Where does the Judicial Conference Get the Authority To Mandate Case Assignments?

A general power to issue orders to judicial employees does not trump a specific power for district courts to make their own rules about case assignments.

In my initial post on this topic, I pointed out that District Courts have express authority to determine how cases are assigned under 28 U.S.C. § 137(a). It provides:

The business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court. The chief judge of the district court shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe. If the district judges in any district are unable to agree upon the adoption of rules or orders for that purpose the judicial council of the circuit shall make the necessary orders.

The letter from Senators McConnell, Cornyn, and Tillis cited the same statute. They wrote: "The assignment of cases within district courts is governed by federal statute."

The Washington Post brings similar news:

In a statement, Chief Judge Randy Crane of the Southern District of Texas said the policy violates the federal statute 28 USC 137, which "leaves the assignment of cases to the chief judges of each court."

"Suggestions of the Judicial Council can't override that law," Crane said.

Russell Wheeler, a judicial expert at the Brookings Institution, also questioned whether the conference has the authority to mandate that the courts amend their case assignment practices. Wheeler said circuit councils, which oversee the circuit courts, have the power to issue orders — not the Judicial Conference.

"I don't know where the conference gets that authority," Wheeler said.

Crane and Wheeler are right. There is no such authority.

One defender of the policy pointed me to 28 U.S.C. § 331, which establishes the statutory authority of the Judicial Conference of the United States. This is a long statute, that lacks any clear organizational structure. Indeed, there are no section divisions. I think the most likely source of authority appears in the fourth paragraph. This paragraph is a bit of a hodgepodge.

The first two sentences refer to studying judicial practice and making recommendations:

The Conference shall make a comprehensive survey of the condition of business in the courts of the United States and prepare plans for assignment of judges to or from circuits or districts where necessary. It shall also submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business.

The remainder of the paragraph (except the last sentence) refers to the disciplinary process which appears in Title 28, Chapter 16.

The Conference is authorized to exercise the authority provided in chapter 16 of this title as the Conference, or through a standing committee. If the Conference elects to establish a standing committee, it shall be appointed by the Chief Justice and all petitions for review shall be reviewed by that committee. The Conference or the standing committee may hold hearings, take sworn testimony, issue subpoenas and subpoenas duces tecum, and make necessary and appropriate orders in the exercise of its authority. Subpoenas and subpoenas duces tecum shall be issued by the clerk of the Supreme Court or by the clerk of any court of appeals, at the direction of the Chief Justice or his designee and under the seal of the court, and shall be served in the manner provided in rule 45(c) of the Federal Rules of Civil Procedure for subpoenas and subpoenas duces tecum issued on behalf of the United States or an officer or any agency thereof. The Conference may also prescribe and modify rules for the exercise of the authority provided in chapter 16 of this title.

The final sentence in the paragraph provides:

All judicial officers and employees of the United States shall promptly carry into effect all orders of the Judicial Conference or the standing committee established pursuant to this section.

Does this sentence settle the matter? No.

First of all, judicial officers only have to "carry into effect" lawful orders. An "order" that conflicts with a federal statute is not an order at all; it a nullity. To use the General/Specific canon, Section 331 may provide a general grant of power, whereas Section 137(a) is an uber-specific delegation of power to courts to determine how cases are assigned. If there is any conflict, Section 137(a) would control.

Second, the statute references "pursuant to this section." The Judicial Conference only has the power to issue orders pursuant to the sources of authority in Section 331. You can read the entire section if you'd like. You will not see a word about directing courts how to assign cases. Any power over case assignment must be implied.

Third, perhaps the members of this august body would assert something like Chevron deference, and claim that the delegation of authority is at best ambiguous, and their reading of the statute is reasonable. Dare I respond with elephants in mouseholes? Or the fact that delegations of federal power should not be construed too broadly in the absence of evidence that Congress so clearly intended to vest this power? Do we need hypotheticals about babysitters and theme parks?

Fourth, other provisions of the Section 331 reflect that the Judicial Conference can propose "changes" and "additions" to rules in federal courts, but those recommendations would be made to the Supreme Court for adoption. There is no reference to a unilateral mandate.

