April 9, 1996

It is a great pleasure to be here this evening and participate in American University Washington College of Law's celebration of its centennial. And since the federal judiciary celebrated its bicentennial only a few years ago, this is an appropriate occasion to speak about the future of the federal courts. But it will be helpful, in trying to forecast the future of the federal courts, to look briefly at how they have evolved over the more than two hundred years they have been in existence.

The federal court system in the United States got off to a remarkably slow start two hundred years ago. The Supreme Court ruled quite early in the game that there were no common law crimes in the federal courts, and therefore no criminal prosecutions could be had unless authorized by an act of Congress criminalizing certain conduct. The federal trial courts had no "federal question" jurisdiction until 1875; this meant that if an individual wished to bring a lawsuit claiming that a right secured him by the federal constitution had been violated, that lawsuit had to be brought in state court. The Supreme Court of the United States could review a decision by the highest court of a state which decided a federal question, but the lower federal courts were not involved. Thus for nearly the first century of their existence, the staple of the business of the lower federal courts was admiralty cases and cases in which jurisdiction was based on diversity of citizenship.

But this distribution of business between the state court systems and the federal courts changed quite dramatically after the Civil War. In the aftermath of the conflict, the so-called Civil War amendments to the Constitution were adopted, and of those the Fourteenth Amendment has been a prolific source of judicial business. In 1875 federal district courts were given federal question jurisdiction, so that from then on cases involving constitutional claims could be initiated in the federal courts. Finally, the public view of the appropriate role for the federal government changed after the Civil War - although the change moved in fits and starts at first, it inexorably moved in the direction of greater federal regulation of the citizenry. Until well after the Civil War, the general view was that the federal government should provide for the common defense, coin money, carry the mails, and pay for itself by collecting customs duties. But the increasing pace of the Industrial Revolution, the rapid spread of the railroad into every nook and cranny of the nation, the increasing size of manufacturing enterprises all provoked calls for regulation of what was increasingly a commerce which paid scant attention to state borders.

Before the turn of the twentieth century, Congress had passed the Interstate Commerce Act, giving a federal commission some control over railroad rates and practices, and the Sherman Anti-Trust Act, forbidding conspiracies in restraint of trade. As we moved into the twentieth century, the coming of the automobile and the airplane continued the transportation revolution. The pace of increase in federal regulation continued, driven partly by the interstate nature of so much of the country's business, and partly by a number of reform movements seeking to ameliorate the plight of those who did not share in the generally rising tide of prosperity. The typical pattern was for reform movements to originate in the states, only to discover that the practices which they sought to prohibit or limit could not be prohibited or limited to their satisfaction without the intervention of the federal government.

First came concern about wages and hours worked in factories, and child labor there. States adopted maximum hour and minimum wage laws, and laws prohibiting child labor. But as often as not the manufacturing plants which would be effected by these laws would pick up and move to a state which did not have such laws. Congress, viewing this phenomenon with dismay, finally itself enacted federal prohibitions against child labor, and later a federal maximum hour and minimum wage law. This pattern has continued in various areas of the law. A wave of reform lead to the enactment by the states of "blue sky" laws in the first part of this century, regulating the business of issuing and selling stock, and punishing fraud. But these laws were deemed inadequate, and the federal government stepped in as a part of President Franklin Roosevelt's New Deal to enact federal regulations in that field. In the 1950s, many states enacted fair employment practice laws and anti-discrimination laws governing public accommodations and the like. But some states chose not to enact such laws, and dissatisfied reformers went to Congress to nationalize this field of lawmaking. The result was the Civil Rights laws enacted in the 1960s.

The wave of federal regulatory statutes also brings with it related problems that give rise to legal disputes. In the first place, disputes arise as to whether an agency or commission that is empowered to issue regulations under a statute has exceeded its authority with respect to one or more particular regulations. Federal courts must decide these questions, as well as basic questions of statutory interpretation. Second, because of the Supremacy Clause in our Constitution, every time Congress enacts a new statute dealing with some phase of the economy it very likely supersedes some of the laws of the various states which previously governed that area. For example, in 1974 Congress enacted the modestly titled Employees Retirement Income Security Act, which had as its basic purpose the introduction of some federal supervision over employer plans to provide various health and retirement benefits to employees. In the twenty years in which that statute has been on the books, our Court has decided twenty-one cases involving the question of whether or not the federal law preempted a particular state law dealing with the same general subject matter. And that, of course, is only the tip of the iceberg; if the Supreme Court has decided that number of cases, the federal appeals courts will have decided fifteen or twenty times that number of cases dealing with preemption under this particular federal statute.

