The Constitution of the United States of America: Analysis and Interpretation Part 97

Article III

Section 1. 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 inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Characteristics and Attributes of Judicial Power

"JUDICIAL POWER"

Judicial power, as Justice Miller defined it in 1891, is the power "of a court to decide and p.r.o.nounce a judgment and carry it into effect between persons and parties who bring a case before it for decision";[1]

or in the words of the Court in Muskrat _v._ United States,[2] it is "the right to determine actual controversies arising between adverse litigants, duly inst.i.tuted in courts of proper jurisdiction."[3]

Although the terms "judicial power" and "jurisdiction" are frequently used interchangeably and jurisdiction is defined as the power to hear and determine the subject matter in controversy between parties to a suit,[4] or as the "power to entertain the suit, consider the merits and render a binding decision thereon,"[5] the cases and commentaries support and, for that matter, necessitate a distinction between the two concepts. Jurisdiction is the authority of a court to exercise judicial power in a specific case and is, of course, a prerequisite to the exercise of judicial power, which is the totality of powers a court exercises when it a.s.sumes jurisdiction and hears and decides a case.[6]

Included with the general power to decide cases are the ancillary powers of courts to punish for contempts of their authority,[7] to issue writs in aid of jurisdiction when authorized by statute;[8] to make rules governing their process in the absence of statutory authorizations or prohibitions;[9] inherent equitable powers over their own process to prevent abuse, oppression and injustice, and to protect their own jurisdiction and officers in the protection of property in custody of law;[10] the power to appoint masters in chancery, referees, auditors, and other investigators;[11] and to admit and disbar attorneys.[12]

"SHALL BE VESTED"

The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words "shall be vested." Whereas all of the judicial power of the United States is vested in the Supreme Court and the lower federal judiciary, neither has ever been vested with all the jurisdiction they are capable of receiving under article III. Except for the original jurisdiction of the Supreme Court, which flows directly from the Const.i.tution,[13] two prerequisites to jurisdiction must be present. First, the Const.i.tution must have given the courts the capacity to receive it; second, an act of Congress must have conferred it.[14]

FINALITY OF JUDGMENT

Since 1792 the federal courts have emphasized finality of judgment as an essential attribute of judicial _power_. In Hayburn's Case[15] a motion for mandamus was filed in the Supreme Court to direct the Circuit Court for the District of Pennsylvania to act upon a pet.i.tion for a pension under the pensions act which placed the administration of pensions in the judges of the federal courts, but which made the action of the courts on application subject to review by Congress and the Secretary of War. The Court took the case under advis.e.m.e.nt, but Congress changed the law by the act of February 28, 1793, before decision was rendered. In view of the att.i.tude of the circuit courts of the United States for the districts of New York, North Carolina and Pennsylvania there can be no doubt what the decision would have been. The judges of the circuit courts in each of these districts refused to administer the pensions, because the revisory powers of Congress and the Secretary of War were regarded as making the administration of the law nonjudicial in nature.

At the time of this episode, Chief Justice Jay and Justice Cushing were members of the Circuit Court in the New York district, Justices Wilson and Blair in Pennsylvania and Justice Iredell in North Carolina.

The Taney Doctrine

On these foundations Chief Justice Taney posthumously erected finality into a judicial absolute.[16] The original act creating the Court of Claims provided for an a.n.a.logous procedure with appeals to the Supreme Court after which judgments in favor of claimants were to be referred to the Secretary of the Treasury for payments out of the general appropriation for the payment of private claims. However, section 14 of the act provided that no money should be paid out of the Treasury for any claims "till after an appropriation therefor shall be estimated by the Secretary of the Treasury." In Gordon _v._ United States,[17] the Court refused to hear an appeal, probably for the reasons given in Chief Justice Taney's opinion which he did not deliver because of his death before the Court reconvened but which was published many year later.[18]

