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Interpreting and Preserving the Constitution
egated powers of Congress, we note that Clause 9 authorizes Congress
‘‘To constitute Tribunals inferior to the Supreme Court.’’ Congress has
frequently exercised this power to create ‘‘legislative’’ courts, such as territorial courts and the U.S. Court of Military Appeals. The President appoints the judges to these courts, but Senate confirmation is not mandatory and the judges do not enjoy the same degree of independence as
Article III judges. Instead of serving ‘‘during good behavior,’’ for example, they serve for specified terms and then must leave office when their
term expires. Their responsibility is to carry out the will of Congress, not
to exercise the judicial power.
It may thus be seen that both the President and one branch of the legislature decide who shall sit on a constitutional court. Once the appointment has been agreed to by the Senate, however, the President ceases to
have any direct control over the personnel of the Judiciary.
Whereas judicial independence of the executive is considerable, we
find that the Federal Courts are potentially at the mercy of Congress. Primary control of the Judiciary rests with Congress, and its powers over
the Courts are far-reaching. We noted earlier that if Congress had the will
to do so, it could constitutionally reduce the entire Federal Judiciary
down to one judge—the Chief Justice of the Supreme Court—leaving
the Supreme Court virtually powerless. This has never happened, of
course, but it should be borne in mind that the Framers of the Constitution gave Congress sufficient power to check an arrogant judiciary.
In the first place, it is Congress, not the Constitution, which creates the
Federal Judiciary. Article III, Section 1 provides simply that ‘‘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.’’ By these words, the Supreme Court is the only Federal Court
that is required by the Constitution. Congress is free to create whatever
lower Federal courts it pleases, and it may even abolish those already in
existence. This first occurred in 1801, when the Jeffersonian Republicans
abolished a number of Federal district courts that the administration of
John Adams had established and packed with loyal Federalist party
members.
Having once created the courts, Congress decides how many courts
and judges there shall be, where they shall be located, what their salaries