article III judicial power.

II

The Status of the Court of Claims As A Constitutional Court

Since the 1953 Act Cannot Validly Be Questioned

The Congress in 1953, as previously noted, enacted a

statute which declares the Court of Claims ‘‘to be a court

established under article III of the Constitution of the

United States.’’ 67 Stat. 226, 28°U.S.C. § 171. This statute

was intended to express the @nclusion of the Congress

that the Court of Claims was initially created and has

always existed under Article III (see pp. 13-14, supra), and

obviously presents no problem if the contrary conclusion

in Williams is overruled as we believe should be done for

the reasons already stated. Certainly, the decision in Wil-

60

liams was not an easy one and we think it probable that

a different conclusion would have been reached if this

Court, when that case was decided, kad had the benefit of

the Congressional declaration contained in the 1953 Adi,

But even if Williams is reaffirmed in holding that the Court

of Claims initially was created under Article I, the 1953

Act, as we show below, validly established the Court of

Claims as an Article III court on and subsequent to the

effective date of that Act.

Petitioner contends that the 1953 Act is ‘‘ineffectual,”

and presumably unconstitutional, because the ‘‘Congress

is completely without power under the Constitution to alter

the status of an Article I court merely by declaration of

intention as to its constitutional status made many years

after the court’s creation. In other words, a court as-

sumes a definite status at the time of its establishment and,

absent changes in the character, function, power or juris-

diction of that court, such status constitutionally does not

and can not change.’’ (Br., p. 15.) The Bakelite, Williams

and Tidewater cases are cited for this proposition, but none

of those cases involved such a declaration by the Congress

or even expressed any views upon the effect that such a

declaration might have.?’

Assuming, as we must for present purposes, that the

Congress can establish courts for the exercise of judi-

cial power under either Article I or Article III of the

Constitution, we fail to see why the Congress should be

27 Bakelite did state that an argument as to congressional intent based

on the tenure of the judges of the Court of Customs Appeals “mistakenly

assumes that whether a court is of one class or the other depends on the

intention of Congress, whereas the true test lies in the power under whi

the court was created and in the jurisdiction conferred.” 279 U.S., at P.

459. We have shown, however, that the subsequent O’Donoghue decision

disregarded this “true test” and relied in part upon the intent of the

Congress as disclosed by the life tenure given ‘« the judges of the Distriet

of Columbia courts. See p. 34, supra.

61

‘“eompletely without power’’ to alter the status of an

Article I court to that of an Article III court by an express

statutory declaration to such effect. Nothing in the Con-

stitution provides in effect that ‘‘once an Article I court

always an Article I court,’’ and we do not perceive any per-

suasive reason why such a rule should apply.

It is important to remember in this regard that the Court

of Claims was held by Williams to exercise judicial power,

even though not Article III judicial power; and Williams

further held that this judicial power could be conferred

upon an Article III court. After referring to the provi-

sions of the Tucker Act, Williams said (289 U.S., at pp. 565-

566) that:

‘‘By these provisions it is made plain that the Court

of Claims, originally nothing more than an administra-

tive or advisory body, was converted into a court, in

fact as well as in name, and given jurisdiction over

controversies which were susceptible of judicial cogni-

zance. It is only in that view that the appellate juris-

diction of this court in respect of the judgments of that

court could be sustained, or concurrent jurisdiction

appropriately be conferred upon the federal district

courts. The Court of Claims, therefore, undoubtedly,

in entertaining and deciding these controversies, exer-

cises judicial power, but the question still remains—

and is the vital question—whether it is the judicial

power defined by Art. III of the Constitution.

