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

Author:Krotoszynski, Ronald J., Jr.
Position:III. Reconsidering the Costs and Benefits of Decentralizing Judicial Power and Potential Constitutional Means of Creating Greater Concentrations of Federal Judicial Power in Fewer Hands through Conclusion: Decentralized Federal Courts Enhance and Improve the Deliverative Process, with footnotes, p. 1058- 1083
 
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  1. RECONSIDERING THE COSTS AND BENEFITS OF DECENTRALIZING JUDICIAL POWER AND POTENTIAL CONSTITUTIONAL MEANS OF CREATING GREATER CONCENTRATIONS OF FEDERAL JUDICIAL POWER IN FEWER HANDS

    One should note that although the federal judicial system has been designed and operated on a decentralized basis since its inception in 1789, no constitutional imperative for this structure exists that requires this arrangement to continue going forward. Either Congress or the Supreme Court itself could attempt to create structures, practices, and institutions that would consolidate judicial authority within the federal government in fewer hands and permit its exercise to be more carefully superintended by some sort of central authority.

    National courts defined by subject matter, for example, could remove certain kinds of cases from the regular, generalist federal courts and also from the state court systems. To some extent, the Tax Court and the Court of Claims reflect and incorporate this approach, (137) as do the U.S. Court of Appeals for the Federal Circuit and the U.S. Court of Appeals for the District of Columbia Circuit. (138) The Federal Circuit enjoys responsibility for appeals from a variety of national federal courts with jurisdiction over particular subject matter, such as tax, international trade, and patents, (139) and the D.C. Circuit almost always enjoys jurisdiction to hear petitions for review of federal agency action (although as often as not, this jurisdiction is concurrent with other courts of appeals, rather than exclusive). (140)

    In addition to these mechanisms, Congress could create a new national appellate court with a mission of centralization and error correction. This idea is hardly original to me; at various times and at regular intervals, public law scholars have suggested that Congress create a national Supreme Court of Appeals to ensure uniformity of federal law in cases that do not raise sufficiently serious questions of constitutional, statutory, or treaty law to merit review and consideration by the Supreme Court of the United States. (141) Most recently, a group of public law scholars concerned with the potential ill effects of the life tenure enjoyed by members of the Supreme Court, led in large part by Professor Paul Carrington, have renewed calls for creation of a judicial entity of this sort. (142) A central national appellate court with the power to review and decide appeals from the various courts of appeals, and perhaps also from the state supreme courts, would have a powerful centralizing effect and could, at least in theory, considerably reduce the problem of non-uniform federal law.

    The possibility of using fairly simple bureaucratic reforms to centralize judicial authority, perhaps at the Supreme Court level, could also reduce the decentralization of the federal courts. Professor David S. Law has written cogently on how such devices operate in the context of the Japanese judicial system. (143) Law notes that simple administrative controls, such as a central bureaucratic structure that oversees the hiring and placement of law clerks, can produce powerful centralizing effects on the operation of a national judicial system. (144)

    Although Article III, Section 1 guarantees that federal judges will enjoy life tenure and salary protection, (145) the Constitution does not require Congress to provide any particular staffing or administrative support. If Congress wished to create a centralized Office of Personnel Management entity within the federal courts, controlled by the Chief Justice, and to vest this entity with the selection of law clerks and perhaps even administrative assistants, one would be hard pressed to argue that such a "reform" violates any express constitutional prohibition on the structure of the federal judiciary. (146) So too, the Chief Justice, or the national Judicial Conference, could exercise broad control over the assignment of cases to particular courts or perhaps even to particular judges, if authorized to do so by statute. (147)

    Through a combination of direct and indirect controls, substantial oversight and control mechanisms over the federal judicial system could be created and deployed that would render the operation of the federal judicial system much more centralized. And, although the actual power to decide a given case might remain widely dispersed, with sufficient incentives and controls, the Chief Justice, the Judicial Conference, or both could enjoy broader authority to influence, if not control, the operation of the federal courts. To take an easy example, if Congress authorized the Chief Justice or the Judicial Conference to review judicial performance on an annual basis and make positive salary adjustments, writing opinions that seem persuasive to the Chief Justice (or the Judicial Conference) might easily become a higher institutional priority for at least some members of the federal judiciary.

