The Unitary Executive and the Plural Judiciary: On the Potential Virtues of Decentralized Judicial Power

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III. RECONSIDERING THE COSTS AND BENEFITS OF DECENTRALIZING JUDICIAL POWER AND POTENTIAL CONSTITUTIONAL MEANS OF CREATING GREATER CONCENTRATIONS OF FEDERAL JUDICIAL POWER IN FEWER HANDS

One should note that although the federal judicial system has been designed and operated on a decentralized basis since its inception in 1789, no constitutional imperative for this structure exists that requires this arrangement to continue going forward. Either Congress or the Supreme Court itself could attempt to create structures, practices, and institutions that would consolidate judicial authority within the federal government in fewer hands and permit its exercise to be more carefully superintended by some sort of central authority.

National courts defined by subject matter, for example, could remove certain kinds of cases from the regular, generalist federal courts and also from the state court systems. To some extent, the Tax Court and the Court of Claims reflect and incorporate this approach, (137) as do the U.S. Court of Appeals for the Federal Circuit and the U.S. Court of Appeals for the District of Columbia Circuit. (138) The Federal Circuit enjoys responsibility for appeals from a variety of national federal courts with jurisdiction over particular subject matter, such as tax, international trade, and patents, (139) and the D.C. Circuit almost always enjoys jurisdiction to hear petitions for review of federal agency action (although as often as not, this jurisdiction is concurrent with other courts of appeals, rather than exclusive). (140)

In addition to these mechanisms, Congress could create a new national appellate court with a mission of centralization and error correction. This idea is hardly original to me; at various times and at regular intervals, public law scholars have suggested that Congress create a national Supreme Court of Appeals to ensure uniformity of federal law in cases that do not raise sufficiently serious questions of constitutional, statutory, or treaty law to merit review and consideration by the Supreme Court of the United States. (141) Most recently, a group of public law scholars concerned with the potential ill effects of the life tenure enjoyed by members of the Supreme Court, led in large part by Professor Paul Carrington, have renewed calls for creation of a judicial entity of this sort. (142) A central national appellate court with the power to review and decide appeals from the various courts of appeals, and perhaps also from the state supreme courts, would have a powerful centralizing effect and could, at least in theory, considerably reduce the problem of non-uniform federal law.

The possibility of using fairly simple bureaucratic reforms to centralize judicial authority, perhaps at the Supreme Court level, could also reduce the decentralization of the federal courts. Professor David S. Law has written cogently on how such devices operate in the context of the Japanese judicial system. (143) Law notes that simple administrative controls, such as a central bureaucratic structure that oversees the hiring and placement of law clerks, can produce powerful centralizing effects on the operation of a national judicial system. (144)

Although Article III, Section 1 guarantees that federal judges will enjoy life tenure and salary protection, (145) the Constitution does not require Congress to provide any particular staffing or administrative support. If Congress wished to create a centralized Office of Personnel Management entity within the federal courts, controlled by the Chief Justice, and to vest this entity with the selection of law clerks and perhaps even administrative assistants, one would be hard pressed to argue that such a "reform" violates any express constitutional prohibition on the structure of the federal judiciary. (146) So too, the Chief Justice, or the national Judicial Conference, could exercise broad control over the assignment of cases to particular courts or perhaps even to particular judges, if authorized to do so by statute. …