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The Chief Justice's Annual Report -- The "topsider's" empirical view of the federal judiciary

By Marion Edwyn Harrison
web posted February 21, 2005

When the Supreme Court of the United States or one of the 13 United States Courts of Appeals renders a decision the holding of which might arouse public interest as controversial the media accords it considerable play.  When the possibility, real or imagined, of a Supreme Court vacancy occurs -- and especially currently, there having been none for more than a decade -- newsmen, interest groups and others with the time and will to speculate do just that.  That they do not know who might retire or when, or whom the President might nominate or when, hardly inhibits the speculation.

Somewhere between far less, and no, attention is focused upon the Annual Report on the Federal Judiciary, written by the Chief Justice of the United States -- for the past 19 years the erudite, scholarly, objective and, as the recent 55^th Presidential Inauguration dramatically demonstrated, courageous, William H. Rehnquist. 

Not surprisingly, the Administrative Office of the United States Courts issues the Year-End Report annually, prints it as a Special Issue of the Newsletter of the Federal Courts -- this year Volume 37, # 1.  The Report, of course, doesn't  recount controversial decisions or refer to the unprecedented and outrageous filibusters against Bush judicial nominees.  It reports facts about the Federal Judiciary and, this year, a fascinating history lesson about judicial independence.

Chief Justice Rehnquist is remarkably -- indeed, historically uniquely -- suited to write such a report.  First in his class at Stanford University Law School, he likewise has a Stanford college degree, a Stanford master's degree and a Harvard master's degree; private-practice experience; service as Assistant Attorney General of the United States, Office of Legal Counsel (the top scholar's job at the Justice Department, also once held by Justice Antonin Scalia); and World War II combat Army service.  In addition to 34 years of Supreme Court opinions, this "Chief" (as Federal Judges, attorneys and other folk attuned to the Supreme Court call whoever is Chief Justice) also is the author of five history books, acclaimed for their readability and style as for their analyses of events, conciseness and historical authority.  The Supreme Court -- How It Was, How It Is (Morrow, 1987); Grand Inquest: The Historical Impeachments Of Justice Samuel Chase And President Andrew Johnson (Morrow, 1991); All The Laws But One -- Civil Liberties In Wartime (Knopf, 1998); The Supreme Court -- New Edition (Knopf, 2003); Centennial Crisis -- The Disputed Election Of 1876 (Knopf, 2004).

The full Report is worth the read by anybody objectively interested in the state of the Federal Judiciary.  Typical of the Chief Justice's writing, as of his speaking, it avoids the obtuse and barely comprehensible jargon some of my fellow lawyers disgorge.

Here follow the first four sections of the 2004 Year-End Report -- namely, Overview, The Judiciary's Budget Crisis, Criticism of Judges Based on Judicial Acts, The Year in Review.  For brevity words here and there are omitted, omissions duly noted.  Sections on The Administrative Office of the United States Courts, The Federal Judicial Center and The United States Sentencing Commission, probably of less general interest, are omitted.  The Conclusion is included.  Six extensive footnotes, recounting exponential increases in various types of cases, also are omitted.  As to workload, suffice it to say here that the Federal Judiciary is dangerously overworked.

The 2004 Year-End Report is especially significant inasmuch as legislation appears to be moving through Congress to place in the Federal Judiciary much major tort litigation now in State judiciaries.  (This legislation arises because some State judiciaries tolerate -- aye, encourage -- such wild, exorbitant and outrageous jury verdicts in tort cases which, among others, adversely affect interstate commerce.)

2004 YEAR-END REPORT ON THE FEDERAL JUDICIARY

Overview

This Year-End Report on the Federal Judiciary is my 19^th.

In last year's report, I focused on the need to repair the relationship between the Judicial Branch and the Legislative…There is still much work to do, but during the year many judges and members of Congress have worked together to begin to improve the relationship, and I thank all of them for their efforts.  In part because of criticism by members of Congress…I appointed a committee, chaired by Justice Stephen Breyer, to evaluate and report on the way the Judicial Conduct and Disability Act of 1980 is being implemented.  At the invitation of [two Representatives], I met with the bipartisan Congressional Caucus on the Judicial Branch.  Sitting down face-to-face helps to establish better working relationships.  I hope these and similar efforts continue…

…I will address the funding crisis currently affecting the federal judiciary [and] the recently mounting criticism of judges for engaging in what is often referred to as "judicial activism."

The Judiciary's Budget Crisis

The Fiscal Year 2005 budget process has been very difficult.  The Judiciary's appropriation for the fiscal year that began on October 1 [2004] was not signed into law until December 8.  The recurring delays in enacting annual appropriations bills have severely disrupted its operations.  Nine out of the last 10 fiscal years began with no appropriations bills for the Judiciary.

The continuing uncertainties and delays in the funding process, along with the rising costs that outpace any increased funding from Congress, have required many courts to impose hiring freezes, furloughs, and reductions in force.  In some cases they have had to cut back services…to the public.  During Fiscal Year 2004 this resulted in a 6[%] reduction -- 1,350 persons -- in employees other than judges and the staff…in their chambers. …[P]robation and pretrial services [were] particularly hard hit.

