Article III Lets Congress Shape the Federal Courts, and It Rarely Does

Here is a paradox worth a cup of coffee. The branch of government that complains most loudly about judges is the one that built every federal court below the Supreme Court, decides how many judges sit on them, sets what cases they may hear, and pays their light bill. Congress grumbles about the judiciary the way a homeowner grumbles about the house he designed, built, and refuses to repair.

The Constitution does not make the federal courts a self-governing guild. It creates one Supreme Court and then hands most of the remaining architecture to Congress. That was a deliberate choice in 1787, and it is one of the least used and least understood powers the people's representatives hold. Let's read the text, walk the history, and then take stock of what Congress could do if it remembered its own job.

The text: one Court, and everything else left open

Article III, Section 1 is two sentences long. Read them slowly.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Notice what is fixed and what is not. Fixed: there shall be "one supreme Court." Fixed: judges hold office "during good Behaviour." Fixed: their pay cannot be cut while they serve. Not fixed: whether there are any lower federal courts at all, how many, where, and with how many judges. Those are left to "such inferior Courts as the Congress may from time to time ordain and establish." The phrase "from time to time" is an invitation to revise.

Article I says the same thing from Congress's side. Among the enumerated powers in Section 8 is the power "To constitute Tribunals inferior to the supreme Court." The Constitution does not even say how many justices sit on the Supreme Court. That number is set by statute, and it has changed.

Then comes Article III, Section 2, Clause 2, the provision that matters most for this post:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

That last phrase is the Exceptions Clause. The Supreme Court's appellate jurisdiction, which is nearly all of what it does, exists "with such Exceptions, and under such Regulations as the Congress shall make."

Why the Framers protected tenure and pay

Before we talk about what Congress may do, we should understand what it may not do, because the two limits on Congress were written with a king in mind.

The Declaration of Independence charged George III with this: "He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries." The colonists knew the English settlement. After the Act of Settlement of 1701, English judges held office during good behavior rather than at the Crown's pleasure. The colonial judges did not always get that protection. When a judge's job and paycheck depend on the king, the judge works for the king.

So the Framers locked down the two things a political master would use to bend a judge. Hamilton put it bluntly in Federalist 79: "a power over a man's subsistence amounts to a power over his will." In Federalist 78 he called good-behavior tenure "one of the most valuable of the modern improvements in the practice of government." We read that paper line by line in Neither Force Nor Will, Hamilton's Federalist 78 Read Line by Line.

The design, then, is a two-part bargain. The individual judge is protected: no firing except by impeachment, no pay cut, no political leash. The institution of the lower courts and the scope of appellate review are left to the elected legislature. Independence for the judge; accountability for the structure. That bargain is the key to everything that follows.

1789: Congress builds a judiciary from scratch

The First Congress did not wait. The Judiciary Act of 1789, signed by President Washington on September 24, 1789, built the federal court system almost from nothing.

It set the Supreme Court at six justices: a Chief Justice and five associates. It created thirteen district courts, generally one per state. It created three circuit courts, but gave them no judges of their own; instead, two Supreme Court justices and a district judge sat together, which meant the justices had to "ride circuit," traveling by horse and stage over poor roads to hold court. They hated it, and said so for a century.

The Act also made choices about jurisdiction that tell us how the First Congress read Article III. It did not give the lower federal courts the full range of cases the Constitution would have permitted. There was no general federal-question jurisdiction for the lower courts, which Congress did not grant in lasting form until 1875. Section 25 gave the Supreme Court power to review certain state-court decisions that rejected a federal claim, but not state decisions that upheld one. And Section 13, which gave the Court power to issue writs of mandamus, became the provision the Court held unconstitutional in Marbury v. Madison (1803), as we discuss in Marshall Gave Up William Marbury's Commission to Win the Bigger Argument.

The lesson of 1789 is plain. The men who wrote Article III, many of whom sat in that First Congress, did not think the federal courts were entitled to every case Article III could reach. They thought Congress decided.

