Looking Back on the Evolution of the Federal Appellate Courts

Though Independence Day is not the anniversary of the United States Constitution, it is still a good day to look back on the origin and history of the federal appellate courts.  Article III of the Constitution, the Judicial Article, says relatively little about appellate courts.  In fact, a single sentence summarizes the judicial branch: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may ordain and establish.”  There is nothing about the structure or size of the Court.  Nor is there even any direct mention of a Chief Justice.  We know that the framers intended a Chief Justice, however, from Article I, the Executive Article, which states that the Chief Justice is to preside at any impeachment trial of the President.

Article III goes on to define the jurisdiction of the Supreme Court.  “In cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction.”  In other cases mentioned earlier in Article III as being within federal jurisdiction generally, such as cases arising under the federal Constitution, statutes or treaties, admiralty and maritime cases, and cases involving diversity of citizenship, Article III gives the Supreme Court appellate jurisdiction “both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

The Judiciary Act of 1789 was the first effort by Congress to implement Article  III.  It provided for a Supreme Court that consisted of a Chief Justice and five Associate Justices.  The 1789 Act also constituted three circuit  courts– the Eastern, Middle (which included New Jersey) and Southern Circuits– that had limited appellate jurisdiction and also tried cases as an original forum.  The circuit courts consisted of “any two justices of the Supreme Court, and the district judge of such districts” (the Act having also established thirteen judicial districts, including the “New Jersey District,” which was to sit at New Brunswick and Burlington).

In the Judiciary Act of 1801, Congress reduced the Supreme Court to a Chief Justice and four Associate Justices.  The 1801 Act relieved Justices of circuit duty and authorized sixteen circuit judges to sit in six circuits, with New Jersey, Pennsylvania and Delaware included in the “third” circuit, as is so today.  Judges appointed under the 1801 Act were the “Midnight Judges” that became the subject of Marbury v. Madison.  When Jefferson’s Republicans took over in 1802, they repealed the 1801 Act, restored circuit duties (though less onerous ones) to Justices, and continued the structure of six regional circuits.

During the 1800’s, as the United States expanded, Congress established (and sometimes reconfigured) additional Circuits and increased the size of the Supreme Court concomitantly, so that Justices’ circuit duties would not be overwhelming.  Beginning in 1863, the Court actually had ten Justices until 1866, when Congress reduced the number to seven.  In 1869, Congress increased the Court to nine, its current size.

In 1891, the Evarts Act created circuit courts of appeal, the first exclusively appellate “inferior” courts.  The 1891 Act also gave the Supreme Court more control over its docket, to reduce the Court”s workload.  The prior circuit courts lost their appellate jurisdiction but remained in existence until the Judicial Code of 1911 abrogated those courts and transferred their trial duties to the district courts.  With the passage in 1925 of the Judges’ Bill (so named because the Justices themselves, led by Chief Justice Taft, had proposed it), most of the Supreme Court’s mandatory jurisdiction was eliminated and the Court was allowed to regulate more of its caseload via certiorari.

By that time, the federal appellate courts as we now know them were essentially in place.  Congress continued to alter the structure of the circuit courts of appeal, including by creating the Eleventh Circuit out of a portion of the sprawling and very busy Fifth Circuit in 1980 and the Federal Circuit to handle patent and certain other appeals in 1982.

The framers of the Constitution and the men who passed the Judiciary Act of 1789 would barely recognize the current appellate system.  But the Constitution largely left the structure of the appellate and other courts to Congress to “ordain and establish,” and Congress has done so.