In any event the reiteration of Taney's opinion in subsequent cases made much of it good law. Because the judgment of the Court of Claims and the Supreme Court depended for execution upon future action of the Secretary of the Treasury and of Congress, the Chief Justice regarded it as nothing more than a certificate of opinion and in no sense a judicial judgment. Congress, therefore, could not authorize the Supreme Court to take appeals from an auditor or require it to express an opinion in a case where its judicial power could not be exercised, where its judgment would not be final and conclusive upon the parties, and where processes of execution were not awarded to carry it into effect. The Chief Justice then proceeded to formulate a rule, repeated in many subsequent cases until modified in 1927 and reversed in 1933, to the effect that the award of execution is a part and an essential part of every judgment pa.s.sed by a court exercising judicial powers; it was no judgment in the legal sense of the term without it.[19] This rule was given rigid application in Liberty Warehouse Co. _v._ Grannis,[20] where the Supreme Court sustained a district court in refusing to entertain a declaratory proceeding for lack of jurisdiction because such a proceeding was regarded as nonjudicial. One year later, the Court applied the extreme of the rule in Liberty Warehouse _v._ Burley Tobacco Growers a.s.sociation,[21] when it ruled that it could exercise no appellate jurisdiction in a declaratory proceeding in a State court.

Award of Execution

Meanwhile in 1927 the Supreme Court began to qualify its insistence upon an award of execution, holding in Fidelity National Bank and Trust Co.

_v._ Swope[22] that an award of execution is not an indispensable adjunct of the judicial process. This ruling prepared the way for Nashville, Chattanooga and St. Louis R. Co. _v._ Wallace[23] which reversed the decision in the Grannis case, sustained an appeal from a State court to the Supreme Court in a declaratory proceeding, and effectively interred the rule that award of execution is essential to judicial power. Regardless, nevertheless, of the fate of an award of execution, the rule that finality of judgment is an essential attribute of judicial power remains unimpaired.

Ancillary Powers

THE CONTEMPT POWER; THE ACT OF 1789

The summary power of the courts of the United States to punish contempts of their authority had its origin in the law and practice of England where disobedience of court orders was regarded as contempt of the King himself and attachment was a prerogative process derived from presumed contempt of the sovereign.[24] By the latter part of the eighteenth century summary power to punish was extended to all contempts whether committed in or out of court.[25] In the United States, the Judiciary Act of 1789 in section 17[26] conferred power on all courts of the United States "to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same." The only limitation placed on this power was that summary attachment was made a negation of all other modes of punishment. The abuse of this extensive power led, following the unsuccessful impeachment of Judge James H. Peck of the Federal District Court of Missouri, to the pa.s.sage of the act of 1831 limiting the power of the federal courts to punish contempts to misbehavior in the presence of the courts, "or so near thereto as to obstruct the administration of justice," to the misbehavior of officers of courts in their official capacity, and to disobedience or resistance to any lawful writ, process or order of the court.[27]

An Inherent Power

The validity of the act of 1831 was sustained forty-three years later in Ex parte Robinson,[28] where Justice Field for the Court propounded principles full of potentialities for conflict. He declared: "The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they become possessed of this power."

Expressing doubts concerning the validity of the act as to the Supreme Court, he declared, however, there could be no question of its validity as applied to the lower courts on the ground that they are created by Congress and that their "powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction."[29] With the pa.s.sage of time, later adjudications, especially after 1890, came to place more emphasis on the inherent power of courts to punish contempts than upon the power of Congress to regulate summary attachment. By 1911 the Court was saying that the contempt power must be exercised by a court without referring the issues of fact or law to another tribunal or to a jury in the same tribunal.[30] In Michaelson _v._ United States[31] the Supreme Court intentionally placed a narrow interpretation upon those sections of the Clayton Act[32] relating to punishment for contempt of court by disobedience to injunctions in labor disputes. The sections in question provided for a jury trial upon the demand of the accused in contempt cases in which the acts committed in violation of district court orders also const.i.tuted a crime under the laws of the United States or of those of the State where they were committed. Although Justice Sutherland reaffirmed earlier rulings establishing the authority of Congress to regulate the contempt power, he went on to qualify this authority and declared that "the attributes which inhere in that power [to punish contempt] and are inseparable from it can neither be abrogated nor rendered practically inoperative." The Court mentioned specifically "the power to deal summarily with contempts committed in the presence of the courts or so near thereto as to obstruct the administration of justice,"

and the power to enforce mandatory decrees by coercive means.[33]

