*1 v. JUDICIAL CHANDLER, S. DISTRICT JUDGE U. THE TENTH CIRCUIT OF COUNCIL 1, 1970 June Argued December 1969 Decided Misc. No. *2 Thomas J. Kenan argued the and a cause filed brief petitioner. for Wright
Charles Alan argued the and cause filed a brief respondent. for Shipley
Carl L. argued the cause and filed briefs as amicus curiae in support petitioner.
Solicitor General Griswold argued the cause filed a for brief the United States support as amicus curiae in of respondent. Burger
Mr. Chief Justice delivered the opinion of the Court. a
Petitioner, United States District filed Judge, a petition motion leave file for a writ of mandamus alternatively prohibition a writ of addressed to the Judicial Council of the Tenth petition Circuit. His seeks questions impression resolution first inter concerning, of the powers of the alia, constitutionality scope 137 and 332.1 §§ C. under U. S. Councils Judicial pres- under the is, circuit of each federal Judicial Council judges circuit of the active composed statute, ent order has asked this Court issue Petitioner circuit. to “cease Act2 the Council telling the All Writs and in powers violation violation its acting [in] Amer- judge as federal and an rights Judge Chandler’s judges. among district 137. “Division of business 1 28 U. C.S. having more than one shall “The of a court business orders of provided the rules and among divided the court. *3 responsible be for judge of the court shall
“The chief district orders, busi- of rules and shall divide the the observance such and do assign and so rules and orders not ness the cases far as such prescribe. otherwise judges upon agree
“If the in are unable district district judicial adoption purpose or orders for council of of rules necessary the circuit make the orders.” shall 28 TJ. S. C. 332. “Judicial Councils. § call, judge
“The of each in chief circuit shall at twice each least year places may designate, and at such as he circuit council of the judges circuit, regular service, for active which he shall at judge, preside. judge, Each circuit unless excused the chief shall all attend of the sessions council.
“The council shall be known the Judicial of the Council circuit. quarterly
“The reports chief shall the council the submit to of the Director Administrative Office the United States may Courts. The council shall action take such thereon as necessary. judicial necessary
“Each council shall make all orders for the expeditious effective and administration of the business of the courts carry within circuit. The promptly its district shall into effect all orders council.” “(a) Supreme 28 U. S. C. The Court and all courts §1651. Congress may Act of necessary established issue all writs appropriate respective jurisdictions aid of their agreeable and usages principles of law.” ican citizen.” The facts are of some background importance. On 13, 1965, December Judicial Council of
Tenth in special adopted Circuit convened session and history an order which reflected a long controversy and the petitioner between con- concerning the duct the work peti- of the District Court assigned to tioner. The purported Order December 13 to issue authority under the of 28 332, supra, U. S. C. n.
recited that during years
“the four past many Judicial Council at meetings has discussed and considered the business of the United District Court States for Western District of Oklahoma partic- and has done so with regard ular to the effect thereon of the attitude who, and conduct of Chandler as the Chief of that District, primarily responsible the administration of such . . business. .” The noted that during period petitioner Order had party been a defendant both civil and criminal litiga- tion, subject as well as the applications two disqual- ify him in litigation petitioner which challenge had disqualify refused to himself.4 Order continued *4 finding with a
“Judge
presently unable,
Chandler is
or unwilling,
efficiently
discharge
the duties of his office; that
3
Chief
Alfred P. Murrah
part
proceedings.
took no
in the
4
civil
brought
O’Bryan
suit was
action
charging
one
petitioner
prosecution;
complaint
with malicious
was dismissed
Court,
banc,
(C.
the District
en
aff’d
and
expeditious
effective and
Oklahoma; and that the
the business of the United States
administration
for the Western District
Oklahoma
District Court
herein made.”
requires the orders
Expressly invoking
powers
Judicial
supra,
the Order directed
§
under 28 U.
C.
n.
S.
Council,
"until
the further order
the Judicial
no
Stephen
the Honorable
Chandler shall take
S.
any
case or
now
proceeding
action whatsoever
in the
District
or hereafter
United States
pending
Oklahoma;
Court for the Western District of
all
and
now
to or
proceedings
assigned
pending
cases
him
reassigned
among
before
shall
judges
court;
other
of said
and that until the further
order of the Judicial Council no cases or proceedings
filed or instituted
the United
District Court
States
for the Western District of Oklahoma shall be as-
him for
signed
action whatsoever.
“It
is further ORDERED that
in the
event
active
of the United
States District Court for
District of Oklahoma,
Western
including Judge
Chandler,
agree among
upon
cannot
themselves
division of business and assignment of cases made
necessary by
order,
the Judicial Council, upon
disagreement being brought
such
to its attention,
will act under 28 U. S. C. 137 and make
such divi-
assignment
proper.”
sion and
as it deems
See Occidental Petroleum
against
petitioner.
mandamus
issued
Chandler,
Corp.
(C.
1962) (en
banc),
v.
Copies in the United States Tenth Circuit and Appeals for the on of Oklahoma District for the Western District Court was copy Another respectively. 28, 27 and December by a Marshal. on Chandler U. S. Judge served noted, Judge January 1966, previously as 6, On leave to motion for this Court his filed with Chandler mandamus prohibition for a writ of petition file a and/or stay sought He also Council. directed to the Judicial on behalf General, appearing The Solicitor of its Order. stay deny the Council, asked this Court of the Judicial representation the Council’s on application only temporary pending December 13 was Order Chandler’s admin- inquiry Judge into further prompt stay was court. The the business istration of on the January 21, 1966, ground on denied pending “entirely interlocutory in character Order pro- that at such . . . and prompt proceedings further permitted appear Chandler will be ceedings Judge 1003. counsel . . . .” 382 U. S. Council, before addressed a January Chandler Judge On that he ob- judges indicating fellow district letter to his previ- of cases reassignment the removal and jected before him on December ously assigned pending as he was not with them disagreement 1965, but that other than judges of all new assignment to the cases judicial au- continuing asserted himself. Chandler him of pending the cases before thority, however, over following day judges December 28. Coun- of Oklahoma advised the Judicial
Western District District had on the agreed all of that judges cil that filed in that but court, new business division of on the to other assignment not they agree could before pending then Chandler. of cases January 27, 1966, the Judicial Council con- again On and ordered a special hearing session Feb- vened *6 ruary City at which 10, 1966, Judge Oklahoma if Chandler invited to with counsel he de- appear, was by February the Council met However, 4, sired. when again, judge it had been advised that no of the Western District, including Judge Chandler, desired to be heard pursuant to the order for no hear- hearing. Accordingly, ing place. took February
At this same on the Council meeting 4, 1966, there disagreement among concluded that was a the Dis- trict of the Western to Judges District as the division it reached on the business; this conclusion basis of the disagreement Judge between Chandler and the other Judges District as to the reassignment previously cases to assigned Judge Chandler as of 28, December 1965. The Council accordingly, acting 28 U. C. §§ S. 332, entered order authorizing Judge Chandler to continue to on sit cases filed and him assigned prior to 28, 1965; December assigned Order to the other judges of the Western District cases filed after that date. February This Order of 4 recited further that “4. The division of business and assignment of herein may cases made amended or modified written order signed all active of the Western District of provided Oklahoma, that noth- ing contained herein shall be construed as preventing Chandler from surrendering pending cases for re-assignment to another pre- active or to vent transfer between judges whom new business pursuant is assigned to this order.
“5. This supersedes order the orders of the Council entered on December January 27, and on 1966, entitled ‘In the Matter the Honorable Stephen Chandler, S. United States District Judge for the Western District of Oklahoma’ and shall remain effect until the further order of the Council.” February 9,
On General filed a Solicitor memorandum behalf of the Council suggesting of the light developments, namely above con- firmation authority dispose Chandler’s case before him load then and the of new assignment business in order previously agreed accordance with an by Judge Chandler, the case had become moot there since more to To nothing argue about. this memorandum *7 Judge reply February Chandler filed a con- the in testing suggestion acquiesced that he had Council’s actions. Judge argued Chandler that his in the acquiescence upon division of new business settled by his judges given deliberately fellow district was in prevent reasons of “strategy” any possibility order that the Council could find that “the district . . . are agree upon adoption unable to of rules or orders” for the of distribution of assignment business cases under 28 C. § U. S. 137.
