Congress has provided that in certain cases which are otherwise properly before a federal district court, a special district court composed of three judges, one of whom must be a circuit judge, is required. Theoretically, this requirement is procedural assurance that important litigation will receive commensurate consideration in the federal district courts. One type of litigation which Congress has deemed to merit this special treatment is a suit to enjoin enforcement of a state statute or administrative order on grounds of unconstitutionality. While the three-judge statute is relatively simple in theory, it has proven quite complex in practice and has been a frequent source of controversy. Several recent decisions of the United States Supreme Court have focused attention upon 28 United States Code section 2281, providing inspiration for a number of commentators. Within the context of an examination of two recent Supreme Court decisions, Swift & Co. v. Wickkam and the decision reversed therein, Kesler v. Department of Public Safety, this Note will undertake an evaluation of the three-judge requirement today.
The Three-Judge District Court in Contemporary Federal Jurisdiction,
Wash. L. & Rev.
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