Finality of Judgment as an Attribute of Judicial Power
Since 1792, the federal courts have emphasized finality of judgment as an essential attribute of judicial power. In that year, Congress authorized Revolutionary War veterans to file pension claims in circuit courts of the United States, directed the judges to certify to the Secretary of War the degree of a claimant’s disability and their opinion with regard to the proper percentage of monthly pay to be awarded, and empowered the Secretary to withhold judicially certified claimants from the pension list if he suspected “imposition or mistake.”146 The Justices then on circuit almost immediately forwarded objections to the President, contending that the statute was unconstitutional because the judicial power was constitutionally committed to a separate department and the duties imposed by the act were not judicial, and because the subjection of a court’s opinions to revision or conrol by an officer of the executive or the legislature was not authorized by the Constitution.147 Attorney General Randolph, upon the refusal of the circuit courts to act under the new statute, filed a motion for mandamus in the Supreme Court to direct the Circuit Court in Pennsylvania to proceed on a petition filed by one Hayburn seeking a pension. Although the Court heard argument, it put off decision until the next term, presumably because Congress was already acting to delete the objectionable features of the act, and upon enactment of a new law the Court dismissed the action.148 Hayburn’s Case has been since followed, so that the Court has rejected all efforts to give it and the lower federal courts jurisdiction over cases in which judgment would have been subject to exective or legislative revision.149 Thus, in a 1948 case, the Court held that an order of the Civil Aeronautics Board denying to one citizen air carrier and granting to another a certificate of convenience and necessity for an overseas and foreign air route was not reviewable. Such an order was subject to review and confirmance or revision by the President, and the Court decided it could not review the discretion exercised by him in that situation; the lower court had thought the matter could be handled by permitting presidential review of the order after judicial review, but this the Court rejected. “[I]f the President may completely disregard the judgment of the court, it would be only because it is one the courts were not authorized to render. Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government,”150 More recently, the Court avoided a similar situation by a close construction of a statute.151chanrobles-red
143 Which was, of course, the point of Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803), once the power of the Court to hold legislation unconstitutional was established.
144 The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1868); Cary v. Curtis, 44 U.S. (3 How.) 236 (1845); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850); United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 33 (1812); Kline v. Burke Construction Co., 260 U.S. 226 (1922). It should be noted, however, that some judges have expressed the opinion that Congress’ authority is limited to some degree by the Constitution, such as by the due process clause, so that a limitation on jurisdiction which denied a litigant access to any remedy might be unconstitutional. Cf. Eisentrager v. Forrestal, 174 F.2d 961, 965-966 (D.C. Cir. 1949), revd. on other grounds sub nom, Johnson v. Eisentrager, 339 U.S. 763 (1950); Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir.), cert. denied, 335 U.S. 887 (1948); Petersen v. Clark, 285 F. Supp. 700, 703 n.5 (N.D. Calif. 1968); Murray v. Vaughn, 300 F. Supp. 688, 694-695 (D.R.I. 1969). The Supreme Court has had no occasion to consider the question.
145 Turner v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799); Bingham v. Cabot, 3 U.S. (3 Dall.) 382 (1798); Jackson v. Ashton, 33 U.S. (8 Pet.) 148 (1834); Mitchell v. Maurer, 293 U.S. 237 (1934).
146 Act of March 23, 1792, 1 Stat. 243.
147 1 AMERICAN STATE PAPERS: MISCELLANEOUS DOCUMENTS, LEGISLATIVE AND EXECUTIVE, OF THE CONGRESS OF THE UNITED STATES 49, 51, 52 (1832). President Washington transmitted the remonstrances to Congress. 1 MESSAGES AND PAPERS OF THE PRESIDENTS 123, 133 (J. Richardson comp., 1897). The objections are also appended to the order of the Court in Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 (1792). Note that some of the Justices declared their willingness to perform under the act as commissioners rather than as judges. Cf. United States v. Ferreira, 54 U.S. (13 How.) 40, 52-53 (1852). The assumption by judges that they could act in some positions as individuals while remaining judges, an assumption many times acted upon, was approved in Mistretta v. United States, 488 U.S. 361, 397-408 (1989).
148 Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792). The new pension law was the Act of February 28, 1793, 1 Stat. 324. The reason for the Court’s inaction may, on the other hand, have been doubt about the proper role of the Attorney General in the matter, an issue raised in the opinion. See Marcus & Teir, Hayburn’s Case: A Misinterpretation of Precedent, 1988 WIS. L. REV. 4; Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There was Pragmatism, 1989 DUKE L. J. 561, 590-618. Notice the Court’s discussion in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218, 225-26 (1995).
149 See United States v. Ferreira, 54 U.S. (13 How.) 40 (1852); Gordon v. United States, 69 U.S. (2 Wall.) 561 (1865); In re Sanborn, 148 U.S. 222 (1893); cf. McGrath v. Kritensen, 340 U.S. 162, 167-168 (1950).
150 Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113-114 (1948).
