FEDERAL JUDICIAL ROLE

Article III of the Constitution creates the federal judicial system, defines its boundaries, and describes the characteristics of its judges. The Constitution specifically vests judicial power in "one supreme court" and authorizes Congress to create lower federal courts. Article III defines "federal judicial power" in reference either to subject matter (extending to "all Cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made" and to admiralty) or to the parties in the case (e.g., cases involving ambassadors, states, or citizens of different states).

Article III also describes attributes of federal judges "of both the supreme and inferior Courts." Such judges hold their offices during "good Behavior" and their salaries are protected against diminution. The good behavior clause is now understood as providing these judges with life tenure, subject to impeachment and removal by the U.S. senate. The compensation clause has been a source of debate about whether congressional withholding of benefits, such as cost-of-living increases and forms of insurance, constitute infringements of constitutional protections.

Although the Constitution is open-ended about the existence of lower federal courts, Congress has many times since 1789 exercised its powers to create a lower federal judiciary and to reorganize the structure of and mandates to that judiciary. The federal judiciary was initially comprised only of district judges and Supreme Court Justices (who upon occasion joined together to create circuit courts). By early in the twentieth century, the federal judiciary had become a three-tiered structure, consisting of trial judges (district judges), intermediate appellate judges (circuit judges), and nine Supreme Court Justices. As of the 1920s, some 120 men held those positions; in several instances, a single federal district judge served the entire state.

Since the civil war, Congress has steadily increased the role of the federal courts by exercising its constitutional powers to enact federal statutory rights and to vest enforcement powers in the government and/or private actors, authorized to file claims in federal courts. federal jurisdiction is typically concurrent with state courts rather than exclusive. The federal court docket includes cases involving a wide array of subject matters, both civil and criminal, "arising under" federal law and including securities regulation, environmental laws, consumer protection, civil rights, and pension and welfare benefits.

Given congressional decisions to expand the role of federal law, the federal judiciary has also needed to grow. Although one reading of the Constitution would have permitted such growth to occur only by the creation of more life-tenured, salary-guaranteed judges (what I term "constitutional judges" because, pursuant to Article III, they are nominated by the President, confirmed by the Senate and enjoy the structural protections detailed in the Constitution), neither the Congress nor the federal courts have insisted on that understanding of Article III.

Rather, beginning in the 1930s and blossoming since the 1960s, two other sets of "federal judges" have gained federal adjudicatory power. One group—magistrate and bankruptcy judges—are specified by statutes and work within Article III; these judges are selected by the constitutional judges and serve for renewable terms. A second set of judges—administrative law judges bearing a variety of titles—are also creatures of statute but are typically annexed to the agencies for which they decide cases, and their employment is governed by civil service provisions. Note that both sets of these statutory judges serve without constitutional protection for either their terms of office or their salaries.

In short, the three-tiered pyramid of the federal courts from the early part of the twentieth century has been replaced by a four-tiered system, with some 1,600–2,000 constitutional judges holding positions on the Supreme, intermediate appellate, and district courts, joined within Article III courts by another 750 statutory judges (magistrate and bankruptcy judges) who also work at the trial level, below or akin to the district court. The four tiers are supported by a staff of some 30,000, working in more than 500 court buildings. That structure is, in turn, augmented by two major groups of add-ons. First, some 2,000 administrative judges staff "courts" that are located in agencies. Second, arbitrators, mediators, and "neutrals" have been provided more recently under federal law, as both statutory and constitutional judges promote the use of alternative dispute resolution (ADR) in federal courts and in administrative agencies.

