Judicial Vesting Clause

The Heritage Guide to the Constitution

Judicial Vesting Clause

Article III, Section 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 Constitution’s first three articles contain symmetrical introductory language. Each provides that a basic type of governmental “power”—“legislative” (making laws), “executive” (administering the laws), and “judicial” (expounding laws to decide particular cases)— “shall be vested” in a corresponding institution: “Congress,” the “President,” and “Courts,” respectively. As originally conceived, the Constitution embodied the sovereign will of “We the People,” who delegated power to three independent yet coordinate branches of government.

This separation-of-powers structure incorporated two novel Federalist ideas. First, “judicial power” became a distinct part of government, whereas in England it had been treated as an aspect of executive authority (although the English recognized adjudication as a discrete function). Second, like Congress and the president, federal judges ultimately derived their power from “the People,” even though they were unelected and given tenure and salary guarantees to ensure their impartiality and prestige. This separate and independent judiciary consisted of a Supreme Court and any lower federal tribunals Congress chose to create. The powers of federal courts can most usefully be divided into three components: judicial review, justiciability, and equitable authority.

Since 1787, the central meaning of “judicial power” has remained remarkably consistent: neutrally deciding a case by interpreting the law and applying it to the facts, then rendering a final and binding judgment. The most important cases in Article III are those “arising under th[e] Constitution [and] Laws of the United States.” This clause complements Article VI, which provides that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.” There was a general understanding that this language, and the very nature of a written Constitution ordained by “the People,” authorized judicial review of the constitutional validity of government actions. For example, in The Federalist No. 78, Alexander Hamilton reasoned as follows: (1) courts have a duty to resolve cases impartially according to the law, (2) the Constitution is the fundamental and supreme law in which “the People” explicitly limited the political branches, and (3) therefore, judges must follow the Constitution instead of a clearly contrary ordinary law. Hamilton’s Anti-Federalist rival “Brutus,” how-ever, expressed the fear that federal judges would naturally aggrandize their power and that of the central government. “In their decisions,” he said, “they will not confine themselves to any fixed or established rules.” “This power,” he concluded, “will enable them to mold the government into almost any shape they please.”

The early Supreme Court operated on a restricted notion of judicial review, although it did not strike down any statute until Marbury v. Madison (1803). In that case, Chief Justice John Marshall repeated Hamilton’s analysis and then held that Congress, by forcing the Court to assume original jurisdiction over an action involving a writ of mandamus (an order compelling action by an executive official), had plainly violated limitations on such jurisdiction prescribed in Article III. The Court expressly cabined its power to examining “judicial” issues of law rather than “political” questions committed by the Constitution to the executive branch’s discretion. 

This relatively constrained view of the judicial function continued until 1857, when the Court next invalidated a federal law—the critical and politically delicate Missouri Comprmise—in Dred Scott v. Sandford. This disastrous attempt to transform judicial review into a man-date to substitute the justices’ policy preferences on slavery for those of political officials crippled the Court’s prestige for a generation.

By the late nineteenth century, however, the Court began to interpret the judicial power as allowing it to overturn legislation that did not transgress any explicit constitutional command. Most famously, in Lochner v. New York (1905), it held that a state law restricting workers’ hours violated the Fourteenth Amendment by depriving employers and employees of “liberty” and “property” without “due process of law.” The Court construed this language, which originally had been intended to guarantee procedural protections, as creating a substantive right to con-tract freely. In 1937, the Court abandoned this approach and announced that economic legislation would be upheld if it had any rational basis. Subsequently, however, the Court has not shown similar deference to social legislation. Instead, it has struck down laws dealing with issues like education, crime, voting, and abortion—areas previously thought to have been left by the Constitution to the political process.

Judicial review can be exercised only over cases that are “justiciable” (i.e., presented in a form suitable for judicial resolution). The Supreme Court has developed many justiciability doctrines, which reflect both Article III require-ments and self-imposed prudential limitations.

The Federalist justices swiftly established three bedrock justiciability rules. First, federal court judgments expounding the law are final and cannot be reexamined or revised by Congress or the president. Second, judges will not render legal advice to political officials outside the con-text of a contested case. Third, even if a federal court possesses Article III jurisdiction over a case, it will decline to issue a decision if the underlying question presented is “political” in the sense of being entrusted by the Constitution exclusively to the president or Congress. Long-recognized examples of such political questions include the conduct of war and foreign affairs and the appointment of executive and judicial officials.

