Congress' Power to Regulate the Federal Judiciary: What the First Congress and the First Federal Courts Can Teach Today's Congress and Courts
37 PEPP. L. REV. 847 (2010)
This article explores what the First Congress, speaking through three foundational pieces of enacted legislation -- the Judiciary Act of 1789, the Process Act of 1789, and the Crimes Act of 1790 -- 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 legislatures, a deference that should give way only when such acts are clearly unconstitutional. Finally, this article explores how the modern Supreme Court’s deviation from that traditional understanding threatens its popular legitimacy today.
