Document 22: Judith Resnik, "The Programmatic Judiciary: Lobbying, Judging, and Invalidating the Violence Against Women Act," Southern California Law Review 74 (November 2000), pp. 269-294.

Introduction

       This article by Judith Resnik provides an in-depth study of the United States v. Morrison trial. Resnik explores the reasons why the court, headed by Chief Justice William Rehnquist, held unconstitutional the civil rights provision of the 1994 VAWA, and the background and implications of this decision.

THE PROGRAMMATIC JUDICIARY:
LOBBYING, JUDGING, AND
INVALIDATING THE VIOLENCE
AGAINST WOMEN ACT

JUDITH RESNIK

 

I. ADJUDICATING AND PLANNING ABOUT RIGHTS

       On May 15, 2000, Chief Justice William Rehnquist, writing on behalf of a majority of five, concluded in United States v. Morrison that Congress had no power either under the Commerce Clause or the Fourteenth Amendment to enact a civil rights remedy that permitted victims of violence, targeted because of their gender, to bring lawsuits in federal or state courts for damages against their attackers. The Court thus held unconstitutional one facet of the 1994 Violence Against Women Act (VAWA).

       But May 15, 2000 was not the first time that the Chief Justice had spoken out against the civil rights provisions within VAWA. In 1991, as a draft of the statute was first pending, the Chief Justice cited it in his annual "State of the Judiciary" address.[A]

On that occasion, the "end of [his] fifth year as Chief Justice" and the year in which the "nation celebrated the Bicentennial of the Bill of Rights," Chief Justice Rehnquist announced that the time had come for reconsideration of the "future role of the federal courts." He complained that, despite the hard work and innovative efforts of the judicial branch, the federal judiciary was facing yet "more demanding and more complex tasks."

       These two pronouncements from the Chief Justice--one by means of constitutional adjudication, the other as an individual who is also the chief executive officer of the federal judiciary--serve to illustrate the questions to which this essay is addressed. As I detail in Part II, in the twentieth century the federal judiciary developed an institutional persona, and during the second half of the twentieth century, the judiciary enlarged the subject matters addressed through its collective voice to embrace the questions of whether Congress should create new federal rights. Thus, the role of the federal judiciary during the development of VAWA is of interest not because of the posture of an individual jurist but because of the institutional developments that are illustrated by rehearsing the process of the statute's enactment and the invalidation of one of its provisions.

        Should the institution of the federal courts stay in the (new) business of providing advice to Congress on whether to authorize rights-seeking in federal courts by members of this polity? How does the work of providing such advice contrast with the work of adjudication? What ought the constitutional charter of the Article III judiciary and the professional norms of judging developed around that mandate imply for the modes of discourse that the institution, "the Article III judiciary," adopts?

       The two examples offered thus far, constitutional adjudication and yearly speeches, are not the only avenues available to the Chief Justice by which to affect the shape of the future of the federal judiciary. As its senior corporate officer, he also serves as the Chair of the Judicial Conference of the United States, a congressionally created body formed in 1922 and now comprised of twenty-seven members, including the chief judges of the federal circuit courts as well as selected district judges. The Judicial Conference is the official policymaking entity for the federal judiciary.

       In his 1991 annual address, Chief Justice Rehnquist reported that the Judicial Conference had created a committee on long range planning because of the need to "reexamine the role of the federal courts." Discussing mounting caseload pressures, Chief Justice Rehnquist counseled against increasing the number of judges. Rather, "modest curtailment of federal jurisdiction is important; equally important is self-restraint in adding new federal causes of action."

       In addition to listing several statutes as "candidates for possible curtailment" (including diversity jurisdiction, the Federal Employers' Liability Act, the Jones Act, and habeas corpus), Chief Justice Rehnquist also cited examples of pending legislation as "unnecessarily" expanding federal jurisdiction. Included on that list was VAWA. "Although supporting the underlying objective . . . to deter violence against women," he stated that the Judicial Conference was opposed to portions of the bill, including what he characterized as its too-sweeping definitions of crime and its private right of action, which, he predicted, "could involve the federal courts in a whole host of domestic relations disputes."

        The Conference's position on VAWA was developed from recommendations by its Ad Hoc Committee on Gender-Based Violence, appointed by the Chief Justice and specially created to study the proposed statute which, soon after its introduction, had attracted opposition from the Conference of Chief Justices of the State Courts. The federal Committee on Gender-Based Violence also recommended opposition, which became official federal judicial policy as reported by the Chief Justice in 1991 and again in 1992, a year in which Democrats gained control of the Executive Branch and Congress. But that position was modified in 1993, in that the Judicial Conference took no position on the proposed civil rights remedy and endorsed another aspect of the bill, encouraging circuits to "conduct studies with respect to gender bias."

