Glidden Company v. Zdanok

PETITIONER:Glidden Company
RESPONDENT:Olga Zdanok
LOCATION:Southern District Court of New York

DOCKET NO.: 242
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 370 US 530 (1962)
ARGUED: Feb 21, 1962 / Feb 26, 1962
DECIDED: Jun 25, 1962

ADVOCATES:
Chester Bordeau – For the petitioner
Morris Shapiro – For the Respondent

Facts of the case

Olga Zdanok and other individual employees of Glidden Company(Glidden) sought to recover damages for breach of collective bargaining agreement in New York state court, and then Glidden removed the case to federal district court on the grounds of diversity of citizenship. Judge J. Warren Madden, an active judge on the Court of Claims at the time, granted the employees damages. Glidden argued that the guarantee in Article III of the Constitution that judges should hold their offices during good behavior meant that Judge Madden displayed a lack of appropriate judicial independence. 

Previous judicial precedent had established that the United States Court of Customs and Patent Appeals and the United States Court of Claims were neither confined in jurisdiction nor protected in independence by Article III of the Constitution, but that there were created by other powers Congress possessed under Article I. Congress had since enacted statutes explicitly including the Court of Claims and the Court of Customs and Patent Appeals in Article III of the Constitution. 

Question

Are judges in the United States Court of Claims and the United States Court of Customs and Patent Appeals constitutionally protected in tenure and compensation under Article III of the Constitution? 

Earl Warren:

Number 481, Benny Lurk, Petitioner, versus the United States.

Mr. Gressman.

Eugene Gressman:

Mr. Chief Justice, may it please the Court.

As this case comes back here once again, it is confined to the constitutional issue to wit — whether Article III of the Constitution authorizes or permits the assignment of a retired judge of the Court of Customs and Patent Appeals to sit on the District Court for the District of Columbia.

And thereby, to preside over and render judgment against a petitioner on trial for a felony as defined in the District of Columbia Code.

Well, facts in this case are quite simple (Voice Overlap) —

Felix Frankfurter:

Does it make a difference whether it’s felony or misdemeanor?

Eugene Gressman:

Well, it only makes in the sense that felony is (Voice Overlap) —

Felix Frankfurter:

You’re assuming misdemeanor is triable before a court and jury, would it make a difference?

Eugene Gressman:

Not at all, Your Honor.

Felix Frankfurter:

Alright.

Eugene Gressman:

Now the — as I stated, the facts are simple and without contest.

This petitioner, Benny Lurk, was indicted, tried before a jury and convicted of the crime of robbery as defined in the District of Columbia Code.

He was — his trial was presided over and judgment was rendered against him by Judge Joseph R. Jackson.

Trial took place on March 22, 1960.

Now, Judge Jackson had then appointed to the Court of Customs and Patent Appeals in 1937.

He sat on that court for more that 14 years and retired there from in 1952.

Several years thereafter, began a series of assignments of Judge Jackson pursuant to Section 294 (d) of Title 28 of the U.S. Code which expressly permits and authorizes the assignment by the Chief Justice of the United States of judges, retired Judges of the Court of Customs and Patent Appeals to sit on District Courts around the country.

The particular assignment in question here and the one which covered the period during which petitioner’s trial took place, delegated or authorized Judge Jackson to sit on the District Court for the District of Columbia for the entire year of 1960.

And in that connection, it is important to note that the assignment made of Judge Jackson for the year 1960 did not designate him to sit as one of the — or in place of any of the regular 15 judges composing the District Court of the United States, simply authorized him to fill an office so-called of the Judge of the District Court of the United States for the District of Columbia, an office which was created solely by virtue of the assignment, made pursuant to Section 294 (d).

And the petitioner’s challenge in this case goes to the constitutionality of that statute which purports to authorize this office of District Judge of the United States by virtue of an assignment of a retired judge of the Court of Customs and Patent Appeals.

We, therefore, attacking the de jure as well the de facto in nature of this Judge’s participation as a Judge of the District Court.

And under these circumstances as we developed more fully and I reply brief in this case, the first defense offered by the Government in this case in terms of de facto doctrine is no answer to the challenge, the constitutional challenge made by petitioner in this case that no office could exist by virtue of an assignment under this statute.

Now, before I get to the heart of the constitutional issue, there are several preliminary considerations which I would like to submit, which I feel are critical to an understanding of that constitutional issue and which form the context within which this issue must be viewed.

Now, first such consideration is the fact that this petitioner is here alleging a personal constitutional right as an inhabitant of the District of Columbia to have his trial in the District Court, heard by a judge authorized to execute Article III judicial power and author — and having the constitutional immunity or independence of action which Article III gives to judges of Article III courts.

And that to deny him that claim, that right, we suggest, is to deny this petitioner due process of law in his trial and conviction.

Now, this personal claim of the petitioner, this personal — (Voice Overlap) —

Felix Frankfurter:

Let me ask you.

If you’re right, why do we have to bother about due process?

Eugene Gressman:

Well, I think it — it automatically follows.

Eugene Gressman:

The claim is Your Honor that the provisions of Article III, Section 1 relating to the independence of the federal judiciary in terms of salary and tenure of office are designed primarily, I suggest, for the protection of the litigants and the defendants who are called before Article III courts and they are not as this Court said in Evans against Gore and reiterated in the O’Donoghue case.

They are not a private grant to the judges themselves.

Felix Frankfurter:

Do you think the life tenure was put in the Constitution on due process consideration?

Eugene Gressman:

No, Your Honor.

I think it was put in there primarily to — as the Evans against Gore points out that in order to ensure that the guarantees and other provisions of the Constitution are properly administered and applied by the judges of Article III courts, that it was absolutely essential that the judges be given constitutional independence of action and they could only do that by giving them life tenure and by protecting them from any diminution in their compensation.

Now, I think necessarily follows from that that the litigants and the defendants are entitled to that constitutional independence on the part of those who are sitting in judgment of them.

Felix Frankfurter:

If there is no valid court, you don’t have to bother about due process, do you?

You have to bring everything under due process.

Eugene Gressman:

No, Your Honor.

I think it — it is one way of expressing it but I think if there is no valid Article III court here or no valid Article III judge, that puts an end to it.

But I think that one way of saying that from another angle is simply that there’s been no due process accorded him.

But I don’t want to pursue that situation because I think as you say, the — the complete answer is if I am right, law in the fact that this Judge was not authorized under the Constitution to sit in this case or to render judgment.

In that respect, I submit further that it is no answer as the Government seems to suggest that Judge Jackson has life tenure by virtue of a congressional enactment in 1930.

Whatever statutory protections of tenure or salary that Judge Jackson may have is no substitute for the constitutional requirements, the constitutional protection which can only be given to an Article III judge and simply because Congress is seen fit to give life tenure to a so-called non-Article III judge does not thereby satisfy the constitutional claim which I am here asserting, a claim which requires and necessitates that the life tenure and the protection against salary compensation diminutions come from the Constitution from Article III, Section 1 and not from any statutory enactment.

And I might say that as I will develop later, that Congress in this instance has demonstrated an ability and a constitutional right to cut the salaries of judges such as Judge Jackson as they did in fact in 1932.

But moreover, this constitutional claim which petitioner is here asserting is one which very definitely can be raised and pursued by this petitioner as an inhabitant of the District of Columbia because the O’Donoghue case completely answers any contrary claim by demonstrating and ruling that District of Columbia inhabitants are not less fortified by the guarantee of an independent judiciary than in other parts of the union and that they too like the inhabitants of all the other 50 states, have the right to have their cases arising under the Constitution and laws of the United States heard and determined, I’m quoting, “By federal courts created under and vested with the judicial power conferred by Article III.”

John M. Harlan II:

The Court of Appeals didn’t reach the constitutional question.

Eugene Gressman:

Well, Your Honor —

John M. Harlan II:

Do we have to?

Eugene Gressman:

They did reach the constitutional question.

I’ll be glad to examine into that at this point.

Now, their answer to this claim which I am asserting, which is a constitutional claim by this petitioner, was that regardless of what might be said with respect to Article III of the Constitution, the complete answer is to be found.

