Glidden Company v. Zdanok – Oral Argument, Part 2: Lurk v. United States – February 21, 1962 (481)

Media for Glidden Company v. Zdanok

Audio Transcription for Oral Argument, Part 1: Lurk v. United States – February 21, 1962 (481) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Earl Warren:

— continue.

Archibald Cox:

Mr. Chief Justice, may it please the Court.

Before the recess, I was attempting to develop an antinomy to propositions, both of which are really necessary to set forth our position.

The first is, that in exercising its power to govern the District of Columbia, a power roughly equivalent to that of a state government, the Congress is not required to create courts for the trial of local offenses which have all the characteristics of a court created under Article III, judges with tenure, security and compensation and the like.

At the same time, I must couple with that, the proposition that there are limitations imposed as I see it by the Bill of Rights including specifically the guarantee of a right to jury in trial and the right when one is charged with crime under the Due Process Clause to a judicial determination using judicial in a more general sense that not speaking specifically of judges who have the security that Article III gives the justices of this Court and the judges of courts created under that Article.

Let me put this specifically, I would suggest that there is no inhibition against creating a special criminal court for the trial of local crimes committed in the District of Columbia or the judges of which would be elected for 14-year terms and subject to reelection as under the Missouri claim or in the manner found in the other states.

More specifically and to draw for a second example on a condition which has existed for 150 years, there is no objection to Congress providing that offenses in the District of Columbia shall be tried either before a special criminal court as they were for many years or in a municipal court, the judges of which have a 10-year term.

Also, they are appointed by the President.

There’s no election as there is in some state.

This has been true for all history.

Now, that jurisdiction does not extend to the trial of felonies.

I don’t mean to say that Lurk could have been tried in the District Court before a judge with a 10-year term.

(Inaudible)

Archibald Cox:

Defense is not — not carrying a sentence to the penitentiary.

Is sentence up to a year?

Archibald Cox:

Up to a year, yes.

The point, however, I think Justice —

(Inaudible)

Archibald Cox:

I believe, sir.

Oh, yes, yes.

And there’s a right of — to a judicial proceeding I would say under the Due Process Clause.

But there is not by virtue of the statute and never has been in history a right to a trial for offenses below the greater felony before a judge carrying security of tenure and compensation.

And when say that that is not required under the power to govern in the District of Columbia.

Now the question was put to me and I committed partly on it but I perhaps might put it in its context here, could a local trial be tried before the Interstate Commerce Commission?

I would say that such administrative agency is — as I know it, does not proceed in the manner of a court.

The staff takes a part in the decision in the way that it is not customary in the court.

But there is of course no jury trial but I assume that to pin my answer to that would begging a question.

I don’t need to that.

There are other departures from customary judicial proceeding which would cast doubt upon any such statue if Congress were to enact.

An interesting question which was suggested by the question raised by Mr. Justice Black and Mr. Justice Douglas is, well, could Congress provide that in the event of one of the judges of the municipal court would seek that his place should be filled by a man chosen from the Interstate Commerce Commission.

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Archibald Cox:

To that, I simply want to make one comment.

Possibly the — possibly, the right to a judicial proceeding includes the right to be tried before a judge who has had some experience with the law.

I — and in Interstate Commerce Commission, there would not necessarily have had a broader experience with the law.

But I submit that that case, this hypothetical case of selecting a — an interim judge to fill the vacancy from the ranks of an administrative agency isn’t before us here even putting the worst face on the Government’s case.

Judge Jackson was a judge who was appointed, as a matter of fact, after prior judicial experience, with a view to service not only on the Court of Customs and Patent Appeals but on the Courts of the District of Columbia.

Second — and it was confirmed with the law in that condition.

Second, he was given —

Earl Warren:

Would you state that again General, I didn’t get it.

Archibald Cox:

I said he was appointed —

Earl Warren:

Yes.

Archibald Cox:

— with a view to service not only in the Courts of — and — in the Court of Customs and Patent Appeals but also to service on the Courts of the District of Columbia.

Earl Warren:

(Voice Overlap)

Archibald Cox:

The statutes authorized that at that time and prior to his appointment, some judges of the Court of Customs and Patent Appeals as I understand had said in those courts.

There was nothing — I don’t know how much it was taken into mind, I don’t mean to say the specific evidence, but the statute contemplated and it was not as Judge Prettyman shows an extraordinary thing.

In addition, Judge Jackson did have so far as the Congress and President could give it to him, security of tenure and security of compensation.

The only possible qualification that I can see on his having those characteristics as of the time he was first appointed was that one Congress is assumed not to be able to buy in succeeding Congress.

Felix Frankfurter:

For those —

Archibald Cox:

And —

Felix Frankfurter:

— elements that you are arguing in this case, I mean they can’t decide —

William O. Douglas:

Yes, this is — this is not an ad hominem a– argument that (Voice Overlap) —

Archibald Cox:

It would seem to me, the only thing that is ad hominem about that was my gratuitous remark that he had had prior judicial services.

I would say that none of the others are gratuitous or irrelevant.

Felix Frankfurter:

Not the amount — they’re relevant with the 1922 statute —

Archibald Cox:

No, nor fact that he was appointed after.

Felix Frankfurter:

No, no, no.

Archibald Cox:

Nor that the Senate and the House had given him that.

Felix Frankfurter:

No, I didn’t refer to that.

Archibald Cox:

No, no, in his prior services.

It’s a —

Felix Frankfurter:

Because under that consideration, some of us are in trouble.

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Archibald Cox:

Now that was a bit of — counsel’s getting carried away too much but what it can make the most of the fact of this case but all the risk, I submit, go to distinguish this case from the hypothetical case of a trial before an Interstate Commerce Commission.

Now to put the bar —

Earl Warren:

General may — may I ask you before you leave that point, if Congress could pass a statute authorizing the assignment of municipal judges of the district — to the District Court.

Archibald Cox:

Well, I think that that — I think that one must distinguish at this point with respect to the kinds of cases that come before the District Court.

I would say that there was — I would draw this distinction and I think it’s important in reference to a point raised by Mr. Justice Black.

Let me put it this was and I — I assure you, I’m coming to the answer to your question which takes more than one sentence.

Mr. Gressman argues that Article III, quoting from the O’Donoghue case, gives the citizens of the District of Columbia the constitutional right to have their cases heard by Article III courts just as the inhabitants of the various states.

Now, the first by that was not in any sense necessary to the decision.

But more important, it seems to me that that is an undifferentiated statement that require some examination as to what is meant by — have their cases heard before an Article III court of what kinds of cases.

And it seems to me that there are at least three different kinds of cases Mr. Chief Justice that we might have in mind here.

The first is local crimes, offenses against the District of Columbia Code which would not be offenses against the United States if they were committed in Maryland or Virginia or some other state.

And that is what we have in this case and only that.

Now a second type of case might be the general federal crimes such as a violation of the Dyer Act carrying a stolen motor vehicle across the state line or violation of the Mann Act or a criminal violation of the Sherman Act.

A third kind of case, of course, would be a civil case such as the big antitrust case, United States against Parke and Davis that was heard in the District of Columbia where it’s the violation of the general law and not one confined to the local code.

I further would — so that I’ve got two violations of local law and violations, civil or criminal of federal law.

Now the fed — violations of federal law, it seems to me that they might permit of a constitutional distinction between citizens of the District of Columbia and citizens of other state.

However, the point that I would emphasize is that we are dealing only with the local criminal offense so that I say that your question, “Could Congress pass a statute authorizing a municipal court judge to sit in the District Court?”

I would say that it could authorize a municipal court judge to sit at the trial of a local crime such as this robbery.

And that — that is a very different question than the one that would be presented if Parke and Davis in the antitrust case or a person indicted under the Dyer Act or the Mann Act raised objections to having a municipal court judge to sit at the trial of an offense under one of the general federal laws where a quite plainly could not sit on such an — sit at the trial of such an offense in the Southern District of New York or the Northern District of Illinois.

