Congress and the Courts: Establishing a Constructive Dialogue - Senator Orrin G. Hatch

• Jurisdiction: United States,Federal
• Publication year: 1995
• Citation: Vol. 46 No. 2

Congress and the Courts; Establishing a Constructive Dialogueby Senator Orrin G. Hatch^*

The topic of federal judicial independence is an amorphous one, and Professor Redish's fine contribution to this symposium provides meaningful shape and structure to this topic. I will leave it largely to the academics to debate the many theoretical questions raised by Professor Redish. At the outset, I would simply like to offer a few observations on the four categories into which Professor Redish subdivides the concept of federal judicial independence.

I agree with Professor Redish that what he labels "institutional" independence, "decisional" independence, and "counter-majoritarian" independence identify those basic respects in which the Constitution guarantees the federal courts protections from political intrusion. I must also note that none, or virtually none, of the current political debate over issues facing the federal courts relates to any of these three legitimate aspects of judicial independence. No one worries that Congress will attempt to reduce the compensation of sitting federal judges in violation of Article III, Section 1, of the Constitution.¹ Moreover, there is no reason to fear that Congress will attempt to control, or interfere with, the adjudication of specific cases or prevent the courts from addressing the constitutionality of the laws they are enforcing. In short, while these three types of independence raise a number of interesting academic issues, they are not the source of any immediate controversy over alleged threats to judicial independence.

The fourth subcategory, supposed "lawmaking" independence, is where much of the current tension between Congress and the courts is rooted. Professor Redish defines lawmaking independence as "the ability of the federal courts to create either controlling substantive legal principles or governing general rules of procedure in the course of individual adjudications."² I agree entirely with Professor Redish that judicial claims to lawmaking independence are misplaced and that Congress has full authority to prescribe procedural as well as substantive rules for the federal courts.³

I hasten to add that this does not mean that Congress should not delegate its authority to promulgate procedural rules to the courts, nor does it mean that Congress should not tap the experience and expertise of federal judges. I, for one, welcome the opportunity to engage in constructive dialogues with the judiciary. What it does mean, however, is that disagreements that judges have with Congress over policy matters involving the courts should not be transmogrified into supposed threats to judicial independence. There will undoubtedly be many instances in which Congress and the courts disagree on lawmaking policy affecting the courts. The fact of disagreement no more means that Congress is attacking judicial independence than it means that the courts are seeking to aggrandize their own power. I therefore believe that the label of "judicial independence" is an overbroad one insofar as it is used to subsume the entire range of relations between Congress and the courts.

Putting aside academic issues that genuinely involve judicial independence, I would like to offer some reflections on two legislative issues of concern to the federal judiciary: (1) federalization of traditionally state law matters, and (2) the size of the federal judiciary.

I am well aware of the growing hostility among judges over...