They said in another section of the Constitution to with the district clause of Article I which is in Section 8 Clause 17 of Article I.

So they said, “We will avoid any determination of your claim under Article III because we feel that the complete answer is to be found under the District of Columbia Clause.

Now, that District of Columbia Clause merely reads that the Congress shall have exclusive jurisdiction to legislate for the National Seat of Government or the District of Columbia.

And it has been viewed as a rather plenary congressional power.

Well, be that as it may, the complete answer to the — to the analysis rendered by the Court of Appeals below on that ground again is to be found in the O’Donaghue case in 289 United States, which demonstrates that that District of Columbia Clause is not to be read in a vacuum and it is not inconsistent with the application of Article III of the Constitution.

Moreover, this Court said in O’Donaghue, it is not to be used and I quote, “To destroy the operative effect of the judiciary clause namely Article III within the District of Columbia.”

Now, that means very simply this, that if petitioner is right in asserting that Article III of the Constitution prohibits this assignment and requires that this case be heard and determined by an Article III judge, then it is no answer to that claim that the District of Columbia Clause provides any type of an answer because the two clauses are in no way inconsistent and the District of Columbia Clause is not to be used to prevent the operative effect of Article III.

In other words, both the District of Columbia Clause and Article III must be read together, both of them must be applied and if one of them namely Article III prohibits this assignment, that is the end of the matter.

Eugene Gressman:

There is nothing in the District of Columbia Clause which would override or make inapplicable the provisions of Article III.

Felix Frankfurter:

Mr. Gressman, is there — just confirmed an impression I have or information I have as a matter of fact, the assigning of Chief Justice to courts throughout the country, either the District Courts or Court of Appeals, but let’s stick to District Court trial, jury trial, is the assigning statutory authority given to the Chief Justice differentiate between judges of the Court of Customs Appeal and judges of the Court of Claims?

Eugene Gressman:

Well, I think there are different subsections but I think —

Felix Frankfurter:

I don’t — I mean the power?

Eugene Gressman:

No, the power is there saying —

Felix Frankfurter:

Well, that — whatever you — whatever you may be arguing as to the particular authority of power or sanctions derivable from the District of Columbia Clause of the Constitution; the purpose of the sitting in the District of Columbia wouldn’t carry you, that wouldn’t take care of, object the right to assign at another district outside of the district.

Eugene Gressman:

No, Your Honor.

It is a unique type of argument that has been advanced and has been determined by the Court of Appeals solely on the basis of the assignment to this particular District Court.

Felix Frankfurter:

That’s all they had before them.

Eugene Gressman:

That’s right, Your Honor.

Felix Frankfurter:

And I’m not questioning the naturalness of the propriety or the correctness for chance of dealing with the situation that had before them indeed I’m flouted.

But for purposes of argument, I just want to know would the problem be — you couldn’t — this argument couldn’t be made if which has just a statue has been assigned to a trial in the Southern District of New York.

Eugene Gressman:

Certainly, it could not be sought to be justified in terms of the District of Columbia Clause.

My suggestion or argument is, however, that there should be and must be no difference that the O’Donoghue case has definitively decided that there is no difference in this claim or this right as between district inhabitants and inhabitants of New York.

And therefore I say, we get back to the original proposition and it is as if — in effect as if these were made to another District Court in the United States.

Felix Frankfurter:

But so far as this case is concerned, file the case that you’re charged and we are charged, we may move simply within the narrow confines or what the Court of Appeals of the District decided.

I’m not saying with its conclusion but we may —

Eugene Gressman:

Yes, indeed —

Felix Frankfurter:

— may restrict the problem to its narrow confines.

Eugene Gressman:

Of course Your Honor, and there are some special problems with respect to the District of Columbia courts which do not exist with respect to the Federal District Courts and any other parts of the country.

But in this respect, with respect to the right to have your case heard and determined by an Article III court, the O’Donoghue case has definitively said that there is no difference and if there — if there are any distinctions to be made —

Felix Frankfurter:

And the O’Donoghue case itself concerned the District.

Eugene Gressman:

That’s exactly right and —

Felix Frankfurter:

And therefore —

Eugene Gressman:

— and I suggest and I have raised as one of the points and issue in this case, in the petition for certiorari that the assumption made by the Court of Appeals that this assignment might well had been invalid if made to a Federal District Court outside the district, but they said it would, it is perfectly permissible by virtue of the District of Columbia Clause.

I suggest that it is an issue and it raises serious —

Felix Frankfurter:

But why —

Eugene Gressman:

— constitutional questions as to the equality in the administration of federal justice if that assumption of the Court of Appeals be accepted.

And it’s those questions of equality of administration of the justice and equality in the rights of the inhabitants of the United States were question which the O’Donoghue case sought to put to rest and I suggest did put to rest completely and therefore, completely form an answer to the analysis, to the assumption and to the ruling of the Court of Appeals.

Felix Frankfurter:

It required the constitutional amendment to secure equality for the people in the District.

Eugene Gressman:

Well, the O’Donoghue case pointed out that when this Constitution was formulated, there was no District of Columbia.

It was a District of Columbia was formulated several years thereafter from the States of Maryland and dis — and Virginia.

And that the inhabitants, the original inhabitants of what is now the District where on an equal footing with the inhabitants of the rest of the United States and that this equal footing in effect has never been destroyed.

There was no indication in the forming in the District of Columbia that the inhabitants were meant thereby to be stripped of the rights which were given to them by virtue of the creation and adoption of the Constitution.

Felix Frankfurter:

But there was an anticipation of the Constitution or specific anticipation that a district would be created —

Eugene Gressman:

Well, that —

Felix Frankfurter:

— something called the capital.

Eugene Gressman:

That is true but there was un — uncertain where that would be.

But in any event, no —

Felix Frankfurter:

What I’m saying —

Eugene Gressman:

there is —

Felix Frankfurter:

— is that one would have to swallow a lot, swallow everything that was said in O’Donoghue.

Eugene Gressman:

Well, I would suggest Your Honor that in this respect, I have that the O’Donoghue case seems to me unanswerable in terms of its determination that with respect to this kind of a right or to have cases heard by Article III judges, there is no practical or let-alone constitutional reason for making such a discrimination against the inhabitants of the District of Columbia because you have an Article III court in the District of Columbia.

And why do you — same as you have in Article III courts in other Federal Districts around the country.

Felix Frankfurter:

You’re assuming the whole question in the implication that because you have an Article III court therefore you have to have one?

Eugene Gressman:

Well, I say that, I’m not saying that you have to — that is not the question here whether you have to have one in the District of Columbia.

The fact is that you do have one and the O’Donaghue case so ruled.

Felix Frankfurter:

But you do have one but you don’t have to have one for the District of Columbia.

If justice may be administered by judges who do not have life tenure and whose salary go to a gross aspect of the Administration of Justice and on salary but not immunized against diminution.

If you may have that and that has been constitutional practice, but I do not know how long in the beginning of time, then my question arises, why do we have to travel outside the purposes of this case —

Eugene Gressman:

Well —

Felix Frankfurter:

— to namely where the judge was assigned merely to the District.

In this case, why do we have to travel outside the bounds except by the Court of Appeals and practically of course, that’s all decided.

It takes — it doesn’t take care of contingencies.

If the Chief Justice confronted with an application for sua sponte there’s a need to judge in some district, we naturally would pause if we don’t — if this isn’t decided in sending a Court of Custom Appeal man to some other place than district, if that’s all what would be decided in this case.

If he had only the direction of the Court of Appeals just as a practical matter as you suppose you thought.

But I’m suggesting that as a matter of the adjudicatory requirements of this case, do we have to travel outside as Justice Harlan asked you a little while ago outside of the scope set by the Court of Appeals?

Eugene Gressman:

Certainly, one does not have to travel beyond the scope of the fact that this involves an assignment to the District of Columbia Court but I do not concede that there’s any lack of a constitutional requirement that a case here in the District of Columbia for this District of Columbia Court be heard other than by a non-Article III judge.

Felix Frankfurter:

And as a matter — I also appreciate why you want them invoked, why you press due process, I understand that.

