UNAVAILING COURTS: REVISITING PRESUMPTIONS ABOUT THE FEDERAL JUDICIARY'S REMEDIAL AUTHORITY
A less inviting heritage has, however, emerged and, as Meltzer analyzed, the interaction between the courts and Congress is pivotal. During the latter part of the twentieth century, leaders of the judiciary looked at the pictures of growth and, rather than celebrate, bemoaned the expansion. A language of "crisis" became pervasive, (170) as filings came to be seen as a problem to be solved. Rather than pursue significant additional judgeships, prominent members of the judiciary called for the need to "cap" growth in life-tenured positions through a moratorium on new judgeships. (171)
Chief Justice Rehnquist's era was not the first to seek to curb the federal courts; progressive era reformers also aimed to bound the aegis of federal judges, who were seen during the early part of the twentieth century as inhospitable to rights-claims by workers. Expanding administrative agency adjudication was one method of opening new for a for redress.
Dislike of the federal courts is not novel. (172) Hostility by members of the Supreme Court towards the diverse users of the federal courts is. Thus, and in contrast to earlier campaigns to limit federal court use, the more recent effort is embedded within the judiciary, as the Supreme Court aimed to make structural and group-based redress less unavailable. The techniques ranged from developing new doctrines, reinterpreting statutes, expanding federal preemption, orienting incoming judges through educational programs, reshaping federal rules, issuing court strategic plans, and lobbying Congress to cut back on its openness to creating new federal rights. (173) These initiatives were, in turn, part of a larger effort to constrain government's regulatory capacities and activities. (174)
Curbing Rights and Remedies: Constricting Congressional Powers and Immunizing the Government
Chief Justice William Rehnquist oversaw a growing bureaucracy able to gain funds for new courthouses, more judges, and staff. Yet he was also deeply skeptical of an expansive role for adjudication. Under his leadership and then that of Chief Justice John Roberts, the Court has limited the ability to bring lawsuits alleging illegal actions of state and federal governments as well as of private actors. (175) While guarding judicial prerogatives, the commentary and jurisprudence create an intellectual gestalt skeptical of the role of courts in generating remedies and in filling congressional gaps.
During his decades on the Court, Chief Justice Rehnquist steered the law towards ceding authority to state courts, thereby narrowing access to the federal courts for various groups, such as civil rights plaintiffs and habeas corpus petitioners. The doctrinal techniques varied. For example, in the 1970s in his decision (before becoming Chief Justice) in Wainwright v. Sykes, (176) Rehnquist began the line of cases finding that criminal defendants had forfeited federal constitutional claims, sometimes through their lawyers or their own inadvertence, and were therefore precluded from obtaining post-conviction review of alleged federal constitutional error. Rehnquist--era case law also began the decline in implying causes of action from statutes and the Constitution. (177)
In addition, the Rehnquist Court imposed limits on congressional reliance on the Commerce Clause. Chief Justice Rehnquist wrote the five-person decision in United States v. Lopez, holding that Congress had exceeded its authority by creating the federal crime of possession of guns within a certain distance from schools. (178) Rehnquist also wrote the five-person majority in United States v. Morrison, ruling that Congress lacked authority under either the Commerce Clause or the Fourteenth Amendment to enact the civil rights remedy in the Violence Against Women Act (VAWA), which had provided a federal civil action for victims of violence if they could prove gender-based animus. (179) Likewise, Chief Justice Rehnquist authored the opinion for the Court in Seminole Tribe of Florida v. Ronda, which held that Congress could not rely on the Commerce Clause to authorize Indian tribes to enforce obligations that states bargain with them in good faith about constructing casinos on tribal lands. (180)
Moreover, the tone set by Chief Justice Rehnquist as lead spokesperson for the federal courts fit his doctrinal approach. Rehnquist exercised his authority as Chair of the Judicial Conference to shape Federal Rule revisions through appointments to the committees that drafted them. (181) He repeatedly used his annual "State of the Judiciary" addresses to counsel against expansion of federal jurisdiction. (182) Both before and after the enactment in 1994 of VAWA's civil rights remedy, for example, the Chief Justice invoked the statute as an example of the overuse of federal remedies. (183)
