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a matter of practice rather than of constitutional law. The Constitution provides that the President and Senate are to appoint the Judges of the Supreme Court; but authorizes Congress to vest the appointment of such "inferior officers" as it thinks proper in the President alone, in the courts of law, or in the heads of departments. By uniform practice, however, it is settled that the judges of the inferior federal courts are not "inferior officers" whose appointment may be taken from the President and Senate and vested in some other authority. The Judges of the Supreme and inferior courts hold office during good behavior, and therefore cannot be removed except by impeachment.
Under these constitutional provisions Congress has created the following scheme of courts:
1. At the head of the system stands the Supreme Court composed of nine Judges.1 This Court holds its sessions usually from October until May in the chamber of the Capitol formerly occupied by the United States Senate. The most important business that comes before it involves questions of constitutional law brought up from lower federal courts or from state courts on appeal or by writ of error.?
The cases are presented to the Judges in the arguments of attorneys or in printed briefs or by both methods. A case as presented contains a statement of the facts involved in the controversy and the arguments of the attorneys on the law and facts. When a case is submitted, it is the duty of each Justice to examine the facts and the arguments and to apply the law. After each Judge has looked at the case independently, a conference is held at which the various points are discussed at length and a decision reached. Thereupon, the Chief Justice requests one of his colleagues to prepare what is called "the opinion of the court," which contains the conclusions reached by the majority
1A Chief Justice and eight Associate Justices. Six Judges must be present at each trial and a majority is necessary for a decision. The salary of the Chief Justice is $13,000 and of the Associate Justice $12,500.
It is not very often that the Supreme Court is called upon to try an original case affecting ambassadors, public ministers, and consuls, but there have been several cases of disputes between states over boundaries and other matters which have been brought before that tribunal as a court of first instance.
3 Of course he may write the "opinion" himself.
and the final order in the disposition of the case. This "opinion" is subjected to the scrutiny of the Judges and after a careful revision, which then represents the solemn and final conclusion of the Court, it is printed and placed on record. Any Judge, who agrees with the judgment of the majority, but bases his conclusion on other arguments than those put forward in the opinion, may prepare what is called a "concurring opinion," in which he sets forth his own reasons for reaching the same end. In some instances, therefore, a majority of the Court may agree that a particular case shall be decided in favor of the plaintiff (or defendant), but each Justice may assign different reasons for his own action.
It is also the practice, in all important cases, for the minority of the Judges who disagree with the conclusion reached by the majority to prepare a "dissenting opinion," setting forth their reasons for believing that the case should have been decided otherwise. Sometimes each of the dissenting Judges prepares his own opinion; sometimes one of them writes an opinion which is concurred in by his dissenting colleagues. As a matter of fact, many crucial cases involving constitutional law have been decided by a narrow majority within recent years, five to four. The opinions thus rendered are officially published as the United States Reports, and at the present time the opinions for a single term of the Court extend to three or four volumes. They form the great authoritative source of information on the historical development and present status of constitutional law.
2. Immediately under the Supreme Court is a Circuit Court of Appeals in each of the nine great circuits into which the United States is divided.' The act of 1891, which established this Court for the purpose of relieving the Supreme Court somewhat from the pressure of business, did not create a new set of judges for
'The first circuit embraces Maine, Massachusetts, New Hampshire, and Rhode Island; the second, Connecticut, New York, and Vermont; the third, Delaware, New Jersey, and Pennsylvania; the fourth, Maryland, North Carolina, South Carolina, Virginia, and West Virginia; the fifth, Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas; the sixth, Kentucky, Michigan, Ohio, and Tennessee; the seventh, Illinois, Indiana, and Wisconsin; the eighth, Arkansas, Colorado, Oklahoma, Iowa, Kansas, Minnesota, Missouri, Nebraska, New Mexico, North Dakota, South Dakota, Utah, and Wyoming; the ninth, Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, and Hawaii.
each Court of Appeals. It merely provided that an additional circuit judge should be appointed for each of the nine circuits; and that the Justice of the Supreme Court of the United States assigned to the circuit the circuit judges and the district judges within that circuit should be competent to sit as judges of the Circuit Court of Appeals.1 A Circuit Court of Appeals, therefore, consists of three of these judges, of whom two may constitute a quorum; provided that no justice or judge before whom a case may have been tried in a District or Circuit Court may sit on the trial or hearing of the same in the Circuit Court of Appeals.