Eugene Gressman:

Well, I’m only saying Your Honor that under the — as I read the provisions of Article III of the Constitution, as I read the cases in this Court, going back particularly to Evans against Gore and to as interpreted and applied in the O’Donoghue case, simply is that this is a universal right accorded to inhabitants of the District of Columbia as well as inhabitants of other parts of the country.

Eugene Gressman:

Now, true enough?

Felix Frankfurter:

Well how can you say that when both — I don’t know how many, almost from the beginning of time, trials from the District of Columbia were not have before Article III judges.

Meaning by that, judges who had life tenure with a non-diminishable salary, how can you say that and the constitutional practice or the practice has been ever since the creation of this District?

Eugene Gressman:

We are confronted seems to me with the — with the ruling of this Court in the O’Donoghue case that this District Court and the Court of Appeals are constitutional Article III courts.

Now, what was the situation before that is somewhat confused but at least since the O’Donoghue case, there has been no question.

But that this Court, the District of Columbia is basically and primarily an Article III court and its judges are entitled and do have the constitutional protections afforded by Article III.

Felix Frankfurter:

If there are Article III courts, then what’s the vice?

Eugene Gressman:

Pardon?

Felix Frankfurter:

If they are Article III courts then what’s the trouble?

Eugene Gressman:

The trouble is Your Honor, that Judge Jackson was not constitutionally equipped or authorized to exercise the Article III functions of that District Court which is precisely the heart of the constitutional issue which I —

Felix Frankfurter:

You mean because at the time he was appointed, he wasn’t such?

Eugene Gressman:

Well, I would like to develop the argument in some length in answer to that question because I don’t think there’s a simple short answer that can be given to it.

It really involves the whole essence of the constitutional claim and the constitutional issue which is at stake here.

And all of these point, I merely suggested that the District of Columbia Clause and the fact that this is essentially as you point out, the District of Columbia problem, does not provide the complete or the — any part of the answer to the ultimate constitutional issue which must be faced here.

Felix Frankfurter:

Is this Court in your view today that February 21st, 1962, is that court today an Article III court?

Eugene Gressman:

The District Court?

Felix Frankfurter:

No, the Court of Customs Appeal?

Eugene Gressman:

No, it is not, Your Honor.

Felix Frankfurter:

It is not.

Well, I thought you said the Court of — O’Donoghue case said it was?

Eugene Gressman:

No, the O’Donoghue case said that the District Court of the — Federal District Court and the Court of Appeals of the District of Columbia are constitutional courts.

Felix Frankfurter:

Haven’t you got trouble with that if it’s a constitutional court, how can it exercise non-constitutional functions?

Eugene Gressman:

Well, the —

Felix Frankfurter:

And if it can, it can only because of the District of Columbia article?

Eugene Gressman:

That’s right Your Honor.

Felix Frankfurter:

Both of them admix in the district where you cannot admix anywhere else in the country.

Eugene Gressman:

That is perfectly right Your Honor.

Felix Frankfurter:

So that the —

Eugene Gressman:

That’s what the O’Donoghue case said.

Felix Frankfurter:

— District of Columbia Clause has functions that must be faced.

Eugene Gressman:

But they’re not functions which are called into play in this case.

There has been no suggestion made by the Government in this case.

There was no suggestion made in the O’Donoghue case that the non-Article III functions of this District Court which are conferrable upon it by virtue of the District of Columbia Clause ever involved criminal proceedings.

Felix Frankfurter:

Don’t you think O’Donoghue and Williams both require critical analysis if they’re constitutional courts, how can they be given non-constitutional fact functions and if they can be given non-constitutional functions then you got something that’s very different from the district courts of the United States elsewhere?

Eugene Gressman:

That is correct Your Honor, the way the Williams and O’Donoghue cases were decided.

But I suggest again Your Honor that the basic ruling in O’Donoghue was that while certain nonjudicial functions could be given the District Court by virtue of the District of Columbia Clause, those were certainly nonjudicial actions such as the right to appoint a school board, the right to give certain advisory opinions, the right to perform certain administrative matters to render probate and divorce proceedings.

But nowhere was there ever any suggestion and it is significant the Solicitor General does not suggest in his brief that one of those nonjudicial functions is the trial at the criminal proceeding such as we have in this case.

If ever there was a proceeding which invoked and call forth and necessitated the exercise of Article III functions of this District Court, it was this trial of this petitioner for the — a felony under the District of Columbia Code.

And I suggest that it is impossible from any standpoint to say that this trial of this petitioner involved anything other than the exercise of this Court’s Article III judicial functions as defined in the Constitution.

The criminal power is the very essence of judicial power.

Felix Frankfurter:

Does anybody sug — why should anybody suggest that the trial over which Justice Jackson presided for as unlike or in anyway unlike in the sub — subject matter and in the procedure was unlike the trial in the Southern District of New York or the District of Massachusetts?

Eugene Gressman:

Well, —

Felix Frankfurter:

That isn’t in controversy, is it?

Eugene Gressman:

Well, the amicus judges in this case have suggested that kind of a distinction by virtue of the argument that this type of jurisdiction arise in over criminal crimes specified in District Columbia Code could have been given to the municipal court which is a legislative court.

Felix Frankfurter:

But if —

Eugene Gressman:

But it — it did not and I don’t think the argument is sound.

Felix Frankfurter:

But if — if that argument has any validity then this Court has no jurisdiction.

Eugene Gressman:

If this were a legislative proceeding —

Felix Frankfurter:

If this were non-Article III judicial case in the District Court then we must dismiss this case —

Eugene Gressman:

I would think so.

Felix Frankfurter:

— because we can’t review a nonjudicial action by anybody.

Eugene Gressman:

I would think that’s exactly right Your Honor and many of the cases —

Felix Frankfurter:

Better examine the starting point of all these business.

Eugene Gressman:

Well, that brings us then again to the very heart of the constitutional issue in this case.

And I start with the assumptions and the decisions rendered by this Court.

With respect to the two tribunals which are in issue here and which must be compared, the Bakelite and the Williams cases decided that the Court of Customs and Patent Appeals was a legislative or Article I tribunal deriving no function or jurisdiction in its creation from Article III of the Constitution.

And on the other hand, we have the O’Donoghue case saying that while the District Court for the District of Columbia may be given certain non-Article III functions which are not in issue here.

It is primarily an Article III court created thereunder and endowed with all the powers and functions which are given to a — to a court by Article III and its judges are endowed with the judicial independence which the first section of Article III gives to judges of Article III courts.

So therefore, we have posed very clearly, the basic question whether the judge of this legislative court as so described in the Bakelite and Williams cases can be assigned over to a constitutional court such as the district court below to pursue as to perform the Article III functions necessitated by the trial of a criminal case therein.

Now, I suggest Your Honors that this necessitates in the first place an understanding of what is meant by the judicial power of the United States as expressed in Article III and it called forth to be exercised in this proceeding in the District Court.

Eugene Gressman:

And I suggest Your Honors that what Article III judicial power basically means is this.

That it is that function, that judicial function which cannot in anyway be delegated to or exercised by any other arm of the Government.

We get back here basically to a question of separation of powers.

There is a certain core of judicial action and jurisdiction which is conferred upon the Article III tribunals and this District Court in particular which cannot be exercised by any other organ of the Government, be it administrative, be it legislative or executive.

Now, this seems to me to call forth the whole host of considerations that we normally associate with the courts of law and equity.

The — what Justice Frankfurter has described in several occasions as jurisdiction over matters such as where the traditional concern of the courts at Westminster prior to the establishment of the Constitution.

This calls forth the exercise of that judicial power over cases and controversies which involved the use of the federal rules or civil and criminal procedure which incorporate all the provisions of the jury trial system and which involved all the other traditional powers of equity and law, the substantive and procedural elements of Title 28 and Title 18 of the U.S. Code.

Those functions which by the very nature are so judicial in nature that they cannot be given by Congress to any other agency of the Government, and unless a court has that non-delegable power, the judicial power, which it alone can exercise, then it is not a court created under or exercising Article III judicial power.

And I suggest that the most outstanding example of that non-delegable power which is not susceptible of exercise by any other organ of the Government is this criminal proceeding instituted against this petitioner.