       The change in the Judicial Conference's position was prompted, in part, by revisions made to the text of VAWA in light of the judicial objections. While initial drafts had provided for access for all victims of gender-based violence, the section was rewritten, according to its legislative sponsors, to narrow its scope by further specifying the proof required of discrimination. To invoke federal jurisdiction, victims of gender-based violence had to show that the alleged acts of violence were a) substantial enough to be eligible for prosecution as a felony and b) were not just violent but discriminatorily so--that the victim was a victim because the perpetrator was motivated by "animus based on the victim's gender." Such a plaintiff could sue in either state or federal court; the federal remedy was "supplemental," not displacing state provisions but adding to them by offering an alternative venue. The federal venue was, however, a limited one; certain state law claims arising out of the same facts could not be included.

       Thus, in 1994, after several hearings and revisions, Congress invoked its powers under both the Commerce Clause and the Fourteenth Amendment and enacted the multi-faceted VAWA statute--providing for state and tribal programs related to violence against women, with money for shelters and educational programs, with provisions aimed at easing the enforcement of restraining orders, with criminal penalties for crossing state lines to harm an intimate partner protected by a valid state protection order, and with a civil rights remedy for those individuals alleging gender-based violence. And despite predictions of a deluge of filings, during the first five years of that civil rights remedy's brief life (from 1994 until the fall of 1999), about fifty cases were reported, of which about forty percent involved allegations of violence in commercial or educational settings.

        The passage of the legislation did not, however, still the Chief Justice's opposition to it. In 1998, in a speech given at the annual meeting of the American Law Institute, the Chief Justice opined that several recent federal statutes, including VAWA, were inappropriate expansions of federal jurisdiction--that "traditional principles of federalism that have guided this country throughout its existence" meant that such issues should be governed by the states. Further, he said, "one senses from the context in which [these bills] were enacted that the question of whether the states are doing an adequate job in this particular area was never seriously asked."

       The Chief Justice's commentary did not reflect VAWA's actual legislative history, in which "whether the states [were] doing an adequate job" was explored in some detail; moreover, information about state inadequacies came directly from state officials. Indeed, but for "state action"--state chief justices (commissioning task forces to learn about how well their jurisdictions responded to women's claims) and state prosecutors (seeking federal funding for more programs for women victims and welcoming federal avenues of redress for those victims)--the legislation would likely not have been enacted. That state law enforcement and state courts often failed to protect women from violence was established by reliance on state-commissioned reports about their own justice systems. Attorneys general from thirty-eight states told Congress that they supported the creation of federal remedies as a useful supplement to--not a displacement of--state remedies. Further, the commitment of state executives to VAWA remained strong six years later, when the constitutionality of the civil rights remedy in the statute was pending before the Supreme Court. In 1999, the National Association of Attorneys General supported the reauthorization of VAWA, and thirty-six states joined to file an amicus brief urging the Supreme Court to uphold the civil rights remedy as a valid exercise of Congress's Commerce Clause powers. Only one state--Alabama--sought invalidation.

       Ignoring, in his 1998 ALI speech, the information about state support of federal involvement that had laced VAWA's history, the Chief Justice advanced his own theory against federal activity. He argued that his thoughts on federalism comported with the views "enunciated by Abraham Lincoln in the 19th century and by Dwight Eisenhower in the 20th century." Two years later, in May of 2000, Chief Justice Rehnquist issued his most powerful indictment of VAWA. Writing for the majority, he held that Congress had unconstitutionally violated such principles of federalism because the creation of the federal civil rights remedy for gender-animated violence breached the distinction between the "truly local" and the "truly national."

       The history of the relationship between the federal judiciary and the Violence Against Women Act is thus embedded in a larger history, of the role of the federal courts as a corporate entity, pressed by an energetic leader, making judgments, advising, and lobbying Congress about what rights to accord and about what visions of federalism should govern. The decade-long discussion of VAWA reached its denouement in the spring of 2000, with the Morrison ruling holding one section of the statute unconstitutional.

