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John Roberts' Subject Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Intercircuit Tribunal
(5 of 5)
Box: 29
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
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WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
CAS 8/12/2005
File Folder
JGR/INTERCIRCUIT TRIBUNAL (5)
FOIA
F05-139/01
Box Number
29
COOK
26CAS
DOC Doc Type
Document Description
No of Doc Date Restrictions
NO
Pages
1 LETTER
JOHN ROBERTS TO JUDGE HENRY
1 11/18/1983 B6
1242
FRIENDLY (OPEN IN WHOLE)
2 LETTER
ROBERTS TO FRIENDLY (ORIGINAL OF
1 11/18/1983 B6
1243
ITEM #1) (OPEN IN WHOLE)
CUPY Reagan Presidential Record
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
E.O. 13233
C. Closed in accordance with restrictions contained in donor's deed of gift.
THE WHITE HOUSE
WASHINGTON
November 18, 1983
Dear Judge:
I know the last thing you need is additional reading
material, but I thought the enclosed may be of interest
since it contains the Administration's long-awaited state-
ment of a position on the Intercircuit Tribunal proposal.
The position bears the muddled marks of compromise, but came
out considerably better than I had reason to expect. Basi-
cally, the Administration opposes the Tribunal unless it is
accompanied by reforms directed to the underlying causes of
the caseload problem throughout the federal judiciary. Such
reform would include abolition of Supreme Court mandatory
appellate jurisdiction, repeal of diversity jurisdiction,
and restrictions on prisoner petitions (§ 1983 as well as
habeas corpus). In other words, we will only support the
proposal if other reforms are enacted that render it
unnecessary -- admittedly an odd position logically, but at
least on the right side of the question.
There will be peace in Lebanon before Congress repeals di-
versity jurisdiction or restricts prisoner petitions, so I
think our position is fairly fixed. The copy of your letter
to Representative Kastenmeier provided valuable ammunition
for the internal deliberations on this question, for which I
am grateful.
Warmest personal regards for the holiday season.
COPY Reagan Presidential Record
Sincerely,
John
John Roberts
The Honorable Henry J. Friendly
United States Court of Appeals
Second Circuit
U.S. Courthouse
New York, NY 10007
STATEMENT
OF
JONATHAN C. ROSE
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL POLICY
CONCERNING
THE WORKLOAD OF THE SUPREME COURT
BEFORE
THE COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES
AND THE ADMINISTRATION OF JUSTICE
OF THE
UNITED STATES HOUSE OF REPRESENTATIVES
NOVEMBER 10, 1983
Mr. Chairman and Members of the Subcommittee:
I am pleased to appear today to discuss the nature and
causes of the workload crisis now faced by the Supreme Court of
the United States, and some possible solutions to that problem.
My testimony today is divided into four parts. The
first part addresses the threshold issue of the existence of a
workload problem in the Supreme Court. It also addresses the
specific inquiry suggested in the invitation to testify -- the
role that government litigation policy has played in the growth
of the Court's workload.
I will then discuss the causes of the rising federal
caseload, and some measures that should be taken to reduce it.
Specifically, Part II discusses the need for greater judicial
restraint and for Congress to avoid enacting legislation that
encourages litigation. Part III discusses a variety of legisla-
tive proposals, most of which are already before Congress, which
would substantially reduce the caseloads of the Supreme Court and
the lower federal courts.
In the fourth and final part of my testimony, I will
address the Intercircuit Tribunal proposal.
- 2
I.
The Supreme Court's Work
A.
The Supreme Court's Work
In recent public stateme
Supreme Court have been essentiall
there is a serious workload proble
al measures are necessary. The st
plenary review by the Court provid
Justices' statements. Over the F
large increase in the number of
Court -- increasing from 156 in
Term. This increase in cases a
accompanied by a large increas
from Term to Term. 1/
1/
The number of cases a
to the next Term rose
113 at the end of th
- 3 -
Ficially, it might appear that the Justices should
bility for this increase, because the Court has
`r deny certiorari with respect to over
ernment Litigation
ses accepted for argument. However, the
the federal court system as a whole
eme Court's exercise of its
the essential problem.
Justices in their OF the view
that remediven
in the Supreme Court is
unenimous Courterning and support thatases for has the been
a
ber of potentially appeal-
"
-ts. In the 1982 Term,
plem in before there the in Supreme 1982 the been
ed in the Supreme
1979 Term and 3,400
E8T
over
me Court's
and
provide
few
arguederm
to
has
carried
in lower court
the
Cases
1979
Term
Jver
of
each
Cases
r example,
the
.000, and
number
u?
argued
accepted
at
over
largerge from in caserease
a Term. II
for Elenary review of carried m 1979
offerm end casesose of accepted 1982 Term.
-e
his
Clerk of
The to the 3 at
- 4 -
filings in the courts of appeals rose from 20,000 to nearly
30,000. 3/
If the Supreme Court is to discharge its responsibil-
ities of interpreting the Constitution, supervising the lower
courts, and resolving decisional conflicts, it is clear that the
Court cannot simply sidestep the caseload problem by reviewing an
ever-smaller fraction of lower court decisions. Accordingly, the
workload of the Supreme Court cannot sensibly be separated from
the broader problem of overload in the court system as a whole.
Remedial measures, if they are to provide more than temporary,
symptomatic relief, must address this broader problem.
B. Government Litigation
1. Litigation Statistics. The Subcommittee's in-
vitation to testify asked that the Department of Justice address
the extent of government litigation before the Supreme Court, and
its contribution to the Court's workload. While the government
continues to be the most frequent party to appear before the
3/
The statistics on inferior court caseloads in this statement
are generally taken from the Annual Reports of the Director
of the Administrative Office of the U.S. Courts. Year
numbers given in connection with such statistics refer to
the Administrative Office's reporting years, which end on
June 30. For example, reporting year 1982 covers the
twelve-month period ending June 30, 1982. Statistics
relating to the 1983 reporting year were obtained directly
from the Administrative Office of the U.S. Courts.
- 5 -
Court, the general level of government applications for review in
the Supreme Court has stayed the same over the past decade. The
average annual number of applications has been 68, ranging from a
low of 60 in 1978 and 1980 to a high of 80 in 1974. The figure
for the most recent term on which complete statistics are avail-
able, 1981, was 74. 4/
The government's applications for review are
usually granted by the Court. Over the five year period from
1977 to 1981, for example, 70 percent of the government's pe-
titions for certiorari were granted, ranging from a low of 58
percent in 1977 to a high of 79 percent in 1981. 5/ This success
rate reflects the careful screening of government cases by the
Solicitor General's office before the decision is made to file a
petition. In comparison, over the same five-year period, only
from 5 percent to 6 percent of all petitions for certiorari filed
in the Supreme Court were granted each year.
4/
Government applications from 1972 to 1981, including both
certiorari petitions and appeals, were as follows:
1981-74; 1980-60; 1979--65; 1978--60; 1977--68; 1976-65;
1975-61; 1974-80; 1973--75; 1972-73.
5/
For the period from 1972 to 1981, government petitions for
certiorari accepted out of all government petitions for
certiorari were as follows: 1981-45 out of 57; 1980-31
out of 50; 1979-43 out of 55; 1978-37 out of 52; 1977-33
out of 57; 1976-37 of of 48; 1975-38 out of 50; 1974-47
out of 66; 1973-39 out of 61; 1972-36 out of 52.
- 6 -
The number of cases in which Supreme Court review
was sought by a private party suing or opposing the government in
litigation also has not changed significantly in the past decade.
The average annual number of applications was 1,630 for the
period from 1972 to 1981, ranging from a low of 1,513 in 1972 and
1979 to a high of 1,906 in 1976. The figure for the 1981 term
was 1,589. 6/
In recent years, the government typically has
participated in some manner in about one-half of all cases
decided on the merits by the Supreme Court. In the five-year
period from 1977 to 1981, the government participated in 48
percent of such cases. 7/ During this period, 70 percent of the
cases in which the government participated were decided in favor
of the government's position. 8/
6/
The number of applications for review against the government
in the period 1972 to 1981, including both certiorari
petitions to which the government was respondent and appeals
in which the government was appellee, was as follows:
1981--1,589; 1980--1,543; 1979--1,513; 1978--1,735;
1977--1,669; 1976--1,906; 1975--1,532; 1974--1,666;
1973--1,632; 1972--1,513.
7/
Cases in which the government participated out of all cases
decided by the Court from 1977 to 1981 were as follows:
1981-136 out of 315; 1980-128 out of 277; 1979-158 out of
281; 1978-122 out of 267; 1977-139 out of 276.
8/ Cases decided favorably to the government out of all cases
in which the government participated from 1977 to 1981 were
as follows: 1981-1111 out of 136; 1980-92 out of 128;
1979-104 out of 158; 1978-82 out of 122; 1977-87 out of
139.
- 7 -
The statistical data suggests that the government's
re-litigation policy has not been a significant factor in the
recent increase in the Supreme Court's workload. Both the number
of cases argued before the Court in which the government was a
party 9/ and the number of cases accepted for review by the Court
in which the government was a party 10/ have decreased each year
since 1979, and have generally decreased over the past ten years. 11/
2. Litigation Policy. The Subcommittee's
invitation also requested that the Department discuss the effect
of government litigation policy or practice on the generation or
avoidance of intercircuit conflicts. In general, the government
is in the same position as other parties with regard to its
ability to re-litigate legal issues before different courts of
9/ The number of argued cases in which the government
participated as petitioner, respondent, appellant or
appellee from 1972 to 1981 was as follows: 1981--57;
1980--68; 1979-78; 1978--63; 1977--75; 1976--65; 1975-76;
1974-89; 1973--67; 1972-75.