“That judicial power apart from that article may

be conferred by Congress upon legislative courts, as

well as upon constitutional courts, is plainly apparent

from the opinion of Chief Justice Marshall in Amer-

ican Insurance Co. vy. Canter, 1 Pet. 511, 546, dealing

with the territorial courts. . . . The validity of this

62

_yiew is borne out by the fact that the appellate juris.

diction of this court over judgments and decrees of the

legislative courts has been upheld and freely exercised

under acts of Congress from a very early period, a

practice which can be sustained, as already suggested,

only upon the theory that the legislative courts possess

and exercise judicial power—as distinguished from

legislative, executive, or administrative power—al-

though not conferred in virtue of the third article of

the Constitution.’’ (Emphasis in the original.)

pear’ to be identical in all respects except for the Article

of/the Constitution under which the Congress is deemed

to have acted in conferring such power, is, *f course, incor-

sistent with our analysis of the Constitution and with the

limited scope of the legislative-court concept which we ad-

vocate in Part I of this Argument. If the Congress under

Article I can confer ‘‘judicial power’’ upon non-Article

III courts permanent in nature and situated within the

boundaries of the United States proper, then the purpose

of Article IIJ to protect the independence of the judiciary

in the exercise of the ‘‘judicial Power of the United States”

can readily be frustrated and the principal justification for

our espousal of the test stated in O’Donoghue would be

subverted. See pp. 38-41, supra.

In this Part of our Argument, however, we are assuming,

arguendo, that Williams was correctly decided, and this

assumption requires an adjustment in our frame of refer-

ence. While it is perhaps unnecessary to accept everything

that was said in Williams in order to reaffirm the holding

that the Court of Claims was created under Article I, we

do not see how atceptance of the concept of two kinds of

judicial power can be escaped. As Williams conceded in

cyto i of two kinds of ‘‘ judicial power,’’ which ap-

“ib,

eee

63

the above quotation, that concept is essential to any rea-

sonable contention that the holding in Williams is econ-

sistent with the Tucker Act jurisdiction of the federal

district courts and with review by this Court of the judg.

ments of the Court of Claims. ~We do not believe that

there is any serious possibility that this Court, any more

than the Court in Williams, is prepared to hold invalid

the established practice of many years standing with re-

spect to those two matters.

Accepting for present purposes, therefore, the concept

of two kinds of judicial power which was an essential

premise of the Williams decision, it must be conceded that:

(1) The basic jurisdiction of the Court of Claims requires

the exercise of judicial power; (2) this judicial power,

even though conferred under Article I, can be exercised

by both Article I and Article ITI courts; and (3) this judi-

cial power, therefore, can be exercised by the Court of

Claims either as an Article I court or as an Article III

court. Based upon these premises, we submit that the

issue of whether the Court of Claims is to exercise this

judicial power as an Article I court or as an Article III

court is for the Congress to determine.

If the judicial power exercised by the Court of Claims

may be conferred upon either a legislative court or a con-

stitutional court, what objection can there be to effectuat:

ing an express declaration by the Congress concerning

the nature of the court upon which it chooses to confer

the judicial power? Article IIT authorizes the Congress

o “ordain and establish’? inferior courts. How ean it be

held that the Congress has not ordained and established

m inferior court under Article III in the face of an ex-

Press statutory declaration by the Congress that it has

done just that? If the Congress should establish a new

court in a statute expressly stating that the Congress

64

acted pursuant to Article III, and the jurisdiction of the

Court of Claims was transferred to this new court, could

anyone reasonably contend that the court thus established

was not a constitutional court created under Article IT]}

To be sure, this hypothetical new court would be rather

an oddity as it would not exercise any Article IIT judicial

power even though created under Article III, if Williams

correctly held that none of the jurisdiction of the Court

of Claims comes within Article III judicial power. Onur

reasons for believing that Williams erred in this holding

have been stated. Chief Justice Vinson, in the Tidewater

case, contended that the ultimate holding in Williams cate-

gorizing the Court of Claims as a legislative court could

and should be explained on other grounds, and that the

views expressed in Williams concerning the non-article III

nature of the jurisdiction of the Court of Ciaims could and

should be disregarded even if the ultimate holding is ae-

cepted. 337 U.S., at pp. 640-642, fns. 20, 21. But, in any

event, the oddity of an Article III court exercising only

Article-I judicial power is inherent in the concept, relied

upon in Williams, of two kinds of ‘‘judicial power’’ both

of which may be exercised by an Article III court, and

does not involve any insuperable theoretical difficulties

if that concept is accepted.*

Assuming that the Congress could create a new Article

III court and confer upon that court the jurisdiction now

exercised by the Court of Claims, surely the Congress

28 The settled rule is that Article III does not itself confer juris

diction upon an inferior court created by the Congress under-that Artiele,

and that the Congress may regulate the Article III jurisdiction o¢ an

ferior Article III court in such manner as it deems fit. See, ¢.g., Locketly

v. Phillips, 319 U.S. 182, 187 (1943); Lauf v. E. G. Shinner & Co., 38

U.S. 323, 330 (1938); Kline v. Burke Constr. Co., 260 U.S. 226, 233-294

(1922). Thus, there dges not appear to be anything in Article III requiring

the Congress to confer some Article III jurisdiction upon an inferior

court created under Article III.

ION a CLI ORC OOP OI CEO pO “LODO EI Pe > SGD mere

65

could also change the constitutional basis for the Court

_ of Claims by an express declaration that henceforth the

Court of Claims is to be an inferior court existing under

Article III. The Constitution can hardly be thought to

compel the Congress to go through the purely mechanical

process of first abolishing the Court of Claims and then

reconstituting it under the same or another name in order

to achieve its future existence as an Article III rather

‘than un Article I court.

It is true, as the committee reports demonstrate, that

the Congress in the 1953 Act intended to express its de-

termination that the Court of Claims had initially been

created under Article IIJ. See pp. 13-14, supra. But even

if that determination was mistaken and ineffectual insofar

as the past status of the Court of Claims is concerned, the

declaration of Congress in the 1953 Act is entitled to pro-

spective effect. Thus, in Postmaster-General v. Early, 12

Wheat. 136, 148-149 (1827), this Court, in an opinion by

Chief Justice Marshall, held that:

“It is true, that the language of the section indicates

the opinion, that jurisdiction existed in the circuit

courts, rather than an intention to give it; and a mis-

taken opinion of the legislature concerning the law,

does not make law. But if this mistake be manifested

in words competent to make the law in future, we know

of no principle which can deny them this effect. The

legislature may pass a declaratory act, which, though

inoperative on the past, may act in future. This law

expresses the sense of the legislature on the existing

law, as plainly as a declaratory act, and expresses it

in terms capable of conferring the jurisdiction.”

See, also, United States v. Clafin, 97 U.S. 546, 548-549

(1878),

66

The principle of the Early case plainly is applicable

here, assuming that the Congress was mistaken in the view

that the Court of Ciaims initially was created under Arti.

cle III. The 1953 statute declared that view in language

capable of. being given future effect, even though inopera.

tive on the past, by declaring the Court of Claims ‘‘to be

a court established under article III of the Constitution

of the United States.’’ There is nothing in the Constitr.

tion of which we are aware to prevent the judges of the

Court of Claims from continuing to serve without reap.

pointment. They already had life tenure during good

behavior, as required by Article III, and were originally

appointed by the President and confirmed by the Senate,

as required by section 2 of Article II. It is well established

th .t the ‘‘Congress may increase the powers and duties

of an existing office without thereby rendering it necessary

that the incumbent be again nominated and appointed.”

Shoemaker v. United States, 147 U.S. 282, 301 (1893). If

so, it should also be possible to change the constitutional

basis for an office without making it necessary to reappoint

the incumbent, particularly where, as here, no material

change in functions or duties is invoived.

Even if the Court of Claims was a legislative court prior

to the 1953 Act, this meant only that it was authorized under

Article I and not that it had no constitutional basis at all.