151 Connor v. Johnson, 402 U.S. 690 (1971). Under � 5 of the Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. � 1973e, no State may “enact or seek to administer” any change in election law or practice different from that in effect on a particular date without obtaining the approval of the Attorney General or the district court in the District of Columbia, a requirement interpreted to reach reapportionment and redistricting. Allen v. State Bd. of Elections, 393 U.S. 544 (1969); Perkins v. Matthews, 400 U.S. 379 (1971). The issue in Connor was whether a districting plan drawn up and ordered into effect by a federal district court, after it had rejected a legislatively-drawn plan, must be submitted for approval. Unanimously, on the papers without oral argument, the Court ruled that, despite the statute’s inclusive language, it did not apply to court-drawn plans.
Award of Execution.—The adherence of the Court to this proposition, however, has not extended to a rigid rule formulated by Chief Justice Taney, given its fullest expression in a post-humously-published opinion.152 In Gordon v. United States,153 the Court refused to hear an appeal from a decision of the Court of Claims; the act establishing the Court of Claims provided for appeals to the Supreme Court, after which judgments in favor of claimants were to be referred to the Secretary of the Treasury for payments out of the general appropriation for payment of private claims. But the act also provided that no funds should be paid out of the Treasury for any claims “till after an appropriation therefor shall be estimated by the Secretary of the Treasury.”154 The opinion of the Court merely stated that the implication of power in the executive officer and in Congress to revise all decisions of the Court of Claims requiring payment of money denied that court the judicial power from the exercise of which “alone” appeals could be taken to the Supreme Court.155
In his posthumously-published opinion, Chief Justice Taney, because the judgment of the Court of Claims and the Supreme Court depended for execution upon future action of the Secretary and of Congress, regarded any such judgment as nothing more than a certificate of opinion and in no sense a judicial judgment. Congress could not therefore authorize appeals to the Supreme Court in a case where its judicial power could not be exercised, where its judgment would not be final and conclusive upon the parties, and where processes of execution were not awarded to carry it into effect. Taney then proceeded to enunciate a rule which was rigorously applied until 1933: the award of execution is a part and an essential part of every judgment passed by a court exercising judicial powers and no decision was a legal judgment without an award of execution.156 The rule was most significant in barring the lower federal courts from hearing proceedings for declaratory judgments157 and in denying appellate jurisdiction in the Supreme Court from declaratory proceedings in state courts.158 But, in 1927, the Court began backing away from its absolute insistence upon an award of execution. Unanimously holding that a declaratory judgment in a state court was res judicata in a subsequent proceeding in federal court, the Court admitted that “[w]hile ordinarily a case or judicial controversy results in a judgment requiring award of process of execution to carry it into effect, such relief is not an indispensable adjunct to the exercise of the judicial function.”159 Then, in 1933, the Court interred the award-of-execution rule in its rigid form and accepted an appeal from a state court in a declaratory proceeding.160 Finality of judgment, however, remains the rule in determination of what is judicial power without regard to the demise of Chief Justice Taney’s formulation.
152 The opinion was published in 117 U.S. 697. See supra, and text. See United States v. Jones, 119 U.S. 477 (1886). The Chief Justice’s initial effort was in United States v. Ferreira, 54 U.S. (13 How.) 40 (1852).
153 69 U.S. (2 Wall.) 561 (1865).
154 Act of February 24, 1855, 10 Stat. 612, as amended, Act of March 3, 1963, 12 Stat. 737.
155 Gordon v. United States, 69 U.S. (2 Wall.) 561 (1865). Following repeal of the objectionable section, Act of March 17, 1866, 14 Stat. 9, the Court accepted appellate jurisdiction. United States v. Jones, 119 U.S. 477 (1886); De Groot v. United States, 72 U.S. (5 Wall.) 419 (1867). But note that execution of the judgments was still dependent upon congressional appropriations. On the effect of the requirement for appropriations at a time when appropriations had to be made for judgments over $100,000, see Glidden Co. v. Zdanok, 370 U.S. 530, 568-571 (1962). Cf. Regional Rail Reorganization Act Cases (Blanchette v. Connecticut General Ins. Corp.), 419 U.S. 102, 148-149 & n. 35 (1974).
156 Published at 117 U.S. 697, 703. Subsequent cases accepted the doctrine that an award of execution as distinguished from finality of judgment was an essential attribute of judicial power. See In re Sanborn, 148 U.S. 122, 226, (1893); ICC v. Brimson, 154 U.S. 447, 483 (1894); La Abra Silver Mining Co. v. United States, 175 U.S. 423, 457 (1899); Frasch v. Moore, 211 U.S. 1 (1908); Muskrat v. United States, 219 U.S. 346, 355, 361-362 (1911): Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927).
157 Liberty Warehouse Co. v. Grannis, 273 U.S. 70 (1927).
158 Liberty Warehouse Co. v. Burley Tobacco Growers’ Coop. Marketing Ass’n, 276 U.S. 71 (1928).
159 Fidelity Nat’l Bank & Trust Co. v. Swope, 274 U.S. 123, 132 (1927).
160 Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933). The decisions in Swope and Wallace removed all constitutional doubts previously shrouding a proposed federal declaratory judgment act, which was enacted in 1934, 48 Stat. 955, 28 U.S.C. �� 2201-2202, and unanimously sustained in Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).