The result of this two hundred year evolution has been that although ninety-five percent of the judicial business in the United States is still transacted in state courts, there has been a remarkable increase in the business of the federal courts because of these changes which I have described. And the federal courts are now awash in the most recent of these changes, which is the federalization of more and more crimes which once were thought to be matters of exclusive concern to the states.

Forty some years ago when I began the practice of law in Arizona, there were not many federal criminal statutes on the books. There were some very esoteric crimes, but the staple of the criminal business of federal courts outside of the metropolitan areas was confined to prosecutions for transporting a stolen car in interstate commerce, using the mails for interstate communications to commit fraud, and a very few other similar crimes.

But that landscape has entirely changed in the last forty years. Congress, understandably concerned with the increasing traffic and drugs and the violence resulting from the use of guns, has legislated again and again to make what once were only state crimes federal offenses. The same sort of dissatisfaction with state treatment of the cases in this area of the law has obtained as obtained earlier with welfare legislation and civil rights laws. Congress has been of the opinion that even though these gun and drug crimes could be prosecuted under state law, the state penal systems were too lenient in paroling serious offenders after having served only a fraction of the time to which they were sentenced. So Congress has stepped in, prescribed very severe sentencing guidelines for federal crimes, and federalized countless crimes involving drugs and guns.

All of this means that in talking about the future of the federal courts, we must understand that Congress will probably continue to enact new legislation which provides new causes of action for litigants on the civil side of the docket, and new federal crimes to be prosecuted on the criminal side of the federal docket.

It is the federal district courts of appeals that are being hit hardest by this ever increasing wave of litigation. The Supreme Court's docket is actually down from what it was several years ago. With the district courts, it is largely a question of having enough judicial manpower to adjudicate the incoming cases. The same is true to a large extent of the courts of appeals, except that indefinite enlargement of the number of judges on the courts of appeals poses problems of collegiality, maintaining a coherent body of law in the circuit, and the like. The majority of federal judges, if the Judicial Conference of the United States accurately reflects their views, think that the federal judiciary should remain a limited and somewhat specialized system of administering justice. Possible alternatives to indefinite enlargement of the courts of appeals would be the creation of specialized appellate courts for a particular subject matter, or the limitation of the automatic right of appeal from district courts to the courts of appeals. We have on our panel tonight two distinguished judges of the courts of appeals, Judge Reinhardt and Judge Becker, and a distinguished district court judge, Judge Barker, who can discuss these aspects of the federal courts more knowledgeably than I can.

It would be a mistake to think that just because a certain kind of judicial business has always been conducted in a particular way in the past, it therefore ought to be conducted that way in the future. The federal courts, like other governmental institutions, must, where necessary, change with the changing times. A Long Range Planning Committee of the Judicial Conference, of which both Judges Becker and Barker were members, has recently peered into the future and come up with a number of recommendations for how the federal judiciary can cope with the changes which the future will assuredly bring. But all of the planning and discussion by judges as to the future of the federal judiciary has a somewhat tentative, conditional air about it: in this area we are not masters in our own houses and any major change will have to be approved by Congress.

I have said that the judiciary must change with the changing times. But there are a very few essentials that are vital to the functioning of the federal court system as we know it. Surely one of these essentials is the independence of the judges who sit on these courts.

Article III of the Constitution guarantees to federal judges the right to continue in office during good behavior, and prohibits the diminution of their compensation. But these two constitutional provisions did not settle every question about the independence of the judiciary. As a result, there have been several actions by Congress over the years which have fleshed out the constitutional provision in a manner akin to the development of an "unwritten constitution" in Great Britain.

Article I of the Constitution provides that civil officers - including judges - may be impeached by the House of Representatives for "high crimes and misdemeanors," and if convicted by the Senate may be thereupon removed from office. The term "high crimes and misdemeanors" was sufficiently amorphous to leave open the possibility that a federal judge could be removed from office, not only for conduct that was criminal, but for rulings from the bench that seemed flagrantly wrong.

An important episode early in our nation's history in effect resolved this question. This was the impeachment trail of Samuel Chase, then an Associate Justice of the Supreme Court, in 1805. Chase had been appointed to the Supreme Court by George Washington in 1796, but in those days the Supreme Court docket was even lighter than it is today; Supreme Court justices spent most of their judicial time riding circuit trying lawsuits in tandem with the resident judge. Chase was a striking figure physically - over six feet tall, with a ruddy complexion which earned him the sobriquet (behind his back, of course) of "Old Bacon Face." He was able but imperious, and totally lacking in the patience necessary for a trial judge.