10/ For example, the number of granted certiorari petitions
filed by the government together with the number of granted
certiorari petitions to which the government was respondent
from 1972 to 1981 were as follows: 1981--63; 1980-79;
1979--94; 1978-88; 1977-82; 1976--114; 1975-80; 1974-93;
1973-108; 1972-87. When the number of mandatory cases
accepted for plenary review (set for argument or
jurisdiction noted) in which the government was appellant or
appellee are added in, the figures are as follows:
1981-83; 1980-95; 1979-103; 1978-96; 1977--89;
1976--123; 1975-94; 1974-114; 1973--128; 1972--102.
11/ See also the figures cited in notes 4-8 supra.
- 8 -
appeals. Following an adverse decision, both the government and
the private parties it faces in litigation may assert the view of
the law each believes to be correct in later cases before other
courts of appeals, or even in later cases before the same court
of appeals where that court is asked to overrule an adverse
precedent. Experience shows that the government's position is
usually vindicated when the Supreme Court finally decides an
issue that has been litigated in a number of circuits.
The timing of the decision to seek Supreme Court
review, as it relates to intercircuit conflicts, also merits some
brief discussion. If the initial decisions on an issue are
favorable to the government's position then there is, of course,
no basis for the government to seek Supreme Court review. The
question will only arise if private parties opposing the govern-
ment's position decide not to acquiesce in these decisions and
obtain favorable rulings upon re-litigation of the issue in later
cases.
In some cases where the initial decision is adverse to
the government, the issue presented is of such pressing impor-
tance that we will seek Supreme Court review immediately. One
example is the district court decision in United States V.
Ptasynski, 12/ which invalidated the crude oil windfall profits
12/ Ptasynski V. United States, 550 F. Supp. 549 (D. Wyo. 1982),
rev'd, 103 S. Ct. 2239 (June 6, 1983).
- 9 -
tax. More frequently, however, Supreme Court review will not be
sought until favorable decisions have been obtained in other
circuits. This practice reflects, in part, the fact that the
Supreme Court is more likely to grant review if it sees a need to
resolve a difference among the circuits. It also reflects the
general consideration that a reviewing court is more likely to
uphold the position of a litigant if that position is supported
by the reasoned opinions of inferior courts.
As a general matter, re-litigation of issues in differ-
ent circuits, within reason, is not undesirable and has positive
value in promoting the sound development of the law. The appel-
late judges who first address an issue may not fully appreciate
the ramifications of their decision. Early decisions may be
found to be wrong or overbroad by courts that consider an issue
later with the benefit of both the initial decisions and the
arguments of counsel that focus on the reasoning and practical
consequences of those decisions. Re-litigation of an issue also
enables the lower courts to set out different options and to
explore different resolutions of a legal question. This aids the
Supreme Court when it finally considers the issue.
- 10 -
II.
The Need for Restraint
A. Judicial Restraint
While the Supreme Court cannot be faulted for hearing
more cases, in light of the caseload explosion in the district
and circuit courts, it seems evident that some of the Court's
decisions have contributed to that explosion. In recent times,
the Supreme Court has demonstrated a hospitality to constitu-
tional arguments which address claims the resolution of which has
traditionally been the responsibility of the state judiciaries or
the political process. It has been observed that the Court has
been part of a trend wherein the role of the courts is viewed
less as one of interpreting the Constitution and statutes, guided
principally by their text and the legislative intent of the
Framers and Congress, to one that encourages courts to resolve
public policy questions guided by the perceived values of an
enlightened society. 13/ We view this trend of moving from
interpretivism to judicial activism as disturbing. To some
degree, decisions that expand rights and enlarge judicial rem-
edies foster more litigation and counteract the intended effect
of court reform legislation.
The growth of prisoner litigation provides a good
illustration of this problem. Thirty years ago, the number of
13/ See R. Bork, The Struggle Over the Role of the Court,
National Review 1137-39 (September 17, 1982).
- 11 -
suits brought by prisoners in the federal courts each year was
about thirteen hundred. 14/ Today, the annual figure is about
30,000, and the number continues to increase rapidly from year to
year. 15/ Prisoner petitions are exceptional among major cate-
gories of federal litigation -- not only are they typically
frivolous, but they are also largely unaffected by the normal
disincentives to litigation. The expense of attorney's fees and
other costs -- a significant deterrent to frivolous suits in most
other areas -- is largely absent, since most prisoners sue pro se
and qualify for in forma pauperis status. 16/ Since litigation
appeals to prisoners primarily 'as a legitimized form of aggres-
sion against the system and a means of relieving boredom, 17/ the
normal disincentive of the stress and unpleasantness of litiga-
tion is also largely inapplicable.
14/ The number of prisoner suits in 1953 was 1,336; it had been
fairly constant for the preceding decade and was 1,204 in
1944. By 1961 the number had increased to 2,609; by 1970 to
15,997; and by 1982 to 29,303. A table giving annual
figures from 1961 to 1982 appears in Rep. No. 226, 98th
Cong., 1st Sess. 4 n.ll (1983).
15/ See S. Rep. No. 226, 98th Cong., 1st Sess. 4 n.ll (1983).
16/ See P. Robinson, An Empirical Study of Federal Habeas Corpus
Review of State Court Judgments 4 (a) (Dept. of Justice 1979)
(in sample studied, 81.8% of habeas corpus petitions in
forma pauperis and 79.28 pro se) ; Turner, When Prisoners
Sue: A Study of Prisoner Section 1983 Suits in the Federal
Courts, 92 Harv. L. Rev. 610, 617 (1979) (prisoner $1983
suits in sample studied overwhelmingly in forma pauperis and
pro se); Note, Limitation of State Prisoners' Civil Rights
Suits in the Federal Courts, 27 Catholic L. Rev. 115,
116-17 (1977).
17/ See generally Note, supra note 16.
- 12 -
Congress never authorized this flood of litigation; its
growth is primarily attributable to judicial decisions. The
legal basis for such suits was provided primarily in the 1950's,
1960's and 1970's, when the Court expanded the federal causes of
action contained in surviving fragments of Reconstruction-era
legislation. This is true of both suits under 42 U.S.C. § 1983 18/
and federal habeas corpus petitions by state prisoners, 19/ which
together account for the bulk of prisoner litigation. 20/ The
Supreme Court, as well as the lower courts, has suffered from the
impact of this added caseload. In a recent term, 20 percent of
18/ See generally Developments in the Law-Section 1983 and
Federalism, 90 Harv.L.Rev. 1133, 1153-56, 1169-75 (1977).
19/ See generally William French Smith, Proposals for Habeas
Corpus Reform in R. Rader & P. McGuigan, eds., Criminal
Justice Reform: A Blueprint 137, 137-40, 147-50 (1983) ;
Bator, Finality in Criminal Law and Federal Habeas Corpus
for State Prisoners, 76 Harv. L. Rev. 441, 463-507 (1963) ;
Mayers, The Habeas Corpus Act of 1867: The Supreme Court as
Legal Historian, 33 U. Chi. L. Rev. 31 (1965) ; Oaks, Legal
History in the High Court--Habeas Corpus, 64 Mich. L. Rev.
451 (1966).
20/ See Rep. No. 226, 98th Cong., 1st Sess. 4 n.ll (1983).
The remedy for federal prisoners corresponding to state
prisoner habeas corpus is the motion remedy of 28 U.S.C.
$2255. The $2255 motion remedy is essentially a
codification of habeas corpus, as it applies to federal
convicts, and its expansion in scope through judicial
innovation has gone hand-in-hand with the corresponding
expansion of state prisoner habeas corpus. The remedy
against federal officials corresponding to $1983 suits
against state officials is the Bivens-type action, which was
created ex nihilo in the case of Bivens V. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971).
- 13 -
the cases decided by the Court involved $ 1983 and over 10
percent of all filings in the Court were state prisoner habeas
corpus cases. 21/
The tremendous growth in the number of actions under 42
U.S.C. $1983 deserves particular note. 22/ Section 1983 was
enacted in 1871 as a direct response to the rise of Ku Klux Klan
terrorism in the South during Reconstruction, and the general
unwillingness or inability of the governments in the former
Confederate States to control this pervasive disorder. Original-
ly intended as a narrow civil remedy, § 1983 has ballooned into a
major source of federal court litigation with a scope far beyond
anything that Congress contemplated in 1871. The 1,254 pages of
annotations under 42 U.S.C.A. § 1983 (1981) reflect the enormous
range of state and local activity that is now the subject of
21/ See Justice Sandra Day O'Connor, "Comments on the Supreme
Court's Workload," Delivered Before a Joint Meeting of the
Fellows of the American Bar Foundation and the National
Conference of Bar Presidents, New Orleans, Louisiana,
February 6, 1983, at 14 (20% of cases decided by Supreme
Court in the 1981 term involved § 1983); Justice Lewis F.