       The Chief Justice's interest in long range planning came to fruition a few years earlier, in 1995, with the promulgation of the Long Range Plan for the Federal Courts, a first-ever book issued on behalf of the federal judiciary. Through that document, the Judicial Conference officially provided ninety-three recommendations to Congress. The central elements sketched in the 1991 annual speech by the Chief Justice--limited growth in the number of life-tenured judges, reduced jurisdiction for the federal courts--are echoed and formalized by specific proposals, including that Congress operate with a presumption against the creation of new federal rights if enforced in federal courts.

       Below, I exhume historical materials about the evolution of the institutional posture adopted by the federal judiciary towards its own role in crafting federal rights. I examine distinctions drawn between individual as contrasted with institutional commentary from judges; between adjudication as contrasted with institutional advice-giving; and between topics considered to be "judicial administration" as contrasted with topics understood to be "matters of policy."

       As I detail, during the twentieth century, the management of the federal judiciary shifted from a posture of hesitancy about playing much of an institutional role in suggesting what federal rights Congress should create (or abolish) to the current posture of being a "programmatic judiciary," regularly advising Congress not to authorize access to the federal courts for certain sets of potential rightsholders. It is the development of a judiciary advancing its own positions on what ought to form the bases for federal civil claims and criminal penalties that captures my attention here. Hence, I conclude by considering the relationship between judicial independence (in both its constitutional and sub-constitutional senses) and the use of an institutional voice by judicial leaders, claiming authority as representatives of the Article III judiciary to try to influence Congress as it creates federal rights and sanctions.

       This activity, proffered in the name of Article III, undermines the judicial stance of fundamental disinterest, by which I mean lacking its own agenda. Of course, individual judges are situated, and at some level, interested in the events that form the basis for adjudication. Moreover, adjudication entails interpretative options, implicating political and social views. But adjudication has, as I will detail, a self-limiting quality. As United States v. Morrison vividly illustrates, there are always new cases and always new judges, called upon to revisit the interpretations of their predecessors. In contrast, the effort to inscribe, as an artifact of the federal judiciary, a collective vision about how Congress should deploy the institution of the federal courts has no built-in mechanism for renewal, no obvious boundaries, and no basis in historical practices to provide norms of containment. Deciding to engage in such acts of "political will" does harm, most immediately, to the federal judiciary itself.

II. SHIFTING ATTITUDES TOWARDS THE INSTITUTIONAL ROLE

       A brief historical overview is in order. The federal judiciary during the early part of the twentieth century was comprised of some 120 judges, dispersed across the United States and lacking internal means of self-governance. Administrative services were then supplied by the Department of Justice, which also reported to Congress annually on the state of the federal courts' docket. But, in the early 1920s, in conjunction with many efforts at nationalization, individual judges and bar associations proposed--and Congress created--a coordinating mechanism for the federal judiciary. Congress chartered a judicial body, today called the Judicial Conference of the United States, then comprised exclusively of senior circuit judges, charged with advising the Chief Justice "as to the needs of [each] circuit and as to any matters in respect of which the administration of justice in the courts of the United States may be improved."

       The members of the Judicial Conference understood that this mandate invited commentary on "congestion in the courts and the remedies for it." In the Conference's annual meetings during the 1920s and 1930s, the Chief Justice polled each senior circuit judge about the needs within his circuit; requests to Congress for additional judgeships followed thereafter. But what more should this fledgling organization do? In 1930, then Chief Justice Charles Evans Hughes suggested obtaining a larger mandate, that Congress authorize comment on "laws affecting jurisdiction, evidence, and procedure in the Federal Courts." The Conference concurred, proposing in 1930, 1931, and 1932 that its enabling statute be expanded, but Congress did not comply. Yet, as illustrated by the Judicial Conference's opposition to VAWA and its Long Range Plan, over the ensuing decades, the Conference gave itself the license it had initially sought from Congress.

       The assumption of a more wide-ranging mandate was not immediate. In the 1920s and 1930s, Judicial Conference members thought they should be careful not to issue collective opinions on pending federal legislation creating civil or criminal remedies. They said, repeatedly, that such issues involved "legislative policy" committed to Congress. In doing so, three sets of distinctions were drawn (sometimes implicitly, sometimes explicitly) about the speaker (an individual judge as contrasted with the institutional voice), about the subject matter (that some topics constituted "legislative policy" as contrasted with ways to improve "the administration of justice in the courts"), and about the activity (adjudication as contrasted with judicial commentary on pending legislation).

