Federal Courts

The business of most lower federal courts had been modest before the Civil War, but from 1860 to 1920 cases flooded these courts. In 1871, the U.S. district courts disposed of 8187 criminal cases; in 1900, 17,033; and in 1920, 34,230. In 1873, these same courts settled 14,527 civil cases; in 1900, 22,520; and in 1920, 32,240. There were 52,477 civil cases pending in all of the district courts in 1900 compared with the 38,194 on the dockets of district and circuit courts only twenty years before. The Supreme Court docket expanded as well. The high court between 1862 and 1866 averaged about 240 cases per term; from 1878 to 1882 about 855; and from 1886 to 1890 about 1124.

The enormous increase in the population of the United States, and in the power and reach of the federal government after the Civil War, made it inevitable that the caseload of the federal courts would expand from their humble origins. ⁶ Between 1850 and 1875, for example, the expense of operating the federal judiciary soared from $500,000 to $3 million and by 1900 that figured had tripled again. The federal circuit court in Chicago on January 1, 1878 had 3045 suits pending, ten times the number heard in the average antebellum circuit court. These lower federal courts became "forums of order" in which interstate businesses could secure a hearing free from the local interests that dominated state courts. ⁷ That process began in 1842 with Justice Joseph Story's decision in Swift v. Tyson, which established a federal common law of commerce. It gathered momentum after the Civil War and continued unchecked into the New Deal.

Congress nationalized both the organization and jurisdiction of the lower federal courts. The Judiciary Act of 1869, for example, established nine new circuit court judgeships, each of which was filled by a judge who presided over both trials and appeals from the district courts. The new circuit judges relieved Supreme Court justices of much of their traditional circuit-riding duties, enabling the high court to devote more attention to its growing business in Washington. The Circuit Court of Appeals Act of 1891, which was meant to unclog the justices' dockets, ended their circuit riding and reorganized the old federal circuit courts, creating new circuit courts of appeal. The judges of this intermediate court of appeals received some of the business that had previously gone to the Supreme Court. This reform somewhat diminished the high court's business. In 1900, there were 723 cases docketed and from then through 1920 the Court's docket contained an average of about 930 cases each year. ⁸

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The Circuit Court of Appeals Act fixed two important new principles, both of which mirrored experiences in the states and both of which have continued ever since to influence the Court's jurisdiction: that there should be a powerful intermediate appellate court (the Circuit Court of Appeals); and that the Supreme Court should have broad discretion, through the grant of the writ of certiorari, to decide which cases were of such importance that they deserved review by the high court. A writ of certiorari (meaning "to be informed of") is issued in order that the Supreme Court may inspect the proceedings conducted in a lower court to determine whether there have been irregularities. In expanding the use of the writ of certiorari, the Congress reduced the historic right of appeal to the Supreme Court based exclusively on an error committed by a lower court. The statute thus expressed "a radically new principle concerning the Supreme Court's function: that the business of the Supreme Court was, not to see justice done in every case, but to decide . . . more important policy issues." ⁹

Of even greater importance, Congress ordered changes in federal court jurisdiction. These changes fell into two broad categories: the power to remove cases from state to federal courts and the diminished scope of appeals to the Supreme Court as a matter of right.

The Removal Act of 1875 was a milestone in the history of the lower federal courts' relationship with the business community. ¹⁰ The act hastened the removal of suits from state to federal courts, from local to national forums of law. It provided that either party could remove a case to federal court; it permitted removal of all diversity suits, even when one of the parties did not live in the "forum" state (i.e., they were not resident in the state where the federal court proceeding was to be held). Most important, it permitted removal of all suits raising a question of federal law. The act was intended to permit newly freed slaves to circumvent the prejudice of state courts, but corporations engaged in interstate business benefited most from the removal provisions. They could engage in forum shopping: that is, they could find the court, federal or state, that offered them the best opportunity of winning their case. The act also promoted uniformity in corporation law, especially among big businesses with national markets. ¹¹

Judicial Review

Appellate courts extended the scope of their powers at the same time that their dockets swelled. The power of courts to strike down legislative measures contrary to constitutional authority was acknowledged by the framers of federal and state constitutions. The subsequent development of this practice was never clear nor simple, and it was always plagued by controversy. First, there was lingering suspicion that judges, in a republican form of government, had no right to second-guess legislators, a position that received strong support from Jeffersonian Republicans and later Jacksonian Democrats. The problem was less critical in the states after the 1850s when the method of judicial selection changed from legislative and executive appointment to popular election.

Second, because of the federal nature of the legal system in the United States, judicial review took place in different forums and with appeal to different bodies of constitutional authority. State appellate courts established early that they could interpret their constitutions and, if necessary, overturn legislative acts. Yet the federal

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Supreme Court, because of the supremacy clause in the federal Constitution, was also capable of interpreting state legislative acts and court decisions that involved federal constitutional issues and legislative acts. Thus, the high court could inquire into state activities but the state courts could not, in turn, limit the actions of the federal Congress or courts by passing conclusively on the meaning of the federal Constitution.

Judicial review of state statutes by state courts was "a rare, extraordinary event" before the Civil War. ¹² By 1861, for example, the Virginia Court of Appeals, the state's highest appellate court, had decided only thirty-five cases in which the constitutionality of a law was in question. Of these, the judges overturned only four. ¹³ The Supreme Judicial Court of Massachusetts, one of the two or three most prestigious appellate courts in the nation before the Civil War, had by 1860 considered the constitutionality of sixty-two laws and found only ten of them unconstitutional. ¹⁴

From the beginning of the nation, the Supreme Court reviewed state laws and court decisions to ensure that they did not violate certain specific federal constitutional prohibitions on the states, such as the ex post facto, contract and commerce clauses. Between 1789 and 1864 the justices held forty-one acts of state legislatures unconstitutional, although this was less than 0.5 percent of all cases brought before them. The justices were less active in dealing with Congress, voiding only two federal statutes before the Civil War.

By the 1850s, however, the appellate judiciary had already emerged as a major force in public policy, and its decisions were widely understood to have distributive economic and social consequences. Furthermore, critics of overextended legislative authority expected that popularly elected judges would restrain this legislative authority, and that meant exercising the power of judicial review. Judges by the eve of the Civil War not only administered the rule of law but they served the important function of mediating among the growing number of conflicting interests that crowded the political scene in the United States.

The appellate judiciary after the Civil War built upon this legacy, expanding and enhancing its power in response to the distributive political decisions of the party period. By 1920 judicial review had become an accepted, if still controversial, feature of public life. The Virginia Court of Appeals found against 1 in 3 of the statutes that came before it during the late nineteenth century; Ohio's court held 15 state laws unconstitutional in the 1880s, 42 in the 1890s. The Minnesota Supreme Court between 1885 and 1899 struck down approximately 70 state statutes; the Utah Supreme Court in the period between 1893 and 1896 threw out 11 of the 22 statutes brought before it. Much the same occurred in the federal Supreme Court. Of the 217 state laws struck down by the Court from its start in 1920, 48 were voided in the peak decade of the 1880s, and the justices, while displaying deference to Congress, still struck down 32 federal acts between the Civil War and 1937. The Court overwhelmingly upheld, however, state and federal enactments. ¹⁵

Date: 2015-01-29; view: 849