Powell, Address Before the A.B.A. Division of Judicial
Administration, San Francisco, California, Aug. 9, 1982, at
13 n.14 (estimated 450 state prisoner habeas corpus cases
filed with Supreme Court in 1981 term) ; see also id. at 9
n.10 ("During the 1981 Term
petitions for certiorari
were filed in more than 30 cases by a single prisoner. Each
petition
... became a case on our docket, duplicate copies
were sent to each Justice, and each of us had to make a
personal decision as to the petition's merit. ").
22/ In 1960, only 280 suits filed in federal district courts
were characterized as "civil rights" actions. For reporting
year 1983, it can be estimated that § 1983 suits alone
accounted for over 26,000 cases in the district courts.
- 14 - -
litigation under § 1983. No grievance seems too trivial to
escape translation into a § 1983 claim. For example, the ques-
tion whether a school official who insisted that a student cut
his or her hair has invaded a Constitutional right and is liable
under § 1983 has been before every federal court of appeals and
has drawn at least nine denials of certiorari from the Supreme
Court, three of them with dissenting opinions. 23/
The dramatic increase in the scope of § 1983 is the
result of several decisions. First, the Court has held that
§ 1983 applies to the actions of state officers even where the
actions are unsupported by state law, custom and usage, and
adequate state-law remedies exist. 24/ Thus, $ 1983 now covers
many wrongs previously actionable only in state tort suits.
Second, the Supreme Court has held that municipalities are
"persons" subject to suit under § 1983 and that a municipality
has no "good faith" defense to § 1983 actions. 25/ Third, the
Court has said that even negligently caused injuries may be
encompassed by § 1983. 26/ Finally, because exhaustion of state
23/ See Zeller V. Donegal School District Bd. of Education, 517
F.2d 600, 602-03 (3d Cir. 1975).
24/ See Monroe V. Pape, 365 U.S. 167 (1961). But see id. at
225-36 (Frankfurter, J., dissenting) (legislative history
shows that § 1983 was not meant to reach acts subject to
state remediation).
25/ See Monell V. Dept. of Social Services of the City of New
York, 436 U.S. 658 (1978), overruling Monroe V. Pape, 365
U.S. 167 (1961); Owen V. City of Independence, 445 U.S. 622
(1980).
26/ See Paratt V. Taylor, 451 U.S. 527 (1981).
- 15 -
administrative remedies is not a prerequisite to bringing suit
under $ 1983, 27/ individuals and municipalities often are not
given the chance of resolving disputes before cases are filed in
federal court.
Increased litigation also results when constitutional
rights are defined ambiguously, or in a manner that requires
unfeasibly precise judgments or distinctions in their application.
In the areas of obscenity and automobile searches, for example,
upon occasion the Court drew lines so fine or uncertain that a
case-by-case determination by the Court seemed to be required in
every instance. 28/ When the rules of decision are unclear,
litigants have a powerful incentive to petition for Supreme Court
review. Now that the Court has adopted clearer rules in these
areas, 29/ the number of such cases coming to the Supreme Court
should decrease significantly.
While the Court has resolved many uncertainties that
once existed on these particular issues, new problems have arisen
27/ Patsy V. Florida Bd. of Regents, 457 U.S. 496 (1982).
28/ See Roth V. United States, 354 U.S. 476 (1957) ; Jacobellis
V. Ohio, 378 U.S. 184 (1964); Paris Adult Theatre I V.
Slaton, 413 U.S. 49, 82-83 (1973) (Brennan, J., dissenting) ;
Robbins V. California, 453 U.S. 420 (1981).
29/ See Miller V. California, 413 U.S. 15 (1973); United States
V. Ross, 456 U.S. 798 (1982) ; New York V. Belton, 453 U.S.
454 (1981).
- 16 -
in other areas. The Court's recent decision in Solem V.
Helm 30/ is a good example. In that case, the Supreme Court
invalidated a sentence of life imprisonment without parole
imposed on a seven-time felony convict, and authorized judicial
review of sentences of imprisonment for proportionality under a
set of criteria stipulated in the Court's opinion. In contrast,
its 1980 decision in Rummel V. Estelle, 31/ and its 1982 decision
in Hutto V. Davis, 32/ to all appearances, had barred such review
of prison terms. It is predictable that large numbers of incor-
rigible offenders will now challenge their sentences in federal
court, and that considerable efforts will be required to elabo-
rate on the Solem test. 33/
The decision in Solem is particularly disturbing in
light of the previous effects of corresponding developments in
the area of capital punishment. Invoking similar principles of
proportionality, the Supreme Court, since 1971, has imposed a
host of special requirements and restrictions on the imposition
of capital sentences. The over-particularization of Constitu-
tional rights in that area, coupled with the open-ended
availability of habeas corpus and dilatory tactics by defense
30 / 51 U.S.L.W. 5019 (June 28, 1983).
31/ 445 U.S. 263 (1980).
32/ 454 U.S. 370 (1982).
33/ See 51 U.S.L.W. at 5029 (Burger, C.J., dissenting).
- 17 -
attorneys in capital cases, has virtually nullified the capital
punishment legislation of the states. 34/ For the foreseeable
future, it appears that capital cases will be the subject of
endless litigation in the state courts, the inferior federal
courts, and the Supreme Court itself.
It also appears that the Court may make its job more
burdensome by the length of its opinions. Last term, the Court
issued 151 full opinions, many of which were long, broad in
scope, and heavily footnoted, and which contained an extra-
ordinary number of concurrences and dissents. The number of
opinions per case may reflect an unavoidable division of opinion
over the correct result in some cases. However, the number of
long, exhaustive opinions could be an indication that the Court
is not resolving the minimum number of issues on the narrowest
possible grounds. 35/
34/ See generally William French Smith, Proposals for Habeas
Corpus Reform in P. McGuigan and R. Rader, eds., Criminal
Justice Reform: A Blueprint 137, 145-46 (1983) ; Statement
of Justice Lewis F. Powell Before the Eleventh Circuit
Conference in Savannah, Georgia, May 8-10, 1983, at 9-14.
35/ For the view of a state justice on how a court can make its
job easier without decreasing its docket, see Douglas, How
to Write a Concise Opinion, 22 Judges' Journal 4 (Spring
1983).
- 18 -
B.
Congressional and Executive Restraint
As the federal government has assumed a greater role in
the economic and social life of the nation, the function and
authority of the federal courts has also greatly expanded. The
courts have been charged with the interpretation and implementa-
tion of a plethora of new statutes and regulations. In proposing
and enacting many of these initiatives, and particularly the
economic regulatory statutes passed over the last dozen years,
both the Executive Branch and the Congress have unnecessarily
encouraged litigation and, in effect, have left critical policy
decisions for resolution by the courts.
The most fundamental objections to this trend reflect
concerns of federalism and the separation of powers; the in-
creased power of the federal judiciary is necessarily at the
expense of the functions of the state judiciaries and the Consti-
tutional prerogatives of the political branches of government.
The caseload problem provides additional support for a cautious
attitude by Congress and the Executive toward proposals to
enlarge the role of the courts.
If all federal statutes were precise and unambiguous,
and judicial review of their implementation were narrowly circum-
scribed, the resulting role and workload of the courts would be
less significant. Under many federal statutes, however, the
substantive standards or standards of review (or both) are
- 19 -
ambiguous or inconsistent. 36/ This thrusts the courts into a
policy-making role and ensures that abundant opportunities for
litigation will arise in the administration of the affected
programs.
The adverse consequences of effectively delegating
legislative functions to the courts through vague or open-ended
statutes are frequently compounded by legislative decisions to
delegate enforcement functions to unaccountable private inter-
ests. This tendency is reflected both in broad statutory defini-
tions of the classes of persons given standing to sue under
regulatory statutes 37/ and in ever-broader statutory authori-
zation of awards of attorney fees against the government. Under
the traditional American rule, each party bears its own costs of
litigation. Statutory departures from this rule may establish
favorable standards for the award of fees to a party prevailing
36/ Examples include the Freedom of Information Act, 5 U.S.C.
§ 552; Clean Air Act, 42 U.S.C. §§ 7401 et seq.; Surface
Mining Control and Reclamation Act, 30 U.S.C. §§ 1201 et
seq.; Endangered Species Act, 16 U.S.C. §§ 1531 et seq.;
Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq.;
Federal Insecticide, Fungicide, and Rodenticide Act, 7
U.S.C. §§ 136 et seq.; Occupational Safety and Health Act,
29 U.S.C. SS 651 et seq.; and Employee Retirement Income
Security Act, 29 U.S.C. §§ 1001 et seq.
37/ Suits by "any person" or "any citizen" are authorized to
enforce a broad range of regulatory statutes including the
Clean Air Act, 42 U.S.C. $ 7604; Endangered Species Act, 16
U.S.C. § 1540 (g) ; Federal Water Pollution Control Act, 33
U.S.C. § 1365; Marine Protection, Research and Sanctuaries
Act, 33 U.S.C. § 1415 (g); Noise Control Act, 42 U.S.C.
§ 4911; and Toxic Substances Control Act, 15 U.S.C. § 2619.
- 20 -
against the government but provide no comparable authorization
for the government to recover the full costs of a suit it has
defended at the public's expense where the outcome of the litiga-
tion demonstrates that the suit was unwarranted. 38/ When the
incentives are structured in this manner, it is inevitable that
such suits will proliferate.
