Texas abortion case: a civics lesson on the federal court system

Written by William C. Duncan

October 14, 2021

One of the most closely watched cases currently in the federal court system is the challenge to a Texas law allowing private citizens to sue to prevent abortions performed after an unborn child’s heart begins to beat. The case has provided something of a civics lesson on the federal court system.

After the Texas law was passed, abortion providers challenged the law in federal court. When the U.S. Court of Appeals for the Fifth Circuit declined to issue an order to prevent the law from going into effect, the abortion clinic appealed to the U.S. Supreme Court which also declined given the novel approach of the law.

The case then returned to the district court which ruled the law could not be enforced pending a hearing on its constitutionality. This was followed by a Fifth Circuit reversal, allowing the law to go into effect again.

The creation of lower courts in the federal system is specifically mentioned in Article III of the Constitution. That section creates a Supreme Court and allows for “inferior courts.” It also suggests what these lower courts would do by mentioning that in most of the cases in the federal judicial system, the Supreme Court would have “appellate jurisdiction.” This means that the initial fact-finding and legal conclusions in a dispute would be made by another court and then the Supreme Court would review those conclusions.

Unlike the Supreme Court, though, these lower courts are not created by the Constitution. Rather, the Constitution gives to Congress the power to create the courts “from time to time.” Importantly, Congress is also given the power to “regulate” the jurisdiction of federal courts. In practice, this means Congress controls “the existence of the inferior federal courts and the jurisdiction vested in them and the appellate jurisdiction of the Supreme Court.”

After the ratification of the Constitution and the formation of a national government, Congress acted to exercise this authority. The 1789 Judiciary Act set up the federal court system.

It specified that there would be six members of the Supreme Court, a chief justice and five associates. This number was increased to seven in 1802 and to nine in 1837 where it has stayed.

The Act also created 13 judicial districts; one for each state. Each district court was appointed a single judge. The Act also created three circuits (eastern, middle and southern) and the states divided among them geographically. Circuit courts were to be made up of two Supreme Court justices and one district court judge within the region.

This meant that Supreme Court justices spent a good portion of their time “riding circuit,” traveling to cities within their assigned regions to listen to appeals from district court decisions. This practice actually continued for 101 years, ending only in 1911.

The practice was onerous and could be dangerous. An online resource from the National Park Service recounts:

Justices spent anywhere from six to nine months on circuit, averaging some 1000 miles for each circuit. In 1792 Justice Iredell suffered a road accident where he injured his leg. He was later robbed while riding circuit. In frail health, he died two weeks before his 48th birthday, worn down by his judicial duties. Iredell’s enslaved servant Hannibal also endured the hazards of travel as he accompanied the justice in circuit riding. In April 1798, Justice Iredell wrote to his wife about the difficulties he and Hannibal encountered in trying to pass through a swamp on the way to Circuit Court in Savannah, Georgia. At his slaveholder’s direction, Hannibal proceeded first through the swamp waters, stopping just before the water became dangerously deep. Iredell and Hannibal failed to reach Savannah, and the court session was cancelled.

The Eighth Circuit’s website includes another circuit riding horror story:

Sometimes the dangers were not due to the weather. Justice Stephen J. Field was riding circuit on the train to San Francisco when he was assaulted by a codefendant in a suit he had heard while sitting on the Circuit Court for the Northern District of California. A deputy U.S. Marshal accompanying Field shot and killed the assailant.

In 1793, Congress provided that only one Supreme Court justice had to ride each circuit.

Each federal circuit still has a Supreme Court justice assigned to it. The role now is very different:

Today, the Circuit Justices (that is, Supreme Court justices who are assigned to supervise a certain circuit) [as explained by former Justice Sandra Day O’Connor] “no longer sit as judges on appellate panels…[instead], acting alone, [they] have the power to grant stays or injunctions in both civil and criminal cases, to arrange bail before and after conviction, and to provide other ancillary relief, such as extensions of time for various filings and other procedural variances.”

In fact, the emergency appeal of the Texas abortion case was “presented to Justice [Samuel] Alito and by him referred to the Court.”

In the lame-duck period after the 1800 election, Congress actually created separate circuit courts and appointed judges to hear appeals. That act, however, was promptly repealed with the support of the new administration of President Thomas Jefferson. It was not until 1891 that the federal court system took on the structure we are familiar with today, with district courts, circuit courts with specifically assigned judges, and the Supreme Court.

The history of the federal judiciary is one of evolution. The difference in the institutional structure, stature and significance of the federal courts from their inception to today is striking. As the U.S. has grown through its history and adapted to new circumstances, so, too, has the judicial branch. Its history suggests that it will continue to do so into the future.

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