The National Courts Section has existed in various forms for more than 150 years, pre-dating the establishment of the Department of Justice itself.

The Section traces its roots to the Office of the Solicitor of the United States Court of Claims, which was established in 1855 when Congress created the United States Court of Claims. Pursuant to Section 2 of the Act to establish a Court for the investigation of Claims against the United States, passed on February 24, 1855 (10 Stat. 612), the Solicitor was appointed by the President, with the advice and consent of the Senate. The Act required the Solicitor to “prepare all cases on the part of the government for hearing before said court, and to argue the same when prepared; to cause testimony to be taken, when necessary to secure the interest of the United States; to prepare forms, file interrogatories, and superintend the taking of testimony, in the manner prescribed by said court, and generally to render such services as may be required of him from time to time, in the discharge of the duties of his office.”

Bestowing the function of representing the federal government upon an independent Solicitor was in keeping with the government’s general approach to litigation at the time, before the formal establishment of the Justice Department. According to The Department of Justice, Its History and Functions, by James S. Easby-Smith, published in 1904, the Attorney General largely concerned himself until after the Civil War with arguing cases in the Supreme Court and providing opinions on the law. He had no control over the government’s litigation, or even the local “district attorneys” who represented the federal government in court.

Indeed, the Attorney General did not even argue every case before the United States Supreme Court in which the United States was a party. Instead, he hired private counsel in certain circumstances. In a letter to the Senate sent in 1867, Attorney General Henry Stanbery conceded that “[t]he present force in the office of the Attorney General is not sufficient for the proper business of that office,” and requested that Congress create a Solicitor General’s office to handle United States Supreme Court matters. The Attorney General also noted that “in my opinion the various law officers now attached to the other departments and the Court of Claims might, with advantage to the public service, be transferred to the Attorney General’s office, so that it may be made the law department of the government, and thereby secure uniformity of decision, of superintendence, and of official responsibility.”

Congress took up the Attorney General’s suggestion concerning the United States Court of Claims about six months later, passing the Act of June 25, 1868 (15 Stat. 75), which stated that as of July 1, 1868, the Attorney General “for the time being shall, with his assistants, attend to the prosecution and defence [sic] of all matters and suits in the court of claims on behalf of the United States.” This Act abolished the Office of the Solicitor of the United States Court of Claims and instead gave the President the power to appoint, with the advice and consent of the Senate, two “assistant attorneys-general.” The Attorney General was also given the power to appoint three clerks to assist them. This Act thus established the forerunner to the present National Courts Section.

Two years later, Congress created the Department of Justice, in the Act to Establish the Department of Justice, passed on June 22, 1870 (16 Stat. 162). This Act consolidated the Government’s litigation functions into a single department. Among various other things, it required the Department to “procure the proper evidence for, and conduct, prosecute, or defend all suits and proceedings in the Supreme Court of the United States and in the court of claims, in which the United States, or any officer thereof, is a party or may be interested.”

Supervision of the federal government’s litigation in the United States Court of Claims and its successor courts has remained with an Assistant Attorney General since 1868. Over the years, the department attorneys responsible for the work have been organized in various ways. According to a history compiled by the National Archives, from 1868 to 1933, United States Court of Claims work was handled simply by the Attorney General’s Office, presumably under the supervision of the Assistant Attorney General. From 1934 to 1937, the work was handled by the Claims Division, until it was renamed the Court of Claims Section in 1937 and eventually the Civil Division in 1953.

The structure of National Courts today reflects changes Congress made to the federal judiciary in the early 1980s. In the Federal Courts Improvement Act of 1982, Congress combined the appellate division of the United States Court of Claims with the United States Court of Customs and Patent Appeals to create the United States Court of Appeals for the Federal Circuit. The trial division of the United States Court of Claims became the United States Claims Court and eventually the United States Court of Federal Claims. Congress also created the United States Court of International Trade in the Customs Courts Act of 1980 and granted the United States Court of Appeals for the Federal Circuit jurisdiction to entertain appeals arising from trade court matters. Because these three courts possess jurisdiction to entertain claims arising anywhere in the United States, they are known as “national courts.” The National Courts Section now handles the majority of the Government’s litigation in all three courts.