GLIDDEN COMPANY v. ZDANOK

Many of the arguments that I have prepared for this Court have been more or less discussed in the previous argument but I would like to answer some of the various questions that were put or at least to try to answer them in a way that I see them.

As Your Honors know, this case involves a controversy between former employees of the Glidden Company, the petitioner here.

It was the claim of these respondents that there was a breach of the collective bargaining agreement covering these employees while they were employed at the Elmhurst plant of the petitioner in Long Island.

When that collective bargaining agreement expired and when the plant was closed and when the employment of the employee thus terminated, a claim was then made by the employees that by reason of certain seniority rights contained in the collective bargaining agreement that they were entitled to be employed or continued in the employ of the petitioner at a new plant which the petitioner had established in Bethlehem, Pennsylvania.

They were not given this right to continue in employment with the -- the seniority rights which they claim have accrued.

The case was brought in the Supreme Court of the State of New York, and was removed by the petitioner to the United States District Court for the Southern District of New York with the claim that there was a diversity of citizenship in the requisite amount in controversy.

And now in this case of -- at the trial term which was held before the Honorable Edmund Palmieri, a judgment was entered dismissing the complaint.

An appeal was taken by the respondents to the United States District Court for the Second Circuit.

That appeal was argued before the Honorable J. Edward Lumbard, the Chief Judge of that court and a circuit judge before the Honorable J. Warren Madden of the United States Court of Claims, who have been designated by the Chief Justice to sit on the appeal in this case during that one week in February 1961.

Now, the third judge in the division which heard this appeal was Honorable Sterry Waterman of Vermont.

The result of the hearing before the appellate court was that Judge Madden wrote the majority opinion in which he reversed the lower court and remanded the case for further proceedings.

He was joined in that reversal by Judge Waterman.

The -- Judge Lumbard dissented in an opinion.

It was on the basis of the fact that Judge Madden as a judge of the Court of Claims was not an Article III judge that we have petitioned in part.

There were other reasons why we made a petition to this Court or the declaration by this Court that the Court has constituted and as the decision occurred was without jurisdiction to render the judgment against the petitioner here.

Judge Madden was appointed by President Roosevelt in 1941.

A copy of the Commission is at -- appears at page 7 of our main brief.

He was designated to the office or nominated rather to the office of the judge of the Court of Claims upon the duties and the services of the judge of that court.

In 1961, the Chief Justice in a designation and assignment which appear as an appendix to our main brief assigned that Judge Madden to sit as a circuit judge in the U.S. Court of Appeals for the Second Circuit.

There is no question presented here as to the regularity of the assignment and designation made by the Chief Justice.

There were no in -- no defects in the carrying out the regulation of the statute permitting the assignment.

It is the claim of the petitioner that the statute pursuant to which the Chief Justice maybe assigned and then designation of Judge Madden to sit in the Article III court is unconstitutional.

In that, Judge Madden was the judge of an Article I court without the constitutional protection which is granted to Article III judges under the provision of Section 1 of Article III.

Justice John M. Harlan: How do you stand under the Solicitor General's standing argument?

Is this raised in the Court of Appeals?

Mr. Chester Bordeau: We say under the cases which we have cited in our brief that the question -- there's a question of jurisdiction of -- the jurisdiction of the Court not only with respect, the Solicitor talks about subject matter.

We're talking about the jurisdiction with respect to the judges seating.

That is also an important consideration and just as important in consideration under the subject matter or jurisdiction of the subject matter of a case before a court.

That is been held uniformly, maybe raised at any time.

That is a jurisdictional defect --

Justice John M. Harlan: But you did not raise --

Mr. Chester Bordeau: -- constitutional defect.

Justice John M. Harlan: -- you did not raise it?

Mr. Chester Bordeau: We did not raise it, sir, until the petition for certiorari was presented to this Court along with request for the review of various other question which with respect to which the petition was denied.

Now, Judge Madden, as I pointed out, was appointed to the U.S. Court of Claims.

He was not appointed at any time to the United States Court of Appeals or any other district or the Article III court.

His appointment was to a court which had been declared unanimously by this Court to be an Article I court.

A court that did not have the constitutional guarantee with respect to tenure of office and compensation provided for with respect to Article III judges.

Justice Charles E. Whittaker: I'm not sure I understand just what confines you placed on phrase Article I court.

Mr. Chester Bordeau: Well, that's a very, very good question that I've asked myself that question over and over again.

And I think the answer to that question, Mr. Justice Whittaker, depending on which side the Court may feel the correct answer to be is decisive.

I have tried to frame that.

I've tried to frame it probably a little imperfectly at pages 7 and 8 of my reply brief which I would like to clarify by a statement running like this, "An Article I court is one granted by Congress the power and the function to determine judicially matters which are inherently susceptible to congressional determination under Article I and or, if I may use that phrase, to deal with those matters non-judicially which are within the power and the function of the Congress and all of which may be delegable by Congress."

That is what I gather from the various decisions which I have had the opportunity to read.

And carrying on from there to try to describe an Article III court, Mr. Justice Whittaker, follow up on your question, and Article III court on the other hand is one granted by Congress the power and the function to determine judicially cases or controversies described in Section 2.

Justice Charles E. Whittaker: Of this Court?

Mr. Chester Bordeau: This is Article III I'm describing to you now, sir.

Justice Charles E. Whittaker: But once -- but once your (Inaudible)

Mr. Chester Bordeau: It was our case ruled by a reason of a collective bargaining agreement entered into between an employer, the petitioner and the collective bargaining agent representing the employees of that employer.

There's a question of whether or not it was a state law or federal law.

We claim before this Court on our petition for certiorari that it was a federal substantive labor law question with reference to which there was a conflict in the decision that I ask this Court therefore to review.

But that petition was denied.

Now -- but that is the nature of the question.

It does not arise under the Constitution.

It may have a reason as we claim under the laws of the United States.

Does that answer you Mr. Justice Whittaker?

May I proceed then with the --

Justice Charles E. Whittaker: Yes.

Mr. Chester Bordeau: What I gather from the cases as to what an Article III court is.

And this will be slightly repetitive.

And Article III court is one granted by Congress the power and the function to determine judicially cases or controversies described in Section 2 of Article III arising under the Constitution or federal laws or arising under other laws in cases of diversity of citizenship which are not inherently susceptible to congressional determination.

Now, I think those two definitions describe the differences and the characteristics of an Article I and an Article II court.

A question which is posed by Mr. Justice Frankfurter in the Lurk case in asking what are the characteristics of the different courts in which we are dealing.

I think this definition, which I have submitted in this form, is an attempt to describe what the courts have said in making the distinction between Article I and Article III courts.

And I think, it is a distinction which is solved for there is no reason in my mind why Congress should not have the privilege and the right to have courts or tribunals which are subject to its whim, we call it that with respect to their tenure of office, with respect to their compensation.

If they -- because of this fact that this courts which are created by Congress under Article I had been created for the purpose of carrying out the powers and the functions of Congress and not any other branch of Government, it was for the purpose of carrying out the power and the function of Congress of the Court of Claims was established in 1854 or 1855.

As a matter of fact in the debates which appeared in the congressional glow.

It was emphasized throughout the many and many pages of discussion with respect to the establishment of the Court of Claims that it was being created because of the very heavy duty of burden which have been placed upon the Congress in passing upon bills relating to compensation and debts owing by the United States to individuals and others.

Justice Potter Stewart: Mr. Bordeau, this was a lawsuit for violation of collective bargaining agreement, was it not?

Justice Charles E. Whittaker: That's correct.

Justice Potter Stewart: Are those then involved something over which is the function and power of Congress?

What I have in mind, for example, that in the enactment of the Taft?Hartley Act in 1947.

It was proposed that violations of collective bargaining agreements be made unfair labor practices subject to the National Labor Relations Board.

Mr. Chester Bordeau: This was not an unfair labor practice case.

Justice Potter Stewart: Well, but no -- the Congress can do that but you're suggesting that that's -- that would have been somehow improper or unconstitutional.

Mr. Chester Bordeau: I'm saying --

Justice Potter Stewart: I don't understand why this particular lawsuit has to be in an Article III court even under your very definition.

Mr. Chester Bordeau: Because I say this, that the determination, we've got to keep in mind of course that no one has agreed to the position which we've taken that this is a federal substance of labor law problem.

I tried to persuade this Court that the (Voice Overlap) --

Justice Potter Stewart: Why was that in the federal court?

Was there a diversity of citizenship?

Mr. Chester Bordeau: Yes, diversity of citizenship.

So, all we have to do is defend it with the question under --

Justice Potter Stewart: (Voice Overlap) under Section 301.

Mr. Chester Bordeau: -- rights and obligations of contracts.

Justice Felix Frankfurter: Suppose you're right -- suppose you are right on the assumption that you're right, would you good enough to response to Justice Stewart's question namely that it arose under law of the United States?

Mr. Chester Bordeau: Then -- I -- I didn't get that.

Justice Felix Frankfurter: That it did arise --

Mr. Chester Bordeau: Did arise.

Justice Felix Frankfurter: -- the law of United States as you contend it.

On that assumption, what is the answer that --

Mr. Chester Bordeau: And if --

Justice Felix Frankfurter: -- Justice Stewart put you?

Mr. Chester Bordeau: And if Mr. Justice Stewart says that Congress were enact -- to enact the law saying that a refusal or rather a breach of a -- of the collective bargaining agreement was an unfair labor practice that I would say we are -- we are wrong in our position here.

I would have --

Justice Potter Stewart: (Voice Overlap) to doing that --

Mr. Chester Bordeau: -- and rather (Voice Overlap).

Chief Justice Earl Warren: You would say what Mr. Bordeau?

Mr. Chester Bordeau: That we are wrong in our position here that we are -- we have been denied of our constitutional rights.

I would have to say that in answer to your question.

Justice Felix Frankfurter: Mr. Bordeau, I think your line of argument shows how a stray one can go, from my point of view, how -- how foggy the whole business is which we tried to discuss these matters nearly as a matter of logic.

And for this reason, the judicial power of Article III, the judicial power shall extend through all cases arising under this Constitution, the laws of United States.

Now, Article III says the judicial power should extend to all cases arising under the laws of United States.

No legislative court had any jurisdiction except under cons -- as to controversies arising under the laws of United States.

This one was merely dealing with English to its construction of language --

Mr. Chester Bordeau: I --

Justice Felix Frankfurter: -- one would have, isn't that true?

Mr. Chester Bordeau: I just wonder about the --

Justice Felix Frankfurter: How could a -- how could a legislative court come in -- come in to being --

Mr. Chester Bordeau: Because --

Justice Felix Frankfurter: -- (Voice Overlap) legislative act?

Mr. Chester Bordeau: I think there are many claims that are made by citizens with res -- under the Constitution of the laws of the United States which come under the power of Congress to decide.

That is, for instance, the claims of payments of the debts of the United States.

Justice Felix Frankfurter: We're not dealing with this congressional distinction?

I'm taking your (Voice Overlap)

Mr. Chester Bordeau: No, I'm -- that's correct.

Justice Felix Frankfurter: Now --

Mr. Chester Bordeau: I had enough (Voice Overlap)

Justice Felix Frankfurter: The judicial power shall extend to all cases arising under this Constitution the laws of United States.

Mr. Chester Bordeau: Yes.

Justice Felix Frankfurter: What I'm saying -- what I'm putting to you is this.

If one merely deals with the Constitution over a bunch of conglomeration of words, how wrong we can go?

One can be thinking purely and logically but one can go awfully wrong and this is my view.

Because if that's all you do, then every legislative court, no legislative court can came into be.

No legislative court has any authority except by virtue or what Section 2 calls arriving under this Constitution, the laws of the United States, therefore, the whole conception which runs through from the beginning of Canter since American Insurance Company against Canter.

The very distance of legislative courts apart from Article III courts is in violation of the mere English of the Constitution.

Mr. Chester Bordeau: Well, I don't know of that power sir.

Having --

Justice Felix Frankfurter: How about the -- deal with this question that I've put to you that Article III cover -- says the judicial power shall extend to the laws of -- to all cases arising under the Constitution and laws.

And if Article III defines the tenure of the judges, Article III, I think -- I think, if one has to guess on the materials we've got, I think if one had to do that and live all history and send history to the wind, one has the right to conclude that they meant Article III to be the inclusive, comprehensive provision for establishing courts of the United States.

Mr. Chester Bordeau: Well, I think an answer to that would be --

Justice Felix Frankfurter: I'm not saying that therefore I reached the logical conclusion --

Mr. Chester Bordeau: Well --

Justice Felix Frankfurter: -- as you reach the opposite conclusion.

Mr. Chester Bordeau: I think we all have the --

Justice Felix Frankfurter: Because this isn't only a case where a page of history is worth a volume of logic.

It's the case where three volumes of history as against one volume of logic.

Mr. Chester Bordeau: Under Article I, the Congress has the power to pay the debts of the United States.

And in doing so, it will necessarily have to pass upon and considered constitutional provisions and the provisions of -- of various legislation that maybe enacted by Congress but that still does not take away from Congress under Article I, the right to pay the debts of the United States and in doing so -- and in doing so to set up those arms of Congress that may -- that may deem appropriate --

Justice Felix Frankfurter: Yes, but if it sets up --

Mr. Chester Bordeau: -- for it to determine those questions.

Justice Felix Frankfurter: But if it sets up anything like a court, meaning adjudicatory body governed by the procedures that are familiar to us composes of judges, etcetera.

If it sets up a court, then I put it to you that just reading the Constitution as an -- an informed professor of the English literature which the Lord knows I'm not, I should think its clearly required that it come -- that it come within from Article III --

Mr. Chester Bordeau: Well --

Justice Felix Frankfurter: Because that's what the judicial power extends to.

Mr. Chester Bordeau: Mr. --

Justice Felix Frankfurter: Any case arising under the laws of the United States that that comes into being only when Congress chooses not to have the Secretary of the Treasury or the President make those decisions.

But once they wanted to be subjected to adjudication and therefore, of court then, as a matter of English, as a matter of reading the Constitution, the judicial power extends to that you can have only one type of court which is --

Mr. Chester Bordeau: Well, of course --

Justice Felix Frankfurter: -- all against the history of the United States.

Mr. Chester Bordeau: Of course, the Congress in the exercise of its powers under Article I is subject to all the other provisions of limitation --

Justice Felix Frankfurter: Well, I take that for granted.

Mr. Chester Bordeau: -- they are to deem the Constitution.

Justice Felix Frankfurter: -- I don't have to recite the liberty that I believe in the Bill of Rights everyday in order to believe in it.

Mr. Chester Bordeau: But I -- in Your Honor's statement, it seems to be -- it seems to me that one of the pause runs through it as being more or less conclusive in your mind is a the fact that a court is creative.

Now, I think the term "court" in itself does not necessarily decide the question.

You may have a court under Article I.

You may have a court under Article III.

You may call it a tribunal.

You may call it an agency.

But the fact still remains that a court is not the determining factor in my mind because a court has certain powers.

The court has certain functions.

And I think in determining this, what are those powers and what are those functions.

The way you would tell the character and the characteristics of a person is by what he does, what is he empowered to do, not what he is called but what he does.

Justice Felix Frankfurter: But I agree --

Mr. Chester Bordeau: That is determining --

Justice Felix Frankfurter: -- I agree with Mr. Gressman because the decisions are clear that there are matters that come before the courts of the United States everyday, the unquestioned courts.

What everybody calls Article III courts that come in question before those courts everyday and questions come before this Court which could have been taking entirely out of judicial determination.

Mr. Chester Bordeau: Well, I think that maybe so.

But that doesn't -- that doesn't prevent the conception of the disinc -- distinction between Article I and Article III courts and those that are performing functions of Congress.

Justice Felix Frankfurter: My point --

Mr. Chester Bordeau: Those -- this Court --

Justice Felix Frankfurter: My point is that if you (Voice Overlap)

Mr. Chester Bordeau: Where is the line (Voice Overlap) where do you draw the line?

Justice Felix Frankfurter: My point is if you read the Constitution to talk about Article I court is to talk mumble jumble as a matter of logic.

I'm not talking as a matter of history.

As a matter of history, there it is like a lot of other things.

Mr. Chester Bordeau: Well, that is -- this test to which I refer is the test which I think we must have if we're going to determine that they are legislative courts in Article I courts, they are Article III courts.

There is going to be a way of our deciding which is an Article I and which is an Article III because we would never know.

I think there's sometime that we ought to know what kind of court it is.

Justice Hugo L. Black: Do you think it would be impossible to read it and say to the court that Congress has the power to carry out certain powers under Article I power, and the mind with that, the kind of courts that Article III provides?

Mr. Chester Bordeau: I think that Congress can, in the exercise of its powers under Article I, may give the execution of those powers to Article III courts.

Justice Felix Frankfurter: The Article I --

Mr. Chester Bordeau: But I don't think that in itself would make the court, an Article III court because, in my mind, the determining test is what power is being used.

What power under the Government is being used?

Justice Hugo L. Black: But is that in the Article III and Article I court if that's the way you're going to have to refer to it as articles?

Mr. Chester Bordeau: Well, the way my mind works on it is Article I or Article III.

There have to be a division of -- of -- the type of court that you have.

Justice Felix Frankfurter: Mr. Bordeau, we're always admonished to be realistic.

Now, the starting point of this whole legislative court business is American Insurance Company against Canter.

And then this Court was confronted with a very practical problem namely, what to do with Florida?

Nobody knowing what will become of Florida.

How long it will remain a territory?

When it will be called into a state and should this Court reach the conclusion that Article III doesn't limit the power of Congress in order to deal with newly acquired territory to establish courts and not give them life tenures.

That's the source of all these business.

In short, what they did, though they didn't say it in words and to say the necessary improper clause of Article I, enables Congress not only to it -- of this country, not only to acquire a new territory but to make effective its Government.

And one way to having Government is to having courts.

But they shrank from requiring life tenure judges in the new terri -- in the Louisiana purchase.

That's the history of this business and unless we remember that all of this is a metaphysical obfuscation.

Chief Justice Earl Warren: We'll recess now, Mr. Bordeau.

Print this transcript Transcript:

Argument of Eugene Gressman

Chief Justice Earl Warren: Number 481, Benny Lurk, Petitioner, versus the United States.

Mr. Gressman.

Mr. Eugene Gressman: Mr. Chief Justice, may it please the Court.

As this case comes back here once again, it is confined to the constitutional issue to wit -- whether Article III of the Constitution authorizes or permits the assignment of a retired judge of the Court of Customs and Patent Appeals to sit on the District Court for the District of Columbia.

And thereby, to preside over and render judgment against a petitioner on trial for a felony as defined in the District of Columbia Code.

Well, facts in this case are quite simple (Voice Overlap) --

Justice Felix Frankfurter: Does it make a difference whether it's felony or misdemeanor?

Mr. Eugene Gressman: Well, it only makes in the sense that felony is (Voice Overlap) --

Justice Felix Frankfurter: You're assuming misdemeanor is triable before a court and jury, would it make a difference?

Mr. Eugene Gressman: Not at all, Your Honor.

Justice Felix Frankfurter: Alright.

Mr. Eugene Gressman: Now the -- as I stated, the facts are simple and without contest.

This petitioner, Benny Lurk, was indicted, tried before a jury and convicted of the crime of robbery as defined in the District of Columbia Code.

He was -- his trial was presided over and judgment was rendered against him by Judge Joseph R. Jackson.

Trial took place on March 22, 1960.

Now, Judge Jackson had then appointed to the Court of Customs and Patent Appeals in 1937.

He sat on that court for more that 14 years and retired there from in 1952.

Several years thereafter, began a series of assignments of Judge Jackson pursuant to Section 294 (d) of Title 28 of the U.S. Code which expressly permits and authorizes the assignment by the Chief Justice of the United States of judges, retired Judges of the Court of Customs and Patent Appeals to sit on District Courts around the country.

The particular assignment in question here and the one which covered the period during which petitioner's trial took place, delegated or authorized Judge Jackson to sit on the District Court for the District of Columbia for the entire year of 1960.

And in that connection, it is important to note that the assignment made of Judge Jackson for the year 1960 did not designate him to sit as one of the -- or in place of any of the regular 15 judges composing the District Court of the United States, simply authorized him to fill an office so-called of the Judge of the District Court of the United States for the District of Columbia, an office which was created solely by virtue of the assignment, made pursuant to Section 294 (d).

And the petitioner's challenge in this case goes to the constitutionality of that statute which purports to authorize this office of District Judge of the United States by virtue of an assignment of a retired judge of the Court of Customs and Patent Appeals.

We, therefore, attacking the de jure as well the de facto in nature of this Judge's participation as a Judge of the District Court.

And under these circumstances as we developed more fully and I reply brief in this case, the first defense offered by the Government in this case in terms of de facto doctrine is no answer to the challenge, the constitutional challenge made by petitioner in this case that no office could exist by virtue of an assignment under this statute.

Now, before I get to the heart of the constitutional issue, there are several preliminary considerations which I would like to submit, which I feel are critical to an understanding of that constitutional issue and which form the context within which this issue must be viewed.

Now, first such consideration is the fact that this petitioner is here alleging a personal constitutional right as an inhabitant of the District of Columbia to have his trial in the District Court, heard by a judge authorized to execute Article III judicial power and author -- and having the constitutional immunity or independence of action which Article III gives to judges of Article III courts.

And that to deny him that claim, that right, we suggest, is to deny this petitioner due process of law in his trial and conviction.

Now, this personal claim of the petitioner, this personal -- (Voice Overlap) --

Justice Felix Frankfurter: Let me ask you.

If you're right, why do we have to bother about due process?

Mr. Eugene Gressman: Well, I think it -- it automatically follows.

The claim is Your Honor that the provisions of Article III, Section 1 relating to the independence of the federal judiciary in terms of salary and tenure of office are designed primarily, I suggest, for the protection of the litigants and the defendants who are called before Article III courts and they are not as this Court said in Evans against Gore and reiterated in the O'Donoghue case.

They are not a private grant to the judges themselves.

Justice Felix Frankfurter: Do you think the life tenure was put in the Constitution on due process consideration?

Mr. Eugene Gressman: No, Your Honor.

I think it was put in there primarily to -- as the Evans against Gore points out that in order to ensure that the guarantees and other provisions of the Constitution are properly administered and applied by the judges of Article III courts, that it was absolutely essential that the judges be given constitutional independence of action and they could only do that by giving them life tenure and by protecting them from any diminution in their compensation.

Now, I think necessarily follows from that that the litigants and the defendants are entitled to that constitutional independence on the part of those who are sitting in judgment of them.

Justice Felix Frankfurter: If there is no valid court, you don't have to bother about due process, do you?

You have to bring everything under due process.

Mr. Eugene Gressman: No, Your Honor.

I think it -- it is one way of expressing it but I think if there is no valid Article III court here or no valid Article III judge, that puts an end to it.

But I think that one way of saying that from another angle is simply that there's been no due process accorded him.

But I don't want to pursue that situation because I think as you say, the -- the complete answer is if I am right, law in the fact that this Judge was not authorized under the Constitution to sit in this case or to render judgment.

In that respect, I submit further that it is no answer as the Government seems to suggest that Judge Jackson has life tenure by virtue of a congressional enactment in 1930.

Whatever statutory protections of tenure or salary that Judge Jackson may have is no substitute for the constitutional requirements, the constitutional protection which can only be given to an Article III judge and simply because Congress is seen fit to give life tenure to a so-called non-Article III judge does not thereby satisfy the constitutional claim which I am here asserting, a claim which requires and necessitates that the life tenure and the protection against salary compensation diminutions come from the Constitution from Article III, Section 1 and not from any statutory enactment.

And I might say that as I will develop later, that Congress in this instance has demonstrated an ability and a constitutional right to cut the salaries of judges such as Judge Jackson as they did in fact in 1932.

But moreover, this constitutional claim which petitioner is here asserting is one which very definitely can be raised and pursued by this petitioner as an inhabitant of the District of Columbia because the O'Donoghue case completely answers any contrary claim by demonstrating and ruling that District of Columbia inhabitants are not less fortified by the guarantee of an independent judiciary than in other parts of the union and that they too like the inhabitants of all the other 50 states, have the right to have their cases arising under the Constitution and laws of the United States heard and determined, I'm quoting, “By federal courts created under and vested with the judicial power conferred by Article III."

Justice John M. Harlan: The Court of Appeals didn't reach the constitutional question.

Mr. Eugene Gressman: Well, Your Honor --

Justice John M. Harlan: Do we have to?

Mr. Eugene Gressman: They did reach the constitutional question.

I'll be glad to examine into that at this point.

Now, their answer to this claim which I am asserting, which is a constitutional claim by this petitioner, was that regardless of what might be said with respect to Article III of the Constitution, the complete answer is to be found.

They said in another section of the Constitution to with the district clause of Article I which is in Section 8 Clause 17 of Article I.

So they said, “We will avoid any determination of your claim under Article III because we feel that the complete answer is to be found under the District of Columbia Clause.

Now, that District of Columbia Clause merely reads that the Congress shall have exclusive jurisdiction to legislate for the National Seat of Government or the District of Columbia.

And it has been viewed as a rather plenary congressional power.

Well, be that as it may, the complete answer to the -- to the analysis rendered by the Court of Appeals below on that ground again is to be found in the O'Donaghue case in 289 United States, which demonstrates that that District of Columbia Clause is not to be read in a vacuum and it is not inconsistent with the application of Article III of the Constitution.

Moreover, this Court said in O'Donaghue, it is not to be used and I quote, “To destroy the operative effect of the judiciary clause namely Article III within the District of Columbia.”

Now, that means very simply this, that if petitioner is right in asserting that Article III of the Constitution prohibits this assignment and requires that this case be heard and determined by an Article III judge, then it is no answer to that claim that the District of Columbia Clause provides any type of an answer because the two clauses are in no way inconsistent and the District of Columbia Clause is not to be used to prevent the operative effect of Article III.

In other words, both the District of Columbia Clause and Article III must be read together, both of them must be applied and if one of them namely Article III prohibits this assignment, that is the end of the matter.

There is nothing in the District of Columbia Clause which would override or make inapplicable the provisions of Article III.

Justice Felix Frankfurter: Mr. Gressman, is there -- just confirmed an impression I have or information I have as a matter of fact, the assigning of Chief Justice to courts throughout the country, either the District Courts or Court of Appeals, but let's stick to District Court trial, jury trial, is the assigning statutory authority given to the Chief Justice differentiate between judges of the Court of Customs Appeal and judges of the Court of Claims?

Mr. Eugene Gressman: Well, I think there are different subsections but I think --

Justice Felix Frankfurter: I don't -- I mean the power?

Mr. Eugene Gressman: No, the power is there saying --

Justice Felix Frankfurter: Well, that -- whatever you -- whatever you may be arguing as to the particular authority of power or sanctions derivable from the District of Columbia Clause of the Constitution; the purpose of the sitting in the District of Columbia wouldn't carry you, that wouldn't take care of, object the right to assign at another district outside of the district.

Mr. Eugene Gressman: No, Your Honor.

It is a unique type of argument that has been advanced and has been determined by the Court of Appeals solely on the basis of the assignment to this particular District Court.

Justice Felix Frankfurter: That's all they had before them.

Mr. Eugene Gressman: That's right, Your Honor.

Justice Felix Frankfurter: And I'm not questioning the naturalness of the propriety or the correctness for chance of dealing with the situation that had before them indeed I'm flouted.

But for purposes of argument, I just want to know would the problem be -- you couldn't -- this argument couldn't be made if which has just a statue has been assigned to a trial in the Southern District of New York.

Mr. Eugene Gressman: Certainly, it could not be sought to be justified in terms of the District of Columbia Clause.

My suggestion or argument is, however, that there should be and must be no difference that the O'Donoghue case has definitively decided that there is no difference in this claim or this right as between district inhabitants and inhabitants of New York.

And therefore I say, we get back to the original proposition and it is as if -- in effect as if these were made to another District Court in the United States.

Justice Felix Frankfurter: But so far as this case is concerned, file the case that you're charged and we are charged, we may move simply within the narrow confines or what the Court of Appeals of the District decided.

I'm not saying with its conclusion but we may --

Mr. Eugene Gressman: Yes, indeed --

Justice Felix Frankfurter: -- may restrict the problem to its narrow confines.

Mr. Eugene Gressman: Of course Your Honor, and there are some special problems with respect to the District of Columbia courts which do not exist with respect to the Federal District Courts and any other parts of the country.

But in this respect, with respect to the right to have your case heard and determined by an Article III court, the O'Donoghue case has definitively said that there is no difference and if there -- if there are any distinctions to be made --

Justice Felix Frankfurter: And the O'Donoghue case itself concerned the District.

Mr. Eugene Gressman: That's exactly right and --

Justice Felix Frankfurter: And therefore --

Mr. Eugene Gressman: -- and I suggest and I have raised as one of the points and issue in this case, in the petition for certiorari that the assumption made by the Court of Appeals that this assignment might well had been invalid if made to a Federal District Court outside the district, but they said it would, it is perfectly permissible by virtue of the District of Columbia Clause.

I suggest that it is an issue and it raises serious --

Justice Felix Frankfurter: But why --

Mr. Eugene Gressman: -- constitutional questions as to the equality in the administration of federal justice if that assumption of the Court of Appeals be accepted.

And it's those questions of equality of administration of the justice and equality in the rights of the inhabitants of the United States were question which the O'Donoghue case sought to put to rest and I suggest did put to rest completely and therefore, completely form an answer to the analysis, to the assumption and to the ruling of the Court of Appeals.

Justice Felix Frankfurter: It required the constitutional amendment to secure equality for the people in the District.

Mr. Eugene Gressman: Well, the O'Donoghue case pointed out that when this Constitution was formulated, there was no District of Columbia.

It was a District of Columbia was formulated several years thereafter from the States of Maryland and dis -- and Virginia.

And that the inhabitants, the original inhabitants of what is now the District where on an equal footing with the inhabitants of the rest of the United States and that this equal footing in effect has never been destroyed.

There was no indication in the forming in the District of Columbia that the inhabitants were meant thereby to be stripped of the rights which were given to them by virtue of the creation and adoption of the Constitution.

Justice Felix Frankfurter: But there was an anticipation of the Constitution or specific anticipation that a district would be created --

Mr. Eugene Gressman: Well, that --

Justice Felix Frankfurter: -- something called the capital.

