Article I, Section 8, Clause 9: Inferior Courts
To constitute Tribunals inferior to the supreme Court;
The Supreme Court is established by Article III of the Constitution, which also mentions courts inferior to the Supreme Court. This clause spells out that it is Congress that has the power to establish such courts.
Our reading is that “inferior” implies:
- The power and jurisdiction of each such court is a proper subset of the power and jurisdiction of the Supreme Court. Article III specifies certain cases for which the Supreme Court has original jurisdiction, which reinforces this point.
- Every decision of every such court is subject to appeal to the Supreme Court.
There have been proposals, not terribly serious in our opinion, to strip the Supreme Court of appellate jurisdiction over areas of law where it has made unpopular decisions. The claim is that Article III, Section 2, Clause 3 (“… the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”) give Congress this power.
Our reading is that any law that removes ultimate jurisdiction from the Supreme Court over any federal case is unconstitutional, because it would mean that the lower courts were no longer strictly inferior to the Supreme Court, and Congress has power only to establish inferior courts. We read Article III, Section 2, Clause 3 to give Congress the power to grant the Supreme Court original jurisdiction over additional kinds of cases if Congress so chooses. The Supreme Court is supreme; it has ultimate jurisdiction (whether appellate or original) over all federal cases.