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Sunday, May 31, 2015

Could Outsourcing the Judicial Power Strengthen the Federal Judiciary?

Last week, the Supreme Court issued Wellness International Network v. Sharif, an important case on the federal judicial power, particularly in the bankruptcy context. There is a lot to say about Sharif, and, over at SCOTUSBlog, there are illuminating posts by both Ronald Mann and my colleague Dan Bussel. In this post, I’d like to set aside a lot of important issues in this area, including arguments from constitutional text, precedent and history, and instead explore a pragmatic question that’s central to the Court’s jurisprudence: is the federal judiciary threatened to the extent that Congress can outsource the federal judicial power to non-Article III judges? The answer is surprisingly unclear.

But first, a little bit of background. In a series of cases spanning decades, the Court has held that, under the Constitution’s Article III, only nominated and confirmed federal judges with life tenure and salary protections can wield the federal “judicial Power.” What’s more, the Court has held that Congress has sometimes unconstitutionally conferred the judicial power on bankruptcy judges, magistrates, and other “legislative courts” that operate outside Article III. A few years ago the Court reiterated these precepts in Stern v. Marshall, and last week Sharif proceeded in the same vein while cutting back on Stern’s practical import.

An important fear expressed all these cases—call it “the Stern concern”—is that Congress might shift decision-making responsibility away from the federal courts and toward legislative courts. This would be bad for the federal judiciary, the argument goes, because it would mean that legislative courts would resolve an increasing number of important cases. Before too long, the federal courts might be reduced to mere sideshows. The legislative courts would have become the main event.

Consider, for example, the Sharif majority’s point that it finds no Article III problem in part because: “[T]here is no danger that use of the [bankruptcy court] involves a ‘congressional attemp[t] ‘to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating’ constitutional courts.’” In dissent, Chief Justice Roberts expressed a similar fear with greater urgency: “Once Congress knows that it can assign federal claims to judges outside Article III with the parties’ consent, nothing would limit its exercise of that power to bankruptcy.”

But if Congress can’t assign cases to legislative courts, then it will predictably assign more cases to the federal courts. After all, the need to hear at least some of the relevant cases will presumably remain, and who else could hear them? If there are a lot of these cases, then the effects of this change will be large. Federal court dockets will bulge and stretch. The work of federal courts might become more tedious, exhausting, and interminable. This new state of affairs would reduce the federal bench's prestige and the quality of its work while diminishing its attractiveness to prospective judges.

To deal with the federal courts’ increased caseload, Congress would be invited to increase the size of the federal judiciary. Indeed, many federal judges already in the trenches would increasingly clamor for reinforcements. Doing so would relieve some of the strain, but it would also reintroduce the risk of diluting the prestige of the federal bench. A larger federal bench might leave the President and Senate less time for, as well as less interest in, making sure that each nominee is excellent. And if the relevant talent pool is meaningfully finite, the median quality of federal judges will have to decline.

Similar arguments against expanding the federal judiciary have come up before, including in the 1980s after the Court curtailed the lawful authority of bankruptcy courts. Many commentators supported solving the constitutional problem of giving bankruptcy courts access to the judicial power by simply incorporating those judges into the Article III fold. Successfully resisting that effort, other commentators--including some noted federal judges--objected on the ground that swelling the federal courts' ranks would undermine the third branch's prestige.

Cases like Stern and Sharif may therefore have things backwards when they fret about giving Congress too much ability to transfer cases away from the federal judiciary. Far from posing a clear threat to the federal judiciary, giving Congress substantial ability to outsource the federal judicial power may be critical to ensuring that the federal courts remain a strong branch staffed with excellent personnel who have time to do important work. By contrast, rules that prevent Congress from outsourcing cases could indirectly cause the federal courts to become a worse and weaker institution.

Still, there is something to the Stern concern. If Congress has too much power to assign and transfer the judicial power, then the federal courts could become vestigial and irrelevant. Perhaps, however, there is a better solution to this problem than barring Congress from outsourcing the federal judicial power. Rather than demanding the authority to approve of each and every significant decision or use of the judicial power, the federal courts could insist that they have the authority to oversee the work of the legislative courts and offer structural remediation as appropriate. Clearly something would be lost through this gambit, as case-by-case approval is a valuable thing where practicable. But perhaps enough would be gained to make the exchange worthwhile.