In other words, I think that the second question is not properly here that Lurk must show that this Court was not properly constituted to try him for the offense of which he was indicted.

And the fact that a day later, the judge may be going to sit in a case, in which he would not be qualified to sit, is to put it colloquially, none of Lurk’s business and none of the Court’s business in deciding whether Lurk was properly convicted.

And since, I say, that Congress could provide for trying the crime of burglary before the municipal court.

Then surely it can, so far as Lurk is concerned, authorize his trial before the District Court presided over by a municipal court judge.

I see no difference in that respect between the two.

This leaves, Mr. Chief Justice, some questions on deciding, not only questions that of course would puzzle you in making assignments, it also leaves, I should make a claim to the Court some questions undecided that will probably come up from the Court of Appeals of the District of Columbia because I am informed that there are number of cases backed up behind this one which do involve prosecutions for federal offenses.

So the ground of decision I’m suggesting now isn’t applicable to all those cases.

It won’t solve all of them.

I was tempted to take a broader ground but frankly, this is such a complicated nestle and that it seem to me that I would do best to try and make up my mind about one point at a time and maybe that would be a wise way for the Court to go about it, too.

Ultimately, perhaps Parke and Davis antitrust case will be back here because that’s when that Judge Jackson or at least one of the judges in the Court of Customs and Patent Appeals said.

The old Gypsum case is another.

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Archibald Cox:

But I don’t think we have that kind of problem before us.

Now, the answer I suggested, Mr. Justice Black to the Chief Justice a moment ago seems to me to answer your question if we hold that local crimes in the District of Columbia can be prosecuted before a court whose judges do not have security of tenure and compensation.

Then why won’t this spread through the country?

My answer is that Congress doesn’t have the power which it has under Article I Section 8 Clause 17 over the District of Columbia in relation to offenses in other parts of the country.

And a fortiori, something that is a violation of a local law and a trial of an alleged local offense need not logically be spread elsewhere in the country.

Felix Frankfurter:

If we stretch ourselves and — and take up every issue that — that’s intellectually implied in this litigation then I could press you with some questions on your last statement, the Congress doesn’t have the power that it has over the district.

But by the Tidewater case, there’s nothing but trouble for me, why hasn’t any different power under the provision of Section 8 of Article I roughly to the district than it has under the Commerce Clause in the same section.

Archibald Cox:

That is certainly a question that —

Felix Frankfurter:

I don’t think we have to decide that.

Archibald Cox:

— can be debated but I think it would be — I think there are answers that can be drawn.

The best answer, Mr. Justice Frankfurter from — in my judgment is that there’s 150 years of history behind it.

And I can also work out intellectual answers dealing with this point.

Felix Frankfurter:

You don’t mind my having reference to the answer I gave you, is that true?

Archibald Cox:

I think that it’s — what — no —

Felix Frankfurter:

What?

Archibald Cox:

— in the answer to that — or even if I did, it would be irrelevant.

I pass on now to a second ground of decision which it seems to me that this case can be put on again without facing the very broad constitutional issue.

We submit the petitioner’s challenge to the right of Judge Jackson to preside at his trial, came too late.

This point is not raised until the case was on appeal in the Circuit Court of Appeals.

And we submit that under those circumstances, the petitioner cannot be heard or raised but here.

In our brief, we have argued at some length that Judge Jackson was a de facto judge.

And that under the doctrine applicable to de facto officers, his right to occupy the office could only be challenged directly by quo warranto.

I do not intend to spend time developing that further in my early argument.

For the sake of the point that I seek to make now, I assume that a challenge to the composition of the court can be raised by a litigant provided that it is raised at timely fashion.

When he learns the fact as an opportunity to voice his objection, then he may do it, I assume for the moment.

But we submit that when he does not voice his objection at that time when he sits quiet or waits to see the outcome, then if he loses says, “Oh, I have an objection!”

that I could’ve raised earlier but didn’t that the answer is, you’re too late certainly where he’s been represented by a counsel and all the knowledge was available to it.

The answer that petitioner gives to that argument is that questions relating to jurisdiction can be raised at any time.

And I submit that that doctrine is not applicable here.

This case was clearly being heard in the District Court for the District of Columbia.

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Archibald Cox:

The Glidden case, if I may anticipate just a moment, the Second Circuit case involving Judge Madden from the Court of Claims, was unquestionably being heard in this Circuit Court of Appeals for the Second Circuit.

At most, those courts had jurisdiction of the subject matter.

This was the kind of case they were authorized to deal with.

The objection here is not one to lack of jurisdiction to the subject matter but rather to the composition of the court.

Now, so far as we have been able to discover, there is no federal president which holds that a party before a court which does have jurisdiction to the subject matter and knows all the relevant fact could sit back and wait the outcome, and then if it is unfavorable say, “Oh, but that court wasn’t properly — the judge didn’t belong there”, that court wasn’t properly composed.

All the other cases in this Court, and there are about four of them, are cases in which the objection was raised at the first possible opportunity.

In several, the first possible opportunity was on appeal because you couldn’t know who had taken part or haven’t taken part of the decision below until it had been made.

But the objection was raised in all the cases at the first possible opportunity.

Assuming that the question is an open one, because I think it is.

Then we say that all the reasons of policy in good sense, the command that there must be an end to litigation, argue for a holding that one who knows the fact cannot sit back and raise his argument if he loses but take advantage of a favorable decision if he win.

This, I think, is the real ground of decision although not exactly as it was put in the opinion in McDowell against the United States, the only case that I recall, dealing with the assignment of a judge from one court to sit in another.

In that case, the objection was not raised until after there had been an unfavorable verdict and there was a motion made in arrest of judgment and the court held that the moving party had no standing to challenge of the right of the assigned judge to sit in the court to question.

The language was in terms of the de facto doctrine which goes broader than anything that I’m presenting here this afternoon.

But the result, it seems to me quite rightly, consistent with what we advocate.

The consequences of any other view are — are quite appalling and while of course we should have to face them if the decision should be that this can be raised at any time.

Assuming that there is a certain latitude on the authorities, I think the consequences are properly taken into account.

Judge Jackson, I am told, has been set for more than five years in the District Court for the District of Columbia virtually fulltime.

Judge Madden sat for at least a week in the Court of Appeals for the Second Circuit.

Judges of the Court of Customs and Patent Appeals have been sitting in the District of Columbia Court since 1922 with some frequency both in the lower — in the District Court or Supreme Court as it was for a time and later in the Court of Appeals.

There are now about nine cases of direct attack where the point was raised on appeal pending in the Court of Appeals.

But if this — if one is to be held entitled to raise this on appeal for knowing the facts he failed to raise it below, it seems to me that it necessarily would follow, but he was entitled to raise it by collateral attack either by habeas corpus or in this big antitrust cases by some direct motion attacking the judgment is void or some — disregarding the judgment is void and then when it was used, citations for contempt to attack it’s validity.

And this would mean that all these cases would be thrown in doubt, would have to comeback to the courts again.

As I say, I don’t want to make an in terrorem argument.

This implies that and that implies something else.

But I do think that where the authorities are in their present condition, these consequences of letting parties sit back and not raise a very elegant question like this one would be quite intolerable and that that is a proper judicial consideration.

There is one other point, if the Court please, which again does not go the whole way to the constitutional characterization of the Court of Customs and Patent Appeals although it brushes up against it.

John M. Harlan II:

Can I ask you one question?

From the point of view of the clearing of the massive backlog or where you choose to call it, meaning, those two grounds of proceeding, do you see — you have a preference in one over the other?

Archibald Cox:

Well, if you — there is this difference and that is that in the next case, unless you would face the merits, you would have to go on the second ground that I have suggested rather than the first.

It can’t be put on the District of Columbia ground.

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Archibald Cox:

Apart from that, I think that it would make a — a starting point in — clarifying the law to face this question on the first ground — face this case on the first ground that I argued.

