John F. Market 0
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JOHN F. MARKERT*
The title judicial reform is so broad that it needs definition in order
to determine what it is we are discussing and in order to have a meeting
of the minds. The term judicial reform has different meanings when
talking about the federal court system as compared to the various state court
systems. Because of the fact that many of the states are engaged in
reforming their judicial systems, including the method of tenure and
appointment of the judges of the respective benches, most of the comments that I
will make will apply to the federal court system.
If one asks a legislator, and in particular a congressman, what he
envisages by the term judicial reform you are more than likely to get the
response that judicial reform means somehow limiting the jurisdiction of
the federal court system or overhauling the administrative structures of the
court system; normally you do not find congressmen thinking of judicial
reform in terms of the method of selection and length of tenure of judges
of the federal courts. This would include judges of the United States
district court. Accordingly, in the past sessions of Congress we have seen a
number of bills being introduced addressing themselves to this
congressional concept of judicial reform and they include the following, among
1. We have seen a bill to establish a commission to revise and restructure
the federal judicial circuits.
2. We have seen several bills which address themselves to limiting or taking
away the jurisdiction of the federal court in cases relating to:
a) Religious institutions which are exempt from taxation;
b) Eligibility for public assistance payments;
c) The sale or the use of any narcotic or drug;
d) The distribution, sale or use of pornographic or obscene materials;
e) Litigation involving the subject of abortions;
f) Litigation involving the recital of prayers or Bible reading in the
public school systems;
g) Decisions of state courts regarding the pretrial law enforcement
actions in criminal cases.
3. The confirmation process of federal judges by the United States Senate
every ten years.
4. Mandatory retirement of judges in the federal court system at age 70.
5. The deletion of section 2281 of the United States Code relating to the
establishment of three-judge district court panels.
* Executive Director, Minnesota Catholic Conference, St. Paul, Minnesota.
6. Controversies involving public schools.
In relation to congressional judicial reform, one should take note of the
United States Constitution, article I, which contains some limitations on
specifically what Congress can or cannot do relative to the district court
system. Article III, in its pertinent part, reads as follows:
Article III, Section 1. The judicial Power of the United States shall be
vested in one supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish. The Judges, both of the supreme and
inferior Courts, shall hold their Offices during good Behaviour, and shall, at
stated Times, receive for their Services, a Compensation, which shall not be
diminished during their Continuance in Office.
Section 2. The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United States,.
The question has been raised as to whether or not Congress has the
power to limit the tenure of judges of the federal courts to retirement at
age 70 in view of the fact that the Constitution says that they "shall hold
their Offices during good Behaviour."'
In passing, one would note that the legislators of the various states
have been active in reforming the judicial systems of some of the states.
The most prominent and best known of the systems under the state
reforms is the Missouri plan in which a judge does not run against opponents
at large but runs against his record in terms of the question on the general
election ballots. If one is interested in state reform, considerable
information can be gained from the American Judicature Society, from the
American Judges Association, and from various states that have implemented
various judicial reforms.
If one asks lawyers who are practicing before the federal court what
they might think of in terms of the phrase judicial reform, you would get
a variety of responses which would cover perhaps some of the following, if
not all of them:
1. We should reform the method by which judges are selected to serve on
the bench. This should be done by a committee or a group of other lawyers
or at least persons who are competent to judge the qualifications and
credentials of a person being considered for the federal bench.
2. Tenure should be limited to a mandatory retirement age of somewhere
between 65 to 70 years. In addition, perhaps tenure should only be for ten
year appointments at one time or some other logical period after which the
appointee would have to return to the Senate of the United States and on
the basis of his record seek reappointment to the office by the Senate. Thus,
the judicial candidate would be subject to some kind of accountability to the
elected representatives of the people.
I U.S. CONST. art. III§,§ 1, 2.