    The Constitution only protects against diminution of a judge's salary; it does not require that all judges receive identical raises in salary and benefits going forward. (148) So too, the Constitution protects against removing a judge from office, save via the cumbersome impeachment process, (149) but it does not protect any judge's workload from reassignment, either directly and individually, as happens when a judicial council finds that a judge has engaged in misconduct, or on a court-wide basis, as happens when Congress tinkers with the jurisdiction of the lower federal courts or the appellate jurisdiction of the Supreme Court. (150)

    Professor Law observes that "[p]olitical control over judicial behavior need not be overt" and that "[p]olitical actors can influence a court's behavior directly or indirectly by manipulating the composition of the court, the resources available to members of the court, and the range of strategic options available to the court as an institution." (151) Moreover, he astutely posits that "[p]olitical actors need not engage in sustained and repeated efforts to influence the direction of a court if power on the court itself is concentrated in the hands of a single individual who is subject to replacement at relatively frequent intervals." (152)

    In Japan, consolidating oversight of the entire Japanese judiciary in the Chief Justice and General Secretariat has the effects of severely cabining judicial independence and rendering the exercise of judicial control subject to centralized forms of oversight and control. (153) Unlike the Chief Justice of the United States, the Chief Justice of the Supreme Court of Japan possesses "truly awesome" administrative powers over the entire judicial system, including effective control of assignment of lower court judges to particular benches and substantial control over new appointments to the Supreme Court itself. (154) As Law puts the matter, "[t]he Japanese judiciary may be a bureaucracy, but it is also a highly disciplined one in which power is concentrated to an unusual degree in the hands of one person [namely, the Chief Justice]." (155)

    Simply put, if Congress so desired, there are no obvious constitutional impediments to the adoption of many of the devices presently at work in Japan. For example, if the Chief Justice possessed the power to assign particular Article III judges to specific district and circuit courts, he could essentially reshape those courts to suit his ideological and jurisprudential preferences. Centralized control over the hiring and assignment of law clerks could also profoundly affect the day-to-day operation of both the federal circuit and district courts. Congress could also tinker with the appellate jurisdiction of the lower federal courts and the Supreme Court to better centralize decisional power. Congress might also adopt procedural rules designed to streamline the exercise of judicial power into fewer hands than under the present system.

    To be sure, constitutional objections to the adoption and enforcement of such schemes exist, but they sound in general separation-of-powers terms, rather than in the express language of Article III itself. And the Supreme Court has been remarkably open to Congress tinkering with the power and authority of the federal courts, permitting Congress to assign judges non-Article-III tasks (156) and also allowing Congress to reallocate to non-Article-III tribunals core functions of the Article III courts. (157) Accordingly, as fantastic as Professor Law's proposals for "rigging" the federal courts might seem on first consideration, (158) his suggestions strike me as being, for the most part, facially constitutional.

    One need not worry unduly, however, about the death of judicial independence or the creation of a true "Super Chief' who wields more direct forms of control over his judicial colleagues. It is virtually unthinkable that Congress would ever use these mechanisms to centralize oversight of judicial authority or that the Chief Justice (or Judicial Conference) would attempt to create and enforce such mechanisms on their own. Again, it bears noting that the federal judicial system has been highly decentralized, by virtue of its design, since the Judiciary Act of 1789 instituted the lower federal courts and created and assigned the statutory judicial duties of members of the Supreme Court of the United States. Although Americans like to claim that we have a written constitution, the truth is considerably more complicated; the text, in many respects, is merely a starting point for our constitutional law, rather than an end point. (159) Longstanding traditions and practices take on the character of constitutional constraint, even though they might not enjoy a firm textual foundation. (160)

    Consider, for example, the size of the Supreme Court itself. At this point, it seems very unlikely that Congress would modify the size of the Supreme Court's bench. For several generations, and since Reconstruction, the Supreme...

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