Fifth, Congress gave the Judicial Power the power to "modify or abrogate any such rule" that are "prescribed under" 28 U.S.C § 2071. But the assignment of cases does not rely on the general grant in Section 2071, but instead invokes an express delegation of power in Section 137. That Congress gave the Conference some powers to "abrogate" some rules under Section 2071, but withheld that power to "abrogate" other rules, is significant.

Sixth, I apologize, but I will make an officer argument. I really can't help it. We will never be done with "officer stuff." Section 331 is directed at "judicial officers of the United States." But Section 137 refers to "the rules and orders of the court." The rules adopted by a District Court may be voted on by individual members, but they are rules of a court--an institution. If Congress wants to give the power to override court rules, it should say so clearly. Even within the judiciary, there are both horizontal and vertical separation of powers. The higher-ups can only meddle with the lower-downs when there is authority to do so.

Seventh, Section 331 provides no mechanism by which an order can be enforced.By contrast, 28 U.S.C. 332(d)(2) expressly gives the Judicial Council of each circuit the power to initiate a contempt proceeding "in the case of failure to comply with an order." I'm not sure what happens if a District Court rejects the Judicial Conference's guidance. Mandamus?

I could go on, but that's enough for now.

Let's be clear. The Judicial Conference, its press release, and private press conference, gave the media the impression this was a self-executing policy that all court would have to follow. That is not accurate. I've lost count of the number of reporters I've talked to over the past few days who came away from that press conference feeling misled--and these are not conservative media outlets.

Any argument that the district courts are required to follow the Judicial Conference relies on a really, really weak reading of statutes--one that these judges would never accept in a judicial decision. And even if it was a close call whether there was a conflict between an administrative body's authority and a federal statute, the presumption should go towards narrowly construing the administrative body's rulemaking powers to avoid a conflict with the supreme law of the land. A recent decision by the Second Circuit Judicial Council, which was advised by the Executive Committee of the Judicial Conference, recognized this principle.

Comments

[JudgesFed]

Blackman being mad about this issue is really funny because you can tell he was all in on forum shopping for conservative causes.

[Drewski]

This is, what, four apoplectic blog posts from Blackman about a press release announcing a forthcoming guidance policy? Does he no longer have a job?

[Dilan Esper]

Five.

[Stephen Lathrop]

Blackman's eruptive desperation signals a worse problem than even critics of single judge divisions suspected. Maybe Blackman had something specific in the works, and feels thwarted.

I don't know how the politics ought to be managed.

National injunctions ought to be reserved to target especially significant issues, and thus be rare, and especially carefully handled. Such cases have the vulnerability to attract by their nature attempts to corrupt the single judge. That could be accomplished with a blandishment no more costly than a luxury fishing trip, or as imposing as a promise of lucrative employment upon retirement.

A proportional solution would be to legislate in Congress that national injunctions are unavailable, except for facial challenges. Mandate that original jurisdiction lies with circuit courts sitting en banc. Provide immediate appeal to SCOTUS as a matter of right. Mandate expedited handling at SCOTUS.

A legal regime of that sort would at least offer the advantage that wise clients would hesitate before hiring a lawyer as hackish as Blackman to confront the challenge.

[Jason Cavanaugh]

"I could go on, but that's enough for now."

Or you could do us all a favor and be done.

[Rev. Arthur L. Kirkland]

A single-judge division may not be a real division but it is a real waste of public funds.

[John F. Carr]

I might be able to get Blackman to change his mind. Austin is temporarily a single judge division starring the liberal Judge Pitman and co-starring two senior judges and a vacancy. Now all I need is a politically charged case to shop there...

[ReaderY]

It’s worth noting here that there’s no dispute that the Judicial Council has express statutory authority to “prepare plans for the assignment of judges.”

Nor is there any dispute that what it did was exactly that.

The sole issue driving this effusion of effluvial posts is that, because the press release used the word “policy” rather than the magic word “plan,” it is insinuated that it is somehow exceeding its authority and therefore it is somehow the DUTY of chief district judges to disobey it.

