Academic journal article Journal of Appellate Practice and Process

No Court Is an Island

Academic journal article Journal of Appellate Practice and Process

No Court Is an Island

Article excerpt

Our subject today, "no court is an island," with regard to the federal appellate courts, bespeaks the fundamental truth that governance in the United States is a process of interaction among institutions--legislative, executive, and judicial--with separate and sometimes clashing structures, purposes, and interests. (1) Constructive tension among those governmental institutions, the founders envisioned, would not only preserve liberty, but also promote the public good. No branch was to encroach upon the prerogatives of the others, yet, in some sense, each was dependent upon the others for its sustenance and vitality. And that interdependence would contribute to a process that was informed and deliberative. Governance, then, is premised on each institution's respect for and knowledge of the others, and a continuing dialogue from which shared understanding and comity flow.

With respect to the federal appellate courts, (2) what is at issue in part is the very viability of the judiciary; courts, after all, need to function in an environment respectful of their core values and mission, with the requisite resources, and the other branches seek a judicial system which faithfully interprets its laws and efficiently discharges justice. At issue in some sense is a matter even greater than the well-being of particular branches of government: It is the preservation of the means by which justice is dispensed fairly and efficiently.

A host of issues press upon the nerves of the relationship: the prospect of an ever-rising caseload; federalization of the law; resource constraints; compensation; concerns about the confirmation process; increasing legislative scrutiny of judicial decision making and the administration of justice; discussions about judicial decisions affecting congressional power; and debates about how the courts should interpret legislation.

While our subject today will, perforce, focus on legislative-judicial relations, it is important to recognize that federal courts are affected by other institutional forces as well. The federal appellate courts function within the context of a judicial system. The appellate courts are, of course, affected by the decisional jurisprudence of the Supreme Court. The impact of the High Court is felt not just in the context of isolated individual cases, but its decisions can have systemic effects--witness the impact of the Supreme Court's Booker and Fanfan (3) decisions in the area of sentencing on the appellate courts and district courts. The decisions of the Judicial Conference of the United States can also have consequences for the federal appellate courts. For example, the recent determination that summary orders can be cited by parties in litigation (4) will no doubt affect how courts of appeals write those orders. And circuit court funding, while ultimately determined by legislative action, is very much driven by the Judicial Conference funding formula. (5)

As to the executive branch, the president affects the federal appellate courts through the power to nominate judges. Executive branch policies can have substantial effects on the appellate judiciary--for instance, the determination of the Department of Homeland Security and the Department of Justice to drastically reduce the backlog of immigration cases has dramatically increased the workload of circuit courts, (6) forcing courts like my own to rethink time honored practices such as oral argument in every case for which it is sought. And the executive branch, through the General Services Administration, affects courthouse construction and renovation projects. (7)

Beyond other governmental institutions, a word about the media is appropriate. The work of the federal appellate judiciary is seldom the focus of media concern. It is the occasional high profile case that catches the media's attention. But when that sort of case arises, the public's understanding of the federal courts is filtered through news stories and editorials. …

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