A supplemental memorandum filed the Solicitor General on behalf of the expressed Council the latter’s position Judge dispose pend- that Chandler his of should pre-December ing docket of 28, 1965, seeking cases before new In assignment of cases. view of Judge Chandler’s expressed disagreement February with the 4 Order Solicitor General withdrew the suggestion mootness. in Later a reply March Chandler submitted supplemental to that memorandum that asserting beyond continuing authority by was to act its certify purporting require that he to it subsequent his ability to willingness and undertake new He business. supplemental contended memorandum setting forth the condition that apply he must for assignment effect new order still fixing another condition on the exercise office. July 12, 1967,
On the Judicial Council and, convened report of a light from the District Judges only had showing Chandler Western District a modification pending, then concluded that cases be in order. February 4, 1966, might Order of the minutes of the copy The Council transmitted a con- meeting Judges to the District and asked them to agree upon sider anew and division business within August 28, 1967, Judge Western District. On judge colleagues claiming Chandler wrote his district the Council’s action of 12 was but another July effort” to “illegal create a situation which the Council powers could assert its under 28 assign U. S. C. and apportion cases. September 1,
On the Western Judges, District including Judge Chandler, advised the Judicial Council that “the current order for the division business agreeable district the circumstances.” (Emphasis added.) When the Council convened two later, weeks it noted the letter expressing agreement and concluded that there need be no order in case; new accordingly February Order of 4 was left in effect. *8 All of these developments reported were of to the Clerk part Court and are of the record.
In petitioner essence challenges all of orders the Judi- cial Council relating to assignment of in cases the Western District of Oklahoma as fixing conditions on the exercise of powers his constitutional as a Specifi- judge. cally, petitioner urges that the Council has usurped the impeachment power, committed by the Constitution to the Congress exclusively. While conceding the that stat- ute here invoked confers powers some on the Judicial Council, petitioner contends that the legitimate adminis- purposes trative to which it may be turned do not in- clude a stripping judge of judicial functions he claims was done here.
The petitioner Judicial Council that seeks contends jurisdiction invoke the in original this Court a case jurisdiction to which such does not The Council extend. in argues purely taken administrative action this case has been court and by any never reviewed cannot now be in an reviewed original proceeding guise of a claim under the All Act. Writs
The Judicial Council also contends that Order 13, 1965, December altogether superseded by has been the Order of February The latter, 1966. accord- petitioner's ance with desire, gave back those cases had temporarily been from Judge withdrawn Chandler. It also continued the assignment force and division agreed upon by the Judges business District including Chandler. Alternatively, Council petitioner’s contends that even absent agreement on the division of nonetheless cases, the Council’s is action §§ authorized 28 U. S. 137 and C. 332. General, Solicitor who has filed a brief as amicus
curiae, jurisdiction contends that this Court enter- has petition tain the for a or prohibition writ mandamus when a Judicial Council order is directed to district judge because it a judicial, acted as not an administra- tive, purposes tribunal meeting requirement appellate case fall within this jurisdic- Court’s tion. The Solicitor General suggests that more nor nothing less than the Court Appeals sit- banc, ting en and that proceedings present may case From analogized disbarment.5 this the nothing legislative history We note that the statute its Congress anyone indicates that intended or considered the Circuit *9 appeals Moreover, Judicial Councils to be courts en banc. it proposals judge be noted should a district as a include made; obviously, member of each Circuit Judicial Council have been equated hardly a Council constituted could so be to an en banc court. within falls that the case concludes General
Solicitor Act. All Writs through relief available extraordinary assumption on the further rests in turn That conclusion lower courts over authority supervisory this Court’s 80,81, Judiciary Act, Stat. first 14 of the §§13 re- were two sections latter when the not withdrawn of the by the revision All Writs Act in favor pealed concludes, The General in Solicitor Judicial Code 1948. jurisdiction appellate is there though that even however, to be exercised ought it not nonetheless Court, in this superseded 13 has been December the Order since February the terms by the Order of years four petitioner. approved by expressly of which have been point. urges also respondent Council The respect taken the Council action Whether the Chandler’s district of business to the division defining of the line one or the other falls to side consistent with permissible maximum intervention independence is judicial requirement constitutional in the sought which review is question the ultimate on of this case dissenting now before us. The view petition relat- the action of the Council seems to be that Judicial judicial is an assignment impingement cases ing no can, course, disagreement There be independence. need for total and absolute imperative us as to the among in any phase cases or independence deciding quite function. But is another of the decisional complex system say that each shall matter ruler of his manner of conducting be the absolute question is whether can Congress business. vest power to enforce reasonable the Judicial stand- where held, long ards as to when and court shall be how delayed in may decision, whether a given a case case many other tried, to be routine As to matters.
85 of variety infinite things these indeed almost —and judge each be others of an administrative nature —can complex judicial a yet monarch and have an absolute system efficiently? function and related of history § 28 U. S. C. legislative power was both management clear some
statutes is of a precisely group That is what granted.6 needed and had in to have chief and seem distinguished judges others by Chief urged when, 1939, Congress mind Parker, Judges Groner, Hughes, Justice Chief statutory a judges give and others to Stephens Biggs, and their “put might power whereby they framework and in order.” own house informal, courts —have federal including
Many courts — that when provide example, for which, rules unpublished submission, of number cases given has judge and opinions until more cases assigned he will not be reasonable, are These “backlog.” orders issue need for enforce- necessary rules, and proper, internal These reasonably doubted. be ment cannot rea- because simply public notice do not come rules by necessity and abide their acknowledge judges sonable refuses to any system But if one intent. their hardly be that it can procedures by reasonable such abide only impeachment machinery of extraordinary recourse. 332, appears mandatory “shall” Congress, its use § carry out administrative that district have intended pro spell Congress did not out judicial councils. directives orders, legisla and the effect to council giving coercive cedures Congress intended this light on whether history no sheds tive alone, regulations. Standing implemented statute clarity scope in terms of the a model is not give the final sentence procedures effect to or the powers councils’ provisions of this clarification enforcement Legislative 332. of § for. review are called orders definition
statute debated; been discussed and long have questions These easy suggested and the risks they questions are not cast aside. But for lightly are not to be dissents *11 necessary follow we do not find it the reasons that question threshold in to them because the answer jurisdiction we have to entertain case is whether extraordinary relief. petition for prohibi- writ of authority of this Court to issue a constitutionally “can be exercised tion or mandamus appellate in as such writs are aid of its only insofar Madison, 1 Marbury 137, v. Cranch 173- jurisdiction. Peru, If parte (1943). Ex 80.” 318 U. S. judicial Council was a challenged action Judicial tribunal,7 perhaps then act or decision could this Court without violence doing be reviewed requirement to the constitutional that such review be appellate. concurring opinions As the and dissenting amply demonstrate, finding prerequisites sup- to port appellate jurisdic- a conclusion we do have tion in this case would be no mean It feat. perform exercise we decline to since we conclude that present posture of the case other avenues relief may yet open on the merits to Judge Chandler. See Court, Army Rescue Municipal v. U. S. 568-575 (1947).
Judge acquiescence Chandler contends that his in the upon by agreed division business his fellow judges was nothing legislative history suggest find We anything Judicial Council was intended to be other than an admin body functioning very istrative in a limited area a narrow sense as a “board of directors” the circuit. Whether that character not, valid find Congress ization is we no indication that intended judicial powers to or did vest traditional in the Councils. We see preventing Congress no constitutional obstacle vesting from in the Councils, bodies, Circuit Judicial authority administrative necessary make “all orders for the expeditious effective and admin istration of the business of the courts within circuit.” [each] given some kind of flowing duress from the Coun- cil’s Order of December that it was also given as a matter of “strategy,” specifically order to avoid appearance of an of agreement absence the Dis- among trict Judges as to division of By work. so he doing sought creating avoid a situation in which the Council undoubtedly would jurisdiction have had under § 137. The Council, however, noting that had been unable to agreement reach as to those previously cases assigned Chandler, found nonetheless that a disagreement existed. Despite his apparent acqui- escence, Chandler contends that his actions since then belie his words; specifically that his subsequent attack in this Court established his disagreement.