Gradually, several other justiciability doctrines evolved. Most importantly, a plaintiff must establish “standing” to sue by demonstrating the existence of an individualized injury caused by an adverse defendant. Furthermore, courts avoid premature adjudication, especially challenges to administrative agency proceedings, by insisting that claims be “ripe” for review (i.e., sufficiently developed both factually and legally). Finally, cases are usually dismissed as “moot” if the par-ties’ dispute has ended.

Although the Court has never deviated from its bans on nonfinal judgments and advisory opinions, it has not taken a similarly consistent approach to standing, ripeness, mootness, and the political question doctrine during the mod-ern era. The justices appointed by Franklin D. Roosevelt strengthened all of these doctrines to minimize litigation attacking regulatory and social welfare legislation, which mushroomed during the New Deal. By contrast, the Warren Court relaxed justiciability requirements to broaden access to the federal judiciary, particularly where necessary to vindicate constitutional rights. Perhaps most significantly, the Court interpreted the Constitution as allowing judicial review of several questions formerly viewed as “political,” such as the apportionment of state legislatures, Baker v. Carr (1962), and Congress’s power to judge the qualifications of its Members, Powell v. McCormack (1969).

The Burger, Rehnquist, and Roberts Courts likewise have rejected “political question” defenses in controversial cases involving gerrymandering, the apportionment of congressional districts, procedures for enacting statutes, Indian tribal affairs, assertions of executive privilege, the 2000 presidential election deadlock, and executive branch determinations regarding treaty compliance. Indeed, since the Baker decision, only two issues, impeachment and military training, have been deemed beyond the scope of judicial review. Although the Burger and Rehnquist Courts continued the loose approach to the political question doctrine, they generally strengthened rules of standing, ripeness, and mootness.

In short, the justiciability doctrines have changed over the years and have been employed with varying degrees of rigor. Nonetheless, their purpose has remained constant: to assure the appropriate exercise of judicial power, especially the decision of constitutional cases.

Article III has long been construed as implicitly conferring all auxiliary “inherent” authority necessary for courts to exercise judicial power competently. For instance, because adjudication depends on finding accurate and relevant facts, federal judges inherently have the ability to man-age pretrial discovery, make evidentiary rulings, compel witnesses to testify, and appoint experts. Similarly, issuing a judgment is a key component of judicial power, and therefore courts can independently enter and correct their judgments. Finally, courts by their very nature must be able to maintain their authority and supervise the judicial process—for example, by sanctioning disobedience of their orders and courtroom misconduct. Over the past century, the scope of inherent judicial powers has grown dramatically to cope with the vast increase in the amount and complexity of litigation.

Likewise, the judiciary’s equitable discretion has expanded greatly since Brown v. Board of Education (1954), which countenanced broad decrees to remedy unconstitutional discrimination in public schools. Brown and other desegregation cases encouraged federal courts to fashion complex remedies in other major public policy areas, such as prison reform. Congress, however, can limit the range of the federal judiciary’s injunctive powers.

In sum, Article III’s introductory language has always been read as granting federal courts the “judicial power” of deciding cases and any inherent and equitable authority needed to do so properly. The Court has continually adapted the contours of judicial power, however, to address broader legal and political changes.

Robert J. Pushaw, Jr.

James Wilson Endowed Professor of Law, Pepperdine University School of Law

Evan Caminker, Allocating the Judicial Power in a "Unified Judiciary," 78 Tex. L. Rev. 1513 (2000)

Letter from the Justices of the Supreme Court to President George Washington (Aug. 8, 1793), reprinted in Stewart Jay, Most Humble Servants: The Advisory Role of Early Judges, at 179–180 (1997)

James S. Liebman & William F. Ryan, "Some Effectual Power": The Quantity and Quality of Decisionmaking Required of Article III Courts, 98 Colum. L. Rev. 696 (1998)

Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 Iowa L. Rev. 735 (2001)

Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 Cornell L. Rev. 393 (1996)

Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792)

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812)

Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816)

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)

Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824)

Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825)

Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)

United States v. Klein, 80 U.S. (13 Wall.) 128 (1871)

Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875)

Lochner v. New York, 198 U.S. 45 (1905)

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)

Coleman v. Miller, 307 U.S. 433 (1939)

Brown v. Board of Education, 347 U.S. 483 (1954)

Baker v. Carr, 369 U.S. 186 (1962)

United Mine Workers v. Gibbs, 383 U.S. 715 (1966)

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)

Powell v. McCormack, 395 U.S. 486 (1969)

United States Parole Commission v. Geraghty, 445 U.S. 388 (1980)


Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

Bush v. Gore, 531 U.S. 98 (2000)

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)