Considering the effects of broad judicial review in
many areas and the workload crisis in the court system, proposals
to create judicial review in areas in which it does not currently
exist should be approached with caution. In the area of veterans
benefits determinations, for example, judicial review is now
generally barred by statute. 39/ The Senate has passed legis-
lation which would create judicial review in that area. 40/ When
the courts are struggling with their current caseloads, one may
38/ See, e.g., Hensley V. Eckerhart, 103 S. Ct. 1933, 1937 & n.2
(1983) construing Civil Rights Attorney Fees Awards Act, 42
U.S.C. § 1988 (in suits under 42 U.S.C. $ 1983 and other
specified civil rights statutes, prevailing plaintiff
normally receives attorney fees but prevailing defendant
only receives fees if suit was frivolous or harassing) ;
Freedom of Information Act, 5 U.S.C. $ 552 (a) (4) (E)
(statutory authorization of awards of attorney fees limited
to assessment of fees against the United States in favor of
substantially prevailing complainants).
39/ See 38 U.S.C. § 211(a).
40/ S. 349 of the 97th Congress.
- 21 -
question the wisdom of a change the immediate effect of which
would be a major increase in the workload of the district
courts. 41/
Proposals to increase the scope of judicial review in
areas in which it currently exists in a more limited form are
another type of change that merits careful scrutiny in light of
these concerns. The proposal to eliminate the presumption of
validity for administrative action (the "Bumpers Amendment")
provides an example. 42/ If parties challenging administrative
action have the benefit of review standards that afford them a
greater likelihood of success, such challenges will necessarily
be brought with greater frequency.
III.
Legislative Reforms
In the long run, judicial restraint and the enactment
of legislation that neither encourages litigation nor defers
legislative decisions to the courts is the surest way to bring
the caseload explosion under control. However, there are immedi-
ate steps that could be taken to reduce federal caseloads.
41/ See Statement of Deputy Assistant Attorney General Carolyn
B. Kuhl Concerning Judicial Review of Veterans' Claims
Before the Subcomm. on Oversight and Investigation of the
House Comm. on Veterans' Affairs (July 21, 1983) ; S. Rep.
No. 466, 97th Cong., 2d Sess. 141-43 (1982)
42/ See generally Statement of Assistant Attorney General
Jonathan C. Rose on S. 1080 Before the Subcomm. on
Administrative Practice and Procedure of the Senate Comm. on
the Judiciary (Sept. 21, 1983).
- 22 -
Several reform proposals now before Congress would go far toward
meeting the workload problem faced by the Supreme Court and the
rest of the federal judiciary.
A.
Supreme Court Mandatory Appeals
As stated in our letter of September 13 on H.R. 1968,
the proposal to make the Supreme Court's appellate jurisdiction
fully discretionary, except for appeals from three-judge district
courts, should be enacted immediately. 43/ In the 1982 term, for
example, 21 appeals set for oral argument would have been eligi-
ble for review only by certiorari under the reform. 44/ There is
no means of determining precisely how many of these cases would
have been accepted for discretionary review. However, the
Justices have stated that they often find it necessary to call
for full briefing and oral argument in mandatory appeal cases of
no general public importance on account of the complexity of the
legal questions presented. 45/ Since such cases would simply be
43/ See Letter of Assistant Attorney General Robert A. McConnell
to Honorable Peter W. Rodino Concerning H.R. 1968 (Sept. 13,
1983).
44/ The figure of 21 does not include four appeals from
three-judge district courts, which would not be affected by
the reform of H.R. 1968. The remaining cases set for
argument in the term were 154 certiorari cases and 3
original jurisdiction cases.
45/ See Mandatory Appellate Jurisdiction of the Supreme Court --
Abolition of Civil Priorities -- Juror Rights: Hearing on
H.R. 2406, H.R. 4395 and H.R. 4396 Before the Subcomm. on
(Footnote Continued)
- 23 -
denied review if presented on certiorari, it is clear that the
reform would be of significant value in reducing the Supreme
Court's workload, though not by itself sufficient to resolve the
workload problem. 46/
B.
Diversity Jurisdiction
The Department of Justice has consistently supported
proposals to limit or abolish diversity jurisdiction, 47/ which
in the past year burdened the federal district courts with over
57,000 state law cases. Diversity cases account for about
one-quarter of all civil filings, 40 percent of all civil trials,
and 60 percent of all civil jury trials in the federal courts.
The general elimination of diversity jurisdiction would not only
relieve the district courts of this burden, but would also
produce a large reduction in the workload of the courts of
appeals -- about 15 percent of all appeals of district court
decisions arise in diversity cases.
(Footnote Continued)
Courts, Civil Liberties and the Administration of Justice of
the House Comm. on the Judiciary, 97th Cong., 1st Sess.
22-24 (1982) (letter of the Justices to Chairman Kastenmeier).
46/ See Justice Sandra Day O'Connor, "Comments on the Supreme
Court's Workload," Delivered Before a Joint Meeting of the
Fellows of the American Bar Foundation and the National
Conference of Bar Presidents, New Orleans, Louisiana,
February 6, 1983, at 12.
47/ See generally Diversity of Citizenship Jurisdiction:
Hearing on H.R. 6691 Before the Subcomm. on Courts, Civil
(Footnote Continued)
- 24 -
The House of Representatives has passed a bill to
abolish diversity jurisdiction in the past. Last year, this
Committee again reported the proposal favorably. 48/ Unfortu-
nately, this important reform has not been viewed favorably by
the Senate. I should note, Mr. Chairman, that you recently
introduced a series of bills that would limit diversity jurisdic-
tion in different ways. The Department continues to support the
complete abolition of diversity jurisdiction as the best ap-
proach. While we have not yet taken formal positions on the
specific proposals in these bills, we are encouraged by the
practical and flexible approach they represent, and hope that
they may provide the basis for a generally acceptable compromise.
C. Habeas Corpus
There is a generally recognized need for reform in the
system of federal collateral remedies, including federal habeas
corpus for state prisoners, by which the federal district
courts effectively engage in appellate review of state criminal
cases. 49/ The Administration's habeas corpus reform proposals
(Footnote Continued)
Liberties and the Administration of Justice of the House
Comm. on the Judiciary, 97th Cong., 2d Sess. 7-12 (1982)
(testimony of Assistant Attorney General Jonathan C. Rose).
48/ See 129 Cong. Rec. H 6023 (daily ed. July 29, 1983) (remarks
of Rep. Kastenmeier).
49/ See, e.g., Rose V. Lundy, 455 U.S. 509, 546-47 (1982)
(Stevens, J., dissenting) ; Schneckloth V. Bustamonte, 412
(Footnote Continued)
- 25 -
were considered expeditiously in the Senate following their
transmittal in March of 1982, and they have been reported fa-
vorably by the Senate Judiciary Committee in this Congress by a
vote of 12 to 5. 50/ There have, however, been no hearings or
other action on the proposals in this Subcommittee in the twenty
months since their transmittal, though a number of the Subcom-
mittee's members have sponsored bills incorporating them. 51/ We
strongly recommend that the Subcommittee act promptly on our
proposals in the next session of Congress.
(Footnote Continued)
U.S. 218, 250 (1973) (concurring opinion of Powell, J.,
joined by Burger, C.J., and Rehnquist, J.); Chief Justice
Warren E. Burger, 1981 Year-End Report on the Judiciary 21;
Sandra Day O'Connor, Trends in the Relationship Between the
Federal and State Courts from the Perspective of a State
Court Judge, 22 William & Mary L. Rev. 801, 814-15 (1981) ;
Justice Lewis F. Powell, supra note 21, at 9-13; Interview
with Justice Potter Stewart, 14 The Third Branch 1, 6 (Jan.
1982) ; Judge Carl McGowan, The View from an Inferior Court,
19 San Diego L. Rev. 659, 667-69 (1982) ; Judge Henry
Friendly, Is Innocence Irrelevant? Collateral Attack on
Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970) ; The
Habeas Corpus Reform Act of 1982: Hearing on S. 2216 Before
the Senate Comm. on the Judiciary, 97th Cong., 2d Sess.
231-40 (1982) ; see generally S. Rep. No. 226, 98th Cong.,
1st Sess. 3-6 (1983).
50/ See S. Rep. No. 226, 98th Cong., 1st Sess. 31 (1983). The
Senate bill is S. 1763; the corresponding House bill in the
current Congress is H.R. 2238. See generally the cited
Senate Committee Report, supra; The Habeas Corpus Reform Act
of 1982: Hearing on S. 2216 Before the Senate Comm. on the
Judiciary, 97th Cong., 2d Sess. 16-107 (1982) (Administration
statements and testimony); William French Smith, supra note
19.
51/ See S. Rep. No. 226, 98th Cong., 1st Sess. 2 nn.3-4 (1983).
- 26 -
D.
Administrative Alternatives to Litigation
In certain areas, the replacement or supplementation of
existing judicial remedies with more efficient administrative
mechanisms is a promising reform option. 52/ We have supported a
general authorization of the imposition of civil penalties for
fraud under government funding and assistance programs by admin-
istrative process. 53/ This reform would reduce the litigation
burden on both the courts and the government while making the
administration of these programs and the punishment of fraudulent
practices more effective.