It is inconceivable that this petitioner could have been tried and convicted by an administrative agency, by an Executive Department or by Congress itself.

This was something that was not susceptible of judicial determination other than by an Article III tribunal with all the traditional inherent powers that it alone can exercise.

And this District Court has that power obviously and it did exercise it in this case, and it therefore necessitated that it have a judge qualified constitutionally to administer this Article III judicial power.

Now, I want to hasten to add an important qualification on this or an additional power which the District Court has here which I think has led to the confusion in this case, that Article III courts also have power.

In addition to this core of non-delegable judicial power, they also have power to render judgments over cases and controversies which are equally determinable by other agencies of the Government.

Now, the Government’s brief has emphasized and the all parties have emphasized very significant statement made over a hundred years ago in Murray’s Lessee against Hoboken Land Company where Mr. Justice Curtis stated a very obvious and important consideration about the jurisdiction arising other than from Article III.

And I quote, he said, “That there are matters involving public rights which may be presented in such form that the judicial power is capable of acting on them.”

That means Article III judicial powers are capable of acting on them.

But which are also susceptible of judicial determination but which Congress may or may not bring within the cognizance of the courts of the United States as it deems proper.

Now, this means and I suggest this comes from the very heart of this case.

This means that there are functions under Article I of the Constitution given to Congress and in the execution of those powers are called forth certain judicial determinations.

And in the — said determining, how those determinations shall be made?

Congress has a choice.

It may withhold to itself the power to make those determinations as it has done in historically, involving claims against the United States, the power to pay the debts of the United States.

It may withhold it to itself through private legislation or it may give it to an Executive Department to determine or an administrative agency or it may give it to a specialized tribunal such as the Court of Claims or it may also give it to an Article III court.

Felix Frankfurter:

Mr. Gressman, you know best how to make use of your time.

It does occur to me that the line you’re now taking doesn’t call for any use of time namely, that the — the process for determining guilt or innocence under a charge of crime of a federal statute is something that must be — must be performed, must be exercised by a court.

It couldn’t be transferred to the Secretary of Commerce or there — from health and welfare.

I don’t see —

Eugene Gressman:

Well —

Felix Frankfurter:

I can’t imagine that there’s any contest on this question.

Eugene Gressman:

There is a contest.

Felix Frankfurter:

And the problem is, the problem is whether this was a tribunal of law in view of the strange hybrid that the District Court — the courts present that are involved here but nobody questions at least I should be shocked intellectually somebody did question, that you can deposit the task of determining whether a man is guilty on the penal statute to a tribunal other than a conventional court.

Eugene Gressman:

Your Honor —

Felix Frankfurter:

If I’m wrong about that, I should be delighted to be informed?

Eugene Gressman:

Well Your Honor, the contest does get all not quite to the extent which you just stated it, but it does get to this point and I think it is relevant to this extent.

The argument is made by the Government that the Court of Customs and Patent Appeals also is an Article III tribunal and as the Bakelite and Williams case said to the contrary, they should be overruled.

Felix Frankfurter:

But I understand that argument.

Eugene Gressman:

And that therefore, Judge Jackson having been a judge of the Court of Customs and Patent Appeals during, some — and — and being appointed to that court, acquired thereby article — the same kind of Article III judicial power which as Your Honor points out is being administered in the District Court in this criminal proceeding.

Felix Frankfurter:

But if I may say so that’s a very different thing than to — than to argue that against which you’re knocking an open door namely, that what it is in issue here is a nonjusticiable matter and therefore needn’t to be tried by a requisite court.

Eugene Gressman:

No, Your Honor what I — all I’m trying to point out here Your Honor is the nature and the essential correctness of this Court’s determination in Bakelite and Williams that this was an Article I or a non-Article III tribunal which never acquired any function.

Felix Frankfurter:

I can understand that argument.

I’m fully aware of it.

Eugene Gressman:

And — (Voice Overlap) — what I’m saying is this that the very elaborate and impressive survey, an investigation contained in the Government’s brief demonstrates conclusively it seems to me the correctness of this Court’s determination in Bakelite and Williams.

And that determination is grounded upon precisely the argument I am trying to present here right now and that is this, that a court to be created under Article III as this District Court was created, must have necessity be created to exercise jurisdiction over these non-delegable, judicial matters, cases and controversies, matters which cannot as this criminal case could not be exercised by any other organ of Government.

Now, on the other hand, I’m saying that the Court of Customs and Patent Appeals as demonstrated conclusively by the investigation and the Government’s brief and as confirmed, it seems to me, by the Bakelite and Williams cases, the Court of Customs and Patent Appeals never had that kind of non-delegable judicial power.

All they have ever had to this very day is this Article I judicial power.

This judicial power which is delegable as Congress sees fit either to an Executive Department as they once did in — in the Customs and Patent matters or to an administrative agency or to a specialized court or to an Article III court in some situations or Congress itself could do it.

Felix Frankfurter:

But if once Congress exercised the choice which anteceded Hoboken Land case, way back Wayman against Southard that was made clear.

If Congress takes one of these things at either it could legislated on directly or put into the executive branch or make it a subject matter of judicial action.

If once it does the latter and creates a tribunal, it made clear that you indicated a minute ago, it made clear the specialized court which has nothing to do with the trial of criminal cases.

But if the tribunal is a tribunal under Article III, take the old Commerce Court, which I have restricted jurisdiction entirely with reference to this day commerce matters, I don’t suppose there was a particle of doubt that every member or any member of that court could have been assigned by the Chief Justice, assuming authority was given by Congress, it could have been assigned by the Chief Justice to try an ordinary criminal case in Chicago or Denver.

Eugene Gressman:

Well Your Honor, let — let me — let me make this comment on that.

I agree that 95% with what you just said but what the specialized federal tribunal of which you were just speaking lacks in its creation and in the jurisdiction conferred upon it such as the Court of Customs and Patent Appeals which we have here involved is a — one I ordered of the judicial power which is non-exercisable by any other organ of Government.

Everything that this Court of Customs and Patent Appeals has ever done, is in the — as a matter of congressional discretion, exercisable by some other organ of Government.

Felix Frankfurter:

I don’t disagree with you.

I’m merely suggesting —

Eugene Gressman:

Now —

Felix Frankfurter:

— that what you’re arguing and thinking your time on or rather I’m taking your time on is to me, the remotest of all questions in this case —

Eugene Gressman:

Well, Your Honor —

Felix Frankfurter:

— (Voice Overlap) — to that, in light of the discussion.

Eugene Gressman:

This is the very — it seems to me, the very heart of the Government’s —

Felix Frankfurter:

I don’t have hold Bakelite to decide this case.

Eugene Gressman:

The very heart of the Government’s contention is that the Bakelite case was wrong and that this Court has always had.

This Court of Customs and Patent Appeals has always had Article III judicial power and all —

Felix Frankfurter:

Was the Government’s case rest on overruling Bakelite?

Eugene Gressman:

As this case?

Felix Frankfurter:

Yes.

As — I’m looking at its brief.

Eugene Gressman:

Well, the Government’s —

Felix Frankfurter:

The Government case, if you tell me that the Government case depends on overruling Bakelite then I apologize to you for having me listen and take me your time.

Eugene Gressman:

That’s their ultimate position Your Honor.

They asked that to be re-examined.

They asked that its premises be re-examined and that it be directly and completely overruled.

And what I’m suggesting Your Honor is that their — the supporting evidence which they cite for that proposition, for that ultimate position is — does not justify an overruling of Bakelite that the Bakelite case decision was completely accurate then as well as now and that this Court of Customs and Patent Appeals has never exercised any part of the judicial power expressed in Article III of the Constitution.

Now, Your Honor mentioned the Commerce Court, created in I believe 1909 or so.

And that very definitely was a constitutional court Your Honor but for a very special reason, and I think it’s — it’s a good example of what is the difference between —

Felix Frankfurter:

Special reasons were simple that life tenure was gift that they — it was a tribunal which could do the kind of — which could adjudicate matters that were normally matters of court, could adjudicate, the judges will give them life tenure.

That was the special reason.

Eugene Gressman:

Wasn’t more than that Your Honor.

