Revising our 'common intellectual heritage': federal and state courts in our federal system.

• Author: Resnik, Judith
• Position: IV. Congressional Loyalty to the Federal Courts through V. Enabling Courts: New Heritages of Gap-Filling for Needy Justice - Federal and State, with footnotes and tables, p. 1899-1930 - Special Issue on the Federal Courts

4. CONGRESSIONAL LOYALTY TO THE FEDERAL COURTS

   At the outset, I joined Daniel Meltzer in seeing the federal courts as the font of the "common intellectual heritage." Yet I also resisted too heavy a reliance on the federal judiciary by arguing the centrality of Congress in bringing the courts into play. And, indeed, even as the Supreme Court during the last four decades has tutored us on the propriety of barriers to the federal courts, Congress continued, by and large, to provide ways for more people to use them.

   Of course, an account of the decades has complexity, as Congress has sometimes limited access, just as the Supreme Court has sometimes opened the doors, either by refusing the congressional constraints or by recognizing new rights, such as Second Amendment gun claims. Thus, in the mid-1990s, what for Federal Courts scholars had been hypothetical about "jurisdiction stripping" turned into reality, as Congress imposed specific limits on access to federal courts for certain kinds of litigants. In a trio of enactments (the Prison Litigation Reform Act (PLRA), (347) the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), (348) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)), (349) Congress targeted prisoners, migrants, and welfare recipients and curtailed their ability to make use of courts. And in 2006, in the Military Commissions Act (MCA), (350) Congress did the same for those in detention at Guantanamo Bay.

   Further, Congress has responded to criticisms of securities litigation and class actions by imposing new requirements for the filing of such cases. The Private Securities Litigation Reform Act of 1995 (PSLRA) created a series of pre-conditions to filing securities class actions, structured the requirements for attorneys to collect fees, and changed some of the requirements for pleading claims, potentially making it more difficult to bring cases. (351) In contrast, the Class Action Fairness Act of 2005 (CAFA) opened new doors to federal courts by relaxing diversity requirements so that defendants in single-state class actions involving large numbers of people could remove such cases to the federal courts. (352) Interest in such removal stemmed, at least from those pressing for CAFA's enactment, on the assumption that federal judges would be less hospitable to class actions than many state court judges.

   In a few contexts, the Court has, in turn, rebuffed some jurisdictional incursions while tolerating others. As is familiar, in Boumediene v. Bush, decided in 2008, a five-person majority held the MCA unconstitutional in its limiting habeas corpus petitions by individuals detained pre-trial by the federal government at Guantanamo Bay. (353) Further, the Court's inventive interpretations of IIRIRA left windows open for migrants to obtain judicial review of certain decisions by the executive. (354) And, while the Court has largely deferred on the PLRA and on AEDPA, it has done so in part when these statutes converge with the Court's own decisions constraining court access for prisoners and criminal defendants. (355) On the other hand, the Court has also authorized judicial review of claims brought by some prisoners, such as those in California's prisons who were so densely incarcerated as to be unsafe, (356) and by an occasional habeas petitioner such as the one whose lawyer left the firm without safeguarding his client's access rights. (357)

   More generally, the examples of congressional jurisdiction-stripping in the 1990s remain aberrational. Thus, even as the Court limited its authority to create new rights, Congress continued to respond to diverse problems (sometimes related to Supreme Court decisions) by deploying the federal courts. Below, I offer a sampling of the groups that have succeeded during the past twenty years in mobilizing congressional support for new rights, implemented in part through federal litigation. I then sketch the federal judiciary's success (aside from judges' salaries) in securing funding and consider the ways in which the political economy reflected in these congressional acts underscores the function of the federal courts and of private rights as part of the American political identity. Thus, even as members of Congress sometimes assail judges as "activists," the Congress as a body has remained a judiciary loyalist, prompted by an array of incentives to keep endowing the federal courts in a variety of ways. (358)