Consider federal habeas corpus, for instance. As Professors Nancy King and Joseph Hoffmann have powerfully argued, contemporary federal habeas may not rest on a successful review paradigm. Federal courts are inundated with habeas petitions and yet provide little relief. Structural approaches to habeas, such as the one proposed by Professor Eve Brensike Primus, offer promising alternatives. That is, state criminal defendants might bring systematic state-court failures to the federal courts, triggering structural relief. The Supreme Court’s ruling in the California overcrowding and prison-conditions case, Plata v. Brown, offers a recent example of a more structural approach in that area.

The pragmatic lesson here could be generalizable: the federal courts might best remain a strong and independent branch by assuming a more managerial role, rather than always insisting on being adjudicators of first resort. 

Posted by Richard M. Re on May 31, 2015 at 03:55 PM | Permalink


This line of reasoning has always struck me as silly. It seems to presuppose that the types of judges are fixed, and the only variable to be tweaked is the allocation of duties among them.

If it were truly the case that the only alternative to having non-Article-III bankruptcy judges handle these matters is to have US district court judges handle them, then it might make sense to believe that denying them to bankruptcy judges might increase the workload of district court judges, swell their ranks, and lead to a decline of prestige. But I'm not aware of any clause in the Constitution preventing Congress from simply providing bankruptcy judges with the protections called for in Article III. Doing so would, if anything, increase the prestige of bankruptcy judges, and could not possibly diminish the prestige of district court judges (unless you believe the prestige of the Supreme Court is diminished by the existence of the circuit courts of appeals or the prestige of the appeals courts is diminished by the district courts). And more importantly, it would accomplish some of what the constitutional provisions concerning judges are intended to accomplish, namely giving judges heightened protections from meddling by other branches and ensuring they're nominated in a careful, checked, and non-arbitrary way.

Posted by: Pio Szamel | Jun 2, 2015 7:38:02 PM

I doubt that anything could significantly diminish the "attractiveness to prospective judges" of a position on the U.S. District Court, given the benefits of life tenure and retirement at full pay. Not long ago, we were told we were facing a full-blown "Constitutional crisis" over judicial salaries. Then there was a recession in the legal market, with partners getting laid off -- if their firms did not go bankrupt. Suddenly, no more crisis, and lawyers are lining up around the block for openings on the federal bench.

There are good arguments both against and in favor of legislative courts, and of course judges deserve better pay, but there is no reason to be concerned about a lack of candidates for the U.S. judiciary.

Posted by: Steven Lubet | Jun 1, 2015 6:51:38 AM

A couple points. Just to be clear (and this isn't a criticism), your argument is inconsistent not only with some language in Wellness and Schor, but with their holdings. Those cases' allowances of assignments to legislative courts are predicated on the assignments being fairly small - small enough to not "emasculate" the Article III courts. (Wellness, while it largely rests on Article III supervision of the bankruptcy courts, also rests on quantity, and I think it's clear that the same sort of supervision wouldn't save an assignment of, e.g., all diversity cases to legislative courts.) A low quantitative limit on outsourcing prevents outsourcing from doing what you want it to do.

Second, I don't think I buy the argument, unless you're willing to say that the quality of federal judges has already been diluted by the vast increase in the substantive scope of federal-question jurisdiction (which seems quite plausible). If this is all about future dilution, I don't see why it will occur. A growing population means more cases in federal court, but it also means a bigger talent pool (and I think the President can figure out how to vet 2000 district judges if he has to - figuring out if someone's capable enough to be a good judge isn't hard). And I don't think we're going to see many big new drivers of cases to federal court, like 1983, or habeas, or Social Security. Congress barely enacts new laws anymore, and I doubt we'll see a causes-of-action-friendly Supreme Court for a very long time.

Posted by: Asher | Jun 1, 2015 12:26:13 AM

There are few arguments less sympathetic than "swelling the federal courts' ranks would undermine the third branch's prestige."

Posted by: WG | May 31, 2015 4:27:29 PM

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