E. Other Reforms
There are various other possibilities that may be
considered in addressing the workload problem of the courts.
52/ See generally Recommendations and Reports of the
Administrative Conference of the United States 23-26,
203-375 (1979) (regarding monetary penalties for regulatory
violations) ; Erwin N. Griswold, "Cutting the Cloak to Fit
the Cloth: An Approach to Problems in the Federal Courts,"
The Brendan F. Brown Lecture Delivered at Catholic U. of
America Law School, Washington, D.C., March 23, 1983, at 14
(regarding employers' liability).
53/ See Program Fraud Civil Penalties Act: Hearing on S. 1780
Before the Senate Comm. on Governmental Affairs, 97th Cong.,
2d Sess. 11-29 (1982) (testimony of Assistant Attorney
General J. Paul McGrath).
- 27 -
While we have not yet taken a position on specific reforms
discussed below, we believe that they merit serious study and
consideration.
In areas in which there is a particularly great need
for technical expertise or for national uniformity and certainty
in the law, there may be value in increased use of appellate
forums with exclusive nationwide jurisdiction. The principal
existing example is the Federal Circuit Court of Appeals, which
has exclusive jurisdiction over appeals in such areas as govern-
ment contracts, international trade, and patents. 54/ This type
of reform directly reduces the workload of the regional appellate
courts by transferring certain classes of cases to national
forums. Since a substantial part of the Supreme Court's work
consists of resolving differences that arise among the various
circuits, consolidating appeals in a single forum tends to reduce
the Supreme Court's workload as well. 55/
54/ This approach is exemplified to a more limited extent by the
District of Columbia Circuit Court of Appeals. The D.C.
Circuit has concurrent jurisdiction with the regional
appellate courts in review of most types of administrative
action, but in some areas its jurisdiction is exclusive.
The Temporary Emergency Court of Appeals, a specialized
court staffed by judges from the regular circuit courts,
illustrates a different approach to consolidated appellate
review.
55/ See Justice Sandra Day O'Connor, "Comments on the Supreme
Court's Workload," Delivered Before a Joint Meeting of the
Fellows of the American Bar Foundation and the National
Conference of Bar Presidents, New Orleans, Louisiana,
February 6, 1983, at 12-13; Justice William J. Brennan, Some
(Footnote Continued)
- 28 -
Forums with nationwide jurisdiction also currently
exist at the trial level -- the Court of International Trade, the
Tax Court and the Claims Court. Trial courts of this type also
reduce the workload of the regionally-based courts by handling
certain classes of cases that would otherwise have to be adju-
dicated in the district courts. If a trial court of nationwide
jurisdiction has exclusive jurisdiction in its subject matter
area and review of its decisions is limited to a single appellate
court, economies result for the regional circuit courts and the
Supreme Court as well.
There may be additional areas in which creation of
courts with nationwide jurisdiction in defined subject matter
areas would be beneficial. For example, proposals have been
advanced to create an Article I court to assume the reviewing
function in Social Security cases which is presently carried out
in the district courts. 56/ While we have not yet taken a posi-
tion on this proposal, we view the idea with great interest.
(Footnote Continued)
Thoughts on the Supreme Court's Workload, 66 Judicature 230,
232, 235 (1983) ; Interview with Chief Judge Howard T. Markey
of the Federal Circuit Court of Appeals, 15 The Third Branch
1, 7 (Oct. 1983) (no petitions for certiorari granted by
Supreme Court to review Federal Circuit decisions in first
year of its existence).
56/ See, e.g., H.R. 3865 and H.R. 5700 of the 97th Congress.
57/ In 1981, the number of Social Security cases commenced in
the district courts was 9,319; in 1982 it was 13,188.
Extrapolating from the figure for the first nine months of
the present year (20,027), it appears that the number of
(Footnote Continued)
- 29 -
F. Omnibus Judgeships.
We have suggested a number of measures to decrease the
number of cases filed in the federal court system, and thereby
reduce the pressure on the Supreme Court from below. However, as
long as the caseloads continue to grow, and as long as the
jurisdiction of the courts and the incentives to litigate remain
the same, the need for new district and circuit judges must be
met.
Every two years, the Judicial Conference of the United'
States conducts an exhaustive study of the need for new
judgeships. The Department's experience has been that both the
procedures and the recommendations of the Judicial Conference are
sound. Since the last judgeship bill was passed in 1978, the
Judicial Conference has twice identified the new positions that
are needed. While the Senate has incorporated the Judicial
Conference's 1982 recommendations in S. 1013, the bankruptcy
courts bill approved by the Senate last April, the House has
taken no action. We strongly urge that action be taken in the
near future to create these positions.
(Footnote Continued)
Social Security cases brought in 1983 will be about 27,000.
Information provided by the Department of Health and Human
Services.
- 30 -
IV.
The Intercircuit Tribunal Proposal
Near the start of this year, Chief Justice Burger
advanced the proposal to create an Intercircuit Tribunal as an
immediate response to the workload problem of the Supreme Court.
This proposal has since been introduced in the House of Represen-
tatives as H.R. 1970 and has been reported by the Subcommittee on
Courts of the Senate Judiciary Committee as Title VI of S. 645.
The Intercircuit Tribunal proposal would provide the
Supreme Court with an adjunct tribunal to which cases could be
referred for a nationally binding decision. All versions of the
proposal have had certain common features. The Tribunal would
automatically go out of existence at the end of a certain period
of time unless renewed or continued by new legislation. The
Tribunal would be composed of sitting circuit judges. The Supreme
Court could refer any type of case to the Tribunal for a nation-
ally binding decision. The decisions of the Tribunal would be
reviewable by certiorari in the Supreme Court.
The Department of Justice has reviewed and carefully
weighed the substantial amount of testimony that has been
presented before both houses of Congress on the Intercircuit
Tribunal proposal. The recommendation of Chief Justice Burger
and the favorable comments of several scholars of the federal
- 31 -
judiciary must be given great weight. 58/ However, no consensus
has been developed for the proposed Intercircuit Tribunal, and a
number of serious concerns have been expressed about the impact
that such a tribunal would have on the operations of the federal
judiciary. 59/
The Department is not able to endorse the Intercircuit
Tribunal proposal without the concurrent adoption of significant
changes in the federal judicial system. The changes we have
suggested above would address the underlying problem of the
caseload explosion in the Supreme Court and lower federal courts.
58/ See, e.g., Chief Justice Warren E. Burger, Annual Report on
the State of the Judiciary (Feb. 6, 1983) ; Remarks of Chief
Justice Warren E. Burger at the 60th Annual Meeting of the
American Law Institute (May 17, 1983) ; Statement of Daniel
J. Meador on H.R. 1970 Before the Subcomm. on Courts, Civil
Liberties and the Administration of Justice of the House
Comm. on the Judiciary (April 27, 1983) ; Testimony of A. Leo
Levin on S. 645 Before the Subcomm. on Courts of the Senate
Comm. on the Judiciary (March 11, 1983) ; Statement of Chief
Judge John C. Godbold on H.R. 1970 Before the Subcomm. on
Courts, Civil Liberties, and the Administration of Justice
of the House Comm. on the Judiciary (Sept. 22, 1983) ;
Statement of Chief Judge Collins J. Seitz on H.R. 1968 and
H.R. 1970 Before the Subcomm. on Courts, Civil Liberties and
the Administration of Justice of the House Comm. on the
Judiciary (Sept. 22, 1983).
59/ See, e.g., Statement of Chief Judge Wilfred Feinberg on H.R.
1970 Before the Subcomm. on Courts, Civil Liberties and the
Administration of Justice of the House Comm. on the
Judiciary (Sept. 22, 1983) ; Statement of Chief Judge Donald
P. Lay on H.R. 1970 and H.R. 1968 Before the Subcomm. on
Courts, Civil Liberties and the Administration of Justice of
the House Comm. on the Judiciary (Sept. 22, 1983) ; Judge J.
Clifford Wallace, The Nature and Extent of Intercircuit
Conflicts: A Solution Needed for A Mountain or a Molehill?,
71 Cal. L. Rev. 913 (1983).
- 32 -
We could endorse the Intercircuit Tribunal proposal only after
Congress has acted on existing proposals to repeal the Court's
mandatory appellate jurisdiction, limit or repeal diversity
jurisdiction, and restrict prisoner petitions. These reforms
should be tried before, or at least at the same time as, a
structural change of perhaps major magnitude.
If Congress sees fit to adopt a temporary Intercircuit
Tribunal proposal under the circumstances we have described, we
believe that the proposed structure contained in Title VI of
S. 645, as approved by the Senate Subcommittee on Courts, is
generally a good approach. The principal change that we would
make to S. 645 would be to shorten the length of the term of the
Tribunal from five to three years, with the judges serving for
the entire three year period. We would be pleased to provide
this Subcommittee with additional technical advice if such is
desired.
*
*
*
To summarize, while the volume of federal government
litigation in the Supreme Court has not increased in the past ten
years, the general growth of litigation in the federal courts has
resulted in a workload problem in the Court. A response that
only addressed and temporarily accommodated the effects of this
litigation explosion would be inadequate. It is essential that
the growth in the caseload of the Supreme Court and the lower
- 33 -
federal courts be addressed by a broad based set of reforms.