Whatever merits of apparent this attempt to have it both ways, one thing clear: except for the effort to seek the aid of Court, this Judge Chandler has never once since giving his written acquiescence in the divi- sion of any business sought relief from either the Council or some other tribunal.8 Were he to disagree with the present division of business, the Judicial Council would thereupon be obliged to “make necessary orders.” § U. S. C. 137. He chose to avoid that course. As Justice Harlan’s opinion concurring points out, Mr. Judge Chandler apparently desires to quo have the status ante restored without the bother of either disagreeing present with the order of the Council or persuading his fellow district judges to enter another. To say least this is a remarkable litigation posture lawyer for a to assert in his own behalf. n express opinion We no as could, instance, whether he for brought
have an action in the compel nature of mandamus to “an employee officer or any agency United States or thereof to perform duty a owed him, . . .” to 28 U. S. C. on the theory agency that this was action. immediate chal- brought Chandler Instead, As of December 13. to the Order in this Court lenge any relief on the we denied supra, at above, noted interlocutory in “entirely that Order ground proceedings further . . . prompt pending character per- Chandler will be proceedings Judge that at such counsel . Council, before the with . . appear mitted to by the hearing called expressly He refused to attend response to this Court’s February 10, 1966, un- he reason that he was gives in his brief as a order; body conducted whose willing hearing “attend result of that jurisdiction challenged he . . . .”9 As a no no for relief addressed record, petition refusal we have or kind any agency, court tribunal of other than very knotty Court, jurisdictional problem and a Parenthetically might be noted that Chandler well.10 in person could have appeared, by counsel, and chal- jurisdiction of the lenged impairing Council without power his claim that it had no the matter. above,
As noted and as conceded by dissents, Order of December 13, 1965, was terminated of February 4, Order 1966. Chandler has twice expressed agreement disposition busi- ness effected by that latter Order. Nothing this rec- ord were he suggests that, express disagreement, relief would not be forthcoming. On the contrary, July 12, expressly the Council invited the of Chand- *13 district to agree among upon ler’s themselves a new rule or order for the division of business, and all the judges
9Petitioner’s Brief 7.
10Although necessary it is not to reach or issue, decide the the Judicial complained action the Council here of has few of the characteristics of traditional action and much of what we think as administrative action. Nor upon are we called to decide whether administrative action is only reviewable when it deals operation the internal 6, 7, supra. of a court. See nn. current order that “the
wrote Council advising back agreeable district for the in this division business under the circumstances.” action administrative
Whether the Council’s action was it is reviewable Court, whether not reviewable this or ex- for the made case here, plainly petitioner has not prohibition. The traordinary relief of mandamus petition file the is therefore motion for leave to
Denied. part in the consid- MR. took no Marshall Justice this eration or decision of case. an denial of Harlan, concurring
Mr. Justice extraordinary writ. concluding for my
This forth reasons opinion sets (1) Order of the Judicial subsisting that adequately that February raises issues are 4, 1966, it; faced presented to Court and should pass upon (2) jurisdiction this Court does have and effectuation them; (3) promulgation and within Council’s are February 4, 1966, the Order extraordinary petition hence this an authority, novelty unusual char- The be denied. writ should opinion questions regrettably, of these require, acter length. of some
I for its explanation am perplexed by I Court’s presented by Judge Chandler’s reach the issues failure to are whether the issues petition. states, As Court review orders of jurisdiction has this Court are if orders Council, and, so, whether those Judicial statutory and constitutional beyond invalid because cor- authority. says, the Council’s Court bounds of question “the threshold in this case believe, rectly jurisdiction peti- entertain the we have is whether *14 90 Ante, extraordinary However, relief.”
tion for at 86. decided, opinion is and the Court's question never or closes the that whether not we have statement petitioner jurisdiction, “plainly has not made case prohibition.” extraordinary the relief mandamus The predicate appears for this conclusion to be that Judge adequate Chandler has an available before remedy Council, the he before relief seeking which must invoke authority here. As for this the disposition, unusual Court, only Army Municipal Court cites Rescue 331 v. U. (1947), S. 549 a decision that do not consider places upon lends itself to the gloss today the Court it. It is clear that, although the Council’s Order Decem- ber has revoked, subsequent been the Order of February 4, 1966, outstanding by and is still attacked Judge beyond Chandler as the authority constitutionally exercisable Council under either 137 or § of the Judicial Code. Chandler has twice certified to the acquiescence Council his in the allocation of busi- February ness mandated 4 Order; indeed, his first certification was upon relied the then Solicitor Gen- eral, appearing for February 1966, as a basis for suggesting case was moot. Chandler immediately responded that he did in any not way concede power the Council’s February to enter the Order, and that his indication of acquiescence made to the Council did not constitute such a In concession. of this light continued challenge to the order, Solici- tor General in agreed March 1966 “that case no can longer be deemed moot.”
The case thus reached posture in which it now stands: Judge Chandler unequivocally asserts that February beyond Order is the Council’s If authority. his contention were sound, only validly outstanding directives for the allocation of business the District *15 court, of that orders” “rules and be those Court would to Decem- prior effect in 137, that were § under issued orders and rules the terms those Though 13,1965. ber for provided they that evident us, is are not before of the cases portion of a Judge to Chandler assignment validity In challenging filed his court. continually alloca- previous attempts modify to of the Council’s restoration requesting business, tion of a ante, to achieve quo status Chandler seeks Judge is business from the manner which departure marked currently allocated. this accomplish to right a Chandler claims
Judge all the without mobilizing necessity result by of business assignment change of his district to them allows February Order action, unanimous as the authority he denies the Council’s Further, to since do. denies he of course business, him of all new deprive to the Council to request be required that he should outstand- obtaining review its as a condition renege for the Council illegal that it is order. He claims ing for the cases, equally him of new so deprive upon new cases his access to Council to condition form of tantamount to a request to it that making 137. disagreement a certification of decide the that it does not the Court states Although ante, opinion I can read its claim, see at merits of this the claim is insubstantial. a determination that only as pos- litigation “remarkable states that it is a The Court that the Council has argue for Chandler to Judge ture” him choose between remaining to force authority no action business, seeking further Coun- without new action the District Judges. unanimous cil, seeking record “[njothing denies relief because The Court express disagreement, were he to relief that, suggests forthcoming,” only a decision that can not be would premised he no holding rights on a is denied Ante, at 88- being relegated to that course of action. contrary 89. But this is the of what Chandler contends, and conclusion with which two members this Court sharply explained III, differ. As in Part infra, too believe that Chandler now lacks meri- ground complaint. torious I do not believe However, properly the Court can make holding without first determining jurisdiction its question. consider the Army, supra,
Rescue provides authority no for such a procedure. That decision represents one branch of the *16 long-settled doctrine that this Court will not determine questions constitutional unnecessarily or in a case that present does not them with sufficient to clarity make possible circumspect the consideration they require. See id., generally at Ashwander 568-585; v. Tennessee Valley Authority, 297 U. (1936) S. (Brandéis, J., concurring). Because the constitutional issues in Rescue Army presented were in a highly abstract speculative form, and were clouded present factors not in this case,1 the Court dismissed the appeal, declining adju- appeal Army
1 The in Rescue involved prohi review of a state proceeding challenged, bition in which trial, was complex before statutory state scheme appellant under which an had been crim inally charged. The Court observed that meanings of the various statutory provisions, relationships and their another, to one were left undefined ambiguous opinion Supreme Court; State and since the attack statutes, was on the face of the the Court found it being unclear which statutes challenged were and even charges what against were appellant. contrast, In present case involves two brief federal enactments that are chal lenged, face, not on their applied by but as specific orders of the relating Council Chandler. The Court states that because the hearing scheduled below was canceled, record, “we have no petition no for relief addressed to
