Bureaucratization of the Court

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Bureaucratization of the Federal Judiciary The Judiciary Act of 1789, which gave birth to the federal courts, created a simple three‐tiered judicial system staffed by six Supreme Court justices and thirteen district court judges. Over the years, the judiciary grew as the nation expanded. By 1990, with ninety‐four district courts and twelve regional circuit courts, staffed by 743 judges as well as a number of more specialized tribunals, the federal court system became a complex operation with an annual budget in excess of $1.7 billion. Inevitably, such growth has spawned an administrative bureaucracy.

The emergence of administrative structures, however, was slow in developing. The judiciary operated in a very decentralized fashion. There existed no central arm of the judicial branch to exercise administrative or policy‐making authority. The Department of Justice, a unit of the executive branch, performed all administrative functions that were necessarily national in scope.

Concerned about the court system's lack of integration, Chief Justice William Howard Taft lobbied Congress for the creation of a single agency to aid in communication, coordination, and policy making for the judiciary. Congress responded in 1922 by establishing the Judicial Conference of Senior Circuit Judges. The conference, chaired by the chief justice, consists of the chief judges of each circuit, the chief judge of the Court of International Trade, and an elected district judge from each circuit. Now known as the Judicial Conference of the United States, it has evolved into the judiciary's central policy‐making organ and is the court system's primary liaison with Congress. The conference formally meets twice annually, but functions throughout the year through a system of some twenty‐five committees that focus on matters of special administrative and policy concern.

In response to heated political battles between the judiciary and the executive branch over the administration of the courts, Congress in 1939 created the Administrative Office of the United States Courts and in so doing granted the judiciary its administrative independence. With an annual budget in 1990 of $34 million, the administrative office provides the fiscal, clerical, and management services necessary for the national operation of the federal courts.

In 1967, Congress added a third unit to the national judicial bureaucracy, the Federal Judicial Center. This organization carries out training, research, and development programs for the courts. It has been particularly effective in sponsoring seminars and continuing education programs for newly appointed and veteran judges and in conducting research on methods of improving the administration of justice.

The judiciary's centralized bureaucratic machinery focused almost exclusively on administrative matters until 1984, when because of growing concern over disparities in criminal sentences, Congress created the United States Sentencing Commission. The commission was empowered to promulgate mandatory sentencing guidelines. This was the first agency in the judicial bureaucracy to exercise a degree of control over the actual decisions of federal judges. The commission's constitutional validity was upheld by the Supreme Court in Mistretta v. United States (1989).

In spite of the centralizing influence of these bureaucratic units, the lower federal courts remain localized, and the norm of judicial independence remains well entrenched. Each of the twelve circuits has authority to handle matters of circuit administration and policy. The primary decision‐making entity is the Circuit Council, a body whose membership includes both court of appeals and district court judges. The councils exercise wide ranging authority over the federal courts of the circuit and make recommendations to the Judicial Conference when problems extend beyond the region, or when a congressional response is required. Within each council rests the authority to monitor judicial conduct and to take appropriate action when disability occurs or discipline is required. These powers were approved by the Supreme Court in Chandler v. The Judicial Council of the 10th Circuit (1970) and later codified with passage of the Judicial Councils Reform and Judicial Conduct and Discipline Act of 1980.

Rapid increases in litigation have necessitated the creation of additional administrative positions for the lower federal courts. Since 1971, each circuit has been authorized to appoint a circuit executive, a professional judicial administrator who, at the council's directive manages the circuit's nonjudicial operations. At both the court of appeals and district court levels there is support personnel to assist in the processing of judicial business, including court clerks, marshals, magistrates, staff attorneys, law clerks, and clerical staff. These expansions in the judiciary's administrative apparatus have prompted some observers to caution against an excessively bureaucratized judiciary, a condition under which judges must devote greater amounts of time to managing staff and caseload and less to their essential judicial duties. Such a situation may lead to an increasingly impersonal and inflexible judiciary in which the processing of cases takes priority over the quality of the justice rendered.