       That individual judges might contact individual members of Congress to discuss pending legislation was not in doubt in the 1920s. Indeed, justices, such as William Howard Taft who had served as President, were familiar figures on the Hill--actively attempting to shape legislation related to the courts. That the judiciary's institutional voice could also be invoked was not in doubt, but the statutory authority to comment on the "administration of justice" provided contours that, at the time, appeared to authorize certain discussions and to constrain others. Repeatedly, during the first few decades of the Judicial Conference's existence, it decided not to use its corporate status to discuss what jurisdiction Congress should confer on or withdraw from the federal courts.

       Proposals to abolish diversity jurisdiction in the 1930s provide an example. Recall that the federal courts were assumed by many political actors to be supportive of corporate interests and hostile to labor. Efforts to restrict diversity access to the federal courts within that context were aimed at defeating the ability of corporate defendants to remove cases from state to federal courts. In 1932, with a bill pending to abolish diversity jurisdiction, the members of the Conference discussed whether to take a stance. Chief Justice Hughes commented that, were the Conference to provide an official opinion (in support of keeping diversity jurisdiction), the Conference would be in a "very vulnerable position." For judges to "undertake to defend their own jurisdiction . . . [would] weaken their position, their prestige, their independence, if they appeared to be campaigning in their own interests." Jurisdiction was thus something in which judges had an "interest"--here, to keep certain cases within their reach--and hence something about which the institution of judges should not take a stand.

       But return to the distinctions between individual action and collective action and between adjudication and policy promotion. Chief Justice Hughes thought that, while an institutional position should not be proffered, judges could (as they had in the past) attempt to work individually, either to enlist assistance from bar associations or to meet with members of Congress. That individual judges did so comes from insightful documentation from Edward Purcell, who details how Justice Louis Brandeis, working with then Professor Felix Frankfurter, actively promoted legislative efforts to limit diversity jurisdiction. Moreover, such justices had more than one way to influence Congress. Adjudicatory interpretations could both narrow the statutory meaning of the qualifications for diversity jurisdiction and the constitutional authority that federal judges possessed pursuant to diversity jurisdiction. After Justice Brandeis' legislative efforts to have Congress curtail diversity jurisdiction were unavailing, his ruling in Erie Railroad Co. v. Tompkins limited litigants' strategic use of diversity by precluding federal courts from creating federal common law to decide the merits of such cases.[B]

       Consider further the administration/policy line, relied upon by members of the Conference sometimes to silence and other times to license its institutional voice. The record of what Conference members thought fell on which side of the line belies the clarity of that distinction. In its 1929 report, the Conference announced that "the federal system for the punishment of violations of the Federal criminal statutes offers an opportunity to the Federal courts to lead in the matter of this reform." Thus the Judicial Conference offered its views on sentencing legislation--apparently relying on the notion that sentencing was within the judicial domain rather than a matter of "policy" for Congress to decide. True to its 1929 promise of leadership, the Conference actively promoted specific reforms, including what became the 1950 Federal Youth Corrections Act that provided for indeterminate sentences, rehabilitative programs, and the possibility of expunction of records for juveniles convicted within the federal system.

       Sentencing has not, however, proved to be a category about which the propriety of judicial commentary has remained unquestioned. While the Conference felt for decades that sentencing belonged within the domain of judicial administration, more recently Chief Justice Rehnquist has challenged that assumption--without reference to the historical practices of Judicial Conference engagement with sentencing. During the 1990s, in the context of federal judicial distress at mandatory sentences and at lengthy sentences promoted by restrictive federal sentencing guidelines, Chief Justice Rehnquist stated that:

Whether the scheme of federal sentencing should emphasize deterrence as opposed to punishment, what is an appropriate sentence for a particular offense . . . are questions upon which a judge's view should carry no more weight than the view of any other citizen. In such cases I do not believe that the Judicial Conference, or other judicial organizations, should take an official position.[C]

Further, while there was "no formal inhibition on judges publicly stating their own personal opinions about matters of policy within the domain of Congress, . . . the fact that their position as a judge may give added weight to their statements should counsel caution in doing so." In contrast, but without explanation of how the category was distinguishable, the Chief Justice stated that:

[The] considerable sentiment in the federal judiciary . . . against further expansion of federal jurisdiction into areas which have been previously the province of state courts enforcing state laws [was appropriate] . . . . Congress, of course, is the ultimate arbiter of these questions within constitutional limits, but the future shape and contours of the federal courts is surely a legitimate subject for judicial input to Congress.

