premised on a holding that he is denied no rights by being relegated to that course of action. Ante, at 13, 14. But this is the contrary of what Judge Chandler contends, and a conclusion with which two members of this Court sharply differ. As explained in Part III, infra, I too believe that Judge Chandler now lacks meritorious ground for complaint. However, I do not believe that the Court can properly make that holding without first determining its jurisdiction to consider the question.

Rescue Army provides no authority for such a procedure. That decision represents one branch of the longsettled doctrine that this Court will not determine constitutional questions unnecessarily or in a case that does not present them with sufficient clarity to make possible the circumspect consideration they require. See generally id., at 568-585; Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 346 (1936) (Brandeis, J., concurring). Because the constitutional issues in Rescue Army were presented in a highly abstract and speculative form, and were clouded by factors not present in this case, the Court dismissed the appeal, declining to adju

1

The appeal in Rescue Army involved review of a state prohibition proceeding in which the appellant challenged, before trial, the complex state statutory scheme under which he had been criminally charged. The Court observed that the meanings of the various statutory provisions, and their relationships to one another, were left undefined by the ambiguous opinion of the State Supreme Court ; and since the attack was on the face of the statutes, the Court found it unclear which statutes were being challenged and even what the charges were against the appellant. In contrast, the present case involves two brief federal enactments that are challenged, not on their face, but as applied by specific orders of the Council relating to Judge Chandler.

The Court states that because the scheduled hearing below was canceled, "we have no record, no petition for relief addressed to any agency, court or tribunal of any kind other than this Court, and a very knotty jurisdictional problem as well." We do, however, have a record, consisting primarily of the several orders of the

dicate them. It concluded that the appellant there, faced with state criminal charges, would have to undergo a trial on the charges before obtaining review in this Court of his constitutional claims. As in this case, the Court's action had the effect of rejecting the appellant's claim of a right to obtain relief without further proceedings in a lower tribunal, see 331 U. S., at 584. However, the Court made that disposition only after carefully determining that it had jurisdiction in the case. Sec id., at 565–568.

The Court does suggest, by footnote, an alternative basis for its refusal to consider Judge Chandler's petition. Ante, at 13, n. 8. If an adequate means of review of Council orders were available in the Federal District Court under 28 U. S. C. § 1361, that might justify this Court's staying its hand until such review had been sought. However, as pointed out by the United States as amicus curiae, it seems wholly unrealistic to suggest

Council and the minutes of the meetings at which it dealt with this matter. The Council's February 4 Order, unlike that of December 13, which was "entirely interlocutory," effects a change of indefinite duration in the allocation of District Court business. It was incumbent on the Council to take such action only on a record that would support it; if the record fails to support the Council's action, that does not obfuscate Judge Chandler's claims but strengthens them. His claims for the most part do not depend on his establishing from the record the existence of particular factual circumstances, cf. De Backer v. Brainard, 396 U. S. 28 (1969), but on the alleged lack of possible justification in the record for the Council's action. Nothing in Rescue Army seems to justify a refusal to adjudicate the issue thus presented. I find that the February 4 Order is justified on the record in this case, sec Part III, infra.

The significance of Judge Chandler's failure to seek review in a tribunal other than this Court depends, of course, on the resolution of the "knotty jurisdictional question" presented by his petition to this Court. I fail to see how it justifies not reaching that question

at all.

that an appropriate remedy could be obtained from a District Court. The District Court mandamus statute, § 1361, extends to "officers," "employees," and "agencies" of the United States; there is no indication that it empowers the District Courts to issue mandamus to other judicial tribunals. Thus, as the Judicial Council seems to concede, the availability of a remedy under that statute hinges on a determination, which the Court avoids making, whether the Council's actions under review were judicial or not. Brief for Respondent 19. Beyond that, direct review by a district judge of the actions of circuit judges would present serious incongruities and practical problems certainly not contemplated when § 1361 was enacted. It is unrealistic for the Court to imply that § 1361 presents an appropriate avenue of relief justifying this Court's refusal to exercise its jurisdiction.

I do not disagree with the Court that the issues presented by Judge Chandler's petition are troublesome ones that we might wish to avoid deciding. However, I can perceive no reasoned justification for the Court's refusal to decide them. Chief Justice Marshall long ago cnunciated the principle that should govern us here:

"It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. . . . With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." Cohens v. Virginia, 19 U. S. 264, 404 (1821).

That principle has not been abrogated by the Rescue Army decision, which merely undertook to define the limits of our ability to adjudicate constitutional issues in cases that adequately present them. I find no license in that decision for the action taken by the Court today.

II

Before Judge Chandler's attack on the orders of the Judicial Council can be considered, it must be determined whether the Court possesses jurisdiction to entertain his petition for a writ of mandamus or prohibition. While I agree with my Brothers BLACK and DOUGLAS that the Court does have jurisdiction, I think that the question warrants fuller treatment than they have given it.

A. CONSTITUTIONAL JURISDICTION

Any discussion of the scope of this Court's authority under the Constitution must take as its point of departure Marbury v. Madison, 5 U. S. 137 (1803), where the Court held that except in those instances specifically enumerated in Article III of the Constitution," this Court may exercise only appellate-not original--jurisdiction. Because this suit is not cognizable as an original cause, the question initially to be faced is whether it is within our appellate jurisdiction.

The Court was asked in Marbury to issue a writ of mandamus to compel the Secretary of State to deliver to an appointed justice of the peace his previously signed commission. After noting that the suit did not fall within any of the enumerated heads of original jurisdiction, the Court, through Chief Justice Marshall, concluded: "To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable [the Court] to exercise appellate jurisdiction." Id., at 175. The Court held that issuance of mandamus to a nonjudicial federal officer would not be an exercise of appellate, but of original,

2

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction." U. S. Const. Art. III, § 2, cl. 2.

jurisdiction. Thus the statute that purported to authorize such action by the Supreme Court was ineffective. See 2 Story, Commentaries on the Constitution of the United States § 1761 (5th ed. 1891).

The Chief Justice stated, as the "essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause." Ibid. Beyond cavil, the issuance of a writ of mandamus to an inferior court is an exercise of appellate jurisdiction. In re Winn, 213 U. S. 458. 465-466 (1809). If the challenged orders of the Judicial Council in this instance were "an exercise of judicial power," this Court is constitutionally vested with jurisdiction to review them, absent any statute curtailing such review. Williams v. United States, 289 U. S. 553, 566 (1933); Old Colony Trust Co. v. Commissioner, 279 U. S. 716, 723 (1929); In re Sanborn, 148 U. S. 222, 224 (1893). On the other hand, if they were not, Marbury alone is sufficient authority to support a conclusion that this suit is beyond this Court's power under Article III. An analysis of the nature of the Council's orders must begin with consideration of the statute by which the Council was created.

The Judicial Councils of the circuits were brought into being by the Act of August 7, 1939, which was termed "An act to provide for the administration of the United States courts, and for other purposes." C. 501, § 1, 53 Stat. 1223. The major purposes of the Act were to free the federal courts from their previous reliance on the Justice Department in budgetary matters, and "to furnish to the Federal courts the administrative machinery for self-improvement, through which those courts will be able to scrutinize their own work and develop efficiency and promptness in their administration of justice." H. R. Rep. No. 702, 76th Cong., 1st Sess., 2 (1939). To this end the Act established the Administrative Office