The courts and the statute reads as follows, that this Commerce Court shall be composed of five judges to be designated and assigned thereto by the Chief Justice from among the Circuit Judges of the United States.

That’s the first clause of the enact — enabling legislation.

Felix Frankfurter:

–(Voice Overlap) — but — but it couldn’t have been so because one them never sat on the Circuit Court.

Eugene Gressman:

Well —

Felix Frankfurter:

That’s Judge Julian Mack.

Eugene Gressman:

That’s right.

Felix Frankfurter:

(Voice Overlap) —

Eugene Gressman:

Then in the first instance, the Court shall be composed of five additional Circuit Judges to serve for one, two, three, four and five-year terms respectively.

Thereafter, they could not be reappointed to the Commerce Court, but other Circuit Judges from around the country were deemed to be brought in.

And the original five Judges including Judge Mack were to then to be assigned around by the Chief Justice to other Circuit and District Courts and around the country.

And they went ahead and did more than that.

Eugene Gressman:

They expressly gave in that legislation the power on these original five judges including Judge Mack, all the powers possessed by the District Judges of the United States.

Felix Frankfurter:

Suppose they haven’t given them life tenure?

Eugene Gressman:

Well, I think you’d have enough an up for — another reason, you might not have — they would not be Article III Courts for that — Article III judges.

Felix Frankfurter:

Well, that’s the decisive thing, isn’t it?

Eugene Gressman:

That’s one of the decisive things.

It’s also a decisive what kind of jurisdiction, what kind of powers they’re invested with.

Felix Frankfurter:

Well, I’m assuming that they’ve satisfied your requirement drawn from Hoboken Land case, that the kind of business that they have to deal with is court business.

If it isn’t that, then we haven’t got a problem.

Eugene Gressman:

Well, they too were dealing only with the Administration of the Interstate Commerce Act.

Felix Frankfurter:

I know, but the issues under that Act had to be cast in form of a nature that courts deal with.

Eugene Gressman:

True enough, but I do not view the — those matters as of the inherent non-jud — or the inherent judicial nature which could not have been — if Congress had so conceived, exercisable by some tribunal whose judges were not given life tenure —

Felix Frankfurter:

That’s right.

Eugene Gressman:

— or by the administrative or executive agency.

And therefore, the reason why that was a commerce — that Commerce Court was a constitutional court was in effect because these functions were super imposed upon the federal judiciary and these judges were — these new Circuit Judges were given not only the function of the power to deal with the interstate commerce matters come in before the Commerce Court.

They were also expressly given this function and the duty of performing all the other functions, including the Article III functions of the other Circuit and District Courts to which they were to be assigned.

Now, that has never of course been done with respect to the judges of the Court of Customs and Patent Appeals or with respect to the judges of the Court of Claims.

And I suggest that we get back to the basic proposition that the vital distinction between the specialized federal courts such as the Court of Customs and Patent Appeals and the Article III tribunal is the possession by the Article III courts of this exclusively judicial power which cannot be exercised by any tribunal.

Felix Frankfurter:

Well, that isn’t true because under the Tucker Act, every Federal District Court of the United States can pass on claims up to $10,000, which Congress tomorrow could withdraw from every court and vest in the Secretary of Commerce or the Secretary of the Treasury.

Eugene Gressman:

That is precisely true, Your Honor.

What I am saying is that in addition to this exclusively judicial function of the Article III courts, they also have this function of deciding cases and controversies stemming from Article I of the Constitution which Congress may delegate either to Article III courts to its specialized tribunals, to administrative agencies or to itself.

Now that, it seems to me, has what is created in the confusion in the Government’s mind in this case that because the Court of Customs and Patent Appeals has that kind of jurisdiction, which on occasion has been or could be exercised by Article III courts as well.

Therefore, the Court of Customs and Patent Appeals has all the attributes of an Article III court.

And I suggest again that what this Court of Customs and Patent Appeals lacks and what is critical to its lack of Article III status is the absence of this basic judicial power which cannot be delegated to anything but an Article III court.

And I suggest that the criminal jurisdiction and perhaps the diversity jurisdiction of the kinds of things mentioned in Article III and there are probably others.

We don’t have to examine into them all that cannot be given by Congress to any other agency.

And we get back here to — as I said before —

Felix Frankfurter:

I must say I don’t — I don’t — it must be my fault.

I go back to the — to the Commerce Court.

Now, while the judges for usable and actually did sit in all sorts of cases throughout the country as a court, that court had no jurisdiction in diversity cases or as a court, it had no jurisdiction except to review orders of the interstate commerce.

Eugene Gressman:

Exactly the same type as the Emergency Court of Appeals.

Felix Frankfurter:

Yes.

Eugene Gressman:

Those were — that was a court — a so-called court superimposed upon the federal judiciary on judges who were qualified under Article III to exercise a particular Article I function.

But in this —

Felix Frankfurter:

But all I’m suggesting is — I’m suggesting two things Mr. Gressman.

(1) That Congress of the power to establish specialized court composed of judges who are Article III judges.

(2) That in the District, Congress has created courts that have both judicial functions and nonjudicial functions.

They can be vested with judicial duties and nonjudicial duties.

And although, you have an admsixture of judicial and nonjudicial duties, it is for purposes of those matters that are confinable to courts, an Article III Court from which this Court or which this Court may review on appeal.

Although it — such power couldn’t be vested to courts of the United States outside of the district.

And therefore, when you deal with — with specialized tribunal, you’ve got a problem different from the problem of the District Courts throughout the country which are vested in them all the jurisdiction that Congress sees fit to vest in federal courts.

They couldn’t be charged with, one of the first things that happened.

They couldn’t be charged with duties that are not judicial duties.

This Court wouldn’t review judgments or determinations, advisory opinion as you called them, from them nor would it from the District where they couldn’t decline to review good judicial matters from the District although that tribunal is also vested with nonjudicial function.

So we’ve got a — we’ve got an admixture of situations in the District —

Eugene Gressman:

Well —

Felix Frankfurter:

And — and also specialized court that do not eventually suggest permit of this nice checkerboard determination.

Eugene Gressman:

Precisely, I agree with everything Your Honor has said, but I would suggest this additional comment about that.

That the admixture of jurisdiction which the District of Columbia Court has which is unlike that of any other Federal District Court is not involved in this case.

Whatever nonjudicial functions were — may constitutionally be given to that Court were not called into play in this case.

And the fact moreover that that Court does have certain administrative or nonjudicial functions, does not justify the assignment thereto of a judge from a nonjudicial tribunal or a non-Article III tribunal in order to exercise the District Court’s admitted Article III power.

Now by of definition as you — as I think Your Honor has agreed, this criminal proceeding was certainly an Article III function of this Court and in order to perform that particular function to render a judgment against this petitioner required a judge I suggest, that was qualified under the Constitution to perform that Article III function.

And I don’t think the fact that this District Court has certain nonjudicial functions can serve as a crutch to permit the assignment or the performance of this Article III function of a judge who by his service on the Court of Customs and Patent Appeals never required Article III functions.

Felix Frankfurter:

But you have to encounter, I suppose you will if I stop asking my questions, the fact that this Court with this tribunal is now a full-pledge Court.

Eugene Gressman:

Well —

Felix Frankfurter:

And that he continues to be a member of that tribunal.I know when this happened.

Eugene Gressman:

You mean of the —

Felix Frankfurter:

When he was appointed, it added — it preceded the creation that the transformation of that Court is to a regular court.

Eugene Gressman:

Well now, Your — Your Honor has referred to the —

Felix Frankfurter:

That’s what I’m saying, you’re discussing things which seem to me way, way over (Voice Overlap).

Eugene Gressman:

Well, it seems to me that the answer to this so-called transformation of 1958 lies precisely in the analysis which I have been presenting Your Honor.

Eugene Gressman:

And that is that if I am correct in my reading of the Constitution and the cases decided thereunder with respect to these courts.

If it is true that the Court of Customs and Patent Appeals never had any heart of this non-delegable judicial function, if it only had the Article I powers of judicial to determine certain judicial matters which are exercaba — exercisable by any agency of the Government, the Congress sees fit.

