On Centralized and De-Centralized Federal Courts
Constitutional litigation should be more rare, and should involved fully developed and not assumed facts.
Today’s discourse about legal issues is characterized by two phenomena: partisan polarization and indifference to history.
Recent comments on the decision of Judge Terry Doughty in the Western District of Louisiana to condemn and enjoin pressures on social media companies by the Biden administration depict the opinion as a screed by a Trump-appointed judge in a rustic jurisdiction. A reader of some of the op-eds would gain the impression that Judge Doughty is a semi-literate creature who drools on the bench and suffers from pellagra, rickets, hookworm, and various other deficiency diseases—and is probably a disciple of Huey Long, Theodore G. Bilbo, or both. The cure, according to at least one commentator, is to center suits challenging the constitutionality of federal actions in a truly knowledgeable and worldly court: the United States District Court for the District of Columbia. Its judges, all sophisticated persons who have the print Washington Post delivered daily to their doorsteps, can be counted upon to do “the right thing.”
Those whose visceral response to adverse decisions is forum-shopping or court packing ignore the lessons of history.
Once upon a time, in the 1920s and early 1930s, there were no limits on the jurisdiction of rustic district courts, save those wisely provided by the Johnson Act, limiting interference with state public utility commissions; the Tax Injunction Act, protecting the new state income taxes; and the Norris-La Guardia Act, limiting labor injunctions. In those days, direct suits against the Federal government were disfavored, so the conservative critics of federal legislation brought shareholders’ derivative suits in rural jurisdictions to enjoin national corporations from complying with contested federal legislation. Injunctions freely issued, especially since the national government had no notice of and was not represented in the litigation.
The New Deal’s lawyers responded to this in two ways, as described in a chapter of Paul Freund’s slender On Understanding the Supreme Court (1949): first, by including in President Roosevelt’s court-packing plan a provision, actually enacted, requiring notice to the U.S. Attorney General of suits contesting federal legislation, and second, by including in all subsequent New Deal legislation, including the securities laws, provisions that agencies could be sued only at the place of their official residence, i.e. Washington, D.C.
For good measure, appeals from agency judgments were channeled directly to the Circuit Courts of Appeal, rather than the District Courts. This was a great boon to the District of Columbia Bar. Charles Horsky wrote a book describing the newly enfranchised Washington Lawyer. Firms like Covington and Burling and Arnold and Porter prospered mightily, as did lawyers like Dean Acheson, Abe Fortas, and Clark Clifford.
In the summer of 1962, the sainted JFK was in the White House and the Columbia Law School reformer William L. Cary was the Chairman of the Securities and Exchange Commission, which enjoyed a lustrous reputation denied most of the other, more sclerotic federal administrative agencies. I was employed as a summer law clerk and was assigned to prepare a comprehensive memorandum on defenses against suits against the commission. This I did, though not without something of a guilty conscience. I prepared pre-cooked memoranda of about fifteen pages each asserting various pleading, jurisdictional, and venue technicalities that were traps for unwary lawyers in Des Moines and Pocatello.
At the end of the summer, such was the purist liberalism of the period that about 80 percent of my work was swept away by the enactment of the Mandamus and Venue Act of 1962. This law, signed with enthusiasm by President Kennedy, returned much agency litigation to the wide-open spaces. This was the offshoot of a much-noticed Harvard Law Review article by Clark Byse, an administrative law professor at the Harvard Law School, who thus became the benefactor of Judge Doughty and countless provincial lawyers. This reform did much to vary the dockets of District and appellate courts outside of Washington.
The District of Columbia federal courts in 1962 were divided between establishment and extreme liberals. The D.C. Circuit was adorned by such as Barrett Prettyman, Henry Edgerton, Charles Fahy, Harold Leventhal, and, for a time, the redoubtable and original Thurman Arnold. It also featured some judges who got there because they could not be confirmed elsewhere, and who benefitted from the District’s lack of U.S. senators. Chief among these was a Louisianan, Judge J. Skelly Wright.
The best comment on Judge Wright was furnished by Professor Philip Kurland of the University of Chicago Law School in correspondence with Professor Alexander Bickel: “Every night, when I put my three little girls to bed, they say to me: ‘Daddy! Tell us again the story of how Judge J. Skelly Wright desegregated the public schools of the District of Columbia!” Judge David Bazelon was another judge of the same ilk, noted for an enthusiasm for psychiatry, which for a time gave the District of Columbia the Durham rule for insanity cases, never followed elsewhere and ultimately repudiated in the District. There were some economic populist judges who got their economics from the libretto of Finian’s Rainbow; Judge Bazelon got his psychiatry from the libretto of West Side Story.
The D.C. Circuit had ceased to be a favorite forum for liberals. The second Bush administration unsuccessfully sought to substitute it for the Supreme Court as the Court of last resort for terrorism cases, and Senator Joe Machin of West Virginia prefers it to the Fourth Circuit as a venue for pipeline cases. Proposed forum-shopping changes of this sort are not really reform measures but products of partisan pique.
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The United States is virtually alone in allowing all of its judges, federal and state, the power to invalidate legislation. Each judge is equipped with a field marshal’s baton in his or her knapsack. In foreign systems like those of France and Germany, power over legislation is restricted to the highest Constitutional Court; in Britain, to four high courts, subject to parliamentary override. In America, the district courts should be allowed to grant declaratory judgments, but not injunctions, when legislation is contested. Their function should thus be restricted to making up a record. The power of invalidation should be restricted to the circuit courts, sitting en banc.
It is true that the Second Circuit no longer consists of Judges Learned Hand, Augustus Hand, and Swan and the Fourth Circuit of Judges Parker, Soper, and Dobie, but the proposed reform would be a powerful inducement to dissolution of the thundering herd that is the Ninth Circuit, with some fifty-one judges. Existing restrictions, including those requiring detailed findings of act and conclusions of law should be more zealously enforced, as should the disallowance of injunctions when there is an adequate remedy at law. The Civil Rights Attorneys’ Fees Act, a one-way fee-shifting statute that stimulates constitutional litigation and which terrorizes smaller and poorer jurisdictions, should be repealed. Constitutional litigation should be more rare, and should involved fully developed and not assumed facts.
There is a problem of “juristocracy,” and it needs a principled cure. That cure is to be found in denying both district judges and three-judge Circuit Court panels alike the power to enjoin federal or state statutes.