A Sinking Court — and One Way To Right It

This is in response to one of Steve Vladeck's “One First" essays from last month (“Progressive Judicial Institutionalism”), which was itself a response to an op-ed in The Guardian (“It’s time to accept that the Supreme Court is illegitimate and must be replaced”).

I agree with Professor Vladeck that "tossing the baby" would be a mistake. That is, delegitimizing the institution such that it no longer has any authority to constrain the other branches, is a real risk that should be avoided. As Vladeck notes, the federal courts writ large (if not the Supreme Court itself) have been instrumental in constraining a hyperaggressive executive branch. We can and should distinguish between the Article III branch and the current composition of the Supreme Court when criticizing SCOTUS or proposing reforms. The question then is what can be done about a Supreme Court that many perceive to be out of step and unaccountable. There have been many suggestions—term limits, expansion, ethics reform—but one area has been long overlooked: judicial governance, the mechanisms by which judicial rules and norms are set and enforced.

As currently implemented, federal judicial governance is based on an archaic model, first codified in 1922 and not fundamentally altered since then. It vests tremendous administrative authority in the chief justice alone and provides little real check against abuse of that authority. It’s past time Congress revisit the statutes that created and shaped the Judicial Conference and bring them up to date.

As an outsider to the legal and/or academic professions, my sense is that it isn’t particularly fashionable to be concerned with such issues. At a symposium held after Chief Justice Rehnquist’s death, Yale professor Judith Resnik warned about the concentration of power accruing to that particular role. But she also recognized the unreceptive winds, noting that: “Academics might respond to [a catalogue of the chief justice’s administrative] responsibilities with a proverbial ‘so what.’”. Resnik then compellingly described why the extent to which this aggregation of authority can be abused shouldn’t be underestimated.

The Judicial Conference and the Administrative Office of the U.S. Courts (AOUSC) form the current court oversight and administrative structures respectively. Unlike on the Supreme Court, where the chief justice is most often described as “first among equals”, within this mostly opaque and invisible world, the chief justice reigns, well, supreme.

To begin with, he is the only permanent member of the Judicial Conference, which is otherwise comprised of a rotation set of circuit and district court judges.  The Conference meets only twice yearly, and the chief justice handpicks the committee that determines the agenda of the Conference and manages what the Conference votes on. The basis for that agenda is the work done by the two dozen or so Conference committees.  And there the chief has sole discretionary authority to appoint every member of every committee, both chairs and members. This amounts to over two dozen chairs and several hundred committee members, selected from among the federal judiciary. And while chairs are typically made public, members are not, so we have little idea who is deliberating on many of these committees. In addition, the Director of the AOUSC—leader of a 30,000-employee organization—is selected by, and works under the direction of, the chief justice.

You may not be surprised to hear that placing unreviewable authority in the hands of a single person has led to a strong bias in appointments (see Chutkow (2014) or Palmer (2016)). Almost 70% of the time under Roberts, committees have been chaired by Republican-appointed judges, and for some committees that figure is 100%. One that has received little scrutiny even by scholars who do follow judicial governance is the Committee on Judicial Conduct and Disability. This committee is primarily tasked with reviewing and weighing in on high profile misconduct incidents and has never, as best I am able to tell, been chaired by a Democraticappointed judge (going back even to its origins in 1986 under Rehnquist). Not only that, but Chief Justice Roberts apparently views this committee as so critical that he has also avoided rotating chairs according to the normal 3-year custom. Over a 15-year period, from 2011 to 2025, only two judges held this chair, one for nine years. (It bears noting that this is a period that saw a number of high-profile allegations of misconduct that were questionably handled, including those involving Judge Alex Kozinski, Judge William Pryor, and Justice Clarence Thomas.)

All of this is untenable and undesirable for any truly effective system of governance and accountability. It’s often noted that “personnel is policy”. Giving one person unreviewable authority to select every committee member gives that person extraordinary sway over the outcomes of the Conference, both procedural and substantive. A set of modifications that distributed the chief justice's authority more broadly would go a long way towards establishing a stronger foundation for good governance.

There are several advantages to this general approach over existing proposals:

First, it avoids battles over judicial independence. As former Harvard Law School dean Roscoe Pound argued during an earlier period of strong progressive dissatisfaction with the court, changes to judicial administration focus on "the rules by which [justice] is administered" [emphasis added], rather than on outcomes. Such a solution would not vest oversight in an outside body that might impinge on independence, but would allow for more diversity of voices within the judiciary.

Second, as the Judicial Conference is a creation of Congress, modification does not require constitutional amendment, only changes to the statutes—a much lower bar.

Third, at Congress’ discretion, the change could take effect almost immediately, rather than requiring the 18-year wait that term limits would impose, or the heated legal and confirmation battles that would be sure to follow an effort to expand the court.

Finally, it avoids questions of judicial legitimacy implicated by strong actions like Court expansion. Despite many strong proponents, the public at large seems decidedly cool on the idea of expansion, similar to views during the last serious campaign under FDR’s presidency. There’s no doubt that opposition from conservatives and the right would be fierce and would likely even prompt a sustained campaign of resistance to undermine such a move. In contrast, adjusting judicial administration would raise none of the alarms about fairness and equity (indeed it may barely register in public consciousness, and where it did, for most it would likely seem reasonable and appropriate).

Roberts’ grip on the oversight and administration of the federal judiciary affords him great leeway to reward, protect or punish judges as he chooses (a phenomenon noted by Duke professor emeritus Peter G. Fish in his critical work The Politics of Federal Judicial Administration), and through various assignments and appointments, to influence the law substantively.

Independence is a cornerstone of the judicial calling, but it comes with an implied promise to the American people: a promise to hold accountable judges and justices who fail to meet standards of fairness and impartiality. As no less an authority than Senator Ted Cruz declared: “…life tenure without accountability would be tyranny”. Yet under the current structure, the bar to accountability is exceedingly high—and runs through only one person. One way to lower the bar, while protecting judicial independence, is to broaden the circle responsible for such accountability. 

To those who, in Professor Resnik’s words, would say “so what?”, and dismiss the possible impact of changing the statutes, I would respond that a judge who feels invulnerable regarding their conduct is likely to feel the same with respect to their jurisprudence. Such a judge may be less likely to rule based on law and more according to personal preference, whether ideological, religious, or due to some other influence. Judicial independence should never be mistaken for unaccountability. Judges play a vital role in society—and to do it well, they cannot be completely unmoored from that society. Judicial independence then must be tempered with some measure of transparency and accountability. In matters governing judicial conduct, the chief justice’s unreviewable power provides little of the latter, which harms the former.

Addressing the concentration of authority in the role of the chief justice may have broader and more institutionally credible effects than most would grant at first glance. In fact, doing so might be the very solution needed to address public concerns about judicial integrity and outcome-driven rulings while also sustaining and strengthening the Article III branch as a counterweight to the other branches.

-- The author is neither a lawyer nor an academic but is a sometime observer of the peculiarities of judicial conduct. For thoroughly un-professional reasons he posts under a pseudonym and can be most often found at Bluesky at noahdahl.bsky.social.