And this — that would put an end to all these questions here in the district.

John M. Harlan II:

I believe the Chief Justice (Inaudible) on that.

Archibald Cox:

It would leave the Chief Justice out on a limb.

Perhaps, the limb is strengthened a little by the recent departments of judicial — of additional judges so that the situation that he is confronted with may not be much oppressive.

It would leave him with the embarrassing choice, if there was a court where the only judge available for assignment was a judge of the Court of Customs and Patent Appeals, it would leave him having to decide, it’s better to get the business cleared up maybe because maybe it won’t clear it up at all or is it better to let the business leg and not create possible future litigation.

I appreciate that problem, my answer comes back to the observation I made earlier in answer to Mr. Justice Frankfurter.

This is such a tangle that if we try to clear up too many questions, I fear that it will just be made worse at least that may only be the limitations of my own thinking, but I find this horrible thinking if one gets into all the possible questions.

Earl Warren:

General, if we — if we decided on this limited theory, I’d like to ask you this question.

But the statute says that the Chief Justice may assign a member of the Court of the — Court of Patent and Appeals to the District Court in the District of Columbia and he professes to do so, would he have the power, do you think, to restrict him insofar as his being a district judge is concerned by saying that, “Well, I will assign you but I will only assign you to take care of the local cases involving local law”?

Archibald Cox:

I’ve seen no — no difficulty in his making such an assignment as that.

I think it — it would — it would require interpretation of that statute.

But it would seem to me the fair meaning of the statute was that the Chief Justice was given not only the broad power but if he had doubts about the constitutional validity of that to exercise a segment of the broad power included within.

Earl Warren:

Well, my — my point is simply this, that if he is a district judge, is he not a district judge one is defined without any limitation can be placed for him by anyone except that the —

Archibald Cox:

I would think not.

Earl Warren:

— the laws —

Archibald Cox:

Let me —

Earl Warren:

— do powers of the district judges?

Archibald Cox:

To make my thinking clear.

Let me put it this way.

Let’s suppose that we had a decision in this case, saying that a citizen, resident of the District of Columbia, does not have the right to be tried for a local offense before a judge having security of tenure and compensation.

And let us have fur — let us assume further that we had a decision which we don’t have yet, but let’s assume that we did saying that general — crimes under the general federal statutes and cases — civil cases of that kind, cannot be presided over by a judge of the Court of Customs and Patent Appeal.

Then, I am for — then I should think one has to say when I — when Congress pass this statute, did it intend to be an all or nothing proposition?

And since it can’t be all, does that mean it must be nothing?

I would say no.

I would say that this was a statute which permitted separation that the overwriting intent is to give the Chief Justice as much power as Congress could to get the judicial business of a country done and that giving effect to that overwriting interpretation, one could exercise the invalid part.

And I would think the same excision was permissible where the Chief Justice was bothered by a genuine constitutional doubt.

Earl Warren:

I think we ought to consider also that when the Chief Justice assigns a judge as a district judge, the Chief Judge of a Circuit also has the right to use him as a member of the Court of Appeals.

Archibald Cox:

Well, if we pass the decision that I stated — the two decisions I stated, he wouldn’t have the latter right — he couldn’t have.

Earl Warren:

Yes.

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Earl Warren:

I see.

Archibald Cox:

This — just one more sentence on that point to which — by way of analogy, if a principle gives me a bundle of power as — as an agent, I don’t have to exercise them all.

I may exercise some part of it.

And I would say that the Chief Justice here was in that relation to — to the Congress under the statute.

There’s a third point which still does not require the position of the broadest constitutional question and that is that even if the Court of Customs and Patent Appeals is not a constitutional court of whatever that may mean, that a court which may exercise what Mr. Gressman calls the judicial power of the United States, still, Judge Jackson had all the qualifications necessary to sit in an Article III court.

Well, I cannot say that this is clear on the face of the opinion of the court below.

It does very strongly suggest to me that the reasoning of that court run like this, and I submit it to this Court as sound, that Judge Jackson was appointed to exercise two functions to sit in the Court of Customs and Patent Appeals and to sit in the Courts of the District of Columbia.

He was appointed for life, given security of compensation and confirmed as a judge exercising either one of those powers that this was enough to make him an Article III judge.

That even if a judge of the Court of Customs and Patent Appeals absently assigned that statute, it wouldn’t have gotten security in this respect since the appointment was made in relation to the assignment statute that Judge Jackson did get.

Now, certainly this doesn’t defeat any intention of either the Congress or the President into the Senate, I should say, or the President because they confirmed him, because they appointed him for life with security of tenure.

(Inaudible)

Archibald Cox:

Yes.

That’s what it comes to.

Now the only — the only objection that could possibly be raised to that if he had been appointed with a view to assignments in the Southern District of New York would have been well he was appointed to — also performed non-judicial duties and you can’t have that.

But, under the — under the O’Donoghue case, you can have that in relation to the District of Columbia.

So it seems to me that he had —

(Inaudible)

Archibald Cox:

The 1922 statute applied only to the district.

I just want to emphasize that this doesn’t require going the whole step to other courts.

(Inaudible)

Archibald Cox:

It reads —

(Inaudible)

Archibald Cox:

Yes.

Court of Customs?

Archibald Cox:

That — yes, yes.

And you will recall that the original Judiciary Act didn’t fix any tenure just as the act under which — as the original act of the Court of Customs and Patent Appeals didn’t fix any tenure.

It just assumed the constitutional government.

That was changed in relation to the Court of Customs and Patent Appeals before Judge Jackson’s appointment following the decision of the Bakelite case.

But the statute did give him a tenure for life so that the result —

(Inaudible)

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Archibald Cox:

The Commission is printed in the front of petitioner’s brief at page 10, Justice Brennan, page 10.

(Inaudible)

Archibald Cox:

Petitioner’s brief, the blue — the thicker blue brief.

Now even if this argument does not establish Judge Jackson’s Article I status as of the time he was appointed, surely, he acquired that status after the legislation of 1958 because the only thing possibly lacking in it earlier was that the Congress — that Congress may have had some power to modify, overturn the action of previous Congress.

But in 1958, when the Congress declared that the Court of Customs and Patent Appeals was a constitutional court, surely, it surrendered what power it could possibly have had left.

And since it was the only agency that possibly did have any power left at that stage, it surrender of it would seem to be complete.

And we —

Earl Warren:

And do you think that before 1958, it was constitutional court?

Archibald Cox:

No — no.

No, I think that before 1958, Judge Jackson had all the qualities of a — required for a judge in the Court of Appeals in the District of Columbia including security of tenure and compensation.

I dislike so far as we can speaking of constitutional court or legislative court because frankly, I don’t know what it means or what anybody else means it means that it’s — there are times when one falls into it would it — it’s a — it’s a very difficult phrase.

Earl Warren:

Is there any legislative history they show why Congress acted in 1958?

Archibald Cox:

There were — there were two threads that run through the debate.

The dominant one was the desire — this came up at the time when there was pressure for new judges.

And Congress said, “Well, we will make it possible for the Chief Justice to have greater freedom in assigning judges.

And we’ll enable judges of the Court of Customs and Patent Appeals to be assigned anywhere in the country instead of confining them to the District of Columbia which was a regular thing.”

That, I think, it is fair to say was the dominant theme of the debate.

There was also an interest in having the court made a constitutional court.

The Court of Claims had been made a constitutional court overruling so far as Congress could do it putting pressure to overturn the Williams case and there was an interest in having a light constitutional status given to the Court of Customs and Patent Appeals.

But it quite clearly was related to the problem of assignment as well as to this other question.

Earl Warren:

What I was saying of this, General, suppose — suppose that this session of Congress, an act would be passed making the tax courts a constitutional court in giving him permanent — permanent tenure, do you think that because they are now enable to — to adjudicate cases that that would make the judges who would retire prior to that time, judges capable of assignments throughout the country?