Then I suggest that without create and changing the jurisdiction or the nature of the Court of Customs and Patent Appeals, the 1958 declaration of Congress goes for naught because simply by saying that this is an Article III court when in fact there is no attempt to give that Court any of this inherent basic judicial function which is not exercisable by any other organ of Government, such a declaration cannot stand.

Felix Frankfurter:

Would you mind taking a minute to state what kind of cases come before this tribunal of the Court of Customs Appeal.

Eugene Gressman:

Well as I understand it, there — there are two basic kinds, the Customs matters and the Patent and Trademark Appeals from the denial of a patent or a trademark by the Commissioner of Patents.

Felix Frankfurter:

And that could not be vested in the District Court?

That could not be vested in the District Court?

Eugene Gressman:

Certainly, it could Your Honor and in fact, you have an alternative.

Felix Frankfurter:

And the subject matter is of a judicial nature.

Eugene Gressman:

This is the — what I verb — well, I have a better phrase what called the seductive cliché into which the Government has fallen, it seems to me, because what I have been trying to — to — to demonstrate in this argument is, that there are two kinds of powers, judicial powers exercisable by Article III courts.

One is the exclusively judicial function, and the second is this alter the na — the Article I judicial function which is coordinate in many instances with specialized federal tribunals or even agencies of the Government.

The Government’s brief points out correctly that there are certain cases under the Clayton Act that can be brought either in a Federal District Court, any part of the country or in the Federal Trade Commission.

Now, I suggest that — it’s going too far to suggest that therefore, the Federal Trade Commission is an Article III court because it is exercising the same kind of jurisdiction as the District Court in that case.

Felix Frankfurter:

No, but if a tribunal which has this ambivalent which has — which is given a party over this ambivalent situation which may be cast in — in adjudicatory problem if it is given to a tribunal and that — and Congress gives that tribunal to life tenure, life tenure.

And it’s located at — no, let’s stop there.

I do not see — I do not see why then it doesn’t satisfy your analysis namely —

Eugene Gressman:

No.

Felix Frankfurter:

Namely — the subject matter may be — take the La Abra case, a Mexican claim against the Government or claim by the United States citizens.

Congress may pass a statute and says John Jones is entitled a $3,000,000 from the fund which makes it go and turn over to the United States.

Congress might say, the Secretary of Treasury should determine the bona fides of the claim or three, do what it did do and say, this is a controversy to be settled in an “honest-to-god” court.

Now, in Congress puts matters of that character, which it could distribute — which it could either repay or give to an executive authority, gives it to a court, subject of case of controversy requirements and then give that tribunal life tenure.

I do not see what is lacking in making it a court within the requirements of Article III.

Eugene Gressman:

Because Your Honor and that is precisely the point I’ve been trying to make.

That the answer to that is that they have not given them — they cannot — in establishing an Article III Court, you cannot give to it solely this ambivalent jurisdiction.

You’ve got —

Felix Frankfurter:

In other words, Congress — you say that the proposal which has been made throughout my — my professional life will have a separate Court of Patent Appeal, a Patent Court to withdraw the jurisdiction in all patent cases from the District Courts throughout the country and vested exclusively in a Court of Patent jurisdiction with no other judicial function and given life tenure, that wouldn’t be an Article III court.

Is that what you’re saying?

Eugene Gressman:

Precisely Your Honor because that’s exactly (Voice Overlap) —

Felix Frankfurter:

Oh I understand you but I’m sure I rejected it.

Eugene Gressman:

— what the — the Hoboken Land Company case says.

Eugene Gressman:

And what — what this Court said — for example, what this Court said in the United States against Sherwood in 312 U.S. and then on unanimous opinion by Judge Stone, Justice — Mr. Justice Stone saying that when the Court of Claims has identical jurisdiction with the District Court under the Tucker Act, they expressly pointed out that despite that concurrence of jurisdiction and I quote from it, “The Court of Claims remains a legislative, not a constitutional court.”

Felix Frankfurter:

That’s because the statutes gave it additional power.

Because under the statute, Congress can ask an opinion of the Court of Claims, but nothing that you quote from Justice Stone there mean that if Congress shows to restrict the Court of Claims entirely to judicial business, it couldn’t make of it a constitutional court.

Eugene Gressman:

I say Your Honor that unless Congress gives to the judicial tribunal, that judicial power which cannot be delegated by Congress to any other agency or the Government, then you do not create an Article III court, and you violate the very basic concept of separation of powers upon which this whole doctrine rests.

Felix Frankfurter:

And you’re saying if tomorrow, Congress chose to vest the power which now District Courts have, requiring to be constituted as a three-judge tribunal to review orders of the interstate commerce provision.

If Commerce chose to have one centralized court or say four, whatever the great the divisions, the traffic divisions of a country are at present, you say, that would not be an exercise upon the Article III if it didn’t also say those judges should also have all other powers and be available for all other duties of a judicial —

Eugene Gressman:

It seems to me that’s precisely what Bakelite and Williams, O’Donoghue —

Felix Frankfurter:

Well, I know, but we’re here reconsidering all the talk in these cases.

Those cases arose out of special circumstances, and one cannot understand the Bakelite case unless you consider that that case arose in connection with the very troublesome question at that time to what extent Congress can create nonjudicial tribunals for the enforcement of the Volstead Act.

I was about to say that the man in the wood pie.

Eugene Gressman:

Well, Your Honor I only — I can only suggest that it is my — in my reading of the Constitution and in reading of these cases that gives rise to this consistent thread, this demarcation which explains what the Court did basically in Bakelite and Williams and which is consistent with the constitutional interpretation which I suggest is proper.

And —

William O. Douglas:

And of course you might add that it was a unanimous decision of the Court —

Eugene Gressman:

That is right.

William O. Douglas:

— imposed of Holmes —

Eugene Gressman:

And —

William O. Douglas:

— Brandeis and others who partner with first year law students.

Eugene Gressman:

You might add that we never this — particular, the tribunals are now constituted never reconsiders prior decision.

Hugo L. Black:

Some of us are very lucky.

Eugene Gressman:

Well —

Hugo L. Black:

May I ask you one question?

I’ve been waiting to see if I could ask you.

Suppose the Congress would declare tomorrow Interstate Commerce Commission is a court in Article III court that they do try some cases that are essentially legal, reparations cases, could those judges be assigned to District Court?

Eugene Gressman:

I suggest not under the Constitution.

Hugo L. Black:

Why?

What’s the difference between that and this?

Eugene Gressman:

Because they too, like every other administrative agency and like every specialized tribunal as we’re talking about today, they do not have any of that essential judicial power which can — by definition cannot be exercised by any other organ of the Government.

Now, there are very — it seems, there are only a few examples of that type of Article III court.

Hugo L. Black:

Why couldn’t they be if Congress declared it such as they’ve declared it with reference to this (Voice Overlap) —

Eugene Gressman:

Because that it seems to me, you break down the whole distinction between the judicial and the legislative branch of Government.

Eugene Gressman:

If every organ of — of the legislature or of the executive which makes some kind of judicial determination in matters arising under the laws of the United States, is susceptible of being declared an Article III tribunal, subject to all the powers and the limitations and the protections that are accorded therewith, then it seems to me you have destroyed the very basic distinction between the Article III and Article I and the separation of powers contained therein.

Now, there has to be a practical accommodations, of course, in the execution of the powers of Congress and in the exercising those powers, Congress must be given the freedom to choose where it want certain types of judicial determinations made either in the executive or the legislative or in the judicial branches of the Government.

But there are certain things called into play of a judicial nature, which when so-called into play, such as a criminal sanction cannot be exercised at the discretion of Congress but any organ of Government other than a court created under the Constitution Article III and composed of judges who are constitutionally independent and constitutionally authorize to exercise that.

Hugo L. Black:

May I ask you this?

It seemed to me as if you have occasionally sort of shied away from putting emphasis on the fact that judges are appointed for life, to try certain kind of judicial controversy.

But you have duties where you observe the rules of court and that you have emphasized more in Article III court and in another kind of court which confuses me.

I must admit.

It seems to me that maybe your argument — I’m not absolutely sure.

These judges are appointed to the Court where they do not have life tenure, where they try a lot of cases that are not triable before a jury.

