II. Relations Between the Congress and the Judiciary

Vol. 36, Number 1—January 2004

II. Relations Between the Congress and the Judiciary

During the last year, it seems that the traditional interchange between the Congress and the Judiciary broke down when Congress enacted what is known as the PROTECT Act, making some rather dramatic changes to the laws governing the federal sentencing process.

It is well settled that the definition of what acts shall be criminal is a legislative function, as is the prescription of what sentence or range of sentences shall be imposed on those found guilty of such acts. Congress indicated rather strongly, by the PROTECT Act, that it believes there have been too many downward departures from the Sentencing Guidelines. It has taken steps to reduce that number. Such a decision is for Congress, as was the enactment of the Sentencing Reform Act of 1984 nearly 20 years ago that laid the basis for the current regime of guideline sentencing.

But the PROTECT Act was enacted without any consideration of the views of the Judiciary. It is, of course, the prerogative of Congress to determine what to consider in enacting a statute. But it surely improves the legislative process at least to ask the Judiciary its views on such a significant piece of legislation. It is Congress's job to legislate; but each branch of our government has a unique perspective, and taking into account these diverse perspectives improves the process. That was the point of the Judicial Conference's resolution of last September concerning the PROTECT Act.

Among the provisions in the Act that many find troubling is that requiring the collection of downward departure information on an individual judge-by-judge basis. Congress may, of course, change the rules under which judges operate. And there can be no doubt that collecting information about how the Sentencing Guidelines, including downward departures, are applied in practice could aid Congress in making decisions about whether to legislate on these issues. Collecting downward departure information on a judge-by-judge basis, however, seems to me somewhat troubling. For side-by-side with the broad authority of Congress to legislate and gather information in this area is the principle that federal judges are not to be removed from office for their judicial acts. The subject matter of the questions Congress may pose about judges' decisions, and whether they target the judicial decisions of individual federal judges, could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties. In any event, the Justice Department, through the United States Attorneys' Offices, can obtain judge-specific information on an informal basis. And the Department can choose to appeal downward departures that it feels are unwarranted.

Obtaining the views of the Judiciary before the PROTECT Act was enacted would have given all members of Congress the benefit of a perspective they may not have been aware of on this aspect of the legislation and other aspects that deal with a delicate process that judges understand very well. Congress may well have enacted these provisions of the PROTECT Act in any event. But at least judges would have known that the process included a meaningful opportunity to have their views heard.

In 1939, on the 150th anniversary of the inauguration of our government, the Congress invited Chief Justice Charles Evans Hughes to address a joint session of Congress. He paid tribute to the legislators before him and to those who had preceded them.

In thus providing the judicial establishment, and in equipping and sustaining it, you have made possible the effective functioning of the department of government which is designed to safeguard with judicial impartiality and independence the interests of liberty. But in the great enterprise of making democracy workable we are all partners. One member of our body politic cannot say to another—"I have no need of thee." We work in successful cooperation by being true, each department to its own function, and all to the spirit which pervades our institutions. . . .1

The history of co-operation between Congress and the Judiciary in drafting such laws bears out Hughes' observations. In 1891, Congress enacted the Evarts Act, which established the United States Circuit Courts of Appeals. The circumstances in the federal courts before passage of the Evarts Act would seem familiar today. The nation's growth after the Civil War, along with the expansion of federal jurisdiction, strained the appellate capacity of the system, while the trial courts struggled to deal with serious delays.

Reform was necessary, but "[s]tubborn political convictions and strong interests . . . made the process of accommodation long and precarious."2 By the end of the 1880's, Chief Justice Morrison Waite, Justice John Harlan, and Justice Stephen Field all spoke out publicly urging Congress to take action to relieve the Supreme Court of its crushing burden, and, more broadly, to make federal courts accessible to litigants. In 1890, Congress began to take serious steps to remedy the crisis.