3. It has also been suggested that perhaps a judge should be appointed for
a 6 to 10 year term, which would not be renewable and after which he would
leave the bench and be returned to private practice or any other activity that
he would choose. The thrust of this suggestion would be that if a judge has
to seek reappointment every 6 to 10 years, it is going to turn him into a
politician and he is going to be susceptible to pressures by Congress; on the
other hand, if he knows that he is only on the bench for a one-shot term of 6
to 10 years or perhaps even 15 years, he will serve with independence, which
is good, but his term will not be extended and he will not be turned into a
politician by way of altering his actions on the bench in order to
accommodate reappointment, etc.
4. Lawyers also think in terms of limiting the jurisdiction of the courts as
was discussed under the congressional heading above.
In talking to lawyers, one is more likely than not also to elicit the
observation that one reason we need judicial reform, especially at the
federal court level, is to stop the federal courts from their current practice
of legislating from the bench. The reason given for this is that judges are
appointed to the bench early in terms of their chronological age and can
look forward to a long lifetime tenure on the bench. During that tenure
they are practically totally autonomous from any of the branches of
government and, in fact, they are accountable to no one. They are not even
accountable to the people from whom their power is derived. The thrust
of the suggestions, therefore, that you would elicit from lawyers as well as
from others is that the complete and total autonomy of the bench has its
good sides and its bad sides. In terms of a lack of accountability it is not
If you discuss the subject of judicial reform with the non-lawyer or
layman you will immediately find that the average layman is not well
advised or competent enough in terms of information that he perceives and
obtains to evaluate and judge the judicial system and the judges that serve
it. Thus, you will find laymen responding to the question in terms of:
"some judges are too hard;" or, "some judges are too soft" (in terms of the
sentences they hand out in criminal proceedings); or you will find them
responding with indignation or enthusiasm, depending upon the point of
view, concerning civil damage verdicts which are generally read about in
the news media and which constitute the great bulk of information that
the average layman has about the court system. They are not aware of the
administrations of the courts nor are they aware of the law that the courts
have to apply. Generally they just do not know whether a judge is good or
not except in terms which are, for all practical purposes, irrelevant and
immaterial. This raises a very serious question about having judges
evaluated in general elections by the general electorate. The average member
of the electorate is not competent to judge members of the bench in terms
of their goodness or badness as the case may be. This is one of the major
criticisms of the Missouri system in that it calls for an evaluation by the
general electorate which, for all practical purposes, again is meaningless.
Thus we find the courts and Congress and lawyers thinking in terms of
judicial reform committees or having judges reaffirmed by the Congress or
Senate as the case may be.
In order to bring some of the above observations into sharper focus let
me refer to some other sources of observation concerning the federal court
system. I would refer you first of all to an article written by James L.
Oakes, Circuit Judge, United States Court of Appeals for the Second
Circuit, which appears in the St. John's Law Review.' Judge Oakes makes
the following observations, among others. The article should be read
because it contains observations about the three-judge panel which are very
apropos.. But to quote the judge:
Three-judge courts as an institution are under considerable pressure.
Increasing federal court business coupled, perhaps, with less fear that a single
judge's enjoining a state statute that is unconstitutional might create a
constitutional crisis in a federal system, have led distinguished bodies,
commentators, judges, and now the United States Senate alike to call for the partial
abolition and modification of the requirements in 28 U.S.C. § 2281 that:
land here section 2281 is repeated verbatim but will not be repeated here].'
And Judge Oakes again at the conclusion of his article states:
Abolition of the procedure as called for in the Senate Bill [S. 271, 93d Cong.
1st Sess. (1973)] is, however, a consummation devoutly to be wished ....
[Tihose of us in the federal courts who would rather get down to the
substantive business at hand, of which we have enough, will shed no tears at the
demise of three-judge courts. I suspect that lawyers bent on obtaining prompt
and proper rulings on constitutional issues with adequate factual records will
Mr. Charles Tobin, who is an attorney in New York and the Secretary
of the New York State Catholic Committee, has been concerned with the
subject of judicial reform for some time. In a general memorandum dated
June 15, 1972, Mr. Tobin makes the following suggestions relative to some
of the solutions that might be suggested for the subject and dilemma of
needed judicial reform:
All of this comment brings us to the question of proposed solutions. It seems
to some of us that we will continue to be adversely affected by the Federal
litigation process so long as the current procedures remain for appointment
and for commencement of litigation. We would think it desirable that there
be a major effort made through the appropriate sources to recommend to the
Congress that there be some changes in the structure of the Federal
Judiciary. We would have in mind that these changes might include all or some of
Oakes, The Three-Judge Courtand Direct Appeals to the Second Circuit, 48 ST. JOHN'S L.