Mr. Eugene Gressman: That is true but there was un -- uncertain where that would be.

But in any event, no --

Justice Felix Frankfurter: What I'm saying --

Mr. Eugene Gressman: there is --

Justice Felix Frankfurter: -- is that one would have to swallow a lot, swallow everything that was said in O'Donoghue.

Mr. Eugene Gressman: Well, I would suggest Your Honor that in this respect, I have that the O'Donoghue case seems to me unanswerable in terms of its determination that with respect to this kind of a right or to have cases heard by Article III judges, there is no practical or let-alone constitutional reason for making such a discrimination against the inhabitants of the District of Columbia because you have an Article III court in the District of Columbia.

And why do you -- same as you have in Article III courts in other Federal Districts around the country.

Justice Felix Frankfurter: You're assuming the whole question in the implication that because you have an Article III court therefore you have to have one?

Mr. Eugene Gressman: Well, I say that, I'm not saying that you have to -- that is not the question here whether you have to have one in the District of Columbia.

The fact is that you do have one and the O'Donaghue case so ruled.

Justice Felix Frankfurter: But you do have one but you don't have to have one for the District of Columbia.

If justice may be administered by judges who do not have life tenure and whose salary go to a gross aspect of the Administration of Justice and on salary but not immunized against diminution.

If you may have that and that has been constitutional practice, but I do not know how long in the beginning of time, then my question arises, why do we have to travel outside the purposes of this case --

Mr. Eugene Gressman: Well --

Justice Felix Frankfurter: -- to namely where the judge was assigned merely to the District.

In this case, why do we have to travel outside the bounds except by the Court of Appeals and practically of course, that's all decided.

It takes -- it doesn't take care of contingencies.

If the Chief Justice confronted with an application for sua sponte there's a need to judge in some district, we naturally would pause if we don't -- if this isn't decided in sending a Court of Custom Appeal man to some other place than district, if that's all what would be decided in this case.

If he had only the direction of the Court of Appeals just as a practical matter as you suppose you thought.

But I'm suggesting that as a matter of the adjudicatory requirements of this case, do we have to travel outside as Justice Harlan asked you a little while ago outside of the scope set by the Court of Appeals?

Mr. Eugene Gressman: Certainly, one does not have to travel beyond the scope of the fact that this involves an assignment to the District of Columbia Court but I do not concede that there's any lack of a constitutional requirement that a case here in the District of Columbia for this District of Columbia Court be heard other than by a non-Article III judge.

Justice Felix Frankfurter: And as a matter -- I also appreciate why you want them invoked, why you press due process, I understand that.

Mr. Eugene Gressman: Well, I'm only saying Your Honor that under the -- as I read the provisions of Article III of the Constitution, as I read the cases in this Court, going back particularly to Evans against Gore and to as interpreted and applied in the O'Donoghue case, simply is that this is a universal right accorded to inhabitants of the District of Columbia as well as inhabitants of other parts of the country.

Now, true enough?

Justice Felix Frankfurter: Well how can you say that when both -- I don't know how many, almost from the beginning of time, trials from the District of Columbia were not have before Article III judges.

Meaning by that, judges who had life tenure with a non-diminishable salary, how can you say that and the constitutional practice or the practice has been ever since the creation of this District?

Mr. Eugene Gressman: We are confronted seems to me with the -- with the ruling of this Court in the O'Donoghue case that this District Court and the Court of Appeals are constitutional Article III courts.

Now, what was the situation before that is somewhat confused but at least since the O'Donoghue case, there has been no question.

But that this Court, the District of Columbia is basically and primarily an Article III court and its judges are entitled and do have the constitutional protections afforded by Article III.

Justice Felix Frankfurter: If there are Article III courts, then what's the vice?

Mr. Eugene Gressman: Pardon?

Justice Felix Frankfurter: If they are Article III courts then what's the trouble?

Mr. Eugene Gressman: The trouble is Your Honor, that Judge Jackson was not constitutionally equipped or authorized to exercise the Article III functions of that District Court which is precisely the heart of the constitutional issue which I --

Justice Felix Frankfurter: You mean because at the time he was appointed, he wasn't such?

Mr. Eugene Gressman: Well, I would like to develop the argument in some length in answer to that question because I don't think there's a simple short answer that can be given to it.

It really involves the whole essence of the constitutional claim and the constitutional issue which is at stake here.

And all of these point, I merely suggested that the District of Columbia Clause and the fact that this is essentially as you point out, the District of Columbia problem, does not provide the complete or the -- any part of the answer to the ultimate constitutional issue which must be faced here.

Justice Felix Frankfurter: Is this Court in your view today that February 21st, 1962, is that court today an Article III court?

Mr. Eugene Gressman: The District Court?

Justice Felix Frankfurter: No, the Court of Customs Appeal?

Mr. Eugene Gressman: No, it is not, Your Honor.

Justice Felix Frankfurter: It is not.

Well, I thought you said the Court of -- O'Donoghue case said it was?

Mr. Eugene Gressman: No, the O'Donoghue case said that the District Court of the -- Federal District Court and the Court of Appeals of the District of Columbia are constitutional courts.

Justice Felix Frankfurter: Haven't you got trouble with that if it's a constitutional court, how can it exercise non-constitutional functions?

Mr. Eugene Gressman: Well, the --

Justice Felix Frankfurter: And if it can, it can only because of the District of Columbia article?

Mr. Eugene Gressman: That's right Your Honor.

Justice Felix Frankfurter: Both of them admix in the district where you cannot admix anywhere else in the country.

Mr. Eugene Gressman: That is perfectly right Your Honor.

Justice Felix Frankfurter: So that the --

Mr. Eugene Gressman: That's what the O'Donoghue case said.

Justice Felix Frankfurter: -- District of Columbia Clause has functions that must be faced.

Mr. Eugene Gressman: But they're not functions which are called into play in this case.

There has been no suggestion made by the Government in this case.

There was no suggestion made in the O'Donoghue case that the non-Article III functions of this District Court which are conferrable upon it by virtue of the District of Columbia Clause ever involved criminal proceedings.

Justice Felix Frankfurter: Don't you think O'Donoghue and Williams both require critical analysis if they're constitutional courts, how can they be given non-constitutional fact functions and if they can be given non-constitutional functions then you got something that's very different from the district courts of the United States elsewhere?

Mr. Eugene Gressman: That is correct Your Honor, the way the Williams and O'Donoghue cases were decided.

But I suggest again Your Honor that the basic ruling in O'Donoghue was that while certain nonjudicial functions could be given the District Court by virtue of the District of Columbia Clause, those were certainly nonjudicial actions such as the right to appoint a school board, the right to give certain advisory opinions, the right to perform certain administrative matters to render probate and divorce proceedings.

But nowhere was there ever any suggestion and it is significant the Solicitor General does not suggest in his brief that one of those nonjudicial functions is the trial at the criminal proceeding such as we have in this case.

If ever there was a proceeding which invoked and call forth and necessitated the exercise of Article III functions of this District Court, it was this trial of this petitioner for the -- a felony under the District of Columbia Code.

And I suggest that it is impossible from any standpoint to say that this trial of this petitioner involved anything other than the exercise of this Court's Article III judicial functions as defined in the Constitution.

The criminal power is the very essence of judicial power.

Justice Felix Frankfurter: Does anybody sug -- why should anybody suggest that the trial over which Justice Jackson presided for as unlike or in anyway unlike in the sub -- subject matter and in the procedure was unlike the trial in the Southern District of New York or the District of Massachusetts?

Mr. Eugene Gressman: Well, --

Justice Felix Frankfurter: That isn't in controversy, is it?

Mr. Eugene Gressman: Well, the amicus judges in this case have suggested that kind of a distinction by virtue of the argument that this type of jurisdiction arise in over criminal crimes specified in District Columbia Code could have been given to the municipal court which is a legislative court.

Justice Felix Frankfurter: But if --

Mr. Eugene Gressman: But it -- it did not and I don't think the argument is sound.

Justice Felix Frankfurter: But if -- if that argument has any validity then this Court has no jurisdiction.

Mr. Eugene Gressman: If this were a legislative proceeding --

Justice Felix Frankfurter: If this were non-Article III judicial case in the District Court then we must dismiss this case --

Mr. Eugene Gressman: I would think so.

Justice Felix Frankfurter: -- because we can't review a nonjudicial action by anybody.

Mr. Eugene Gressman: I would think that's exactly right Your Honor and many of the cases --

Justice Felix Frankfurter: Better examine the starting point of all these business.

Mr. Eugene Gressman: Well, that brings us then again to the very heart of the constitutional issue in this case.

And I start with the assumptions and the decisions rendered by this Court.

With respect to the two tribunals which are in issue here and which must be compared, the Bakelite and the Williams cases decided that the Court of Customs and Patent Appeals was a legislative or Article I tribunal deriving no function or jurisdiction in its creation from Article III of the Constitution.

And on the other hand, we have the O'Donoghue case saying that while the District Court for the District of Columbia may be given certain non-Article III functions which are not in issue here.

It is primarily an Article III court created thereunder and endowed with all the powers and functions which are given to a -- to a court by Article III and its judges are endowed with the judicial independence which the first section of Article III gives to judges of Article III courts.

So therefore, we have posed very clearly, the basic question whether the judge of this legislative court as so described in the Bakelite and Williams cases can be assigned over to a constitutional court such as the district court below to pursue as to perform the Article III functions necessitated by the trial of a criminal case therein.

Now, I suggest Your Honors that this necessitates in the first place an understanding of what is meant by the judicial power of the United States as expressed in Article III and it called forth to be exercised in this proceeding in the District Court.

And I suggest Your Honors that what Article III judicial power basically means is this.

That it is that function, that judicial function which cannot in anyway be delegated to or exercised by any other arm of the Government.

We get back here basically to a question of separation of powers.

There is a certain core of judicial action and jurisdiction which is conferred upon the Article III tribunals and this District Court in particular which cannot be exercised by any other organ of the Government, be it administrative, be it legislative or executive.

Now, this seems to me to call forth the whole host of considerations that we normally associate with the courts of law and equity.

The -- what Justice Frankfurter has described in several occasions as jurisdiction over matters such as where the traditional concern of the courts at Westminster prior to the establishment of the Constitution.

This calls forth the exercise of that judicial power over cases and controversies which involved the use of the federal rules or civil and criminal procedure which incorporate all the provisions of the jury trial system and which involved all the other traditional powers of equity and law, the substantive and procedural elements of Title 28 and Title 18 of the U.S. Code.

Those functions which by the very nature are so judicial in nature that they cannot be given by Congress to any other agency of the Government, and unless a court has that non-delegable power, the judicial power, which it alone can exercise, then it is not a court created under or exercising Article III judicial power.

And I suggest that the most outstanding example of that non-delegable power which is not susceptible of exercise by any other organ of the Government is this criminal proceeding instituted against this petitioner.

It is inconceivable that this petitioner could have been tried and convicted by an administrative agency, by an Executive Department or by Congress itself.

This was something that was not susceptible of judicial determination other than by an Article III tribunal with all the traditional inherent powers that it alone can exercise.

And this District Court has that power obviously and it did exercise it in this case, and it therefore necessitated that it have a judge qualified constitutionally to administer this Article III judicial power.

Now, I want to hasten to add an important qualification on this or an additional power which the District Court has here which I think has led to the confusion in this case, that Article III courts also have power.

In addition to this core of non-delegable judicial power, they also have power to render judgments over cases and controversies which are equally determinable by other agencies of the Government.

Now, the Government's brief has emphasized and the all parties have emphasized very significant statement made over a hundred years ago in Murray's Lessee against Hoboken Land Company where Mr. Justice Curtis stated a very obvious and important consideration about the jurisdiction arising other than from Article III.

And I quote, he said, “That there are matters involving public rights which may be presented in such form that the judicial power is capable of acting on them.”

That means Article III judicial powers are capable of acting on them.

But which are also susceptible of judicial determination but which Congress may or may not bring within the cognizance of the courts of the United States as it deems proper.

Now, this means and I suggest this comes from the very heart of this case.

This means that there are functions under Article I of the Constitution given to Congress and in the execution of those powers are called forth certain judicial determinations.

And in the -- said determining, how those determinations shall be made?

Congress has a choice.

It may withhold to itself the power to make those determinations as it has done in historically, involving claims against the United States, the power to pay the debts of the United States.

It may withhold it to itself through private legislation or it may give it to an Executive Department to determine or an administrative agency or it may give it to a specialized tribunal such as the Court of Claims or it may also give it to an Article III court.

Justice Felix Frankfurter: Mr. Gressman, you know best how to make use of your time.

It does occur to me that the line you're now taking doesn't call for any use of time namely, that the -- the process for determining guilt or innocence under a charge of crime of a federal statute is something that must be -- must be performed, must be exercised by a court.

It couldn't be transferred to the Secretary of Commerce or there -- from health and welfare.

I don't see --

Mr. Eugene Gressman: Well --

Justice Felix Frankfurter: I can't imagine that there's any contest on this question.

Mr. Eugene Gressman: There is a contest.

Justice Felix Frankfurter: And the problem is, the problem is whether this was a tribunal of law in view of the strange hybrid that the District Court -- the courts present that are involved here but nobody questions at least I should be shocked intellectually somebody did question, that you can deposit the task of determining whether a man is guilty on the penal statute to a tribunal other than a conventional court.

Mr. Eugene Gressman: Your Honor --

Justice Felix Frankfurter: If I'm wrong about that, I should be delighted to be informed?

Mr. Eugene Gressman: Well Your Honor, the contest does get all not quite to the extent which you just stated it, but it does get to this point and I think it is relevant to this extent.

The argument is made by the Government that the Court of Customs and Patent Appeals also is an Article III tribunal and as the Bakelite and Williams case said to the contrary, they should be overruled.

Justice Felix Frankfurter: But I understand that argument.

Mr. Eugene Gressman: And that therefore, Judge Jackson having been a judge of the Court of Customs and Patent Appeals during, some -- and -- and being appointed to that court, acquired thereby article -- the same kind of Article III judicial power which as Your Honor points out is being administered in the District Court in this criminal proceeding.

Justice Felix Frankfurter: But if I may say so that's a very different thing than to -- than to argue that against which you're knocking an open door namely, that what it is in issue here is a nonjusticiable matter and therefore needn't to be tried by a requisite court.

Mr. Eugene Gressman: No, Your Honor what I -- all I'm trying to point out here Your Honor is the nature and the essential correctness of this Court's determination in Bakelite and Williams that this was an Article I or a non-Article III tribunal which never acquired any function.

Justice Felix Frankfurter: I can understand that argument.

I'm fully aware of it.

Mr. Eugene Gressman: And -- (Voice Overlap) -- what I'm saying is this that the very elaborate and impressive survey, an investigation contained in the Government's brief demonstrates conclusively it seems to me the correctness of this Court's determination in Bakelite and Williams.

And that determination is grounded upon precisely the argument I am trying to present here right now and that is this, that a court to be created under Article III as this District Court was created, must have necessity be created to exercise jurisdiction over these non-delegable, judicial matters, cases and controversies, matters which cannot as this criminal case could not be exercised by any other organ of Government.

Now, on the other hand, I'm saying that the Court of Customs and Patent Appeals as demonstrated conclusively by the investigation and the Government's brief and as confirmed, it seems to me, by the Bakelite and Williams cases, the Court of Customs and Patent Appeals never had that kind of non-delegable judicial power.

All they have ever had to this very day is this Article I judicial power.

This judicial power which is delegable as Congress sees fit either to an Executive Department as they once did in -- in the Customs and Patent matters or to an administrative agency or to a specialized court or to an Article III court in some situations or Congress itself could do it.

Justice Felix Frankfurter: But if once Congress exercised the choice which anteceded Hoboken Land case, way back Wayman against Southard that was made clear.

If Congress takes one of these things at either it could legislated on directly or put into the executive branch or make it a subject matter of judicial action.

If once it does the latter and creates a tribunal, it made clear that you indicated a minute ago, it made clear the specialized court which has nothing to do with the trial of criminal cases.

But if the tribunal is a tribunal under Article III, take the old Commerce Court, which I have restricted jurisdiction entirely with reference to this day commerce matters, I don't suppose there was a particle of doubt that every member or any member of that court could have been assigned by the Chief Justice, assuming authority was given by Congress, it could have been assigned by the Chief Justice to try an ordinary criminal case in Chicago or Denver.

Mr. Eugene Gressman: Well Your Honor, let -- let me -- let me make this comment on that.

I agree that 95% with what you just said but what the specialized federal tribunal of which you were just speaking lacks in its creation and in the jurisdiction conferred upon it such as the Court of Customs and Patent Appeals which we have here involved is a -- one I ordered of the judicial power which is non-exercisable by any other organ of Government.

Everything that this Court of Customs and Patent Appeals has ever done, is in the -- as a matter of congressional discretion, exercisable by some other organ of Government.

Justice Felix Frankfurter: I don't disagree with you.

I'm merely suggesting --

Mr. Eugene Gressman: Now --

Justice Felix Frankfurter: -- that what you're arguing and thinking your time on or rather I'm taking your time on is to me, the remotest of all questions in this case --

Mr. Eugene Gressman: Well, Your Honor --

Justice Felix Frankfurter: -- (Voice Overlap) -- to that, in light of the discussion.

Mr. Eugene Gressman: This is the very -- it seems to me, the very heart of the Government's --

Justice Felix Frankfurter: I don't have hold Bakelite to decide this case.

Mr. Eugene Gressman: The very heart of the Government's contention is that the Bakelite case was wrong and that this Court has always had.

This Court of Customs and Patent Appeals has always had Article III judicial power and all --

Justice Felix Frankfurter: Was the Government's case rest on overruling Bakelite?

Mr. Eugene Gressman: As this case?

Justice Felix Frankfurter: Yes.

As -- I'm looking at its brief.

Mr. Eugene Gressman: Well, the Government's --

Justice Felix Frankfurter: The Government case, if you tell me that the Government case depends on overruling Bakelite then I apologize to you for having me listen and take me your time.

Mr. Eugene Gressman: That's their ultimate position Your Honor.

They asked that to be re-examined.

They asked that its premises be re-examined and that it be directly and completely overruled.

And what I'm suggesting Your Honor is that their -- the supporting evidence which they cite for that proposition, for that ultimate position is -- does not justify an overruling of Bakelite that the Bakelite case decision was completely accurate then as well as now and that this Court of Customs and Patent Appeals has never exercised any part of the judicial power expressed in Article III of the Constitution.

Now, Your Honor mentioned the Commerce Court, created in I believe 1909 or so.

And that very definitely was a constitutional court Your Honor but for a very special reason, and I think it's -- it's a good example of what is the difference between --

Justice Felix Frankfurter: Special reasons were simple that life tenure was gift that they -- it was a tribunal which could do the kind of -- which could adjudicate matters that were normally matters of court, could adjudicate, the judges will give them life tenure.

That was the special reason.

Mr. Eugene Gressman: Wasn't more than that Your Honor.

The courts and the statute reads as follows, that this Commerce Court shall be composed of five judges to be designated and assigned thereto by the Chief Justice from among the Circuit Judges of the United States.

That's the first clause of the enact -- enabling legislation.

Justice Felix Frankfurter: --(Voice Overlap) -- but -- but it couldn't have been so because one them never sat on the Circuit Court.

Mr. Eugene Gressman: Well --

Justice Felix Frankfurter: That's Judge Julian Mack.

Mr. Eugene Gressman: That's right.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Eugene Gressman: Then in the first instance, the Court shall be composed of five additional Circuit Judges to serve for one, two, three, four and five-year terms respectively.

Thereafter, they could not be reappointed to the Commerce Court, but other Circuit Judges from around the country were deemed to be brought in.

And the original five Judges including Judge Mack were to then to be assigned around by the Chief Justice to other Circuit and District Courts and around the country.

And they went ahead and did more than that.

They expressly gave in that legislation the power on these original five judges including Judge Mack, all the powers possessed by the District Judges of the United States.

Justice Felix Frankfurter: Suppose they haven't given them life tenure?

Mr. Eugene Gressman: Well, I think you'd have enough an up for -- another reason, you might not have -- they would not be Article III Courts for that -- Article III judges.

Justice Felix Frankfurter: Well, that's the decisive thing, isn't it?

Mr. Eugene Gressman: That's one of the decisive things.

It's also a decisive what kind of jurisdiction, what kind of powers they're invested with.

Justice Felix Frankfurter: Well, I'm assuming that they've satisfied your requirement drawn from Hoboken Land case, that the kind of business that they have to deal with is court business.

If it isn't that, then we haven't got a problem.

Mr. Eugene Gressman: Well, they too were dealing only with the Administration of the Interstate Commerce Act.

Justice Felix Frankfurter: I know, but the issues under that Act had to be cast in form of a nature that courts deal with.

Mr. Eugene Gressman: True enough, but I do not view the -- those matters as of the inherent non-jud -- or the inherent judicial nature which could not have been -- if Congress had so conceived, exercisable by some tribunal whose judges were not given life tenure --

Justice Felix Frankfurter: That's right.

Mr. Eugene Gressman: -- or by the administrative or executive agency.

And therefore, the reason why that was a commerce -- that Commerce Court was a constitutional court was in effect because these functions were super imposed upon the federal judiciary and these judges were -- these new Circuit Judges were given not only the function of the power to deal with the interstate commerce matters come in before the Commerce Court.

They were also expressly given this function and the duty of performing all the other functions, including the Article III functions of the other Circuit and District Courts to which they were to be assigned.

Now, that has never of course been done with respect to the judges of the Court of Customs and Patent Appeals or with respect to the judges of the Court of Claims.

And I suggest that we get back to the basic proposition that the vital distinction between the specialized federal courts such as the Court of Customs and Patent Appeals and the Article III tribunal is the possession by the Article III courts of this exclusively judicial power which cannot be exercised by any tribunal.

Justice Felix Frankfurter: Well, that isn't true because under the Tucker Act, every Federal District Court of the United States can pass on claims up to $10,000, which Congress tomorrow could withdraw from every court and vest in the Secretary of Commerce or the Secretary of the Treasury.

Mr. Eugene Gressman: That is precisely true, Your Honor.

What I am saying is that in addition to this exclusively judicial function of the Article III courts, they also have this function of deciding cases and controversies stemming from Article I of the Constitution which Congress may delegate either to Article III courts to its specialized tribunals, to administrative agencies or to itself.

Now that, it seems to me, has what is created in the confusion in the Government's mind in this case that because the Court of Customs and Patent Appeals has that kind of jurisdiction, which on occasion has been or could be exercised by Article III courts as well.

Therefore, the Court of Customs and Patent Appeals has all the attributes of an Article III court.

And I suggest again that what this Court of Customs and Patent Appeals lacks and what is critical to its lack of Article III status is the absence of this basic judicial power which cannot be delegated to anything but an Article III court.

And I suggest that the criminal jurisdiction and perhaps the diversity jurisdiction of the kinds of things mentioned in Article III and there are probably others.

We don't have to examine into them all that cannot be given by Congress to any other agency.

And we get back here to -- as I said before --

Justice Felix Frankfurter: I must say I don't -- I don't -- it must be my fault.

I go back to the -- to the Commerce Court.

Now, while the judges for usable and actually did sit in all sorts of cases throughout the country as a court, that court had no jurisdiction in diversity cases or as a court, it had no jurisdiction except to review orders of the interstate commerce.

Mr. Eugene Gressman: Exactly the same type as the Emergency Court of Appeals.

Justice Felix Frankfurter: Yes.

Mr. Eugene Gressman: Those were -- that was a court -- a so-called court superimposed upon the federal judiciary on judges who were qualified under Article III to exercise a particular Article I function.

But in this --

Justice Felix Frankfurter: But all I'm suggesting is -- I'm suggesting two things Mr. Gressman.

(1) That Congress of the power to establish specialized court composed of judges who are Article III judges.

(2) That in the District, Congress has created courts that have both judicial functions and nonjudicial functions.

They can be vested with judicial duties and nonjudicial duties.

And although, you have an admsixture of judicial and nonjudicial duties, it is for purposes of those matters that are confinable to courts, an Article III Court from which this Court or which this Court may review on appeal.

Although it -- such power couldn't be vested to courts of the United States outside of the district.

And therefore, when you deal with -- with specialized tribunal, you've got a problem different from the problem of the District Courts throughout the country which are vested in them all the jurisdiction that Congress sees fit to vest in federal courts.

They couldn't be charged with, one of the first things that happened.

They couldn't be charged with duties that are not judicial duties.

This Court wouldn't review judgments or determinations, advisory opinion as you called them, from them nor would it from the District where they couldn't decline to review good judicial matters from the District although that tribunal is also vested with nonjudicial function.

So we've got a -- we've got an admixture of situations in the District --

Mr. Eugene Gressman: Well --

Justice Felix Frankfurter: And -- and also specialized court that do not eventually suggest permit of this nice checkerboard determination.

Mr. Eugene Gressman: Precisely, I agree with everything Your Honor has said, but I would suggest this additional comment about that.

That the admixture of jurisdiction which the District of Columbia Court has which is unlike that of any other Federal District Court is not involved in this case.

Whatever nonjudicial functions were -- may constitutionally be given to that Court were not called into play in this case.

And the fact moreover that that Court does have certain administrative or nonjudicial functions, does not justify the assignment thereto of a judge from a nonjudicial tribunal or a non-Article III tribunal in order to exercise the District Court's admitted Article III power.

Now by of definition as you -- as I think Your Honor has agreed, this criminal proceeding was certainly an Article III function of this Court and in order to perform that particular function to render a judgment against this petitioner required a judge I suggest, that was qualified under the Constitution to perform that Article III function.

And I don't think the fact that this District Court has certain nonjudicial functions can serve as a crutch to permit the assignment or the performance of this Article III function of a judge who by his service on the Court of Customs and Patent Appeals never required Article III functions.

Justice Felix Frankfurter: But you have to encounter, I suppose you will if I stop asking my questions, the fact that this Court with this tribunal is now a full-pledge Court.

Mr. Eugene Gressman: Well --

Justice Felix Frankfurter: And that he continues to be a member of that tribunal.I know when this happened.

Mr. Eugene Gressman: You mean of the --

Justice Felix Frankfurter: When he was appointed, it added -- it preceded the creation that the transformation of that Court is to a regular court.

Mr. Eugene Gressman: Well now, Your -- Your Honor has referred to the --

Justice Felix Frankfurter: That's what I'm saying, you're discussing things which seem to me way, way over (Voice Overlap).

Mr. Eugene Gressman: Well, it seems to me that the answer to this so-called transformation of 1958 lies precisely in the analysis which I have been presenting Your Honor.

And that is that if I am correct in my reading of the Constitution and the cases decided thereunder with respect to these courts.

If it is true that the Court of Customs and Patent Appeals never had any heart of this non-delegable judicial function, if it only had the Article I powers of judicial to determine certain judicial matters which are exercaba -- exercisable by any agency of the Government, the Congress sees fit.

Then I suggest that without create and changing the jurisdiction or the nature of the Court of Customs and Patent Appeals, the 1958 declaration of Congress goes for naught because simply by saying that this is an Article III court when in fact there is no attempt to give that Court any of this inherent basic judicial function which is not exercisable by any other organ of Government, such a declaration cannot stand.

Justice Felix Frankfurter: Would you mind taking a minute to state what kind of cases come before this tribunal of the Court of Customs Appeal.

Mr. Eugene Gressman: Well as I understand it, there -- there are two basic kinds, the Customs matters and the Patent and Trademark Appeals from the denial of a patent or a trademark by the Commissioner of Patents.

Justice Felix Frankfurter: And that could not be vested in the District Court?

That could not be vested in the District Court?

Mr. Eugene Gressman: Certainly, it could Your Honor and in fact, you have an alternative.

Justice Felix Frankfurter: And the subject matter is of a judicial nature.

Mr. Eugene Gressman: This is the -- what I verb -- well, I have a better phrase what called the seductive cliché into which the Government has fallen, it seems to me, because what I have been trying to -- to -- to demonstrate in this argument is, that there are two kinds of powers, judicial powers exercisable by Article III courts.

One is the exclusively judicial function, and the second is this alter the na -- the Article I judicial function which is coordinate in many instances with specialized federal tribunals or even agencies of the Government.

The Government's brief points out correctly that there are certain cases under the Clayton Act that can be brought either in a Federal District Court, any part of the country or in the Federal Trade Commission.

Now, I suggest that -- it's going too far to suggest that therefore, the Federal Trade Commission is an Article III court because it is exercising the same kind of jurisdiction as the District Court in that case.

Justice Felix Frankfurter: No, but if a tribunal which has this ambivalent which has -- which is given a party over this ambivalent situation which may be cast in -- in adjudicatory problem if it is given to a tribunal and that -- and Congress gives that tribunal to life tenure, life tenure.

And it's located at -- no, let's stop there.

I do not see -- I do not see why then it doesn't satisfy your analysis namely --

Mr. Eugene Gressman: No.

Justice Felix Frankfurter: Namely -- the subject matter may be -- take the La Abra case, a Mexican claim against the Government or claim by the United States citizens.

Congress may pass a statute and says John Jones is entitled a $3,000,000 from the fund which makes it go and turn over to the United States.

Congress might say, the Secretary of Treasury should determine the bona fides of the claim or three, do what it did do and say, this is a controversy to be settled in an “honest-to-god” court.

Now, in Congress puts matters of that character, which it could distribute -- which it could either repay or give to an executive authority, gives it to a court, subject of case of controversy requirements and then give that tribunal life tenure.

I do not see what is lacking in making it a court within the requirements of Article III.

Mr. Eugene Gressman: Because Your Honor and that is precisely the point I've been trying to make.

That the answer to that is that they have not given them -- they cannot -- in establishing an Article III Court, you cannot give to it solely this ambivalent jurisdiction.

You've got --

Justice Felix Frankfurter: In other words, Congress -- you say that the proposal which has been made throughout my -- my professional life will have a separate Court of Patent Appeal, a Patent Court to withdraw the jurisdiction in all patent cases from the District Courts throughout the country and vested exclusively in a Court of Patent jurisdiction with no other judicial function and given life tenure, that wouldn't be an Article III court.

Is that what you're saying?

Mr. Eugene Gressman: Precisely Your Honor because that's exactly (Voice Overlap) --

Justice Felix Frankfurter: Oh I understand you but I'm sure I rejected it.

Mr. Eugene Gressman: -- what the -- the Hoboken Land Company case says.