Archibald Cox:

I would think that it would but I would find out that I don’t have to go and haven’t gone that far because —

Earl Warren:

No.

I know.

Archibald Cox:

Yes.

Earl Warren:

Speculating (Voice Overlap) —

Archibald Cox:

Well, it’s obvious —

Earl Warren:

— my own problems here.

Archibald Cox:

Well, I’m glad to do that but I do want to keep this case simple.

Earl Warren:

So let’s — yes?

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Archibald Cox:

At least it may be decided.

Earl Warren:

Yes, I — I understand you.

Archibald Cox:

Our argument does take the next step, Your Honor, and says that yes, if there were no other impediments and I understand you to be assuming no other impediment.

Earl Warren:

Yes.

Archibald Cox:

That Congress could make the retired — of course these judges, none of them were originally appointed for life at all.

Earl Warren:

They were not.

Archibald Cox:

That’s correct.

They have only a term for years.

And our argument does not go so far as to assert people who were originally given a term for years could by an act of Congress be converted into general judges with all the attributes of an Article III judge.

Felix Frankfurter:

I don’t think they could by an act of —

Archibald Cox:

I should —

Felix Frankfurter:

— Congress but the court could be made into one.

And those who had — previously had a life tenure could upon re-nomination by the President for good behavior term and confirmation by the Senate.

Archibald Cox:

Then would —

Felix Frankfurter:

Then get —

Archibald Cox:

Yes.

Felix Frankfurter:

— that status.

Archibald Cox:

It’d slipped to my mind for a moment that these were judges who’ve been named only for terms.

Earl Warren:

Yes.

Archibald Cox:

And my first answer was quite wrong.

If the Court finds that it must go further and decide the status of the Court of Customs and Patent Appeals, then we do submit that it is a court created under Article III and Article I Section 8 that therefore Congress did have the constitutional power to authorize the assignment of Court of Customs and Patent Appeals judges to other Article III courts.

I recognized that this involves asking the Court to overrule the Bakelite case and the Williams case.It seems to us that we’re wired in making that request for several reasons.

In the first place, the course of decisions of this Court on this question has certainly been far from uniform.

It’s only with very great difficulty that the O’Donoghue case can’t be squared with the Bakelite case and still greater difficulty that it could be squared with the Williams case.

The Williams case itself overturned a long series of considered expression by this Court saying that the Court of Claims was a constitutional court.

So that I think this is peculiarly a situation where the state of the decision would justify reexamination without any weakening of whatever it’s the normal doctrine of stare decisis.

Second, it is surely of someway in deciding whether a court — whether the Court should reexamine a president that the Congress has both in 1953 and in 1958 expressed it’s disapproval of those decisions.

And it’s desire if it could to do everything possible to change these courts if the change was required in the constitutional courts and to urge this Court to reconsider the doctrine from the beginning.

And while of course that’s not binding and this is a constitutional question where there would be little occasions to have deferred the Congress, nevertheless, it’s a reason for being willing to reconsider it, I think, in additional reasons.

Now, I think that in deciding whether the Court of Customs and Pa —

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Felix Frankfurter:

Why do you — why do you say this is not a situation which need to defer to, is it because it’s the jurisdiction or the judiciary problem?

Archibald Cox:

I had Your Honor’s statement in the Tidewater Insurance case.

Felix Frankfurter:

Yes, I know but that was — that didn’t meet with as much fairer advantage than it does with you now.

Archibald Cox:

Well I think because —

Felix Frankfurter:

(Voice Overlap) —

Archibald Cox:

I think — I think because — maybe it will still meet with the majority favor —

Felix Frankfurter:

I think there — I think —

Archibald Cox:

It either suspects what I have in mind and I take it Your Honor had in mind was that this is a special kind of question.

Felix Frankfurter:

I agree with you entirely.

I only want to make this qualification.

To me, there’s a difference when there is an act of Congress whatever weakens the statute, containing the jurisdictional or judiciary problem using that word as an adjective, and having given that of any thought that is not now raised yet but that was my view in Lincoln Mills as you know but after the decision by this Court and consideration of the problem conscious consideration by the problem, by the Congress that was true in these enactments after Bakelite, I think you’ve got a different situation.

Archibald Cox:

Well, of course from my —

Felix Frankfurter:

How do you —

Archibald Cox:

— from my standpoint in this case and the more weight that the Court is willing to give to its depth.

Felix Frankfurter:

Yes — I’m just —

Archibald Cox:

As a general question, I think I would urge to Your Honor that in — intellectual conversation that a — even when the matter has been considered, the problem dealing with the judiciary and with — just what are the implications of Article III that the congressional judgment perhaps deserves somewhat less weight than in dealing with labor legislation or minimum wages.

Felix Frankfurter:

I agree with that.

All I’m saying is where you’ve got to deal with the problem which is inherently returns difficulties so that men are concerned and familiarity with these problems can — to put it mildly take two views the fact that Congress, in the light of prior decision that this Court has taken the view that it has, has weight which wouldn’t be have an issue of.

Archibald Cox:

Well, I — I would certainly urge that and I think that the distinction that I failed to note is — is well taken.

In deciding whether the Court of Customs and Patent Appeals is a constitutional court, it seems to me wise to stay away so far as we can from these abstract, indeed, rather esoteric question such as the judicial power of the United of States, the non-delegable judicial power of the United States Constitutional Court and the like.

I suggest that having in mind the words and the purposes of Article III that we should seek to judge the character of this Court by looking at four things.

First, what’s the court’s function?

What is the subject matter with which it deals?

Second, what are the powers, and I mean external power not some inherent reality that you can’t see, but what can it reach out and take hold of?

Who can it put in jail?

Who can it subpoena as witnesses of the like?

Third, the qualities of its judgments especially in their finality, are they binding?

Are they subject to review by the executive branch or by someone else and fourth, the tenure and compensation of the judges?

Judged by those standards, we submit that both the Court of Customs and Patent Appeals and in the next case, the Court of Claims are courts out of power with such inferior courts as the District Courts and Circuit Courts of Appeals and in that sense, but I will call roughly Article III courts, having nothing than a loose descriptive meaning in mind.

Let me look — ask you to look first of the situation as it was shortly after the Court of Customs and Patent Appeals was created in 1909.

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Archibald Cox:

The subject matter with which it was created to deal was — were — was cases which theretofore had been heard in these old Circuit Courts of the United States.

In other words, it took over a function which had been performed by some of the courts created by Congress as inferior courts of the United States.

These were cases dealing with the classification of articles for the purposes of the tariff law and determinations as to what was the rate of duty do.

And they were cases which have been reviewed on a case within this Court by one — by certiorari.

They were clearly cases of controversies.

It seems to me undebatable that they arose under the laws of the United States.

And I would submit the Williams case to contrary not withstanding that they were controversies to which the United States was a party.

Certainly, it was one of the parties in interest and the other party, of course, was to first see important.

But in any event, even if they’re not controversies to which the United States was a party, they did arise under the laws of the United States and therefore came under their head of Article III jurisdiction.

Looking at the second standards, the powers of this Court in deciding cases, there is no explicit specification of what its power should be in the statute.

But you will find it in our brief that the words of the statute creating the court were borrowed from the legislation creating the Circuit Courts of Appeal.

It follows almost word for word.

And there’s every implication therefore that this Court was to be organized in and have the same powers as those courts.

Indeed, the Court of Customs and Patent Appeals is a court of the United States under Section 453 of Title 28.

And it therefore has the powers conferred upon the courts of the United States in the other parts of the Judicial Code including the powers to issue subpoenas and directly to punish itself and to punish people for it for contempt instead of having to refer them to some other tribunal as an administrative agency and presumably the Tax Court would have to do.

So the judge by the second standard, surely, this function in the manner and exerted the external powers of a court.

Third, there’s no question between the judgments of the Court of Customs and Patent Appeals after its creation had all the qualities of the judgments of other courts.