See also Administration of Federal Courts; Circuit Courts of Appeals; Lower Federal Courts; Workload.

Bibliography

Peter Graham Fish , The Politics of Federal Judicial Administration (1973).

Thomas G. Walk

Bureaucratization of the Court The Supreme Court consists of nine jurists who, at least in theory, after meaningful collegial deliberation interpret the Constitution based on their individual philosophies, wisdom, and legal scholarship without delegating significant work to supporting personnel. During the Court's first several decades this was indeed the case. The Court met for relatively short terms and its docket was manageable; indeed, justices lived together in the same boardinghouse. The justices were able to conduct their business without significant assistance. Gradually, however, a bureaucracy developed to aid them in both administrative chores and judicial responsibilities. At first this occurred on a somewhat informal basis with part‐time and often unofficial administrators assuming Court duties. Today, the Court's bureaucracy of more than three hundred employees has become fully institutionalized and quite professional.

Historically, the Court has enjoyed the support of four major administrative officials authorized by Congress: the clerk, reporter of decisions, marshal, and librarian. Each is chosen by the Court and heads an office staffed at appropriate personnel levels. The first clerk was appointed in 1790, just three days into the Court's history. For several years he performed all of the Court's administrative duties, but remained somewhat independent, being paid from filing fees and allowed to engage simultaneously in other professional activities. Today, the clerk is responsible for administering the judicial business of the Court; this includes receiving all papers filed by attorneys, managing the calendar and docket, maintaining Court records, supervising admissions to the Supreme Court bar, and instructing attorneys on proper Court procedure. (See Clerk, Office of the; Clerks of the Court.)

The position of reporter of decisions was authorized by Congress in 1817, replacing the informal practice of private individuals publishing Supreme Court opinions and profiting from their sale. Today's reporter is responsible for editing, summarizing, printing, and distributing the Court's opinions (see Reporters, Supreme Court). The marshal of the Court was created by Congress in 1867 to provide security and carry out the orders of the Court. Previously these duties were executed by the marshal of the District of Columbia District Court. Today the marshal has a wide array of responsibilities, including supervision of the Court's police force, maintaining the building and grounds, enforcing order during public sessions, and managing the Court's fiscal affairs.

The librarian began official duties in 1887. Before Congress authorized this position, the Court's library holdings were supervised initially by the clerk and then later by the marshal (see Library). In addition to these traditional administrative offices, the Court added a public information officer in 1935, an administrative assistant to the chief justice in 1972, and a curator in 1974.

The justices are assisted in their judicial duties by law clerks assigned to their individual offices. In 1882, the first law clerk was hired by Justice Horace Gray at his own expense when Congress initially refused to appropriate funds for the employment of clerks. Each associate justice is now entitled to hire as many as four law clerks, and the chief justice five. The clerks are chosen from among the recent graduates of the nation's top law schools often after serving as clerks in the courts of appeals. They normally serve for one year. Clerks evaluate certiorari applications, do research and initial writing, draft opinions, critique legal arguments, and perform other duties as assigned by their justice (see Clerks of the Justices).

Additional assistance with judicial matters is provided by the Legal Office, established in 1973 to act as house counsel for the Court. Staffed by two attorneys appointed by the chief justice, who serve at least four years, the Legal Office advises the Court on various legal matters, including questions of jurisdiction and procedure, original jurisdiction cases, and extraordinary or emergency matters that affect the Court or individual justices (see Legal Counsel, Office of).

The growth in administrative staff has generally been considered necessary, as the Court's case filings have more than tripled since 1950. The expansion of the judicial support staff, on the other hand, has been the subject of substantial criticism. The law clerks, for example, have been accused of becoming too influential in the Court's decision making, a charge over which there is still controversy. An additional concern had been that the increased numbers of law clerks and the emergence of the Legal Office may be converting the Court from a council of nine deliberating jurists into the equivalent of a system of independent but interacting law firms. To some critics, this detracts from the Court's uniqueness and its strength as a political and legal institution.

Thomas G. Walker