The Contempt Power Exalted

The phrase "in the presence of the Court or so near thereto as to obstruct the administration of justice" was interpreted in Toledo Newspaper Co. _v._ United States[34] so broadly as to uphold the action of a district court judge in punishing for contempt a newspaper for publishing spirited editorials and cartoons on questions at issue in a contest between a street railway company and the public over rates. A majority of the Court held that the test to be applied in determining the obstruction of the administration of justice is not the actual obstruction resulting from an act, but "the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty." Similarly the test of whether a particular act is an attempt to influence or intimidate a court is not the influence exerted upon the mind of a particular judge but "the reasonable tendency of the acts done to influence or bring about the baleful result * * * without reference to the consideration of how far they may have been without influence in a particular case."[35] In Craig _v._ Hecht[36] these criteria were applied to sustain the imprisonment of the comptroller of New York City for writing and publishing a letter to a public service commissioner which criticized the action of a United States district judge in receivership proceedings.

Recession of the Doctrine

The decision in the Toledo Newspaper case did not follow earlier decisions interpreting the act of 1831 and was grounded on historical error. For these reasons it was reversed in Nye _v._ United States[37]

and the theory of constructive contempt based on the "reasonable tendency" rule rejected in a proceeding wherein defendants in a civil suit, by persuasion and the use of liquor, induced a plaintiff feeble in mind and body to ask for dismissal of the suit he had brought against them. The events in the episode occurred more than 100 miles from where the Court was sitting, and were held not to put the persons responsible for them in contempt of court.

Bridges _v._ California

Although Nye _v._ United States is exclusively a case of statutory construction, it is significant from a const.i.tutional point of view in that its reasoning is contrary to that of earlier cases narrowly construing the act of 1831 and a.s.serting broad inherent powers of courts to punish contempts independently of and contrary to Congressional regulation of this power. Bridges _v._ California,[38] though dealing with the power of State courts to punish contempts, in the face of the due process clause of the Fourteenth Amendment, is significant for the dictum of the majority that the contempt power of all courts, federal as well as State, is limited by the guaranty of the First Amendment against interference with freedom of speech or of the press.

Summary Punishment of Contempt; Misbehavior of Counsel

There have been three notable cases within the last half century raising questions concerning the power of a trial judge to punish counsel summarily for alleged misbehavior in the course of a trial. In _ex parte_ Terry,[39] decided in 1888, Terry had been jailed by the United States Circuit Court of California for a.s.saulting in its presence a United States marshal. The Supreme Court denied his pet.i.tion for a writ of habeas corpus. In Cooke _v._ United States,[40] however, decided in 1925, the Court remanded for further proceedings a judgment of the United States Circuit Court of Texas sustaining the judgment of a United States District judge sentencing to jail an attorney and his client for presenting the judge a letter which impugned his impartiality with respect to their case, still pending before him. Distinguishing the case from that of Terry, Chief Justice Taft, speaking for the unanimous Court, said: "The important distinction * * * is that this contempt was not in open court. * * * To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or a.s.sistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court's dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law."[41] The Chief Justice then added: "Another feature of this case seems to call for remark. The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable.

But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The subst.i.tution of another judge would avoid either tendency but it is not always possible.