Generally, the courts must exercise judicial restraint and
Congress must act in a manner that will decrease rather than
increase the incentives to litigation.
Specific measures that should be adopted in response to
the caseload problem include completing the evolution of the
Supreme Court's jurisdiction toward discretionary review, limit-
ing or eliminating diversity jurisdiction, addressing the problem
of prisoner petitions, and developing, in appropriate areas,
administrative alternatives to litigation. We believe that these
proposals will go a long way toward eliminating the underlying
cause of the Court's caseload crisis -- the burgeoning federal
caseload. Therefore, we would endorse the concept of an
Intercircuit Tribunal only if Congress takes action on these less
fundamental but highly significant changes.
I would be pleased to answer any questions the Commit-
tee may have.
THE WHITE HOUSE
WASHINGTON
November 18, 1983
Dear Judge:
I know the last thing you need is additional reading
material, but I thought the enclosed may be of interest
since it contains the Administration's long-awaited state-
ment of a position on the Intercircuit Tribunal proposal.
The position bears the muddled marks of compromise, but came
out considerably better than I had reason to expect. Basi-
cally, the Administration opposes the Tribunal unless it is
accompanied by reforms directed to the underlying causes of
the caseload problem throughout the federal judiciary. Such
reform would include abolition of Supreme Court mandatory
appellate jurisdiction, repeal of diversity jurisdiction,
and restrictions on prisoner petitions (§ 1983 as well as
habeas corpus). In other words, we will only support the
proposal if other reforms are enacted that render it
unnecessary -- admittedly an odd position logically, but at
least on the right side of the question.
There will be peace in Lebanon before Congress repeals di-
versity jurisdiction or restricts prisoner petitions, so I
think our position is fairly fixed. The copy of your letter
to Representative Kastenmeier provided valuable ammunition
for the internal deliberations on this question, for which I
am grateful.
Warmest personal regards for the holiday season.
COPY Reagan Presidential Record
Sincerely,
John
John Roberts
The Honorable Henry J. Friendly
United States Court of Appeals
Second Circuit
U.S. Courthouse
New York, NY 10007
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
CHAMBERS OF
HENRY J. FRIENDLY
CIRCUIT JUDGE
U. S. COURTHOUSE
NEW YORK N. Y. 10007
October 18, 1983
John Roberts, Esq.
The White House
Washington, D.C.
Dear John:
Thank you for your letter of October 11 with its
combination of good and bad news.
I was a little surprised at the bad news since I had
had word that on the congressional side a considerable
amount of disillusionment with the intercircuit tribunal
proposal had developed. I had understood in particular that
the House Subcommittee was going to convass the Justices.
My information was that while this would undoubtedly develop
a majority in favor of the proposal there would be
opposition from three or perhaps four - hardly a formidable
endorsement.
I am enclosing a copy of my letter of June 14 to
Chairman Kastenmaier of the House Subcommittee in the hope
that it may furnish you with a few more arguments. I had
written a similar letter on June 7 to Senator Dole, but the
Kastenmaier letter is a bit better.
As you doubtless know, Chief Judge Feinberg has
expressed the opposition of the Second Circuit. I think
quite a number of other circuits, notably the Seventh, also
oppose.
If we are to have an intermediate tribunal, I would
prefer the National Court of Appeals which would be an
institution that over time could command respect rather than
the supposedly temporary intercircuit tribunal with
appointments SO designed as almost to insure mediocrity.
One thing which I completely fail to understand is how an
intercircuit tribunal, whether of 27 judges or of 13, is
going to handle the en banc problem. The bills that I have
seen make no provision whatever for this.
October 18, 1983
John Roberts, Esq.
2
Perhaps the best strategy would be to have someone
introduce a bill for a National Court of Appeals, in the
hope that bickering about the relative merits of the two
proposals might result in neither being enacted.
All good wishes.
Sincerely,
Enclosure
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
CHAMBERS OF
HENRY J. FRIENDLY
CIRCUIT JUDGE
U. S. COURTHOUSE
NEW YORK N. Y. 10007
June 14, 1983
Hon. Robert W. Kastenmaier, Chairman
Subcommittee on Courts, Civil Liberties and
the Administration of Justice
Committee on the Judiciary
United States House of Representatives
Washington, D.C. 20510
Dear Representative Kastenmaier:
I heartily endorse the letter dated June 7, 1983, which
Chief Judge Feinberg has written you on behalf of the judges
of the Second Circuit in active service in regard to the
Intercircuit Tribunal proposed in H.R. 1970. Having lived
for many years with the problem of the increasing burdens on
all levels of the federal court system and written or
testified in opposition to previous proposals to inject a
fourth level, I wish to submit some additional thoughts,
which I would like to have made part of the record.
All citizens must be concerned over what Justice
Brennan has termed "a calendar crisis" in the Supreme Court,
see New York State Bar Journal, May 1983, p. 14. All must
desire to help the Justices to surmount this. Yet there is
danger that these concerns and desires may lead to
inadequately considered action which, without significantly
assisting the Supreme Court, will produce serious evils.
With respect, in my view H.R. 1970 fits that description.
The first adverse effect is delay. In order to
appreciate this, one should consider a typical case
litigated in federal court. The case, at least if it be a
civil one, will have spent some years awaiting trial in the
district court. It will then have spent some months -- in
some circuits more than that -- awaiting hearing and still
more time awaiting decision on appeal. The Federal Rules of
Appellate Procedure authorize petitions for rehearing, and
these are often accompanied by suggestions that the
rehearing should be en banc. This means that after denial
of the petition by the panel, all judges in active service
must be polled on whether any one of them desires a vote on
Hon. Robert W. Kastenmaier
June 14, 1983
Page Two
the suggestion and if he (or a senior judge who was on the
panel) so requests, a poll must be taken. If a majority of
the active judges vote for such a rehearing, there is a
further delay of several months. While the vast majority of
suggestions for rehearing en banc do not reach the vote
stage, the process nevertheless piles much additional time
on the long delay already experienced. Meanwhile the time
for seeking certiorari from the Supreme Court is tolled.
The losing party then has 60 days in which to petition for
certiorari; his opponent 30 days in which to respond. The
time required for disposition of the petition will vary. If
the matter is not ripe for action by the Supreme Court
before it recesses in late June, at least another three
months of delay are added.
Interposition of the proposed Intercircuit Tribunal
would add substantial further delay in the cases referred to
it for decision. If the rules of the Tribunal were to
follow the Federal Rules of Appellate Procedure, nearly
three months would be allowed for briefing. One cannot
predict how long after that the case would be reached for
argument, but an estimate of another month would be
sanguine. Then there is the time needed for decision and
opinion writing, the latter of which would be considerably
augmented by the fact that the panels presumably would not
remain together after argument but would return to their
regular seats, for petitions for rehearing, and (although
H.R. 1970 does not now provide for this) for affording
opportunity to seek reconsideration either by the full
Tribunal or at least by something more than the seven member
panel. If this would be the end, one could still argue that
the process would be no more time consuming than in the
Supreme Court; indeed, due to lower congestion in the
Tribunal, it might be less. But it would not be the end. A
litigant who had fought thus far will not refrain from
taking the next step, namelv, again petitioning the Supreme
Court for certiorari. This would entail, in almost all
cases, a further delay of at least four months, more if the
petition was not ripe for decision by the Court by late
June. Then, in the cases where certiorari was granted, and
I will state later why I think this proportion would be
substantial, there would be the further indeterminate delay,
close to an additional year, incident to briefing and
awaiting argument and decision in the Supreme Court.
Although the number of such cases would not be large, they
are important to the parties and the law remains uncertain
until they are decided with finality.
Hon. Robert W. Kastenmaier
June 14, 1983
Page Three
Creation of the proposed Tribunal would increase the
number of decisions of the federal courts of appeals and of
the highest courts of the States subjected to further review
--- with the delay necessarily attendant upon this. Congress
should not proceed under an illusion that reference to the
Tribunal would occur only in the fifty cases a year which
the Supreme Court wishes to be relieved of the burden of
deciding. The present system builds in a salutary restraint
on the grant of certiorari; when the Court grants a
petition, it is taking on additional work. If the restraint
were to be lifted by the possibility of reference to the
Tribunal for decision, many more petitions would be
granted. Proponents of a new layer of review consider this
to be a good thing; indeed, the supposed lack of adequate
reviewing capacity was the primary reason for their support
of the Hruska Commission's proposal for a National Court of
Appeals. I do not, for reasons stated in my testimony
before the Subcommittee on Improvements in Judicial
Machinery of the Senate Committee on the Judiciary, 94th
Cong., 2d Sess., on S. 2762 and S. 3423, p. 231 et seq. At
the very least the House of Representatives must seriously
consider how H.R. 1970 would affect the number of decisions
of the federal courts of appeals and of the highest courts
of the States that are subjected to further review.