any agency, court or tribunal of kind other Court, than this very knotty jurisdictional and a problem as do, well.” however, We record, consisting have a primarily of the several orders of the there, appellant that an It concluded dicate them. undergo have would charges, criminal faced with state in this review obtaining before charges a trial on the case, the in this claims. As constitutional Court appellant’s rejecting had the effect Court’s action proceed- further relief without to obtain right claim of a However, at 584. S., 331 U. tribunal, a lower see ings carefully only disposition made that the Court after in the case. See jurisdiction had determining id., at 565-568. alternative by footnote, suggest, does
The Court peti- Judge Chandler’s refusal to consider for its basis means of review Ante, If an adequate 8. at 87 n. tion. District in the Federal available orders were Council justify might 28 U. C. S. Court had been review hand until such its staying Court’s United States out pointed as However, sought. suggest curiae, wholly unrealistic it seems amicus meetings at it dealt with which minutes of and the Order, February that of unlike The Council’s this matter. interlocutory,” change “entirely effects a which December business. of District Court in the allocation duration indefinite *17 only a such action on the Council to take on It was incumbent support it; record fails to support if the would record that claims Chandler’s action, does not obfuscate that Council’s depend not part the most do His claims for strengthens them. but particular record the existence establishing from the his on Brainard, 396 U. S. circumstances,, DeBacker v. factual cf. justification in the record alleged possible lack of (1969), but on Army justify Rescue seems to Nothing in action. the Council’s for I find that presented. thus adjudicate the issue to a refusal case, III, in this see Part justified the record February 4 on Order infra. failure to seek review in a significance Chandler’s course, on depends, of the resolution than this Court tribunal other presented petition problem” to “knotty jurisdictional reaching question justifies not that it I to see how this Court. fail all. at a obtained from remedy could be appropriate
that an statute, mandamus The District Court District Court. “agencies” “employees,” “officers,” § extends it em- no indication States; United there is that other powers the to issue mandamus to District Courts judicial the Judicial Council seems Thus, tribunals. of a stat- concede, remedy availability which the Court avoids hinges determination, ute making, under review were whether Council’s actions Respondent that, Brief for 19. Beyond not. direct review circuit district the actions of present would incongruities practical serious problems certainly when contemplated not 1361 was enacted. It imply is unrealistic the Court presents an appropriate § 1361 of relief justifying avenue jurisdiction. this Court’s refusal to exercise its I do disagree not pre- the Court that the issues by Judge petition sented Chandler’s are troublesome might ones that we wish deciding. to avoid However, perceive no justification can reasoned for the Court’s refusal to decide them. Chief Justice long ago Marshall enunciated principle that should govern us here:
“It is most true that this Court will take not jurisdiction if it should not: but is equally true, jurisdiction it must take if it should. . . . With doubts, whatever with whatever difficulties, a case may be attended, we must if it, decide it be brought before We us. have no more right to decline the jurisdiction exercise of which is given, than usurp that which is not given.” Cohens Virginia, v. Wheat. 404 (1821). principle
That has not been abrogated by the Rescue Army which decision, merely undertook to define the limits our ability to adjudicate constitutional issues *18 in cases that adequately present I them. find no license that decision the action taken Court today.
II orders of on the attack Chandler’s Before determined it must be considered, can be Judicial Council entertain possesses jurisdiction the Court whether prohibition. writ of mandamus for a petition his Douglas Black and my Brothers agree While I think jurisdiction, have the Court does given have they than fuller treatment warrants question it. Jurisdiction
A. Constitutional authority Court’s scope of this Any discussion de- point as its must take under the Constitution Madison, where Marbury v. (1803), Cranch parture specifically instances except those held that the Court this Court Constitution,2 III of the in Article enumerated original jurisdiction. only appellate may exercise — —not cause, original cognizable not this suit is Because it is within be faced is whether initially to question jurisdiction. appellate our Marbury to issue a writ
The Court asked to deliver Secretary of compel the State mandamus to signed peace previously justice appointed to an not fall the suit did noting After commission. juris- original heads of any of the enumerated within con- Marshall, Chief Justice Court, through diction, mandamus, to issue a court, then, “To enable this cluded: jurisdic- appellate an exercise of to be it must be shown to exercise to enable necessary or to be tion, [the Court] Id., The Court held at 175. jurisdiction.” appellate nonjudicial federal officer to a of mandamus that issuance appellate, original, exercise of but be an would not Ambassadors, public affecting other Ministers “In all Cases Party, supreme a State shall Consuls, those which Const., Ill, original U. S. Art. have Jurisdiction.” Court shall cl. 2.
96
jurisdiction. Thus the statute purported to author- ize such action Supreme Court was ineffective. 2 Story, See J. Commentaries the Constitution of the (5th United States 1761 1891). ed.
The Chief stated, Justice as the “essential criterion appellate jurisdiction, it revises and corrects the proceedings already a cause instituted, and does not 1 create that cause.” Cranch, at 175. Beyond cavil, the issuance of a writ of mandamus to an inferior court anis appellate jurisdiction. Winn, exercise of In re 213 U. S. 458, (1909). 465-466 If the challenged orders of the Judicial this instance were judi- “an exercise of cial power,” this Court is constitutionally vested with jurisdiction to them, review absent statute curtailing such States, review. Williams v. United 289 U. 553, S. Colony 566 Old (1933); Trust Co. Commissioner, v. Sanborn,
U. In re (1929); S. 148 U. S. (1893). On the other if hand, they Marbury were not, alone authority is sufficient support a conclusion that beyond this suit is power Court’s under Article III. analysis An of the nature of the Council’s orders must begin consideration of the statute which the Council was created.
The Judicial Councils of the circuits were brought into being the Act of August 7, 1939, which was termed “An provide act to for the administration of the United courts, States and for other purposes.” 53 Stat. The major purposes 1223. of the Act were to free the federal courts previous from their reliance on the Department Justice in budgetary matters, and “to fur- nish to the Federal courts the administrative machinery for self-improvement, which through those courts will be able to scrutinize their own work and develop efficiency promptness in their justice.” administration Rep. H. R. No. 76th Cong., 1st Sess., 2 (1939). To this end the Act established the Administrative Office by Director, Courts, headed the United States courts operation data on the statistical compile nature.3 logistical of a support services provide each new entities in two The Act further established composed Council, judicial circuits: the Judicial *20 Con- Judicial and the judges, of all the circuit active along judges and district of circuit composed ference, Council, The the bar. members of participating with reports the of the was consider regular meetings, might thereon” as “such action . . . Director and take annually “for meet necessary;4 the Conference was to of the of the business considering state purpose the of ways improving of means advising courts and and the 5 justice the circuit.” of within the administration indicate, en- statutory Congress provisions these As for the three new different functions quite visioned Di- its Office, of the and role Administrative bodies. sense in the narrowest rector, was to be “administrative” no au- The Director was entrusted with of that term. role of judicial business —his thority performance over the merely and was, is, business respect to such for use the courts themselves. information to collect Appeals the of for Court Chief Justice Groner of com- chairman the Columbia, who was District the participated drafting judges mittee of circuit Judiciary on the Committee to the Senate bill, stressed “supervision no give bill Director would purely judicial duties,” be- over exercise control officer power to an administrative grant cause to such very theory fundamentals our destroy be to “would officer Direc- The administrative [the of government. purely bill administrative proposed tor] 3 S, amended, 28 601, 604. 1223, as U. C. 53 Stat. §§ 4 amended, 28 332. U. S. C. 1224, as 53 Stat. § amended, 28 C. 333. Stat. as U. S. Hearings on S. 188
officer.” before a Subcommittee on 76th Judiciary, Cong., Senate Committee 1st Sess., (1939) (response Hatch). to question by Senator id., (statement Holtzoff). See also at 36 of A.
The Judicial Conference for each circuit given was complementary role, again divorced from direct involve- disposition by judicial ment in the courts their part in large voluntary business. Patterned after the years conferences that had been held for in the Fourth Circuit, the provide Conference intended to an op- portunity friendly interchange among bar, between bench grow out of which in- might problems creased understanding of administra- cooperation tion and enhanced toward their solution. Its function, statutory indicated language quoted above, “purely advisory.” was to be Hear- See ings on H. 5999 before the R. House Committee *21 Judiciary, 76th 1st Cong., Sess., 17, 23-24 11-12, (1939).