Of course where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. Cornish _v._ United States, 299 F. 283, 285; Toledo Newspaper Co. _v._ United States, 237 F. 986, 988. The case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows."[42]

Contempt Power: Punishment of Counsel; Sacher Case

This case[43] is an outgrowth of the trial of the eleven Communists,[44]

in which Sacher et al. were counsel for the defense. The facts of the case were as follows: On receiving the verdict of conviction of the defendants, trial Judge Medina at once issued a certificate under Rule 42 (a) of Federal Rules of Criminal Procedure, finding counsel guilty of criminal contempt and imposing various jail terms up to six months. The immediate question raised was whether the contempt charged was one which the judge was authorized to determine for himself, or one which under Rule 42 (b) could only be pa.s.sed upon by another judge and after notice and hearing; but behind this issue loomed the same const.i.tutional issue which was dealt with by the Court in the Cooke case, of the requirements of due process of law. The Court sustained the Circuit Court of Appeals in affirming the convictions and sentences, at the same time, however, reversing some of Judge Medina's specifications of contempt, one of these being the charge that the pet.i.tioners entered into an agreement deliberately to "impair my health." "We hold," said Justice Jackson, speaking for the majority, "that Rule 42 allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power. * * * We are not unaware or unconcerned that persons identified with unpopular causes may find it difficult to enlist the counsel of their choice. But we think it must be ascribed to causes quite apart from fear of being held in contempt, for we think few effective lawyers would regard the tactics condemned here as either necessary or helpful to a successful defense. That such clients seem to have thought these tactics necessary is likely to contribute to the bar's reluctance to appear for them rather more than fear of contempt.

But that there may be no misunderstanding, we make clear that this Court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. But it will not equate contempt with courage or insults with independence. It will also protect the processes of orderly trial, which is the supreme object of the lawyer's calling."[45]

Contempt by Disobedience of Orders

Disobedience of injunction orders, particularly in labor disputes, has been a fruitful source of cases dealing with contempt of court. In United States _v._ United Mine Workers[46] the Court held that disobedience of a temporary restraining order issued for the purpose of maintaining existing conditions, pending the determination of the court's jurisdiction, is punishable as criminal contempt where the issue is not frivolous but substantial. Secondly, the Court held that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings, even though the statute under which the order is issued is unconst.i.tutional. Thirdly, on the basis of United States _v._ Shipp,[47]

it was held that violations of a court's order are punishable as criminal contempt even though the order is set aside on appeal as in excess of the court's jurisdiction or though the basic action has become moot. Finally, the Court held that conduct can amount to both civil and criminal contempt, and the same acts may justify a court in resorting to coercive and to punitive measures, which may be imposed in a single proceeding.

Criminal Versus Civil Contempts

Prior to the United Mine Workers Case, the Court had distinguished between criminal and civil contempts on the basis of the vindication of the authority of the courts on the one hand and the preservation and enforcement of the rights of the parties on the other. A civil contempt consists of the refusal of a person in a civil case to obey a mandatory order. It is incomplete in nature and may be purged by obedience to the Court order. In criminal contempt, however, the act of contempt has been completed, punishment is imposed to vindicate the authority of the Court, and a person cannot by subsequent action purge himself of such contempt.[48] In a dictum in Ex parte Grossman,[49] Chief Justice Taft, while holding for the Court on the main issue that the President may pardon a criminal contempt, declared that he may not pardon a civil contempt. In an a.n.a.logous case, the Court was emphatic in a dictum that Congress cannot require a jury trial where the contemnor has failed to perform a positive act for the relief of private parties.[50]

Judicial Power Aids Administrative Power

Proceedings to enforce the orders of administrative agencies and subpoenas issued by them to appear and produce testimony have become increasingly common since the leading case of Interstate Commerce Commission _v._ Brimson,[51] where it was held that the contempt power of the courts might by statutory authorization be utilized in aid of the Interstate Commerce Commission in enforcing compliance with its orders.

In 1947 a proceeding to enforce a _subpoena duces tec.u.m_ issued by the Securities and Exchange Commission during the Course of an investigation was ruled to be civil in character on the ground that the only sanction was a penalty designed to compel obedience. The Court then enunciated the principle that where a fine or imprisonment imposed on the contemnor is designed to coerce him to do what he has refused to do, the proceeding is one for civil contempt.[52]