Congress's Power to Regulate the Federal Judiciary: What the First Congress and the First Federal Courts Can Teach Today's Congress and Courts

Abstract

This Article explores what the First Congress, speaking through three foundational pieces of enacted legislation, had to say about the full extent of Congress's power over the federal judiciary, and what today's Congress and federal courts can learn from that understanding. It also explores how the legislation passed by the First Congress reflects the traditional understanding of the deference federal courts should give to the acts of the national legislature-a deference that should give way only when such acts are clearly unconstitutional. Finally, this Article explores how the modem Supreme Court's deviation from that traditional understanding threatens its popular legitimacy today. 

In doing so, this Article attempts to present a picture of the bookends that sit at either end of the Supreme Court's decisions throughout American history. On one end sits the three statutes enacted by the First Congress, which served to anchor the federal judiciary to a limited jurisdiction in order to provide robust protections for the acts of the legislature. On the other end sits a modem Supreme Court whose tenuous 5-4 decisions striking down democratically enacted legislation increasingly untether the Court from the core concepts that framed the creation of the federal courts. With such imbalanced bookends, it remains to be seen whether the volumes between them can cohere much longer.