The Judiciary Act of 1925: Essential Change for the Supreme Court and the United States Courts of Appeals

Thomas M. Hardiman*

Federal court litigants usually get two bites at the apple: one in a United States District Court and one in a United States Court of Appeals. With the Supreme Court deciding fewer than seventy cases a year, only the rare court of appeals judgment is overturned by the Supreme Court. That rarity stems from the Judiciary Act of 1925.¹

By making them the de facto courts of last resort, the Judiciary Act of 1925 amplified the importance of the courts of appeals. This devolution of power was well within Congress’s Article I authority to create “such inferior Courts . . . from time to time.”⁹ But perhaps counterintuitively, the devolution did not happen because the Supreme Court lost a power struggle with Congress. As has been well chronicled, Chief Justice Taft—a little over a decade after he finished his term as the twenty-seventh President of the United States—was the prime mover behind the passage of the Judiciary Act of 1925.¹⁰ Subsequent Chief Justices and Associate Justices lauded the Court’s newfound discretion.¹¹ Before I examine the 1925 Act’s impact on the courts of appeals, a brief history of the intermediate federal courts is necessary to contextualize matters.

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© 2026 Thomas M. Hardiman. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Judge, United States Court of Appeals for the Third Circuit. I thank my law clerks, Walker Fortenberry, Jake Rinear, Hugh Murchie, and Shane Coughlin—all exceptional lawyers—for their generous assistance with this article.

1 Judiciary Act of 1925, ch. 229, 43 Stat. 936.

9 U.S. Const. art. III, § 1.

10 See, e.g., Jeremy Buchman, Judicial Lobbying and the Politics of Judicial Structure: An Examination of the Judiciary Act of 1925, 24 Just. Sys. J. 1 (2003); 10 Robert C. Post, The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States 476–501 (Maeva Marcus ed., 2024); Crowe, supra note 2, at 73–87.

11 See, e.g., Felix Frankfurter & James M. Landis, The Supreme Court Under the Judiciary Act of 1925, 42 Harv. L. Rev. 1 (1928); Fred M. Vinson, The Business of Judicial Administration: Suggestions to the Conference of Chief Justices, 35 A.B.A. J. 893 (1949); Willis Van Devanter, The Supreme Court of the United States, 5 Ind. L.J. 553, 560 (1930).