The Council, Judicial on the other hand, designed as an actual in participant the management judi- of the cial work the circuit. The Act provided that, “[t]o the end the that work of the district courts shall be effectively expeditiously and transacted,” the circuit of each judges circuit were to meet aas council at least year. twice After consideration statistical reports submitted Office, Administrative “such action shall be taken thereon may council as necessary. duty It shall be the of the district judges promptly carry to out the directions of the council as to the administration of business of their respective provision courts.”6 This today exists §as 332 without provision 6 This stated in full:
“To the end that the work of the district courts shall be effec- tively expeditiously transacted, and it duty shall be the of the judge senior circuit of each circuit to call place at such and time designate, as he shall but at least twice in each year, a council of the revision the 1948 except that change, relevant that declaration “[e]ach Code added a Judicial necessary for the effective orders make all council shall of the of the business expeditious administration directed correspondingly circuit,” its within courts carry out all such “orders.” to judges the district merely a explained note this amendment reviser’s embodying new words “phraseology,” change of the councils. powers understanding original Sess., (1947). A46 Cong., No. 80th 1st Rep. H. R. the role envis- helpful determining guide The most of Chief testimony is the for the Judicial Councils aged ex- most of the task of who Groner, Justice shouldered of the bill to the committees purposes plaining explained He Congress. both Houses re- authority had “no judges circuit law the existing his work or to admonish speed up quire judge a district the full and fair burden bearing him he is not other bear, or to take action as expected he is he for which subject . . . criticism, matter which is supra, at 11. on S. responsible.” Hearings may be bill Administrative proposed under the contrast, In wrong and see that whatever- is would “observe Office from whatever sources justice, the administration hereby circuit, for such who composed of the circuit are senior purpose, at which council the designated a council for that judge to the preside. The shall submit senior circuit shall required to be filed quarterly reports of the Director council the (2) 28 U. S. C. clause provisions of section [now *22 by the (a) be taken thereon (2)], and such action shall §604 duty may necessary. It be of district shall the be council as carry council as to the the directions of the judges promptly to out Nothing respective courts. of their of the business administration affect, existing provisions of law section shall contained judges outside of the assignment of district to serve relating to the they, respectively, appointed.” Stat. were for which districts 1224. judicial the attention of the brought is to
may arise, the courts them- may corrected, by it be council that Id., at selves.” 12-13. examples of of Council
As the kinds action a Judicial proposed bill, under the Chief might expected be to take if the showed suggested Justice Groner that statistics a particular falling work, district court to be behind its particular would either it, “see to that up is behind in work judge who catches with his work, given whereby or is to him that assistance Id., work If may appeared made current.” at it 11. particular judge “had been sick for or 5 months had any been unable to hold or had been court, un- able, reason of thing one another, to transact . business, . . immediate action could be taken correct su-pra, situation.” H. R. Hearings at 11. by Representative Asked Walter Chandler power “what given is there to require to decide a case that he has had advisement for months and years,” responded he Council, after considering issue matter, could directions that Id., would be “final.” Any “lazy at 13. work judge’s reported would be to the council, would take the Id., correct [which] action.” at 27.7 testimony Parker the Fourth Circuit was explained:
to the same He effect. my importance bill, “The mind, unifying is in the admin- justice istration hands the chief officers of the courts, clothing responsibility them with for the exercise of that power. “Now, your knowledge nature, you of human can understand thing is one for me, as the senior judge, say circuit Judge Jones, getting ‘The work your behind in district. You have a number of ought cases that you to be decided. think very should them.’ decide thing That is a different from a council all of the of the circuit saying, ‘Judge you Jones, are *23 view that Parker stated his We point: this up done is this, we have
“what super- Appeals of to the Circuit Court given have judges, of the district the decisions power over visory over no whatever power given but we have them judges. by the district administration to the contrary “If decides a case Judge Jones Ap- Court of the Circuit majority views But him. him so and reverse we can tell peals, for 2 years, if he holds a case under advisement nothing there is promptly, it deciding instead do about by the law to that we are authorized for mandamus. application of an in the absence about something authorizes us to do Now, [bill] to be you something ought with that it; agree Id.,, done about at 21. it.” of man- extraordinary remedy In place inadequate the extreme abuse in a only could correct damus, which Judicial particular case, judges, sitting the circuit as the super- Council, given authority were continuous courts. through vision of the flow work district intended short, proposed In Judicial Council was authority fill the that existed under the hiatus whereby Attorney then-current Gen- arrangements, your you work and we think that the cases that have behind with ought decided, they to be and we under advisement direct your decided, and will send Smith into district and he we your arrearage you holding assist court district until this will up.’ is cleared authority words, you speaking man
“In other would have a merely persuasive exercising personal and of law and not influence. one provision “I think for a council each circuit , give bill,, circuit provisions best in the . and will . power on power man each circuit to to utilize the Id., advantage.” at 20-21.
best *24 courts operation collected data about eral “except, power action, to corrective but had no take of his office.” a result of the moral suasion perhaps, as compilation more proposed The would allow bill method, information, “provide would a complete method, if legal by which, neces- legitimate, valid, their necessary, may and when courts clean sary, “give body, own would which the author- house”; do that and to do it ity firmly lodged, power to Id., on expeditiously.” generally Report at 8. See Responsibilities Councils, Powers and of the Judicial Fish, H. No. 87th 1st Cong., (1961); R. Doc. Sess. Rusty Hinges The Circuit Councils: Federal Judicial Administration, (1970). 37 U. L. 203 Chi. Rev.
This legislative support history lends a conclusion at that, least the issuance of orders to district judges to regulate the exercise of their official the Judi- duties, cial a judicial purposes acts tribunal appellate jurisdiction Court’s It Article III. sponsors seems clear that of the bill considered the power to give such orders something that could not be any entrusted to purely “administrative” agency— not even to the Administrative Office, which was to an arm of judicial branch of government and under the direct control Supreme of the Court the Judicial Conference of the United States. Chief Justice Groner, in the passage quoted above, stated that to give such power to an administrative agency “would be to destroy the very fundamentals of our theory of government.” Instead, problems unearthed the Director’s stud- ies were to be “corrected, by the courts themselves.” Hearings S. 188, supra, at 12-13. See also Hearings on H. R. supra, at 8.
There were further references throughout the hearings reports and committee to the fact the corrective power would be exercised the courts themselves. g., Hearings E. on S. 188, supra, at (statement of Hon. id., (statement at 31-32 Vanderbilt); A. Holtz- id., of A. (statement at Stephens); Harold M. (1939). Sess., 1st 76th off) Rep. Cong., H. ; R. No. endorsement approval report quoted House stating Society, bill the American Judicature independence judicial fortify is no way that “there their perform enabling judges equal to that These state- Ibid. judicial supervision.” work under in the direct trial power ments that the indicate regarded duties was decision-making execution of their judicial ato only one to be entrusted power, aas body. *25 an earlier note important
In to that regard this is responsibility given of would have draft the Act Supreme the to the Court supervising for lower courts The idea of the and the Chief Justice of United States. to at circuit level authority the councils the devolving believed by Justice who suggested Hughes, Chief was by be made effective supervision the could most that . . of in the various circuits . responsibility “concentration all supervision to make the power authority and with in work of all competence to induce necessary that is within the circuit.” of the various districts judges It is notable supra, equally No. at 3. Doc. H. R. giving the draftsmen did consider district that, while id., on the see at representation Councils, judges some including no to apparently thought given 4r-5, there These indications no doubt officers. leave nonjudicial regarded authority architects the Councils’ that closely up process bound Councils granted itself.8 judging guidance interpretive problem for our in 8 1 find the fact that little and “administration” were sometimes “administrative” terms Congressmen to duties of the witnesses characterize the used talismanic; they may, terms are not in various Those Councils. range meanings. Certainly of related contexts, phrase bear judicial is often used to tasks “judicial characterize administration” in- shows history Congress the legislative Because super- in judicial to act as bodies tended the Councils no need decide there is to vising judges, the district primary to performed by the as incidents their function courts adjudications disputes. legisla- rendering Since the definitive history Congress regarded the direc- tive as whole indicates judicial handling I function, as a tion of the trial courts’ cases it used the term “administrative” the sense conclude many rulings applied, example, the term is for trial-court which merely dispose but that do not of issues in a case determine its through process. course my do Nor I find an obstacle construction of Con- 332§ gress’ express provision the imposition failure make judge might sanctions on a who district contravene an order of question the Judicial Council. When the of sanctions was broached hearings, at the Chief stated: Justice Groner “I properly say, going doubt but what a could 'I am not my to decide case I sooner than choose to decide It it. case, conducting my court, you I authority, and am have no ” except impeachment.’ Hearings 5999, supra, on H. R. at 14. this, Representative At provision Celler reminded witness of the making “duty” carry judges bill it the of district out the replied: Council’s directions. The witness “I judge anywhere, cannot conceive of a district do not but, any, believe there is when he is admonished this council he must do in report accordance with the made *26 particular thing to him a abuse, regarded correct what is an he that will fail to it,, do it. If he fail does to do I think then imposed there be duty would bringing the council the of way matter only existence, some to the attention power of in a kind, matter of apply that which remedy; could the correct is, Congress that of the United Ibid. States.” Similarly, Judge Parker, response question to a whether the “put any bill would all,” restraint on the council at stated: “I do not think this course, bill does. Of I assume this is true: That the council by will be restrained the inherent limitations of They the situation. that, would they know if judge commanded a something, unnecessarily do unwisely, he would refuse to do it, probably and that would be the end of the matter.” Representative queried: you Sumners “Then are limited what you judge way can do a in. punishment?” of “Absolutely,” whether placement of nonjudicial this authority a body would separation violate the constitutional of powers, as Chief Justice Groner to have believed. seems It is sufficient to conclude from reason and that analogy of responsibility may is such a nature be placed in the hands of Article III judges to be exercised judicial as a function.