In March I asked the Executive Committee of the Judicial Conference…to develop an integrated strategy for controlling costs… The Committee did a yeoman's job, producing a comprehensive cost-containing strategy…endorsed unanimously by the Judicial Conference… The strategy entails a moratorium on some court-house construction projects; improving workforce efficiency; a study of basic changes in the Judicial Branch's approach to compensation for non-judges; promoting more effective use of technology; a study of possible changes to reduce costs in defender services, court security, probation and pretrial services, and bankruptcy case processing, among others; and regular examination of court fees to reflect economic changes.

This effort has involved nearly all...the Judicial Conference and court staff throughout the country…[etc.]  I thank everyone who is participating…

Implementing this cost containment strategy will ameliorate but not end the Judiciary's funding crisis.  As the…workload continues to grow, the current budget constraints are bound to affect the ability of the federal courts efficiently and effectively to dispense justice.  One way in which Congress could immediately relieve the judicial budget would be to reassess the rent that the Judiciary is required to pay to the General Services Administration for courthouses…[which] account for no less than 20[%] of the Judiciary's budget.

Another issue…is the critical need for additional judgeships, especially in the courts of appeals.  In early 2003, the Judicial Conference requested nine permanent and two temporary court of appeals judgeships.  No new court of appeals judgeships have been established since 1990 and…the First, Second and Ninth Circuits…have not had any new judgeships for 20 years.  I urge…the 109^th Congress [to act].

Criticism of Judges Based on Judicial Acts

Criticism of judges has dramatically increased in recent years, exacerbating in some respects the strained relationship between the Congress and the federal Judiciary.  But criticism of judges and judicial decisions is as old as our republic, an outgrowth to some extent of the tensions built into our three-branch system… To a significant degree these tensions are healthy in maintaining a balance of power in our government.

By guaranteeing judges life tenure during good behavior, the Constitution tries to insulate judges from the public pressures that may affect elected officials.  The Constitution protects judicial independence not to benefit judges, but to promote the rule of law: judges are expected to administer the law fairly, without regard to public reaction.  Nevertheless, our government, in James Madison's words, ultimately derives "all powers directly or indirectly from the great body of the people."  Thus, public reaction to judicial decisions, if it is sustained and widespread, can be a factor in the electoral process and lead to the appointment of judges who might decide cases differently.

John Marshall…known as the Great Chief Justice, was roundly criticized for…decisions involving the authority of the national government -- decisions that are now recognized as essential building blocks of our nation.  Federal judges were severely criticized 50 years ago for their unpopular, some might say activist, decisions in the desegregation cases, but those actions are now an admired chapter… On the other hand, criticism of the Supreme Court's decision in the Dred Scott case,…rightly described as a "self-inflicted wound" from which it took the Court at least a generation to recover, proved correct.

Although arguments over the federal Judiciary have always been with us, criticism of judges, including charges of activism, have in the eyes of some taken a new turn in recent years.  I spoke last year of my concern, and that of many federal judges, about aspects of the PROTECT Act that require the collection of information on an individual, judge-by-judge basis.  At the same time, there have been suggestions to impeach federal judges who issue decisions regarded by some as out of the mainstream.  And there were several bills introduced…that would limit the jurisdiction of the federal courts to decide constitutional challenges to certain kinds of government action.

A natural consequence of life tenure should be the ability to benefit from informed criticism from legislators, the bar, academe, and the public.  When federal judges are criticized for judicial decisions and actions taken in the discharge of their judicial duties, however, it is well to remember two principles that have long governed the tenure of federal judges.

First, Congress' authority to impeach and remove judges should not extend to decisions from the bench.  That principle was established…in 1805, after a Congress dominated by Jeffersonian Republicans impeached…Justice Samuel Chase.  Chase was charged for actions he took in trials during the 1790s, sitting as a circuit justice, and later for a series of grand jury charges.  The grand jury charges, coming near…the Supreme Court's 1803 decision in Marbury v Madison that the federal courts have the power to declare an act of Congress unconstitutional, led the House to impeach Chase and send the matter to the Senate for trial.

Although there were 25 Jeffersonian Republicans and nine Federalists in the Senate, on each count, the Republicans failed to muster the two-thirds' vote necessary to convict.  Chase was no means a model judge, and his acquittal certainly was not an endorsement of his actions.  Rather, the Senate's failure to convict him represented a judgment that impeachment should not be used to remove a judge for conduct in the exercise of his judicial duties.  The political precedent set by Chase's acquittal has governed the use of impeachment to remove federal judges from that day to this:  a judge's judicial acts may not serve as a basis for impeachment.  Any other rule would destroy judicial independence -- instead of trying to apply the law fairly, regardless of public opinion, judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them.

Congress confirmed this underlying principle almost 25 years ago when it passed the Judicial Conduct and Disability Act authorizing anyone to file a complaint against a federal judge for misconduct or disability affecting the judge's ability to discharge his duties.  If the charges are substantiated, they can lead to various kinds of discipline short of removal from office.  Congress made clear, though, that the statute did not authorize complaints "directly relating to the merits of a decision or a procedural ruling."  The appellate process provides a remedy for challenges to such decisions or rulings.