Indeed, they had sufficient finality so that in this class of cases, this Court has reviewed.

Fourth, the judges certainly ostensibly had full security of tenure and compensation.

The language of the original act with respect to their term was just like the language of the original judiciary act.

The assumption throughout the debate in Congress as our brief shows was that they would have both security of tenure and compensation.

And their appointments, read in the manner in which all normal judges are appointed.

It is true that following the Bakelite case, the Congress did pass a statute saying that the term of judges of the Court of Customs and Patent Appeals should be during good behavior.

This, I take it, was a situation forced upon the Congress and does not show any departure from its original intention under the 1909 Act, indeed it would tend to confirm it.

And whatever its intention was in 1930, if I may jump ahead, its intention under the 1958 legislation is perfectly plain.

Indeed, the — the salary of these judges from the beginning was the same as that of an ordinary circuit judge.

Now, as I understand it, there are two arguments that are made by Mr. Gressman against the conclusion that the Court of Customs and Patent Appeals as first setup was what he calls a constitutional court.

First, he says in his brief, although I thought he sort of strayed from the line a little in oral argument when pressed that this is not a constitutional court because it’s specialized.

It doesn’t deal with a wide range of cases and controversies but with a specific kind of cases and controversies.

I submit that that proposition is untenable on its face of the Emergency Court of Appeals was a specialized court.

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Archibald Cox:

The Commerce Court was a specialized court.

As Justice Frankfurter suggested during the oral argument, it’s always been assumed that an Article III court, courts that his judges had security of tenure and compensation could be created to hear public cases.

And in recent years of course, there has been much discussion about setting up an Article III court to hear labor cases or to hear administrative cases on the notion that specialization deprived the court I’ve just stated is contrary to the assumption of the bar and of this Court and others I think at this point.

There is another argument, as I understand it, is that there is nothing which this Court does which is inherently or necessarily requires judicial determination.

And this is a phrase drawn from the Bakelite opinion.

I confess that I find in Article III nothing that suggests any foundation for that language.

And furthermore, I think that it is an exceedingly unfortunate as what we would mean by which inherently are necessarily requires judicial determination.

This would mean that to determine whether a judge has life tenure, he would have to run through all the business that his court is — and — is authorized to hear and decide whether any of it necessarily requires judicial determination.

Now this isn’t a clear question at all in the light of decision and history over the past 30 years.

It’s been a good deal of shifting back and forth between what maybe submitted to the executive or an administrative tribunal and what requires judicial determination.

The — so that I suggest that as it was constituted, there could be very little question.

But that the judges of Court of Customs and Patent Appeals had all the qualities which go with the judge appointed to one of our regular courts under Article III.

Then when it comes to the question, whether the additional jurisdiction that was vested in that court in 1925 by the trier of fact of that year and again in about 1930 when the jurisdiction of the court — of the Court of Appeals for the District of Columbia over cases from the Patent Office was transferred to the Court of Customs and Patent Appeals destroyed its character.

Let me speak first into patent jurisdiction.

We have argued in our brief that this — that this jurisdiction is in truth a judicial power.

Felix Frankfurter:

Would you mind —

Archibald Cox:

This —

Felix Frankfurter:

— would you mind being specific and state what matters the Court of Customs and Patent Appeals deals with that one dealt with for 50 years by Judge Hand sitting in the District and Circuit Courts in the numerous patent and unfair trade cases that he had.

Archibald Cox:

Well in this respect, I think that there is in truth none.

Right.

That’s what I thought.

Archibald Cox:

That seems to me proposed in Postum Cereal case is wrong — wrongly decided.

And we have elaborated the reason in our brief.

I would like simply to mention one point because I have trespassed on the Court’s time enough already.

If you will note particularly the case of Hoover Company against Coe dealing with the traditional bill in equity to review Patent Office decision, you will find that essentially the same kind of case as the appeal jurisdiction has been dealt with the — with by the District Court and by this Court for many years.

So that on this point, we think there really is no problem at all.

This leaves the little fringe power of the Court of Customs and Patent Appeals to decide whether there has been an unfair method of competition in the — by importers of goods.

And it does have a power to review the decisions of the Tariff Commission in that respect, the decision of the Tariff Commission then goes to the President.

And the President has the authority to determine whether to put a heavier duty on these articles or whether to exclude them from importation.

Felix Frankfurter:

Well, that isn’t — as I understand it, that isn’t — the subject matter is non-judicial but it isn’t final because the President can exercise its political power to — to reject it.Isn’t that right?

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Archibald Cox:

And on that — on that, I would make — I agree if I would go on and — and make two comments.

First, I think I should say, although it — there’s only been five instances of this throughout the history of this power.

Second, that the Court of Customs and Patent Appeals, for reasons which I don’t have time to elaborate, said that the President didn’t have authority to disregard the decision upon this question, which is a type of question which of course this Court and Courts of Appeals decide on the Federal Trade Commission Act, what is an unfair method of competition.

Felix Frankfurter:

But suppose you — suppose you take it at face value that they differ from the power which the Courts of the District have which are now constitutional court could fix the rates.

Archibald Cox:

No.

And one, I was going to make that, and one other sentence just to suggest the point, I think really, it doesn’t differ either Justice Frankfurter from the power that this Court and the number of other courts exercise when they say to the Secretary of State, for example, you may not deny a man a passport on this ground.

It’s a question whether later he will get a passport or whether they say to the Labor Board, you may not exclude a union from filing in charge of unfair labor practices upon this ground.

I think our notions of finality in relation to the administrative procedure have developed and that this, too, would require some reexamination of some of the assumptions of the Bakelite case.

For any of these reasons, we think the judgment below should be affirmed.

Earl Warren:

Mr. Robb.

Roger Robb:

Mr. Chief Justice, may it please the Court.

I appear on behalf of the Chief Judge and the Associate Judges of the Court of Customs and Patent Appeals amici curiae.

In the 10 minutes of my disposal, I should like if I may to make or touch upon two points.

First, I should like to examine the contention of the petitioner that he has a constitutional right to a trial before an Article III court for an offense committed in the District of Columbia.

And second, with deference, I should like to examine, the decision of this Court in the case of Ex parte Bakelite.

Now on the first point, the petitioner contends that he had a constitutional right to be tried before an Article III court and judge for an offense committed here in Washington in the District of Columbia.

We submit that trial for such an offense in the district before a purely legislative court would be constitutional.

That is, we say that no constitutional right of this petitioner was violated even though Judge Jackson was not an Article III judge.

Now, this Court has long recognized and the Congress had recognized that the courts of the District of Columbia perform a dual function, the function of state courts and the functions of regular Federal District Courts.

And pursuant to this doctrine, Congress has provided since early days for the trial of criminal cases arising in the District of Columbia before legislative courts.

As early as 1838, the Congress created in the district what was called a criminal court composed of one judge who did not have life tenure and whose salary was less than that of the District Judge and provided that that judge would try all criminal cases arising in the District of Columbia, all cases in which were involved violations of any law in the District of Columbia.

In 1870, Congress created in the district what was then called the police court which had jurisdiction over all misdemeanor prosecutions concurrently with the District Court.

And that jurisdiction has continued from that day to this.

The name of the court of course hadn’t been changed.

The court now have been called — haven’t been changed.

Now, at present, such misdemeanor is triable in this non-Article III legislative municipal court include not only violations of local statutes but violations of general federal statutes which hardly occur in the district would be tried before a Federal District Court which at least made to suggest, may it please the Court.

And perhaps this might have some bearing upon the questions of the Chief Justice.

That the test of the power of Congress to provide in the district for the trial of criminal offenses and before a non-Article III court is not the section of the statute which is involved but rather the venue of the offense.

And if Congress has the right to provide on the trial of all offenses of which the venue is in the District of Columbia before a non-Article III court.