And what -- what this Court said -- for example, what this Court said in the United States against Sherwood in 312 U.S. and then on unanimous opinion by Judge Stone, Justice -- Mr. Justice Stone saying that when the Court of Claims has identical jurisdiction with the District Court under the Tucker Act, they expressly pointed out that despite that concurrence of jurisdiction and I quote from it, “The Court of Claims remains a legislative, not a constitutional court.”

Justice Felix Frankfurter: That's because the statutes gave it additional power.

Because under the statute, Congress can ask an opinion of the Court of Claims, but nothing that you quote from Justice Stone there mean that if Congress shows to restrict the Court of Claims entirely to judicial business, it couldn't make of it a constitutional court.

Mr. Eugene Gressman: I say Your Honor that unless Congress gives to the judicial tribunal, that judicial power which cannot be delegated by Congress to any other agency or the Government, then you do not create an Article III court, and you violate the very basic concept of separation of powers upon which this whole doctrine rests.

Justice Felix Frankfurter: And you're saying if tomorrow, Congress chose to vest the power which now District Courts have, requiring to be constituted as a three-judge tribunal to review orders of the interstate commerce provision.

If Commerce chose to have one centralized court or say four, whatever the great the divisions, the traffic divisions of a country are at present, you say, that would not be an exercise upon the Article III if it didn't also say those judges should also have all other powers and be available for all other duties of a judicial --

Mr. Eugene Gressman: It seems to me that's precisely what Bakelite and Williams, O'Donoghue --

Justice Felix Frankfurter: Well, I know, but we're here reconsidering all the talk in these cases.

Those cases arose out of special circumstances, and one cannot understand the Bakelite case unless you consider that that case arose in connection with the very troublesome question at that time to what extent Congress can create nonjudicial tribunals for the enforcement of the Volstead Act.

I was about to say that the man in the wood pie.

Mr. Eugene Gressman: Well, Your Honor I only -- I can only suggest that it is my -- in my reading of the Constitution and in reading of these cases that gives rise to this consistent thread, this demarcation which explains what the Court did basically in Bakelite and Williams and which is consistent with the constitutional interpretation which I suggest is proper.

And --

Justice William O. Douglas: And of course you might add that it was a unanimous decision of the Court --

Mr. Eugene Gressman: That is right.

Justice William O. Douglas: -- imposed of Holmes --

Mr. Eugene Gressman: And --

Justice William O. Douglas: -- Brandeis and others who partner with first year law students.

Mr. Eugene Gressman: You might add that we never this -- particular, the tribunals are now constituted never reconsiders prior decision.

Justice Hugo L. Black: Some of us are very lucky.

Mr. Eugene Gressman: Well --

Justice Hugo L. Black: May I ask you one question?

I've been waiting to see if I could ask you.

Suppose the Congress would declare tomorrow Interstate Commerce Commission is a court in Article III court that they do try some cases that are essentially legal, reparations cases, could those judges be assigned to District Court?

Mr. Eugene Gressman: I suggest not under the Constitution.

Justice Hugo L. Black: Why?

What's the difference between that and this?

Mr. Eugene Gressman: Because they too, like every other administrative agency and like every specialized tribunal as we're talking about today, they do not have any of that essential judicial power which can -- by definition cannot be exercised by any other organ of the Government.

Now, there are very -- it seems, there are only a few examples of that type of Article III court.

Justice Hugo L. Black: Why couldn't they be if Congress declared it such as they've declared it with reference to this (Voice Overlap) --

Mr. Eugene Gressman: Because that it seems to me, you break down the whole distinction between the judicial and the legislative branch of Government.

If every organ of -- of the legislature or of the executive which makes some kind of judicial determination in matters arising under the laws of the United States, is susceptible of being declared an Article III tribunal, subject to all the powers and the limitations and the protections that are accorded therewith, then it seems to me you have destroyed the very basic distinction between the Article III and Article I and the separation of powers contained therein.

Now, there has to be a practical accommodations, of course, in the execution of the powers of Congress and in the exercising those powers, Congress must be given the freedom to choose where it want certain types of judicial determinations made either in the executive or the legislative or in the judicial branches of the Government.

But there are certain things called into play of a judicial nature, which when so-called into play, such as a criminal sanction cannot be exercised at the discretion of Congress but any organ of Government other than a court created under the Constitution Article III and composed of judges who are constitutionally independent and constitutionally authorize to exercise that.

Justice Hugo L. Black: May I ask you this?

It seemed to me as if you have occasionally sort of shied away from putting emphasis on the fact that judges are appointed for life, to try certain kind of judicial controversy.

But you have duties where you observe the rules of court and that you have emphasized more in Article III court and in another kind of court which confuses me.

I must admit.

It seems to me that maybe your argument -- I'm not absolutely sure.

These judges are appointed to the Court where they do not have life tenure, where they try a lot of cases that are not triable before a jury.

You do not observe due process of law including these safeguards and that you are arguing that this Judge is for different kind of court and doesn't have life tenure.

What difference would it make if they'd given him a life tenure before he was appointed or afterwards, would that make a difference?

Mr. Eugene Gressman: Well, he was given life tenure in this case by virtue of statute, enacted 1930 before his appointment, so he came on there certainly in statutory contemplation with life tenure.

Justice Hugo L. Black: Yes.

Mr. Eugene Gressman: But my suggestion is that by virtue of the nature of this Court, he did not have constitutional life tenure and there is a difference.

Justice Hugo L. Black: That's what I understood -- that's what I understood and that's why I want to know what's the difference between allowing this man to move from that Court into a District Court and try cases and controversies of the criminal nature and other natures that requires certain things like you, what's the difference in letting him move from there, having the Congress to say that the Interstate Commerce Commission, so do you consider the Court and assign him to these other places?

Mr. Eugene Gressman: Well, it seems to me that --

Justice Hugo L. Black: They might give -- they might give them a statutory a life tenure also.

Mr. Eugene Gressman: Well, it seems to me that permitting Congress to make that kind of a declaration and making it constitutionally effective thereby is to destroy the basic separation between the judicial and the legislative branches of the Government moreover.

It seems also clear to me that this critical non-delegable judicial function as expressed here particularly in a criminal proceeding is precisely where you need and must have this constitutional independence in your judges.

Justice Hugo L. Black: Well, get away from those non-delegable so what -- what exactly they have on the man being tried?

Mr. Eugene Gressman: Well, the man --

Justice Hugo L. Black: What kind of court does he get?

Mr. Eugene Gressman: Under this -- under that suggestion Your Honor, he could get anybody in the world who had been -- ever been appointed to this particular agency because he would thereby and forever after in a retired status or otherwise have Article III status, and you could have appointed the District Court by assignment.

Everybody who has ever been a member of the Interstate Commerce Commission or the SEC or any other agency including the Court of Customs and Patent Appeals which Congress has ever designated by fiat as a court created under Article III of the Constitution.

Justice Hugo L. Black: Why are the functions of the Interstate Commerce Commission if they are any less or anymore judicial than those of this Court?

Mr. Eugene Gressman: Well, they're judicial in certain -- in a certain sense that if they were framed in the nature of a case or controversy, they would be subject of course to -- and are subject to -- to inquiry and resolution.

Justice Hugo L. Black: What is a reparation suit?

Mr. Eugene Gressman: Well, --

Justice Hugo L. Black: What does it settle?

Mr. Eugene Gressman: It's a -- I suppose involves a suit or a claim by an individual or a corporation against the United States which --

Justice Hugo L. Black: Railroads.

Mr. Eugene Gressman: Or railroad against United States which certainly --

Justice Hugo L. Black: Are they in the nature of judicial controversy?

Mr. Eugene Gressman: They could be, but I don't -- I suggest they're not Article III judicial -- of this non-delegable nature because obviously, they are determined in many instances by the ICC in the first instance.

They're also determined by -- could be determined by other agencies or by Article III court.

But it seems to me also important to recognize that --

Justice Hugo L. Black: Well, I was asking that because I was wondering why that wouldn't justify Congress, it justified in this case and declaring that it's a court -- full-pledged Court to the extent that they can be assigned to District Courts.

Mr. Eugene Gressman: Precisely.

This was where the -- where the argument runs and that to the extent the Congress wants to make such a declaration as it did 1958.

As to this Court, it could make a similar declaration as to every other administrative agency that ever determines matters which are in a judicial form of say a case or controversy, as most administrative agencies do deal with, and at least in the first instance.

And thereby, you have appointed or delegated or assigned to the District Court and then whom the President and the Senate never considered as through their qualifications to render a judgment in a -- and -- and -- a trial in a criminal case or in any other type of this inherent non-delegable judicial functions performed in an Article III court.

And the whole system breaks down it seems to me.

Justice Hugo L. Black: Your argument seems to me that we have based, I'm not sure, on the idea that the Constitution provides certain things that must take place for judge acting -- I won't say an Article III court, but in a court that tries peoples' crimes, adjudicates lawsuits of a nature that require safeguard to the Constitution.

If they must be appointed and hold office subject to life tenure, confirmation and so forth by the Senate or these required to be confirmed by the Senate, they are, are they not?

Mr. Eugene Gressman: Yes.

Justice Hugo L. Black: Now, what else is left out?

Mr. Eugene Gressman: The investiture of that Judge and the Court to which he was appointed with authority to exercise the basic Article III function, which only an Article III court can exercise and that includes primarily and all we have involved here is criminal trials.

Justice Felix Frankfurter: Let me put this to you before you sit down.

This will tell you my difficulty.

Let's see if I can put it clearly.

The District -- the District Courts of the District of Columbia have both conventional judicial functions and non-conventional -- and nonjudicial functions.

For instance, the District Courts for the District of Columbia can fix rate of utilities which no U.S. Courts throughout the country can do not even -- and this Court has no power.

It can do that, is that right?

Mr. Eugene Gressman: Right.

Justice Felix Frankfurter: It also tries conventional criminal cases.

Now, the infusion of nonjudicial business into the powers of the District Court, do not prevent that tribunal from being an “honest-to-god” Article III court with reference to its judicial business.

Mr. Eugene Gressman: That's correct.

Justice Felix Frankfurter: Now, that empowerment, that investiture to use your good word of nonjudicial business in the District Court derived from one of the provisions of Article of Section 18 of Article I, “The power to deal with the District.”

Now, this Court has held for obvious reason that Article I has a lot of other provision giving Congress power, such as the power to regulate commerce.

What for the life for me, I cannot I understand is why, if the District Court of the District of Columbia is a judicial tribunal subject to review by this Court although there's an infusion of this executive authority, why any other tribunal having judicial business such as reparation suits, but also being given some other authority on the Article I, Section 3, why as to those tribunals, the addition of those nonjudicial matters would take the whole things so that they wouldn't be a court.

Mr. Eugene Gressman: It wouldn't be an Article III court, Your Honor.

There -- there --

Justice Felix Frankfurter: We don't have to have Article III courts because this Court had reviewed judgments of territorial courts which were under Article III courts.

Mr. Eugene Gressman: Well, precisely Your Honor, I think Chief Justice Vinson in his opinion in the Tidewater case expressly pointed out that this Court obviously reviews in judgments, in cases from tribunals which are not Article III courts with federal -- which are presented in such a form of a case or controversy which permits this Court to exercise review jurisdiction.

Now, this doesn't mean that simply because a matter is formulated in the -- in the posture of a case or controversy and arises under the laws of the United States that therefore necessarily, it is exercising our Article III judicial power.

Justice Felix Frankfurter: But this Court couldn't possibly run or issue a writ and review a determination by the Secretary of State until he gets into a lower court or the Secretary of Commerce or anybody else, it has to come here from up court and cases which come here from the District Court, come from a tribunal which from your point of view is tainted because it also has advisory capacity.

Mr. Eugene Gressman: Well, it's not tainted.

It seems to me --

Justice Felix Frankfurter: Well, it isn't a Court.

Justice Felix Frankfurter: That's all you have to say.

You say, the Court of Customs Appeal isn't a Court and Congress couldn't make it such and Congress couldn't agree at the Patent Court of the kind I have indicated because it wouldn't also be trying criminal cases.

Mr. Eugene Gressman: It's said because -- it is an Article I court Your Honor, and not an Article III court.

And this Court has from time in memorial been exercising review jurisdiction from both Article I courts and Article III courts.

Justice Felix Frankfurter: But do you know what I think about that -- that line of argument.

I've expressed myself in the Tidewater cases.

Mr. Eugene Gressman: Yes, sir.

Justice Felix Frankfurter: I think it's -- if I may say so respectfully, angels dancing on a pin's head.

Mr. Eugene Gressman: I think my time is expired.

Chief Justice Earl Warren: Mr. Gressman, in order that you may make your other points and conclude your argument in a comprehensive way, I'm going to give you ten -- ten minutes more --

Mr. Eugene Gressman: Thank you.

Chief Justice Earl Warren: -- although, your time is expired and if the Solicitor General needs, he may have it too.

Argument of Cox

Mr. Cox: May it please the Court?

Chief Justice Earl Warren: Mr. Solicitor General.

Justice William O. Douglas: Mr. Solicitor General, I don't like to interfere with counsel and question him a great length during the course of the argument.

I have a question I would like to put to you.You can answer it in due course.

It relates somewhat to the question that Justice Black asked.

I once served on the Security Exchange Commission whether the -- I was wondering during the course of the argument whether Congress could pass a law that would allow the assignment to the District Court for criminal trials or civil trials in the District of Columbia members of the Securities and Exchange Commission.

We have the -- we used to handle some controversies over there, cases or controversies or the Federal Trade Commission or the Interstate Commerce Commission, with or without the Commissioners having -- having life tenure.

Whether it comes down to this which seems to me to make irrelevant much of what has been discussed so far, namely as a person charged with a crime, entitle to a -- not only to Article III procedures contained in the Constitution, but also to an Article III judge.

Mr. Cox: Well, I would --

Justice William O. Douglas: Don't -- don't, just --

Mr. Cox: Well, I think it --

Justice William O. Douglas: -- that's the heart of the case (Voice Overlap) --

Mr. Cox: -- (Voice Overlap) -- will focus -- I think it perhaps ties in with what was going to be the beginning of my argument if I might give you a very short answer --

Justice William O. Douglas: In your own time.

Mr. Cox: -- for subject to explanation.

Let me say this that I think no question is presented necessarily in this case concerning how a man may be tried for a federal offense in the Southern District of New York or the District of Nevada that the question here is whether this Court was lawfully constituted to try the petitioner for the cri -- local crime of burglary in the District of Columbia.

And there's a world of history back at the courts of the District of Columbia.

So that I would also say that there is no constitutional right, for reasons I'll try to explain, to be tried for a local offense in the District of Columbia before a judge with security of compensation and tenure in the constitutional sense.

Justice Hugo L. Black: Pardon me for adding this to his statement.

I hope you will not assume without giving your reasons later that that can be done in the District of Columbia without it spreading to the rest of the country and point out through distinctions.

Mr. Cox: I will try to -- that --that is the first proposition on which we rest our case.

I would like to emphasize at the beginning the importance in this case.

First, of avoiding, entangling it in broader constitutional issues than the case necessarily presents.

And second, of avoiding the difficulty which I found, I fell into very often and thinking about the case of dealing with abstractions, entangling niceties rather than what people do and what rights they may have.

Now, it seems that the only issue which has to be decided on the merits in this case is whether the Court which convicted the petitioner was, as I said a moment ago, legally constituted for the purpose of trying a local charge of robbery in the District of Columbia or to state that question conversely, it's whether the trial for criminal violation of the District of Columbia Code before a court known as the District Court of the United States for the District of Columbia, but presided over by a judge from the Court of Customs and Patent Appeals violated any of the petitioner's legal rights.

I state of course in that fashion for a reason I indicated a moment so that we are much more likely to reach the proof, I think, by avoiding these undefined terms like judicial power of the United States, Article III court, legislative court, constitutional court, all which I suspect to give and shifting meanings throughout of the argument and instead pursuing to direct lines of inquiry.

First, whether the authority of Judge Jackson to preside at the petitioner's trial can be traced back to an origin in the Constitution; second, if it can, then the question arises whether the power was exercised in a manner which violates any statutory or constitutional rights of the petitioner.

And this does involve, I think, looking at what was done in concrete and specific instances.

Here, there's no question about the validity of the assignment of Judge Jackson to sit in this Court, which was signed by the Chief Justice on December 7th, 1959.

The authority to make the assignment is derived from Section 293 of Title 28 of the United States -- United States Code.

But I would emphasize that although that general power to assign a judge of the Court of Claims or Court of Customs and Patent Appeals to any Circuit or any District originated in 1958, there was a particular power to assign a judge of the Court of Customs and Patent Appeals to sit in the courts of the District of Columbia, either the Supreme Court is it then was known, now the District Court or the Court of Appeals for the District and if that statute was enacted in 1922.

It was enforced at the time Judge Jackson was appointed to what was life tenure by the statute and he must have been appointed by the President, gratified and confirmed by the Senate with a view to that possible assignment.

Indeed, as Judge Prettyman's concurring opinion in the court below points out, this is an interchange which has taken place very frequently.

I should also add that burglary is of course a local crime defined in the District of Columbia Code which may be tried under the District of Columbia Code in the Court known as the District Court of the United States for the District of Columbia.

It seems to me therefore that the case stands exactly as if Congress had specifically provided for the charge of robbery in the District of Columbia, should be tried in a court with this title.

A court which should have normal judicial powers who function in the matter common to most courts, which should have the jurisdiction of the Federal District Courts scattered through the country, which also should have jurisdiction over local crimes committed in the District and of suits between citizens of the District meeting certain requirements and which should further exercise certain legislative, executive, and administrative functions.

And over which there should preside either a judge known as the District Judge or a judge known as a Judge of the United States Court of Customs and Patent Appeals.

In other words, it stands exactly as if the Congress had said in so many words that a local charge of burglary in the District of Columbia may be tried before a court presided over by a judge of the Court of Customs and Patent Appeals.

And the petitioner cannot possibly prevail in this case, I submit, unless he can show either that Congress would have had no constitutional power to enact such a statute or else that its enactment with the provisions here violated some specific limitation, giving him constitutional rights.

Now, we find the authority to enact such a statute and therefore, this body of statute is having this effect in Article I, Section 8, Clause 17, giving the Congress power to exercise exclusive legislation in all cases whatsoever over such District as may become to seat of the Government.

And Congress has exercised that power creating courts in which the judges do not have life tenure, giving those courts duties which would not be regarded as proper to give to judges of an Article III court for -- well over a hundred -- indeed over 150 years.

The expressions of this Court summarized the point by saying that Congress exercises the combined powers of a general and of the State Government in all cases where legislation is possible in dealing with the District of Columbia.

And this power to function as the local sovereign certainly includes, we submit, the power to declare crimes and the power to create the Courts in which those crimes shall be tried.

Justice John M. Harlan: If Congress undertook to say that local crimes will be tried before the Interstate Commerce Commission, would you defend it?

Mr. Cox: That -- no, no --

Justice John M. Harlan: By what -- what --

Mr. Cox: I would say that --

Justice John M. Harlan: What's the difference (Voice Overlap) requirements envisage?

Mr. Cox: I assume and concede indeed that in exercising this -- by putting one sentence first and come in directly to your point.

I just want to point out that no one would challenge the right of a state to provide that burglary should be tried in such a court as that in which the petitioner was tried.

And it would seem to me that if Congress exercises the powers of the state in relation to the District of Columbia as has often been said then Congress must have, under Article I, the power to establish this kind of court.

Justice Hugo L. Black: And it could waive trial by jury.

Mr. Cox: No.

I suggest not.

Let me -- because this is the same as Mr. Justice Harlan's question.

Congress is subject in exercising its Article I power over the District of Columbia to the limitations provided in the bill of rights just as it is subject to those limitations in exercising any other legislative power.

And it is therefore subject, we would grant, to the provision granting a right to trial by jury.

Equally, we would say that it was subject to the Due Process Clause.

And I would think Justice Harlan to deal with your point explicitly that an attempt to try a man for crime before an agency constituted as the Interstate Commerce Commission before the District of Columbia commissioners, not functioning in a judicial manner, would be a denial of due process of law.

In other words, I take it that due process includes a right as Justice Frankfurter suggested earlier to a judicial proceeding --

Justice William O. Douglas: Well, they can in panel a jury.

Mr. Cox: They what?

Justice William O. Douglas: They can -- they might use a jury.

Mr. Cox: Well one of -- of course one of the difficulty is that telling about, “Could you try this before the Interstate Commerce Commission?

It depends partly on what do you mean by the Interstate Commerce Commission?

What procedure do you envisage?”

If the procedure is near enough to what we think of as a judicial procedure in the states that -- commonly exercised by Anglo-American courts then it would seem to me that the requirements of due process are met and any requirements that I think of in the bill of rights are met provided that the -- there is a jury and of course if It's been in no violation of other provisions of the Fourth or Fifth Amendments, unlawful search and seizure and things like that.

Justice Felix Frankfurter: I suppose Congress could establish courts restricted entirely to nonjury cases, just have a separate equity court, couldn't it?

Justice William O. Douglas: Well, yes.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript:

Argument of Chester Bordeau

Chief Justice Earl Warren: The Glidden Company, Incorporated, Petitioner, versus Olga Zdanok, et al.

Mr. Chester Bordeau: Mr. Chief Justice, and may it please the Court.

Chief Justice Earl Warren: Mr. Bordeau.

Mr. Chester Bordeau: On our last session which was on Wednesday, February 21st, we were in this posture that Mr. Justice Whittaker, as I recall, had put the question as to what was an Article I court.

And I made reply to the question of Mr. Justice Whittaker by stating that in my opinion, from the rulings made by this Court in Bakelite and in Williams, that the answer was a -- that Article I court was a court which performed the functions and the powers of Congress.

Functions which were cognizable by Congress.

Functions and powers which were susceptible of performance by Congress and not requiring judicial determination.

I think that is a rule that might be deduced from the statements of this Court in the Bakelite and in the Williams cases.

I believe that the rules stated there are sound.

I believe that they are sound for these reasons.

In that -- in those cases, there was a very careful review made by the members of this Court with respect to the history and res -- and with respect to the powers and functions of the Court of Appeals.

It was established, I submit, that the Court of Claims performed only those functions and powers which were adherently the functions and powers of Congress under Article I.

I think it was established also the -- from the debates of the Congress in 1854 and 1855 that the purpose for the creation of the Court of Claims was to relieve the Congress of the heavy burden which had come upon it by reason of presentation of bills.

Justice John M. Harlan: Could I ask you a question?

At the time the case was argued at the Court of Appeals, had the Lurk case as it first came to this Court been decided?

Mr. Chester Bordeau: I believe the -- I don't think so, Your Honor.

I don't know definitely.

Justice John M. Harlan: What I'm trying to get at is (Voice Overlap) --

Mr. Chester Bordeau: I know.

Justice John M. Harlan: I was wondering why this claim wasn't made before the Court of Appeals.

Mr. Chester Bordeau: Well, frankly, we didn't know about it, that's a frank answer to your question.

We did not know about it.

The -- our case was argued in February of 1961.

And I believe that the petition in the Lurk case was on May 29, 1961, some two or three months later.

But to answer your question, Mr. Justice Harlan, we didn't know of the existence --

Justice John M. Harlan: (Voice Overlap)

Mr. Chester Bordeau: -- of this objection.

Justice John M. Harlan: A very frank answer.

Mr. Chester Bordeau: Now, in 1929, the Bakelite case.

Decided in 1933, the Williams case.

Justice Felix Frankfurter: Would you mind stating again what -- what you -- what reliance you'd place on the debate which you referred a minute ago?

What do those debates show?

Mr. Chester Bordeau: Those debates show, Mr. Justice Frankfurter, that the purpose -- the purpose, which was referred to over and over again in the debates in 1854 or 1855 was to create a court for the purpose of relieving the Congress of the very heavy burdens which have been placed upon it in connection with the presentation of bills for the payments of moneys or payments of debts of the United States and the consideration thereof.

I have a -- at page -- I think it's one -- page 16.

Justice Felix Frankfurter: I take the word for it.

Suppose Congress had chosen instead of creating a separate court.

Suppose Congress had chosen to confer that jurisdiction to the existing district of Circuit Courts of the United States exclusively no -- no separate Court of Claims, would that have been the conferment of Article III jurisdiction upon the federal court.

Mr. Chester Bordeau: I believe the -- I submit the answer could be to your question, Mr. Justice Frankfurter, that Congress could have delegated to the inferior courts created by Congress under Article III the performance of the function --

Justice Felix Frankfurter: Well, does that make a difference -- does it make a difference to the characteristic, the judicial significance in judicial powers sense, in Article III sense that it established the separate court to which that jurisdiction was given exclusively?

Would that make a difference to the content of what the business was in order to determine whether it was or wasn't judicial power?

Mr. Chester Bordeau: I believe it does, sir.

Justice Felix Frankfurter: It does?

Mr. Chester Bordeau: And for this reason that in the creation of inferior courts and the establishment of this inferior courts under Article III, I submit that the distinction in carrying between the two courts is this, that an Article III court possesses the power and the function to pass upon cases and controversies which are not susceptible to determination by an Article I court that would be, for instance, a -- a controversy between the parties in this case.

The Glidden Company and the Zdanok an agree -- a breach of contract case, a breach of a collective bargaining agreement, I say that type of case, of course, could not be heard or determined by Congress.

Justice Felix Frankfurter: But --

Mr. Chester Bordeau: Is not cognizable by it.

Is not susceptible to determination by Congress and it requires a suggestion in the Bakelite and Williams cases a judicial determination under Article III, a court that determines cases and controversies which are not susceptible and which are not cognizable by an Article III cou -- or by Congress.

Justice Felix Frankfurter: Or -- or the inference I would draw --

Mr. Chester Bordeau: (Voice Overlap)

Justice Felix Frankfurter: The inference I would draw from what you've just said is that there may be matters, argumentatively to agree with me, there may be matters conferred on courts created under Article I which are not "judicial power in the sense of Article III."

But what entitles you to the logical or the reasonable inference that because some tribunals can be created under Article I and give them authority to -- to decide, avoid the word adjudicate, to decide which wouldn't be given to Article III courts that things that could be given to Article III courts can't be vested in a specialized court?

Mr. Chester Bordeau: Well, I -- I don't know that I understand your question but I will --

Justice Felix Frankfurter: What I'm saying is, what is there in, excuse me -- was in there in Article III which prevents Congress from establishing Article III courts and vesting in them limited jurisdiction.

What is there in Article III --

Mr. Chester Bordeau: I --

Justice Felix Frankfurter: -- that says what would have prevented Congress from 1789 or if you please, tomorrow to create separate courts of equity, giving them exclusively equitable jurisdiction in other courts, giving them exclusively jurisdiction on the lower side?

What is there in Article III that so fetters and confines Congress?

Mr. Chester Bordeau: I don't think there is anything in Article III which prevents Congress from vesting in an Article III court the performance of some of the functions and powers which are susceptible of performance by the Congress.

I don't believe that's true.

But I think if we're going to have legislative courts and Article III court --

Justice Felix Frankfurter: Well, but you evade the question as soon as you talk, put a label on it called legislative courts.

Mr. Chester Bordeau: Well --

Justice Felix Frankfurter: What makes them legislative courts --

Mr. Chester Bordeau: What makes the legislative --

Justice Felix Frankfurter: -- in your sense?

Mr. Chester Bordeau: In my thinking Your Honor?

Justice Felix Frankfurter: Not in your thinking but in your sense of legislative courts namely --

Mr. Chester Bordeau: (Voice Overlap) -- I think --

Justice Felix Frankfurter: -- jurisdiction that can't be conferred on Article III court.

Mr. Chester Bordeau: I say where a court performs solely those functions which are the functions of Congress that that court is an Article I court, where it performs those functions inherently the functions and the powers of Congress under Article I and nothing else.

I say that court is an Article I court.

Justice Felix Frankfurter: Well then, if I understand you, Congress can confer its legislative function of settling claims against the United States on Article III courts.

Is that right?

Mr. Chester Bordeau: It's correct.

Justice Felix Frankfurter: It can do it.

Mr. Chester Bordeau: That's correct.

Justice Felix Frankfurter: But if it conjoins with that other things then its judicial power or va -- or the converse if it convert -- if it exclusively limits the court to that which Congress could do legislatively then it isn't a court.

Mr. Chester Bordeau: It is not a --

Justice Felix Frankfurter: Is that right?

Mr. Chester Bordeau: I don't see it's not a court.

Justice Felix Frankfurter: I mean it's not an Article III court.

Mr. Chester Bordeau: It's not an Article III court.

Justice Felix Frankfurter: And how do you get that out of Article III?

Mr. Chester Bordeau: I get that from Article III from the decisions made by this Court.

Justice Felix Frankfurter: But we are now re-canvassing the local (Voice Overlap) --

Mr. Chester Bordeau: And -- well, that's what I wanted to address myself to as to the soundness of the rulings of this Court in Bakelite and in Williams and in the subsequent decisions of this Court to which reference was made the mem -- some of the members of this Court who are sitting here today.

I -- if I may proceed from that point, in the year 1941, this Court had before it the case of Sherwood against the United States.

On that Court, Mr. Justice Black sat, Mr. Justice Frankfurter sat and Mr. Justice Douglas sat.

And that court had before it the question as to whether or not a United States District Court could entertain jurisdiction of a suit commenced by a judgment creditor of a claimant against the United States, a claimant who had claim under the Tucker Act.

The Court held that this Court could not -- the U.S. District Court could not entertain jurisdiction of such a suit.

The reason being that in that suit, they had to be made a defendant another party, that was the judgment debtor.

And it was stated by this Court that in view of that additional feature, that someone else had to be made a party defendant to that lawsuit meant that we did not have just a clear waiver of sovereign immunity where the United States could be sued.

Justice William O. Douglas: What was the citation to that?

Mr. Chester Bordeau: That citation is 312 U.S., Your Honor.

Now, in that case, Mr. Justice Stone delivered the opinion of the Court.

And I would just like to quote very briefly from the statement concurred in by unanimous court incidentally.

As I say concurred in by Mr. Justice Black, Mr. Justice Frankfurter and Mr. Douglas -- Justice Douglas.

The Court acclaimed it is a legislative not a constitutional court.

Its judicial power is derived not from the judiciary article of the Constitution but from the congressional parter -- power to pay the debts of United States which it is free to exercise through judicial as well as through non-judicial agencies.

