Creation of the Federal Inferior Courts - Progressive Abuse

By Douglas V. Gibbs

Federal Inferior Courts

Article I, Section 8, Clause 9 authorizes Congress to constitute tribunals inferior to the Supreme Court. This means that the legislative branch was tasked with the duty to establish the lower federal courts. However, by enabling Congress to establish new courts whenever necessary, this has given some administrations an opportunity to abuse this power in order in the hopes of stacking the courts. John Adams was the first example of this abuse, when he appointed many midnight judges in order to help retain federalist power in the courts as Jefferson’s Republicans gained the White House, and the majority in Congress. Some may argue that Adams’ decision to expand the court was not as sinister as Thomas Jefferson made it out to be, for John Adams had been requesting an expansion of the judiciary for years.

President Franklin D. Roosevelt also sought to "pack" the court with justices favorable to his social policies. His animosity toward the Supreme Court emerged when his New Deal of social and economic reform via government intrusion was struck down as unconstitutional by justices that had been largely appointed by his rival Republicans.

The high court invalidated the Railroad Retirement Act of 1934, a law that had established pensions for railway workers, and the National Industrial Recovery Act of 1933. Roosevelt’s anger against the justices for their rulings led him to hold contempt for the conservative-minded court of "Nine Old Men." In January 1936, the court ruled the Agricultural Adjustment Act of 1933 unconstitutional, as well.

In 1937, Roosevelt disclosed to his aides a bill he was going to propose that was designed to reorganize the federal judiciary. The measure called for all federal judges to retire by age 70. If they failed to do so, the president could appoint another judge to serve in tandem with each one older than 70. If the bill passed, it would enable Roosevelt to appoint six more Supreme Court justices immediately, increasing the size of the court to 15 members. The Democrat dominated Congress, he believed, would undoubtedly appoint judges friendly to Roosevelt and his New Deal agenda.

The proposal never got off the ground, as Roosevelt’s explanation regarding why the proposal was necessary fell flat.

Both the federal government, and the States, have court systems. The shared power by both the federal government and the State governments to establish a judiciary is a concurrent power.

-- Political Pistachio Conservative News and Commentary