Now, of course, if the reasoning of the petitioner is sound and we suggest that all prosecutions of misdemeanors in this district, perhaps since 1870, had been unconstitutional and void and that frankly is rather hard for me to believe.

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Roger Robb:

We might know it also that of course a defendant worthy tried for a misdemeanor or a felony is entitled to a jury trial to all the guarantees of the Constitution.

Now, I might note parenthetically that the Court in his opinion in Bakelite characterized the then Supreme Court of the District of Columbia as a legislative court.

And yet at that time, the Supreme Court of the District of Columbia exercised jurisdiction over all felony prosecutions here on the district.

So I take it Mr. Gressman will not go along with that portion of the Bakelite opinion.Now —

Felix Frankfurter:

What was the tenure advantage Mr. Robb?

Roger Robb:

I beg your pardon?

Felix Frankfurter:

What was the tenure of those judges in the Seventh —

Roger Robb:

Life.

Felix Frankfurter:

Life.

Roger Robb:

Yes, sir.

Now, coming to my second point, as a lawyer, I have of course an abiding faith that this Court is wiser than I and certainly knows more law than I.

And therefore, it is with some dividends that I suggest that a decision of this Court was mistaken.

However, my duty to my clients requires me to do so in the case of Ex parte Bakelite.

I should like to point out briefly the reasons why we have raised that conclusion.

As Mr. Cox has said in the first place, the jurisdiction invested in the Court of Customs and Patent Appeals by the Tariff Act of 1909 was precisely the same jurisdiction which part of that time had been invested in the Federal District Courts or Circuit Courts which of course were constitutional courts.

Now, the Court in the Bakelite case said that courts established under Article III of the Constitution called constitutional courts share in the exercise of judicial power defined in that section and can be invested with no other jurisdiction.

But turning to the jurisdiction of the Court of Customs Appeals, the court found that that jurisdiction was advisory only.

Now my question is, may it please the Court, if the jurisdiction of the court of — of the — of the District Courts was constant — was that of a constitutional court and those courts could be invested with none other, then I’ll pray — I’ll pray can we say that such jurisdiction was not — not the jurisdiction of a constitutional court when it was transferred to the Court of Customs and Patent Appeals.

It seems to me there is a necessary break in logic in this reason.

Now, we submit that the jurisdiction of the Circuit Courts was plainly judicial, an Article III jurisdiction and it — and it did not cease to be such when transferred to the Court of Customs and Patent Appeals.

Now, we invite your attention also to the fact that the Payne-Aldrich Tariff Act of 1909 provided that custom cases then pending in the Circuit Courts might be reviewed on appeal by the Court of Customs and Patent Appeals.

Again, we ask, could it be, could it be that a mere legislative court exercising only advisory or administrative jurisdiction could be created by Congress to review the judgments of Federal Constitutional Courts.

We question also the reasoning of Bakelite that the judgments of the Court of Customs Appeals were not judicial for the reason that the matters involved in appeals before that court had been at times confided to executive determination.

We submit that matters which might — might be confided to such determination may also be the proper business of constitutional courts.

And an example of course, is in cases arising under the Federal Tort Claims Act.

Now finally, on the subject of the custom jurisdiction of the court, we emphasize, as Mr. Cox has pointed out, that only a minute fraction of that jurisdiction was involved in the Bakelite case.

And that fraction was the court’s jurisdiction to review on questions of law proceedings leading to a recommendation to the President in the matter of tariffs.

Only six such cases have ever reached the court.

And we think — think that this particular jurisdiction which by the way was not conferred upon the court until 1922, 13 years after the court — court was started that this particular jurisdiction, even though it is merely advisory should not taint the entire jurisdiction of the court and should not by its coloration, discolor the entire court.

Now, I see my time is up.

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Roger Robb:

I haven’t quite finished my findings.

Earl Warren:

You may take another minute to —

Roger Robb:

Thank you, sir.

Earl Warren:

— to finish it.

Roger Robb:

In our brief, may it please the Court, we point out that since the decision or after — after this Court’s decision in the Postum Cereal case.

The statute was changed with respect to patent appeals so that decisions on appeal of the Court of Customs and Patent Appeals now are final.

But apparently, that change in the statute was not called to the attention of this Court at the time of the argument in Bakelite.

And we think it’s a very important one.

We have discussed these matters in our brief at further length and I should (Voice Overlap) —

Hugo L. Black:

I want to ask you one question.

Roger Robb:

Yes, sir.

Hugo L. Black:

With reference to the first part of your argument.

Roger Robb:

Yes, sir.

Hugo L. Black:

You drew distinctions along the line of difference between a legislative court and an Article III court.

Roger Robb:

Yes, sir.

Hugo L. Black:

I don’t — I find it difficult to decide, difficult to follow that what you meant by that in this respect — in this respect, I understood you to say that the District of Columbia, a man could be tried for what you call a legislative court.

Roger Robb:

Yes, sir.

Hugo L. Black:

And one wherein could be tried — which could only be tried in places outside of the District Court.

In other words —

Roger Robb:

Yes.

Hugo L. Black:

— define that murder case.

Roger Robb:

Yes, sir.

Hugo L. Black:

Could you tell me what is (Inaudible)?

In the structure, in the — the significant in the structure —

Roger Robb:

Well —

Hugo L. Black:

— or in the method of administering the (Voice Overlap) —

Roger Robb:

What I meant to say Mr. Justice Black was that certain violations of general federal statues which do constitute misdemeanors which if they occur here in the district may be tried for — before the lower court, the statutory court whose judges do not have life tenure.

However, if those offenses occurred in a district, they would necessarily be tried in the Federal District Court.

Hugo L. Black:

You draw your distinction there between a misdemeanor and something else.

Suppose its murder, what’s the difference?

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Hugo L. Black:

What could be the difference as the way it functions?

Someone will operate —

Roger Robb:

Any —

Hugo L. Black:

— forgetting the word legislative Article III —

Roger Robb:

Any —

Hugo L. Black:

— and everything else.

Roger Robb:

Any murder case of course would be tried before our District Court here.

Hugo L. Black:

Well, I understood you to say though it could — the cases could be tried differently as the man and the people in other states and places, had to be tried by the federal court one way for their crime but could be tried a different way, crime generally could be tried a different way in the District of Columbia.

Roger Robb:

I don’t think I intend to say that, Mr. Justice Black.

Of course — of course the procedure would be the same.

My only point was that where the venue of any offense is — is here in — in Washington D.C. is that offense is a misdemeanor.

The offender is tried before to lower court.

Hugo L. Black:

Are you talking about how it is done?

Roger Robb:

Yes, sir.

Hugo L. Black:

Suppose it’s a murder, are you taking, as I gather, you have drawn in distinction between the way people could decide constitutionally —

Roger Robb:

Yes.

I say —

Hugo L. Black:

— in the district and outside.

Roger Robb:

I would say Mr. —

Hugo L. Black:

Could there be?

Roger Robb:

I would say, Mr. Justice Black, that if — that in the case of a murder, the Congress if it wished to do so as it has done in the past, as it did it — as it did back in 1838, Congress couldn’t provide that such cases should be tried before a court in the District of Columbia whose judges did not have life tenure.

Hugo L. Black:

Is there — is your case dependent on that?

Roger Robb:

Well, my point was that since Congress has that power, this petitioner has no constitutional right to be tried for robbery before a judge having life tenure or before a judge of a constitutional court, if you want to put it that way.

That was my point.

Hugo L. Black:

If the argument has been made on the side you are on, leads to the conclusion that people charged with felony or a crime can be tried one way under the Constitution in the District of Columbia, another way in the — outside of the District of Columbia to the disadvantage of either that would raise different questions so far as I’m concerned.

Roger Robb:

That is correct.

May it please the Court, but I — I think perhaps if I might say so, the catch in Your Honor’s — in Your Honor’s position is —

Hugo L. Black:

I don’t intend evidently.

Roger Robb:

Oh, no.

Hugo L. Black:

I’m trying to find what you meant.