That was concurred in as I -- unanimous opinion concurred in by Your Honor, Mr. Justice Frankfurter.

Justice Felix Frankfurter: I'm sure you could bring many commission -- commissions of error against me.

That doesn't make it right --

Mr. Chester Bordeau: I don't think --

Justice Felix Frankfurter: -- you know.

Mr. Chester Bordeau: I won't agree to that.

Now, in 1949, this Court also had another case.

Justice Felix Frankfurter: Was there anything that mattered with that decision?

Mr. Chester Bordeau: With the --

Justice Felix Frankfurter: As a decision --

Mr. Chester Bordeau: -- Judge Stone?

Justice Felix Frankfurter: As a decision, not the talk but a decision.

Mr. Chester Bordeau: I think the decision in the Sherwood case is correct.

Justice Felix Frankfurter: And unrelated to this problem?

Mr. Chester Bordeau: Unrelated to this problem but I think that the statements which I have read were appropriate and necessary considerations on the part of this Court in coming to the conclusion to which it gave.

Now, in 1949, this Court had before it the National Merit -- what's the name of that case?

Justice Felix Frankfurter: Tidewater.

Mr. Chester Bordeau: The National Mutual Insurance Company against the Tidewater.

Your Honors will recall that in that case, there were four opinions written.

There were two majority opinions and two dissenting opinions.

Justice Felix Frankfurter: May I correct you?

Mr. Chester Bordeau: If you may call on that.

Justice Felix Frankfurter: May I correct you?

There were two opinions contradicting one another to both of which --

Mr. Chester Bordeau: Yes.

Justice Felix Frankfurter: -- totaled up to a contradictory but ex --

Mr. Chester Bordeau: That's --

Justice Felix Frankfurter: -- inclusive result.

Mr. Chester Bordeau: That's exactly correct.

Now, in that -- in that case, -- in that case, Your Honors, there was reference made in the opinion of Mr. Justice Jackson who wrote one of the prevailing opinions, joined in by Mr. Justice Black and by Mr. Justice Burton.

There was a concurring opinion written by Mr. Justice Rutledge concurred in by Mr. Justice Murphy.

A dissenting opinion by Mr. Chief Justice Vinson, joined in by Mr. Justice Douglas.

And another dissenting opinion written by Mr. Justice Frankfurter concurred in by Mr. Justice Reed.

Now, in that case, references were made to the determination made by this Court in the Bakelite and in the Williams cases.

There was no disapproval of the rulings made by this Court in the Bakelite and Williams cases except possibly with respect to a matter to which I shall refer later in our argument but I will advert to very briefly at this time.

And that is that there was disagreement with the expressions contained in the opinion of Mr. Justice Sutherland in the Williams case to the effect that that provision in Article III, Section 2 of Article III providing for controversies to which the United States to be a party.

With reference to which Mr. Justice Sutherland stated that that was to be construed that where the United States was a party plaintiff and not a party defendant.

Now, that statement in the Williams case was not approved by the members of this court in the discussions in the Tidewater case but it defies the holding that the Court of Claims was a legislative court.

There was no expressions contained in any of the opinions in that case although reference was made to the Williams case as to its not being approved by this Court.

Now, an attempt is now being made to overrule or to have this Court or to ask this Court to overrule both the Bakelite and the Williams case, the Williams case in which I am particularly interested.

One of the first reason that it is urged for the overruling of the Williams case is this, it is said that the -- this Court in the Williams case, disregarded the earlier rulings of this Court with respect to the Court of Claims, if not the rulings at least the views expressed by this Court with respect to the Court of Claims.

Now, the fact is that in the cases earlier like Bakelite or Williams, there was no discussion, there was no consideration of the question as to whether or not the Court of Claims was an Article I or an Article III court.

There were statements made by members of the court to the effect that the Court of Claims was a constitutional or Article III court.

But there was no discussion in the briefs.

There was no discussion in the opinions and no consideration given to the specific point as to whether or not the Court of Claims was an Article I or an Article III court.

It was not until 1929 when this Court considered the Bakelite case where the very full discussion was given with respect to the United States Court of Customs and Appeal or Custom Appeals was engaged in and also a very thorough discussion with respect to the Court of Claims.

What was said of course with respect to the Court of Claims was very enlightening and very inspective but was not before the court in the Bakelite case.

Although it was so inherent and so inter-involved with the determination as to what the U.S. Customs and Court of Appeals was, I believe it was proper, quite proper for a full discussion to be made with respect to the Court of Claims.

And in 1933, of course, there was a specific consideration of the question as to whether or not the Court of Claims was an Article I or an Article III court.

For in that case -- for in that case that this court had for determination whether or not legislation which had been passed providing for the reduction in the pay and the remuneration and compensation of judges of the Court of Claims could be effectively made.

It was urged on behalf of Judge Williams who was the plaintiff in that case in the Court of Claims which was moved to this Court immediately, that he was a constitutional or Article III court judge.

And therefore, under the provisions of Article III of the Constitution, guaranteeing him life tenure and irreducibility in salary or compensation that this legislation was unconstitutional.

Justice Felix Frankfurter: Would you --

Mr. Chester Bordeau: The question was squarely put in that case and squarely considered and squarely and fully briefed by the parties to the suit.

Justice Felix Frankfurter: Would you -- how do you explain why what I think is the real -- the real difficulty, with the Court of Claims as a so-called constitutional court has never been canvassed or urged by counsel namely, that its judgments are entirely of the caprice of Congress?

Mr. Chester Bordeau: Well, I don't know that so anymore, Your Honor.

I think that was true at one time.

I don't think that's true --

Justice Felix Frankfurter: But do you say this is --

Mr. Chester Bordeau: I think the judgments today and they have been for some years have been final.

I don't think they're subject to the approval of Congress --

Justice Felix Frankfurter: Of Congress.

-- except insofar as --

Justice Felix Frankfurter: Congress can --

Mr. Chester Bordeau: -- appropriation may be necessary --

Justice Felix Frankfurter: Well --

Mr. Chester Bordeau: -- for purpose of carrying the judgment into effect.

Justice Felix Frankfurter: But your exception knits -- knits up the whole principle.

Congress --

Mr. Chester Bordeau: That's true in Article III courts, too, Mr. Justice Frankfurter.

Judgments against the United States in an Article III court.

There still has to be appropriations --

Justice Felix Frankfurter: Well, I know but --

Mr. Chester Bordeau: -- before any judgment can be paid.

Justice Felix Frankfurter: But Article III courts so-called, the ordinary District Courts in courts of -- in Circuit Courts -- the old Circuit Courts and the Courts of Appeal and this Court are not exclusively preoccupied with adjudications against the Government involving exclusively money judgments against the Government to which Congress can whistle.

Mr. Chester Bordeau: Oh, I think that's correct.

Justice Felix Frankfurter: (Voice Overlap) you may --

Mr. Chester Bordeau: But I think that's also true if I -- if I may submit.

I think that's also true of judgments that may be entered in Article III courts in (Inaudible) --

Justice Felix Frankfurter: Yes, but if you cut away those judgments for the Court of -- Court of Claims, you've got nothing there.

Mr. Chester Bordeau: That's correct.

Justice Felix Frankfurter: Except advisory opinions --

Mr. Chester Bordeau: That's --

Justice Felix Frankfurter: Frankly, advisory opinions.

But if you cut away that jurisdiction of the District and Circuit Courts and Courts of Appeals and this Court, you got a vast amount of jurisdiction there.

Mr. Chester Bordeau: Oh, I -- I agree with that and I --

Justice Felix Frankfurter: Therefore --

Mr. Chester Bordeau: And that --

Justice Felix Frankfurter: Therefore the fact --

Mr. Chester Bordeau: That may be -- that may --

Justice Felix Frankfurter: The fact that the Court of Claims' judgments are entirely at the grace of Congress except insofar as a moral -- a moral claim behind it, doesn't apply to the regular courts of United States.

Mr. Chester Bordeau: Oh, I think -- I think its part --

Justice Felix Frankfurter: I'm not suggesting that that is (Inaudible) --

Mr. Chester Bordeau: I mean --

Justice Felix Frankfurter: -- an answer to my problem.

But what I'm suggesting --

Mr. Chester Bordeau: No.

Justice Felix Frankfurter: -- that seems to me a real basis for attack.

Mr. Chester Bordeau: But I'm -- I'm afraid -- I'm afraid of this sir in -- that in your statement, Mr. Justice Frankfurter, there is a statement of the fact that with respect to judgments entered in the Court of Claims, that an appropriation is still necessary for the purpose of satisfying the judgment.

And I may be wrong about this but I think the same is true with respect to judgments entered against the United States in the U.S. District Court.

Justice Felix Frankfurter: But I've given you the answer to that.

Suppose therefore, some astute counsel one of these days will say that jurisdiction conferred on the federal courts through the Tucker Act confer a so-called jurisdiction which had the defect namely, that the judgment is merely a moral leading by the court, federal courts and Congress may disregard that.

Suppose the Tucker Act jurisdiction was cut away from the federal courts, has all the jurisdiction left on the bankruptcy, admiralty, patents, diversity jurisdiction, constitutional questions which we decide everyday almost or every Monday.

All that's left, when if that effect is a -- is a valid effect then nothing is left of the Court of Claims.

Mr. Chester Bordeau: Well I think -- I think there is subs --

Justice Felix Frankfurter: It had no tort jurisdiction.

It has exclusively contract --

Mr. Chester Bordeau: That's correct.

Justice Felix Frankfurter: -- jurisdiction against the United States.

Mr. Chester Bordeau: Only against the United States.

Justice Felix Frankfurter: Each of which involves a judgment which for all that Congress is concerned can be a piece of paper.

Mr. Chester Bordeau: And it's --

Justice Tom C. Clark: It comes back to jurisdiction, doesn't it?

Mr. Chester Bordeau: Pardon?

Justice Tom C. Clark: Does it have to attack jurisdiction?

Mr. Chester Bordeau: I think not.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Chester Bordeau: I think I have listed, Mr. Justice Clark, in my -- the appendix to our main brief the various jurisdictional matters that are granted to the Court of Claims and I don't see anything about taxes there.

I don't re --

Justice Felix Frankfurter: There is, involving a tax issue but always against the United States.

Mr. Chester Bordeau: Oh yes, that could be.

That's correct.

Well, that's under the general provision about your laws of United States.

Yes, that's correct.

But not a specific provision about tax claims like the Tax Court that has a provision for its considered tax claims.

Justice Tom C. Clark: (Voice Overlap) negotiation under a term of the contracts, cancelled contracts, (Inaudible).

I think (Inaudible) --

Mr. Chester Bordeau: I am not too sure about that, sir.

Now, as I say one of the reasons that's been urged for the overruling of the Williams case has been this alleged disregard of the earlier cases.

I just part -- tried to meet it if I may, the objections that have been made to the Williams case and the reasons that it have been urged here for the overruling of the Williams case.

The first has been, as I suggested, that the Williams case did not follow the previous statements of observation of this Court with respect to the Court of Claims but I say that is not true.

It's true that there were observations and statements made by courts with respect to the Court of Claims and being a -- an Article III or constitutional court but it was only in Bakelite and in Williams that you have the square presentation of the issue and the consideration of the question and where the question was fully mooted and fully considered and decided by unanimous court.

Now, it has also been urged that Williams should be overruled for this reason.

It is urged that in the Williams case, it was stated by the unanimous court there that in addition to the fact that the Court of Claims performed solely congre -- congressional matters, susceptible to congressional dissemination, that in that case, it was stated by Mr. Justice Sutherland that in view of the fact that the courts up here -- that the United States District Courts did not have jurisdiction in those cases where the United States was a defendant under that clause reading controversies to which the United States shall be a party.

It was stated with reference to that clause in Section 2 of Article III by Mr. Justice Sutherland that under that clause, the United States could not be sued in courts created by Congress under Article III because it was not contemplated that the United States would be a defendant and it's through to that sort.

Now, the fact is, however, that in the Williams case, the statements made by Mr. Justice Sutherland were completely unnecessary to that opinion.

There had been a full determination and discussion made by the court with respect to the fact that the Court of Claims was a -- an Article I congressional court sitting at the whim and will of Congress, performing the work of Congress, relieving Congress of its burdens.

And the fact that it was unnecessary.

The fact that it was dictum was pointed out by Mr. Chief Justice Vinson in the Tidewater case, pointed out in the footnote at page 640, pointed out that the discussion there and this Mr. Justice Black joined in this particular opinion, it was pointed out that that statement by Mr. Justice Sutherland was unnecessary and was dictum.

Justice Hugo L. Black: In which opinion did you say?

Mr. Chester Bordeau: This is in the Tidewater case, Your Honor.

Justice Hugo L. Black: Justice Jackson's opinion?

Mr. Chester Bordeau: Not in Ju -- Justice Jackson and the opinion of Mr. Chief Justice Vinson, think that's page 640.

And I believe that Your Honor concurred in the -- that opinion of Mr. Chief Justice Vinson.

It was pointed out there that that part of the opinion was not decisive and therefore the reason urged here that because reference was made to that fact in the Williams case, if that is a reason for the overruling of the Williams case, I think is that with much merit.

Justice Felix Frankfurter: Mr. Bordeau, I hope you'll leave --

Mr. Chester Bordeau: Yes.

Justice Felix Frankfurter: -- yourself enough time to -- to deal with what was not involved in the Williams case, maybe the 1953 Act namely --

Mr. Chester Bordeau: Well, I do -- what I do want to that -- I'm -- I do want to --

Justice Felix Frankfurter: (Inaudible) -- well, it's beyond the power of Congress --

Mr. Chester Bordeau: (Inaudible)

Justice Felix Frankfurter: -- that you contend that it can create a constitutional Court of Claims.

Mr. Chester Bordeau: I would -- I would like to address myself to that right now although I didn't want to --

Justice Felix Frankfurter: Well, don't -- it take --

Mr. Chester Bordeau: -- take a few minutes to discuss the other reasons that are urged for the overruling of the Bakelite and Williams cases which I do not believe.

Justice Felix Frankfurter: I don't mean to derail you.

I just think that that's very important.

Mr. Chester Bordeau: Well, I -- if it's in Your Honor's mind right now, I -- I would like if I may to answer it right away.

In 1953, the Congress enacted an amendment to Section 171 of Title 28 of the United States Code by enacting an additional sentence to provide that the Court of Claims is hereby declared to be a court established to organize whatever particular work was under Article III that was in 1953.

In 1956, and again by additional legislation in 1958, the Congress enacted legislation which came out in the form of Section 293 (a) of Title 28 of the Judicial Code to provide that the Chief Justice could decide a justice of the Court of Claim or a judge of the Court of Claims to serve on a United States Court of Appeals as was done in this case with respect to Mr. -- to Judge Madden.

Now, it is our intention that that declaration by Congress in 1953 was a mere declaration without any effect.

The legislation of 1953 did not undertake to enlarge the powers or the functions of the Court of Claims.

It did nothing but spell out this statement a label that that it wanted to give to the Court of Claims.

It gave this label or gave this additional amendment to Section 171 for the reason of attempting to repudiate this Court's determination.

This Court's ruling with respect to the constitutional applications of the Act in effect in 1932 which Mr. -- Judge Williams attempted to have declared unconstitutional in the Williams case.

Now, what Congress has done, they said, we will supersede the Supreme Court of United States and we will interpret the Constitution.

And we don't agree with what Supreme Court has said with respect to the Constitution and we're declaring the law to be so and so.

We say that is a repudiation, a futile attempt to repudiate the rulings of this Court with respect to the Constitution and is completely ineffective.

We say it's also ineffective for this reason, that in making this declaration in 1953, as I stated before, the Congress did not enlarge the powers or functions in the Court of Claims.

It's been our contention here that the powers and the functions of a court are the characteristics which determine whether it is an Article I or Article III Court.

That was the test that was laid down in Bakelite.

In that case, Mr. Justice Van Devanter stated that the test is not what in -- what the intention of Congress was.

It was what was the actual jurisdiction conferred on a court.

What were the powers?

What were the functions conferred upon a court?

Those were the matters.

Those were the factors which determine its character as an Article I or in Article III court and not what Congress intended.

That statement again was then adhered to by Mr. Chief Justice Vinson in the Tidewater case to which I have referred and it's with -- with which opinion Mr. Justice Black concurred.

Justice Hugo L. Black: I didn't think I have.

Mr. Chester Bordeau: I -- I think -- I think that's true.

Justice Hugo L. Black: Justice Vinson's opinion?

Mr. Chester Bordeau: Oh, I'm sorry.

I'm sorry.

What I said, Justice Black, I should have said Mr. Justice Douglas.

Justice Hugo L. Black: Yes.

Mr. Chester Bordeau: I'm sorry.

It's Mr. Justice Douglas who concurred with Mr. Justice -- Chief Justice Vinson.

I'm sorry.

Justice Felix Frankfurter: Justice Black was one of the men who made harmony out of this Court.

Mr. Chester Bordeau: Well, I --

Justice Felix Frankfurter: You made three -- three and three contradictory opinion is equal to one vote company as I mean --

Justice Hugo L. Black: I've tried to make three and three, you mean to say?

Mr. Chester Bordeau: Oh, I have --

Justice Felix Frankfurter: In English, that's what --

Justice Hugo L. Black: I'm not a good mathematician.

Justice Felix Frankfurter: That was legal arithmetic.

Mr. Chester Bordeau: Well, I am trying to address myself to the question put by Mr. Justice Frankfurter as to the effect, if any, of the amendment --

Justice Felix Frankfurter: I do want to say before you go on that the Tidewater case really didn't raise these questions.

Mr. Chester Bordeau: Its --

Justice Felix Frankfurter: Really didn't raise these questions before.

The Tidewater problem --

Mr. Chester Bordeau: There's a lot of--

Justice Felix Frankfurter: -- wholly different problem.

Mr. Chester Bordeau: There were lots of -- lot of discussion on that and I agree with you Your Honor.

Justice Felix Frankfurter: What I mean is does the simple question was whether diversity jurisdiction --

Mr. Chester Bordeau: Is --

Justice Felix Frankfurter: -- could be exercised with reference to denizens of the district.

Mr. Chester Bordeau: I must say--

Justice Felix Frankfurter: Whether the district was a state or didn't have to be a state or so on.

Mr. Chester Bordeau: But there was full discussion, I assume, given by the justices of this Court that --

Justice Felix Frankfurter: I would say --

Mr. Chester Bordeau: -- was considered appropriate for the occasion.

Justice Felix Frankfurter: I would say -- I would say two-fold.

Justice Hugo L. Black: I would say that was equal, certainly enough.

Mr. Chester Bordeau: Now, I --

Justice Felix Frankfurter: A field then for discussion.

Mr. Chester Bordeau: I don't know that if I have answered the specific question, Mr. Justice Frankfurter, which you have put to me as to the effect if any of the legislation passed in 1953.

I say that juri -- that legislation accomplished nothing.

Its -- was a pure declaration without meaningful action taken by Congress that is meaningful in the sense that there was a conferring by Congress of any power or any function different from what have been theretofore conferred upon a Court of Claims.

Justice Felix Frankfurter: That's the deduction of your postulate that Congress cannot create a tribunal to which is given as exclusive jurisdiction that with which Congress can deal legislative, alright?

Mr. Chester Bordeau: That's correct.

Justice Felix Frankfurter: I've tried to follow your argument, I won't tell you what I think of it --

Mr. Chester Bordeau: Well--

Justice Felix Frankfurter: -- but I --

Mr. Chester Bordeau: I must say that in the presentation of this argument that I have been set by some of the contrary statements and conflicting statements that are made by this Court and I have been a little confused myself in trying to appreciate the full meaning of what has been said.

That is my answer to the question with respect to the legislation passed in 1953.

Now, the additional legislation passed in 1956 and in 1958 empowering the Chief Justice to make a designation and assignment of a judge of the Court of Claims to sit on the United States Court of Appeals, I say, is unconstitutional in this way that Mr. Justice or Judge Madden rather was appointed in 1941 confirmed by Senate to a court -- a Court of Claims.

Clearly, we submit, an Article I court without the guaran -- guarantee of life tenure and irreducibility in compensation that his assignment to sit in a court where that was a fundamental and basic constitutional requirement is -- was an unconstitutional legislation which permitted the -- the Chief Justice to meet this assignment and designation.

Justice Hugo L. Black: To what do you attribute his life tenure now and his power to hold for life?

To what do you exercise --

Mr. Chester Bordeau: I -- I -- you mean Judge Madden?

Justice Hugo L. Black: Yes.

Mr. Chester Bordeau: I see Judge Madden still doesn't have it.

I still see that Judge Madden up -- he's still sitting, I don't know if he resigned or not.

But if he is still sitting, he didn't -- retirement or otherwise on the Court of Claims, I say that still the Congress may repeal the statute whereby he was given life tenure --

Justice Hugo L. Black: So you say he has --

Mr. Chester Bordeau: -- tenure during --

Justice Hugo L. Black: You say he has a statutory and not a --

Mr. Chester Bordeau: That's a --

Justice Hugo L. Black: -- constitutional --

Mr. Chester Bordeau: Statutory as dis --

Justice Hugo L. Black: -- life tenure.

Mr. Chester Bordeau: Perhaps as distinguished from constitutional.

That's correct, sir.

Justice Felix Frankfurter: What you are saying is that's -- as though Congress dis -- tomorrow afternoon pass the statute giving the director amend for the Director of the Budget your life tenure.

That's all he has.

Mr. Chester Bordeau: That's right.

And I say it's only done with respect to Judge Madden and tomorrow or the day after or the next Congress may repeal this legislation.

And we must keep in mind, also, that in this legislation which purport -- which gave Judge Madden life tenure.

There was no provision as contained in Article III with respect to irreducibility in compensation that was not done.

And yet I don't think, maybe assumed so that the Congress could, certainly with respect to the compensation, reduce that at any time.

And I think they could do the same with respect to the tenure in office.

There is no statute that Congress passes that is irrepealable.

Every Congress may act as it sees fit in the interest of the public as it should be -- is required to, any succeeding Congress may do the same.

Justice Hugo L. Black: Would you mind stating to me in a sentence if you could, why, if you accept as fully valid the statement in Sherwood, forget all about dictum or whatever view points of it, you accept it now, why do you say it necessarily follows that Judge Madden's precedents and the -- this Court should invalidate the judgment?

Mr. Chester Bordeau: For this reason that Judge Madden not having the constitutional guarantee provided for by Article III of the Constitution with respect --

Justice Hugo L. Black: You mean of life -- you mean of life tenure?

Mr. Chester Bordeau: Of life tenure and irreducibility in compensation not having that and his sitting on a court where upon the appointment of a judge to that court, a judge immediately becomes vested with a constitutional guarantee of vesting of life tenure and irreducibility in compensation.

And I -- I go on from there to say that a litigant properly in United States District Court, properly in the United States Court of Appeals has the right, the constitutional right to have a court that is constituted of judges who possess that very fundamental qualification under Article III.

And that a denial of that right to a litigant in that court is a denial of the protection given the public by Article III with respect to life tenure and irreducibility of compensation and under Amendment V --

Justice Hugo L. Black: You consider --

Mr. Chester Bordeau: -- of the Constitution.

Justice Hugo L. Black: You consider it the same as though the Congress had passed the law which said that judges of the Court of Appeals for the Second Circuit should not have life tenure?

Mr. Chester Bordeau: That's correct.

Justice Hugo L. Black: Or as though you would say that if they assign eight, they have five judges from the Court of Claims so that the court would have five people there who did not have constitutional --

Mr. Chester Bordeau: That's correct.

Justice Hugo L. Black: -- life tenure --

Mr. Chester Bordeau: That's correct.

Justice Hugo L. Black: And security of salary and therefore they could not sit in that court.

Mr. Chester Bordeau: That's correct, sir.

Now, I don't have -- I haven't had the opportunity to discuss all of the reasons why I think that the grounds urged for over ruling.

Justice Felix Frankfurter: You go from your postulate to the irrelevance of these other indicia of life tenure and non-reductibility of sala -- salary instead of going from this indicia to finding out whether it's a court.

Isn't that right?

Mr. Chester Bordeau: It's a court.

I think it's a court.

They are courts under --

Justice Felix Frankfurter: I mean it's a court (Voice Overlap).

Mr. Chester Bordeau: -- Article I.

Justice Felix Frankfurter: Yes.

Mr. Chester Bordeau: They are courts under Article III.

Justice Felix Frankfurter: You go from your postulate -- you go from your postulate that this can't be done to saying that these legislative determinations are irrelevant instead of taking these incidents and from them deducing whether it could be an Article III court.

Mr. Chester Bordeau: I -- I don't say--

Justice Felix Frankfurter: Isn't that the test here?

Mr. Chester Bordeau: I don't see irrelevant, I say that these legislated enactments are --

Justice Felix Frankfurter: Well, you --

Mr. Chester Bordeau: -- are repealable.

They're not -- not --

Justice Felix Frankfurter: But I don't mean to say they're not irrelevant but the man doesn't get a salary he gets, but tomorrow it can be changed.

That they --

Mr. Chester Bordeau: That's correct.

Justice Felix Frankfurter: They'd be talking nothing.

Mr. Chester Bordeau: That's correct.

Justice Felix Frankfurter: They'd be talking nothing.

Justice Hugo L. Black: You take the Court of Claims, I assume, as being a court by the Congress has selected these people to serve it and deciding who it would pay what it owed if it does owe and accept them or reject them.

And that it could be the same whether they call them a court or commission.

Mr. Chester Bordeau: That's correct.

Justice Hugo L. Black: Or a committee of Congress.

Mr. Chester Bordeau: That's correct.

Justice Hugo L. Black: Same as giving the power, I assume you would say to the Finance Committee or the court -- the Committee on Claims in the Senate, giving them life tenure.

Mr. Chester Bordeau: That's correct, sir.

Justice Hugo L. Black: Are here appointed.

Mr. Chester Bordeau: That is correct.

Justice Hugo L. Black: (Inaudible)

Mr. Chester Bordeau: And I think that's Congress should have the right to have a court or an agency or a commission or a board to relieve it of the heavy burdens that it has in the performance of its functions.

This Court, that is a Court of Claims performs one of those functions.

Justice Hugo L. Black: Well, I can testify that's a heavy burden of tenure service are.

Mr. Chester Bordeau: Not having been honored but I've heard a great deal about it.

Now, as I -- in a few remaining minutes that I have, I would like to address myself very briefly to the question that's made by the opposition to the effect that we're right about all of these things.

And the court was improperly constituted and so forth then our opponents urged -- well, then we will consider Judge Madden as a de facto judge.

Let us consider him that.

Now, the cases that they cite with respect to de facto are cases, I submit to Your Honors, cases where there have been omissions to carry out formalities in the making of a designation or an assignment of a judge.

They have not been cases and there is no case that I know of whether you have what we have here, a constitutional impediment on the part of Judge Madden in sitting in the United States Court of Appeals.

I might -- I see my --

Justice Hugo L. Black: Can I ask you, am I wrong in taking that the court has -- that the Congress has now -- I'm -- I'm not sure about it, provided military Courts of Appeals with life tenure?

Chief Justice Earl Warren: No.

Justice Hugo L. Black: Have they done that here?

Mr. Chester Bordeau: I don't think they had.

I don't think they had.

Justice Hugo L. Black: What -- what term do they have?

Mr. Chester Bordeau: I don't think -- you consider it a term.

I don't know if a term has even set but those courts I can -- I understand are not the Article III courts.

Justice Tom C. Clark: 15 years?

Justice Hugo L. Black: No, I --

Mr. Chester Bordeau: 15 -- 15 years.

Chief Justice Earl Warren: (Inaudible)

Mr. Bordeau, you may have five minutes to summarize in conclusion if you -- if you wish it.

Mr. Chester Bordeau: I'd be happy sir.

Chief Justice Earl Warren: And you, Mr. Shapiro, if you need it, you may have five minutes more too.

Mr. Shapiro.

Argument of Morris Shapiro

Mr. Morris Shapiro: Mr. Chief Justice, may it please the Court.

I should like to address myself preliminarily to the question as to whether the question which this petitioner has raised in this Court for the first time, is a question that he can't raise.

And for that purpose, we associate ourselves fully with the argument made by Solicitor General in the Lurk case that the issue of Judge Madden's competence to sit in the Court of Appeals for Second Circuit has been waived by not being raised in that court when the appeal was heard.

May I indicate to this Court the extent of the neglect of this petitioner to raise that question.

The appeal was argued in the Court of Appeals on February the 8th, 1961.

The petition for certiorari was filed in this Court on July 21st, five months and 13 days later.

That was the first time this issue was raised by the petitioner.

It is no answer for the petitioner to say, "We weren't aware of this question.

We didn't know about the issue being raised in the Lurk case."

The fact is that the issue came up first in the Bakelite case.

That was decided in 1929 and reported in the official reports.

It was followed by the Williams case in 1933 that was, likewise, reported.

And that was followed by the comment which has been quoted from the Sherwood case in 1941.

And I think it's no answer from my adversary to say that he was unaware of what this Court said in these several cases as an excuse for not having raised that issue before the Court of Appeals.

Now, the public policy phase of this question, I think, is also relevant.

The Administrative Office of the United States Court in answer to an inquiry by me indicated on the date of December 26, 1961 that three judges of the Court of Claims have from time to time been assigned by the Chief Justice to sit in the various Courts of Appeal both in the District of Columbia and in the Second Circuit.

The only statistics available as to the number of cases which they heard and participated in decision apply only for the year 1961 at which time the record indicates that Judge Madden in a period of one week.

We can question where this particular case was argued during that one week where which statistics are available participated in 18 cases.

Now, if we follow my adversary's position, that there is a jurisdictional defect in the sitting of Judge Madden and the assignment of Judge Madden to Court of Appeals and that that jurisdictional defect can be raised at any time five months and 13 days later as it was in this case for five years later.

Then of course, the decisions in all of these cases would be of no effect.

And the questions could be raised by a motion to vacate the judgments.

Justice William O. Douglas: Of course, you have here the unique fact that without Madden there's one judge on each side of the question below.

Mr. Morris Shapiro: Well, I don't know but that may have occurred in other cases, too.

There -- there are no statistics available to us although we've made inquiry which might not indicate that that's situation might prevail.

But, I think it's mere coincidence that you have this situation of one judge dissenting with Judge Madden being part of the majority.