An order the Council to a district judge, directing his handling many one or cases in court, his is an inte- step in the gral of those progress cases from initial filing adjudication. to final Like the judge’s district own orders time setting discovery or trial, or trans- ferring a case to another pursuant district to 28 U. S. C. (a), such an order, even though concerned with a “judicial matter of administration,” part is of the official Id., replied Parker. Hearings at 22. See also on S. supra, (statement Vanderbilt). at 18-19 of A.
There no need to determine in this case the correctness apparent assumption these witnesses’ discipline that no form of short impeachment permissible would be for disobedience to an order Council, possible of the or of assumption their that such disobedi impeachable ence would be an offense. It seems clear that witnesses’ statements do not detract from the conclusion drawn from legislative the rest history, of the language and from the itself, statute the determinations of the Judicial Council were legal intended to create part duties on the of district to whom they were said, addressed. As Parker the Camncil would “speaking authority merely exercising law and not [a] personal persuasive Hearings supra, influence.” on H. R. present at 21. Even statutory under the scheme, certain sanctions might particular be available in circumstances, such as the invalida appeal tion on of orders entered in a case that had been ordered transferred from any rate, docket. At this is only aspect general problem determining permis appropriate sible and sanctions for kind of unlawful conduct. fact the enforcement prob mechanisms are destroy legal lematic does not nature of the Council’s orders. 201, supra, 8; See H. R. No. at Aetna Doc. Ins. Co. v. cf. Life *27 Haworth, (1937); 300 S. 227 Nashville, U. C. & St. L. R. Co. v. Wallace, (1933); 288 U. 249 S. n. infra.
106 more common business. Unlike judicial of conduct involve orders the Council’s court, of the district orders But in this officer. judicial a subordinate of supervision extraordinary writ of not unlike the they are regard thought the Council’s Judge Parker which mandamus, by courts the orders entered supplement, or would orders attorney. short, In an for disbarment of proceedings in the district ordering the Council in function of them to the cases before measures related certain to take understood, history Congress indicates is, legislative as in nature.9 judicial points contrary conclusion, respondent a support
To
Atlantic
Prentis
in
v.
Justice Holmes
language
to the
a
Co.,
Line
(1908), defining
226
Coast
211 U.
S.
declares
“investigates,
one that
“judicial inquiry” as
past facts
they
present
or
enforces liabilities as
stand
supposed
exist,”
as contrasted
already
and under laws
changes
which
to the future
legislation,
“looks
applied
a new rule to be
existing
by making
conditions
its
subject
all
of those
part
thereafter
or some
Prentis
ratemaking
held
a
The Court
power.”
9
difficulty
characterizing
I have
as
For similar reasons
little
controversy”
judicial power
III
a
within the Article
a “case
regulates
challenge to
a district
an order
Where,
here,
pur
the exercise of his official duties.
as
judge’s performance
pose and effect of the order are to restrict
tasks,
alleges illegal
the exer
and he
interference with
office,
cognizable
petition presents
his
his
a
case or con
cise of
troversy just
petition
does a
for review
the disbarment
attorney.
Note,
Impeachment
See
Exclusiveness
;
Constitution,
(1937)
L. Rev.
334
Power
Harv.
Robinson,
parte Bradley,
parte
Ex
Ex
(1869);
cf.
Wall.
parte Wall,
(man
Ex
(1883)
(1874);
107
in
proceeding
Virginia
Corporation
the
State
Commis
sion was
in
fact
legislative
character, despite the
the Commission was assumed to function
a court in
as
performing other duties.
in United States
Similarly,
v.
Ferreira, 13 How.
this Court concluded that
(1852),
40
the act of a district
in
on claims under a
judge
passing
treaty,
subject
to approval by the
Secretary
Treasury,
judicial
was not a
one;
held that
Court
Congress,
giving
authority to
referred to
judges,
them by their office
“merely as
of the
designation
persons to whom the authority is
the terri
confided, and
Id.,
torial
to which it
limits
extends.”
at 47. See also
States,
Gordon
United
v.
(1865);
2
561
In
Wall.
re
Metzger,
Rayburn’s Case,
Respondent argues that the functions of the Judicial 332 are, § under Justice Holmes’ defini- tions, administrative, or legislative, rather than judicial; statutory provision and that making member- ship of the Council coextensive with that of the Court Appeals for each merely circuit10 is a means of designating individual members reference to Certainly respondent their office. is correct in urging Congress’ of circuit designation judges as the members Council does not itself make the Council’s func- judicial. think, however, tion that the Council’s orders directing official business of the courts district are the general within definition of that term in Prentis. In urging that merely Council’s function “looks to the future and changes existing conditions making rule,” respondent a new disregards the fact that each of the Council’s such as orders, those challenged here, is rooted factual circumstances busi- ness of particular and the status of a 10Compare 28 U. S. (a) C. with 28 U. S. C. § § (a). App. Fed. Rule Proc. and each the district court; or cases in
particular case only far as the entered, if extends order, properly the effec- “necessary . . . for that make circumstances of the business expeditious administration tive and above, the 332. As noted 28 U. S. C. the courts.” the district handling orders for the cases Council’s of those cases step progress one in the court serve as *29 expected to Those can be toward orders judgment. proper judicial commonly accepted notions apply par- factual situations of special to the administration particular judges. cases or ticular entrusted to the points out, power the respondent As enactments, later by 332, like those added § Councils necessarily infra, 109-110, large involves a amount see at discretion; of the Councils’ actions accordingly, review in does not mean usually scope. be narrow But this will large planning agencies.” are “left at as that the Councils Bank, City First National United States v. 386 U. S. Bank, In (1967). City 369 First National we were directing faced with a federal statute courts to deter- anticompetitive proposed mine effect of a whether merger outweighed bank considerations com- munity convenience and need. We ruled that the courts accept “judicial because, could this as a task” like the prevalent in reason,” long field, “rule of the antitrust effect-on-competition standard was one a familiar judicial competence.” “the area of within See also States, (1959). United Steelworkers v. United 39 U. S. is a in Judicial administration matter which the courts clearly more special competence. even should have Within the framework establishing statutes inferior federal courts and their defining jurisdiction, charged duty Judicial Councils are with the to take such necessary are expedition actions as of the business of the in each courts circuit. Their discretion in this matter, broad, while does not seem to be of a different possessed order from that district judges respect In both in- of trial administration. many matters of dis- error or abuse legal can correct stances, review will scope of review occurs; cretion where does not itself establish very narrow often judicial a non act.11 of such discretion is the exercise a con- further to avert Respondent argument makes a were question here drawn clusion that the actions Congress It out that since points actions. many specific powers— has the Judicial Councils given clearly nonjudicial so respondent considers powers any inference that the Council serves as to negate of Article Those “judicial” body purview within the III. where judge, to order a district powers power include the part require, particular to reside circumstances (c); C. 134 appointed, § for which he is U. S. district any necessary if the district to make orders upon unable to the division of business agree district are pre- them, 137; 28 U. C. to consent to among S. *30 any of a District Court for regular termission of session good cause, business or other 28 U. S. C. insufficient necessary provision judi- the of (a); approve 140 to as § by for the courts the General Serv- cial accommodations to the 28 C. to consent Administration, 142; § ices U. S. of circuit district assignment and or designation they for which are on courts other than those to sit certify to to the President 295; § 28 U. S. C. appointed, 11 virtually powers all of the additional should be noted that It by provisions of the been conferred on the Councils that have 332, infra, see define the Council’s Code other than Judicial § commonly judicial deter used as standards for tasks in terms (e) (“[i]f public and 28 U. S. 134 interest mination. See C. § require”), 137 of a district court nature of the business § (‘ n 'necessary orders”), (“court quarters 142 and accomoda- § (b) (“judge necessary”), . unable approved . . . tions . . §372 efficiently office reason of discharge all the duties to (b) disability”); 11 62 physical or U. S. C. permanent mental § misconduct, neglect of (“[rjemoval incompetency, for or ... duty”).