Another difficulty relates to the Supreme Court's
determination to refer or not to refer a case to the
Tribunal for decision. Section 259 (a) of H.R. 1970 differs
from the corresponding provision of the Senate bill, S.645,
in not expressly requiring the affirmative vote of five
Justices. Whatever the number, it would seem that, unless
the Supreme Court delegated the certiorari granting power to
the Tribunal, separate talleys on the grant of certiorari
and reference to decide would be required. How does this
leave the Justice who believes a case to be worthy of review
by the proposed Tribunal but not, at least initially, by the
Court? What about the Justice who perceives a majority on
the Court for what he considers the right result but cannot
predict what result would be reached by the Tribunal? In
the hearings before the Hruska Commission, Professor
Rosenberg, a proponent of the National Court of Appeals
there being considered as he is of the Tribunal, conceded
that this would impose added burdens on the Supreme Court
which he characterized as "consequential, if not crushingly
onerous", Hearings, Vol. II, p. 1088. Before enacting
legislation of this sort Congress should have some notion
how the Supreme Court would operate under it.
Hon. Robert W. Kastenmaier
June 14, 1983
Page Four
Let me now explain why I think a substantial proportion
of the Tribunal's decisions would be reviewed by the Supreme
Court. I begin by conceding that there are a few areas, of
which interpretation of the Internal Revenue Code is the
most evident, where the Court might be willing to let even
what four of its members regarded as an erroneous decision
stand -- largely because such a decision quickly becomes
known to the Congress, which can take corrective action for
the future if so advised. Those who say that this benign
attitude would spread over the whole breadth of the
Tribunal's jurisdiction, which is in no way limited to
intercircuit conflicts, have not sufficiently focused on the
problem of conscience with which a Justice would be
confronted. At present a Justice can decline to vote for
certiorari. without having to worry overmuch whether the
decision of the lower court was correct since he can be
confident that if it was not, some other court will
disagree. Under $1272 (b) no other court can disagree; the
decisions of shifting seven member panels of the Tribunal
even by a 4-3 vote, "shall be binding on all courts of the
United States and, with respect to questions arising under
the Constitution, laws, or treaties of the United States, on
all other courts." To be sure the Court would not be
precluded from granting certiorari and taking unto itself a
later decision which followed the rule laid down by a panel
of the Tribunal. Yet I should think it would be hard for a
Justice to permit what he thought to be serious error to be
mandated throughout the land for many years when he had the
power to correct it here and now. With more certioraris
granted and a considerable portion of the Tribunal's
decisions taken for review, the Supreme Court's argument
calendar would soon be back to or above what it now is --
with delay the only result.
By the very nature of things a large proportion of the
decisions of the Tribunal reviewed by the Supreme Court will
be reversed. The combination of even a moderately high
review rate and a very high reversal rate in the cases taken
for review would hardly inspire public confidence in the
Tribunal.
Another point that seems to me to have been
inadequately considered is the relationship between the
Intercircuit Tribunal and the highest courts of the
states. Although judges of the federal courts of appeals
will not happily accept the idea of being bound by decisions
Hon. Robert W. Kastenmaier
June 14, 1983
Page Five
of shifting panels of their own rank who cannot reasonably
be supposed to derive superior wisdom because they come from
different parts of the country, the affront is magnified
when such a panel is allowed to impose its will on
constitutional questions (including questions under the
Supremacy Clause) on the highest courts of the fifty
states. When Chief Justice Marshall spoke of "giving the
court of the nation the power of revising the decisions of
local tribunals, on questions which affect the nation", in
Cohens V. Virginia, 6 Wheat. (19 U.S.) 264, 423 (1821), he
was hardly thinking of something like these panels. I
respectfully suggest that the views of the Conference of
State Chief Justices with respect to H.R. 1970 should be
solicited.
I wish finally to make some comments about the way in
which the proposed Tribunal is to be constituted. Professor
Meador testified before Senator Dole's subcommittee that he
thought the method proposed in S.645, essentially the same
as that in H.R. 1970, was "the poorest way to achieve the
objectives that we have in mind" but supported the bill
nevertheless. In my view, if we must have a federal
appellate court, intermediate between the courts of appeals
and the state courts on the one hand and the Supreme Court
on the other, of which I am not at all convinced, it should
be so constituted that it would acquire an institutional
character and come to command the respect of the Supreme
Court, the federal courts of appeals, the highest courts of
the states, the bar, and the public. Only such a court
could acquire the capacity to render opinions that would be
respected not only for the precise point decided but as
sources affording guidance for the determination of other
issues. In H.R. 1970 this goal is subordinated to an idea
of equality among the federal circuits (regardless of wide
disparities in their population and judgeships) and of the
virtue of randomness. Each circuit council (including
district judges) would select two circuit judges, with no
indication what the basis for choice would be, and the
judges so selected "shall be designated to serve on sitting
panels in such a manner that all of the judges on the
Tribunal hear and determine cases that are representative of
all types of cases reviewed by the Tribunal." §61 (a) (2).
No provision is made for en banc reconsideration although
something of the sort will have to be established unless
Congress desires to make it possible for four judges of the
Tribunal to impose forever (unless modified by the Supreme
Court) a view with which a huge majority of the Tribunal
disagrees then or later.
Hon. Robert W. Kastenmaier
June 14, 1983
Page Six
Chief Justice Burger advanced an alternative proposal
in his annual address to the American Law Institute in
May. Under this proposal the Tribunal would consist of one
judge from each of the circuits, appointed by him, and would
sit in panels of nine. While this meets some of the
concerns voiced above, it gives rise to others.
To say that the Tribunal is simply a temporary
experiment, which will expire on September 30, 1988,
§7 (d) (1), is not a sufficient answer to the points here
made. Experience has shown that once institutions are
created, they take on a life of their own. No one can now
tell what will be occupying the attention of members of
Congress in 1988, although it would not be hard to guess
one. Unless the Tribunal proved to be a total failure, the
likelihood is that its term would be prolonged simply for
lack of consensus what to do. Furthermore, if existence of
the Tribunal had led the Supreme Court to greater liberality
in the grant of certiorari as suggested above, it might
indeed be difficult to dispense with the Tribunal.
It is argued that, whatever the drawbacks of the
Tribunal, it must be created since the Supreme Court is
facing a crisis and there is no other solution. I strongly
doubt this. One way to help the Court would be to eliminate
mandatory jurisdiction, which the Justices have been urging
for years. The Chief Justice has estimated that mandatory
appeals constitute 25% of the argued cases. Of course, the
relief from abolishing mandatory jurisdiction would not be
that great since many cases where jurisdiction is now
mandatory would be good candidates for certiorari. A year
or two would tell how much the relief would be.
Another measure of relief, which lies within the
Court's power to accomplish at any time, is greater care in
the grant of certiorari. One proposal to that end is
Justice Stevens' suggestion to substitute a rule of five for
the rule of four. Such a rule could be adopted, say, for
the October 1983 Term, with the Court automatically
reverting to the rule of four thereafter unless a majority
of the Court found the rule of five to have been an
improvement. Justice Brennan has said, New York State Bar
Journal, May 1983, p. 15:
Hon. Robert W. Kastenmaier
June 14, 1983
Page Seven
I must admit frankly that we too often take
cases that present no necessity for
announcement of a new proposition of law but
where we believe only that the court below had
committed error.
and has remarked that the Court has "made mistakes in
granting certiorari at an interlocutory stage of a case when
allowing the case to proceed to its final disposition in the
court below might produce a result that makes it unnecessary
to address an important and difficult constitutional
question". A high order of priority should be given to a
scholarly study of the Court's handling of certiorari
petitions in the last several terms; this should be
understood not as a criticism of the Justices but as an
effort to help them to develop and apply criteria for the
grant of certiorari more satisfactory than those now
embodied in Supreme Court Rule 17. There are many proposals
that would lessen the flow of certiorari petitions. In
addition to those discussed by Chief Judge Feinberg, I would
favor more frequent use of the rule permitting the
imposition of sanctions for filing a certiorari petition
when there was no reasonable basis for thinking it would be
granted -- a practice which the Court has recently
initiated. A look at any issue of the United States Law
Week would show how many such petitions there are. If it be
said that imposition of sanctions would be a further burden
on the Justices, the answer is that once the practice had
become established it would not need to be often invoked.
I have not discussed the provisions in $$1259 (a) and
1272 authorizing the Supreme Court to delegate to the
Tribunal the function of granting or denying certiorari.
This is not because I believe the idea to be a good one but
rather beacuse I do not believe the Supreme Court would
utilize the authority.
I apologize for the length of this letter. My excuse
is the importance to all citizens of not tampering, even if
only in spirit, with the Founders' concept of "one supreme
Court" unless, after deliberate consideration, the need
should be found by Congress to be clear and the means to be
the most appropriate.