I think that's pure coincidence because if the question should have been raised then as a matter of a public policy that I believe disposes of the question.

Justice John M. Harlan: Are there any figures showing a number of times the Court of Claims judges have been assigned to Courts of Appeals or --

Mr. Morris Shapiro: Yes, I have those.

Justice John M. Harlan: Have you?

Mr. Morris Shapiro: Yes.

Justice John M. Harlan: Were --

Mr. Morris Shapiro: Judge --

Justice John M. Harlan: Are they -- are they printed in your brief?

Mr. Morris Shapiro: No, they are not.

This information came to us later.

And we would be pleased to submit it in the supplemental brief would you --

Justice John M. Harlan: You got it by years?

Is it tabulated by years or --

Mr. Morris Shapiro: We -- we only know the period of time that they sat tabulated by years.

We don't know the number of cases.

May I just indicate, Your Honor, what that situation is?

Justice Felix Frankfurter: Beginning with what year?

Mr. Morris Shapiro: At 1958.

And Judge Madden has sat regularly each year since 1958.

In 1958, he sat for a period in February and again in June in the Court of Appeals for the District of Columbia.

Commencing in 1959, Judge Madden has sat regularly in the Court of Appeals for the Second Circuit for a period of one week each year, 1959, 1960, 1961.

In addition to that, Judge Laramore and Judge Whittaker of the Court of Claims have sat in the Court of Appeals for the District of Columbia only in the year 1958 and not since.

In other words, just to summarize, Judge Madden has been the only Judge who has sat for any longer period of time beyond the year 1958.

And of course, in the Lurk case, we have the situation of Judge Jackson and so far as Judge Jackson is concerned, he sat in the Court of Appeals for the District Court of Columbia for the period of 10 days in 1958.

Justice Hugo L. Black: If you assume that they are right, just assuming that, and telling the court its different, just assume that, you assume they are right in saying that -- that no judge of the Court of Claims has constitutional rights to sit on the Court of Appeals, suppose all three of them have been judges of Court of Claims, would you still say they'd have to raise it?

Mr. Morris Shapiro: Yes.

Yes.

And I think if Your Honors will examine the three cases which have been cited by the petitioner on this appeal, the American-Foreign Steamship case, the Ayrshire Collierie case and Frad against Kelly.

In all three cases where there was a claim of the lack of jurisdiction in the court in all three cases it appeared beyond contradiction that the protest was made at once at the earliest possible moment when the protest was made apparent or the basis for the protest was made apparent.

And in -- in my view, I think the reverse of that situation would be true that absent such a protest when the defect becomes apparent, the question cannot be raised at a later date.

Of course, in our case, we take a position that in the absence of a protest by the petitioner in the Court of Appeals, Judge Ma -- Madden had all of the characteristics of a de facto judge in the Court of Appeals.

Justice Hugo L. Black: Suppose -- suppose that Congress had provided that United States Commissioners could be designated, they had their jobs for life.

Would say they could sit, could have to be no (Inaudible) there has to be challenge?

Mr. Morris Shapiro: Well, I think you have to go one step further.

In other words, the man who was appointed to sit in the Court of Appeals must be a judge.

He must have been performing judicial duties.

In other words, I think to take the question posed by --one raised by Mr. Justice Douglas, you couldn't take a commissioner from the Security and Exchange Commission or a retired Commissioner from the Securities and Exchange Commission and permit him to sit on the Court of Appeals.

You have to have a judge who has been performing judicial duties and who has engaged in judicial business and who has come from a court and authorized him to sit and there must have been some regularity or attempted regularity of his designation.

Justice Hugo L. Black: And where would you draw the lines, suppose of the Court of Military Appeals?

Mr. Morris Shapiro: A Court of Military Appeals is -- is composed of judges who do not have life tenure.

Justice Hugo L. Black: Suppose, they give them life tenure.

Mr. Morris Shapiro: Well, I should suppose that if you have a Court of Military Appeals that had all of the premise that exist with respect to the U.S. Court of Appeals and if they were performing judicial business if they had life tenure and so on, all of these things --

Justice Hugo L. Black: They had legislated life tenure, you mean.

Mr. Morris Shapiro: If the--

Justice Hugo L. Black: Not constitutionally.

Mr. Morris Shapiro: If -- if they were performing judicial business which could be placed within the scope of Article III -- Article III, I must emphasize that as a necessary element in this situation.

Justice William O. Douglas: For some commiss -- Commissioners do -- perform that kind of business.

Mr. Morris Shapiro: A commission may perform such functions.

But it doesn't follow that just because a commission may perform such functions that a commissioner may be assigned to the Court of Appeals.

In other words, you have to have that total picture.

And you can't segregate and carve out some of the elements and say, "Well, could this man go to the Court of Appeals and sit."

Obviously, not.

But in this case, we had all of the elements that went into the making of Judge Madden as at least a de facto judge of the Court of Appeals.

Chief Justice Earl Warren: (Inaudible)

Mr. Morris Shapiro: One important element --

Chief Justice Earl Warren: Mr. Shapiro, the -- the Congress, at least in the last session was giving some consideration to the establishment of a -- a court to settle the pension claims, veterans claims of all kinds.

And suppose they did set up a court just for that -- just for that purpose and said we'll give life tenure and -- and protection against reducing their salaries, would that -- would that in and of itself make -- make that the kind of a court that -- that would be Article III court?

Mr. Morris Shapiro: Well, I don't want to stray too far on --

Chief Justice Earl Warren: Well, I don't think that straying very far.

They are -- they are deciding claims against the Government just as the Court of Claims is deciding claims against the Government and -- and supposing that they give them that power and -- and said, "Well, now, they are an Article III court, would that -- would -- would those things in and of themselves make it a three-judge court?"

Mr. Morris Shapiro: I --

Chief Justice Earl Warren: Or (Inaudible) --

Mr. Morris Shapiro: I would -- I would say --

Chief Justice Earl Warren: That they would -- Article III court --

Mr. Morris Shapiro: I would say that if they were handling cases, determining cases which arise under the laws of the United States in the language of Article III, if they were given life tenure, irreducibility of compensation and if their judgments became final and they had the authority to render final judgments and if they were constituted as a court engaged in the performance of judicial duties and they had all of that trappings of a court, they are a court vested with judicial power.

Chief Justice Earl Warren: Yes, I just --

Mr. Morris Shapiro: And it isn't an answer to say, "Well, its specialized jurisdiction."

Justice Felix Frankfurter: Congress created a few years ago there is now sitting an Indian -- a Commission on Indian Claims, I'd like to have somebody tell me why Congress can, instead of doing what it did to creating a commission with limited tenure because it was expected, hopefully expected that those claims will be settled in a few years and therefore you don't want to have a lot of life long functionary.

I wish somebody would tell me so I can understand it, why Congress cannot create a court to deal with claims arising under treatise with the Indians and under statutes in relation to the Indians and give determination of those issues with adjudication that is not subject at least to revision by the Secretary of the Interior or Secretary of the Treasury, bring to one side the power Congress to withhold appropriation.

Why Congress couldn't -- instead of giving that jurisdiction as it well might as it has in the past the regular so-called Article III court?

Why it couldn't deposit that adjudicatory function into a separate court.

I like to have somebody explain that to me.

Chief Justice Earl Warren: Well, of course the issue --

Mr. Morris Shapiro: Of course --

Chief Justice Earl Warren: Is that the question -- is that question before us?

There is no -- I don't think anybody questioned with what Congress could establish a court of that kind.

But my question knowning the -- went to this, does that in and of itself make it an Article III court.

And that's the only problem we've got here.

I don't know that anybody is contending that Congress had no power to establish a court of that kind.

Justice Felix Frankfurter: But I was --

Chief Justice Earl Warren: (Voice Overlap)

Justice Felix Frankfurter: -- addressing myself to the Chief Justice's question that -- but as to -- I see no reason why Congress couldn't have done what it didn't do in the cases giving rise to the so-called Hayburn's case, which involved six separate determination for the determination of pension claims by veterans of the revolutions, of the American Revolution.

I see -- I don't see why Congress can't confer that either on court spread throughout the country or a tribunal exclusively dealing with it if it didn't do -- if it -- if it avoids doing what it did in that case, namely to make the determinations contingent upon the Secretary of Treasury or War, I forget which, I think Treasury instead of War, approving of it.

But I was addressing myself with reference to these Indian claims, of these pension claims to Mr. Bordeau's postulate that because Congress would pass an act, it couldn't turn it into an honest to God litigation before an honest to God court.

Mr. Morris Shapiro: Well I -- I take the position that although we -- we -- one say that this was necessary to reach that point.

In our case, that Congress can do this and if we meet all of the elements that are essential to the creation of an Article III court that is to say, the creation of a court within the scope of the language of Section 2 of Article III vested with that kind of jurisdiction with the power to render final judgment.

The mere circumstance that the court is exercising jurisdiction between litigant A and litigant United States Government is not in court here.

Justice Felix Frankfurter: Mr. --

Mr. Morris Shapiro: If --

Justice Felix Frankfurter: -- Shapiro, I find the two lawyers don't dwell on what seems to me to be the operative concept of this problem, namely the term of the concept "judicial power."

The question is, is it judicial power in the undefined sense in which Article III used them and the undefined sense which defines from the practice of those people that Holdsworth and (Inaudible) construe that clause the things familiarly were decided by Courts of Westminster.

That's the guts of the case to me.

What its judicial power -- of its judicial power and there's nothing in Article III or any other part of the Constitution which says you can't give specialized limited jurisdiction as Congress had done time and again with reference to the court, the federal courts the so-called "unquestioned federal court."

Mr. Morris Shapiro: May I, in this context, read to Your Honors what President Lincoln said in 1861 when the issue was of considerable and critical importance to give to the Court of Claims as it had recently been constituted the power to render final judgments as -- as one of the elements of the judicial power.

And I think it's important as denoting the statutory intent when Congress acted as it did in 1863 and ultimately in 1866.

Justice Felix Frankfurter: Well, you should state what preceded that message of Lincoln.

Mr. Morris Shapiro: I -- I should be delighted to do that.

Here, up to 1855, as the Court knows, all claims against the United States Government -- Government were presented to the Congress.

In 1855, the question arose as to the manner in which Congress could divest itself of the burden of passing upon these claims.

And so they decided after the consideration of whether a commission should be appointed or commissioners delegated to the task, they decided to create a court, and that court was the Court of Claims.

And it was delegated with the job -- vested with the job of hearing and determining claims against the United States Government.

But Congress at once modified this power to hear and determine by saying that the report on these claims as they were determined were to be referred back to Congress which in effect gave to Congress the right to reverse, to ignore --

Justice Felix Frankfurter: I must correct you -- I must correct you.

Section 14 of that Act gave the Secretary of Treasury -- of the Treasury power to modify the determination of the Court of Claims.

That was the violence.

Mr. Morris Shapiro: In -- in -- in 1861, at the outset of the civil war and with the enormous rise in claims against the United States Government, the issue arose of having a speedier and a final determination of these claims.

And the message of President Lincoln was indicative of the desire of the President and the later action of Congress confirmed that, that the intent was to vest them with judicial power.

And if I may be permitted, I should like to quote from President Lincoln's message.

"It is as much the duty of Government to render prompt justice against itself in favor of citizens as it is to administer the same between private individuals.

The investigation and adjudication of claims in their nature belonged to the judicial department.

It was intended by the organization of the Court of Claims, mainly to remove this branch of business from the halls of Congress."

Now, Congress acted once again in the light of this message.

And this Court, after Congress acted in the Gordon case, held that the act of Congress did not represent a final judgment in the legal sense because there was a necessity of the Court of Claims reporting to the Secretary of the Treasury for the purpose of appropriation.

And Congress once again acted in 1866 by removing this offensive clause that was referred to in the Gordon case.

And so from 1866 until 1929, for all purposes, the Court of Claims had all of the characteristics of a court vested with those powers which in the total sum represent the judicial power.

And there was never any question raised about it until Bakelite and Williams.

Now, when this Court held as it did in Bakelite and Williams, Congress once again acted in 1953.

And Congress declared that the Court of Claims was an Article III court.

Now, at the very least --

Justice Hugo L. Black: Does that --

Mr. Morris Shapiro: At --

Justice Hugo L. Black: -- settle it?

Mr. Morris Shapiro: What, sir?

Justice Hugo L. Black: Does that settle it?

Does that settle the question?

Mr. Morris Shapiro: In my view, it does.

But I say at the very least.

That Act of Congress in 1953 is entitled to great respect as indicating what Congress has decided was its own intent as a body acting at some prior time.

Justice Hugo L. Black: Would you agree or disagree with the statement that Article III at least contemplates that this shall be some courts exercising some kind of judicial power where the judges have to be appointed for life and where they cannot have their salaries reduced?

Mr. Morris Shapiro: Yes.

I agree to that.

And the Court of Claims is such a court.

Justice Hugo L. Black: Would you agree that Congress could've exalt this, create new courts, legislative courts so that they can take the place of all the courts that heretofore have had judges appointed for life just by naming other courts.

Saying they could have a job for life, Congress could thereby do away with any courts under Cons -- under Article III.

Mr. Morris Shapiro: Well, I -- I should suppose that Congress could do that.

But the point of the -- of the argument is this, that having created the Court of Claims and having provided for life tenure.

So far as the judges of that court are concerned and having granted to them what we termed the judicial power that is --

Justice Hugo L. Black: And -- and granted them by legislative exercise of legislative power, life tenure which could be taken away tomorrow.

Mr. Morris Shapiro: Well, how else could this be done?

The power to -- the power to create inferior courts has been vested in the Congress.

The only court mentioned in Article III is this Court, and then it goes on to refer to inferior courts.

And inferior courts such will have the --

Justice Hugo L. Black: Are they to be appointed for life or not?

Mr. Morris Shapiro: What's sir?

Justice Hugo L. Black: Are they do be appointed for life or not?

Mr. Morris Shapiro: They shall have life tenure.

But the power to create inferior courts is vested in the Congress, every inferior court derives its authority and its powers at its source of appointment from legislation enacted by Congress.

And that applies to the District Courts, the Courts of Appeal, the Court of Claims, the Court of Custom and Patent Appeals and many other courts of a wide variety.

Justice Felix Frankfurter: And abolish them tomorrow, all of them?

Mr. Morris Shapiro: That's correct, sir.

Justice Felix Frankfurter: It couldn't -- it couldn't terminate the service the tenure of the judges but it could abolish the court, not with all court out, in connection with the Commerce Court.

Mr. Morris Shapiro: That's correct, sir.

Justice Felix Frankfurter: The court was -- the court was created.

The court was abolished.

They were judges having all the incidence of article -- so-called Article III judges and therefore their tenure couldn't be terminated but their business was put out of business.

Justice Hugo L. Black: Does it follow from that that the Congress has power to create courts to try murder cases, contract cases, all other kinds of litigation between different parties and provide that they shall not have tenure for life.

Does that follow from the fact that they can abolish them?

Mr. Morris Shapiro: I would say that if they seek to this in a court, judicial power as we understand it from Article III Section 2, then all the other things must follow and that is to say that --

Justice Hugo L. Black: What other things?

Mr. Morris Shapiro: Such as life tenure, that irreducibility of compensation --

Justice Hugo L. Black: You mean follow constitutionally?

Mr. Morris Shapiro: Yes.

Chief Justice Earl Warren: Does that include cases and controversies?

Mr. Morris Shapiro: Yes.

Chief Justice Earl Warren: Only?

Mr. Morris Shapiro: Well, it would include those types of cases which are within the scope of Article III that is to say, those cases in whi -- lower equity arising out of the Constitution, the laws of the United States, treaties made and so on.

If they don't arise in that fashion, of course, Congress could do otherwise.

And that was always the attitude of this Court for a period of 101 years from Canter until Bakelite from 1828 until 1929.

There was no deviation at all in the attitude of that court.

And in the Canter case, we had a very specialized situation thereof necessity the -- the life of the court which was adjudicating controversies in the territory of Florida was temporary.

The tenure of the judges was temporary.

And -- and this Court in 1828 carved out for the first time this concept of a legislative court which would apply and which they did apply to courts in territories and to counsel of courts.

But for 101 years, that principle was not extended until the issue came up in Bakelite and in Williams.

And I say, that if you have the Bakelite and Williams case on the one hand, dealing as they said with what they refer to as the intent of the Congress as to the power of the court.

And on the other hand, a manifestation of the intent of the Congress as exemplified, characterized by the 1953 Act, then I say that Bakelite and Williams must yield to the 1953 Act.

Justice Hugo L. Black: Does that mean that in order to sustain your position, Bakelite and Williams must be overruled?

Mr. Morris Shapiro: Not at all.

The contrary --

Justice Hugo L. Black: Why?

Mr. Morris Shapiro: The contrary because the 1953 Act came after Bakelite against Williams and this Court could in all --

Justice Hugo L. Black: Of the 1953 Act, was an act of Congress providing for that which these other cases, as I read them, indicated was required by the Constitution.

Mr. Morris Shapiro: In the Bakelite -- in the Williams case, this Court held the basis of the court's reasoning was that the fact that the United States was a party defendant did not make the cases of -- as -- of cases considered by the Court of Claims, cases which involved the judicial power of the United States.

In the Williams opinion and in the Bakelite opinion, the Court never touched upon the question of the judicial power as it extended to all cases arising under the laws of the United States.

Now, I don't know whether the Court considered it or not.

But clearly here was a broader, a broader scope for the grant of judicial power.

And I say that the Court of Claims is dealing constantly with cases which arise under the laws of the United States and it does all of the other things that any other court could do with the jurisdiction that it exercise are under appropriate legislation.

And the mere circumstance that it's an act of Congress doesn't differentiate the Court of Claims from the District Court or the Court of Appeals.

And while I -- I want to emphasize once again that Williams and Bakelite need not be overruled.

I -- I want to say that they need not be overruled for several reasons.

This Court could hold that there was a waiver of this question.

This Court could hold that at the very least, Judge Madden exercised de facto authority.

And this Court could hold that the 1953 Act was an expression by Congress that this Court was vested beyond all prevention of doubt with judicial power.

And in our view, Congress is the source of such a declaration in all cases.

Justice Felix Frankfurter: If we don't reach -- if we don't reach the question, the ultimate reach of the question that whether the Court of Claims is a constitutional court, whether the Court of Customs and Patent Appeal, whether the District Court has rightly deemed the constitutional court or whether dissenters were right in O'Donoghue.

If we go off on this national law adjudicate on de facto jurisdiction of a specialized situation of the district, we leave this whole apostating, metaphysical mess where it is now.

Mr. Morris Shapiro: I just want to make one final comment, and I think these deals with the question raised by Mr. Justice Frankfurter.

The Court of Claims' determinations are not subjected to the will of Congress.

The characteristic of a court is to adjudicate a controversy between litigant A and litigant B whether they'd be private litigants or the Government.

Once that court has made a final determination, it has acted in terms of an expression of judicial power.

The fact that Congress could sit back and say try to enforce that judgment is of no relevance whatever in terms of a consideration of judicial power.

The fact is that when the Court of Claims act, it renders a judgment which is final for all purpose.

And it is a judgment which Congress cannot reverse by any act of Congress.

That it cannot do.

A judgment may be ineffective, but the judgment itself is not at the whim of Congress.

And for those reasons, we say that the judgment of the court below should be affirmed.

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of Cox

Mr. Cox: Mr. Chief Justice, may it please the Court.

The United States sought and was granted leave to intervene in this case because it drew and question the -- the constitutionality of an act of Congress.

In this instance, the Act of Congress authorizing the Chief Justice to assign judges to the Court of Claims to sit in other courts.

And of course, it was under that statute that Judge Madden was assigned to the Second Circuit.

I intend to direct the bulk of my argument to the constitutional question with which we're directly concerned here.

But I would like to emphasize that in our view, this case like the Lurk case argued last Wednesday, can and should be decided upon the ground that this issue concerning the qualifications of a particular judge to sit in the court, is an issue which can and was waived by the failure to raise it in the court below.

And we think it's therefore unnecessary and would indeed be wise not to embark into this constitutional thinking, if I may call it, sir.

Justice Felix Frankfurter: Why do you think that?

Except on the general question with which I have great sympathy, you shouldn't reach constitutional questions but it leaves -- it leaves the Chief Justice of United States hanging on a limb, does it?

Mr. Cox: It -- it leaves that question unresolved.

Justice Felix Frankfurter: Yes.

Mr. Cox: Yes, no doubt about -- there was no doubt about that.

Well, I simply think that a -- of the -- the general failing that Your Honor expressed I think, where one has a series of cases that there's uncertainty about them, where the problem in terms of our history, as well as the analysis as a confused and confusing one that it is wise to decide as little as one can at a time.

That's the only -- I've no particularsm that it's conceivable that in view of the administrative problems that that general admonition is applicable.

I have a sense that it -- is --

Justice Felix Frankfurter: The reason I --

Mr. Cox: -- particularly pertinent here.

Justice Felix Frankfurter: I think it's particularly not pertinent here, because we are not dealing with a social policy.

We're not dealing with a legislative policy.

We're dealing with something regarding which this Court as -- or ought to have peculiar competence for decision since it concerns the internal arrangements of the federal judiciary.

Mr. Cox: Well, I -- I have prepared to go on and argue the question and give the Court such assistance as I can on the constitutional question.

Justice Felix Frankfurter: I quite appreciate your position and as you know it goes against my --

Mr. Cox: Yes --

Justice Felix Frankfurter: -- strong general attitude most of the time.

Mr. Cox: I would like to develop in the half hour available to me four points.

First, I shall argue to the Court and I think they're really can be very little dispute about this.

The judge by the character of its business by its organization has the powers that it exercises, by the quality including the finality of its judgments, and by the security of tenure and compensation that the Congress sought to give the judges.

The Court of Claims is like our normal Article III courts.

Second, I shall point out that Congress has from at least 1863 forward and we think from the beginning, intended to establish the court as an art -- Court of Claims as an Article III court.

Then I would like to say a few words about the -- what we deem to be the faults and the reasoning in the Williams case.

And finally to discuss the congressional reference jurisdiction of the Court of Claims, under which it does occasionally, not more than once a year on the average render reports to the Congress of which are not strict in judge -- judgments and which therefore does bear upon its standing in the constitutional separation of powers.

May I first say just one word about the jurisdiction of the Court of Claims, it is conferred jurisdiction under the statute to hear claims against the United States founded upon the Constitution, upon any statute, upon a regulation of an executive department, or upon a contract expressed or implied.

That is the great bulk of the Court of Claims' jurisdiction.

It also has a certain appellate power in tort cases against the United States under the Tort Claims Act.

The parties may by agreement go to the Court of Claims from the District Court, instead of going to the Circuit Courts of Appeals.

Justice Potter Stewart: Under the Federal Tort Claims Act?

Mr. Cox: Yes.

Justice Potter Stewart: Does that ever in fact happen?

Mr. Cox: I know of no instance in which it happened but I didn't make a thorough study.

It requires consent of both parties and it seems to me rather unlikely that would happen.

But I thought perhaps it should be useful to have described what kind of cases the court may get.

It may, of course, hear tax cases and does hear tax cases seeking a refund under the first general head of jurisdiction.

It hears cases from the Indian Claims Commission.

And it does have today this congressional reference jurisdiction.

It's only the old executive reference, as been abolished by statute but the Congress does very occasionally ask the Court of Claims to report the facts in a situation where it does not grant judgment.

And I'm going to deal with that at the end of my argument even though it does seem to me to be one of the very essential considerations.

Chief Justice Earl Warren: General, are those Indian claims really cases and controversies --

Mr. Cox: As to -- as to some of them, I think, there's a question, Mr. Chief Justice.

The authority of the Indian Claims Commissions to make the words to the Indians, as I understand it, and I think I'm right with that.

I'd -- I don't want to go too far in assuring the Court of things that I've -- have only a general idea about it.

As I understand it, the Indian Claims Commission, may make awards to the Indians on grounds that would not be applicable in a suit between Your Honor and myself or other private citizen.

And it therefore occurred to me when the question was asked earlier about setting up a court to hear claims of the Indians that if they -- it had the full power that the Indian Claims Commission does but then it would seem to me that it was not the type of case or controversy or the type of judicial business that the framers of the Constitution had in mind when they wrote Article III.

And that therefore, a man appointed to sit whatever term he was given by Congress would not be entitled to the security that Article III gives to a federal judge.

Justice Felix Frankfurter: We've had a petition for certiorari coming from the Court of Claims reviewing Indian Commission issues?

Mr. Cox: I -- that's true.

But it's my understanding is that since the jurisdiction of that commission was increased and it was brought in the early 1950s, I think --

Justice Felix Frankfurter: I mean within a year, I think, we had a petition.

Mr. Cox: You -- you've granted just one since that broadening of jurisdiction.

And it may be that some questions will arise if the cases that are taken up are not ones founded upon the narrower grounds, I think were applicable in all instances.

Justice Felix Frankfurter: But if you are suggesting that Congress cannot create a court to which is given what I call traditional conventional Westminster court jurisdiction but also gives it none such or give it a valuable opinion that that precluded from being a court for cases that are cases in controversy, is that what you're suggesting?

Then you'll get into a lot of trouble I suggest, suppose with the reference to the Court of Claims and with reference to the District Court of Columbia.

Mr. Cox: Well if it -- it involves a lot of trouble and I was not intending to go beyond saying at this moment that some of the business that may come before the Indian Claims Commission is not necessarily judicial business judge by the time -- by what was heard at Westminster or thought of his judicial business in 1789.

I -- I did not intend to go beyond that point at all to reply anything further.

Chief Justice Earl Warren: I -- the reason I asked you the question, I seem to remember I may be wrong but that there's something in that Act which says that the Indian Claims Commission may decide those claims without regard to law --

Mr. Cox: Yes.

Chief Justice Earl Warren: -- correctly.

Mr. Cox: Yes.

They -- it does have a -- it has a broader power.

And I don't think this Court has ever -- has taken a case involving a grant based on the broader ground.

I've -- it has taken at least one case since the jurisdiction was brought.

But I don't think that that involved the claim on the broader ground.

And I know we've had discussion in the department as to whether some of the denials of certiorari in these cases might not have been based in part of the theory that the Indian Claims Commission was no longer simply awarding judicial judgment.

Justice William O. Douglas: We had one --

Mr. Cox: But that's --

Justice William O. Douglas: We had one case where the question arose as to the right of the parties to get interest on the judgment.

You remember that case?

Mr. Cox: Yes.

Yes.

Justice William O. Douglas: So in that I -- I gather we ended up rather sort of an advisory opinion.

Mr. Cox: Well in -- that the underlying judgments may have been based upon contract say, or --

Justice William O. Douglas: Knowing --

Mr. Cox: -- something that wasn't simply generalized --

Justice William O. Douglas: We've --

Mr. Cox: -- yes, by the Federal Government.

Justice William O. Douglas: We refused the allowance of interest.

Mr. Cox: Well, for that -- that -- that still could be based on a judgment based on legal right underneath.

Justice Felix Frankfurter: But -- that the question before us wasn't this but the power of a Commission, the question was as to the judgment of the Court of Claims on review of something that the Commission did.

Mr. Cox: Commission had done.

Justice Felix Frankfurter: And therefore, of course, it was not only the Court of Claims but all the courts of the -- all the Courts of Appeal of this country review determinations of non-judicial bodies.

Mr. Cox: This would take us into an area where I -- I'm afraid I'm not qualified to be much help as to whether the scope for the grounds of review by the Court of Claims.

If they were confined to questions of law in the conventional sense then, of course, this would be like review of other administrative agency action.

Justice William O. Douglas: I don't see why you should be reluctant to get into that field.

We've been in and out of it for several times in the last few days.

Mr. Cox: I guess that I had a different field in mind that Your Honor does.

I do sub -- submit --

Justice Hugo L. Black: Before you leave the Indian business, I may say that I think there has been a question raised about that being judicial whether that's a power to exercise in a judicial way or just under the power of Congress to give away its fund as it wishes?

Justice Felix Frankfurter: But it would have -- it would've had to be not what we thought about the Indian Commision but what we thought about the exercise of power by the Court of Claims.

Mr. Cox: Yes, yes, though there -- there's no -- when one is concerned with the --

Justice Hugo L. Black: I think (Voice Overlap)--

Mr. Cox: -- judicial quality of the --

Justice Hugo L. Black: -- about that also?

Justice Felix Frankfurter: That's a very different question because this Court react and reviewed time out of mind since the 16th -- no the second Gordon case early in the 1917, I think.

This Court have been reviewing adjudication by the Court of Claims for nearly 100 years during all of which time the Court of Claims had also had what you indicated, inquisitorial or investigatorial power before Congress.

But for 100 years, this Court had been sitting and deciding that the Court of Claims is a -- the judicial body for purposes of case of controversy to give this Court jurisdiction although contemporaneously the Court of Claims have been doing a lot of non-judicial business.

Mr. Cox: Not only does it seem to be to establish that, but to establish two other points which are relevant here.

One is that this is not only a case that the Court of Claims' business.

It's not only concerned with cases or controversies but that these are cases or controversies to which the United States is a party or in the other event which arise under the laws of the United States.

I think that it's quite clear that they fall under both heads of Article III power and in that respect that the Williams case was erroneous.

Furthermore, I would emphasize one other thing about the nature of the Court of Claims' business.

It's been suggested during the argument by Mr. Bordeau and by Mr. Gressman last week, that a court cannot be an Article III court unless it hears some cases that must be heard by courts.

Apparently, they've conceived of two kinds of judicial power, one which only Article III courts can exercise and another which Article III courts can but don't have to.

Now, some of the business of the Court of Claims, it seems to me, is the kind -- involves the kind of question, which this Court has held, must be the subject of a judicial determination.

I have in mind particularly the cases where the United States is sued for a taking not by eminent domain but simply by a superior force, the Standard Oil.

The early case of the Monongahela Navigation Company, this Court said that the determination of what is just compensation is peculiarly a judicial function and must be det -- must be made in the last instance by a court.

So that we think on this account, the Court of Claims clearly exercises judicial power in the ordinary sense of looking to see what it does.

It's also plain that the Court is organized in the manner and has the powers including the contempt powers and subpoena power which go to the court.

And I would emphasize third that its judgments every since the Act of 1866 have been final and binding.

It is true that the Court has no power to levy execution.