Notice how the art of bullshit is applied by a truly master artist. The master bullshitter skillfully avoids having to admit that he has not the slightest credible policy argument to make against the plan, since he knows perfectly well that he and chief judges who don’t want to follow it are going to be laughed at if they try to come up with some sort of mumbo-jumbo argument why the present approach is better. Instead, seizing on the use of the word “policy” instead of the magic word plan, he stretches the term “policy” into a claim that the Judicial Council is somehow issuing direct orders to chief judges. Having set up this straw man – I think straw overstates its sturdiness – he then proceeds to knock it down by insuating that chief judges must defy it na-na-na-na-na style in order to show that they and not the Judicial Council are the boss here.

It’s worth noticing the fundamental basis of this bullshit. The fundamental basis is expecting his audience to react to na-na-na-na-na arguments. Only a bully, used to bullying to get his way, would think to try to think to rile folks up by reframing a very reasonable plan, stated in moderate terms by an entity specifically statutorily authorized to make such plans, as an ultra vires attempt to BULLY district judges.

There is something particularly sinister about this bullshit. It doesn’t merely distract. It closely channels the way bullies and street gang leaders rile up the fighters. It insinuates that our turf has been threatened. The TYPE of bullshit, not just what it distracts from but what it distracts too, matters. It’s not just the complete absence of even a bullshit pretense of a rational policy argument. It’s what this bullshitter would substitute for policy discussion.

This particular bullshit technique, converting a word choice into a “they’re threatening our turf” argument, is not merely very far from the way rational leaders of peaceful, civilized constitutional republics make decisions. If is an express subversion of our Republican form of government and the peace of our society, using false threats and absurd mischaracterizations, to rile people up against each other in order to take advantage of the chaos.

[Michael P]

It’s worth noting here that there’s no dispute that the Judicial Council has express statutory authority to “prepare plans for the assignment of judges.”

Nor is there any dispute that what it did was exactly that.

There's absolutely no dispute that you are lying, as evidenced by you ignoring a key clause in what you quoted and how people normally use language. You're advocating for a reading of "plans for assignment of judges to or from circuits or districts where necessary" to include mandatory temporary reassignments of judges only for the few seconds it takes to assign specific cases. That's the kind of aggressively bad-faith, motivated distortion of language that makes normal people hate lawyers.

[ReaderY]

I notice you don’t actually dispute that if certain cases were assigned to a single-judge district, then the way to achieve random assignment would be to assign it to a judge from outside the district. This is of course precisely “assignment of judges to or from…districts.” Nor are you attempting to claim it’s not “necessary” in these circumstances.

You seem to be arguing that the statute is referring to some sort of permanent reassignment so that doing so temporarily for one case is outside its scope.

Could you provide some support for this interpretation? I notice you have elected to skip any argument that your proposed implicit narrowing of the statute’s language, to add words that aren’t actually there has some sort of legitimate justification.

[David Nieporent]

I notice you don’t actually dispute that if certain cases were assigned to a single-judge district, then the way to achieve random assignment would be to assign it to a judge from outside the district. This is of course precisely “assignment of judges to or from…districts.” Nor are you attempting to claim it’s not “necessary” in these circumstances.

ReaderY: for the sake of clarity, you mean "division," not "district."

[Michael P]

I assert that purporting to assign a judge to a particular division only for the purpose of a single case is actually assigning the case, not the judge. That’s why I called out the abuse of language.

Piled on top of DMN’s observation that the purported assignment would actually have to be of judges to a division, you are even farther from any authority that has been granted to the Judicial Conference.

[SimonP]

It is not surprising to me, at all, that Josh and other partisan cranks are so upset by this policy, because it prevents them from doing precisely what they've been doing - which is repealing legislation through court fiat, via cases strategically brought before Trump judges in Texas and Louisiana and only lightly controlled by the activist and revanchist Fifth Circuit. And it is not surprising to me, either, that these enemies of the rule of law and proper constitutional order are gearing up to simply ignore a policy that would purport to limit their authority to engage in this campaign.

What is, perhaps, surprising to me is that Josh also purports to teach students - high school students, at that - about our legal system. Josh Blackman has got to be one of the worst people to be teaching impressionable young students about our system. This is a man who has supported bounty laws targeting the exercise of constitutional rights, egregious forum shopping to obtain national injunctions, and is now encouraging judges to ignore judiciary policies that purport to limit their ability to rule in accordance with their extremist vision.