III. CONSTITUTING THE IDENTITY OF THE ARTICLE III JUDICIARY

       This brief overview provides two descriptive insights. First, judges have long been engaged in shaping legislation affecting the jurisdiction of the federal courts. The shift, in the twentieth century, involved the rise of institutional (as contrasted with individual) involvement. Second, through adjudication, judges have had a major impact on federal jurisdiction. Further, individual justices may well have had their own "long range plans," aimed at shifting bodies of constitutional doctrine, statutory interpretation, and common law meanings over time. Adjudication is sufficiently open-ended as to allow opportunities for individual concerns and interests to play a significant role.

        Comparison therefore is possible between adjudicatory rulings and advice-giving efforts, either by individual judges or by institutional means, to alter the parameters of federal court access. What difference, if any, is made by the mode of judicial commentary--adjudication (the Morrison ruling, in VAWA, as an example) as contrasted with collective discussion (the Judicial Conference positions about the enactment of VAWA, diversity, and sentencing policies or its Long Range Plan on the future of the federal courts)?

       One point of comparison is the relative power of the two modes of discourse. Adjudication has a sweep of sometimes startling proportions that enables life-tenured individual federal judges a powerful means by which to turn their views into the law of the land. Opining outside of adjudication, in contrast, has no necessary bite. Between the late 1950s and the 1990s, the Judicial Conference had many times opposed legislation that, despite its commentary, became law. In 1995, the Judicial Conference codified its efforts to create a presumption against new federal rights and crimes through the Long Range Plan, again arguing against "federalization." But Congress was not thereby required to alter its pattern of sometimes conferring new jurisdiction on the federal courts.

       However, 1995 was also the year when five members of the Supreme Court held, in Lopez v. United States, that one such enactment was an unconstitutional exercise of Commerce Clause powers. Since then, a series of decisions have revised the constitutional boundaries not only of the Commerce Clause but also of the Tenth, Eleventh, and Fourteenth Amendments. Federalization has been cabined, but by constitutional fiat rather than by persuasion. (The evident congruity between the consti-tutional rulings and the Long Range Plan is a point to which I return below.)

       Yet, however powerful adjudication may seem at the moment, it is constrained by its own peculiar format. Federal judges decide cases, up-holding or striking down legislation because of the particular merits of individual statutes and specific facts. While coalitions of Supreme Court justices can shape the Court's docket to some extent, the pressure to take up issues is not completely confinable from within. Each new case poses variations that may splinter coalitions and thereby constrain the ability of individual justices to enshrine enduring views. As this last decade has reminded us all, twentieth century constitutional history is replete with examples of seemingly settled principles becoming unsettled--as new fact patterns and new statutory regimes interact with the changing composition of a bench, itself shaped by political processes of appointment and by the social context for which rulings are required. The pattern woven by a series of decisions can be revisited, as presumably settled understandings are reworked through sequential adjudicative iterations.

       Using adjudication to do long range planning is thus both labor intensive and repetitive, which is to say that, lacking control over what cases are filed, judges cannot prevent reconsideration of whatever judgments are reached. One-on-one negotiations, potentially unraveled as new members join a court, limit the capacity to implement plans and up the stakes of having too many overarching goals. Precedents are chipped away and reconfigured, sometimes ostensibly within the boundaries of governing rules and other times requiring admission that stare decisis has (predictably and desirably) given way to other values.

        Given the intensive investment of labor required and the potentially limited and fleeting returns, many appellate judges and justices appear to adopt (perhaps as a default position) a posture towards judging in which long-term programs are regularly compromised to obtain a necessary majority to decide a given case (the famous rule of five). Careful readers of judicial opinions (to wit, legal academics) make their living by criticizing such judges for lacking sufficient theoretical and practical consistency. Some of those who aspire to be judges see both the potential power and its confines--sometimes prompting them to seek other lines of potentially more efficacious work.

       Contrast the constraints imposed upon the individual judge (however positioned and opinionated, efficacious or inefficacious he or she may be) with those limiting the institution, "the Article III" judiciary, and consider the desirability of it too being positioned and opinionated, with published views (a "plan") about the shape of rights that the federal legislature should recognize as belonging to United States citizens. To undertake such analysis requires an understanding of the means by which and the occasions on which federal judicial policy is constructed.

       Five aspects are relevant. First, the Chief Justice has, through institutional design, enormous influence. In his role as Chief, he selects membership in Judicial Conference Committees, which in turn propose policy to the governing board of twenty-seven judges (themselves not appointed by the Chief). Second, the Judicial Conference, standing as the representative of the now more than 1,100 life-tenured and 850 non-life-tenured judges within the federal judiciary, makes official policy. Of the Conference's twenty-seven members who vote on policy, half are appellate judges who sit by virtue of being chief judges, a position achieved through seniority. While earlier in the century, the Judicial Conference worried about its ability to speak on behalf of judges and had an internal policy of polling individual judges and sometimes circuits before determining many positions, its current practice is not to insist on solicitations of individual judges' views as a predicate to speaking on their behalf.

