Another Year-End Advisory Opinion from the Chief Justice?

January 5th, 2016

In Chief Justice Roberts’s year-end report in 2011, he strongly suggested that it would be unconstitutional for Congress to bind the Supreme Court by the code of conduct.

The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.

I questioned whether it was an unconstitutional advisory opinion, signed by one Justice. Roberts’s letter also harkened back to that of his icon, Chief Justice Hughes who wrote a letter opposing the Court-Packing plan by telling Congress that the Court was “one” court, and could not be divided.

His 2015 year-end report offers something bordering on an advisory opinion of how to interpret the new Federal Rules of Civil Procedure. Howard Wasserman observes:

It is difficult not to read Roberts’ facially neutral comments about delays in litigation–he calls out both those who make burdensome discovery requests as well as those who evade legitimate requests through dilatory tactics–as not reflecting the anti-plaintiff slant of much of this Court’s procedure jurisprudence. “Speedier litigation” is generally code for getting defendants out of litigation more quickly. Plaintiffs do not win cases quickly, only defendants do; it takes time and effort for plaintiffs to gather the information they need and to carry their burden of persuasion (which only can be done at trial, in any event). But the incentive structure built into these amendments is almost certainly to limit what will be made available to requesting parties far more than to halt dilatory actions by producing parties. This almost certainly works against plaintiffs who depend on discovery to uncover information that in many cases is uniquely and exclusively in defendants’ possession or control and unobtainable other than through discovery (e.g., employment discrimination, constitutional cases, and other cases that turn on defendant intent). And by emphasizing the need for speed and efficiency, Roberts’ Report appears to be pushing district judges towards that understanding. …

Instead, this smacks of Roberts not-so-subtly hinting which direction judges should be exercising this (not actually new) managerial discretion for those cases that manage to survive pleading and get into discovery.

Mike Dorf adds that Roberts is trying to shape the rules beyond his already-powerful role in appointing the rules committee, voting on the rules, and then voting as a Justice to interpret the rules.

So why does the Chief make a big deal out of this and other relatively minor changes in the Rules? In an email to a civil procedure listserv, my colleague Kevin Clermont perceived what the Chief was up to. Clermont agrees with the scholars quoted in the Times article that the drafters of the amendments intended to restrict discovery somewhat, but he notes (along lines similar to those I’ve just discussed) that the actual wording revisions do not appear to change much at all. Yet by saying that the Rules have changed, Clermont notes, the Chief Justice makes it so. As Clermont wrote to the list (quoted here with his permission), Chief Justice Roberts “is giving the lower courts their marching orders.  So now those rewordings and relocations likely will have a big effect. Roberts thereby amends the amendments.”

I can’t imagine Roberts’s colleagues are content with his decision to offer substantive legal opinions in a report that is not circulated for consent. Dorf adds:

Against this background, the Chief’s fourth bite at the apple in his 2015 annual report may seem like no big deal. But that’s not quite right. In each of the other contexts, the Chief must act with or through other people. The members of the committees in fact act on their own views; and when deciding whether to approve the committees’ recommendations or in resolving concrete cases, the Chief is only one of nine votes. His end-of-year report, by contrast, expresses the Chief’s unadulterated view. Given his long record of seeking to limit court access, it is hardly surprising that he chose to use this forum as a means to accomplish further cutbacks, but it is dispiriting nonetheless.

I joked in 2012 that maybe Justice Breyer will issue a dissent, like he did from the order closing the door.