110 or is unable to discharge
that a circuit district efficiently perma- office reason of all duties of his disability, physical authorizing nent mental thus U. appoint judge, President an additional 28 S. C. 372 (b); § to direct where records of the courts of S., appeals kept, shall be 28 U. district courts C. §457; approve plans representation for furnishing for under the Justice Act, defendants Criminal 18 U. S. C. (a); 3006A take various actions in regard § in bankruptcy, referees of a including removal referee for 11 U. cause, (b), (a), (b), (a), §§ S. C. 65 68 (b), (c). (c), (b), many powers
While these in comparison are trivial responsibility courts’ basic for final adjudication lawsuits, persuaded am not possession their inconsistent with a conclusion that the Council, when its performing central responsibilities under 28 U. S. C. exercises power granted under Article III. Glidden Zdanok, Cf. Co. v. S.U. (1962) 580-582 (opinion J.). In place, respond- the first Harlan, ent concedes that at one of least these enumerated powers power to remove referees cause —“can —the properly regarded as judicial,” and it is not at all clear of them is beyond the range permissible activities III Article court. In Textile Corp. Mills v. Commissioner, 314 U. S.
(1941), the Court noted the range of relatively minor responsibilities, other than the hearing of appeals, placed statute of appeals. courts These included *31 prescribing the form of writs other process and the and style form of the courts’ seals; making rules and regulations; appointing a clerk and approving ap- pointment and removal of deputy clerks; and fixing the times when court should be held. Each of these func- performed tions was to be by the “court.” While it is might of them possible performance that some in this produce controversy never reviewable case dis- they reasonably ancillary primary, are to the Court, Just appeals. function of the courts of pute-deciding in Textile did not the author- question as the Court Mills ity powers to the Congress grant to such incidental I little appeals, courts see reason to believe Judicial supervisory tasks entrusted various capacities judicial body of a beyond Council is Article III. the nature place, my
In the second conclusion about would primary of the Council’s function under if it were determined that one or more of the stand even powers incapable incidental were Council’s assorted If by an Article III I am correct exercised court. being in 1939 in concluding Congress’ purpose creating arm of them, the Judicial Councils was to vest as an III judiciary, powers the Article over the supervisory pur- disposition of business the district courts, pose is- not undone a subsequent congressional attempt nonjudicial them a minor would give task; “perverse to make the status turn [the Councils] upon portion purported so minuscule a func- their Zdanok, Glidden tions.” Co. v. S.,U. at 583. B. STATUTORY JURISDICTION not, possess This Court does of course, necessarily appellate jurisdiction permitted all of the to it Article provides That article appellate jurisdic III. that our is to be tion exercised “with such and under Exceptions, such Regulations Congress make,” shall language has been held to give Congress power, prescribe limits, within may instances which it g., McCardle, E. Ex parte be exercised. Wall. (1869). turn, 512-513 therefore, the Judicial Code *32 to consider authority
to determine our statutory petition. Chandler’s way not one or the spoken, the Code has
Congress
of the orders of Judicial Coun-
other, regarding review
power
the Court has
cils. Petitioner asserts
prohibition
or
to the
issue mandamus
Councils
provides
28
C.
Act,
(a),
§
All Writs
U.
1651
which
S.
Supreme
and all
Court
established
courts
“[t]he
Congress may
necessary
Act of
issue all writs
their
appropriate
respective jurisdictions
aid of
agreeable
to the
usages
principles
law.”
This statute has been
empower
construed
Court
to issue
extraordinary
writ
federal
lower
court
in a
falling
case
within
statutory appellate jurisdic
our
tion, where the
issuance
the writ will further
jurisdiction.
of that
g.,
exercise
De
See, e.
Beers Con
Mines,
States,
solidated
Ltd.
United
v.
325 U.
212,
S.
(1945);
217
United
Export
Alkali
States
Assn. v. United
States, 325 U.
196,
(1945).
S.
201-204
It is now settled
need
case
not
already
pending
this Court
before an
writ
extraordinary
may be issued under
1651 (a);
rather,
may
Court
issue the writ when
the lower court’s action might defeat or frustrate this
Court’s eventual
jurisdiction, even
jurisdic
where that
tion could be invoked on the merits only
proceed
after
ings in an intermediate
g.,
court. See, e.
Be Beers
Mines,
Consolidated
States,
Ltd. v. United
325 U. S.,
parte
at 217;
Peru,
Ex
318 U.
578 (1943);
S.
Ex parte
States,
United
287
U. S.
248-249 (1932); McClellan
Garland,
v.
217 U.
(1910);
S. 268
cf. FTC v. Bean Foods
Co.,
Chief Justice for the in Ex Stone, writing parte Court Peru, 318 at S., U. characterized the use “historic prohibition writs and mandamus directed appellate to an inferior court” “confining as that of inferior court to a lawful prescribed juris- exercise its diction, compelling it to authority exercise its when it is its to do duty so.” The bounds of this Court’s
12Respondent agrees, Judicial Council “substantially General,” provides advanced the Solicitor reasons statutory authority jurisdiction for exercise of proceeding, in this permissible jurisdiction proceeding appellate if is within the States, under Article III. amicus this Court Like the United question however, respondent notes that is not free from upon question incumbent the Court to doubt. It consider disagreement parties. even between absence power issue writs were further discretionary such States, in Parr v. United stated U. S. 520-521 (1956): power discretionary
“The to issue them is and it is exercised. . . . This is not a case where sparingly juris- a court has exceeded or refused to exercise its Evaporated Assn., Roche v. Milk diction, see 21, 26, appellate U. nor one where review will S. if Maryland defeated a writ does not issue, cf. v. Soper, 270 U. S. 29-30. Here the most could be claimed is that the district courts have erred in ruling jurisdiction. matters within their extraordinary do writs not reach to such cases; they may not be used to thwart the congressional *34 policy against piecemeal appeals. Evapo- Roche v. 13 Assn., rated Milk supra, p. at 30.” Parr, In petitioner's simply claim was that a dis- trict court had erred in dismissing an indictment at the request Government’s after the Government had obtained a new indictment for the same offenses in another dis- In contrast, present trict. case involves a claim that the Council’s orders were entered in a matter en- tirely beyond jurisdiction. its Judge Chandler claims that the order of December 13, 1965, him depriving cases, pending both and future was tantamount to his office, removal from and that such an act far exceeded jurisdiction the limited over “administrative” matters by conferred on the Council § 332. He further asserts, as noted in I, supra, Part the order of Febru- ary 4, 1966, exceeded the jurisdiction Council’s under either 332 or § § 137. grave Such charges clearly go beyond a mere claim that the Council has “erred in on ruling matters within jurisdiction.” [its] Cf. Will 13 Will v. See also States, 389 United (1967); U. S. 90 Bankers & Cas. Co. v. 346 Holland, U. (1953). S. 382-383 Life