       Third, over the years, the federal judiciary has developed an etiquette of quieting dissent. Official policy is stated, conveyed to Congress or others through designated speakers, and those who disagree are told that it is inappropriate to do so publicly. Thus, through structuring modes of gener-ating policy, members of the Article III judiciary have crafted mechanisms that damp down dissent and limit occasions for reconsideration.

       Fourth, consider how business comes before the Conference. Unlike the inevitable flow of cases, requiring legal rulings to be revisited, official policy need not be reconsidered absent the consent of the governing board. The fluidity of case-by-case decisionmaking is replaced by institutional structures, making the power of agenda setting more salient. Further, when issues come up, the Conference often relies on its own presumption of stare decisis; earlier positions are routinely noted whenever a topic is revisited. Once views have become "policy" of the Judicial Conference and a long range plan has been formulated, debated, and adopted, revisiting the issue is not forced, as in adjudication, by "the next case."

       Fifth, when making policy, the leadership of the judiciary often distinguishes adjudication from policymaking. While judges in specific cases adjudicate constitutional requirements, the Judicial Conference's job is to provide counsel--not to preview constitutional rulings. Exemplary are the ninety-three recommendations in the Long Range Plan, cast not as constitutionally mandated but as animated by wise policy choices. Social and political judgments, not legal requirements, are the terms of the discussion. Yet, to the extent that the substantive arguments about a given issue--for example, constraining federal court jurisdiction or the propriety of creating federal judicial officials (such as magistrate judges) who lack life tenure--are founded on beliefs about either the United States' federalism or the boundaries of Article III, constitutional understandings inform such social policy conclusions. In other words, the two activities cannot function as discrete domains of discourse; one's understanding of constitutional parameters informs one's policy judgments, and such policy judgments in turn inflect one's appreciation for constitutional capacities.

       My point is not about impermissible decisionmaking by judges; I am not suggesting that judges are changing, in a self-conscious manner, their thinking on the meaning of the Constitution so as to have their rulings conform to any policies of the Judicial Conference. Rather, judicial understandings of what is plausibly constitutional are affected by background norms, and the Judicial Conference, in turn, is a producer of such norms. For example, as the Judicial Conference came to understand both the pressures to produce more adjudication and congressional hesitation to create more Article III judgeships, the Conference committees began to shift their understanding of what tasks might be delegated to non-Article III judges. What magistrate judges do now is far from what 1930s and 1940s life-tenure judges thought was within the realm of the delegable.

       So then consider the kind of judgment calls made by the Conference, as it decides which causes of action to encourage Congress to enact, when to be silent, and when to voice opposition. The topics range from whether claimants contesting social security administration decisions should have access to Article III judges to what crimes should be defined as federal. In choosing among competing rights-seekers, the Conference proffers its own views about the merits of enabling access for certain members of the United States polity to the federal courts for certain forms of alleged wrongdoing. For example, the federal judiciary supported enlarging federal criminal jurisdiction when individuals made threats to federal officials, including judges. In contrast, the federal judiciary did not see the merits of federal criminal sanctions when individuals failed, for an extended period of time, to pay child support to a child living in a different state. Consider also the example of the 1964 Civil Rights Act. Deference to Congress was chosen as the appropriate response when bills that became that act were pending. In contrast, the 1991 VAWA civil rights provisions were met initially with opposition from the Judicial Conference, which argued that Congress should not vest rights-seeking status in women victims of violence. In an effort to stave off judicial opposition, Congress redrafted, and the Conference backed away from expressing opposition. Hence, a group of life-term appointees developed its institutional platform and then entered into the process of deal-making about what shape the rights should take, and then some number of them ruled about the legality of that judgment. In short, the last forty years of Judicial Conference reports offer many examples of policymaking--acts of "political will" that judges routinely as adjudicators claim to be beyond their ken.

       But if one knows that adjudication inevitably involves acts of political will, even as they are abjured, what is problematic about the judiciary offering, openly, political judgments on how to ration the scarce national resource (as the Chief Justice has put it) of the federal courts? Congress and the Executive remain free to take into account or to discount the judiciary's nonadjudicative pronouncements, and individual judges remain free to form (if not encouraged institutionally to express) their own judgments. The Article III judiciary's Long Range Plan may not actually guide decision-making in any venue or in all instances and, unlike adjudication, can (legally) be completely ignored.

