The unitary executive and the plural judiciary: on the potential virtues of decentralized judicial power.

Author:Krotoszynski, Ronald J., Jr.
Position:Abstract through II. Comparative Institutional Advantage, Public Choice, Agency Capture, and the Benefits of Decentralized and Collective Decision Making Within the Federal Judiciary, p. 1021-1058


The federal judiciary features a highly decentralized system of courts. The Supreme Court of the United States reviews only a few dozen cases each year. Meanwhile, regional U.S. courts of appeals operate independently of each other; district courts further divide and separate the exercise of federal judicial power. The role of the state courts in enforcing federal law further subdivides responsibility for the adjudication of federal law claims. Indeed, the Office of Chief Justice itself incorporates and reflects this vesting of the judicial power of the United States exclusively in collegial institutions--literally in a multiplicity of hands--effectively precluding its unilateral or precipitate exercise by a single person. The standard narrative posits that the radically decentralized nature of federal judicial power is a vice, rather than a virtue, because it renders federal law, including constitutional law, non-uniform based solely on the accident of geography.

This Article challenges the received wisdom, contending that the radical division of judicial authority makes perfect sense. Consensus among the disparate federal courts serves as a highly valuable means of legitimating the exercise of judicial review (notwithstanding the lack of a democratic mandate). The creation and maintenance of a highly decentralized system of federal and state courts exists by design, not accident. Greater centralization of judicial power easily could be achieved, yet we should think twice before abandoning our present system precisely because decentralized judicial deliberation improves and enhances the process of resolving difficult questions of fundamental importance. We should not reflexively accede to the suzerainty of uniformity as the paramount value in judicial decision making; instead, we must carefully consider the potential benefits associated with decentralizing judicial power by denying any one person--or juridical body--the exclusive power to exercise "[t]he judicial Power of the United States."


In many contexts and all too often, the familiar escapes careful or thoughtful consideration. Precisely because it is familiar, we unconsciously assume it to be fixed and unchangeable; indeed, we come simply to accept it as a background condition. This general principle holds true with respect to both law and legal institutions. For example, few reasonable people would agree to create a legislative body in which California, with over 30 million citizens, enjoys the same representation and voting power as Wyoming or North Dakota, which each have less than a million residents. (1) As Professor Sanford Levinson observes, "[t]he equal-vote rule in the Senate makes an absolute shambles of the idea that in the United States the majority of the people rule[s]." (2) Yet, path dependence seems to insulate this institution from sustained public criticism as radically undemocratic; most people in the contemporary United States simply accept the equal representation of the states in the Senate. Thus, an historical anomaly associated with the Connecticut Compromise goes largely unchallenged. (3)

In a similar vein, relatively little sustained attention has been devoted to the institutional structure of the federal courts. (4) The institution includes the Supreme Court of the United States, U.S. courts of appeals, and U.S. district courts. Moreover, the state judiciaries also should be included on any flow chart of the exercise of judicial power over federal questions given that these courts also routinely hear and decide important questions of federal law. Despite the central importance of institutional structure to the exercise of "[t]he judicial Power of the United States," we tend not to think very much-or very carefully--about either the structure of the federal courts or the Office of Chief Justice.

We ought to pay closer attention to this very familiar office and also to the broader question of the institutional structure of the federal judiciary itself. The two questions, although severable, are entwined. The design of the Office of Chief Justice arguably has a metonymous relationship to the structure of federal judiciary more generally.

Consider the Office of Chief Justice of the United States, and the utter lack of specific, constitutionally conveyed, institutional powers associated with it. Indeed, the Constitution does not even bother to formally create the office; no specific reference to the Office of Chief Justice exists in Article III. (5) To be sure, the Constitution does contain a single reference to the Chief Justice--in Article I, Section 3, Clause 6. (6) Otherwise, however, the office and its institutional powers are left entirely to the discretion of Congress and the Supreme Court itself to determine. Thus, upon closer examination of the institutional role of the Chief Justice, one is immediately struck by the relative insignificance of the office--both with respect to the Constitution's text, but also with respect to the office's powers within the Supreme Court and the federal judiciary more generally.

It is tempting to line up the Chief Justice with the President, the Speaker of the House, and the Majority Leader of the Senate. After all, the Chief Justice of the United States is the titular head of the judicial branch of government created by Article III of the Constitution. (7) Yet, this assumption of material equivalence, upon sustained reflection, proves to be false. Unlike the heads of the executive and legislative branches of the federal government, the Chief Justice possesses absolutely no unilateral authority to oversee and direct the operations of either the Supreme Court or the inferior federal courts (much less the state judiciaries, which also play an important and ongoing role in the enforcement of the Constitution, treaties, and laws of the United States). (8) In fact, whatever powers the Chief Justice enjoys rest almost entirely on internal rules and practices of the Supreme Court itself (which five members of the nine member body could presumably abolish or amend at will) and on specific statutes that vest authority with the Chief Justice, such as the Rules Enabling Act, (9) which permits the Chief Justice, in conjunction with his duties as head of the Judicial Conference of the United States, to appoint members to the various advisory committees charged with reviewing and updating the federal rules of evidence, criminal procedure, civil procedure, and bankruptcy. (10)

This lack of centralized power is replicated in the broader organizational structure of the federal court system. Indeed, if one were to step back and consider the federal judiciary in more general terms, the most obvious structural characteristic is the almost complete decentralization of power. In fact, any federal judge, even the Chief Justice, has to obtain the agreement and consent of other federal judges to do virtually anything of consequence. The structure of the lower federal courts also enhances, rather than reduces, the requirement of collective, rather than individual, action.

After reflecting upon the Office of Chief Justice and the structure of the federal courts more generally, it is striking that the Framers--and Congress--have created in the federal courts something of a photographic negative image of the executive branch. (11) The Constitution expressly vests the President with broad authority to personally direct and oversee the operations of the executive branch of the federal government, (12) whereas the Constitution is entirely mute with respect to the institutional power and authority of the Office of Chief Justice, vesting all judicial powers in a group of decentralized, collegial institutions. To state the matter simply: we have a unitary executive and a plural judiciary. (13)

What's more, the radical decentralization of the federal court system is further enhanced by the non-uniform rules of operating procedure in force within federal circuit and district courts. (14) For example, in some U.S. courts of appeals, draft panel decisions circulate to the entire court's membership, whereas in others, panels issue opinions autonomously and without prior circulation to other chambers (save in special circumstances, such as when a panel proposes limiting or overruling a prior precedent of the circuit). (15) In other words, the operating rules and procedures governing the exercise of the judicial power of the United States vary from circuit to circuit. (16) Thus, not only is decisional authority separated and widely dispersed, but the procedures associated with the exercise of this authority are non-uniform, making the decisional process itself different among the federal courts.

In sum, independent courts exercise judicial authority using different rules of the road; the multiplicity of decision makers is further augmented by a multiplicity of operating procedures. The balance of this Article will develop these themes, first by considering the text of the Constitution itself, as it bears upon the structure and operation of the federal courts, and then by considering how other, non-constitutional rules and practices have the effect of dividing and limiting an individual judge's power within the Article III courts.

My thesis is that the decentralization of the judicial power of the United States, coupled with the different local operating rules in force within the U.S. courts of appeals, district courts, and state court systems, constitute a virtue rather than a vice. By making the decisional process on important, but difficult, questions of constitutional law a collective endeavor, placed in entirely separate hands, operating largely independently of each other, the risk of insufficiently considered--reasoned--decision making is substantially reduced (as are some of the risks of collective, collegial decision making, such as so-called "group think"). (17) When disparate and...

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