or removed by the legislature except by impeachment, until the expiration of his term. So notwithstanding the constitutional checks upon the legislative power of the president, he is singularly free in the enforcement of the laws. Congress may refuse to pass the legislation desired or deny the appropriations asked for, but once the law is passed or the appropriation made the execution is in the hands of the president. He may be harassed by but he need not fear Congress. He may be forced to forego some parts of his program, but he remains in office free to use his judgment in the execution of the laws and to give the tone he desires to his administration.

THE JUDICIAL SYSTEM OF THE UNITED STATES

It is sometimes incorrectly said that by the article on the judiciary the courts are established as an independent department of the government. Or, to put it more popularly, the Constitution creates the courts. Such is not the case. It is true that the Constitution provides that the judicial power shall be vested in one Supreme Court and in inferior courts, but by this provision the courts do not come ipso facto into existence. The action of both the executive and legislative departments is necessary. In the first place the number and compensation of the justices of the Supreme Court must be determined by Congress and fixed by statute. Even after the statute is passed the president, with the advice and consent of the Senate, must appoint the judges. Thus, since the organization and composition of the court are dependent upon Congress and the president, it is possible for Congress to increase the number of judges, and with the connivance of the president to "pack" the court so that a majority out of sympathy with Congress may be overwhelmed. Or, on the other hand, Congress may, as it did during the administration of Johnson, enact that vacancies should not be filled and thus reduce the number of justices. Such actions, however, would be unconstitutional in the sense that they amounted to a violation of the spirit of the Constitution; but that they would be illegal, in the sense that they were open to punishment, would be difficult of proof.

1 The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office. The Constitution of the United States, Article III, Sect. i

Courts estab

lished by

Congress

Congress controls appeals

Congress may abolish all courts

below the Supreme Court

Congress determines jurisdiction

In another way Congress may control the Supreme Court. As will be shown when the jurisdiction of the courts is discussed, Congress has power to extend or to limit the appellate jurisdiction of the Supreme Court, and has not hesitated to use this power. Congress might allow appeals in all cases and so overwhelm the court. Congress might vest, and under this power has vested, the final decision of certain cases in the inferior courts, generally, however, to relieve the Supreme Court of a part of its burden which at times has threatened to overwhelm it. In one instance, however, Congress by statute took from the Supreme Court, whose decision it feared, the jurisdiction of a case already under consideration and vested the final decision in an inferior court whose decision was agreeable to Congress. To this rather high-handed proceeding the Supreme Court assented and, in dismissing the case, said:

We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.1

Concerning the inferior courts the power of Congress is even more extensive. These courts are ordained and established by congressional act and therefore at any time may be abolished by statute. Congress has several times exercised this power. The earliest and most recent instances are due perhaps to political or partisan motives. In 1802 the Jeffersonian Republicans abolished the system of Circuit Courts established by the Federalists in the previous year. And likewise the Democrats in 1913 abolished the Commerce Court. In 1911, however, both parties by joint action, reorganized the whole system of federal courts and abolished the Circuit Courts, an action taken on the recommendation of the Bar Association from unpartisan motives. In cases where courts are abolished, the judges are transferred to other courts in order that their constitutional rights of office and compensation may be preserved.

The power of Congress to determine the jurisdiction of the inferior courts is greater than in dealing with the Supreme

1 Ex parte McCardle, 7 Wall. 506–514.

Court. In only three instances is the jurisdiction of the Supreme Court original. In all other cases which may come before the United States courts—and these include the application of the laws of the United States - Congress may designate which court shall have jurisdiction, whether it shall be exclusive and whether it shall be final. It is thus possible, as has been done in the Judicial Code of 1911, to extend the jurisdiction of the lowest court and to limit the appeals to next higher courts and the Circuit Court of Appeals. It should be said, however, that this was done not so much to limit the jurisdiction of the Supreme Court as to relieve the congestion and to make the final decision of the case more speedy. Nevertheless, this action is an instance of the legitimate power of Congress over the courts, and should go far to dispel the fear sometimes expressed of "the tyranny of an appointed judiciary." Congress, not the courts, makes the laws under which the courts operate. The judges of the Supreme Court are appointed by the presi- Appointment dent with the advice and consent of the Senate. By custom, the judges of the inferior courts are likewise so appointed, although Congress might by law vest their appointment in the president alone, or in the higher courts, or in any department. The nearest that Congress has come to this was to allow the Chief Justice to assign the judges of the Circuit Court to the Commerce Court. But in every instance the original appointment is made by the president with the advice of the Senate.

of judges

politics on

the Supreme

Court

The appointing power has been used and doubtless is often Influence of used for political purposes. When the Jeffersonian Republicans appointments came into power in 1800, the courts were overwhelmingly of justices of Federalist in tone, but Jefferson and his successor, by filling the vacancies as they occurred, slowly changed their attitude to the point of view held by the dominant party. At the close of President Taft's administration all but one of the judges of the Supreme Court had been appointed by Republican presidents and the majority by President Taft. It thus may happen not merely that one party may be overwhelmingly represented but that the school of thought of a single president may be perpetuated long beyond his term of office. This was particularly true in the case of the appointment of John Marshall by John Adams,

Effect of

politics on

of judges in inferior courts

the last Federalist president. Marshall, as Chief Justice from 1801 to 1835, held the court to the Federalist view of the Constitution throughout the Jeffersonian period and into the Jacksonian period.

In the appointment of the judges of the Circuit, District, and appointment other United States courts, the same motives are operative, and since the position of the judges is not so conspicuous, it may be, as is sometimes charged, that less worthy motives are the compelling ones. But whatever may be charged in the heat of conflict, the fact remains that, with but one or two exceptions and those in previous generations, the justices of the Supreme Court have never been accused of political bias. With a slightly larger number of exceptions, the same assertion would hold true of the justices of the other courts. But although partisan partiality is seldom shown, charges, rather loosely made, have been leveled against the judiciary on the ground of personal or class interest. In an attempt to correct or at least to neutralize this by publicity, an amendment was added in the House to the appropriation bill of 1913, requiring the president to make public the names of those recommending any judge he might appoint. Although it may be possible to ignore this provision, as President Cleveland did an analogous resolution on the part of the Senate,1 the spirit which prompted the action is significant of the present critical attitude towards the judiciary. That this distrust is warranted cannot be demonstrated; in fact, considering the large number of federal judges, the vast number of cases before them, and the complexity of the issues presented to them for consideration, the number of instances for legitimate dissatisfaction is surprisingly small. Moreover, as compared with the judiciary of the states, the federal courts are less harshly treated by the critics and their excellences more ungrudgingly recognized.

Judges hold office for life

All judges of the United States, whether of the Supreme or inferior courts, hold their offices during good behavior. It is true that by law the justices of the Supreme Court may retire upon a pension at the age of seventy-five, but this is not obligatory. Indeed, it was rumored that a recent chief justice delayed 1 See pp. 187-188.