       But the utility of commitments stated by the Article III judiciary goes beyond whatever persuasive power it might have to other branches: Such commitments become a vehicle for education and acculturation within the judiciary itself. The act of policymaking by the judiciary is an act of redefining the identity of the Third Branch. As new judges are appointed and become a part of the judiciary, its institutional platform becomes a constitutive element of what they understand the federal judiciary to be about. These ideas become presumptively natural aspects of judicial identity, to be internalized by individual judges and to undergird their attitudes towards rights and remedies as they rule, case by case.

       To the extent these norms do become background assumptions, they infuse the province of individual judgment by being understood not as a series of judgments about contested social policies but as common sense (because there are too many cases, there should be fewer federal rights) that every judge "knows." When the judicial organization of which one is a part has specified goals, plans, and projects, and when those goals, plans, and projects are intertwined with the act of adjudicating the validity of congressional creation of rights and remedies, the act of judging loses one source of its isolation, its situatedness in the specific and constraining facts of given cases, statutory texts, and regulatory minutiae.

       The harm that flows from the judiciary adopting a program about what rights should form the subject matter of its docket is thus a harm especially to the judiciary. A programmatic judiciary is inconsistent with the judiciary's constitutional charter to have a distinctive character, providing individual judges significant power but requiring them to do their best to determine the merits of each case through norms of disinterest about the subject matter of the cases to be so decided. Disinterestedness as I am using it here depends not simply on the lack of judicial connection with particular parties, events, or the lack of a material interest, but on a deeper political posture of having no institutional agenda to be forwarded or impeded by outcomes in particular cases. The judiciary should not proffer a collectively held vision of what the "future role of the federal courts" should include--to which rulings about access, rights, and remedies could contribute.

       Thus, the institution constituted by Article III should not itself hold or put forth opinions about what rights Congress should create--both because of the internal influence such stances can exert on the individual act of adjudication and because of the risk that such stances pose to the legitimacy of whatever decisions are reached. When rulings on the meaning of Congress' power to confer jurisdiction (e.g., Morrison and Lopez) can be compared to the federal judiciary's official Long Range Plan, each opinion can be checked to see how it fits with the judiciary's institutional agenda. Judges could then be seen as yet another special interest group, arguing from a particular perspective about what shape national policy should take. Yet they are an interest group with a decided edge: after Congress speaks, members of the judiciary decide the legality of whatever has been passed. The campaign to limit access to the federal courts can thereby be taken from policy statements to the constitutional level, as indeed it has been.

       Conscientious judges would demur that they are long schooled at separating their personal convictions from the merits of a case. Judicial rhetoric specifically adopts such a posture through opinions in which judges state that their own personal views of the merits do not dictate their ruling on the outcome. But the collective policy vision and the Long Range Plan are not seen as personal views, to be set aside from "the judicial" and left behind when engaging in the act of judging. The policies are written as documents of "the judicial," as means of specifying and inscribing what the identity of the federal judiciary is. Through such means, they serve to implant attitudes, such as that being a member of the federal judiciary is to know that additional rights-giving by Congress is suspect. That view, however, is no "neutral principle" but an artifact of human judgments--that have divided the polity for the last two centuries--about how to shape federated governance in the United States.

       Conscientious judges might well then counter that they are specially situated, uniquely aware of the burdens that Congress imposes on the federal courts and of the inadequacy of the resources by which to respond. Assuming both burden and resource inadequacy, what is the source of the judiciary's authority to decide which sets of potential federal rightsholders deserve priority in the queue? What animates the institution's exercise of its "political will" to make such judgment calls, and to decide, for example, that Y2K claimants should--or should not--receive federal court attention? That efforts to reclaim children kidnapped abroad should -- or should not--be brought in federal courts? That the death penalty should--or should not--be abolished?

       Implicit in my objection is the question of scope. One position would be that federal judges take no collective stances, while another approach would permit some commentary but attempt to contain the discussion by limiting the topics discussed. In light of the two thousand judges and thirty thousand staff, the hundreds of courthouses and thousands of claimants, it is improbable to suggest that all institutional comments be stilled. The federal judiciary must function as a bureaucracy, coordinating the activities of thousands of people.

