Leib and Brudney on legislative underwriting of judicial decisions

Over at Prawfsblawg, Ethan Leib has called attention to his new article (coauthored with James Brudney) on legislative underwrites: As the first part of the abstract explains:

This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch dialogue when they disagree with judicial rulings and doctrine; they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites that reflect more collaborative dimensions of the interbranch dialogue. This article begins to fill that void, and in so doing it frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.

This is a very interesting piece, and I encourage you to read the whole thing.  Lieb and Brudney identify an important area of communication and cooperation between the legislative and judicial branches.  Interbranch communication as a general matter is understudied, and (as the authors note) when it is examined, it it usually in the context of collisions between the branches.

I do wish Leib and Brudney had given more substantial credit (beyond a brief mention) to a little-known but important “statutory housekeeping” program initiated nearly thirty years ago by Robert Katzmann when he was still heading the Governance Institute (an arm of the Brookings Institution). Through that program, the federal appellate courts transmitted to Congress selected judicial opinions identifying problems in the text of a statute — for example, statutory provisions containing ambiguous language, or statutes whose text required the court to fill a gap to determine their appropriate scope. The transmissions were purely informational: the courts did not comment on the enclosed opinions other than to say they might be of interest, and Congress was under no obligation to make any modifications to the statute.  A 2007 review of the program concluded that Congress was making sufficient use of the opinions to justify the program’s continuation.

The program itself was the product of close collaboration between the federal courts, key members of Congress, the administrative staffs of both the judicial and legislative branches, and the Governance Institute. As importantly, it set the stage for open communications between the Congress and the judiciary that was reasonably benign and suspicion-free.  Given the judiciary’s reluctance to engage Congress directly on most matters unless expressly invited to do so, the housekeeping protocols allowed courts to flag important statutory glitches for legislators without concern that they would be viewed as overstepping their bounds.  It was, in a sense, the equivalent of pointing out that someone’s shoe is untied — a small gesture, typically meant to gently assist, but which could be viewed as suspicious or even mocking if a relationship is strained or unfamiliar.

The legislative underwriting that Leib and Brudney identify is broader in scope and much more ambitious than mere “housekeeping” measures.  Among other things, they imagine transmissions that travel not just from the courts to Congress, but back the other way.  This is fair enough, but the eventual success of any more expansive underwriting program will owe a significant debt to the groundwork laid by the “statutory housekeeping” program. By exchanging information and communications frequently when the stakes are small, both entities have begun to build the trust to communicate and collaborate when the stakes are larger.


Updates on cameras in the courtroom

This has been a busy week for policies governing the use of courtroom cameras.

  • Senators Charles Grassley (R-IA) and Dick Durbin (D-IN) introduced S.643, which I have seen alternately referred to as the Cameras in the Courtroom Act of 2017 or the Sunshine in the Courtroom Act of 2017.  The Act would require open proceedings in the United States Supreme Court to be televised.  Similar legislation has already been introduced in the House. Variations of this Act have been introduced for many years, without success.
  • Several media outlets declared this week “Sunshine Week,” leading to editorials calling for allowing cameras into both state and federal courtrooms.
  • On its own volition, the Third Circuit Court of Appeals has started posting video of its oral arguments online. The always terrific Howard Bashman has the details in a new column for the Legal Intelligencer. The Third Circuit’s press release, which provides more context for its decision to make videos available,  is here.

The numbers supporting the push for more federal judges

On Tuesday, the Judicial Conference of the United States agreed to recommend to Congress to create 57 new federal judgeships — 5 in the circuit courts and 52 in the district courts.  The Conference further recommended that eight temporary or part-time district judgeships be converted to permanent status.

In its press release, the Conference emphasized the growth of the federal courts’ overall docket since 1990, when the last comprehensive judgeship bill was enacted.  In that quarter-century plus, district court filings have grown 38 percent (with nearly equal growth in criminal and civil filings), and appellate courts have grown by 40 percent.

But the recommendations are more narrowly tailored than a simply 40 percent boost in judges nationwide.  Only one of the thirteen appellate courts (the Ninth) is a suggested recipient of more judges, and only 27 of the 94 district courts are deemed to need new judgeships.

An examination of some of these targeted districts, and why it matters, after the jump.

Continue reading “The numbers supporting the push for more federal judges”

AO releases 2016 Annual Report and Statistics

The Administrative Office of the U.S. Courts has published its 2016 Annual Report and statistical tables. Although many of the most interesting tables are not publicly released, those that are released provide a wealth of information on federal court dockets and operations. I will likely have more to say about the 2016 statistics in the coming days, once I have a chance to go through the tables a bit.

Neil Gorsuch and judicial administration

The BNA reports here that if he is confirmed to the Supreme Court, Judge Neil Gorsuch would lose his position as Chair of the federal Advisory Committee on Appellate Rules, a role he has occupied since last October.  This is only a minor administrative inconvenience for the federal court system; Chief Justice Roberts no doubt has already considered how to replace Judge Gorsuch on that committee. But the article does provide an important reminder about the considerable experience Judge Gorsuch brings to judicial administration, and lets us consider why such experience matters. Continue reading “Neil Gorsuch and judicial administration”

Could the Ninth Circuit rule on its own split?

U.S. Senator Jeff Flake (R-AZ) has introduced a bill (one of four currently in Congress) to split the Ninth Circuit Court of Appeals into two circuit courts.  Apparently in response to reports that Ninth Circuit judges opposed the bill, Senator Flake asked the Ninth Circuit Executive for clarification on the court’s ability to rule fairly if the legislation were adopted and subsequently challenged. This week,  Cathy Catterson, the Circuit Executive of the Ninth Circuit Court of Appeals, responded with an unqualified yes.

Given that bills to split the Ninth Circuit have been introduced many times since 1941, and have never gained serious traction, it is hard to see this as anything more than political posturing.  But the regular recurrence of the proposal again illustrates the deep interdependence of the federal courts.  Indeed, circuit reorganization is literally an existential issue, affecting active judgeships, resources, case assignments, precedent, and internal court dynamics.  The judges naturally have an interest in the outcome, but they lack any direct say in it.

So let’s play out the hypothetical.  Could the Ninth Circuit judges rule on the reorganization of their own court?  And what would that look like? Continue reading “Could the Ninth Circuit rule on its own split?”