You do not observe due process of law including these safeguards and that you are arguing that this Judge is for different kind of court and doesn’t have life tenure.

What difference would it make if they’d given him a life tenure before he was appointed or afterwards, would that make a difference?

Eugene Gressman:

Well, he was given life tenure in this case by virtue of statute, enacted 1930 before his appointment, so he came on there certainly in statutory contemplation with life tenure.

Hugo L. Black:

Yes.

Eugene Gressman:

But my suggestion is that by virtue of the nature of this Court, he did not have constitutional life tenure and there is a difference.

Hugo L. Black:

That’s what I understood — that’s what I understood and that’s why I want to know what’s the difference between allowing this man to move from that Court into a District Court and try cases and controversies of the criminal nature and other natures that requires certain things like you, what’s the difference in letting him move from there, having the Congress to say that the Interstate Commerce Commission, so do you consider the Court and assign him to these other places?

Eugene Gressman:

Well, it seems to me that —

Hugo L. Black:

They might give — they might give them a statutory a life tenure also.

Eugene Gressman:

Well, it seems to me that permitting Congress to make that kind of a declaration and making it constitutionally effective thereby is to destroy the basic separation between the judicial and the legislative branches of the Government moreover.

It seems also clear to me that this critical non-delegable judicial function as expressed here particularly in a criminal proceeding is precisely where you need and must have this constitutional independence in your judges.

Hugo L. Black:

Well, get away from those non-delegable so what — what exactly they have on the man being tried?

Eugene Gressman:

Well, the man —

Hugo L. Black:

What kind of court does he get?

Eugene Gressman:

Under this — under that suggestion Your Honor, he could get anybody in the world who had been — ever been appointed to this particular agency because he would thereby and forever after in a retired status or otherwise have Article III status, and you could have appointed the District Court by assignment.

Everybody who has ever been a member of the Interstate Commerce Commission or the SEC or any other agency including the Court of Customs and Patent Appeals which Congress has ever designated by fiat as a court created under Article III of the Constitution.

Hugo L. Black:

Why are the functions of the Interstate Commerce Commission if they are any less or anymore judicial than those of this Court?

Eugene Gressman:

Well, they’re judicial in certain — in a certain sense that if they were framed in the nature of a case or controversy, they would be subject of course to — and are subject to — to inquiry and resolution.

Hugo L. Black:

What is a reparation suit?

Eugene Gressman:

Well, —

Hugo L. Black:

What does it settle?

Eugene Gressman:

It’s a — I suppose involves a suit or a claim by an individual or a corporation against the United States which —

Hugo L. Black:

Railroads.

Eugene Gressman:

Or railroad against United States which certainly —

Hugo L. Black:

Are they in the nature of judicial controversy?

Eugene Gressman:

They could be, but I don’t — I suggest they’re not Article III judicial — of this non-delegable nature because obviously, they are determined in many instances by the ICC in the first instance.

They’re also determined by — could be determined by other agencies or by Article III court.

But it seems to me also important to recognize that —

Hugo L. Black:

Well, I was asking that because I was wondering why that wouldn’t justify Congress, it justified in this case and declaring that it’s a court — full-pledged Court to the extent that they can be assigned to District Courts.

Eugene Gressman:

Precisely.

This was where the — where the argument runs and that to the extent the Congress wants to make such a declaration as it did 1958.

As to this Court, it could make a similar declaration as to every other administrative agency that ever determines matters which are in a judicial form of say a case or controversy, as most administrative agencies do deal with, and at least in the first instance.

And thereby, you have appointed or delegated or assigned to the District Court and then whom the President and the Senate never considered as through their qualifications to render a judgment in a — and — and — a trial in a criminal case or in any other type of this inherent non-delegable judicial functions performed in an Article III court.

And the whole system breaks down it seems to me.

Hugo L. Black:

Your argument seems to me that we have based, I’m not sure, on the idea that the Constitution provides certain things that must take place for judge acting — I won’t say an Article III court, but in a court that tries peoples’ crimes, adjudicates lawsuits of a nature that require safeguard to the Constitution.

If they must be appointed and hold office subject to life tenure, confirmation and so forth by the Senate or these required to be confirmed by the Senate, they are, are they not?

Eugene Gressman:

Yes.

Hugo L. Black:

Now, what else is left out?

Eugene Gressman:

The investiture of that Judge and the Court to which he was appointed with authority to exercise the basic Article III function, which only an Article III court can exercise and that includes primarily and all we have involved here is criminal trials.

Felix Frankfurter:

Let me put this to you before you sit down.

This will tell you my difficulty.

Let’s see if I can put it clearly.

The District — the District Courts of the District of Columbia have both conventional judicial functions and non-conventional — and nonjudicial functions.

For instance, the District Courts for the District of Columbia can fix rate of utilities which no U.S. Courts throughout the country can do not even — and this Court has no power.

It can do that, is that right?

Eugene Gressman:

Right.

Felix Frankfurter:

It also tries conventional criminal cases.

Now, the infusion of nonjudicial business into the powers of the District Court, do not prevent that tribunal from being an “honest-to-god” Article III court with reference to its judicial business.

Eugene Gressman:

That’s correct.

Felix Frankfurter:

Now, that empowerment, that investiture to use your good word of nonjudicial business in the District Court derived from one of the provisions of Article of Section 18 of Article I, “The power to deal with the District.”

Now, this Court has held for obvious reason that Article I has a lot of other provision giving Congress power, such as the power to regulate commerce.

What for the life for me, I cannot I understand is why, if the District Court of the District of Columbia is a judicial tribunal subject to review by this Court although there’s an infusion of this executive authority, why any other tribunal having judicial business such as reparation suits, but also being given some other authority on the Article I, Section 3, why as to those tribunals, the addition of those nonjudicial matters would take the whole things so that they wouldn’t be a court.

Eugene Gressman:

It wouldn’t be an Article III court, Your Honor.

There — there —

Felix Frankfurter:

We don’t have to have Article III courts because this Court had reviewed judgments of territorial courts which were under Article III courts.

Eugene Gressman:

Well, precisely Your Honor, I think Chief Justice Vinson in his opinion in the Tidewater case expressly pointed out that this Court obviously reviews in judgments, in cases from tribunals which are not Article III courts with federal — which are presented in such a form of a case or controversy which permits this Court to exercise review jurisdiction.

Now, this doesn’t mean that simply because a matter is formulated in the — in the posture of a case or controversy and arises under the laws of the United States that therefore necessarily, it is exercising our Article III judicial power.

Felix Frankfurter:

But this Court couldn’t possibly run or issue a writ and review a determination by the Secretary of State until he gets into a lower court or the Secretary of Commerce or anybody else, it has to come here from up court and cases which come here from the District Court, come from a tribunal which from your point of view is tainted because it also has advisory capacity.

Eugene Gressman:

Well, it’s not tainted.

It seems to me —

Felix Frankfurter:

Well, it isn’t a Court.

That’s all you have to say.

You say, the Court of Customs Appeal isn’t a Court and Congress couldn’t make it such and Congress couldn’t agree at the Patent Court of the kind I have indicated because it wouldn’t also be trying criminal cases.

Eugene Gressman:

It’s said because — it is an Article I court Your Honor, and not an Article III court.

And this Court has from time in memorial been exercising review jurisdiction from both Article I courts and Article III courts.

Felix Frankfurter:

But do you know what I think about that — that line of argument.

I’ve expressed myself in the Tidewater cases.

Eugene Gressman:

Yes, sir.

Felix Frankfurter:

I think it’s — if I may say so respectfully, angels dancing on a pin’s head.

Eugene Gressman:

I think my time is expired.

Earl Warren:

Mr. Gressman, in order that you may make your other points and conclude your argument in a comprehensive way, I’m going to give you ten — ten minutes more —

Eugene Gressman:

Thank you.

Earl Warren:

— although, your time is expired and if the Solicitor General needs, he may have it too.

Archibald Cox:

May it please the Court?

Earl Warren:

Mr. Solicitor General.

William O. Douglas:

Mr. Solicitor General, I don’t like to interfere with counsel and question him a great length during the course of the argument.

I have a question I would like to put to you.You can answer it in due course.