If judges cannot be removed from office for judicial decisions, how can we be certain that the Judicial Branch is subject to the popular will?  The answer…may be found in President Franklin Roosevelt's clash with the Supreme Court of the 1930s.  The Court had invalidated legislation FDR thought was essential to restore…prosperity during the Great Depression.  Roosevelt, and an overwhelmingly Democratic Congress, faced a Court that had for 30 years been reading into our Constitution a doctrine of "freedom of contract"…hostile to social legislation, and had adopted a very limiting view of congressional authority under the commerce clause.

In FDR's view, the Court had become a roadblock to the progressive reforms needed in the nation, and he planned to use his immense political resources to bring the Court into step… In February 1937, Roosevelt proposed a plan to "reorganize" the Judicial Branch…the crux of his proposal was that the President would be empowered to appoint an additional six Justices…and thereby enlarge the Court…to a total of 15.  Roosevelt's true aim, of course, was to "pack" the Court all at once to produce a majority sympathetic to the New Deal.  Despite his huge majorities in both Houses of Congress, however, the bar, the press, and eventually public opinion began to rally against the proposal, and it was defeated.

President Roosevelt lost his battle in Congress, but he eventually won the war to change the judicial philosophy of the Supreme Court.  He won it the way our Constitution envisions… -- by the gradual process of changing the federal Judiciary through the appointment process.  Although Roosevelt appointed no Justices during his first term, in his second term he nominated and the Senate confirmed five, producing a Court…much more sympathetic to the New Deal.  During his entire tenure…FDR appointed seven Associate Justices and one Chief Justice.

In this way, our Constitution has struck a balance between judicial independence and accountability, giving individual judges secure tenure but making the federal Judiciary subject ultimately to the popular will because judges are appointed and confirmed by elected officials.  It is not a perfect system -- vacancies do not occur on regular schedules, and judges do not always decide cases the way their appointers might have anticipated.  But for over 200 years it has served our democracy well and ensured a commitment to the rule of law.

No doubt the federal Judiciary, including the Supreme Court, will continue to encounter challenges to its independence and authority because of dissatisfaction with particular decisions or the general direction of its jurisprudence.  Let us hope that the Supreme Court and all of our courts will continue to command sufficient public respect to enable them to survive basic attacks on the judicial independence that has made our system a model for much of the world.

The Year in Review

The Supreme Court of the United States

The total number of case filings in the Supreme Court decreased from 8,255 in the 2002 Term to 7,814 in the 2003 Term - a decrease of 5.3[%].  Filings in the Court's in forma pauperis docket decreased from 6,386 to 6,0002 - a 4.6[%] decline.  The Court's paid docket decreased by 147 cases, from 1,869 to 1,722 - a 7.9[%] decline.  During the 2003 Term, 91 cases were argued and 89 were disposed of in 73 signed opinions, compared to 84 cases argued and 79 disposed of in 71 signed opinions in the 2002 Term.  No cases from the 2003 Term were scheduled for reargument in the 2004 Term.  [Note:  A term begins in October; thus, the present term is the October 2004 Term.]

The Federal Courts' Caseload

Civil and appellate filings increased in Fiscal Year 2004.  Criminal filings were essentially static, and bankruptcy filings declined.  Civil filings rose by 11[%], filings of appeals grew by 3 [%], criminal filings grew less than 1 [%], and filings in the bankruptcy courts declined for the first time since 2000, falling 3 [%] to 1,618,987 in 2004.  The number of persons on probation and supervised release went up by 2[%] to an all-time high of 112,883, and there was a 3 [%] gain the number of defendants activated by the pretrial services system.  [As noted, the six footnotes are omitted.]

Conclusion

Because of the budget crisis, this was a particularly difficult year for judges and court staff throughout the country.  I want to thank them for their continued dedication.  We can all be proud of the job our courts perform in efficiently dispensing justice.

On a personal note, I also want to thank all of those who have sent their good wishes for my speedy recovery.

Finally, I offer my best wishes to President Bush and Vice President Cheney and to the members of the 109^th Congress, just as I extend my best wishes to those legislators who have concluded their service.  I extend to all my wish for a happy New Year.

Signed:  William H. Rehnquist

There we have it:  A neatly presented historical lesson, from the facile pen of the 16^th Chief Justice, who also is an historian; and statistics as to litigation and budget -- on balance considerably more litigation in the face of budget deficiencies.

An observation beyond the Year-End Report .  Alexis de Toqueville was a keen observer, maybe a prophet, when he noted in the 19^th Century the American propensity to litigate.  How amazed Toqueville would be could he see the reckless and seemingly boundless extent to which American tort juries find liability and award astronomical sums of other people's money.  The pending jurisdictional-switch legislation somewhat may curb the excesses but obviously the Federal Judiciary needs more funds as is, more yet if the legislation conferring more jurisdiction were enacted into law.  

Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.

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