REv. 205 (1973).
' Id. (footnotes omitted).*
' Id. at 211 (footnotes omitted).
1. That there be a severe limitation upon the right of taxpayers to sue and
to begin a three-judge court case.
2. That organizational plaintiffs should be barred unless they can
specifically demonstrate a direct interest.
3. That the method of assignment of the judges to these courts be
completely automatic and without any possibility of "forum shopping" or
selection of particular judges.
4. That the term of Federal judges be fixed for no longer than 6 to 10 years
and that they have a mandatory retirement age of 65.
5. That there be established a special appellate panel of judges of the
several circuits made up of probably 5 judges who would be an intermediate
Court of Appeal from three-judge courts, so that there would be an assurance
of one full review in every three-judge court litigation. At the present time
we do not feel that the certiorari route gives an adequate review because the
Supreme Court is forced to restrain itself from taking cases because of the
size of the court and the limits of its docket. Literally, the Supreme Court is
swamped by cases and as a result many cases which should be reviewed by
that court get pro forma dismissal by clerks employed by the judges.
I would also refer you to the January, 1974 issue of the Journalof The
American Judicature Society,5 which is dedicated almost entirely to the
subject of judicial reform at both the state and the federal court level.
I have exchanged correspondence with Frederick C. Wright, 1I, who
is an Administrative Judge of the District Court of Maryland, District No.
3, and he has responded by a copy of a report that he rendered to the
American Judges Association. It deals primarily with reform or the status
of state court systems, but it is comprehensive and has a remark
concerning almost every state in the Union. Copies of this are available, I would
assume, from either Judge Wright or I would be happy to supply them to
anyone desiring them from my office copy.
Lest anyone think that the need for judicial reform is merely an
academic thing, let me relate to you what I have heard referred to as a horror
story concerning the need for judicial reform. Earlier I stated that the basic
reason for the need for reform was that courts have become totally
autonomous and accountable to no one and have, thus, begun to legislate from
the bench. Thus, the courts have assumed the role of writing the law rather
than interpreting and applying decisions concerning the law as written by
the proper legislative bodies. I think that some specific examples will serve
as well here. The first is in the area of education law and specifically laws
that have been passed by the various state legislatures throughout the
nation concerning aid to nonpublic education. The most recent of these are
Levitt v. Committee for PublicEducation & Religious Liberty (PEARL)'
and Committee for Public Education & Religious Liberty v. Nyquist.7 We
' 57 J. Am. JUD. Soc'v 227, 227-74 (1974).
413 U.S. 472 (1973).
7 413 U.S. 756 (1973).
are all familiar with the three prong .test that has been promulgated by the
court prior to the PEARL-Nyquist casesto determine the constitutionality
of state aid bills. The three prong test was: primary purpose, legislative
effect, and entanglement. In the Nyquist case we saw that Mr. Justice
Powell, who wrote the decision, went through and reviewed the New York
legislation against the background of the three prong test; he found in each
specific instance that the law met the test. He then went on to announce,
however, a fourth test which had never been heard before and which I
would say is that fourth rule that we heard Mr. Joseph Skelly make
reference to as a possibility in Meek v. Pittenger'that they have successfully
pursued so far in the federal court system. The fourth test, of course, was
dredged up by the Court simply because the Court in its legislative
function was not satisfied with the results that would occur by the application
of the previously announced three prong test. In other words, the Court
made up a rule as it went along to accomplish the result that it wanted to
accomplish because the previously announced rules would not do that. The
fourth test, of course, was Mr. Justice Powell's pronouncement:
But the propriety of a legislature's purposes may not immunize from further
scrutiny a law which either has a primary effect that advances religion, or
which fosters excessive entanglements between Church and State.
Accordingly, we must weigh each of the three aid provisions challenged here against
these criteria of effect and entanglement.