The Circuit Court of Appeals has the right to review, by appeal or on writ of error, decisions in the lower federal courts, Circuit and District, and its decision is final in a large number of cases, such as controversies between aliens and citizens, suits between citizens of different states, and cases arising under patent, revenue, and criminal laws. However, the Circuit Court of Appeals may ask the Supreme Court for instructions on any point of law; and the Supreme Court may call the case up and decide it, or may inquire by writ of certiorari into final causes pending in the Circuit Court of Appeals. All appealed cases from the lower federal courts within a circuit go into the Circuit Court of Appeals, unless they involve the jurisdiction of the lower court, final sentences and decrees in prize cases, capital punishment, or the Constitution, or the constitutionality of laws, or treaties of the United States, or the constitutionality of an act of any state-in which instances appeals may be taken directly from the lower courts to the Supreme Court of the United States. This reserves, therefore, to the Supreme Court the decision of cases involving constitutionality, and gives to the Circuit Court of Appeals the final decision in nearly all other cases involving merely the application of ordinary law. As a matter of fact, however, it is relatively easy to raise the
'The law provides, "In case the full court [of appeals] at any time shall not be made up by the attendance of the Chief Justice or Associate Justice of the Supreme Court of the United States and circuit judges, one or more district judges shall be competent to sit in the court. . . as shall be designated by the court." At least one term must be held annually at a place designated by law, and other terms are held at times and places designated by the order of the court.
question of constitutionality, so that this new Court has not been able to render the expected services in relieving the great tribunal at Washington.
3. Immediately under the Circuit Court of Appeals there is the Circuit Court. In each of the nine great circuits, mentioned above, there are two, three, or four judges, and to each of these circuits is assigned one of the nine Justices of the Supreme Court of the United States. Many Circuit Courts are held annually at different points in each circuit, and such a court may be constituted by one Circuit Court judge, the Justice of the Supreme Court assigned to the circuit, or a district judge alone. Sometimes a circuit judge and a district judge, or a Justice of the Supreme Court, sitting together, hold a Circuit Court.1 The jurisdiction of the Circuit Court embraces a vast range of complicated matters which cannot be enumerated here. It has, for example, original and exclusive jurisdiction over federal criminal cases involving capital punishment; but in other criminal matters its jurisdiction is concurrent with that of the lower District Court. It has jurisdiction over suits between citizens of different states involving at least $2000 above costs and interest, over acts in restraint of trade,2 over offences against the contract labor law, and other matters specifically prescribed by acts of Congress.
4. The lowest federal court is the District Court. The United States is divided into about ninety districts to each of which is usually assigned one judge. Some districts embrace a single state; for example, Colorado, Connecticut, Delaware, Indiana, Rhode Island, South Carolina, South Dakota, each constitutes a district. Other districts embrace only portions of a single state; for example, in New York State, there are four districts.
The jurisdiction of a District Court can be understood only by a review of a large number of statutes, and it is so technical in character that it need be studied only by a practising lawyer whose business it is to discover the proper forum into which his
1 As a matter of fact, the Supreme Court Justice takes little part in the trying of cases in Circuit Courts. In important cases two judges sit together in Circuit Courts.
"See Readings, p. 359.
3 Sometimes there is only one judge for two districts, and again there are two or three judges for a single populous district.
clients' cases may be taken.' Its business embraces, among others, admiralty and maritime, bankruptcy, and federal criminal cases, except capital offences.
In close relation to the judiciary are the Department of Justice and the great army of United States attorneys and marshals in the judicial districts in the states and territories.2 The head of the Department of Justice is the Attorney-General of the United States, who is the chief law officer of the federal government. "He represents the United States in matters involving legal questions; he gives his advice and opinion when they are required by the President or by the heads of the other executive departments on questions of law arising in the administration of their respective departments; he appears in the Supreme Court of the United States in cases of especial gravity and importance; he exercises a general superintendence and direction over the United States attorneys and marshals in all the judicial districts in the states and territories; and he provides special counsel for the United States whenever required by any department of the government." The enforcement of important federal laws, therefore, depends largely upon the activity of the Attorney-General, or rather upon the pressure brought to bear upon him by the President.
In each of the judicial districts there is a United States district attorney who represents the government in the prosecution and defence of causes arising within his district. There is also in each district a marshal' whose duty it is to enforce the orders of
'In addition to this regular hierarchy of courts, Congress has created from time to time special courts. There is a Court of Claims composed of a chief justice and four associate judges whose duty it is to hear claims against the federal government. If it decides that a certain amount of money is due from the United States to any party, it cannot order payment, but must depend upon appropriations made by Congress. This Court partially relieves Congress of the great political pressure brought on behalf of private claims. Congress has also created a judicial system for the District of Columbia comprising a court of appeals, a supreme court, and minor courts of the justices of the peace, a police court, and a juvenile court. The Payne-Aldrich tariff law of 1909 created a Customs Court, consisting of a presiding judge and four associates, to which court appeals may be taken from the decisions of the Board of General Appraisers on questions of jurisdiction and law. 2 See above, p. 297.
3 With one or more assistants.
Assisted by a number of deputies.