The payment depends of a -- upon Congress passing in appropriation.

And there is a suggestion in the opinion prepared by Chief Judge -- Justice Taney in the Gordon case that -- that was the -- that the lack of power to levy execution was the fault in the 1863 statute.

Indeed, he dwelt on that somewhat more, I think, than he did on the power of the Secretary of the Treasury to revise.

But since the power of the Secretary of the Treasury to revise was struck down, no one has ever questioned of the finality of the Court of Claims' judgment or the justiciability of the cases that are submitted to him.

Indeed, each judgments are exactly like those rendered by the District Courts under the Tucker Act, exactly in this respect like those rendered by the District Courts under the Tort Claims Act.

And I think our history makes it plain that one can have a legally binding judgment at least against the sovereign without having to have the Court have power to levy execution.

Chief Justice Earl Warren: We'll recess now until 2:30.

Print this transcript Transcript:

Argument of Cox

Chief Justice Earl Warren: -- continue.

Mr. Cox: Mr. Chief Justice, may it please the Court.

Before the recess, I was attempting to develop an antinomy to propositions, both of which are really necessary to set forth our position.

The first is, that in exercising its power to govern the District of Columbia, a power roughly equivalent to that of a state government, the Congress is not required to create courts for the trial of local offenses which have all the characteristics of a court created under Article III, judges with tenure, security and compensation and the like.

At the same time, I must couple with that, the proposition that there are limitations imposed as I see it by the Bill of Rights including specifically the guarantee of a right to jury in trial and the right when one is charged with crime under the Due Process Clause to a judicial determination using judicial in a more general sense that not speaking specifically of judges who have the security that Article III gives the justices of this Court and the judges of courts created under that Article.

Let me put this specifically, I would suggest that there is no inhibition against creating a special criminal court for the trial of local crimes committed in the District of Columbia or the judges of which would be elected for 14-year terms and subject to reelection as under the Missouri claim or in the manner found in the other states.

More specifically and to draw for a second example on a condition which has existed for 150 years, there is no objection to Congress providing that offenses in the District of Columbia shall be tried either before a special criminal court as they were for many years or in a municipal court, the judges of which have a 10-year term.

Also, they are appointed by the President.

There's no election as there is in some state.

This has been true for all history.

Now, that jurisdiction does not extend to the trial of felonies.

I don't mean to say that Lurk could have been tried in the District Court before a judge with a 10-year term.

Unknown Speaker: (Inaudible)

Mr. Cox: Defense is not -- not carrying a sentence to the penitentiary.

Unknown Speaker: Is sentence up to a year?

Mr. Cox: Up to a year, yes.

The point, however, I think Justice --

Unknown Speaker: (Inaudible)

Mr. Cox: I believe, sir.

Oh, yes, yes.

And there's a right of -- to a judicial proceeding I would say under the Due Process Clause.

But there is not by virtue of the statute and never has been in history a right to a trial for offenses below the greater felony before a judge carrying security of tenure and compensation.

And when say that that is not required under the power to govern in the District of Columbia.

Now the question was put to me and I committed partly on it but I perhaps might put it in its context here, could a local trial be tried before the Interstate Commerce Commission?

I would say that such administrative agency is -- as I know it, does not proceed in the manner of a court.

The staff takes a part in the decision in the way that it is not customary in the court.

But there is of course no jury trial but I assume that to pin my answer to that would begging a question.

I don't need to that.

There are other departures from customary judicial proceeding which would cast doubt upon any such statue if Congress were to enact.

An interesting question which was suggested by the question raised by Mr. Justice Black and Mr. Justice Douglas is, well, could Congress provide that in the event of one of the judges of the municipal court would seek that his place should be filled by a man chosen from the Interstate Commerce Commission.

To that, I simply want to make one comment.

Possibly the -- possibly, the right to a judicial proceeding includes the right to be tried before a judge who has had some experience with the law.

I -- and in Interstate Commerce Commission, there would not necessarily have had a broader experience with the law.

But I submit that that case, this hypothetical case of selecting a -- an interim judge to fill the vacancy from the ranks of an administrative agency isn't before us here even putting the worst face on the Government's case.

Judge Jackson was a judge who was appointed, as a matter of fact, after prior judicial experience, with a view to service not only on the Court of Customs and Patent Appeals but on the Courts of the District of Columbia.

Second -- and it was confirmed with the law in that condition.

Second, he was given --

Chief Justice Earl Warren: Would you state that again General, I didn't get it.

Mr. Cox: I said he was appointed --

Chief Justice Earl Warren: Yes.

Mr. Cox: -- with a view to service not only in the Courts of -- and -- in the Court of Customs and Patent Appeals but also to service on the Courts of the District of Columbia.

Chief Justice Earl Warren: (Voice Overlap)

Mr. Cox: The statutes authorized that at that time and prior to his appointment, some judges of the Court of Customs and Patent Appeals as I understand had said in those courts.

There was nothing -- I don't know how much it was taken into mind, I don't mean to say the specific evidence, but the statute contemplated and it was not as Judge Prettyman shows an extraordinary thing.

In addition, Judge Jackson did have so far as the Congress and President could give it to him, security of tenure and security of compensation.

The only possible qualification that I can see on his having those characteristics as of the time he was first appointed was that one Congress is assumed not to be able to buy in succeeding Congress.

Justice Felix Frankfurter: For those --

Mr. Cox: And --

Justice Felix Frankfurter: -- elements that you are arguing in this case, I mean they can't decide --

Justice William O. Douglas: Yes, this is -- this is not an ad hominem a-- argument that (Voice Overlap) --

Mr. Cox: It would seem to me, the only thing that is ad hominem about that was my gratuitous remark that he had had prior judicial services.

I would say that none of the others are gratuitous or irrelevant.

Justice Felix Frankfurter: Not the amount -- they're relevant with the 1922 statute --

Mr. Cox: No, nor fact that he was appointed after.

Justice Felix Frankfurter: No, no, no.

Mr. Cox: Nor that the Senate and the House had given him that.

Justice Felix Frankfurter: No, I didn't refer to that.

Mr. Cox: No, no, in his prior services.

It's a --

Justice Felix Frankfurter: Because under that consideration, some of us are in trouble.

Mr. Cox: Now that was a bit of -- counsel's getting carried away too much but what it can make the most of the fact of this case but all the risk, I submit, go to distinguish this case from the hypothetical case of a trial before an Interstate Commerce Commission.

Now to put the bar --

Chief Justice Earl Warren: General may -- may I ask you before you leave that point, if Congress could pass a statute authorizing the assignment of municipal judges of the district -- to the District Court.

Mr. Cox: Well, I think that that -- I think that one must distinguish at this point with respect to the kinds of cases that come before the District Court.

I would say that there was -- I would draw this distinction and I think it's important in reference to a point raised by Mr. Justice Black.

Let me put it this was and I -- I assure you, I'm coming to the answer to your question which takes more than one sentence.

Mr. Gressman argues that Article III, quoting from the O'Donoghue case, gives the citizens of the District of Columbia the constitutional right to have their cases heard by Article III courts just as the inhabitants of the various states.

Now, the first by that was not in any sense necessary to the decision.

But more important, it seems to me that that is an undifferentiated statement that require some examination as to what is meant by -- have their cases heard before an Article III court of what kinds of cases.

And it seems to me that there are at least three different kinds of cases Mr. Chief Justice that we might have in mind here.

The first is local crimes, offenses against the District of Columbia Code which would not be offenses against the United States if they were committed in Maryland or Virginia or some other state.

And that is what we have in this case and only that.

Now a second type of case might be the general federal crimes such as a violation of the Dyer Act carrying a stolen motor vehicle across the state line or violation of the Mann Act or a criminal violation of the Sherman Act.

A third kind of case, of course, would be a civil case such as the big antitrust case, United States against Parke and Davis that was heard in the District of Columbia where it's the violation of the general law and not one confined to the local code.

I further would -- so that I've got two violations of local law and violations, civil or criminal of federal law.

Now the fed -- violations of federal law, it seems to me that they might permit of a constitutional distinction between citizens of the District of Columbia and citizens of other state.

However, the point that I would emphasize is that we are dealing only with the local criminal offense so that I say that your question, “Could Congress pass a statute authorizing a municipal court judge to sit in the District Court?”

I would say that it could authorize a municipal court judge to sit at the trial of a local crime such as this robbery.

And that -- that is a very different question than the one that would be presented if Parke and Davis in the antitrust case or a person indicted under the Dyer Act or the Mann Act raised objections to having a municipal court judge to sit at the trial of an offense under one of the general federal laws where a quite plainly could not sit on such an -- sit at the trial of such an offense in the Southern District of New York or the Northern District of Illinois.

In other words, I think that the second question is not properly here that Lurk must show that this Court was not properly constituted to try him for the offense of which he was indicted.

And the fact that a day later, the judge may be going to sit in a case, in which he would not be qualified to sit, is to put it colloquially, none of Lurk's business and none of the Court's business in deciding whether Lurk was properly convicted.

And since, I say, that Congress could provide for trying the crime of burglary before the municipal court.

Then surely it can, so far as Lurk is concerned, authorize his trial before the District Court presided over by a municipal court judge.

I see no difference in that respect between the two.

This leaves, Mr. Chief Justice, some questions on deciding, not only questions that of course would puzzle you in making assignments, it also leaves, I should make a claim to the Court some questions undecided that will probably come up from the Court of Appeals of the District of Columbia because I am informed that there are number of cases backed up behind this one which do involve prosecutions for federal offenses.

So the ground of decision I'm suggesting now isn't applicable to all those cases.

It won't solve all of them.

I was tempted to take a broader ground but frankly, this is such a complicated nestle and that it seem to me that I would do best to try and make up my mind about one point at a time and maybe that would be a wise way for the Court to go about it, too.

Ultimately, perhaps Parke and Davis antitrust case will be back here because that's when that Judge Jackson or at least one of the judges in the Court of Customs and Patent Appeals said.

The old Gypsum case is another.

But I don't think we have that kind of problem before us.

Now, the answer I suggested, Mr. Justice Black to the Chief Justice a moment ago seems to me to answer your question if we hold that local crimes in the District of Columbia can be prosecuted before a court whose judges do not have security of tenure and compensation.

Then why won't this spread through the country?

My answer is that Congress doesn't have the power which it has under Article I Section 8 Clause 17 over the District of Columbia in relation to offenses in other parts of the country.

And a fortiori, something that is a violation of a local law and a trial of an alleged local offense need not logically be spread elsewhere in the country.

Justice Felix Frankfurter: If we stretch ourselves and -- and take up every issue that -- that's intellectually implied in this litigation then I could press you with some questions on your last statement, the Congress doesn't have the power that it has over the district.

But by the Tidewater case, there's nothing but trouble for me, why hasn't any different power under the provision of Section 8 of Article I roughly to the district than it has under the Commerce Clause in the same section.

Mr. Cox: That is certainly a question that --

Justice Felix Frankfurter: I don't think we have to decide that.

Mr. Cox: -- can be debated but I think it would be -- I think there are answers that can be drawn.

The best answer, Mr. Justice Frankfurter from -- in my judgment is that there's 150 years of history behind it.

And I can also work out intellectual answers dealing with this point.

Justice Felix Frankfurter: You don't mind my having reference to the answer I gave you, is that true?

Mr. Cox: I think that it's -- what -- no --

Justice Felix Frankfurter: What?

Mr. Cox: -- in the answer to that -- or even if I did, it would be irrelevant.

I pass on now to a second ground of decision which it seems to me that this case can be put on again without facing the very broad constitutional issue.

We submit the petitioner's challenge to the right of Judge Jackson to preside at his trial, came too late.

This point is not raised until the case was on appeal in the Circuit Court of Appeals.

And we submit that under those circumstances, the petitioner cannot be heard or raised but here.

In our brief, we have argued at some length that Judge Jackson was a de facto judge.

And that under the doctrine applicable to de facto officers, his right to occupy the office could only be challenged directly by quo warranto.

I do not intend to spend time developing that further in my early argument.

For the sake of the point that I seek to make now, I assume that a challenge to the composition of the court can be raised by a litigant provided that it is raised at timely fashion.

When he learns the fact as an opportunity to voice his objection, then he may do it, I assume for the moment.

But we submit that when he does not voice his objection at that time when he sits quiet or waits to see the outcome, then if he loses says, “Oh, I have an objection!”

that I could've raised earlier but didn't that the answer is, you're too late certainly where he's been represented by a counsel and all the knowledge was available to it.

The answer that petitioner gives to that argument is that questions relating to jurisdiction can be raised at any time.

And I submit that that doctrine is not applicable here.

This case was clearly being heard in the District Court for the District of Columbia.

The Glidden case, if I may anticipate just a moment, the Second Circuit case involving Judge Madden from the Court of Claims, was unquestionably being heard in this Circuit Court of Appeals for the Second Circuit.

At most, those courts had jurisdiction of the subject matter.

This was the kind of case they were authorized to deal with.

The objection here is not one to lack of jurisdiction to the subject matter but rather to the composition of the court.

Now, so far as we have been able to discover, there is no federal president which holds that a party before a court which does have jurisdiction to the subject matter and knows all the relevant fact could sit back and wait the outcome, and then if it is unfavorable say, “Oh, but that court wasn't properly -- the judge didn't belong there”, that court wasn't properly composed.

All the other cases in this Court, and there are about four of them, are cases in which the objection was raised at the first possible opportunity.

In several, the first possible opportunity was on appeal because you couldn't know who had taken part or haven't taken part of the decision below until it had been made.

But the objection was raised in all the cases at the first possible opportunity.

Assuming that the question is an open one, because I think it is.

Then we say that all the reasons of policy in good sense, the command that there must be an end to litigation, argue for a holding that one who knows the fact cannot sit back and raise his argument if he loses but take advantage of a favorable decision if he win.

This, I think, is the real ground of decision although not exactly as it was put in the opinion in McDowell against the United States, the only case that I recall, dealing with the assignment of a judge from one court to sit in another.

In that case, the objection was not raised until after there had been an unfavorable verdict and there was a motion made in arrest of judgment and the court held that the moving party had no standing to challenge of the right of the assigned judge to sit in the court to question.

The language was in terms of the de facto doctrine which goes broader than anything that I'm presenting here this afternoon.

But the result, it seems to me quite rightly, consistent with what we advocate.

The consequences of any other view are -- are quite appalling and while of course we should have to face them if the decision should be that this can be raised at any time.

Assuming that there is a certain latitude on the authorities, I think the consequences are properly taken into account.

Judge Jackson, I am told, has been set for more than five years in the District Court for the District of Columbia virtually fulltime.

Judge Madden sat for at least a week in the Court of Appeals for the Second Circuit.

Judges of the Court of Customs and Patent Appeals have been sitting in the District of Columbia Court since 1922 with some frequency both in the lower -- in the District Court or Supreme Court as it was for a time and later in the Court of Appeals.

There are now about nine cases of direct attack where the point was raised on appeal pending in the Court of Appeals.

But if this -- if one is to be held entitled to raise this on appeal for knowing the facts he failed to raise it below, it seems to me that it necessarily would follow, but he was entitled to raise it by collateral attack either by habeas corpus or in this big antitrust cases by some direct motion attacking the judgment is void or some -- disregarding the judgment is void and then when it was used, citations for contempt to attack it's validity.

And this would mean that all these cases would be thrown in doubt, would have to comeback to the courts again.

As I say, I don't want to make an in terrorem argument.

This implies that and that implies something else.

But I do think that where the authorities are in their present condition, these consequences of letting parties sit back and not raise a very elegant question like this one would be quite intolerable and that that is a proper judicial consideration.

There is one other point, if the Court please, which again does not go the whole way to the constitutional characterization of the Court of Customs and Patent Appeals although it brushes up against it.

Justice John M. Harlan: Can I ask you one question?

From the point of view of the clearing of the massive backlog or where you choose to call it, meaning, those two grounds of proceeding, do you see -- you have a preference in one over the other?

Mr. Cox: Well, if you -- there is this difference and that is that in the next case, unless you would face the merits, you would have to go on the second ground that I have suggested rather than the first.

It can't be put on the District of Columbia ground.

Apart from that, I think that it would make a -- a starting point in -- clarifying the law to face this question on the first ground -- face this case on the first ground that I argued.

And this -- that would put an end to all these questions here in the district.

Justice John M. Harlan: I believe the Chief Justice (Inaudible) on that.

Mr. Cox: It would leave the Chief Justice out on a limb.

Perhaps, the limb is strengthened a little by the recent departments of judicial -- of additional judges so that the situation that he is confronted with may not be much oppressive.

It would leave him with the embarrassing choice, if there was a court where the only judge available for assignment was a judge of the Court of Customs and Patent Appeals, it would leave him having to decide, it's better to get the business cleared up maybe because maybe it won't clear it up at all or is it better to let the business leg and not create possible future litigation.

I appreciate that problem, my answer comes back to the observation I made earlier in answer to Mr. Justice Frankfurter.

This is such a tangle that if we try to clear up too many questions, I fear that it will just be made worse at least that may only be the limitations of my own thinking, but I find this horrible thinking if one gets into all the possible questions.

Chief Justice Earl Warren: General, if we -- if we decided on this limited theory, I'd like to ask you this question.

But the statute says that the Chief Justice may assign a member of the Court of the -- Court of Patent and Appeals to the District Court in the District of Columbia and he professes to do so, would he have the power, do you think, to restrict him insofar as his being a district judge is concerned by saying that, “Well, I will assign you but I will only assign you to take care of the local cases involving local law”?

Mr. Cox: I've seen no -- no difficulty in his making such an assignment as that.

I think it -- it would -- it would require interpretation of that statute.

But it would seem to me the fair meaning of the statute was that the Chief Justice was given not only the broad power but if he had doubts about the constitutional validity of that to exercise a segment of the broad power included within.

Chief Justice Earl Warren: Well, my -- my point is simply this, that if he is a district judge, is he not a district judge one is defined without any limitation can be placed for him by anyone except that the --

Mr. Cox: I would think not.

Chief Justice Earl Warren: -- the laws --

Mr. Cox: Let me --

Chief Justice Earl Warren: -- do powers of the district judges?

Mr. Cox: To make my thinking clear.

Let me put it this way.

Let's suppose that we had a decision in this case, saying that a citizen, resident of the District of Columbia, does not have the right to be tried for a local offense before a judge having security of tenure and compensation.

And let us have fur -- let us assume further that we had a decision which we don't have yet, but let's assume that we did saying that general -- crimes under the general federal statutes and cases -- civil cases of that kind, cannot be presided over by a judge of the Court of Customs and Patent Appeal.

Then, I am for -- then I should think one has to say when I -- when Congress pass this statute, did it intend to be an all or nothing proposition?

And since it can't be all, does that mean it must be nothing?

I would say no.

I would say that this was a statute which permitted separation that the overwriting intent is to give the Chief Justice as much power as Congress could to get the judicial business of a country done and that giving effect to that overwriting interpretation, one could exercise the invalid part.

And I would think the same excision was permissible where the Chief Justice was bothered by a genuine constitutional doubt.

Chief Justice Earl Warren: I think we ought to consider also that when the Chief Justice assigns a judge as a district judge, the Chief Judge of a Circuit also has the right to use him as a member of the Court of Appeals.

Mr. Cox: Well, if we pass the decision that I stated -- the two decisions I stated, he wouldn't have the latter right -- he couldn't have.

Chief Justice Earl Warren: Yes.

I see.

Mr. Cox: This -- just one more sentence on that point to which -- by way of analogy, if a principle gives me a bundle of power as -- as an agent, I don't have to exercise them all.

I may exercise some part of it.

And I would say that the Chief Justice here was in that relation to -- to the Congress under the statute.

There's a third point which still does not require the position of the broadest constitutional question and that is that even if the Court of Customs and Patent Appeals is not a constitutional court of whatever that may mean, that a court which may exercise what Mr. Gressman calls the judicial power of the United States, still, Judge Jackson had all the qualifications necessary to sit in an Article III court.

Well, I cannot say that this is clear on the face of the opinion of the court below.

It does very strongly suggest to me that the reasoning of that court run like this, and I submit it to this Court as sound, that Judge Jackson was appointed to exercise two functions to sit in the Court of Customs and Patent Appeals and to sit in the Courts of the District of Columbia.

He was appointed for life, given security of compensation and confirmed as a judge exercising either one of those powers that this was enough to make him an Article III judge.

That even if a judge of the Court of Customs and Patent Appeals absently assigned that statute, it wouldn't have gotten security in this respect since the appointment was made in relation to the assignment statute that Judge Jackson did get.

Now, certainly this doesn't defeat any intention of either the Congress or the President into the Senate, I should say, or the President because they confirmed him, because they appointed him for life with security of tenure.

Unknown Speaker: (Inaudible)

Mr. Cox: Yes.

That's what it comes to.

Now the only -- the only objection that could possibly be raised to that if he had been appointed with a view to assignments in the Southern District of New York would have been well he was appointed to -- also performed non-judicial duties and you can't have that.

But, under the -- under the O'Donoghue case, you can have that in relation to the District of Columbia.

So it seems to me that he had --

Unknown Speaker: (Inaudible)

Mr. Cox: The 1922 statute applied only to the district.

I just want to emphasize that this doesn't require going the whole step to other courts.

Unknown Speaker: (Inaudible)

Mr. Cox: It reads --

Unknown Speaker: (Inaudible)

Mr. Cox: Yes.

Unknown Speaker: Court of Customs?

Mr. Cox: That -- yes, yes.

And you will recall that the original Judiciary Act didn't fix any tenure just as the act under which -- as the original act of the Court of Customs and Patent Appeals didn't fix any tenure.

It just assumed the constitutional government.

That was changed in relation to the Court of Customs and Patent Appeals before Judge Jackson's appointment following the decision of the Bakelite case.

But the statute did give him a tenure for life so that the result --

Unknown Speaker: (Inaudible)

Mr. Cox: The Commission is printed in the front of petitioner's brief at page 10, Justice Brennan, page 10.

Unknown Speaker: (Inaudible)

Mr. Cox: Petitioner's brief, the blue -- the thicker blue brief.

Now even if this argument does not establish Judge Jackson's Article I status as of the time he was appointed, surely, he acquired that status after the legislation of 1958 because the only thing possibly lacking in it earlier was that the Congress -- that Congress may have had some power to modify, overturn the action of previous Congress.

But in 1958, when the Congress declared that the Court of Customs and Patent Appeals was a constitutional court, surely, it surrendered what power it could possibly have had left.

And since it was the only agency that possibly did have any power left at that stage, it surrender of it would seem to be complete.

And we --

Chief Justice Earl Warren: And do you think that before 1958, it was constitutional court?

Mr. Cox: No -- no.

No, I think that before 1958, Judge Jackson had all the qualities of a -- required for a judge in the Court of Appeals in the District of Columbia including security of tenure and compensation.

I dislike so far as we can speaking of constitutional court or legislative court because frankly, I don't know what it means or what anybody else means it means that it's -- there are times when one falls into it would it -- it's a -- it's a very difficult phrase.

Chief Justice Earl Warren: Is there any legislative history they show why Congress acted in 1958?

Mr. Cox: There were -- there were two threads that run through the debate.

The dominant one was the desire -- this came up at the time when there was pressure for new judges.

And Congress said, “Well, we will make it possible for the Chief Justice to have greater freedom in assigning judges.

And we'll enable judges of the Court of Customs and Patent Appeals to be assigned anywhere in the country instead of confining them to the District of Columbia which was a regular thing.”

That, I think, it is fair to say was the dominant theme of the debate.

There was also an interest in having the court made a constitutional court.

The Court of Claims had been made a constitutional court overruling so far as Congress could do it putting pressure to overturn the Williams case and there was an interest in having a light constitutional status given to the Court of Customs and Patent Appeals.

But it quite clearly was related to the problem of assignment as well as to this other question.

Chief Justice Earl Warren: What I was saying of this, General, suppose -- suppose that this session of Congress, an act would be passed making the tax courts a constitutional court in giving him permanent -- permanent tenure, do you think that because they are now enable to -- to adjudicate cases that that would make the judges who would retire prior to that time, judges capable of assignments throughout the country?

Mr. Cox: I would think that it would but I would find out that I don't have to go and haven't gone that far because --

Chief Justice Earl Warren: No.

I know.

Mr. Cox: Yes.

Chief Justice Earl Warren: Speculating (Voice Overlap) --

Mr. Cox: Well, it's obvious --

Chief Justice Earl Warren: -- my own problems here.

Mr. Cox: Well, I'm glad to do that but I do want to keep this case simple.

Chief Justice Earl Warren: So let's -- yes?

Mr. Cox: At least it may be decided.

Chief Justice Earl Warren: Yes, I -- I understand you.

Mr. Cox: Our argument does take the next step, Your Honor, and says that yes, if there were no other impediments and I understand you to be assuming no other impediment.

Chief Justice Earl Warren: Yes.

Yes.

Mr. Cox: That Congress could make the retired -- of course these judges, none of them were originally appointed for life at all.

Chief Justice Earl Warren: They were not.

They were not.

Mr. Cox: That's correct.

They have only a term for years.

And our argument does not go so far as to assert people who were originally given a term for years could by an act of Congress be converted into general judges with all the attributes of an Article III judge.

Justice Felix Frankfurter: I don't think they could by an act of --

Mr. Cox: I should --

Justice Felix Frankfurter: -- Congress but the court could be made into one.

And those who had -- previously had a life tenure could upon re-nomination by the President for good behavior term and confirmation by the Senate.

Mr. Cox: Then would --

Justice Felix Frankfurter: Then get --

Mr. Cox: Yes.

Justice Felix Frankfurter: -- that status.

Mr. Cox: It'd slipped to my mind for a moment that these were judges who've been named only for terms.

Chief Justice Earl Warren: Yes.

Mr. Cox: And my first answer was quite wrong.

If the Court finds that it must go further and decide the status of the Court of Customs and Patent Appeals, then we do submit that it is a court created under Article III and Article I Section 8 that therefore Congress did have the constitutional power to authorize the assignment of Court of Customs and Patent Appeals judges to other Article III courts.

I recognized that this involves asking the Court to overrule the Bakelite case and the Williams case.It seems to us that we're wired in making that request for several reasons.

In the first place, the course of decisions of this Court on this question has certainly been far from uniform.

It's only with very great difficulty that the O'Donoghue case can't be squared with the Bakelite case and still greater difficulty that it could be squared with the Williams case.

The Williams case itself overturned a long series of considered expression by this Court saying that the Court of Claims was a constitutional court.

So that I think this is peculiarly a situation where the state of the decision would justify reexamination without any weakening of whatever it's the normal doctrine of stare decisis.

Second, it is surely of someway in deciding whether a court -- whether the Court should reexamine a president that the Congress has both in 1953 and in 1958 expressed it's disapproval of those decisions.

And it's desire if it could to do everything possible to change these courts if the change was required in the constitutional courts and to urge this Court to reconsider the doctrine from the beginning.

And while of course that's not binding and this is a constitutional question where there would be little occasions to have deferred the Congress, nevertheless, it's a reason for being willing to reconsider it, I think, in additional reasons.

Now, I think that in deciding whether the Court of Customs and Pa --

Justice Felix Frankfurter: Why do you -- why do you say this is not a situation which need to defer to, is it because it's the jurisdiction or the judiciary problem?

Mr. Cox: I had Your Honor's statement in the Tidewater Insurance case.

Justice Felix Frankfurter: Yes, I know but that was -- that didn't meet with as much fairer advantage than it does with you now.

Mr. Cox: Well I think because --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Cox: I think -- I think because -- maybe it will still meet with the majority favor --

Justice Felix Frankfurter: I think there -- I think --

Mr. Cox: It either suspects what I have in mind and I take it Your Honor had in mind was that this is a special kind of question.

Justice Felix Frankfurter: I agree with you entirely.

I only want to make this qualification.

To me, there's a difference when there is an act of Congress whatever weakens the statute, containing the jurisdictional or judiciary problem using that word as an adjective, and having given that of any thought that is not now raised yet but that was my view in Lincoln Mills as you know but after the decision by this Court and consideration of the problem conscious consideration by the problem, by the Congress that was true in these enactments after Bakelite, I think you've got a different situation.

Mr. Cox: Well, of course from my --

Justice Felix Frankfurter: How do you --

Mr. Cox: -- from my standpoint in this case and the more weight that the Court is willing to give to its depth.

Justice Felix Frankfurter: Yes -- I'm just --

Mr. Cox: As a general question, I think I would urge to Your Honor that in -- intellectual conversation that a -- even when the matter has been considered, the problem dealing with the judiciary and with -- just what are the implications of Article III that the congressional judgment perhaps deserves somewhat less weight than in dealing with labor legislation or minimum wages.

Justice Felix Frankfurter: I agree with that.

All I'm saying is where you've got to deal with the problem which is inherently returns difficulties so that men are concerned and familiarity with these problems can -- to put it mildly take two views the fact that Congress, in the light of prior decision that this Court has taken the view that it has, has weight which wouldn't be have an issue of.

Mr. Cox: Well, I -- I would certainly urge that and I think that the distinction that I failed to note is -- is well taken.

In deciding whether the Court of Customs and Patent Appeals is a constitutional court, it seems to me wise to stay away so far as we can from these abstract, indeed, rather esoteric question such as the judicial power of the United of States, the non-delegable judicial power of the United States Constitutional Court and the like.

I suggest that having in mind the words and the purposes of Article III that we should seek to judge the character of this Court by looking at four things.

First, what's the court's function?

What is the subject matter with which it deals?

Second, what are the powers, and I mean external power not some inherent reality that you can't see, but what can it reach out and take hold of?

Who can it put in jail?

Who can it subpoena as witnesses of the like?

Third, the qualities of its judgments especially in their finality, are they binding?

Are they subject to review by the executive branch or by someone else and fourth, the tenure and compensation of the judges?

Judged by those standards, we submit that both the Court of Customs and Patent Appeals and in the next case, the Court of Claims are courts out of power with such inferior courts as the District Courts and Circuit Courts of Appeals and in that sense, but I will call roughly Article III courts, having nothing than a loose descriptive meaning in mind.

Let me look -- ask you to look first of the situation as it was shortly after the Court of Customs and Patent Appeals was created in 1909.

The subject matter with which it was created to deal was -- were -- was cases which theretofore had been heard in these old Circuit Courts of the United States.

In other words, it took over a function which had been performed by some of the courts created by Congress as inferior courts of the United States.