Congress has reshaped the courts many times

The 1789 design did not last unchanged. A short tour shows how much power Congress has used, and how often.

• 1801 and 1802. The outgoing Federalist Congress passed the Judiciary Act of 1801, creating new circuit judgeships and shrinking the Supreme Court to five seats at the next vacancy. The incoming Jeffersonian Congress repealed it in 1802, abolishing the new circuit courts and their judges with them. The repeal raised a question still argued: can Congress abolish a court out from under judges who hold office during good behavior? Congress did it, and the Court did not stop it.
• The size of the Court. The number of seats moved several times in the nineteenth century, up to ten during the Civil War and down again afterward. The Judiciary Act of 1869 set it at nine, where it has stayed. We argue for keeping it there in Nine Justices Since 1869, and Why the Number Should Stay Nine.
• 1891. The Evarts Act created the circuit courts of appeals, the ancestors of today's federal appellate courts, and finally began relieving the justices of circuit riding.
• 1925. The Judiciary Act of that year, sometimes called the Judges' Bill, gave the Supreme Court broad discretion over its own docket through the writ of certiorari. That is why the Court today chooses which cases to hear.
• 1932. The Norris-LaGuardia Act stripped federal courts of power to issue most injunctions in labor disputes, a direct response to decades of judges enjoining strikes.

Each of these was a policy choice by an elected Congress about how the judicial power would be organized. None required an amendment. All were Article III working as written.

Ex parte McCardle: the Exceptions Clause in action

The sharpest test of congressional power came during Reconstruction.

William McCardle was a Mississippi newspaper editor who published editorials attacking Reconstruction. He was arrested and held by the military under the Reconstruction Acts of 1867 for trial by military commission. He sought a writ of habeas corpus under a statute Congress had passed in 1867, lost in the lower federal court, and appealed to the Supreme Court. The case was argued in early 1868. Congress, fearing the Court would use the case to strike down military Reconstruction, then passed a law in March 1868 repealing the part of the 1867 act that allowed such appeals to the Supreme Court. It passed over President Andrew Johnson's veto.

In Ex parte McCardle (1869), a unanimous Court, in an opinion by Chief Justice Salmon Chase, dismissed the case. Its reasoning was short:

Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.

The Court noted that its appellate jurisdiction is conferred "with such exceptions" as Congress makes, and Congress had made one. Chase also observed that the repeal did not take away every path to the Court, and later that year, in Ex parte Yerger, the Court confirmed that an older habeas route remained open.

Three years later, in United States v. Klein (1872), the Court drew a line. Congress may withdraw jurisdiction, but it may not use a jurisdictional statute to tell a court how to decide a pending case, prescribing the rule of decision in a way that dictates the outcome. Between McCardle and Klein lies the territory of the debate. We cover the clause in more depth in The Exceptions Clause Gives Congress a Power Over the Courts It Rarely Uses.

The tools Congress holds and seldom uses

Here is the inventory of what the people's representatives may do under Article III and Article I, without amending anything.

1. Create or abolish lower courts. Congress decides how many circuits there are, how many districts, and which judgeships exist. It can split an overloaded circuit or decline to fill one that is not needed.
2. Set the size of the Supreme Court. Fixed at nine by statute since 1869. Changeable by statute, which is precisely why restraint matters.
3. Define and limit jurisdiction. Congress sets the federal-question and diversity jurisdiction of the lower courts, including the amount in controversy a diversity case must exceed. It can channel certain claims into particular courts.
4. Make exceptions to Supreme Court appellate jurisdiction. McCardle confirms the power exists. Its outer limits, especially for constitutional claims, remain disputed.
5. Regulate remedies. Norris-LaGuardia shows Congress may restrict the kinds of orders federal courts issue, such as injunctions. The sudden rise of nationwide injunctions against federal policy in recent decades is a subject Congress could have addressed by statute and largely did not, as we argue in Universal Injunctions Barely Existed Before 1963, So Where Did They Come From.
6. Impeach and remove. Judges hold office during good behavior, and impeachment is the remedy for its absence. The House impeached Justice Samuel Chase in 1804, and the Senate acquitted him in 1805, which set the enduring norm that judges are not removed for their rulings. That story is in Samuel Chase's 1805 Impeachment and Why Judges Are Not Removed for Their Rulings.
7. Fund and house the courts. Congress appropriates the judiciary's budget. It may not cut a sitting judge's salary, but it controls almost everything else.
8. Confirm or reject nominees. The Senate's advice and consent under Article II is a check on who sits, not merely a formality.

