For 2022, the Chief Justice leans into an alternative view of judicial independence. Will it be enough to keep Congress at bay?
Chief Justice Roberts’s 2021 Year-End Report on the Federal Judiciary, dropped (as always) on New Years Eve, struck a more substantive and somewhat edgier tone than in years past. The Chief Justice identified three particular areas of focus for the Judicial Conference of the United States in the coming year: addressing financial disclosure and recusal obligations for federal judges, monitoring new mechanisms for reporting and stopping workplace harrassment, and preventing undue forum shopping in patent cases.
All three of these issues have been the subject of regular, and sometimes intense, Congressional scrutiny in recent years. But the Chief Justice’s report largely rejects the prospect of legislative fixes. Rather, consistent with the federal courts’ approach to the workplace harrassment scandal when it first broke in 2017, Roberts assures his readers that the Judicial Conference is willing and able to handle each of these issues internally.
It’s not to see why the Chief Justice would go this route. As this blog has routinely described, the federal courts (like all courts, and indeed all organizations) operate under constant pressure from their external environments. Neoinstitutional theory identifies three types of pressure: coercive (the need to comply with legislation and other government mandates), mimetic (the need to be in line with similar institutions in order to maintain legitimacy), and normative (the need to adhere to social and professional norms). The federal courts face all three types of pressure, but are particularly susceptible to coercive and normative pressures. If the federal judiciary is not seen as ethical and apolitical, it will face Congressional action and lose legitimacy with the bar, the media, and the public.
There is no question that the pressure has been turned up in recent weeks. The Wall Street Journal‘s expose on federal judges who failed to recuse from cases in which they held a financial stake was a significant blow to the judiciary, and has invited Congressional hearings. Some in Congress have used the scandal as an opportunity to resurrect additional transparency proposals, including courtroom cameras and free PACER access. And, of course, the progressive effort to pack the Supreme Court looms in the background, along with the ongoing politicization of judicial confirmation hearings and the Supreme Court’s forthcoming decisions on abortion and gun rights. It is fair to say that the federal courts are currently facing more external pressure and scrutiny than at any time since the 1960s.
Given this environment, the 100th anniversary of the creation of the Judicial Conference was a thematic godsend. In 1922, after extensive lobbying by newly appointed Chief Justice William Howard Taft, Congress authorized the creation of the Conference of Senior Judges, which would eventually become the Judicial Conference of the United States. The Judicial Conference is the executive backbone of the judicial branch, overseeing 25 different committees that address every aspect of court system administration. Piggybacking on this fortuitous milestone, Roberts points to the Judicial Conference as evidence that the courts are fully capable of handling their own affairs internally and without Congressional oversight. Indeed, for Roberts the issues discussed above are “good example[s] of [matters] that self-governing bodies of judges from the front lines are in the best position to study and solve.” In other words, Congress, back off.
Regular readers of this blog know how much I admire Chief Justice Taft, and Chief Justice Roberts is correct to note that Taft recognized the court’s need for institutional independence. As Roberts explains–in a line that could have been lifted from Taft himself–“The Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government.” But the parallel to Taft and 1922 is imperfect. Taft’s pitch for a Conference of Senior Judges emphasized the need for “executive principle” in the judiciary–a judiciary that was decentralized, overwhelmed with cases, and largely administered by the Justice Department. The Conference of Senior Judges was seen as a mechanism for the federal courts to take responsibility for their affairs at a time when no one within the judiciary had the interest or the capacity to do so.
The circumstances today are quite different, as the federal judiciary has ample capacity to govern itself. After authorizing the Conference of Senior Judges in 1922, Congress passed the Rules Enabling Act in 1934, authorized the creation of the Administrative Office of the United States Courts in 1939, signed off on a major expansion of the Judicial Conference in 1957, and agreed to the creation of the Federal Judicial Center in 1969. Today’s federal courts do most of their own hiring, budgeting, and administration.
Indeed, the coming crisis for the federal courts is not the lack of an institutionally independent infrastructure, but too much of one. As George Friedman has persuasively explained in the recent book, The Storm Before the Calm, the United States is entering into a new historical cycle in which the entire federal government will have to redefine its relationship with itself and the public. Briefly stated, Friedman’s thesis is that the federal government today has assumed an oversight role that is too massive and undefined to keep working. It is too big for ordinary people to navigate, and not powerful and capable enough to handle all the responsibilities it has assumed. The recent public pushback against government “experts” represents one early stage of this transition, which will likely take until the end of the decade and (Friedman suggests) will have more than its share of painful moments.
The transition will not leave any part of the federal government unscathed, not even the courts. People have reason to feel that their courts are too sprawling, powerful, and inaccessible. An increasing number of people simply cannot afford to litigate in federal court. The recent growth of nationwide injunctions raises real concerns about the ability of a single judge to influence major social policies. And a Judicial Conference which has to supervise twenty-five committees is necessarily spending less time and attention on adjudication and more on tending to affairs of its own creation.
Which brings us back to this year. John Roberts has forged his own style as Chief Justice, and he will have to navigate the shoals of the 2020s as deftly as Taft did in the 1920s. Roberts is a very smart man and a good executive in his own right; he surely knows that his plea to Congress is at best an opening salvo, and that the legislative branch will not forfeit interest in the judiciary simply because he assures them that everything is well under control. Indeed, I would venture that Roberts expects Congress to enact legislation on at least one of these issues–most likely the patent venue issue which would require a legislative fix anyway.
But even if Congress were to pass legislation on all three issues, it would not be a major strategic or institutional loss for the courts. This is because the real plunder is found in issues that the Chief Justice deliberately avoided mentioning in his report: courtroom cameras, a Code of Conduct for the Supreme Court, and court packing. For Roberts, each of these issues has been an absolute non-starter, and legislation to effectuate any one of them would be a serious blow to his view of the court system’s institutional autonomy. The Year-End Report, then, can be seen as a buffer of sorts, trying to create a showdown with Congress on issues that the courts can afford to lose on (if necessary) in order to keep the most sensitive issues well away from the legislature’s coercive pressures.
Time will tell whether the buffer will work. Perhaps Congress will have its attention diverted by the midterm elections, its economic agenda, or some sort of external shock. Perhaps it will find some of these issues to be politically popular and sink its teeth into them. Expect the courts to bob and weave in response, creating internal Task Forces on issues where the heat is rising and dispatching district judges to testify about judicial independence at Congressional hearings. Expect, too, some back-channel conversations between court representatives and their supporters in Congress. And in any event, hold on tight for a boisterous 2022.
The Interdependent Third Branch 