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Monday, February 05, 2018

The Limits of “Executive Principle” in the Judiciary

Today marks the resolution (perhaps only temporarily) of an extraordinary, weeks-long public dispute in the Supreme Court of India. On January 12, the second- through fifth-most senior justices of the Court held a press conference, at which they divulged the contents of a letter they had written to Chief Justice Dipak Misra. In the letter, the four senior justices accused Misra of abusing his assignment powers by allocating particularly sensitive cases to courts headed by relatively junior justices. A public uproar ensued, with some criticizing the four senior justices for airing the Court’s internal affairs in public, and others chastising Misra for lack of transparency or accountability. After three weeks of speculation, the Chief Justice responded last week, publicly announcing that as of February 5, cases would be allocated so that all cases of one type would be assigned to the roster of a particular justice. Misra kept for his own roster a number of high-profile case types, including public interest litigation, election matters, and matters concerning the appointment of constitutional officers.

At first, this saga (which I describe more fully below) might not seem to have much relevance for American courts. But the larger question it presents—how executive power is exercised within the judiciary—is deeply salient for those of us stateside.

For the past one hundred years, American courts have deliberately structured their administrative processes to promote centralized decision-making and internal control, and to permit transparency only when it is necessary to maintain legitimacy. At the federal level, the Judicial Conference of the United States and the Administrative Office of the U.S. Courts have been repeatedly expanded from their pre-WWII foundations. The Chief Justice in particular has enormous and virtually unchecked power in committee assignments, and further has a bully pulpit within the federal judiciary to promote or bury administrative agenda items. Chief judges at the circuit and district level have lesser authority, but still maintain considerable administrative power—especially through the Judicial Conference and their respective circuit conferences. Chief justices at the state level, too, can set administrative agendas both by their tone and by their appointments.

The values of vigorous executive control and limited transparency are the intellectual descendants of “executive principle,” William Howard Taft’s notion that the judiciary requires a strong internal administrative force to maintain efficiency and adjudicative quality. Traditionally, judges have embraced these values, because strong internal administration tends to increase the courts’ organizational autonomy. Centralized management, internal control, and low transparency also tend to reinforce public perceptions of the court system as a serious, dignified, and apolitical actor. Put differently, a robust exercise of executive principle usually bolsters the legitimacy of a court system both internally and externally.

But a commitment to a strong internal executive can also backfire. Sometimes judges grow frustrated with a chief’s agenda, and make their disputes public. (Judge Posner’s self-published assault on the Seventh Circuit’s staff attorney program readily pops to mind.)  Sometimes the public itself demands more transparency and participation in matters of court administration, and the courts must address that demand in order to contain a possible public backlash. (Consider here the opening of federal procedural rulemaking to greater public input and scrutiny in the 1970s and 1980s.) Finding the level of internal control sufficient to maintain internal and external legitimacy is an ongoing process for any chief judge.

Back then, briefly, to what happened in India. The January 12 letter and press conference from the four senior judges appears to have been sparked by Chief Justice Misra’s assignment of a particularly sensitive case to the roster of a junior justice. The case in question involved an investigation into the death of another judge, who at the time of his death was presiding over a murder case in which the party chief of India’s Bharatiya Janata Party (BJP) was a defendant. Foul play has been suspected. Misra's assignment of such an important case to the roster of a low-ranking justice was, for the four senior justices, an unacceptable assault on the internal legitimacy of the assignment process. In their letter, the four senior justices acknowledged that the Chief Justice had the right to allocate cases as he wished, but that the process could not be abused:

 “The convention of recognising the privilege of the CJI to form the roster and assign cases to different members/benches of the Court is a convention devised for a disciplined and efficient transition of business of the Court, but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues.”

This internal challenge to the court’s legitimacy was followed by fresh external challenges, as the press and pundits decried the lack of transparency in the case assignment process. Within days, Misra found himself under attack for keeping a procedure of obvious public interest under wraps. To preserve some credibility for himself and the institution, the Chief Justice had to develop a new, transparent roster system. It seems that the new system he has announced has sufficiently assuaged both internal and external fears, at least for the moment.  But stay tuned: the Chief Justice’s assignment of public interest litigation cases (among others) to his own roster is already raising eyebrows.

American courts are unlikely to have to deal with a legitimacy crisis over the specific issue of case assignment, but the pressures that led to the Indian crisis are nonetheless illustrative. For one thing, India’s experience underscores the importance of having a chief judge who is as skilled at administration as he is at adjudication. For another, it warrants broader reflection as to how the benefits of strong central administration in the courts can be accomplished without eroding internal or external legitimacy. And it provides a cautionary lesson for those chief judges tasked with balancing their own vision of the courts with that of their colleagues and the public.

Posted by Jordan Singer on February 5, 2018 at 02:32 PM in Judicial Process | Permalink


We have similar issues here. Didn't the Ninth Circuit have a quasi-scandal where hot button issues seemed to be assigned more often to Reinhardt then should have been had it been assigned randomly?

Posted by: Biff | Feb 5, 2018 10:34:38 PM

Thanks, Manoj, for the additional insight!

Posted by: Jordan Singer | Feb 5, 2018 5:51:38 PM

This current controversy over internal accountability within the Supreme Court of India is especially significant given that the Court asserted primacy and control over its own appointments in key decisions in the 1990s. The Chief Justice of India must now consult with a collegium of the four senior most justices on the court in the appointments process. In 2015, the Court invalidated a constitutional amendment creating a National Judicial Appointments Commission that would have expanded executive and political authority over appointments and displaced the collegium, ruling that the amendment violated judicial independence, part of the basic structure of the Indian Constitution.

The controversy highlights how even in a system where a Court has primacy over appointments, the Chief Justice can use the power to control allocation of cases in a way that benefits the current political regime, and, in the process, undermines judicial independence. For those interested in the broader context of judicial independence in light of the current controversy, see my recent article, Judicial Supremacy in Comparative Constitutional Law (2017) in Tulane Law Review and on SSRN.

Posted by: Manoj Mate | Feb 5, 2018 4:42:42 PM

Thanks for that interesting post , just worth to note , that efficiency and executive principles has to do also with merely rendering justice , all in its utmost core meaning of it . Once parties don't wait too long for ruling , or at first place not too much time until a case is effectively assigned to a judge for prevailing , then justice is simply carried out faster .There is that old saying :

Let justice appear and show right here , right now , and if not , damn you and your justice ( translated very approximately ) .


Posted by: El roam | Feb 5, 2018 3:39:45 PM

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