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Roger Robb:

Yes — yes sir.

I think perhaps the — the — the point is that I do not believe it — it is to the constitutional disadvantage of the petitioner in this case or would be.

Hugo L. Black:

You mean to be tried by a judge not appointed for life as independent as you know constitutionally —

Roger Robb:

That’s been done —

Hugo L. Black:

— right to there — in the District of Columbia?

Roger Robb:

All I can say is, Your Honor, that it — it has been done in the District of Columbia in the past by Congress starting in 1838.

And of course that — that question doesn’t necessarily arise here because we have a judge who was appointed for life.

Hugo L. Black:

I — that’s what I thought.

Roger Robb:

Yes, sir.

So, I would say that perhaps — perhaps the question isn’t — isn’t here in this case.

Hugo L. Black:

Well, I hope it’s not.

Roger Robb:

Well —

Hugo L. Black:

But I can’t see is that if the whole argument is based on that assumption —

Roger Robb:

Whole?

Oh, no.

Hugo L. Black:

— it is not here.

Roger Robb:

Oh, no, sir.

Oh, no.

Oh, no, not indeed.

No indeed sir.

My point merely was in the past that was done.

I think that threw some light upon the present situation.

But here in this case, we do not have a judge.

We do not have a question of a man being tried for murder before a judge who serves only for fix term of years, which I can see it might make a difference.

John M. Harlan II:

Well, the Solicitor General says that he makes that either inconsiderable the Congress could do it, could provide.

Roger Robb:

I beg your pardon?

John M. Harlan II:

The Solicitor General meets Justice Black’s question had on by saying that for a local crime in the District of Columbia, Congress could provide for a trial written through an Article III judge in the sense of one having (Inaudible).

Felix Frankfurter:

And so do you.

Roger Robb:

Yes, sir.

John M. Harlan II:

— (Voice Overlap) — backing away from that argument —

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Roger Robb:

No, sir.

I’m not backing away from our —

John M. Harlan II:

So your case doesn’t involve it.

Roger Robb:

No, sir.

I —

Felix Frankfurter:

But you’ve said it explicitly that you agreed in that.

Roger Robb:

That’s correct, I do.

Potter Stewart:

The Congress not only could do it but did do it.

Roger Robb:

They did do it in the past, yes.

Potter Stewart:

In the 19th century.

Felix Frankfurter:

The other way around is Justice Black’s trouble —

Roger Robb:

But —

Felix Frankfurter:

— the other way around is important too.

Not that Congress did it, but couldn’t.

Hugo L. Black:

That’s my problem.

Roger Robb:

I think they could Mr. Justice Black —

Hugo L. Black:

Sometimes —

Roger Robb:

— and they have.

Hugo L. Black:

— sometimes they say that Congress could not do it that way.

Roger Robb:

Now, of course, may it please the Court, if the man were tried in a state court for murder, he would very — and unusually is tried before a judge who doesn’t serve for life.

Hugo L. Black:

Well that’s a state court.

Roger Robb:

That’s correct.

Hugo L. Black:

The District of Columbia is not a state.

Roger Robb:

Oh, no.

But Congress at this point —

Felix Frankfurter:

— (Voice Overlap) — was that — what pre-held in Tidewaters.

Roger Robb:

As this Court has said, Congress, may it please the Court, Congress acts as a state legislature for the District of Columbia and has done so.

Hugo L. Black:

If that — if by that is mean that people in the district must be — can be tried for crimes precisely the argument in state, they can be tried in the state according to this Court’s previous opinion without an indictment, without a jury and as you say without judge appointed for life.

Felix Frankfurter:

I would — I would say, may it please —

Hugo L. Black:

Do you say that that can — that the people of the district can be tried without juries?

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Felix Frankfurter:

No, sir.

(Voice Overlap)

Hugo L. Black:

— (Voice Overlap) — different.

Roger Robb:

Because this Court has so held.

Hugo L. Black:

The — they can in state.

Roger Robb:

Because, may it please the Court, as this Court has said emphatically, the District of Columbia is subject to the first 10 Amendments of the Constitution and jury trial is guaranteed.

This Court said that specifically in the Keller case, pointed that out and although, for instance we can — a man may be tried here for a misdemeanor before a judge who served for only 10 years.

Nevertheless, he has the right to a jury trial.

Hugo L. Black:

Well then of course, you are not saying that the people here can be tried as they are tried in the state.

Roger Robb:

No sir, not entirely.

No, sir.

Hugo L. Black:

Just according to a pick and choose method.

Roger Robb:

No, sir.

I say that where the Bill of Rights specifically guarantees a man a right here, he gets it.

But when he doesn’t, then that’s the question.

Hugo L. Black:

Suppose one thought that the Bill of Rights including your whole Constitution, includes the right to be tried by a judge appointed for life independently —

Roger Robb:

Well —

Hugo L. Black:

— what about that?

Roger Robb:

Well, then — then of course the Court would say I was wrong.

Earl Warren:

Mr. Gressman.

Eugene Gressman:

Mr. Chief Justice.

In the few minutes remaining in me, I like to briefly discuss several points mentioned by the Solicitor General.

In the first place, and then align with the discussion that just taken place, I challenge the right of Congress to provide that a crime — that a felony can be tried in the District of Columbia other than before an Article III court or an Article III Judge.

This Court has never said to my knowledge that a person charged with a felony in the District of Columbia may be tried before a legislative court or a legislative judge.

Now, I think there are serious questions, serious constitutional questions raised by any assumption or by any effort by Congress to provide that the person accused in the district of a serious felony crime is not entitled to the constitutional independence of a judge assigned to sit in judgment of that case.

(Inaudible)

Eugene Gressman:

Well that brings into a consideration — entirely different line of factors, namely, the historical difference recognized between felonies and misdemeanors and the historical doctrine which has always been recognized that in misdemeanors may be tried before petty courts.

(Inaudible)

Eugene Gressman:

But —

(Inaudible)

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Eugene Gressman:

That is true.

That comes under the district clause of the constitution authority.

But I do not concede that when a felony is involved that that district clause necessarily gives the authority to Congress to establish that the crime maybe tried before the municipal court.

(Inaudible)

Eugene Gressman:

No.

The Constitution Article III provides that you may have cases heard arising under the laws of the United States.

And this Court has held consistently and the Court of Appeals has held that a crime against the District of Columbia is a crime against the United States and that the District Code is a law of the United States under — within the meaning of a constitutional phrase.

Now, it seems to me that —

(Inaudible)

Eugene Gressman:

Well, that comes then into your historical and always a recognized exception solely in terms of misdemeanors.

(Inaudible)

Eugene Gressman:

Well, at least as far as congressional legislation but that doesn’t mean that that was necessarily a constitutionally recognized distinction or lack of distinction.

Felix Frankfurter:

We should heed common law history but not American history, is that right?

Eugene Gressman:

Well, I’m saying that —

Felix Frankfurter:

History of more than 100 years.

Eugene Gressman:

Well, that — that was a — at the very beginning of the operation of the district and it was soon changed.

Felix Frankfurter:

But I —

Eugene Gressman:

As I recognized it —

Felix Frankfurter:

But I should hope — I should suppose that in the earlier days, the Congress probably knew as much as judges, has much part of the Constitution as we know now.

Eugene Gressman:

Well, that may well be true.

But I suggest that to make a distinction as to felony crimes as between those accused of felonies in the District of Columbia and those in other parts of the country called before Federal District Courts is to create again a most serious discrimination because Your Honors are well aware of the fact that there is an assimilative crime statute which provides that — that — giving jurisdiction to Federal District Courts all around the country to try serious felony crimes committed on felony — on federal property.

And any person accused and tried in a Federal District Court in Kentucky for the crime of burglary or robbery or murder committed at Fort Knox is certainly entitled to a trial on that charge before an Article III judge and an Article III court.

