Prof. Spencer on Judicial Power

A. Benjamin SpencerProfessor A. Benjamin Spencer had his article, The Judicial Power and the Inferior Federal Courts, 46 Ga. L. Rev. 1 (2011), published in the Georgia Law Review.

The article discusses the third branch of the federal government, the Judiciary, which traditionally has been viewed as the least of the three branches in terms of the scope of its power and authority. The Supreme Court has permitted Congress to exercise authority over the Federal Judiciary, including the limitation of jurisdiction of inferior federal courts, without much thought or explanation.

Professor Spencer argues that it may be possible to imagine a more robust vision of the Judicial Power through closer scrutiny of the history and text of Article III of the U.S. Constitution. The Constitution vests Judicial Power of the United States exclusively in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” In the article, Prof. Spencer reviews historical evidence that reveals that delegates to the Federal Convention considered and rejected language that would have given Congress express authority to manipulate the jurisdiction of inferior federal courts. The article argues that this fact, coupled with repeated indications by the Framers and by the delegates to state ratifying conventions that the independence of the Judicial Branch from each of the other branches was of paramount importance, may give some weight to an understanding of the Judicial Power that challenges—or at least may moderate—our understanding of Congress’s authority to withhold from the inferior federal courts some portion of the Judicial Power vested in them under Article III.

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