That is a formidable toolkit. And yet the usual congressional response to a decision it dislikes is a press release.

The strongest objection, and the answer

Let's state the opposing view at full strength, in words its defenders would accept.

The objection. Jurisdiction stripping and court resizing are dangerous. If Congress can remove the Supreme Court's power to hear a category of constitutional claims, a temporary majority can insulate its own unconstitutional laws from review. If Congress can add seats, it can pack the Court. Judicial independence is not only about tenure and salary; it is about the courts' ability to enforce the Constitution against the political branches. A Congress that uses these tools aggressively turns the least dangerous branch into a captive one.

That is a serious argument. Here is the answer, point by point.

1. The text is not ambiguous. "With such Exceptions, and under such Regulations as the Congress shall make" is a grant of power. One may argue about its outer edge, but one cannot argue it away. A reading of the Constitution that makes an express clause meaningless is not a reading; it is an edit.
2. The Founders chose this design on purpose. They protected the judge and gave the structure to Congress. Hamilton, in Federalist 81, described the Court's appellate jurisdiction as subject to such exceptions and regulations as the national legislature may prescribe. The First Congress used it at once, by withholding jurisdiction the Constitution would have permitted.
3. The state courts remain. Under the Supremacy Clause, state judges are bound by the Constitution. Removing a federal forum does not remove the Constitution. It changes who applies it first.
4. Klein supplies a limit. Congress may withdraw a category of cases, but it may not dictate outcomes in pending cases. That line protects the core of judicial independence while respecting the clause.
5. Packing is a misuse, not a definition. That a power can be abused is an argument for using it with judgment, not for pretending it does not exist. The Senate's long refusal to change the number nine since 1869, including its rejection of President Franklin Roosevelt's 1937 plan, shows the political system can police the abuse.

The verdict: Congress's power over the shape of the federal courts is real, textual and historical. The danger lies in a Congress that uses it for raw advantage. The quieter danger, and the one we actually live with, is a Congress that forgets it exists and leaves every hard question to judges who were never meant to carry the whole load.

Why this matters to a family

This is not an inside-the-Beltway puzzle. The structure of the courts decides how long a small business waits for a trial, whether a family's case is heard near home or across the state, and whether one district judge can halt a national policy for everyone in the country. Those are choices Congress makes or fails to make.

When your representatives say "the courts did it," ask a simple question: what did Congress do about it? Article III gave them the pen. Montesquieu warned, and the Framers repeated, that there is no liberty if the power of judging is not separated from the legislative and executive powers. Separation means each branch does its own job. The legislature's job includes building the judiciary with care.

The case in brief

1. Article III fixes one Supreme Court, good-behavior tenure and protected pay, and leaves the lower courts and much of the Court's jurisdiction to Congress.
2. The First Congress built the system in the Judiciary Act of 1789 and withheld jurisdiction the Constitution allowed, showing how the Founders read the text.
3. Ex parte McCardle (1869) confirmed Congress may make exceptions to the Supreme Court's appellate jurisdiction; United States v. Klein (1872) bars it from dictating outcomes.
4. Congress holds real tools: courts, judgeships, jurisdiction, remedies, budgets, impeachment and confirmation, and it seldom uses them with care.
5. Judicial independence protects the judge, not the structure; accountability for the structure belongs to the people's representatives.

What you can do: read Article III on our Constitution page, then write your representative and ask which bills on federal court jurisdiction or judgeships they have sponsored or voted on, and check the answer on the scorecard.