       The issue is to figure out what kind of bureaucracy to be, and my claim is that, given Article III, the judiciary ought to be committed to developing as distinctive a bureaucratic persona as it has developed norms of adjudication that mark its processes as discrete from (albeit sometimes overlapping with) either the core functions of either the Executive or Congress. Over the last two centuries, the federal judiciary has been an odd, offbeat institution, with specific mores, different forms of dress and address, simultaneously specially powerful and constrained. So too should it, as it develops into an agency, conceive of itself as differently situated, as a bureaucracy of a very special and admittedly peculiar kind. My suggestion is for bureaucratic forms that echo adjudication, including adjudication's distinguished tradition of welcoming published dissents. Cacophony, noisy disagreements, rather than a unified voice, should be the sound of the judicial bureaucracy.

       Hence, I choose the second option, which is to offer some presumptive boundaries around categories of comment as a means of developing norms to limit the range of self-interested positions taken by the judiciary. I do not object to the federal judiciary, in its corporate persona, reporting about its capacity to respond to its workload, including specifying that it believes itself overloaded, underpaid, and/or that it needs more resources to do the work assigned. I also welcome judicial commentary, including through its corporate voice, about the functioning of the courts, the needs for staffing, the role of lawyers and the problems of those unable to afford to use courts, the means of processing cases, the degree to which courts are able to ensure equal treatment, and the challenges of new technologies.

       Let me add that, while such corporate reports are useful, the judiciary ought to encourage non-corporate-like dissent--which is to say that if groups of judges believe that comments issued by the Conference do not reflect their own views, the Conference should facilitate the public airing of contrary views, even as such debate may diminish the effectiveness of judicial efforts to persuade Congress of the correctness of a position. In other words, the collective vision should be as deliberately wobbly as adjudication is open to--and relies upon--dissents.

       In contrast, the collective voice ought to be stilled so as to be agnostic about which claimants ought to be before the federal courts or sent by Congress to state, Indian, or administrative courts or without rights whatsoever. The special insights that judges may have from their role as judges need not be lost to public debate; Congress can create commissions on which individual judges sit to offer advice. Ad hoc groups of judges may also come together to debate the merits of a particular piece of legislation, and individual members of the judiciary--including its chief justice--can as individuals (informed by their professional roles) testify before Congress and in other fora about the needs and roles of the federal judiciary, including its substantive charter.

       Thus, what constitutes a matter related to "judicial administration" rather than "legislative policy" has a sponginess reminiscent of distinctions drawn between "procedure" and "substance." The views of judges--individual and institutional--on matters ranging from whether to increase the number of judgeships, to create subordinate levels of judges, to alter rules of procedure and evidence, or to reshape sentencing or jurisdictional grants can all be seen as having substantive effects. I propose to create a presumption of a boundary, not cast as "administrative" versus "policy" (all of it is "policy"), but serving to provide an institutional hesitancy to comment on what rights should exist (often, but not only, translated in terms of when Congress should create causes of action).

       Given the degree to which both adjudication and advice-giving implicates "political will," the activity of advice-giving needs to develop a normative culture of limits that parallels that of adjudication. Because of the degree to which such advice-giving is so plainly a form of politicized and unbounded judgment, the judiciary ought to err on the side of silence--in service of preserving the domain of adjudication. In contrast, and while I disagree with the majority's substantive interpretations of the Commerce Clause, the Fourteenth Amendment, and federalism in United States v. Morrison, I do not object to such pronouncements. But object I do to the federal judiciary, in the name of Article III of the Constitution, telling members of Congress about whether to create the very rights that later become the subject of such constitutional adjudication.

        Return then to the Chief Justice's 1998 comments about VAWA, as its constitutionality was making its way through the federal courts. It is simultaneously poignant and disturbing that, when inveighing against VAWA, the Chief Justice invoked Abraham Lincoln and Dwight Eisenhower. Poignantly, rather than seeking to obtain authority by tracing his ideas' lineage through Supreme Court justices, he appeared unselfconsciously to draw a parallel between himself and former presidents. Disturbingly, his comparison provides a window into the shift in role that is in fact occurring, as the Article III judiciary increases its own license--through an amalgam of adjudication and administration--to shape the rights of members of this polity.

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A. William H. Rehnquist, Chief Justice's 1991 Year-End Report on the Federal Judiciary, THIRD BRANCH, Jan. 1992, at 1, 3 [hereinafter Rehnquist, 1991 Report,].
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B. 304 U.S. 64 (1938). See also PURCELL, BRANDES AND THE PROGRESSIVE CONSTITUTION, supra note 46, at 95-114.
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C. William H. Rehnquist, Chief Justice Rehnquist Reflects on 1994 in Year-End Report, THIRD BRANCH, Jan. 1995.
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