Thus, the Court has injected the fourth criterion for the applying of its
three previous rules and makes the rules up as it goes along. Other
examples of the autonomy of the court are ample. The State of Ohio has seen
its legislative laws continuously stricken by the same three-judge panel
over a period of about three years. In one instance the court made
disposition of the case on the merits in response to pretrial jurisdictional motions
without even waiting for the case to be heard or the issues to be joined by
the filing of answers.
Of course, I think we are all familiar with the abortion cases of Wade,°
and Bolton," wherein the Court not only legislated from the bench but
interpreted the United States Constitution in a way that is totally foreign
to that document itself and the applications which it has received down
through our almost 200 years of history since the Constitution was ratified.
In holding that the unborn children are not persons in the full sense of the
law, the Court was clearly in error, clearly contrary to previous rulings of
all the courts of the land including itself, and clearly was legislating.
In terms of the general subject of separation of church and state, we
374 F. Supp. 639 (E.D. Pa. 1974), prob. juris. noted, 43 U.S.L.W. 3207 (U.S. Oct. 15,
1974) (No. 73-1765).
Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 774 (1973).
Roe v. Wade, 410 U.S. 113, rehearingdenied, 410 U.S. 959 (1973).
Doe v. Bolton, 410 U.S. 179, rehearingdenied, 410 U.S. 951 (1973).
have seen the Court again legislate by interpreting the term "separation"
in a way which was clearly not defined or intended by the founders of the
Constitution and in a way which is clearly erroneous and which constitutes
legislation in terms of the supreme law of the land, i.e., the Constitution.
Flast v. Cohen'2 stands very close to being a legislative decision by the
Court in terms of expanding its own jurisdiction. You will recall that Flast
was the case wherein standing requisites were drastically changed by the
Court and the Court opened itself up to litigation by granting standing to
almost anyone that cared to file a court case in the federal court system.
These are just a few examples of what might be interpreted by some
as legislating from the bench, which I think served to sharpen up the focus
of need for legislative reform as outlined above. The point is that in terms
of petitioning the government and seeking our rights to the passage of
proper legislation at both the state and the federal levels, the church-state
issue seems to be in proper context and we are able to obtain fair hearings
and a share of our rights before the legislative bodies of the nation. It is
all for naught, however, when proper legislation is continuously struck
down as being unconstitutional by a federal court system which insists on
substituting its judgment for that of legislators and insists further on
legislating from the bench in the form of making up the rules as it goes along
to attain the ends which they think ought to be attained. The autonomy
of the court is intolerable and even if the court were of a mind to legislate
and to hold all rulings in favor of the church we should still stand as being
opposed to the ability and the allowance of the court to legislate from the
bench as being a violation of the general principles of democratic
government. It is not so much what the court does by way of legislating and failing
to follow its own rulings and the law but the fact that it is allowed to
happen that constitutes the real danger to any person or group of persons
in the nation, be they in favor of aid to nonpublic education or against
abortion, or whatever. One would think that even the Civil Liberties Union
and the other libertarian groups would be opposed to the autonomous
powers of the court; however, it is understandable that currently they are
not because the court is predisposed to making rulings in their favor. -It
would be interesting to see what their stand would be on this subject of
court autonomy if the court were to turn around and begin to issue rulings
by way of legislation against libertarian concepts. Even if that were to
happen, we shouid still stand on record as being against the court having
such powers and we should stand in favor of judicial reform which would
bring this kind of activity by the court to an end.
In closing let me observe that if what I have said sounds paranoid it
is because probably I am becoming paranoid at the treatment that we are
receiving in the hands of the court. I would say, again, for emphasis,
however, that even though we have suffered at the hands of adverse
decisions, it is not so much the adverse decisions as the principle that the
courts need reforming to change and take away from them their autonomy
and to make them accountable through some proper process to the will of
the people. While it is true that the court must have autonomy to be taken
out of the field of politics and not be held in check in any way by the
legislative and executive branches of government, it is not proper
democracy that the courts should be completely and totally autonomous and no
longer accountable to the people from whom they have derived their power.