In my initial post on this topic, I pointed out that district courts have the express authority to determine how cases are assigned under 28 USC § 137(a). Provides:
The business of a court having more than one justice shall be divided among the justices as provided by the rules and orders of the court. The chief judge of the district court is responsible for enforcing such rules and orders and divides business and assigns cases to the extent such rules and orders do not otherwise prescribe. If the district judges of any district cannot agree on the adoption of rules or ordinances for this purpose, the judicial council of the circuit shall issue the necessary orders.
The letter from Senators McConnell, Cornyn, and Tillis cited the same statute. They wrote, “The assignment of cases within the district courts is governed by federal statute.”
The Washington Post reports similar news:
In a statement, Chief Judge Randy Crane of the Southern District of Texas said the policy violates federal statute 28 USC 137, which “leaves the assignment of cases to the chief judges of each court.”
“The Judicial Council’s suggestions cannot override that law,” Crane said.
Russell Wheeler, a judicial expert at the Brookings Institution, also questioned whether the conference has the authority to require courts to change their case assignment practices. Wheeler said circuit boards, which oversee circuit courts, have the power to issue orders, not the Judicial Conference.
“I don’t know where the conference gets this authority from,” Wheeler said.
Crane and Wheeler are right. There is no such authority.
An advocate for this policy pointed me to 28 USC § 331, which establishes the statutory authority of the Judicial Conference of the United States. It is a long statute, without a clear organizational structure. In fact, there are no divisions into sections. I think the most likely source of authority is in the fourth paragraph. This paragraph is a bit of a mixed bag.
The first two sentences refer to the study of judicial practice and the making of recommendations:
The Conference will make a thorough investigation of the state of affairs in the courts of the United States and will prepare plans for the assignment of judges to or from circuits or districts, where necessary. It also presents suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of judicial affairs.
The remainder of the paragraph (except the last sentence) refers to the disciplinary proceedings under Title 28, Chapter 16.
The Conference is authorized to exercise the authority provided for in chapter 16 of this title as a Conference or through a standing committee. If the Conference decides to establish a standing committee, it will be appointed by the Chief Justice and all petitions for review will be heard by that committee. The Conference or Standing Committee may hold hearings, take sworn testimony, issue subpoenas and subpoenas duces tecum, and issue such directions as are necessary and appropriate in the exercise of its authority. Subpoenas and subpoenas duces tecum shall be issued by the clerk of the Supreme Court or the clerk of any court of appeals, under the direction of the Chief Justice or his designee and under the seal of the court, and shall be served in the manner provided by 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 of the United States. The Conference may also prescribe and modify the rules for the exercise of the power provided for in chapter 16 of this title.
The last sentence of the paragraph states:
All judicial officers and employees of the United States shall promptly comply with all orders of the Judicial Conference or the standing committee established under this section.
Does this sentence resolve the issue? NO.
First of all, bailiffs only have to “execute” lawful orders. An “order” that conflicts with a federal statute is not an order at all; he is a nullity. To use the General/Specific canon, Section 331 may provide a general grant of power, while Section 137(a) is a super-specific delegation of power to the courts to determine how cases are assigned. In the event of a conflict, Section 137(a) would prevail.
Second, the statute refers “under this section.” The Judicial Conference has the power to make orders only under the sources of authority set forth in Section 331. You can read the entire section if you wish. You won’t see a word about directing courts on how to assign cases. Any power over case assignment must be implied.
Third, perhaps the members of this august body would claim something like this Chevron deference and claim that the delegation of authority is ambiguous at best and that their reading of the statute is reasonable. Dare I respond with elephants in mouse holes? Or that delegations of federal power should not be interpreted too broadly in the absence of evidence that Congress so clearly intended to confer this power? Do we need guesses about babysitters and theme parks?
Fourth, other provisions of Section 331 reflect that the Judicial Conference may propose “amendments” and “additions” to federal court rules, but such recommendations would be presented to the Supreme Court for adoption. There is no reference to a unilateral mandate.
Fifth, Congress has given the judiciary the power to “amend or repeal any rule” that is “prescribed under” 28 USC § 2071. But the adjudication of cases is not based on the general grant of Section 2071, but instead invokes an express delegation of power in Section 137. That Congress gave the Conference some power to “repeal” some rules under Section 2071, but denied it the power to “repeal” other rules, is significant.
Sixth, I apologize, but I’ll make an official argument. I can’t really help it. We will never run out of “officer stuff”. Section 331 is directed to “law enforcement officers of the United States.” But Section 137 refers to “the rules and orders of the court”. Rules adopted by a district court can be voted on by individual members, but they are rules of one court, one institution. If Congress wants to give the power to override court rules, it should make it clear. Even within the judicial system there is both horizontal and vertical separation of powers. Those at the top can interfere with those at the bottom only when there is the authority to do so.
Seventh, Section 331 does not provide any mechanism through which an order can be enforced. In contrast, 28 USC 332(d)(2) expressly gives each circuit’s Judicial Council the power to initiate contempt proceedings “for failure to comply with an order.” I’m not sure what would happen if a district court rejected the Judicial Conference’s guidance. Mandamus?
I could go on, but that’s enough for now.
Let’s be clear. The judicial conference, the press release and the private press conference gave the media the impression that this was a self-execution policy that all courts would have to follow. This is not accurate. I’ve lost count of the number of journalists I’ve spoken to in recent days who came away from that press conference feeling deceived – and these are Not conservative media.
Any topic that the district courts are necessary following the Judicial Conference is based on a really, really weak reading of the statutes, a reading that these judges would never accept in a judicial decision. And even if it were difficult to determine whether there was a conflict between the authority of an administrative body and a federal statute, the presumption should move towards a restrictive interpretation of the legislative powers of the administrative body to avoid a conflict with the supreme law of the land . A recent decision by the Judicial Council of the Second Circuit, assisted by the Executive Committee of the Judicial Conference, recognized this principle.