Controlling precedent: congressional regulation of judicial decision-making.

• Author: Lawson, Gary

Modern federal courts scholars have been fascinated by the question of Congress' power to control the jurisdiction of the federal courts. (1) This fascination is not difficult to explain: the question is theoretically profound and raises fundamental issues about the roles of Congress and the federal courts in the constitutional order. (2) As a practical matter, however, the question has proven to be of limited significance. Despite a recent spate of legislation restricting access to courts by prisoners and immigrants, (3) people talk about wholesale jurisdiction-stripping far more than they actually do it.

By contrast, Congress routinely regulates the manner in which federal courts exercise their jurisdiction. A host of federal statutes seek to guide, and even control, the process of decision-making that federal courts employ to decide cases within their jurisdiction. This crucial aspect of congressional power, however, has been largely neglected by federal courts scholars--and by the courts themselves, who have quietly acquiesced in wide-ranging congressional efforts to control the judicial decision-making process. (4) Given the relative importance of questions concerning control of jurisdiction and control of decision-making, the widespread neglect of the latter is noteworthy.

There are signs, however, that congressional regulation of the judicial process may finally be attracting significant academic attention. In recent years, four of the nation's most insightful constitutional scholars have addressed some aspect of this topic. In 1995, Professor Martin H. Redish concluded, as part of a wide-ranging study of judicial independence, that Congress has broad power to prescribe substantive and procedural rules for the judiciary but that separation-of-powers principles place important limits on that power when its exercise affects the way in which cases are decided. (5) According to Professor Redish, the decisional independence principle precludes direct legislative control of judicial outcomes, (6) while the political commitment principle (7) forbids Congress from using the trappings and prestige of the federal courts to hide substantive legislative decisions from the electorate. (8)

In 1999, Professor David Engdahl identified the Sweeping Clause of Article I, Section 8 (9) as the constitutional source of congressional power to regulate the jurisdictional, structural, and decisional affairs of the federal courts. (10) Professor Engdahl urges courts to decide for themselves whether congressional measures regulating the judiciary in fact aid or hinder the "carrying into Execution" of the judicial power, which he argues calls into question the validity of such familiar statutes as the Anti-Injunction Act, some of the Federal Rules of Evidence, and a host of other measures designed to regulate the remedies and procedures employed by the federal courts. (11)

Two recent articles specifically consider the power of Congress to regulate the use of precedent by federal courts. Professor Michael Stokes Paulsen has urged adoption of a statute that would forbid the federal courts from giving prior court decisions any weight beyond their persuasive value in future cases involving the constitutionality of abortion regulations (or in constitutional cases more generally). (12) He agrees with Professor Engdahl that the Sweeping Clause is the key constitutional provision for analyzing congressional power over the courts, but he finds in that clause a power at least broad enough to restrict the use of precedent in constitutional cases. (13) And Professor John Harrison has argued for a similar, though perhaps narrower, congressional power under the Sweeping Clause to mandate any norm of precedent that courts could reasonably adopt for themselves. (14)

All of these authors make critical contributions to an exploration of this issue, but each of them misses an important piece of the puzzle. Professor Redish correctly draws attention to the importance of background norms of separation of powers, but he does not discuss the central role played by the Sweeping Clause in any assessment of congressional power to regulate the courts. Professor Engdahl neatly articulates the role of the Sweeping Clause, but his analysis of that clause is incomplete. Professor Engdahl emphasizes the requirement that laws regulating the judiciary must be "for carrying into Execution" the judicial power, but he pays scant attention to the separate requirement that such laws be "necessary and proper" for that purpose. As I have elsewhere explained at length, in conjunction with Patricia B. Granger, the term "proper" in the Sweeping Clause is an important limitation on the scope of the power granted to Congress by that clause. (15) Professor Paulsen places the issue of congressional power in its appropriate practical and historical context and recognizes the need to take account of the word "proper" in the Sweeping Clause, but he fails to see that the term "proper" draws much of its content from background separation-of-powers principles, more or less (to complete the circle) in accordance with Professor Redish's analysis. Professor Harrison similarly does not give due regard to the extent to which separation-of-powers concerns, and in particular Professor Redish's principle of decisional independence, are codified in the Sweeping Clause.

What is needed for a full exploration of Congress' power to regulate the affairs of the federal courts is a (no pun intended) proper synthesis that gives due account to the text of the Sweeping Clause, the background norms that animate it, and the structural and historical context in which it is located. The result of that synthesis is that Professor Paulsen's proposed precedent-limiting statute is clearly unconstitutional; Congress may not by statute tell the federal courts whether or in what way to use precedent. (16)

I do not reach that conclusion because of any great fondness for the doctrine of stare decisis. As Professor Paulsen notes, (17) he and I are among the tiny handful of academics who think it is affirmatively unconstitutional for federal courts to rely on precedent in constitutional cases. (18) Nonetheless, Congress does not have the power to tell the federal courts how to go about their business of deciding cases, even if the courts' own methods for deciding cases (such as reliance on precedent) are unconstitutionally wrong. This does not mean that the federal courts' use of precedent or other decision-making methodologies is therefore uncontrollable. To the contrary, the Constitution prescribes two very important, and very powerful, methods for controlling the actions of the federal courts. But the enactment of a congressional statute along Professor Paulsen's lines is not one of them.

Part I of this article briefly explores some preliminary methodological matters that are essential for a proper understanding of this issue. Part II describes more carefully the scope and limits of congressional power over the affairs of the federal courts and explains why Professor Paulsen's proposed statute exceeds those limits. Part III applies that analysis to some of the existing statutes--several with very impressive pedigrees--that currently regulate the decision-making practices of the federal courts. Part IV then briefly sets forth the two constitutionally permissible methods for controlling the decision-making methodologies of the federal courts.

I

Five preliminary points set the framework for a correct understanding of congressional power to regulate the affairs of the federal courts. First, this article seeks to determine the original meaning of the various clauses in the Constitution that define and limit the power of Congress to regulate judicial decision-making. Under my strict originalist approach (which is markedly stricter than the approach employed by most originalists), the search for original meaning is precisely that: it is not a search for explanations or justifications of current or past doctrine. Court decisions and legislative and executive practices are neither constitutive nor generally good evidence of constitutional meaning, and I treat them accordingly. Moreover, I make no normative claims about the extent to which original meaning should guide decisions. Originalism, as I apply it here, is a theory of interpretation, not a theory of adjudication. (19) What people do with the Constitution's meaning once they have it is their own business.

Although the participants in this debate have a substantial range of methodological disagreements, they share enough common premises to let the game proceed without a more extensive discussion of methodology (though I will address some fine points along the way). Professors Paulsen and Harrison both employ some variant of originalism, though the latter's variant may be a bit more eclectic than mine. Professor Redish styles himself a nonoriginalist textualist, and Professor Engdahl's methodology, as with most of his work, defies easy classification. (20) On structural issues, however, Professors Redish and Engdahl strongly emphasize the central role of the original written text and the inferences that are fairly drawn from it. While one could perhaps imagine serious differences emerging between originalist and nonoriginalist textualists on structural matters--if, for example, the nonoriginalists adopted some kind of evolutionary theory of departmental powers--in practice those differences have proved to be relatively small. (21) Accordingly, I can (and do) take for granted some basic premises about originalist methodology as applied to structural issues. That may change, of course, if someone enters this debate from a widely divergent perspective, but there will be time enough to address those concerns if and when it becomes necessary. (22)

Second, it is important to be clear on exactly which clauses of the Constitution are relevant to this inquiry...