Appellate Review of the Decision Whether or Not to Empanel a Three-Judge Federal Court

Revolutions, like screwdrivers, come in various sizes.The revolution I mean to discuss is one of the smaller ones, even by Supreme Court standards.Gradually and quite unobtrusively it has arrived just one step short of completion.Lawyers ought to be aware of it, yet the Court has done its best to pretend that nothing has happened.When Congress in 1910 required the convening of an extraordinary three-judge district court in suits to enjoin the enforcement of unconstitutional state laws, it provided a direct appeal to the Supreme Court from three-judge decisions granting or denying injunctions, 1 but it apparently gave no thought to the question of appellate review of the decision whether or not three judges were required.The statute having proved less than self-administering in this regard, 2 the Court was soon confronted with a number of requests for relief against the decision of a single trial judge that three judges were not called for.The Court devised a clear remedy: If a single judge granted or denied an interlocutory injunction, 3 entered a final judgment 4 or simply denied a request for three judges and held the case for future disposition, 5 there was no appeal either to the Supreme Court or to the Court of Appeals, for the former was open only when three judges had heard the case and the latter only if three judges were not required.The frustrated litigant therefore was to seek a writ of mandamus from the Supreme Court. 0