These were cases dealing with the classification of articles for the purposes of the tariff law and determinations as to what was the rate of duty do.

And they were cases which have been reviewed on a case within this Court by one -- by certiorari.

They were clearly cases of controversies.

It seems to me undebatable that they arose under the laws of the United States.

And I would submit the Williams case to contrary not withstanding that they were controversies to which the United States was a party.

Certainly, it was one of the parties in interest and the other party, of course, was to first see important.

But in any event, even if they're not controversies to which the United States was a party, they did arise under the laws of the United States and therefore came under their head of Article III jurisdiction.

Looking at the second standards, the powers of this Court in deciding cases, there is no explicit specification of what its power should be in the statute.

But you will find it in our brief that the words of the statute creating the court were borrowed from the legislation creating the Circuit Courts of Appeal.

It follows almost word for word.

And there's every implication therefore that this Court was to be organized in and have the same powers as those courts.

Indeed, the Court of Customs and Patent Appeals is a court of the United States under Section 453 of Title 28.

And it therefore has the powers conferred upon the courts of the United States in the other parts of the Judicial Code including the powers to issue subpoenas and directly to punish itself and to punish people for it for contempt instead of having to refer them to some other tribunal as an administrative agency and presumably the Tax Court would have to do.

So the judge by the second standard, surely, this function in the manner and exerted the external powers of a court.

Third, there's no question between the judgments of the Court of Customs and Patent Appeals after its creation had all the qualities of the judgments of other courts.

Indeed, they had sufficient finality so that in this class of cases, this Court has reviewed.

Fourth, the judges certainly ostensibly had full security of tenure and compensation.

The language of the original act with respect to their term was just like the language of the original judiciary act.

The assumption throughout the debate in Congress as our brief shows was that they would have both security of tenure and compensation.

And their appointments, read in the manner in which all normal judges are appointed.

It is true that following the Bakelite case, the Congress did pass a statute saying that the term of judges of the Court of Customs and Patent Appeals should be during good behavior.

This, I take it, was a situation forced upon the Congress and does not show any departure from its original intention under the 1909 Act, indeed it would tend to confirm it.

And whatever its intention was in 1930, if I may jump ahead, its intention under the 1958 legislation is perfectly plain.

Indeed, the -- the salary of these judges from the beginning was the same as that of an ordinary circuit judge.

Now, as I understand it, there are two arguments that are made by Mr. Gressman against the conclusion that the Court of Customs and Patent Appeals as first setup was what he calls a constitutional court.

First, he says in his brief, although I thought he sort of strayed from the line a little in oral argument when pressed that this is not a constitutional court because it's specialized.

It doesn't deal with a wide range of cases and controversies but with a specific kind of cases and controversies.

I submit that that proposition is untenable on its face of the Emergency Court of Appeals was a specialized court.

The Commerce Court was a specialized court.

As Justice Frankfurter suggested during the oral argument, it's always been assumed that an Article III court, courts that his judges had security of tenure and compensation could be created to hear public cases.

And in recent years of course, there has been much discussion about setting up an Article III court to hear labor cases or to hear administrative cases on the notion that specialization deprived the court I've just stated is contrary to the assumption of the bar and of this Court and others I think at this point.

There is another argument, as I understand it, is that there is nothing which this Court does which is inherently or necessarily requires judicial determination.

And this is a phrase drawn from the Bakelite opinion.

I confess that I find in Article III nothing that suggests any foundation for that language.

And furthermore, I think that it is an exceedingly unfortunate as what we would mean by which inherently are necessarily requires judicial determination.

This would mean that to determine whether a judge has life tenure, he would have to run through all the business that his court is -- and -- is authorized to hear and decide whether any of it necessarily requires judicial determination.

Now this isn't a clear question at all in the light of decision and history over the past 30 years.

It's been a good deal of shifting back and forth between what maybe submitted to the executive or an administrative tribunal and what requires judicial determination.

The -- so that I suggest that as it was constituted, there could be very little question.

But that the judges of Court of Customs and Patent Appeals had all the qualities which go with the judge appointed to one of our regular courts under Article III.

Then when it comes to the question, whether the additional jurisdiction that was vested in that court in 1925 by the trier of fact of that year and again in about 1930 when the jurisdiction of the court -- of the Court of Appeals for the District of Columbia over cases from the Patent Office was transferred to the Court of Customs and Patent Appeals destroyed its character.

Let me speak first into patent jurisdiction.

We have argued in our brief that this -- that this jurisdiction is in truth a judicial power.

Justice Felix Frankfurter: Would you mind --

Mr. Cox: This --

Justice Felix Frankfurter: -- would you mind being specific and state what matters the Court of Customs and Patent Appeals deals with that one dealt with for 50 years by Judge Hand sitting in the District and Circuit Courts in the numerous patent and unfair trade cases that he had.

Mr. Cox: Well in this respect, I think that there is in truth none.

Unknown Speaker: Right.

That's what I thought.

Mr. Cox: That seems to me proposed in Postum Cereal case is wrong -- wrongly decided.

And we have elaborated the reason in our brief.

I would like simply to mention one point because I have trespassed on the Court's time enough already.

If you will note particularly the case of Hoover Company against Coe dealing with the traditional bill in equity to review Patent Office decision, you will find that essentially the same kind of case as the appeal jurisdiction has been dealt with the -- with by the District Court and by this Court for many years.

So that on this point, we think there really is no problem at all.

This leaves the little fringe power of the Court of Customs and Patent Appeals to decide whether there has been an unfair method of competition in the -- by importers of goods.

And it does have a power to review the decisions of the Tariff Commission in that respect, the decision of the Tariff Commission then goes to the President.

And the President has the authority to determine whether to put a heavier duty on these articles or whether to exclude them from importation.

Justice Felix Frankfurter: Well, that isn't -- as I understand it, that isn't -- the subject matter is non-judicial but it isn't final because the President can exercise its political power to -- to reject it.Isn't that right?

Mr. Cox: And on that -- on that, I would make -- I agree if I would go on and -- and make two comments.

First, I think I should say, although it -- there's only been five instances of this throughout the history of this power.

Second, that the Court of Customs and Patent Appeals, for reasons which I don't have time to elaborate, said that the President didn't have authority to disregard the decision upon this question, which is a type of question which of course this Court and Courts of Appeals decide on the Federal Trade Commission Act, what is an unfair method of competition.

Justice Felix Frankfurter: But suppose you -- suppose you take it at face value that they differ from the power which the Courts of the District have which are now constitutional court could fix the rates.

Mr. Cox: No.

And one, I was going to make that, and one other sentence just to suggest the point, I think really, it doesn't differ either Justice Frankfurter from the power that this Court and the number of other courts exercise when they say to the Secretary of State, for example, you may not deny a man a passport on this ground.

It's a question whether later he will get a passport or whether they say to the Labor Board, you may not exclude a union from filing in charge of unfair labor practices upon this ground.

I think our notions of finality in relation to the administrative procedure have developed and that this, too, would require some reexamination of some of the assumptions of the Bakelite case.

For any of these reasons, we think the judgment below should be affirmed.

Chief Justice Earl Warren: Mr. Robb.

Argument of Roger Robb

Mr. Roger Robb: Mr. Chief Justice, may it please the Court.

I appear on behalf of the Chief Judge and the Associate Judges of the Court of Customs and Patent Appeals amici curiae.

In the 10 minutes of my disposal, I should like if I may to make or touch upon two points.

First, I should like to examine the contention of the petitioner that he has a constitutional right to a trial before an Article III court for an offense committed in the District of Columbia.

And second, with deference, I should like to examine, the decision of this Court in the case of Ex parte Bakelite.

Now on the first point, the petitioner contends that he had a constitutional right to be tried before an Article III court and judge for an offense committed here in Washington in the District of Columbia.

We submit that trial for such an offense in the district before a purely legislative court would be constitutional.

That is, we say that no constitutional right of this petitioner was violated even though Judge Jackson was not an Article III judge.

Now, this Court has long recognized and the Congress had recognized that the courts of the District of Columbia perform a dual function, the function of state courts and the functions of regular Federal District Courts.

And pursuant to this doctrine, Congress has provided since early days for the trial of criminal cases arising in the District of Columbia before legislative courts.

As early as 1838, the Congress created in the district what was called a criminal court composed of one judge who did not have life tenure and whose salary was less than that of the District Judge and provided that that judge would try all criminal cases arising in the District of Columbia, all cases in which were involved violations of any law in the District of Columbia.

In 1870, Congress created in the district what was then called the police court which had jurisdiction over all misdemeanor prosecutions concurrently with the District Court.

And that jurisdiction has continued from that day to this.

The name of the court of course hadn't been changed.

The court now have been called -- haven't been changed.

Now, at present, such misdemeanor is triable in this non-Article III legislative municipal court include not only violations of local statutes but violations of general federal statutes which hardly occur in the district would be tried before a Federal District Court which at least made to suggest, may it please the Court.

And perhaps this might have some bearing upon the questions of the Chief Justice.

That the test of the power of Congress to provide in the district for the trial of criminal offenses and before a non-Article III court is not the section of the statute which is involved but rather the venue of the offense.

And if Congress has the right to provide on the trial of all offenses of which the venue is in the District of Columbia before a non-Article III court.

Now, of course, if the reasoning of the petitioner is sound and we suggest that all prosecutions of misdemeanors in this district, perhaps since 1870, had been unconstitutional and void and that frankly is rather hard for me to believe.

We might know it also that of course a defendant worthy tried for a misdemeanor or a felony is entitled to a jury trial to all the guarantees of the Constitution.

Now, I might note parenthetically that the Court in his opinion in Bakelite characterized the then Supreme Court of the District of Columbia as a legislative court.

And yet at that time, the Supreme Court of the District of Columbia exercised jurisdiction over all felony prosecutions here on the district.

So I take it Mr. Gressman will not go along with that portion of the Bakelite opinion.Now --

Justice Felix Frankfurter: What was the tenure advantage Mr. Robb?

Mr. Roger Robb: I beg your pardon?

Justice Felix Frankfurter: What was the tenure of those judges in the Seventh --

Mr. Roger Robb: Life.

Justice Felix Frankfurter: Life.

Mr. Roger Robb: Yes, sir.

Now, coming to my second point, as a lawyer, I have of course an abiding faith that this Court is wiser than I and certainly knows more law than I.

And therefore, it is with some dividends that I suggest that a decision of this Court was mistaken.

However, my duty to my clients requires me to do so in the case of Ex parte Bakelite.

I should like to point out briefly the reasons why we have raised that conclusion.

As Mr. Cox has said in the first place, the jurisdiction invested in the Court of Customs and Patent Appeals by the Tariff Act of 1909 was precisely the same jurisdiction which part of that time had been invested in the Federal District Courts or Circuit Courts which of course were constitutional courts.

Now, the Court in the Bakelite case said that courts established under Article III of the Constitution called constitutional courts share in the exercise of judicial power defined in that section and can be invested with no other jurisdiction.

But turning to the jurisdiction of the Court of Customs Appeals, the court found that that jurisdiction was advisory only.

Now my question is, may it please the Court, if the jurisdiction of the court of -- of the -- of the District Courts was constant -- was that of a constitutional court and those courts could be invested with none other, then I'll pray -- I'll pray can we say that such jurisdiction was not -- not the jurisdiction of a constitutional court when it was transferred to the Court of Customs and Patent Appeals.

It seems to me there is a necessary break in logic in this reason.

Now, we submit that the jurisdiction of the Circuit Courts was plainly judicial, an Article III jurisdiction and it -- and it did not cease to be such when transferred to the Court of Customs and Patent Appeals.

Now, we invite your attention also to the fact that the Payne-Aldrich Tariff Act of 1909 provided that custom cases then pending in the Circuit Courts might be reviewed on appeal by the Court of Customs and Patent Appeals.

Again, we ask, could it be, could it be that a mere legislative court exercising only advisory or administrative jurisdiction could be created by Congress to review the judgments of Federal Constitutional Courts.

We question also the reasoning of Bakelite that the judgments of the Court of Customs Appeals were not judicial for the reason that the matters involved in appeals before that court had been at times confided to executive determination.

We submit that matters which might -- might be confided to such determination may also be the proper business of constitutional courts.

And an example of course, is in cases arising under the Federal Tort Claims Act.

Now finally, on the subject of the custom jurisdiction of the court, we emphasize, as Mr. Cox has pointed out, that only a minute fraction of that jurisdiction was involved in the Bakelite case.

And that fraction was the court's jurisdiction to review on questions of law proceedings leading to a recommendation to the President in the matter of tariffs.

Only six such cases have ever reached the court.

And we think -- think that this particular jurisdiction which by the way was not conferred upon the court until 1922, 13 years after the court -- court was started that this particular jurisdiction, even though it is merely advisory should not taint the entire jurisdiction of the court and should not by its coloration, discolor the entire court.

Now, I see my time is up.

I haven't quite finished my findings.

Chief Justice Earl Warren: You may take another minute to --

Mr. Roger Robb: Thank you, sir.

Chief Justice Earl Warren: -- to finish it.

Mr. Roger Robb: In our brief, may it please the Court, we point out that since the decision or after -- after this Court's decision in the Postum Cereal case.

The statute was changed with respect to patent appeals so that decisions on appeal of the Court of Customs and Patent Appeals now are final.

But apparently, that change in the statute was not called to the attention of this Court at the time of the argument in Bakelite.

And we think it's a very important one.

We have discussed these matters in our brief at further length and I should (Voice Overlap) --

Justice Hugo L. Black: I want to ask you one question.

Mr. Roger Robb: Yes, sir.

Justice Hugo L. Black: With reference to the first part of your argument.

Mr. Roger Robb: Yes, sir.

Justice Hugo L. Black: You drew distinctions along the line of difference between a legislative court and an Article III court.

Mr. Roger Robb: Yes, sir.

Justice Hugo L. Black: I don't -- I find it difficult to decide, difficult to follow that what you meant by that in this respect -- in this respect, I understood you to say that the District of Columbia, a man could be tried for what you call a legislative court.

Mr. Roger Robb: Yes, sir.

Justice Hugo L. Black: And one wherein could be tried -- which could only be tried in places outside of the District Court.

In other words --

Mr. Roger Robb: Yes.

Justice Hugo L. Black: -- define that murder case.

Mr. Roger Robb: Yes, sir.

Justice Hugo L. Black: Could you tell me what is (Inaudible)?

In the structure, in the -- the significant in the structure --

Mr. Roger Robb: Well --

Justice Hugo L. Black: -- or in the method of administering the (Voice Overlap) --

Mr. Roger Robb: What I meant to say Mr. Justice Black was that certain violations of general federal statues which do constitute misdemeanors which if they occur here in the district may be tried for -- before the lower court, the statutory court whose judges do not have life tenure.

However, if those offenses occurred in a district, they would necessarily be tried in the Federal District Court.

Justice Hugo L. Black: You draw your distinction there between a misdemeanor and something else.

Suppose its murder, what's the difference?

What could be the difference as the way it functions?

Someone will operate --

Mr. Roger Robb: Any --

Justice Hugo L. Black: -- forgetting the word legislative Article III --

Mr. Roger Robb: Any --

Justice Hugo L. Black: -- and everything else.

Mr. Roger Robb: Any murder case of course would be tried before our District Court here.

Justice Hugo L. Black: Well, I understood you to say though it could -- the cases could be tried differently as the man and the people in other states and places, had to be tried by the federal court one way for their crime but could be tried a different way, crime generally could be tried a different way in the District of Columbia.

Mr. Roger Robb: I don't think I intend to say that, Mr. Justice Black.

Of course -- of course the procedure would be the same.

My only point was that where the venue of any offense is -- is here in -- in Washington D.C. is that offense is a misdemeanor.

The offender is tried before to lower court.

Justice Hugo L. Black: Are you talking about how it is done?

Mr. Roger Robb: Yes, sir.

Justice Hugo L. Black: Suppose it's a murder, are you taking, as I gather, you have drawn in distinction between the way people could decide constitutionally --

Mr. Roger Robb: Yes.

I say --

Justice Hugo L. Black: -- in the district and outside.

Mr. Roger Robb: I would say Mr. --

Justice Hugo L. Black: Could there be?

Mr. Roger Robb: I would say, Mr. Justice Black, that if -- that in the case of a murder, the Congress if it wished to do so as it has done in the past, as it did it -- as it did back in 1838, Congress couldn't provide that such cases should be tried before a court in the District of Columbia whose judges did not have life tenure.

Justice Hugo L. Black: Is there -- is your case dependent on that?

Mr. Roger Robb: Well, my point was that since Congress has that power, this petitioner has no constitutional right to be tried for robbery before a judge having life tenure or before a judge of a constitutional court, if you want to put it that way.

That was my point.

Justice Hugo L. Black: If the argument has been made on the side you are on, leads to the conclusion that people charged with felony or a crime can be tried one way under the Constitution in the District of Columbia, another way in the -- outside of the District of Columbia to the disadvantage of either that would raise different questions so far as I'm concerned.

Mr. Roger Robb: That is correct.

May it please the Court, but I -- I think perhaps if I might say so, the catch in Your Honor's -- in Your Honor's position is --

Justice Hugo L. Black: I don't intend evidently.

Mr. Roger Robb: Oh, no.

Justice Hugo L. Black: I'm trying to find what you meant.

Mr. Roger Robb: Yes -- yes sir.

I think perhaps the -- the -- the point is that I do not believe it -- it is to the constitutional disadvantage of the petitioner in this case or would be.

Justice Hugo L. Black: You mean to be tried by a judge not appointed for life as independent as you know constitutionally --

Mr. Roger Robb: That's been done --

Justice Hugo L. Black: -- right to there -- in the District of Columbia?

Mr. Roger Robb: All I can say is, Your Honor, that it -- it has been done in the District of Columbia in the past by Congress starting in 1838.

And of course that -- that question doesn't necessarily arise here because we have a judge who was appointed for life.

Justice Hugo L. Black: I -- that's what I thought.

Mr. Roger Robb: Yes, sir.

So, I would say that perhaps -- perhaps the question isn't -- isn't here in this case.

Justice Hugo L. Black: Well, I hope it's not.

Mr. Roger Robb: Well --

Justice Hugo L. Black: But I can't see is that if the whole argument is based on that assumption --

Mr. Roger Robb: Whole?

Oh, no.

Justice Hugo L. Black: -- it is not here.

Mr. Roger Robb: Oh, no, sir.

Oh, no.

Oh, no, not indeed.

No indeed sir.

My point merely was in the past that was done.

I think that threw some light upon the present situation.

But here in this case, we do not have a judge.

We do not have a question of a man being tried for murder before a judge who serves only for fix term of years, which I can see it might make a difference.

Justice John M. Harlan: Well, the Solicitor General says that he makes that either inconsiderable the Congress could do it, could provide.

Mr. Roger Robb: I beg your pardon?

Justice John M. Harlan: The Solicitor General meets Justice Black's question had on by saying that for a local crime in the District of Columbia, Congress could provide for a trial written through an Article III judge in the sense of one having (Inaudible).

Justice Felix Frankfurter: And so do you.

Mr. Roger Robb: Yes, sir.

Justice John M. Harlan: -- (Voice Overlap) -- backing away from that argument --

Mr. Roger Robb: No, sir.

I'm not backing away from our --

Justice John M. Harlan: So your case doesn't involve it.

Mr. Roger Robb: No, sir.

I --

Justice Felix Frankfurter: But you've said it explicitly that you agreed in that.

Mr. Roger Robb: That's correct, I do.

Justice Potter Stewart: The Congress not only could do it but did do it.

Mr. Roger Robb: They did do it in the past, yes.

Justice Potter Stewart: In the 19th century.

Justice Felix Frankfurter: The other way around is Justice Black's trouble --

Mr. Roger Robb: But --

Justice Felix Frankfurter: -- the other way around is important too.

Not that Congress did it, but couldn't.

Justice Hugo L. Black: That's my problem.

Mr. Roger Robb: I think they could Mr. Justice Black --

Justice Hugo L. Black: Sometimes --

Mr. Roger Robb: -- and they have.

Justice Hugo L. Black: -- sometimes they say that Congress could not do it that way.

Mr. Roger Robb: Now, of course, may it please the Court, if the man were tried in a state court for murder, he would very -- and unusually is tried before a judge who doesn't serve for life.

Justice Hugo L. Black: Well that's a state court.

Mr. Roger Robb: That's correct.

Justice Hugo L. Black: The District of Columbia is not a state.

Mr. Roger Robb: Oh, no.

But Congress at this point --

Justice Felix Frankfurter: -- (Voice Overlap) -- was that -- what pre-held in Tidewaters.

Mr. Roger Robb: As this Court has said, Congress, may it please the Court, Congress acts as a state legislature for the District of Columbia and has done so.

Justice Hugo L. Black: If that -- if by that is mean that people in the district must be -- can be tried for crimes precisely the argument in state, they can be tried in the state according to this Court's previous opinion without an indictment, without a jury and as you say without judge appointed for life.

Justice Felix Frankfurter: I would -- I would say, may it please --

Justice Hugo L. Black: Do you say that that can -- that the people of the district can be tried without juries?

Justice Felix Frankfurter: No, sir.

Justice Felix Frankfurter: (Voice Overlap)

Justice Hugo L. Black: -- (Voice Overlap) -- different.

Mr. Roger Robb: Because this Court has so held.

Justice Hugo L. Black: The -- they can in state.

Mr. Roger Robb: Because, may it please the Court, as this Court has said emphatically, the District of Columbia is subject to the first 10 Amendments of the Constitution and jury trial is guaranteed.

This Court said that specifically in the Keller case, pointed that out and although, for instance we can -- a man may be tried here for a misdemeanor before a judge who served for only 10 years.

Nevertheless, he has the right to a jury trial.

Justice Hugo L. Black: Well then of course, you are not saying that the people here can be tried as they are tried in the state.

Mr. Roger Robb: No sir, not entirely.

No, sir.

Justice Hugo L. Black: Just according to a pick and choose method.

Mr. Roger Robb: No, sir.

I say that where the Bill of Rights specifically guarantees a man a right here, he gets it.

But when he doesn't, then that's the question.

Justice Hugo L. Black: Suppose one thought that the Bill of Rights including your whole Constitution, includes the right to be tried by a judge appointed for life independently --

Mr. Roger Robb: Well --

Justice Hugo L. Black: -- what about that?

Mr. Roger Robb: Well, then -- then of course the Court would say I was wrong.

Chief Justice Earl Warren: Mr. Gressman.

Argument of Eugene Gressman

Mr. Eugene Gressman: Mr. Chief Justice.

In the few minutes remaining in me, I like to briefly discuss several points mentioned by the Solicitor General.

In the first place, and then align with the discussion that just taken place, I challenge the right of Congress to provide that a crime -- that a felony can be tried in the District of Columbia other than before an Article III court or an Article III Judge.

This Court has never said to my knowledge that a person charged with a felony in the District of Columbia may be tried before a legislative court or a legislative judge.

Now, I think there are serious questions, serious constitutional questions raised by any assumption or by any effort by Congress to provide that the person accused in the district of a serious felony crime is not entitled to the constitutional independence of a judge assigned to sit in judgment of that case.

Unknown Speaker: (Inaudible)

Mr. Eugene Gressman: Well that brings into a consideration -- entirely different line of factors, namely, the historical difference recognized between felonies and misdemeanors and the historical doctrine which has always been recognized that in misdemeanors may be tried before petty courts.

Unknown Speaker: (Inaudible)

Mr. Eugene Gressman: But --

Unknown Speaker: (Inaudible)

Mr. Eugene Gressman: That is true.

That comes under the district clause of the constitution authority.

But I do not concede that when a felony is involved that that district clause necessarily gives the authority to Congress to establish that the crime maybe tried before the municipal court.

Unknown Speaker: (Inaudible)

Mr. Eugene Gressman: No.

The Constitution Article III provides that you may have cases heard arising under the laws of the United States.

And this Court has held consistently and the Court of Appeals has held that a crime against the District of Columbia is a crime against the United States and that the District Code is a law of the United States under -- within the meaning of a constitutional phrase.

Now, it seems to me that --

Unknown Speaker: (Inaudible)

Mr. Eugene Gressman: Well, that comes then into your historical and always a recognized exception solely in terms of misdemeanors.

Unknown Speaker: (Inaudible)

Mr. Eugene Gressman: Well, at least as far as congressional legislation but that doesn't mean that that was necessarily a constitutionally recognized distinction or lack of distinction.

Justice Felix Frankfurter: We should heed common law history but not American history, is that right?

Mr. Eugene Gressman: Well, I'm saying that --

Justice Felix Frankfurter: History of more than 100 years.

Mr. Eugene Gressman: Well, that -- that was a -- at the very beginning of the operation of the district and it was soon changed.

Justice Felix Frankfurter: But I --

Mr. Eugene Gressman: As I recognized it --

Justice Felix Frankfurter: But I should hope -- I should suppose that in the earlier days, the Congress probably knew as much as judges, has much part of the Constitution as we know now.

Mr. Eugene Gressman: Well, that may well be true.

But I suggest that to make a distinction as to felony crimes as between those accused of felonies in the District of Columbia and those in other parts of the country called before Federal District Courts is to create again a most serious discrimination because Your Honors are well aware of the fact that there is an assimilative crime statute which provides that -- that -- giving jurisdiction to Federal District Courts all around the country to try serious felony crimes committed on felony -- on federal property.

And any person accused and tried in a Federal District Court in Kentucky for the crime of burglary or robbery or murder committed at Fort Knox is certainly entitled to a trial on that charge before an Article III judge and an Article III court.

And I sub -- and that too, the power to provide for such trials comes again out of Article I Section 8 Clause 17, the same clause, the same Section of the Constitution which is involved in this case, the District of Columbia Clause, the Clause that gives Congress the power to legislate and provide for situations arising on other federal property.

But again, this problem need not be reached.

The Solicitor General is so anxious to avoid to -- to a constitutional question.

It seems to me that this is another problem that can be avoided because the plain fact, undeniable fact is that we are not dealing with what Congress might have done with respect to the trial of felonies, we are dealing with Congress -- what Congress has done to it.

Unknown Speaker: (Inaudible)

Mr. Eugene Gressman: I have this constitutional challenge that the petitioner makes, goes to -- to the validity of that 1922 statute as elaborated in 1958 and the expansion thereof but it seems to me that the Bakelite case gave warning in 1929 that there might be serious constitutional questions about such assignments.

Justice Felix Frankfurter: But I thought Justice Lamberth had said that the answer to the argument was, but he got the 1922 statute for purposes of assignment in the district.

I --

Mr. Eugene Gressman: Well he said --

Justice Felix Frankfurter: I can't read that otherwise on the last page of his opinion.

Mr. Eugene Gressman: He's --

Justice Felix Frankfurter: He's indicating that he thought it's alright for them to sit in the District Court.

Mr. Eugene Gressman: Well, there you get you -- Your Honor into the other elaborating problem in the Bakelite, which as you are well aware, referred to the District of Columbia Courts as legislative courts which was later expressly overruled in the O'Donoghue case.

Justice Felix Frankfurter: I know.

Mr. Eugene Gressman: So that you -- we have this -- this is not a matter of complete consistency in -- in rulings and determinations.

Justice Felix Frankfurter: But that's what I've been trying to suggest to you all through your arguments.

Mr. Eugene Gressman: But I would say in conclusion, Your Honor, that there is a consist -- a line of consistency that runs through the opinion of this Court in which constitutes, it seems to me, the key to this entire case.

And I think its best expressed at page 579 of the Williams case in 289 United States which again reiterates that precise demarcation which I have tried to develop in this case.

And again, Justice Sutherland, speaking for unanimous court in that case goes back to Murray's Lessee against Hoboken Land and Improvement Company and points out by quotation that there are certain matters which once invoked by Congress absolutely require judicial determination and cannot be delegated to any other agency of the Government.

And at the -- on that time -- and at the same time, there are matters involving public rights growing out of Article I which Congress can as it sees fit, give either to an administrative and executive or a legislative or even a judicial arm of the Government.

Now, if it does only the latter such as it -- the Court said in the Williams case, since all matters were made cognizable by the Court of Claims are equally susceptible for -- of legislative or executive determination.

They are of course matters in respect of which there is no Constitutional right to a judicial remedy.

And the Court thereby does not become one created or authorized to exercise Article III judicial power.

Now, this -- this maybe esoteric considerations but at the same time, they are considerations that go to the very heart of the separation of powers doctrine.

Justice Felix Frankfurter: You couldn't possibly justify the Commerce Court on that general talk of Justice Sutherland because that court had nothing but a jurisdiction which need not have been conferred on Court.

Mr. Eugene Gressman: Exactly, but they had one other thing, Your Honor, and this I think was critical that judges that were selected for that court were not only given jurisdiction.

Justice Felix Frankfurter: Yes, but the Court wasn't -- the Court wasn't.

Mr. Eugene Gressman: We are talking about judges Your Honor in this case.

Justice Felix Frankfurter: I'm saying that therefore the Commerce Court was not a constitutional court.

Mr. Eugene Gressman: I am saying Your Honor that the judges thereof were Article III court judges because they were not only given jurisdiction and power to execute the functions of the Commerce course -- Court.

They were expressly given the authority by statute and in -- to exercise the authority of the regular circuit and district judges.

And they were to be assigned thereto with the expressed power having been given to.

Justice Felix Frankfurter: But Mr. Gressman, if that same statute were passed today and I was sitting on the Court of Appeals and I were appointed by the President of the United States whereas to sit on the Commerce Court, I could say very respectfully as John Jay did to Washington, you're asking me to perform non-Article III duties and to a great respect, I decline to do so.

Mr. Eugene Gressman: Well, this precise situation arose with the Emergency Court of Appeals.

They superimposed upon Article III judges as in the sense -- as exactly what they did in the Commerce Court, they impo -- superimposed upon judges qualified to exercise Article III powers and additional function.

Justice Felix Frankfurter: We're talking across purposes.

I'm saying that they couldn't superimpose on me with the enlightenment you've given me, duties to serve on a court which is not a constitutional court.

Mr. Eugene Gressman: Well, I think it's constitutional for the sense that -- in the sense that the judges or you would already have Article III judicial power.

Justice Felix Frankfurter: Yes, but there is a difference between a tribunal and the members there are.

Mr. Eugene Gressman: Exactly.