Josh is, in essence, advocating for the dissolution of the rule of law, for the sole reason that doing so makes it easier to push extremist legal positions. Josh is an ambitious and cynical hack who is doing this just to burnish his own CV. Get him away from the kids.

[ah....Clem]

Well, it's obvious that he's angling for a promotion to get him out of the South Texas College of Law Houston.

Do you think he'll ever make it to a third-rate law school?

[Estragon]

With that mop? Unlikely. Get thee to a supercuts, Josh!

[Rev. Arthur L. Kirkland]

There's a whole bunch of things that keep Prof. Blackman mired at South Texas College of Law Houston; coiffure doesn't make the list.

Here's more Hartman, from a bipartisan perspective.

I find it impossible to determine which is better. Each a masterpiece, in my judgment, from one of America's great cultural institutions.

[GKHoff]

During Republican administrations, cases contesting laws and policies are almost invariably brought in the Northern District of California, which is only lightly controlled by an equally activist Ninth Circuit. Forget it, Jake. It's politics.

[Armchair]

It's worth pointing out why this proposed "policy" is problematic

1. It's illegal. Congress makes the laws, not the judicial conference.

2. Even if something is a good idea, accomplishing it via illegal means is a bad idea. For multiple reasons. Denoted below

2a. It puts the new concept in a hazy legal/not legal status. Not ideal.
2b. It undermines the separation of powers. Also not ideal.
2c. It puts more political pressure (not less) on the courts, if it's observed that such pressure can get one's changes through (without needing to go through Congress)
2d. It makes it more difficult to get potentially difficult legislation passed in the future. This really does need to be reinforced, as its become far too common lately. Passing legislation is difficult. You've got 535 different individuals, then a president on top of that. Compromises need to be made. But if you can get "your" idea through by pressuring the courts, you don't need that pesky compromise. That's a problem long term, because then you run into 2a-2c again.

---Now the usual rebuttal here is "But it's too hard to pass legislation because of that dumb other party". That runs into 2a-d again however.

[David Nieporent]

This is not a law. Thus, to mildly paraphrase Vincent LaGuardia Gambini, everything you just said is bullshit.

[Drewski]

Factually false on all counts, including the strawman argument. The rebuttal is "it's both legal and desirable."

[QuantumBoxCat]

Just wait until Josh learns that the Judicial Conference committee on civil rules brought up 28 U.S.C. 2072 (The Enabling Act) during its discussion of rulemaking authority as applied to random case assignment (clause “b” will blow his mind).

28 U.S. Code § 2072 – Rules of procedure and evidence; power to prescribe

(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.

(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.

(c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title.

[Lawperson5000]

His inability to wrestle with 2071 and 2072 is truly telling. I think you have to do better than "section 137 gives this particular power to the district courts but all other rules can be brought under 2071", especially as we are talking only about cases that "bar or mandate state or federal actions, whether by declaratory judgment and/or any form of injunctive relief." I would also think there is a constitutional argument under Article III that case management is a "judicial power" notwithstanding Congress's power to create lower courts.

[Life of Brian]

Not my day job, but it feels like we're about to go down another "ignore the forest -- look at the cool bark on these trees!" too-clever rabbit hole.

To wit, it's exceedingly unclear to me which of "general rules of practice and procedure and rules of evidence for cases" is supposedly implicated by rules regarding the wholesale shuttling of the cases themselves from court to court. Given that, it's not clear that there's any real tension between 2071 and 137 at all. Happy to read anything you might have that digs into this.

[John F. Carr]

John Blackman may imagine Judge Godbey, chief of the Northern District of Texas, preparing to fight to the death to preserve case assignment rules. I think it more likely that if a higher authority prescribes a rule that tests the limits of its rulemaking authority, his district will go along with it. Why fight it? It's not an important rule like having separate restrooms for judges and the unwashed masses.

The original intent of section 2072(b) was to implicitly repeal any old statutes that were still on the books when the new rules were adopted many decades ago. Congress and the courts were cooperating. They do that sometimes.

[Lawperson5000]

I agree that whether it is "policy" or "plan" or "rule" may be a distinction without a difference. It is hard to imagine this being adjudicated.

[Thrax]

Josh--

Judge Kacsmaryk has an address, you know. You can send your love notes to him there! There's a better chance he'll read them that way.