That year, the Senate Judiciary Committee, chaired by William Evarts of New York, reported out of committee a bill that created intermediate federal appellate courts, which Supreme Court Justices favored, while retaining as much of the traditional federal court structure as possible, as favored by many of the lawyers in and represented by Congress. After seven months of wrangling over the final form of the legislation, the Evarts bill was signed by the President in March 1891—establishing a new tier of appellate courts and making the district courts full-fledged trial courts. By working together with the Judiciary, Congress enacted a decisive remedy. During the Supreme Court's 1890 Term, 623 new cases had been docketed. During its 1892 Term, only 275 new cases were filed.

Throughout the last century, Congress took many steps to alter the federal judicial system, some at the urging of federal judges, some not, but almost always in consultation. During the 1920's, when the Supreme Court was still housed in the Capitol Building, Chief Justice Taft and other members of the Court were visible to many legislators—too visible in the minds of some—promoting certain ideas and resisting others.

Congress agreed with Taft to create the Conference of Senior Circuit Judges (now the Judicial Conference of the United States). It passed the Certiorari Act of 1925, sometimes called "the Judges' Bill" because members of the Court had such a strong hand in crafting it. That statute addressed the very serious caseload congestion in the Court by giving the Court more discretion as to which cases to hear. Some members of Congress were doubtful—why shouldn't every litigant have a right to get a decision on his case from the Supreme Court? Chief Justice Taft responded that in each case, there had already been one trial and one appeal. "Two courts are enough for justice," he said. To obtain still a third hearing in the Supreme Court, there should be some question involved more important than just who wins this lawsuit.

The Certiorari Act greatly reduced the number of decisions in either state courts of last resort or federal appeals courts that parties could appeal to the Supreme Court as a matter of right. It greatly expanded the cases in which parties could seek review only by filing a petition for a writ of certiorari with the Court, leaving it for the Court to decide whether or not to grant the petition and hear the case. This authority made the single biggest difference in the Supreme Court's docket. No longer did the Court have to hear almost every case an unhappy litigant presented to it. Instead, for the most part, the Court could select only those relatively few cases involving issues important enough to require a decision from the Supreme Court.

Congress, however, hardly gave Chief Justice Taft all he sought. It rejected his proposal for "judges-at-large," whom the Chief Justice could assign to districts with serious backlogs, favoring instead what is now our system of temporary assignments. Taft's labeling his idea a "flying squadron of judges" probably did little to convince members of Congress of its merits. Similarly, Congress resisted his and others' efforts to establish uniform rules of procedure in federal courts, although that basic idea was adopted in the next decade.

Also, in the 1930's, interplay between the three branches brought about the basics of our current system of federal court governance. President Roosevelt's original idea of replacing the Justice Department as federal court administrator with a "proctor" appointed by the Supreme Court was transformed by legislative-judicial consultation into the statute creating the Administrative Office of the U.S. Courts, which functions under the direction and supervision of the Judicial Conference. Similarly, in the 1960's, Congress, with the advice of the Judicial Conference and Chief Justice Warren, created the Federal Judicial Center to provide the Judiciary with independent research and education programs to improve judicial administration. The FJC provides both initial training and a sort of continuing education for judges and court staff. It publishes manuals, conducts research and, along with the Administrative Office, has made a real difference in improving judicial administration.

The legislation I have described above, and many other statutes—and proposed statutes—over the years, have not necessarily been the product solely of harmonious judicial-legislative cooperation. Members of Congress and judges bring different perspectives to the same problems, and those different perspectives can create different conclusions and disagreements over both ends and means. That is inherent in our system of government.

Congress, by design, is accountable to the people and, in a Republic, has a responsibility to hold other branches accountable as well. Members of Congress, and their constituents, may see the administration of justice and operation of the courts from different perspectives than do judges, and judges are bound to respect those perspectives. Judges, though, have a perspective on the administration of justice that is not necessarily available to members of Congress and the people they represent. Judges have, again by Constitutional design, an institutional commitment to the independent administration of justice and are able to see the consequences of judicial reform proposals that legislative sponsors may not be in a position to see. Consultation with the Judiciary will improve both the process and the product.

1 Cong. Record, House, March 4, 1939 at 2250.

2 Felix Frankfurter and James M. Landis, The Business of the Supreme Court, The MacMillan Company, 1928, p. 85.

NEXT—III. The Year in Review