And I sub — and that too, the power to provide for such trials comes again out of Article I Section 8 Clause 17, the same clause, the same Section of the Constitution which is involved in this case, the District of Columbia Clause, the Clause that gives Congress the power to legislate and provide for situations arising on other federal property.

But again, this problem need not be reached.

The Solicitor General is so anxious to avoid to — to a constitutional question.

It seems to me that this is another problem that can be avoided because the plain fact, undeniable fact is that we are not dealing with what Congress might have done with respect to the trial of felonies, we are dealing with Congress — what Congress has done to it.

(Inaudible)

Eugene Gressman:

I have this constitutional challenge that the petitioner makes, goes to — to the validity of that 1922 statute as elaborated in 1958 and the expansion thereof but it seems to me that the Bakelite case gave warning in 1929 that there might be serious constitutional questions about such assignments.

Felix Frankfurter:

But I thought Justice Lamberth had said that the answer to the argument was, but he got the 1922 statute for purposes of assignment in the district.

I —

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Eugene Gressman:

Well he said —

Felix Frankfurter:

I can’t read that otherwise on the last page of his opinion.

Eugene Gressman:

He’s —

Felix Frankfurter:

He’s indicating that he thought it’s alright for them to sit in the District Court.

Eugene Gressman:

Well, there you get you — Your Honor into the other elaborating problem in the Bakelite, which as you are well aware, referred to the District of Columbia Courts as legislative courts which was later expressly overruled in the O’Donoghue case.

Felix Frankfurter:

I know.

Eugene Gressman:

So that you — we have this — this is not a matter of complete consistency in — in rulings and determinations.

Felix Frankfurter:

But that’s what I’ve been trying to suggest to you all through your arguments.

Eugene Gressman:

But I would say in conclusion, Your Honor, that there is a consist — a line of consistency that runs through the opinion of this Court in which constitutes, it seems to me, the key to this entire case.

And I think its best expressed at page 579 of the Williams case in 289 United States which again reiterates that precise demarcation which I have tried to develop in this case.

And again, Justice Sutherland, speaking for unanimous court in that case goes back to Murray’s Lessee against Hoboken Land and Improvement Company and points out by quotation that there are certain matters which once invoked by Congress absolutely require judicial determination and cannot be delegated to any other agency of the Government.

And at the — on that time — and at the same time, there are matters involving public rights growing out of Article I which Congress can as it sees fit, give either to an administrative and executive or a legislative or even a judicial arm of the Government.

Now, if it does only the latter such as it — the Court said in the Williams case, since all matters were made cognizable by the Court of Claims are equally susceptible for — of legislative or executive determination.

They are of course matters in respect of which there is no Constitutional right to a judicial remedy.

And the Court thereby does not become one created or authorized to exercise Article III judicial power.

Now, this — this maybe esoteric considerations but at the same time, they are considerations that go to the very heart of the separation of powers doctrine.

Felix Frankfurter:

You couldn’t possibly justify the Commerce Court on that general talk of Justice Sutherland because that court had nothing but a jurisdiction which need not have been conferred on Court.

Eugene Gressman:

Exactly, but they had one other thing, Your Honor, and this I think was critical that judges that were selected for that court were not only given jurisdiction.

Felix Frankfurter:

Yes, but the Court wasn’t — the Court wasn’t.

Eugene Gressman:

We are talking about judges Your Honor in this case.

Felix Frankfurter:

I’m saying that therefore the Commerce Court was not a constitutional court.

Eugene Gressman:

I am saying Your Honor that the judges thereof were Article III court judges because they were not only given jurisdiction and power to execute the functions of the Commerce course — Court.

They were expressly given the authority by statute and in — to exercise the authority of the regular circuit and district judges.

And they were to be assigned thereto with the expressed power having been given to.

Felix Frankfurter:

But Mr. Gressman, if that same statute were passed today and I was sitting on the Court of Appeals and I were appointed by the President of the United States whereas to sit on the Commerce Court, I could say very respectfully as John Jay did to Washington, you’re asking me to perform non-Article III duties and to a great respect, I decline to do so.

Eugene Gressman:

Well, this precise situation arose with the Emergency Court of Appeals.

They superimposed upon Article III judges as in the sense — as exactly what they did in the Commerce Court, they impo — superimposed upon judges qualified to exercise Article III powers and additional function.

Felix Frankfurter:

We’re talking across purposes.

I’m saying that they couldn’t superimpose on me with the enlightenment you’ve given me, duties to serve on a court which is not a constitutional court.

Eugene Gressman:

Well, I think it’s constitutional for the sense that — in the sense that the judges or you would already have Article III judicial power.

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Felix Frankfurter:

Yes, but there is a difference between a tribunal and the members there are.

Eugene Gressman:

Exactly.

Felix Frankfurter:

And if the tribunal is charged with delegable duties so that which Congress as to the Emergency Court could’ve left with the Food Administrator or the Secretary of Agriculture, a tribunal was created according to your insistence that was not of an imperative judicial nature and no federal judge could be compelled to serve a tribunal of an imperative non-judicial nature.

Eugene Gressman:

Well, if the court —

Felix Frankfurter:

I’m trying to learn from your lesson.

Eugene Gressman:

If the court and the judges thereof are established for the sole purpose, the sole purpose of exercising this ambiguous —

Felix Frankfurter:

And they can do it?

Eugene Gressman:

— ambivalent jurisdiction.

Felix Frankfurter:

Can they —

Eugene Gressman:

I —

Felix Frankfurter:

— do it then?

Eugene Gressman:

— say it is not an Article III court.

But if they want to give this ambivalent jurisdiction to Article III courts or to judges who are already qualified under Article III, that is perfectly permissible.

That’s the basic distinction.

Felix Frankfurter:

It isn’t because Hayburn’s case said we wouldn’t do it.

Hayburn’s case refused to do it, the judges refused to exercise that power, why?

Because that which they were asked to do are subject to review by the Secretary of the Treasury.

Eugene Gressman:

Then that’s another line — that’s another line of distinction.

If you’re going to try to impose on an Article III judge, what is not a case or controversy or what is not judicial at all in nature.

Felix Frankfurter:

But I’m — according to your definition, the Commerce Court was not a judicial body in the sense of Article III.

Because —

Eugene Gressman:

No.

Felix Frankfurter:

— it’s jurisdiction, I’m not talking about the judges, its jurisdiction — it was given jurisdiction over matters which need not have been conferred on a court.

Eugene Gressman:

Well, only in the same sense that the Emergency Court of Appeals was a specialized tribunal.

Felix Frankfurter:

That’s equally subject to your condemnation.

Eugene Gressman:

No, Your Honor because it seems to me those are the only two exceptions in all American history where Article III judges previously qualified to exercise Article III judicial power have had given to them in the — in the format of a specialized tribunal superimposed upon them, this ambivalent jurisdiction.

Felix Frankfurter:

I understand all that but it doesn’t deal with your argument which I thought of — sent to it — you said it’s sent to it.

Eugene Gressman:

Right.

Felix Frankfurter:

— that a court — that as a party isn’t a judge free tribunal unless it has been given by Congress the jurisdiction which necessarily must be given to court.

Eugene Gressman:

And I think it also — the judges at the same time.

Audio Transcription for Oral Argument, Part 1: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok
Audio Transcription for Oral Argument, Part 2: Glidden Company v. Zdanok – February 26, 1962 (242) in Glidden Company v. Zdanok

del

Felix Frankfurter:

Alright.

Eugene Gressman:

Thank you (Inaudible).

Earl Warren:

Mr. Gressman, the — the Court takes notice of the fact that you’re appointed by the Court of Appeals to represent this indigent defendant and that you’ve not only carry it through your obligation there what you’ve done here in a very extensive and a very able way and we’re very grateful to you for what you have — what you have done.

We thank you — we thank you Mr. Robb for your representation of — of the Court of Customs and Patent Appeals and of course, you, Mr. Solicitor General for your helpful manner representing the Government.