Moreover, as we have shown, the judges of the Court of

Claims prior to 1953 exercised judicial power identical with

that exercised by federal district judges in Tucker Act

cases. The only significant aspect of the assumed change

of status froma legislative to a constitutional court is that

the Congress no longer can diminish the compensation of

the judges of the Court of Claims during their continuance

in office. The surrender of this right hardly suffices, bow

ever, to require that incumbent judges again be nominated

ta GEE SF ——

67

and confirmed. Certainly, neither the President nor the

Congress has thought so.

The petitioner in Lurk v. United States, No. 481, has ex-

pressed concern about the power of the Court of Claims

to continue rendering reports to the Congress in congres-

sional reference cases, if held to be a constitutional court.

This does not seem to us to be a serious problem. If the

Congress pursuant to its plenary power over the District

of Columbia can require Article III courts in the District

of Columbia to undertake legislative or advisory functions,

as the O’Donoghue case held, surely the Congress may re-

quire the Court of Claims to render reports in congres-

sional reference cases pursuant to the plenary power of the

Congress over payment of the debts of the United States

even though the Court of Claims be an Article III court.

See Pope v. United States, 323 U.S. 1, 13-14 (1944).2° Pro-

fessor Moore has so concluded. See 1 Moore, Federal

Practice, pp. 72-73 (2d ed.).

In any event, there is no apparent reason why the judges

of the Court of Claims may not voluntarily render reports

to the Congress in congressional reference cases, even if

the Court of Claims as such cannot be required to do so.

See United States v. Ferreira, 13 How. 40, 49-51 (1851) ;

Hayburn’s Case, 2 Dall. 409 (1792). Indeed, this view of

its function in reference cases was adopted by the Court

of Claims many years ago. In Sanborn v. United States,

27 C. Cls. 485, 490 (1892), it was stated that:

“Tam also aware that the Supreme Court held, in

an early decision, reported in a note to Ferreira’s case

ee

- Harrison Vv. Moncravie, 264 Fed. 776, 781-782 (C. A. 8, 1920), appeal

dismissed, 255 U.S. 562 (1921), held that the rule against exercising juris-

diction over matters in which a final judgment could not be entered applied

only with respect to the jurisdiction of the Supreme Court, and that all

cle IT inferior courts could take jurisdiction of such matters. See,

also, Wallace v. Adams, 204 U.S. 415, 423 (1907). .

68

(13 Howard 52) thai a technically judicial court eg,

not be authorized to perform extra judicial services.

but I can see no reason why the judges, acting collec.

tively in the name of the court, may not voluntarily

perform such services when designated to do so by

act of congress, as well as judges of the Supreme Court

designated by their official position to sit in other extra

judicial tribunals. (Act January 29, 1877, ch. 37, see.

2; 19 Stat. L., 228).”’

The statute thus cited provided for the services of five

Justices of the Supreme Court on the Commission estab.

lished to determine disputed electoral votes in the Hayes.

Tilden election. More recent examples that come to mind

include the voluntary services of individual Justices in

connection with the Pearl Harbor investigation and the

Nuremberg War Crimes Trials. In addition, many Arti-

cle III judges perform services in connection with the

Judicial Conference, and this Court collectively acts in

what appears to be a quasi-legislative capacity in promul-

gating the Admiralty, Civil and Criminal Rules pursuant

to statutory authorization (28 U.S.C. §§ 2072, 2073; 18

U.S.C. §§ 3771, 3772).

The validity of the congressional reference jurisdiction

of the Court of Claims is not in issue in this case, and, for

the reasons stated, we do not anticipate any serious problem

in defending that jurisdiction if the issue should arise.

In any event, the possible doubts about this matter were

brought to the attention of the House Judiciary Committee

by Judge Madden in testifying with respect to the bili

that became the 1953 Act,3° and Senator Gore also discussed

this problem during the Senate debates on that bill. %

Cong. Rec. 8943-8944. Hence, the Congress by enacting

30 The hearings held by that Committee have not been printed.

69

the 1953 legislation must have elected to remove any ques-

tion as to the status of the Court of Claims as a constitu-

tional court regardless of whether the jurisdiction of the

Court over congressional reference cases might be affected.