Reflective of the advent of ADR, the modes of judging have also shifted over the twentieth century. In 1938, the first uniform federal rules of civil procedure were promulgated for all federal trial courts. Those rules specified a pretrial process that has since become the focus of contemporary litigation. Judges from the 1930s to the 1950s did not much use their powers under this discretionary pretrial rule. However, in the 1950s, when faced with what were then called "protracted cases" and what are now called "large-scale" or "complex" litigations, a group of judges within the federal judiciary began to advocate greater judicial control over attorneys. In the 1950s, the federal judiciary began systematic training—judicial education—to encourage judges to become "managerial judges." Judges were initially reticent to promote settlement of cases, but over the decades, leaders of the federal judiciary became increasingly insistent that the judicial role should encompass settlement efforts. The shift of role (from adjudicator to manager to settler) is reflected in a series of revisions during the 1980s and 1990s of civil procedure rules and in the enactment by Congress of statutes calling for additional efforts at management and for alternative dispute resolution in federal courts.

Just as the federal courts and Congress have worked in concert to enlarge the number of federal judges and to alter their daily practices, so have the federal courts and Congress reshaped the doctrinal requirements of Article III. The creation and institutionalization of a diverse set of federal judges result from congressional enactment of legislation for such judges, and also from federal judicial interpretation of Article III to permit the delegation of a range of judicial tasks to statutory judges who have neither life tenure nor salary protections. Early in the twentieth century, life-tenured judges were hesitant to permit much delegation, insisting, for example, on their own authority to review, de novo, certain kinds of facts as part of the "essential attributes of judicial power." More recently, however, life-tenured judges have upheld congressional statutes providing for trials (with parties' consent) by magistrate judges; conveying substantial powers to bankruptcy judges; authorizing administrative judges to hear related state claims in certain instances; and even, in narrow circumstances, permitting final decisionmaking power by arbitrators. In other words, creative readings of Article III have enabled the manufacture of federal judges outside its parameters. The charter for such judges is not unlimited; the Supreme Court insists on vaguely described constraints and some commentators argue that "Article III values" require access to life-tenured judges at least upon appeal of certain cases. But the decisions in the second half of the twentieth century recognize an ever-growing role for statutory federal judges.

In addition to the elaboration of tiers of judging, alteration of the modes of judging, and reinterpretation of Article III during the twentieth century, the federal judiciary also developed a corporate identity. In the early 1920s, Congress authorized a Judicial Conference, composed of senior appellate judges, to meet to consider systemic issues. In 1939, at the behest of the judiciary, Congress created the Administrative Office of the United States Courts to enable the judiciary to take on the staff work—budgeting, supplies, reports to Congress on the docket—that previously had been performed by the executive branch. In the early years of these institutional structures, federal judges saw their judicial role as limiting their dealings with Congress. Invoking constitutional obligations of adjudication, the federal judiciary as an institution generally declined to comment on legislation other than bills seeking additional judgeships or governing court procedure. In later years, the Judicial Conference began to take an active role in attempting to shape national policy about federal jurisdiction and to promote its vision of the federal courts' mandate and the work appropriate for life-tenured judges. In the 1970s, the federal judiciary started issuing "impact statements" arguing the likely effects of proposed legislation. In the 1990s, the Judicial Conference put forth its own Long Range Plan, making more than ninety recommendations to Congress. That plan's central premise is that federal courts should have limited jurisdiction; thus, Congress should adopt a presumption against creating new civil or criminal federal causes of action.

Because Article III's limitations of federal judicial power are tied to congressional powers to create federal law, the federal judicial role is closely linked to conceptions of congressional powers. During the last decade of the twentieth century, the Supreme Court revisited rulings made in the context of reviewing new deal and civil rights legislation. In a series of cases, the Court held that, when conferring jurisdiction on federal courts, Congress had exceeded its powers under either the commerce clause, the fourteenth amendment, or general federalism principles, or that Congress had failed to heed the limitations imposed by the eleventh amendment'ssovereign immunity provisions. During the same decade, Congress also imposed new limitations on federal jurisdiction. These laws curtailed access for prisoners seeking review of their sentences through habeas corpus proceedings, and for immigrants contesting decisions by the U.S. Immigration and Naturalization Service. Congress has also limited the remedial authority of courts to enforce consent decrees mandating improved conditions in prisons. Litigants challenging the constitutionality of such restrictions have generally lost; the federal courts have thus far upheld most of these provisions. Federal judicial institutional advocacy for restrictions on federal jurisdiction are thus echoed in federal adjudication imposing or upholding such limits.

