While the Constitutional Convention agreed that the new central government should include a permanent judiciary, there was disagreement over its size. The original proposal (the Virginia Plan) called for “one or more supreme tribunals” as well as “inferior tribunals.” (In English and American usage at that time, “supreme” and “inferior” were normally used to indicate different breadths of geographic or subject matter competence, rather than appellate hierarchy; Virginia, for example, had four “supreme” courts, with a complex of relations among them.) Many of the delegates, however, believed it would be sufficient to have a single national court, empowered to review certain state court judgments. By successive amendments, those delegates succeeded first in reducing the number of “supreme” courts to one and then in eliminating the reference to “inferior” courts.

The latter vote was very close, however; James Madison moved as a compromise “that the National Legislature be empowered to institute inferior tribunals.” Madison repeated his earlier argument that “unless inferior tribunals were dispersed throughout the Republic with final jurisdiction in many cases” (the words are emphasized in Madison’s own notes), there would be docket overload and oppressive expense. The delegates’ approval of this com-promise resulted in three separate but related constitutional provisions: the Inferior Courts Clause in Article I, granting Congress power (and discretion) to constitute “inferior” tribunals; the phrase in Article III alluding to “such inferior Courts as the Congress may from time to time ordain and establish”; and the Appellate Jurisdiction Clause in Article III, Section 2, Clause 2, which provides that judgments may be excluded by Congress from Supreme Court review.

Some commentaries and judicial opinions have maintained that the Inferior Courts Clause of Article I implies congressional discretion to determine how much of the subject-matter jurisdiction authorized by Article III should actually be vested in federal courts. The Framers, however, specified in the Constitution itself the subject-matter extent of “the judicial Power of the United States” and directed in mandatory language that it “shall be vested” in the national judiciary (to consist of the one “supreme” and whatever “inferior” courts Congress might establish). Indeed, the Framers specifically voted down a succession of proposals that would have empowered Congress to exclude subject matters from the inferior courts; with regard to the “supreme” court, though, they included the Appellate Jurisdiction Clause, so that if Congress did create “inferior” courts, these could be given “final jurisdiction in many cases,” as Madison had urged.

Yet the Necessary and Proper Clause (Article I, Section 8, Clause18) gave Congress a discretion to distribute jurisdiction among whatever courts it established. Barely a week before finalizing the scope of subject-matter jurisdiction, the delegates had approved the Necessary and Proper Clause, which the Committee of Detail had devised, in part, for the very purpose of empowering Congress to organize the judicial branch. It must have been obvious that, if infe-rior tribunals were created at all, this Necessary and Proper Clause would enable Congress to dis-tribute the jurisdiction prescribed by Article III without diminishing the collective competence of the federal judiciary as a whole. It logically follows that Congress may constitute specialized tribunals for admiralty, bankruptcy, claims, tax, or diversity cases, for example, so long as it makes one or another federal tribunal available for each subject matter on the Article III list.

There are intrinsic limits, however. In 1818, the United States rebuffed British pressure to participate in an international tribunal to deal with the slave trade on the high seas. President John Quincy Adams (with the unanimous support of his cabinet) decided “that it would be repugnant to the article in the Constitution concerning the organization of the judicial power.” On the other hand, one commentator has suggested that Congress’s power to “constitute” inferior tribunals under this clause (Article I, Section 8, Clause 9) would allow it to confer jurisdiction over federal claims even in state courts. In contrast, the power of Congress “to ordain and establish” inferior courts to the Supreme Court in Article III, Sec-tion 1 refers only to the power to establish a federal court system.

Congress’s power to organize the judicial branch goes beyond constituting inferior courts and distributing the Article III subject-matter jurisdiction. Congress also may designate some courts for trials, others for appeals, and (if it chooses) some for both; it may facilitate, restrict, or preclude appellate review, and prescribe its procedural course; and it may legislate rules of evidence and practice.

As to the latter, ever since the Justices affirmed the argument of Attorney General Edmund Randolph regarding process and service in Chisholm v. Georgia (1793), it has been understood that, where Congress is silent, federal courts can establish procedures of their own, but that legislation regarding procedure prevails by virtue of the Supremacy Clause. Congressional discretion over procedural matters is not unlimited, however. If its power were really derived from the Inferior Courts (Tribunals) Clause (which contains no intrinsic limit), Congress could even dictate procedures impeding the judiciary or impairing the independence at which the judicial tenure and salary guarantees of the Constitution are aimed. Because this power actually comes from the Necessary and Proper Clause, however, laws regarding the judiciary must satisfy the requirement that they be “necessary and proper for carrying into Execution the . . . Powers vested by this Constitution in [the judicial] department. . . .” This intrinsic limit leaves ample discretion to Congress as to whether and how to assist, but if judges find a procedure enacted by Congress incompatible with the independent performance of their own constitutional duties, it would seem that they are bound by their oaths to disregard it.

While the judges of inferior federal courts have the same tenure and compensation guarantees as Supreme Court Justices, it may not necessarily follow that they must be nominated or appointed in the same political manner. Lower federal court judges might be considered “inferior Officers,” whose appointment Congress is empowered by the Appointments Clause to vest “in the President alone, in the Courts of Law, or in the Heads of Departments.” In any event, Congress has not yet attempted to dispense with either presidential appointment or Senate confirmation for life-tenured inferior court judges.