We submit, therefore, that the declaration by the Con-

gress in the 1953 Act that the Court of Claims is a con-

stitutional court created under Article III should be given

effect for the period since the enactment of that statute,

even if the Court of Claims previously was a legislative

court.

Conclusion

Petitioner does not contend that the assignment of Judge

Madden to serve on the Court of Appeals for the Second

Cireuit was invalid for any reason other than its contention

that he was a Judge of a legislative court—the Court of

Claims. For the reasons stated above, we believe that

the Court of Claims was created as a constitutional court

and that the contrary decision in Williams should be over-

ruled as wrongly decided. In any event, the 1953 Act

validly establishes the status of the Court of Claims as

a constitutional court since 1953. The decision below,

therefore, should be affirmed.

Respectfully submitted,

Francis M. SHea,

Ricwarp T. Conway,

734 Fifteenth St., N.W..,

Washington 5, D.C.

Attorneys for Amici Curiae.

(570-2)

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QO CO Hm OD ND mw me pe

I. Judge Madden was at least a de facto judge of the

court of appeals, and petitioner cannot chal-

lenge his authority for the first time in its peti-

Car ereet 23

II. Judge Madden is, and was in 1961, an Article ITI

judge, fully competent to sit on any Article III

court to which he might be assigned pursuant

to statutory authority... 25

III. The Court of Claims was validly created by Con-

Gress as an Article III court... 26

repudiate, so far as constitutionally

possible, this Court’s interpretation in

the Bakelite and Williams cases as to

what power Congress exercised in estab-

lishing the Court of Claims, and to

declare authoritatively that it acted

under Article IIT.-.........00 26

ing that the Bakelite and Williams cases

erred in ruling that the Court of Claims

was not an Article III court_.________ 36

TPP thc Ahan eawnd andgacnicg, 36

624543—62——_13

i

ent—Continued -

Ill. The Court of Claims, etc.—Continued

B. Apart from the 1953, etc.—Continued

1. Congress intended, etc.—Continued

a. The Court of Claims

as originally con-

i. The debates in

Congress - - - -

ii. The _ original

Act of 1855-

b. The 1863 and 1866

amendments giving

finality to the court’s

judgments - - - ------

i. The 1863 Act-_-

ii. The repeal of

Section 14 of

of the 1863

Act by the

Act of 1866-

c. The Tucker Act’s vest-

ing of concurrent

jurisdiction of claims

against the United

States in the regular

federal courts---- - --

d. Congress’s treatment

of the Court of

- Claims as part of the

regular federal judi-

ciary in the Judicial

Code of 1911-------

e. The authority of the

Court of Claims to

hear appeals from

judgments of the dis-

trict courts under the

Federal Tort Claims

37

37

57

59

III

Argument—Continued

III. The Court of Claims, ete.—Continued

B. Apart from the 1953, etc.—Continued

2. From 1866 to 1929 this Court uni-

formly assumed, and repeatedly

declared, the Court of Claims’

to be an Article III tribunal__

3. Ex parte Bakelite (1929) and

Williams v. United States (1933)_

4. “Controversies to which the

United States shall be a Party’”’_

a. Sovereign immunity and

the power of waiver____

6. The intent of the framers

of the Constitution____

c. The Judiciary Act of 1789.

d. The carly authorities____

5. “Cases, in Law and Equity,

arising under this Constitu-

tion, the Laws of the United

States lic diag oP ee ee

year, that power was given to it.

2. The subsequent vesting in the

court pf certain non-judicial

functions (in addition. to its

judicial duties) did not aitect

its Article III status... ___

IV. The congressional declaration in the 1953 Act

should be given at least prospective effect_____

Page

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