Respectfully,
intervint
The Washington Post
tribunal
11-25-83
PAGE:
A21
INSIDE: THE FEDERAL JUDICIARY
Congress adjourned last week, still
workload. So far, only Justice John
deadlocked over competing propos-
Paul Stevens has responded.
als to restructure the nation's bank-
In a letter to Kastenmeier, he crit-
ruptcy system, which the Supreme
icized Burger's proposal for a new
Court declared was unconstitutional
national appeals court-an "intercir-
18 months ago.
cuit tribunal"-to help resolve the
When Congress returns in late
problem. Stevens said the new court
January, however, the pressure to do
"would do nothing to alleviate the
something will be even more intense.
workload" of the Supreme Court and
For one thing, there is a formida-
would create a variety of problems
ble new player in the game: orga-
for the federal appeals courts, in-
nized labor. The AFL-CIO is now
cluding reducing them from "the sec-
seeking amendments to make it
ond to the third rank" in the federal
more difficult for companies to ab-
system.
rogate negotiated contracts by filing
"Although outsiders tend to min-
for bankruptcy. Labor's lobbyists
imize the significance of intangible
know they cannot get what they
factors such as one's status in the
want unless the stalemate over the
profession," Stevens wrote, "I can
bankruptcy court is broken.
assure you that such factors are not
Second, if nothing is done, the
unimportant for judges who are
bankruptcy courts could self-de-
being paid far less than the true
struct on March 31. On that date,
REP. ROBERT W. KASTENMEIER
value of their services."
the statutory authority that has al-
opposes upgrading of judges
The Reagan administration also
lowed the system to continue oper-
ating on an ad hoc basis expires.
the subcommittee on courts, and the
has told Kastenmeier's subcommit-
Barring congressional action, the na-
Judicial Conference of the United
tee that it cannot endorse the pro-
States, headed by Chief Justice
posal unless Congress moves to re-
tion's bankruptcy judges will no
Warren E. Burger, think the bank-
duce the load. Among the steps rec-
longer exist.
ruptcy judges still should have less
ommended by Rose in testimony are
"The current system will collapse,"
said Jonathan C. Rose, assistant
status and be forced to depend on
restricting petitions by prisoners and
attorney general for legal policy. "We
other federal judges for much of
repealing or limiting the types of
think it would be an extremely dire
their authority.
cases the Supreme Court is required
Further complicating things, the
by law to review.
situation," he said, leaving only the
district judges, already swamped
consumer credit industry is trying to
with work, to handle tens of thou-
push through amendments designed
ANOTHER VIEW Paul D.
sands of bankruptcy cases. "This is
to correct what it considers abuses of
Carrington, dean of the Duke Uni-
not a false alarm."
the bankruptcy laws by consumers
versity Law School, has offered Kas-
The current problem stems from
trying to escape debts.
tenmeier's subcommittee his analysis
1978 legislation designed to stream-
And now labor, following the
of what might be causing the over-
line the bankruptcy system by ex-
highly publicized contract abrogation
load. The federal appeals process, he
panding the judicial power of bank-
by Continental Airlines, has gotten
said, has increasingly become "a
ruptcy judges. The law gave them
into the act.
game of chance" in which the out-
authority that was previously re-
It is clear to us that any leg-
come is always uncertain.
served for U.S. district court judges
islation dealing with collective bar-
Adversaries are thus encouraged
to rule on all issues related to bank-
gaining must also be a part of a larg-
to appeal, rather than settle a dis-
ruptcy proceedings.
er effort to deal with bankruptcy
pute, he recently told the subcom
But the law did not give them the
judges and consumer bankruptcy
mittee.
protections, such as tenure for life,
issues," said Howard Marlowe, as-
Carrington said litigants are un
enjoyed by district court judges. For
sociate director of legislation for the
certain about the law because they
that reason, the Supreme Court
AFL-CIO.
do not know the identity of the ap
ruled the system unconstitutional in
"We would like to see it taken
peals court judges who will decide
June, 1982.
care of early next year," he said, not-
their cases. That depends on the
Congress has been paralyzed on
ing that the AFL-CIO is now trying
random selection after an appeal is
the issue since by competing 'inter-
to get the "key parties on the House
filed of three judges to sit on an ap
ests that will not budge. Some, like
side to talk to each other and work
pellate panel.
House Judiciary Chairman Peter W.
this thing out."
-Fred Barbash
Rodino Jr. (D-N.J.) want hankrupt-
cy judges to get tenure for life, which
would give President Reagan a wind-
COURT
WORKLOAD
In
fall of choice judicial appointments.
August, Kastenmeier wrote Burger,
Others, notably Rep. Robert W.
soliciting the views of the Supreme
Kastenmeier (D-Wis.), chairman of
Court justices on how to reduce its
DOJ-1983-04
DATE:
12-31-84
The New Bork Times
PAGE:
7
Burger Urges Congress
To Help Cut Court Load
By LINDA GREENHOUSE
Special to The New York Times
WASHINGTON, Dec. 30- Chief Jus-
Chief Justice Burger was quoted by
Some of the strongest language in the
tice Warren E. Burger today renewed
the journal as saying his administra-
Chief Justice's report was airoed at
his call to Congress for help with the
tive work did not slow adjudication of
proposals to increase the role of law
Supreme Court's caseload.
cases but "It interferes with my family
yers in jury selection in Federal courts.
In his year-end report on the judici-
life, hobbies, recreation and a lot of
While many state court systems per-
ary, the Chief Justice warned, "Su-
other things."
mit lawyers to conduct questioning of
preme Court Justices must now work
The Chief Justice's other proposal
prospective jurors, current Federal
beyond any sound maximum limits."
for reducing the caseload was for abol-
rules permit the judge to assume this
He added that "the precious time for
ishing the Supreme Court's "mandato-
function, and many judges do so. As a
reflection 80 necessary to a court that
ry" jurisdiction. While the Court has
result, jury selection for Federal trials
decides cases with far-reaching conse-
tends to be much quicker than in state
quences has been reduced to, and possi-
discretion over whether to accept most
courts.
bly below, an absolute minimum."
cases, it is required by statute to issue
"Under no circumstances" should
The Chief Justice urged Congres-
rulings on the merits in several catego-
sional action on two proposals be has
ries of cases.
Congress change the current judge-ori-
ented procedure, the Chief Justice said.
advocated for a number of years. One
Mandatory appeals are most fre-
He noted that two bills were introduced
is the creation of a new Federal court,
quently taken from decisions by Fed-
in the last session of Congress to re-
an "intercircuit tribunal," that would
eral courts declaring acts of Congress
uriconstitutional. All nine Justices have
quire Federal judges to turn the ques-
relieve the Supreme Court's caseload
tioning over to the lawyers.
by deciding legal questions to which the
expressed support for abolishing the
Chief Justice Burger said, "This
13 Federal appeals courts providecon-
mandatory jurisdiction. In each of the
would add an intolerable and unwar-
flicting answers.
last four sessions of Congress, bills that
The Court feels obliged to resolve
would do so passed the House or the
ranted burden on our Federal Court
many such conflicts in order to give
Senate, but then died.
system," with "incalculable delays"
Federal statutes a uniform interpreta-
'Inflation' in the Courts
as a result.
tion throughout the country. At least
In his 15-page year-end report, the
He urged Congress to approve a re-
several dozen of the 150 cases the Court
Chief Justice said the Federal courts
quest by the Judicial Conference, the
decides on the merits each term are in
were suffering from "inflation," with
governing body of the Federal court
this category.
District Court caseloads up by 7.4 per-
system, for a new building on Capitol
Decisions Would Be Binding
cent last year and those of the appeals
Hill to house two agencies, the Admin-
Under the Chief Justice's proposal
courts up by 6.2 percent.
istrative Office of the United States
the Supreme Court would refer cases to
He did not give a comparable per-
Courts and the Federal Judicial Cen-
centage for the Supreme Court, noting
ter.
the new court, the decisions of which
would be binding on all Federal courts
only that the Court had 5,100 cases on
Operations of these agencies are now
unless the Supreme Court itself de-
its docket last term. The Court's case-
scattered in five buildings. The site in
cided to modify a decision. The new
load has held at that level since 1979,
question is next to Union Station, the
with the exception of the 1981 term
railroad passenger terminal. It is
court would have no permanent judges,
when the docket had 5,300 cases. It then
owned by the Federal Government and
but would borrow judges from other
Federal courts.
fell to 5,100 and is down slightly so far
is used as a parking lot.
Bills to create the new court were in-
this term.
The Chief Justice returned to one of
troduced in both houses of Congress in
Chief Justice Burger also called for
his favorite themes, the need to turn
the last session, but did not reach the
increased salaries for Federal judges.
prisons into "factories with fences" by
floor.
He said It was "unseemly" and "un-
providing increased training and em-
In an interview published Saturday
just" that judicial salaries had failed to
ployment for prisoners.
in the American Bar Association Jour-
keep up with inflation, and suggested in
He quoted a Washington taxi driver's
nal Mr. Burger called for the creation
a footnote that allowing this erosion of
description of the prison problem:
of a 10th Supreme Court justice to case
judicial salaries might be unconstitu-
"Right now, prisons are like putting a
the administrative burdens that have
tional as well.
shirt in water with no soap. Putting it in
forced him to "put in 80 hours a week of
The footnote referred to Article III of
and taking it out. It's getting wet, but
work."
the Constitution, which provides that
you ain't getting no dirt out."
The additional justice would work
the compensation of Federal judges
with the Administrative Office of the
"shall not be diminished during their
United States Courts and the two Fed-
continuance in office."
eral judicial administration bodies that
Jury Proposal Criticized
Mr. Burger heads by virtue of his posi-
The Chief Justice observed that for-
tion as Chief Justice.
mer Supreme Court law clerks, "with
For Administration Only
few exceptions," earn more than Jus-
Under the Burger's proposal, the ad-
tices after 10 years of law practice. The
ministrator would be selected by the
Chief Justice's salary is $104,700 a
Chief Justice from among the sitting
year, while the Associate Justices earn
Federal judges and would hear no
$100,600; judges of the United States
cases. The new position would have to
Courts of Appeals earn $80,400, and
be approved by Congress.
Federal District judges $76,000.
2