Constitution

Article III, Section 1: The Judicial Power

Section 1 vests the judicial power in one Supreme Court and such lower courts as Congress creates, and protects judges' tenure and pay.

4Conservative Editors · Published November 8, 2026

The text

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.

In plain English

The vesting. "The judicial Power of the United States" belongs to "one supreme Court" and to whatever "inferior Courts" Congress chooses to create. The Constitution requires only the Supreme Court; every other federal court exists because Congress established it, under its power in Article I, Section 8 to "constitute Tribunals inferior to the supreme Court."

Tenure. Judges "hold their Offices during good Behaviour," which in practice means for life unless impeached and convicted.

Pay. Their compensation cannot be diminished while they serve.

The text does not say how many justices sit on the Court. Congress set the number at six in 1789 and has changed it several times; it has been nine since 1869.

Life tenure and protected pay are the structural guarantees of judicial independence. The courts have neither the purse nor the sword; they have judgment, and these provisions protect its exercise.

What the Founders said

The Declaration of Independence charged George III with having "made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries." Article III is the answer.

Hamilton developed the point in Federalist No. 78, where he called the judiciary "the least dangerous" branch because it has "neither FORCE nor WILL, but merely judgment." He called good-behavior tenure "the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws." In No. 79 he wrote that "a power over a man's subsistence amounts to a power over his will."

Brutus, an Anti-Federalist, warned in his later essays that independent judges, answerable to no one, would expand federal power by interpretation. The debate between Hamilton and Brutus is still the best introduction to the issue.

How the courts have read it

  • Marbury v. Madison (1803): the Court asserted the power to declare acts of Congress void when they conflict with the Constitution.
  • Stuart v. Laird (1803): Congress may abolish and reorganize lower courts, and reassign judges' duties.
  • Ex parte McCardle (1869): the Court accepted Congress's repeal of its appellate jurisdiction over a pending habeas case.
  • Cooper v. Aaron (1958): the Court described its constitutional interpretations as the supreme law of the land, a claim often debated.
  • Stern v. Marshall (2011): Congress cannot assign to non-Article III bankruptcy judges the final decision of a state-law counterclaim.
  • Loper Bright Enterprises v. Raimondo (2024): the "judicial Power" means courts must exercise independent judgment on questions of law rather than defer to agencies.

Why it matters now

Judicial independence is a conservative commitment as much as a constitutional one: law should not bend to the shifting majorities of the moment. The same principle applies to judges themselves, who are meant to apply the law as written, not to make it. The independence the Framers guaranteed is justified by that restraint.

Several live questions rest on this text. Congress sets the size of the Court, and proposals to expand it are lawful in a technical sense, though most observers across the spectrum see them as a threat to judicial independence. The nine-member Court has stood since 1869, longer than any other arrangement. Proposals for term limits would require either a constitutional amendment or a reading of "good Behaviour" that most scholars reject.

Congress also controls the creation and jurisdiction of lower courts, and it has been slow to use that power. If the people dislike what federal courts do, the Constitution gives their representatives real tools. Rhetoric about "unelected judges" is more persuasive when paired with legislation.

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