The Federal Judiciary and Chief Justice Roberts's Year-End Report: What We Can Likely Expect, and the Role the Recession May Play

By CARL TOBIAS

Wednesday, Dec. 31, 2008

On New Year's Day, John Roberts, the Chief Justice of the United States, will issue his fourth Year-End Report on the Federal Judiciary. This annual ritual affords valuable insights on matters that the Chief Justice believes are critical to the federal courts. The 2008 Report assumes special importance because the elections of the 111th Congress and the 44th President may signal a fresh start for relations between them and the Third Branch.

Chief Justice Warren Burger initiated the tradition of publishing year-end reports and Chief Justice William Rehnquist, for whom Roberts clerked, continued the practice to enhance communications among the three branches. In their reports, the Chief Justices thoroughly recount the applicable empirical data on the federal courts, which involve the number and types of cases, the time required to resolve filings, and the available judicial resources. The jurists concomitantly afford constructive suggestions for improvements in the judiciary that Congress and the Executive can facilitate. Most important, because the Constitution assigns the political branches much responsibility for court operations in areas, such as federal court jurisdiction and funding, many Reports have stressed the need to increase federal court resources.

Relations between the Third Branch, Congress and the Executive have not always been ideal, and were recently strained. However, they are now improved, and the Constitution's Framers probably envisioned that interbranch tensions would be healthy. Still, the Reports can be direct, and even controversial. For example, then-Chief Justice Rehnquist used his 1997 and 2001 Reports to castigate Senate Republicans and Democrats in virtually identical, strong language for not cooperating to confirm judges. An earlier Roberts Report provoked criticism by characterizing the failure to increase judicial salaries as a "constitutional crisis."

How the Recession May Influence Justice Roberts's Impending Year-End Report

This year's recession poses special challenges for Chief Justice Roberts because many observers believe that greater resources can solve or ameliorate most of the judiciary's difficulties. The Chief, thus, will probably emphasize several themes that previously appeared in his 2007 Report. First, Roberts may reiterate the call for improved communications and constructive dialogue among the branches on questions of mutual interest, such as federal jurisdiction's appropriate scope and efficient court administration.

Second, the Chief Justice is likely to repeat his concern that judges maintain the highest ethical standards. Numerous incidents relating to judicial integrity erupted over 2008, while several investigations of federal judges for alleged misbehavior were conducted or are proceeding. These inquiries and the Judicial Conference's imposition of restrictions on "judicial junkets" and on conflicts of interest should enable Roberts to reassure Congress that the judiciary can police itself. Otherwise, lawmakers will impose regulations that may compromise judicial independence and that judges will not favor.

President Obama's Challenge: Filling At Least 54, and Possibly As Many as 119, Judgeships

Third, the Chief might praise the 110th Senate for cooperating in the judicial confirmation process, and achieving the lowest vacancy rate in two decades. That cooperation must continue, as a full bench will foster prompt, economical, and fair case resolution.

President Barack Obama and the new Senate will have 54 judicial openings to fill on Inauguration Day, and may have an additional 65, if Congress passes a judgeship bill that adopts Judicial Conference recommendations premised on conservative estimates of resources and dockets.

Another Priority: Judicial Pay High Enough to Attract Top Candidates

Finally, Roberts will continue his vigorous efforts to improve judicial pay. Concerns about the recession meant that judges were the only federal employees who did not receive a cost-of-living allowance, and may lead Congress to jettison 2009 initiatives to enhance judicial salaries. However, the Chief Justice will probably urge that the political branches increase compensation because inaction could lead additional excellent judges to assume senior status or retire early, and prevent many talented individuals from even considering judicial careers.

In sum, the issuance of the New Year's Day Year-End Report on the Federal Judiciary affords Chief Justice Roberts a valuable opportunity to enhance interbranch relations and to proffer cogent suggestions for ways that the political branches might improve judicial operations. The Chief will probably seize the moment to urge a fresh start, while the new Congress and President will apparently be receptive to the federal judiciary's overtures.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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