Article I, Section 8, Clause 9:

[The Congress shall have Power . . . ] To constitute Tribunals inferior to the supreme Court.

Congress’s ninth enumerated power is to “constitute Tribunals inferior to the supreme Court” —that is, to establish lower federal courts subordinate to the Supreme Court of the United States.1 This grant of power to Congress accords with Article III’s Vesting Clause, which places the judicial power of the United States in the Supreme Court and “such inferior Courts as the Congress may from time to time ordain and establish.” 2

As explained elsewhere in the Constitution Annotated,3 the Constitutional Convention’s delegates generally agreed that a national judiciary should be established with a supreme tribunal,4 but disagreed as to whether there should be inferior federal tribunals.5 James Wilson (who later served as an Associate Justice on the Supreme Court) and James Madison proposed a compromise in which Congress would be empowered to appoint inferior tribunals if necessary, which the Convention approved.6

The Constitution thus leaves the federal judiciary’s structure—and, indeed, whether any federal courts besides the Supreme Court should exist at all—to congressional determination. Through the Judiciary Act of 1789 and subsequent enactments,7 Congress organized the federal judiciary into district courts with original jurisdiction over most federal cases, intermediate circuit courts of appeal, and the Supreme Court.

Congress’s Article I power to establish inferior federal courts, and to distribute federal jurisdiction among them, should be read alongside Article III’s provisions, which set forth the reach of federal judicial power.8 Article III also identifies certain cases in which the Supreme Court has original jurisdiction.9

Footnotes

1

See ArtIII.S1.8.4 Establishment of Inferior Federal Courts.

2

See U.S. Const. art. III, § 1; see 3 Joseph Story, Commentaries on the Constitution of the United States § 1573 (1833) (noting that the inferior courts power “properly belongs to the third article of the Constitution” ).

3

See ArtIII.S1.8.2 Historical Background on Establishment of Article III Courts; see also 3 Story’s Commentaries, supra note 2, § 1574 (reviewing the debate at the Convention over inferior federal tribunals).

4

See 1 Max Farrand, The Records of the Federal Convention of 1787, at 104 (1911).

5

See id. at 124–25. John Rutledge, for example, argued that the existing state courts—and not inferior federal courts—ought to decide all cases in the first instance with a right of appeal to the supreme national tribunal. Id. at 124.

6

Id. at 125, 127. Madison argued that the Supreme Court’s appellate workload would become “oppressive” without inferior federal tribunals. Id. at 124; see also The Federalist No. 81 (Alexander Hamilton) ( “The power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the Supreme Court in every case of federal cognizance.” ).

7

See An Act to Establish the Judicial Courts of the United States, 1 Stat. 73 (1789).

8

U.S. Const. art. III, § 2, cl. 1; see ArtIII.S2.C1.1 Overview of Cases or Controversies.

9

U.S. Const. art. III, § 2, cl. 2; see ArtIII.S2.C2.2 Supreme Court Original Jurisdiction.