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.
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