Further, during his tenure chairing the Judicial Conference, the Conference took formal policy positions pressing Congress to cut back on federal jurisdiction. As part of a wave of millennium planning, the Conference charged a specially constituted committee to write a "Long Range Plan," which in 1995 produced ninety-three recommendations adopted by the Judicial Conference. (184) (This document has been replaced by a 2010 "Strategic Plan" that was updated in 2015, but the newer plans caution against reading them as rescinding the individual recommendations of the 1995 Long Range Plan. (185))
The 1995 Plan worried about overuse of the federal courts, both by civil litigants and because of the "federalization of criminal law," (186) and proposed a variety of methods to limit access and refocus law enforcement. The Long Range Plan urged Congress, when possible, to look to state courts and federal agencies in lieu of the federal courts so as to shape "sensible limitations on federal criminal and civil jurisdiction." (187) The proposed solutions included increasing reliance on administrative agency adjudication when constitutionally permissible, as well as more judicial case management and alternative dispute resolution. (188) Further, the 1995 Long Range Plan recommended that Congress "exercise restraint" by not creating new federal statutory rights or new federal crimes unless Congress determined that doing so advanced "clearly defined and justified federal interests" and "where federal interests are paramount." (189)
These recommendations were in service of avoiding what the Long Range Plan called a "nightmarish" future, which assumed a growth rate at a pace calculated "over the past 53 years," producing a "bleak" picture about a wave of filings. As the Long Range Plan explained, in 1995, civil filings numbered about 240,000; the projection was that, by 2020, civil cases "could reach 1 million" and criminal filings could grow from 44,000 to 84,000. (190) This rising tide would, the planners thought, undermine federal court governance and the coherence of law. Moreover, users would be harmed because, as resources became scarcer, the results would be "delay, congestion, cost, and inefficiency." (191)
These projections and the concerns that shaped them were part of a new "common intellectual heritage" that federal litigation was a problem to be solved by diverting cases and diffusing disputes. The doctrinal routes were, as already noted, varied. Here, I focus on the interaction between new bodies of Supreme Court case law that expanded immunities, contracted rights, and constricted remedies.
A first exemplar comes from the 1988 decision of Boyle v. United Technologies Corp., a lawsuit alleging that a member of the military had drowned, trapped under water because the helicopter's manufacturer, Sikorsky, had allegedly designed a defective escape hatch. (192) The family sued the company, but the Court (in a five-person majority opinion by Justice Scalia) rejected the claim based on the Court's creation of a then-new federal common law immunity for government contractors. (193) The Court explained:
This case requires us to decide when a contractor providing military equipment to the Federal Government can be held liable under state tort law for injury caused by a design defect. .... Petitioner's ... contention is that, in the absence of legislation specifically immunizing Government contractors from liability for design defects, there is no basis for judicial recognition of such a defense. We disagree. In most fields of activity, to be sure, this Court has refused to find federal preemption of state law in the absence of either a clear statutory prescription, or a direct conflict between federal and state law. But ... [in] a few areas, involving "uniquely federal interests," ... state law is pre-empted and replaced, where necessary, by ... so-called "federal common law." (194) The dispute involved private parties, but the Court identified a "uniquely federal" interest in the government's procurement policies, to be protected to ensure no "second-guessing" through state tort-based claims. (195) Although bills had been proposed in Congress but not enacted, the Court put into place a common law rule that no liability for product defects could be imposed if a defendant established that "(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States." (196) To justify that holding, the Court noted the risk of passing on costs to the government; (197) aside from creating a government contractor immunity, the Court did not explore techniques (such as price caps) to avoid the potential for added costs.
Justice Brennan's dissent raised an objection that can be understood in Meltzer's terms, that "large public bureaucracies" have the capacity to threaten "a greatly expanded list of individual rights" through actions...