Controlling Precedent: Congressional Regulation of Judicial Decision-Making

Article excerpt

Modern federal courts scholars have been fascinated by the question of Congress' power to control the jurisdiction of the federal courts. (1) This fascination is not difficult to explain: the question is theoretically profound and raises fundamental issues about the roles of Congress and the federal courts in the constitutional order. (2) As a practical matter, however, the question has proven to be of limited significance. Despite a recent spate of legislation restricting access to courts by prisoners and immigrants, (3) people talk about wholesale jurisdiction-stripping far more than they actually do it.

By contrast, Congress routinely regulates the manner in which federal courts exercise their jurisdiction. A host of federal statutes seek to guide, and even control, the process of decision-making that federal courts employ to decide cases within their jurisdiction. This crucial aspect of congressional power, however, has been largely neglected by federal courts scholars--and by the courts themselves, who have quietly acquiesced in wide-ranging congressional efforts to control the judicial decision-making process. (4) Given the relative importance of questions concerning control of jurisdiction and control of decision-making, the widespread neglect of the latter is noteworthy.

There are signs, however, that congressional regulation of the judicial process may finally be attracting significant academic attention. In recent years, four of the nation's most insightful constitutional scholars have addressed some aspect of this topic. In 1995, Professor Martin H. Redish concluded, as part of a wide-ranging study of judicial independence, that Congress has broad power to prescribe substantive and procedural rules for the judiciary but that separation-of-powers principles place important limits on that power when its exercise affects the way in which cases are decided. (5) According to Professor Redish, the decisional independence principle precludes direct legislative control of judicial outcomes, (6) while the political commitment principle (7) forbids Congress from using the trappings and prestige of the federal courts to hide substantive legislative decisions from the electorate. (8)

In 1999, Professor David Engdahl identified the Sweeping Clause of Article I, Section 8 (9) as the constitutional source of congressional power to regulate the jurisdictional, structural, and decisional affairs of the federal courts. (10) Professor Engdahl urges courts to decide for themselves whether congressional measures regulating the judiciary in fact aid or hinder the "carrying into Execution" of the judicial power, which he argues calls into question the validity of such familiar statutes as the Anti-Injunction Act, some of the Federal Rules of Evidence, and a host of other measures designed to regulate the remedies and procedures employed by the federal courts. (11)

Two recent articles specifically consider the power of Congress to regulate the use of precedent by federal courts. Professor Michael Stokes Paulsen has urged adoption of a statute that would forbid the federal courts from giving prior court decisions any weight beyond their persuasive value in future cases involving the constitutionality of abortion regulations (or in constitutional cases more generally). (12) He agrees with Professor Engdahl that the Sweeping Clause is the key constitutional provision for analyzing congressional power over the courts, but he finds in that clause a power at least broad enough to restrict the use of precedent in constitutional cases. (13) And Professor John Harrison has argued for a similar, though perhaps narrower, congressional power under the Sweeping Clause to mandate any norm of precedent that courts could reasonably adopt for themselves. (14)

All of these authors make critical contributions to an exploration of this issue, but each of them misses an important piece of the puzzle. Professor Redish correctly draws attention to the importance of background norms of separation of powers, but he does not discuss the central role played by the Sweeping Clause in any assessment of congressional power to regulate the courts. …