The Volokh Conspiracy

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Chief Justice Roberts Dissents From Presidential Commission on the Supreme Court

Roberts to Congress: Don't call us, we'll call you.


Every year on December 31, the Chief Justice issues the year-end report on the federal judiciary. The 2021 report had an overarching theme: the judiciary can handle its own affairs, and the Congress should stay out. The Chief called back to "Big Bill," better known as Chief Justice Taft, who identified two types of judicial independence: decisional independence and institutional independence.

During [Taft']s nine-year tenure, he proved visionary on a matter of vital concern to the en-tire Judiciary: safeguarding and fortifying the independence of the Branch. Taft knew that no one seriously questioned that judges "should be independent in their judgments." Decisional independence is essential to due process, promoting impartial decision-making, free from political or other extraneous influence. But Taft recognized that courts also require ample institutional independence. The Judiciary's power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government. 

Roberts made no mention of the Presidential Commission on the Supreme Court. He didn't have to. This message was directed to the current Congress that is agitating for "Court reform." Indeed, Roberts said he was using his report to "highlight three topics that have been flagged by Congress and the press over the past year." For each of the three issues, Roberts stressed that the Court has things under control. If the Court needs help, it will ask for it. Don't call us, we'll call you.

First, Roberts addressed the WSJ's reporting on judges who have decided cases in which they, or their spouses, had a financial interest. Does Congress have any role to play in this matter? The Chief said updating conflict of interest systems "may require additional funding from Congress, but it will be money well spent." But Congress should not take the lead.

Second, Roberts revisited "continuing concern over inappropriate behavior in the judicial workplace." The Chief "appreciate[d] that Members of Congress have expressed ongoing concerns on this important matter." But once again, the judiciary can handle this matter internally.

Third, Roberts wrote about an issue that has not gotten much attention. On November 2, two members of the Senate Judiciary Committee, Tom Tillis (R-NC) and Patrick Leahy (D-VT) wrote a letter to Chief Justice Roberts. Roberts explained that the letter came "from both sides of the aisle." I am not a fan when judges even hint at party affiliation, let alone expressly use them.

The Senators expressed their concern about forum shopping in patent cases. Generally, litigants can request that a case be heard in a particular division. And when there is only one judge in that division, litigants can select their judge. The Senators observed that nearly 25% of all patent cases are assigned to Judge Alan Albright of the Western District of Texas, who is the only judge in the Waco Division. According to some reports, Judge Albright "has openly solicited cases at lawyers' meetings and other venues and urged patent plaintiffs to file their infringement actions in his court." The Senators added that Judge Albright "has also repeatedly ignored binding case law and his discretion in denying transfer motions." Professors Jonas Anderson and Paul Gugliuzza wrote about this practice in the Duke Law Journal.  Tillis and Leahy "request[ed] that [Roberts] direct the Judicial Conference to conduct a study of actual and potential abuses that the present situation has enabled." They also asked that this report be completed by May 1, 2022, and should  "provide legislative recommendations."

On December 15, the Director of the Administrative Office wrote back that it would study the issue by the deadline. But that response was not sufficient. Chief Justice Roberts addressed the issue directly in his annual report. Roberts explained that the fault does not lay entirely with the judiciary. Congress establishes the districts and divisions.

Two important and sometimes competing values are at issue. First, the Judicial Conference has long supported the random assignment of cases and fostered the role of district judges as generalists capable of handling the full range of legal issues. But the Conference is also mindful that Congress has intentionally shaped the lower courts into districts and divisions codified by law so that litigants are served by federal judges tied to their communities. 

Still, Roberts stressed that the judiciary will take the lead in studying this issue.

This issue of judicial administration provides another good example of a matter that self-governing bodies of judges from the front lines are in the best position to study and solve—and to work in partnership with Congress in the event change in the law is necessary. 

The Court will decide if change is necessary. Then, and only then, would the Court work with Congress.

Roberts closed his report with another call back to Taft's two conception of judicial independence:

Chief Justice Taft was prescient in recognizing the need for the Judiciary to manage its internal affairs, both to promote informed ad-ministration and to ensure independence of the Branch. He understood that criticism of the courts is inevitable, and he lived through an era when federal courts faced strident calls for reform, some warranted and some not.

Roberts does not explain what those "strident calls for reform" were. Instead, he quotes from President Taft's 1914 address to the American Bar Association:

The agitation with reference to the courts, the general attacks on them, . . . all impose upon us, members of the Bar and upon judges of the courts and legislatures, the duty to remove, as far as possible, grounds for just criticism of our judicial system. 

Pro-tip: whenever you see ellipses, track down the original. Often, what the author omits is more important than what the author includes. Google Books digitized Taft's address, which you can find here. I've emphasized the text Roberts omitted

The agitation with reference to the courts, the general attacks on them, the grotesque remedies proposed of recall of judges and recall of judicial decisions, and the resort of demagogues to the unpopularity of courts as a means of promoting their own political fortunes, all impose upon us, members of the Bar and upon judges of the courts and legislatures, the duty to remove, as far as possible, grounds for just criticism of our judicial system.

You hear that Senator Sheldon "Demagogue" Whitehouse? On the previous page, Taft's criticizes another type "grotesque reform[]"–politicized bodies adding more judges. Taft offered a proposal to expand the judiciary.

If it is found that there are not judges enough, then we should hear from the Supreme Court as a competent authority, not influenced by politics or personal considerations, how many judges are needed and where, and the judicial force could be increased to meet the real exigency.

You hear that SCOTUS commission? The "competent" Court gets to decide whether more judges are needed, not incompetent and politicized bodies. Roberts, C.J., dissenting.