Two years after Thomas Jefferson took office as President, in 1803, Chase delivered a partisan charge to a grand jury in Baltimore. Jefferson, learning of this, wrote to his lieutenants in the House of Representatives suggesting that they do something about it. The House proceeded to impeach Chase on a number of counts. The first count was the charge to the Baltimore grand jury. Other counts were based on his conduct of the trial of John Fries for treason in Philadelphia in 1800, and still others were based on his conduct in the trial of James Callender in Richmond for violation of the Sedition Act in the same year. The trial before the Senate began in February, 1805, presided over by the Vice President, Aaron Burr. Burr himself was a fugitive from justice at the time, having killed Alexander Hamilton in a duel at Weehawken, New Jersey the preceding summer. Criminal indictments were out for him in both New Jersey and New York, which caused one wag to remark that whereas in most courts the criminal was arraigned before the judge, in this court the judge was arraigned before the criminal.

More than fifty witnesses testified before the Senate. The charges pertaining to the Fries trial did not amount to much - at the most they showed him to be headstrong and somewhat domineering, a trait not unknown in other federal judges. The charges in connection with the Callender trial were a good deal more serious. Callender was charged under the Sedition Act with bringing President John Adams into disrepute, inasmuch as he called him a toady to British interests in a long and incredibly turgid book entitled "The Prospect Before Us." The evidence showed that Chase had actually taken the book with him from Baltimore to Richmond in order to allow the grand jury to consider it, and that during the stagecoach trip from Baltimore to Richmond he referred to Callender as a "scoundrel" to another passenger.

On March 1, 1805, the Senate convened to vote on the articles of impeachment against Chase. At that time there were thirty-four senators, twenty-five of whom were Jeffersonian Republicans. If these senators voted a party line, there would be the necessary two-thirds majority to convict Chase and remove him from office. Happily, they broke ranks. On the articles based on the Fries trial, the vote was sixteen to convict, and eighteen to acquit. The vote on the articles relating to the Callender trial was eighteen to convict, and sixteen for acquittal. On the count based on the charge to the Baltimore grand jury, the House managers came closest to prevailing - nineteen senators voted guilty, and fifteen voted not guilty. But even this number fell four votes short of the two-thirds majority required, and Chase was therefore acquitted on all of the counts against him.

This decision by the Senate was enormously important in securing the kind of judicial independence contemplated by Article III. Coming only two years after the seminal decision of the Court in Marbury v. Madison, it coupled with the authority of the federal courts to declare legislative acts unconstitutional the assurance to federal judges that their judicial acts - their rulings from the bench - would not be a basis for removal from office by impeachment and conviction. And that has been the guiding principle of the House of Representatives and the Senate from that day to this; federal judges have been impeached and convicted - happily, only a very few - but it has been for criminal conduct such as tax evasion, perjury, and the like.

This principle only goes so far. It obviously does not mean that federal judges should not be criticized for the decisions which they make; they are frequently so criticized by the media and by law reviews, and there is certainly no reason why other citizens should not engage in the same practice. And the doctrine of judicial independence does not mean that the country will be forever in sway to groups of non-elected judges. When vacancies occur through death or retirement on any of the federal courts, replacements are nominated by the President, who has been elected by the people of the entire nation, subject to confirmation by the Senate, whose members have been elected by the people of their respective states. Both the President and the Senate have felt free to take into consideration the likely judicial philosophy of any nominee to the federal courts. Thus there is indirect popular input into the selection of federal judges.

This principle is perhaps best illustrated by the experience of President Franklin Roosevelt with appointments to the Supreme Court. Dissatisfied with decisions of that court which invalidated some provisions of his New Deal program, he asked Congress to enact what soon became known as a "court-packing plan," which would allow him to replace any Justice over seventy who did not retire with an additional Justice, up to the number of fifteen. This rather bald effort to change the philosophy of the Court was rejected by the United States Senate in 1937. But although Roosevelt lost that battle, he eventually won the war by serving three full terms as President and appointing eight of the nine members of the Court. This simply shows that there is a wrong way and a right way to go about putting a popular imprint on the judiciary.

The framers of the United States Constitution came up with two quite original ideas - the first was the idea of a chief executive who was not responsible to the legislature, as Chief Executives are under the parliamentary system. The second was the idea of an independent judiciary with the authority to declare laws passed by Congress unconstitutional. The first idea - a President not responsible to Congress - has not been widely copied by other nations in the western world when they have come to review their systems of government. But the second idea - that of an independent judiciary with the authority to finally interpret a written constitution - has caught on with many other nations, particularly since the end of the Second World War. It is one of the crown jewels of our system of government today.

Change is the law of life, and the judiciary will have to change to meet the challenges which will face it in the future. But the independence of the federal judiciary is essential to its proper functioning and must be retained.