It relates somewhat to the question that Justice Black asked.

I once served on the Security Exchange Commission whether the — I was wondering during the course of the argument whether Congress could pass a law that would allow the assignment to the District Court for criminal trials or civil trials in the District of Columbia members of the Securities and Exchange Commission.

We have the — we used to handle some controversies over there, cases or controversies or the Federal Trade Commission or the Interstate Commerce Commission, with or without the Commissioners having — having life tenure.

Whether it comes down to this which seems to me to make irrelevant much of what has been discussed so far, namely as a person charged with a crime, entitle to a — not only to Article III procedures contained in the Constitution, but also to an Article III judge.

Archibald Cox:

Well, I would —

William O. Douglas:

Don’t — don’t, just —

Archibald Cox:

Well, I think it —

William O. Douglas:

— that’s the heart of the case (Voice Overlap) —

Archibald Cox:

— (Voice Overlap) — will focus — I think it perhaps ties in with what was going to be the beginning of my argument if I might give you a very short answer —

William O. Douglas:

In your own time.

Archibald Cox:

— for subject to explanation.

Let me say this that I think no question is presented necessarily in this case concerning how a man may be tried for a federal offense in the Southern District of New York or the District of Nevada that the question here is whether this Court was lawfully constituted to try the petitioner for the cri — local crime of burglary in the District of Columbia.

And there’s a world of history back at the courts of the District of Columbia.

So that I would also say that there is no constitutional right, for reasons I’ll try to explain, to be tried for a local offense in the District of Columbia before a judge with security of compensation and tenure in the constitutional sense.

Hugo L. Black:

Pardon me for adding this to his statement.

I hope you will not assume without giving your reasons later that that can be done in the District of Columbia without it spreading to the rest of the country and point out through distinctions.

Archibald Cox:

I will try to — that –that is the first proposition on which we rest our case.

I would like to emphasize at the beginning the importance in this case.

First, of avoiding, entangling it in broader constitutional issues than the case necessarily presents.

And second, of avoiding the difficulty which I found, I fell into very often and thinking about the case of dealing with abstractions, entangling niceties rather than what people do and what rights they may have.

Now, it seems that the only issue which has to be decided on the merits in this case is whether the Court which convicted the petitioner was, as I said a moment ago, legally constituted for the purpose of trying a local charge of robbery in the District of Columbia or to state that question conversely, it’s whether the trial for criminal violation of the District of Columbia Code before a court known as the District Court of the United States for the District of Columbia, but presided over by a judge from the Court of Customs and Patent Appeals violated any of the petitioner’s legal rights.

I state of course in that fashion for a reason I indicated a moment so that we are much more likely to reach the proof, I think, by avoiding these undefined terms like judicial power of the United States, Article III court, legislative court, constitutional court, all which I suspect to give and shifting meanings throughout of the argument and instead pursuing to direct lines of inquiry.

First, whether the authority of Judge Jackson to preside at the petitioner’s trial can be traced back to an origin in the Constitution; second, if it can, then the question arises whether the power was exercised in a manner which violates any statutory or constitutional rights of the petitioner.

And this does involve, I think, looking at what was done in concrete and specific instances.

Here, there’s no question about the validity of the assignment of Judge Jackson to sit in this Court, which was signed by the Chief Justice on December 7th, 1959.

The authority to make the assignment is derived from Section 293 of Title 28 of the United States — United States Code.

But I would emphasize that although that general power to assign a judge of the Court of Claims or Court of Customs and Patent Appeals to any Circuit or any District originated in 1958, there was a particular power to assign a judge of the Court of Customs and Patent Appeals to sit in the courts of the District of Columbia, either the Supreme Court is it then was known, now the District Court or the Court of Appeals for the District and if that statute was enacted in 1922.

It was enforced at the time Judge Jackson was appointed to what was life tenure by the statute and he must have been appointed by the President, gratified and confirmed by the Senate with a view to that possible assignment.

Indeed, as Judge Prettyman’s concurring opinion in the court below points out, this is an interchange which has taken place very frequently.

I should also add that burglary is of course a local crime defined in the District of Columbia Code which may be tried under the District of Columbia Code in the Court known as the District Court of the United States for the District of Columbia.

It seems to me therefore that the case stands exactly as if Congress had specifically provided for the charge of robbery in the District of Columbia, should be tried in a court with this title.

A court which should have normal judicial powers who function in the matter common to most courts, which should have the jurisdiction of the Federal District Courts scattered through the country, which also should have jurisdiction over local crimes committed in the District and of suits between citizens of the District meeting certain requirements and which should further exercise certain legislative, executive, and administrative functions.

And over which there should preside either a judge known as the District Judge or a judge known as a Judge of the United States Court of Customs and Patent Appeals.

In other words, it stands exactly as if the Congress had said in so many words that a local charge of burglary in the District of Columbia may be tried before a court presided over by a judge of the Court of Customs and Patent Appeals.

And the petitioner cannot possibly prevail in this case, I submit, unless he can show either that Congress would have had no constitutional power to enact such a statute or else that its enactment with the provisions here violated some specific limitation, giving him constitutional rights.

Archibald Cox:

Now, we find the authority to enact such a statute and therefore, this body of statute is having this effect in Article I, Section 8, Clause 17, giving the Congress power to exercise exclusive legislation in all cases whatsoever over such District as may become to seat of the Government.

And Congress has exercised that power creating courts in which the judges do not have life tenure, giving those courts duties which would not be regarded as proper to give to judges of an Article III court for — well over a hundred — indeed over 150 years.

The expressions of this Court summarized the point by saying that Congress exercises the combined powers of a general and of the State Government in all cases where legislation is possible in dealing with the District of Columbia.

And this power to function as the local sovereign certainly includes, we submit, the power to declare crimes and the power to create the Courts in which those crimes shall be tried.

John M. Harlan II:

If Congress undertook to say that local crimes will be tried before the Interstate Commerce Commission, would you defend it?

Archibald Cox:

That — no, no —

John M. Harlan II:

By what — what —

Archibald Cox:

I would say that —

John M. Harlan II:

What’s the difference (Voice Overlap) requirements envisage?

Archibald Cox:

I assume and concede indeed that in exercising this — by putting one sentence first and come in directly to your point.

I just want to point out that no one would challenge the right of a state to provide that burglary should be tried in such a court as that in which the petitioner was tried.

And it would seem to me that if Congress exercises the powers of the state in relation to the District of Columbia as has often been said then Congress must have, under Article I, the power to establish this kind of court.

Hugo L. Black:

And it could waive trial by jury.

Archibald Cox:

No.

I suggest not.

Let me — because this is the same as Mr. Justice Harlan’s question.

Congress is subject in exercising its Article I power over the District of Columbia to the limitations provided in the bill of rights just as it is subject to those limitations in exercising any other legislative power.

And it is therefore subject, we would grant, to the provision granting a right to trial by jury.

Equally, we would say that it was subject to the Due Process Clause.

And I would think Justice Harlan to deal with your point explicitly that an attempt to try a man for crime before an agency constituted as the Interstate Commerce Commission before the District of Columbia commissioners, not functioning in a judicial manner, would be a denial of due process of law.

In other words, I take it that due process includes a right as Justice Frankfurter suggested earlier to a judicial proceeding —

William O. Douglas:

Well, they can in panel a jury.

Archibald Cox:

They what?

William O. Douglas:

They can — they might use a jury.

Archibald Cox:

Well one of — of course one of the difficulty is that telling about, “Could you try this before the Interstate Commerce Commission?

It depends partly on what do you mean by the Interstate Commerce Commission?

What procedure do you envisage?”

If the procedure is near enough to what we think of as a judicial procedure in the states that — commonly exercised by Anglo-American courts then it would seem to me that the requirements of due process are met and any requirements that I think of in the bill of rights are met provided that the — there is a jury and of course if It’s been in no violation of other provisions of the Fourth or Fifth Amendments, unlawful search and seizure and things like that.

Felix Frankfurter:

I suppose Congress could establish courts restricted entirely to nonjury cases, just have a separate equity court, couldn’t it?

William O. Douglas:

Well, yes.

Earl Warren:

We’ll recess now.