In sum, when one considers the federal judicial role, recurrent themes emerge, some that span this country's constitutional history and others that have arisen during the twentieth century. Debated, at the constitutional level, are the allocation of labor among adjudicatory bodies (state, federal, and tribal courts and administrative agencies) and among tiers of federal judges; the degree of deference owed to other court systems or state and local government officials (often referred to as " comity " and sometimes as "federalism"), to Congress and the executive (sometimes termed " separation of powers "), to state executive officials, and to lower echelon judges within the system; and the respective roles of Congress and the courts in determining the permissible boundaries of federal judicial and legislative power. The issues that have come to prominence during the twentieth century include the boundaries, if any, of the federal judicial role as an administrative organization (using its corporate voice to advance a programmatic agenda developed by the Judicial Conference) and the question of how to deploy constitutional judges (as contrasted with statutory federal judges).

In light of such developments, Article III's description of federal judicial power requires reconsideration. Conventional constitutional discourse assumes that Article III is the paradigm of judicial independence and represents the pinnacle of political safeguards. Judicial independence on the federal side is often invoked in contrast to the perceived thinner protections afforded many state judges, serving for terms and by election.

But these distinctions recede when one considers the fit between the constitutional terms of federal judicial power and the current structures and deployment of that power. Article III—as read by judges chartered under its aegis—provides nothing for hundreds of federal judges existing outside its purview and little by way of institutional protection to the judiciary as an organization. Although judicial–congressional interactions have often resulted in agreements about how to expand resources, the growing reliance on statutory judges increases judicial dependence on Congress and leaves a large group of federal judges with authority to render an array of judgments but lacking attributes of independence associated with federal adjudication. On the other hand, given the willingness of life-tenured judges on the lower courts to delegate portions of their adjudicatory tasks elsewhere, and to assume roles as multipurpose dispute resolvers pressing for settlements that reduce their roles as adjudicators, Article III's structural protections insulate actors decreasingly committed to formal adjudicatory roles that enable public scrutiny of their exercise of the power of judgment.

The growing distance between Article III's description and the practices of federal adjudicators raises normative questions. Article III stands for the concept of a distinct judicial branch of government and for the ability of individual judges to render judgment independent from fear of economic retribution. Should that constitutional commitment be elaborated in the context of statutory federal judges, so that the transfer of judicial power to them is conditioned on the creation of structural protections akin to those afforded constitutional judges? If not, by what terms can one assess the role allocation between constitutional and statutory judges? The Constitution, as currently interpreted, offers little guidance on either issue. Understandings of the due process clause provide a conception that all judges must be impartial, but standards for impartiality of agency judges are not exacting. And, while invoking "Article III values," the Supreme Court has approved most delegations to nonconstitutional judges, and the federal judiciary as an agenda setter has pressed for expansion of those judges' roles. If adjudicatory processes are to retain political and legal significance in the coming decades, the jurisprudence of Article III, intertwined with understandings of constitutional mandates for due process, will require significant development.

Judith Resnik
(2000)

Bibliography

Fallon, Richard H.; Meltzer, Daniel J.; and Shapiro, David L. 1996 Hart and Wechsler's The Federal Courts and the Federal System, 4th ed. Westbury, N.Y.: Foundation Press.

Jackson, Vicki C. 1998 Federalism and the Uses and Limits of Law. Harvard Law Review 111:2180–2259.

Judicial Conference of the United States 1995 Long Range Plan for the Federal Courts. Washington, D.C.: Committee on Long Range Planning.

Monaghan, Henry P. Constitutional Fact Review. Columbia Law Review 85:229–276.

Resnik, Judith 1982 Managerial Judges. Harvard Law Review 96:374–448.

Symposium 1998 Congress and the Courts: Jurisdiction and Remedies. Georgetown Law Journal 86:2445–2636.