Justice Felix Frankfurter: And if the tribunal is charged with delegable duties so that which Congress as to the Emergency Court could've left with the Food Administrator or the Secretary of Agriculture, a tribunal was created according to your insistence that was not of an imperative judicial nature and no federal judge could be compelled to serve a tribunal of an imperative non-judicial nature.

Mr. Eugene Gressman: Well, if the court --

Justice Felix Frankfurter: I'm trying to learn from your lesson.

Mr. Eugene Gressman: If the court and the judges thereof are established for the sole purpose, the sole purpose of exercising this ambiguous --

Justice Felix Frankfurter: And they can do it?

Mr. Eugene Gressman: -- ambivalent jurisdiction.

Justice Felix Frankfurter: Can they --

Mr. Eugene Gressman: I --

Justice Felix Frankfurter: -- do it then?

Mr. Eugene Gressman: -- say it is not an Article III court.

But if they want to give this ambivalent jurisdiction to Article III courts or to judges who are already qualified under Article III, that is perfectly permissible.

That's the basic distinction.

Justice Felix Frankfurter: It isn't because Hayburn's case said we wouldn't do it.

Hayburn's case refused to do it, the judges refused to exercise that power, why?

Because that which they were asked to do are subject to review by the Secretary of the Treasury.

Mr. Eugene Gressman: Then that's another line -- that's another line of distinction.

If you're going to try to impose on an Article III judge, what is not a case or controversy or what is not judicial at all in nature.

Justice Felix Frankfurter: But I'm -- according to your definition, the Commerce Court was not a judicial body in the sense of Article III.

Because --

Mr. Eugene Gressman: No.

Justice Felix Frankfurter: -- it's jurisdiction, I'm not talking about the judges, its jurisdiction -- it was given jurisdiction over matters which need not have been conferred on a court.

Mr. Eugene Gressman: Well, only in the same sense that the Emergency Court of Appeals was a specialized tribunal.

Justice Felix Frankfurter: That's equally subject to your condemnation.

Mr. Eugene Gressman: No, Your Honor because it seems to me those are the only two exceptions in all American history where Article III judges previously qualified to exercise Article III judicial power have had given to them in the -- in the format of a specialized tribunal superimposed upon them, this ambivalent jurisdiction.

Justice Felix Frankfurter: I understand all that but it doesn't deal with your argument which I thought of -- sent to it -- you said it's sent to it.

Mr. Eugene Gressman: Right.

Justice Felix Frankfurter: -- that a court -- that as a party isn't a judge free tribunal unless it has been given by Congress the jurisdiction which necessarily must be given to court.

Mr. Eugene Gressman: And I think it also -- the judges at the same time.

Justice Felix Frankfurter: Alright.

Mr. Eugene Gressman: Thank you (Inaudible).

Chief Justice Earl Warren: Mr. Gressman, the -- the Court takes notice of the fact that you're appointed by the Court of Appeals to represent this indigent defendant and that you've not only carry it through your obligation there what you've done here in a very extensive and a very able way and we're very grateful to you for what you have -- what you have done.

We thank you -- we thank you Mr. Robb for your representation of -- of the Court of Customs and Patent Appeals and of course, you, Mr. Solicitor General for your helpful manner representing the Government.

Print this transcript Transcript:

Argument of Cox

Mr. Cox: Mr. Chief Justice, just before the recess, I was attempting to emphasize the judicial functions perform by the Court of Claims and particularly sought to call attention to the fact that at least in some instances, it seems to perform judicial duties which must be performed by a court.

And I cited the determination of just compensation in the case of the taking is in illustration.

I would add to that a second category of business which results from the fact that the Court of Claims has jurisdiction not only of suits against the Government but also of not only set-offs but counterclaims against as those citizens or other person who are plaintiffs in the Court of Claims.

And without attempting to particularize, it seems to me that there could be little doubt not only that this is the kind of business which is the daily grist of courts but that undoubtedly some of those counterclaims would involve claims by the United States against the citizen which could not be adjudicated finally outside a court.

And we think this emphasizes again that this Court's business is in truth the kind of business which was thought of as part of the judicial power of the United States of the kind of business that the court normally dealt with and was equipped to deal with.

Hereto, I think when other distinction is important and then I plan to drop this point.

There was well recognized that the time the Constitution was adapted and in the earlier English Law and later in our law, a difference between sovereign immunity and the existence of a legal cause of action, if you will, against the Government.

And what Court of Claims has been set up to deal with is not the distribution of large gist but the adjudication of these causes of action against the Government of the kind of cause of action that was well-known and could be maintained where ever the sovereign choose waive it's immunity not only prior to the adoption of the Constitution but in this cou -- in England, but in this country about that time and in various types of cases afterwards that points develop with a history in our brief.

And I simply allude to adhere as further evidence that controversies to which the United States may be a party as a matter of recognized usage at the time the Constitution was adopted involved not only controversies in which the United States might be the moving party but controversies in which the United States would be defendant.

And in holding the contrary, it seems to us that the Williams case is wrong not only as a matter of logic but also as a matter of history.

Chief Justice Earl Warren: Let's assume -- if your argument being true to saying that Congress has imposed (Inaudible)

Mr. Cox: No, sir.

It does not.

I think not.

I was just coming to the --

Chief Justice Earl Warren: Am I correct?

Am I correct in (Inaudible) if I may say this true (Inaudible) to say that any respective court that Congress sets up (Inaudible) that it may impose upon those courts any constitutional law (Inaudible) to which claims (Inaudible) whether in fact biased?

Mr. Cox: Well, we do -- we do make that point.

We do argue in our brief and I aser -- submit here that in the case of special courts set up that the seat of the Government with a limited jurisdiction that Congress may as held in the O'Donoghue case call upon them to perform non -- not strictly judicial duties.

I don't think our case depends on that.

And I think the Court of Claims can be held to be a constitutional court without reaching that conclusion.

But the answer to Your Honor is yes, we do make that argument.

May I suggest that, because I was just going to develop this directly, that I try to develop affirmatively where we do stand on this question.

And then if I haven't answered all the questions to Your Honors' mind, I'll try to do my best.

I was just about to say that what we have here is a tribunal which is a court like any Article III court or except in its place in the hierarchy like this Court in respect to all its business, in respect to all its powers, in respect to the tenure and compensation of its judges, in every respect except for this fringe congressional reference jurisdiction.

And if it were not for that, it would seem to me there was really nothing to be arguing about here.

The question then becomes how does this affect the case.

Well, I would say first, Mr. Chief Justice, that just as the existence of this congressional reference jurisdiction has never been thought to prevent all the rest of the Court of Claims business from being judicial and justiciable and from being cases and controversies such as this Court could review.

So it would seem to me that the existence of this fringed non-judicial duties should not be held to affect the quality of the judges' tenure that they have been set up predominantly for the purpose of exercising judicial power the Congress has sought in everyway that it could to give them constitutional tenure because it thought it was appropriate to the dispatch of the judicial business because, and it mentioned this specifically in 1953.

It would make them available for assignment to other courts and finally because it declared this was to be a constitutional court.

So I would submit that even if these other duties have been given that this should not take away from the judges their constitutional status.

And I point out that that was the holding in the O'Donoghue case although since we are asking the Court to reexamine many authorities in this field.

I think the reexamination necessarily involves the O'Donoghue case, too.

Now, I would think that under --

Justice Potter Stewart: What would be -- what would be your point Mr. Solicitor General that the -- the judges could simply decline if they wanted to to perform their --

Mr. Cox: Well --

Justice Potter Stewart: congressional reference function?

Mr. Cox: My -- my argument up to this point leaves hanging the question what about this congressional reference function.

And I would say first that I don't think there is any occasion to enter a part and inquiry into it, because the -- I do think that one could uphold the status of the judges without going into it.

Still, it is here and I ought to go on.

Justice Felix Frankfurter: What do you want to --

Mr. Cox: I was going to answer Justice Stewart's question.

There are three possible answers, it seems to me.

The first is that being a special tribunal and not like the normal courts this district and circuit courts that this fringed that the rule in Hayburn's Case does not apply in this fringe jurisdiction can be added.

Justice Potter Stewart: Because it's in the District of Columbia or what?

Mr. Cox: Or because it is a primarily.

Because it is a special court which doesn't have the general jurisdiction, the adding of the non-judicial business therefore seems to me not to involve all the problems of overloading the court and the risk of destroying its independence which would be involved if you are dealing with the District Court and the Courts of Appeals.

And this is not after all a rule Hayb -- Hayburn's case is not a rule which is written into the Constitution.

It's a matter of preserving the independence of the judiciary.

But I think there's room for recognition of some questions of degree.

The -- the ten --

Justice Felix Frankfurter: The tenure part.

Mr. Cox: I was just going to say, the tenure part clearly is, and I think a verification also in the Constitution, is that you can't take all of what was regarded as judicial business in 1789 and give it to people who do not have the tenure.

Justice Felix Frankfurter: (Inaudible)

Mr. Cox: Yes.

Justice Felix Frankfurter: (Inaudible)

Mr. Cox: It -- well, the second possible conclusion is that the judges may not be required to do this but just as judges have from time to time all through history in this country, voluntarily taken on additional responsibility.

So the judges of the Court of Claims may voluntarily take on this responsibility.

Finally, there would be of course Mr. Justice Stewart that the possible conclusion that this part of the Court of Claims jurisdiction must be excise.

I would make just one point with -- with respect to that.

I think that Congress has attempted to make it a constitutional court.

It has also attempted to give them this jurisdiction.

Now, if you say you can't have both, it is quite clear to me that the primary intention of this difficulty was pointed out to the Congress hypothetically.

The primary intention was to make them a constitutional court.

And I would submit that if the Court should feel that it had to face this question of the congressional reference jurisdiction and if it felt it could not be given even to the specialized court and then it should give effect to the primary intention of Congress as it has declared it and the rule that the congressional reference jurisdiction could not be added to a constitutional court that if Congress wanted a tribunal that could do both, it would have to change its legislation around.

But I think really the point which I can see the being most significant is the one I have made first to with that the -- had the -- that the status of the judges who have the judicial power to exercise is -- is clear and that that is the only question involved here and that the effect of this once a year congressional reference shouldn't alter their constitutional status or Judge Madden's power to sit therefore as a constitutional judge in the Second Circuit.

Justice Felix Frankfurter: (Inaudible)

Mr. Cox: I wasn't --

Justice Felix Frankfurter: (Inaudible)

Mr. Cox: No, no, what I said -- what I meant to say Your Honor was that I'm not asking the Court to reconsider anything in O'Donoghue.

And I don't think my argument requires me to.

I said I suggested that for me simply to say O'Donoghue holds you can add non-judicial duties to some Article III Judges was hardly an end of the matter because I was asking the Court to reexamine two other cases that hardly laid my mouth to say well, as to that one, it's a binding precedent but that was all I was saying.

Justice Felix Frankfurter: (Inaudible)

Mr. Cox: I don't quarrel with anything in O'Donoghue.

Chief Justice Earl Warren: Mr. Shea.

Argument of Francis M. Shea

Mr. Francis M. Shea: Mr. Chief Justice, may it please the Court.

Mr. Justice Stewart may I add just a footnote to under mark the Solicitor General on his last point.

The Court of Claims itself and in rescind considered that the exercise of the congressional reference power was as commissioners and so stated.

Chief Justice Earl Warren: As what (Inaudible)

Mr. Francis M. Shea: Has commissioners.

But they exercised their powers as commissioners and Judge Madden when the 1953 Act was before the Congress indicated to the appropriate committee that they might well no longer be in a position to require the Court to exercise that jurisdiction although it was indicated that as a voluntary matter they would exercise it.

And I suppose, since Hayburn's case itself, the -- as the Solicitor General has pointed out for judges to take on the three of the judges, at least in Hayburn's case Jay, Duane and Cushing, indicated that they could take on that function which was non-judicial as commissioners.

Justice Potter Stewart: As a matter of grace or (Voice Overlap) --

Mr. Francis M. Shea: And it's a matter of grace.

It couldn't be required to.

Now, if the Court please, I wonder if in --

Justice Felix Frankfurter: That's the trouble in trying that under the federal (Inaudible)

Mr. Francis M. Shea: And five of the judges who sat on and told them they had dispute could have declined.

Now, I wonder if I might possibly, in my limited time, be most hopeful to the Court if I could seek some points of reference which might be considered still fixed in this maze of complexity.

In the first place, it seems to me reasonably clear that the framers of the Constitution were in cant and anxious to be certain that those exercising judicial power were independent and could not be put under the coercion by the other two branches of the Government.

They were thinking of judicial power, I suppose, in the traditional sense.

Certainly, they could not have had in mind the kind of subtleties which we had been discussing today.

If they were thinking in terms of the jurisdiction customarily exercised by the Courts in Westminster, they were competent lawyers there whom I assume knew that going back as far as the 14th Century the Courts of Westminster to with Court of Chancery and the King's Bench had exercised just the kind of jurisdiction that is exercised by the Court of Claims, the petition of right, monstrans de droit, the traverses of office.

Chief Justice Earl Warren: What was that?

Mr. Francis M. Shea: Traverses of office.

In short, they were anxious to protect, it seems to me, the exercise of the kind of judicial power that the Court of Claims is exercising from -- from the coercion or influence of the other departments of the Government.

And I would suppose that the Court of Claims needs the protection as much as any court in the judicial system that is likely to come into conflict with the Congress and the Executive Department.

It's not -- it's passing on large problems involving large sums of money but it's also passing on critical constitutional rights involving the Bill of Rights problems, involving civil rights problems.

There was before this Court in O'Donoghue the question of the independence of the judiciary coming up in the in the guise of the Pahy case.

In the Lovett case, the question of the bill of attainder; there are recently been before the Court questions of whether or not a member of the Armed Forces in a courts martial case is entitled to the protection of the Sixth Amendment for instance.

So that I would suppose that this was the kind of exercise of judicial power that the framers of the Constitution wanted to protect against the coercion of the other departments and that this Court would not deny that protection unless it's compelled by persuasive argument that the Constitution would not permit it.

Now, let me go on to one or two other points that I should hope were still fixed points of reference.

I would suppose that there was no contest about the proposition that the Constitution doesn't invest jurisdiction in any court except this.

I suppose that it is -- it is clear that what the Constitution does is authorizing power the Congress and give the Congress discretion to create inferior courts to ordain and establish inferior courts.

And I would have thought before the arguments in the Lurk case and this that there had never been any question that Congress might give as much or as little of the powers specified in the second section of Article III as it chose to give to such a court and that have ordained and established a court under Article III and give it nothing but the Tucker Act jurisdiction there'd be no doubt that it could established that as an Article III court.

Justice Potter Stewart: Would there be --

Mr. Francis M. Shea: I --

Justice Potter Stewart: -- would there be doubt if it did do that?

Mr. Francis M. Shea: Would there be what?

Justice Potter Stewart: (Inaudible) if it did do that.

If it gave -- if it set up a tribunal and denominated it a court and gave it only Tucker Act jurisdiction, would Congress have the power to -- to provide that the members of that tribunal should have anything else except life tenure?

Mr. Francis M. Shea: I should have thought that there was not the slightest doubt about that into argument advance today that Congress ordained and established an inferior tribunal and gave it only federal question jurisdiction.

Indeed, I -- I have supposed that -- that the argument that in the Constitutional Convention was how much of this going to be taken, how much can Congress take away from the State.

But it didn't have to take it away.

I would have thought that clear, Your Honor.

It seems to me that from the time of what is it Cary against Curtis right straight through the Lockerty case which was decided after Williams and -- and Bakelite that no doubt had ever been raised about this issue.

Justice Potter Stewart: Well Mr. Shea, what about the Municipal Court of the District of Columbia?

Mr. Francis M. Shea: The Municipal Court of the District of Columbia, I think, is to be explained in terms of an exception.

I think that -- that the Canter case was based on a reasonable -- a reasonable position and that is that the Congress in the territories may exercise both the national power and the power of the state legislature and can set up and that's all that was involved in the Canter that they could set up a government for the -- for the territory --

Justice Potter Stewart: As I understand --

Mr. Francis M. Shea: -- and they have to set up legislature courts and so forth.

Justice Potter Stewart: The national parts, their commissioners will agree on judicial power I suppose.

Mr. Francis M. Shea: Well --

Justice Potter Stewart: I mean that couldn't constitutionally be.

Mr. Francis M. Shea: I -- it -- it seems to me that in the national part, in the territory which is not a part of the nation.

What Canter says and it seems to me --

Justice William J. Brennan: But I think what Justice Stewart has reference to -- I don't know the fact in which you're -- you're suggesting.

Mr. Francis M. Shea: Well I'm not sure --

Justice William J. Brennan: What about (Voice Overlap) --

Mr. Francis M. Shea: I'm -- I'm not sure that I'm certainly familiar with it but I suppose territory -- where there has been taken out of -- of -- of the State's jurisdiction forth et cetera, et cetera that they're in a situation of a territory.

Justice Felix Frankfurter: As I understand your position that Congress in concurring that both judicial power with reference to (Inaudible) United States has (Inaudible)

Mr. Francis M. Shea: This --

Justice Felix Frankfurter: In what (Inaudible)

Mr. Francis M. Shea: I had thought that there was no doubt --

Justice Felix Frankfurter: About what?

Mr. Francis M. Shea: -- about the proposition that Congress could ordain and establish an inferior court under Article III and give it only a federal question jurisdiction that is that they didn't have to give it -- they didn't -- don't have to give it that --

Chief Justice Earl Warren: Yes, but when -- but I thought --

Justice Felix Frankfurter: Assuming not Congress should give all jurisdictions that the Court of Claims has with reference to the claims in dispute, that you have a tribunal make it (Inaudible) at the same time, there's no (Inaudible)

Mr. Francis M. Shea: I would have thought so, Your Honor.

It seems to be that if they can do that --

Justice Felix Frankfurter: (Inaudible)

Mr. Francis M. Shea: I would have thought that -- that it could not.

I would have thought that if they could do that, it seems to me that if they can do that, they can just destroy the federal --

Justice Felix Frankfurter: (Inaudible)

Mr. Francis M. Shea: -- system.

Justice Felix Frankfurter: (Inaudible) Secretary of Commerce?

Mr. Francis M. Shea: Can confer it on the Secretary of Commerce.

Yes, Your Honor.

But may I -- may I suggest this in regard to that.

Justice Felix Frankfurter: (Inaudible) permit your free with the Secretary of Commerce.

Mr. Francis M. Shea: No doubt about that.

Justice Felix Frankfurter: (Inaudible)

Mr. Francis M. Shea: No time to for update, Your Honor.

Justice Felix Frankfurter: Can you define what the administrative (Inaudible) in determining the claim?

Mr. Francis M. Shea: May I suggest this to Your Honor as a response I'm trying to make to the question, I would have thought that -- that -- that one of the fixed points was while to be sure administrative agencies may deal with matters that are within Section 2 of Article III that if Congress intend, if Congress puts that power in a judicial tribunal, the judicial tribunal --

Justice Felix Frankfurter: In fact you're burning the whole question.

Mr. Francis M. Shea: Well --

Justice Felix Frankfurter: I understand (Inaudible) is that Congress could if to a known judicial body, the same must follow that the fact on claims in the United States subject to the same kind of so called judicial procedure not entirely to be -- to be uphold in order to fix that.

If it good to itself therefore those -- you are to give it to a non-judicial body.

Mr. Francis M. Shea: Well, I think it can give to a non-judicial body.

Justice Felix Frankfurter: Well but if (Voice Overlap) --

Mr. Francis M. Shea: I have no -- I have no difference about that

Justice Felix Frankfurter: (Inaudible)

Mr. Francis M. Shea: Well, that certainly was held in Canter.

If it isn't -- if it doesn't give him life tenure, it's a non-judicial body but if -- if Congress attempts, if Congress sets up not in territories but if it sets up within the nation a judicial tribunal, now you -- you've raised the question as to what is judicial tribunal.

But in any event, Your Honor --

Justice Felix Frankfurter: The adjudication of claims against the United States which should be to recognized at all or itself may dispose of the legislation if not the case within (Inaudible) judicial power (Inaudible) what was necessarily judicial power?

Congress then, as I understand it deposit with the Secretary of Commerce impediment of claims between Joe and Smith which was a staple of Westminster jurisdiction but since claim against the sovereign were not the same with Westminster jurisdictions, he can dispose of it in anyone (Inaudible)

Mr. Francis M. Shea: Well, the staple loop Westminster Hall jurisdiction, Westminster Hall certainly had a lot of jurisdiction.

Under the petition of right that and the other --

Justice Felix Frankfurter: You're getting it to well known very staple in which legal problems when we talk about the commissioner right.

The Checker Court and what they are.

That was not a staple suits against the sovereign enforce it in the Court or certainly nothing except by the devious way petitioner bribed the staple of Westminster jurisdiction.

Mr. Francis M. Shea: Well, all I can say is that it exercised the great deal of jurisdiction under the various --

Justice Felix Frankfurter: -- (Voice Overlap) -- just as the Court of Claims in Westminster but I don't see why you take the burden of it at all and say Congress couldn't have a non-judicial body disposed of the claims against the Government.

Mr. Francis M. Shea: Well Your Honor, certainly this Court has repeatedly stated insofar as I know except for the footnote in -- in Mr. Chief Justice Vinson in the Tide -- Tidewater case has constantly asserted that -- that the judicial power of Article III in the nation, not in the territories, but in the nation can only be invested in Article III courts.

But in any event, as you point out, I don't have to carry that burden on whether --

Chief Justice Earl Warren: (Inaudible)

Mr. Francis M. Shea: I'm sorry.

Chief Justice Earl Warren: (Inaudible)

Mr. Francis M. Shea: Well, may I only say this in conclusion, Your Honor.

It does seem to me that -- that there are some fix points of reference left.

The question presented is not whether Congress could put this in Article I court so called.

The question is have they ordained and established an Article III court.

Certainly, the jurisdiction as the Solicitor General has pointed out is jurisdiction that falls within the definition of those items in Section 2 of Article III.

Can Congress -- why can't Congress ordain and establish an Article III court to exercise exclusively apart from these congressional reference cases exclusively power jurisdiction defined in the section -- second section of Article II?

At least it is not to be set that there was a reasonable basis for Congress who had done everything they can to do this.

They have a reasonable basis on which to do it even if arguments can be made to the country and that where Congress has done everything it can to exercise the power clearly invested in it.

Why shouldn't the normal deference of this Court to the exercise of congressional power unless clearly it can't be done allow Congress to exercise the power given to it to ordain and establish such a court to exercise jurisdiction that could clearly be given.

Thank you Your Honor.

Chief Justice Earl Warren: I want to ask (Inaudible) this traditional congressional reference power to the Court of Claims?

Mr. Francis M. Shea: Well now, I take it Your Honor is saying why can't they require them to do it.

Chief Justice Earl Warren: (Inaudible)

Mr. Francis M. Shea: Or -- or do you mean could -- could the courts throw up the country exercise?

Chief Justice Earl Warren: Might (Inaudible) the courts -- the courts of what they have done in the -- with the Court of Claims?

Mr. Francis M. Shea: Well, I would -- it seems to me the solidest ground, Your Honor.

As you know, distinction has been made.

The Solicitor General has -- has made it that on the basis of the O'Donoghue case.

The specialized tribunal in the District of Columbia at least could be invested with power --

Chief Justice Earl Warren: That is a specific -- specific congressional power.

Mr. Francis M. Shea: Well, but what that case says is that the Article III while it's an Article III court, nevertheless, it may under Article I be given supplementary powers.

Now, my own feeling is --

Chief Justice Earl Warren: But the Government's had another jurisdiction under the powers of the Congress.

Mr. Francis M. Shea: Yes, but I think O'Donoghue says Arti -- the court was created under Article III.

It exercised Article III power but as Congress has plenary power of the district, it may exercise its Article I power to add some powers.

Now, and -- and -- but this couldn't be done and said O'Donoghue in the States.

Now, so far as the Court of Claims is concerned, I think the solidest ground to stand is the ground that Court of Claims itself stood on and in rescind.

And so far as that's concerned Your Honors, so long as -- as -- it's not imposing the jurisdiction on the District Courts or the -- or the -- or the Circuit Courts of Appeal.

I supposed since the Ferreira case, so long as it's being done as a commissioner is an act of grace on the part of the court, this doesn't -- this doesn't threaten the court system.

And I -- I would feel that that was a -- a solidest ground to stand on in regard to that -- to that jurisdiction.

Thank you, Your Honor.

Chief Justice Earl Warren: Mr. Robb.

Argument of Roger Robb

Mr. Roger Robb: Mr. Chief Justice and members of the Court, I would first like to direct my attention to a -- statements that have been made with respect to the timeliness of the raising of the question as to the capacity of Judge Madden to sit in the United States Court of Appeals for the Second Circuit.

In the first place, Mr. Cox in talking about the timeliness of raising this jurisdictional question stated that if it were a matter of jurisdiction relating to the subject matter of the lawsuit that he agreed, as I recall his statement, that that jurisdictional question could be raised at any time.

I say with equal emphasis that if there'd be a constitutional lack of capacity on the part of Judge Madden to sit in an Article III court that that jurisdictional objection may likewise be raised at any time.

Now in fact, the judges of the Court of Claims when we filed a petition for certiorari in this Court, a petition was also filed by the judges of that court as amici curiae in support of the petition filed by the petitioner here.

And I would like briefly to call to Your Honors attention the statements contained on page 5 of that amici curiae brief in support of our petition.

Our petitioner apparently did not bring to the attention of the Court of Appeals the objection now made to Judge Madden's participation in the hearing and decision of that court.

But as Mr. Justice Frankfurter noted in his dissent on other grounds in the Lurk case, the question raised by the petitioner is jurisdictional in nature.

Such a jurisdictional point may be raised at any time.

See McGrath against Kristensen which one of the cases upon which we rely.

If Judge Madden, and I'm still quoting from this brief of the judges of the Court of Claims, if Judge Madden because of constitutional prohibitions was not competent to serve, as petitioner contends, the judgment in which he participated is null and void.

That is the end of my quote and the cited number of case upon which we rely and support of our position that we may raised this jurisdictional question at any time particularly during the course of these proceedings and particularly during the pendency of it and after this petition before this Court.

And in -- thirdly in reply to that contention made by the opposition, I would like to call Your Honors' attention the ruling of this Court in the case of Lamar against the United States decided in 1960 where a Christian was presented to the Court as to the constitutionality of making an assignment of one circuit judge to another circuit.

The case was tried.

It's a criminal case.

It was tried and went on appeal.

It came to this Court.

And there was a petition -- petition for certiorari to this Court I should say.

And I think there were further proceedings taken in this Court and I would like to very, very briefly to note that this Court in a unanimous opinion held that the question they raised was properly and fully considered and was passed upon by this Court.

We submit that authority along with the case of Donegan against Dyson which I have also quoted in my brief as authority to the effect that this Court has on numerous occasions or at least on a number of occasions considered that the making of application upon the hearing of a petition in this Court was timely.

At least, no objection -- no objection was made this court undertook to hear and determine the particular objection which was raised as to the jurisdiction.

Now, reference had been made to Section 1492 of Title 28 of the United States Code which grants to the Court of Claims the power and the function to pass on these congressional reference cases.

At the time of the enactment of the Act of 1953 which undertook -- which was an undertaking by Congress to describe the Court of Claims as the -- an Article III court.

Congress eliminated from Title 28 Chapter 91 the reference to the departmental reference cases which were to the heads of various departments.

They eliminated that provision by the same Act but retain this congressional reference case.

Now, it is interesting to note that, and I would like to call to Your Honors attention the remarks made by Senator Gore at the time of the hearings held with respect to this 1953 Legislation and I referred to a footnote on page 12 of the petitioner's reply brief, in which Senator Gore stated, “If in the future, judges of the Court of Claims should refused to act upon congressional reference cases on the ground that they are not within the proper scope of jurisdiction of a constitutional court.

I suppose a simple remedy will be for Congress to redesignate the Court of Claims as a legislative court.”

I refer that to Your Honors to indicate that Congress in describing this court as an Article III court has the feeling apparently that it may redesignate the court at anytime it sees fit to serve its purposes.

I want to thank you.

Justice Hugo L. Black: (Inaudible)

Mr. Roger Robb: I do sir.

Justice Hugo L. Black: (Inaudible)

Mr. Roger Robb: I do except with respect to cases against the sovereign.

Justice Hugo L. Black: (Inaudible)

Mr. Roger Robb: That is true but the sovereign cannot be sued without the sovereign's consent and may lay every condition it sees fit to lay upon.

Justice Hugo L. Black: (Inaudible)

Mr. Roger Robb: That is correct, sir.

Justice Hugo L. Black: Sovereign has implied that was an Article III court but (Inaudible)

Mr. Roger Robb: I would say yes.

I would say yes.

I think sovereign can lay any conditions --

Justice Hugo L. Black: (Inaudible) of this?

Mr. Roger Robb: Including conditions of the type that Your Honor --

Justice Hugo L. Black: (Inaudible)

Mr. Roger Robb: -- refers to.

Justice Hugo L. Black: -- many claims, there can only (Inaudible)

Mr. Roger Robb: I'm afraid the only answer that I can make to that is that the sovereign can lay down any conditions that it sees fit to lay down with respect to being sued and not being sued.

Justice Hugo L. Black: (Inaudible) you are willing what is (Inaudible)

Mr. Roger Robb: I'd say yes.

Justice Potter Stewart: That was done under the Federal Tort Claims Act, was it not?

Justice Hugo L. Black: (Inaudible)

Mr. Roger Robb: I say yes.

Justice Felix Frankfurter: That's the answer to Justice Stewart's (Inaudible) unless the federal court, those courts were unconstitutional.

Mr. Roger Robb: That's right.

Justice Felix Frankfurter: What we did this morning is about jurisdiction.

Mr. Roger Robb: Thank you, sir.

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GLIDDEN COMPANY v. ZDANOK. The Oyez Project at IIT Chicago-Kent College of Law. 27 April 2013. <http://www.oyez.org/cases/1960-1969/1961/1961_242>.

GLIDDEN COMPANY v. ZDANOK, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1960-1969/1961/1961_242 (last visited April 27, 2013).

"GLIDDEN COMPANY v. ZDANOK," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 27, 2013, http://www.oyez.org/cases/1960-1969/1961/1961_242.

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GLIDDEN COMPANY v. ZDANOK