Most Americans are familiar with the division of government power between three coequal branches: legislative, executive and judicial. Although the first three articles of the Constitution of the United States ostensibly reflect this allocation of authority, the parameters of the “judicial branch” have not always been clear. Indeed, litigants, judges and legislators have grappled with contested and mutable meanings of this seemingly straightforward term for more than two centuries. 

Article III, section 1 states that “[t]he 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 presiding over such courts must be appointed by the president “by and with the advice and consent of the Senate” and hold their offices “during good behavior[.]” Their salaries cannot be reduced. Operating under its Article I, section 8 power to “constitute” federal tribunals, Congress has created several courts staffed by judges holding these protections who exercise the “judicial power” contemplated in Article III. These courts are commonly known as “Article III” or “constitutional” courts. The latter moniker can be confusing, as the Constitution does not oblige Congress to create any particular court and such courts routinely hear non-constitutional disputes.  

There are currently four Article III courts: The Supreme Court of the United States, the U.S. courts of appeals, the U.S. district courts and the U.S. Court of International Trade. Congress has abolished, combined or reorganized several other Article III courts over time. Such courts include the U.S. circuit courts, the Court of Claims, the U.S. Customs Court, and the Supreme Court of the District of Columbia.

Since the mid-twentieth century, Congress has occasionally authorized temporary or specialized courts or adjudicatory bodies staffed by judges from existing Article III courts. Some of these bodies, such as the Special Railroad Court or the Foreign Intelligence Surveillance Court, are courts in their own right and call on judges to exercise a wide range of traditional judicial powers. Congress has also formed bodies, such as the Judicial Panel on Multidistrict Litigation or the Special Division for the Appointment of Independent Counsel, that are not designated as courts and typically serve more circumscribed roles.

Not all federal judges are Article III judges. Some non-Article III judges work as “adjuncts” to Article III tribunals. In 1968, for example, Congress authorized district courts to appoint magistrates (the title was changed to “magistrate judge” in 1990). These judges conduct many aspects of the pre-trial process and can preside over most non-felony trials, but are appointed to renewable four or eight year terms rather than holding their offices during good behavior. 

Since the earliest days of the republic, Congress has also created separate “Article I” or “legislative” courts. Again, the nomenclature can be confusing as Article I does not specifically authorize these courts and they do not “legislate” in any traditional sense of the word. These courts range from independent federal tribunals staffed with judges who are not subject to the tenure and salary protection of Article III, such as the courts of the United States’ territories and the U.S. Court of Federal Claims, to panels organized under the aegis of federal agencies. Though the adjudicators in some bodies belonging to this latter group are called judges, their courts are not commonly understood to fall under the umbrella of the “judicial branch.” Unlike other Article I judges (including bankruptcy, territorial and magistrate judges), for example, they are not administered by the Administrative Office of the United States Courts or governed by the Judicial Conference of the United States.  

The distinction between Article I and Article III judges was often fluid, particularly as the federal government took on an increasingly broad set of regulatory responsibilities in the first half of the twentieth century. Some courts, such as the Court of Claims and U.S. Court of Customs and Patent Appeals, changed status as a result of the interplay between Congress and the Supreme Court during this period.^[1] In other instances, Congress has changed the jurisdiction of courts or modified the protections accorded their judges to convert legislative courts into constitutional tribunals. The U.S. Customs Court, for example, slowly evolved from a primarily administrative body known as the Board of General Appraisers to an Article III court over the course of sixty-six years.

Federal courts have long depended on bodies “outside” the judicial branch for important aspects of their work. Department of Justice attorneys, for example, are said to be “officers of the court,” but belong to an executive agency headed by the Attorney General, who serves at the pleasure of the president of the United States. Likewise, for eighty-five of the first eighty-six years of American history, federal courts did not have jurisdiction over cases arising under federal law and most such cases were heard by state courts subject to Supreme Court review. Despite Article VI’s command that “judges in every state shall be bound” by federal law, however, few, if any, nineteenth century scholars or lawyers included such state courts in the federal judicial branch by dint of this work.