   Some of the new rights of the recent decades are well known, such as the Americans with Disabilities Act (ADA) of 1990, which authorized "any person alleging discrimination on the basis of disability" in violation of the Act to file a complaint in federal court. (359) The Family Medical Leave Act (FMLA) of 1993 both gave employees unpaid leave for care-giving and the authority to enforce those rights if employers, including state governments, violated the FMLA. (360) The 1994 Violence Against Women Act (VAWA) authorized damage actions for victims of gender-based violence (later rejected by the U.S. Supreme Court), (361) as well as new federal criminal penalties. (362) In 1996, as discussed, Congress amended the Fair Credit Reporting Act to provide for civil liability for a consumer reporting agency's "willful noncompliance" with the Act. (363)

   Other statutes have a lower profile. In (1997), Congress added enforcement authority against violations of the Atlantic Striped Bass Conservation Act, (364) and created a new federal crime of "electronic theft." (365) And as concerns mounted about whether computers would crash as the century turned, Congress contemplated a path to federal courts that, as it turned out, was not needed. (366)

   Since 2000, Congress has continued to enlist the federal judiciary in protecting rights ranging from remedies for victims of global trafficking to interference with public wilderness lands in New Mexico. In 2003, for example, Congress created a new "private right of action" for victims of forced labor, human trafficking, and child sex trafficking, all of whom were authorized to sue the perpetrators. (367) In 2004, responding to exploitation of student athletes, Congress authorized states to bring federal cases on behalf of their resident student athletes who entered into contracts based on misleading information. (368) In 2005, the Ojito Wilderness Act designated some new recreational areas in New Mexico through using federal lands in trust for the Zia Pueblo and created private enforcement rights to ensure public access to the newly designated wilderness land. (369) In 2012, after the Supreme Court had ruled that the First Amendment protected anti-gay protestors at the funeral of a U.S. soldier, (370) Congress crafted a civil remedy for those alleging that individuals had disrupted the funeral of a member of the armed services. (371) In 2015, Congress created federal oversight of insurance brokers through a National Association of Registered Agents and Brokers and authorized "[a]ny person aggrieved by a decision or action" of that association, after exhausting administrative remedies, to sue that association. (372)

   Analysts have sought to account for the political economy that prompts Congress repeatedly to create new rights by arguing that they reflect commitments to decentralized, private enforcement. (373) From the vantage point of the "common intellectual heritage," these many enactments shape a national political identity commending, rather than criticizing, "litigiousness." The authority to bring cases could be conceptualized as turning individuals into "private attorneys general" representing the public good (in a manner to which Justice Thomas objected in Spokeo). But private enforcement can also meld the public and the private, as individuals function not as representatives of others but as themselves, personally entitled to the status of worthy claimant in public courts. (374) Moreover, this status is generative for the government, as individuals, constitutionally entitled to "petition for redress" (to borrow from the First Amendment), forge a relationship with the state and expect the state to be responsive to them.

   In addition to continuing to confer rights of access to federal courts, Congress has remained steadfast in funding the federal courts, whose budget lines are small when compared to other federal programs but ample when compared to state judiciaries. Despite the Great Recession and contraction in the last decade, the federal judiciary has been successful in garnering significant dollars both directly and through some of the targeted anti-recession federally funded building programs. (375) (The exception is the federal judiciary's inability to obtain increases in salaries, which is an ongoing source of concern. (376))

   In some respects, the judiciary has been pressed into "cost containment," including shrinking the judiciary's "footprint." In a 2013 report, "space reduction" was "priority Number One for the Space and Facilities Committee," which aimed to reduce working spaces by three percent within five years. (377) A "no net new" policy was put into place, requiring that any circuit seeking additional space had to identify reductions through tradeoffs, (378) such as "courtroom sharing" and cutting back on projections for space for new judgeships. (379)

   Nonetheless, the 2016 budget allocations included funds to support construction of new courthouses in Tennessee, Ohio, North Carolina, Iowa, South Carolina, Alabama, Georgia, and Texas, as well as buildings earmarked for Mississippi and Vermont. In all, a billion dollars was provided that could be used for buildings. More generally, as the federal judge chairing the Judicial Conference's Committee on the Budget explained to Congress when testifying in March of 2015, the judiciary had received "a 2.8 percent overall increase in discretionary appropriations above fiscal year 2014." (380) In addition, and...