The Judiciary Act of 1789, drafted in the first Congress by a Senate committee—half of whose Members had participated at the Constitutional Convention—established a federal court system very different from that which is familiar today. Reflection on that system helps one understand how much discretion the Constitution gives Congress regarding judicial system design. Single-judge district courts heard admiralty matters, tried civil “forfeiture” proceedings (a category which, at the time, embraced federal question claims), and exercised concurrent jurisdiction over minor federal crimes. Three-judge circuit courts were the principal federal tribunals; they tried diversity cases and most federal crimes, heard cases removed from state courts, and could review most of the single-judge district courts’ decisions. Supreme Court Justices spent most of their time presiding at the several circuit courts. They gathered only briefly twice each year to try matters within the Supreme Court’s scant origi-nal jurisdiction and to hear a few appellate cases. However, Supreme Court review was not avail-able for any criminal case (unless by habeas cor-pus) or for civil cases that had begun in a district court. Except for federal question cases from state courts, no other case could reach the Supreme Court unless the amount in controversy exceeded a sum that very few Americans at that time could hope to earn in a year.

Supreme Court review of inferior federal courts was rare. Statistics confirm that most federal court litigation began and ended in the circuit courts. The establishment thus con-formed to Madison’s model of “inferior tribunals . . . dispersed throughout the Republic with final jurisdiction in many cases. . . .” This decentralization was consistent with Alexander Hamilton’s prediction in The Federalist No. 78 that the judiciary could “take no active resolution whatever” and “may truly be said to have neither Force nor Will, but merely judgment.” Some scholars, however, argue that “inferior to the supreme Court” in the clause textually demands that the Supreme Court not be shorn of power to review decisions of the lower federal courts, believing that a decentralized judiciary could become a political organ in competition with the executive and the legislature.

The decentralized framework of 1789, with slight modifications, was still in place when Alexis de Tocqueville visited America in 1831. Tocqueville described the practice of judicial review in this distinctly nonhierarchical judi-cial system as “one of the most powerful barriers ever erected against the tyranny of political assemblies.” He observed that when any judge, from constitutional conviction, “refuses to apply a law in a case, it loses at once part of its moral force,” prompting other litigants to contest it, too. Then, should other judges reach the same conclusion, the force of that law would be further diminished; but, Tocqueville observed, “it is only gradually, under repeated judicial blows, that it finally succumbs.” Thus the accumulation of independent judgments, rather than any central, authoritative pronouncement, safe-guarded the Constitution. At the same time, the consequences of an ill-considered ruling would probably be confined to the particular parties and case.

Not everyone was pleased with the decentralized judiciary. James Wilson, a participant at the Convention who became one of the original Associate Justices, criticized the federal judiciary as “a very uncommon establishment,” and urged in his law lectures that instead it “should resemble a pyramid. . . . [O]ne supreme tribunal should superintend and govern all others.” By 1801, this argument had persuaded the Federalist Congress to remodel the judicial branch; but the Federalist overhaul was repealed by Thomas Jefferson’s Republicans the next year. Jefferson’s own Congress, however, soon enacted some piecemeal revisions that gradually, but significantly, began to pyramid the judicial branch: justices’ circuit-riding duties were reduced, enabling them to focus on appellate work; restrictions on appellate review were relaxed; and a process was enacted for certifying to the Supreme Court any question of law over which the two or more judges presiding at a Circuit Court proceeding disagreed. Thus did the wish for uniform resolution of legal questions begin to eclipse the original conception of conscientious, oath-bound, and independent adjudication of each litigant’s case.

Nonstatutory developments—like the increasing availability of Supreme Court opinions once official publication started in 1817, and the widespread respect gained by Chief Justice John Marshall—helped make the centralization of judicial authority seem safe and desirable. Soon another development occurred, however, which nobody could have foreseen.

A decade before the American Revolution, English legal scholar Sir William Blackstone had written that a judge is “not delegated to pronounce a new law, but to maintain and expound the old one.” A few years earlier, Baron de Montesquieu had seen English judges as “no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or its rigour.” That is why, in discussing the separation of powers, Montesquieu put aside the judiciary as “next to nothing” and focused on the three political elements— executive, commons, and lords. During the early decades of the nineteenth century, however, the possibility that judges might actually revise the law by their decisions began to be recognized; and some frankly embraced the potential. Before long, new appointees brought this new instrumentalism to the Supreme Court.

Gradually, instrumentalist jurisprudence operating in an increasingly hierarchical system made the federal judiciary a different institution from what the Framers had conceived. This combination enabled judges to make effective throughout the nation their honorably held, but not always predominantly shared, opinions on controversial questions of public policy linked to some constitutional phrase or ideal.

Harmonization of legal opinion may be a beneficial effect of a hierarchical judiciary in certain areas, but its persistence in whole or in part is at Congress’s option. A pyramided judicial branch is not constitutionally ordained, although not prohibited either. Circuit courts can, and often do, develop Constitutional doctrine before it is concretized by the Supreme Court. But centralized judicial decision of controversial public issues, under the rubric of constitutional generalities, frequently stirs vigorous dissent. At times, Members of Congress have urged that categories of jurisdiction be stripped from the judicial branch as a whole. The Framers refused to allow that, of course; when a divestment law was actually enacted in 1867, inferior courts ignored it and proceeded with the forbidden cases anyway. See Beckwith v. Bean (1878). In contrast, laws that de-pyramid by making exceptions to Supreme Court appellate jurisdiction are valid because of the Appellate Jurisdiction Clause, so long as the excepted cases have access to the inferior federal courts structured by Congress for carrying into execution the federal judicial power.