Over the last two decades, the U.S. Supreme Court has handed down a series of major decisions about the federal equity power. In these so-called “new equity” cases, the Court has consistently relied on history to define the equitable remedies available in federal court. The Court’s intense focus on equity has sparked a corresponding surge in scholarly commentary. Until recently, however, courts and commentators alike have overlooked the most prominent reference to equity in American law—the provision of Article III that extends “the judicial Power” to cases “in Equity.” That seems likely to change. In the past three years, Justices Gorsuch and Thomas have teased their belief that Article III’s reference to “Equity” may be relevant in defining the scope of federal equity power. And they have suggested that, following the Court’s new equity approach, they would analyze that term through the lens of history. Critics have reacted to these developments with alarm, arguing that an originalist interpretation of Article III equity could undermine the legitimacy of core public law doctrines, such as the availability of injunctive relief under Ex parte Young. But scholars have yet to undertake a historical analysis that would bear out their dire predictions. So we are left to wonder: what is “the judicial Power” in “Equity”? And what would application of the Court’s historical approach to Article III mean for the federal courts’ ability to grant equitable remedies?This Article begins to answer those questions. It argues that a historical interpretation of Article III equity could have profound, though perhaps unexpected, implications for both the powers of and limits on federal courts. In terms of powers, this Article argues that Article III directly vests the federal courts with inherent authority to grant equitable relief. Article III also limits that power, by incorporating the system of remedies being administered by the English Court of Chancery in 1789. These conclusions provide a strong theoretical basis for federal equitable remedies that—like Ex parte Young injunctions—have close analogues in traditional Chancery practice, even though they are not statutorily authorized. On the other hand, they give reason to doubt the constitutionality of some truly novel, non-statutory equitable remedies like nationwide injunctions