115 States, v. United 389 U. S. 90, 95-96, and n. 6 (1967); Schlagenhauf Holder, v. (1964). 379 U. S.
Further, there seems to be no means which Chandler’s challenge the orders could be aired ade- quately on review of the they cases to which pertain. While the party in losing a case assigned another district conceivably judge might argue appeal he is entitled reversal because his case should have been heard Judge Chandler, such an argument would encounter formidable A obstacles. court reviewing way would have no of determining particular whether a case filed in the February District Court after would, Order but for order, have been assigned to Judge Chandler; nor is it clear that if error, detect- able, would in itself entitle the losing party to invali- date had before proceedings another More judge. basi- cally, Chandler injury is asserting an to himself, apart any injuries from parties to the cases; those parties upon cannot be relied to seek vindication injury. of that Ex parte Fahey, Cf. 332 U. S. Ex
(1947); parte Harding, (1911). 219 U. S. 372-380 It is very difficult to see how the multiplicity of the cases affected the Council’s orders could derogate from this authority Court’s 1651 (a) to issue an extraordinary jurisdiction writ aid of its appellate *35 A over them. somewhat analogous multiplicity was found to in militate favor of the issuance of mandamus in McCullough Cosgrave, v. 309 U. 634 (1940), S. Angeles James, Brush Corp.
Los v. 272 U. 701 (1927). S. explained As later Brennan, Mr. Justice dissenting Buy Co., in La v. Howes Leather 249, 352 U. 266 S. (1957), Angeles Brush Corp.
“Los was a case ref- where a erence a was made, not because a dis- [to master] decided judge particular trict that the circumstances case particular required of the pur- a but reference, 116 of that among judges to an all agreement
suant always appoint masters to hear District Court par- of the circumstances of patent regardless cases ticular cases.” Brush Angeles in Los
Mandamus was therefore issued Corp., McCullough, and in which involved a similar sit- remedy in order Court, uation the same District a of the of Civil Procedure pervasive disregard Rules numerous affecting cases.14
Similarly, Buy upheld La the authority Court Appeals (a) Court under 1651 to issue writs § compelling judge of mandamus a district to rescind his referral of two antitrust cases to a master for trial. The Court found that the referral “was a clear abuse dis- cretion,” Appeals and further noted “that the Court of years has admonished the trial of the Seventh practice Circuit that references making ‘does not commend itself’. . . it ‘all too common [and was] ” in the Northern District Illinois.’ S., U. at primary 258. This factor was among “exceptional circumstances” found to warrant the Court of Appeals’ issuance of the writs.
In reported case most nearly analogous to this one, Appeals the Court of for the Third Circuit issued a writ of mandamus at the behest of the United States compel a district to return to the office from which he had been unlawfully removed. United Malmin, States v. (C. F. 785 A. 3d 1921). Cir. Judge Malmin, of the District Court of the Virgin Islands, had returned to the United States after Angeles Corp. in Los The Brush Court upon relied its man power damus 234 of the Judicial provision Code of § may longer no be in effect, However, see n. infra. since the case was one that would be reviewable on certiorari at stage, later (now seems that 1651) carried forward in § per equally applicable. opinion McCullough curiam did not statutory disclose the ruling basis for the there. *36 him remove and purported had governor territorial of the §on Relying to his seat. appoint another All predecessor of the Writs of Judicial Code authority to issue the ruled that it had Act, the court id., 791; at it observed jurisdiction, “in aid of” its writ of the lawfully appointed judge of a absence cases rights litigants of District Court affected right “the Appeals, of and that reviewable in the Court from trial court public properly of the to a constituted or validly lie could not asserted appeals which can appeal on writ proceedings about brought deemed it In the court circumstances, those error.” jurisdiction of this court that appellate to the “essential Virgin in the District Court orderly proceedings Id., at Islands be restored.” majority’s in Malndn with the disagreed
A dissenter rectified on conclusion that the defect could not be mandamus should not issue be- appeal, urged and succeeding appointee, it could not bind the who cause In party. above, not a before as noted us, case appeals protect Judge are ordinary adequate not there no interest; problem missing Chandler’s and is himself who is parties, complaining since office, of his illegal interference the exercise complaint can be remedied the issuance fully against respondent of a writ Judicial Council.
For these reasons would conclude that the actions challenged by Judge sufficiently Chandler affect matters appellate jurisdiction within this to bring Court’s for an application extraordinary writ within our author- if ity (a), charges, sustained, and that his present an appropriate would occasion for the issuance writ.15 such 15 many early Court, In such as mandamus cases parte Peru, supra, Ex the Court based its action both § predecessors of the Judicial Code of §262
[00] 1—I
Ill of present posture Judge Chandler, In the this case he my opinion, is not entitled to the relief seeks. 13, 1965, The of December which prompted Order superseded this been Court, by recourse to has the Order (a). usually specify upon 1651 The did not Court whether it relied § 262, apparently considering they 234 overlap- or furnished § § authority. ping 234, which derived from 13 of the Judi- Section § ciary 1789, upon Court, only, of this this Act conferred and Court “power mandamus, by . . to issue . writs of in cases warranted principles usages law, and appointed of courts authority provided of the United 262 States Section Supreme Court, appeals,, the circuit courts of and the district “[t]he power provided specifically courts shall have to issue all writs not for may necessary statute, respective which the exercise of their jurisdictions, agreeable usages and principles to the and of law.” provision upon conferring former was as construed this Court general supervisory power courts, “a over the inferior so far as power through was exercisable a writ of mandamus in its function,” enabling historic essentially the Court exercise “to appellate reviewing revising judicial function of proceeding appropriate lower of court use the common-law writ of man- damus, given by or not Congress whether it had been some other statutory appellate potential jurisdiction, appellate or jurisdiction, by way appeal of an of writ error or In otherwise.” re Josephson, (C. 218 2d 174, 1954). F. See, 177-178 A. 1st Cir. g., Virginia Rives, e. v. 100 313, (1880); parte S.U. 323-324 Ex Bradley, 364, (1869); parte Crane, Wall. 375-377 Ex 5 Pet. (1831). contrast, In power granted by was not an §262 independent appellate power merely auxiliary power but exer- appellate jurisdiction cisable granted by when pro- some other vision of law. provisions These two (a) were consolidated into part
of the 1948 revision of the Judicial Code. The brief Reviser’s Note explained that the “revised power section extends the to issue writs in aid jurisdiction, to all courts established Congress, ofAct making explicit thus right powers implied to exercise from the “special creation of such provisions” courts.” The relating 234§ Supreme to the Court “were omitted as unnecessary in view of the No, Rep. revised section.” H. R. 80th Cong., Sess., 1st A144- entirely I February which am satisfied am un- wholly I authority within the the Council. latter either as a “removal” regard able to order judicial anything from or as other office, Chandler move traffic the District along than an effort to find room for In no affairs, Court. this state can argument by my so made vigorously constitutional Douglas. Black Brothers
A of the strenuously attacks the substance Petitioner re effectively Order, 13 which he claims December (a) closely (1947). language the of 1651 more A145 Because § Congress by speculated of it been that resembles that has § may from this Court its enacting the have withdrawn revision proceedings in the special appellate power supervise under 234 to § regard to other statute lower federal courts without whether proceedings. gives jurisdiction review See to those the Court S, (1957) (Bren- Buy Co., 249, 260 La v. Howes Leather 352 U. Josephson, supra. J., dissenting); In re nan, urges no such amicus the Court to rule that The United States as correctly revision, arguing that change the 1948 was effected clearly encompass type review Chandler would the of 234§ out, ruling, points support in seeks. The United States such (a) “consolidates” the that the Reviser’s Note stated that § necessary phraseology”; provisions, changes “with in this earlier significant intended, change in law gave indication the no lightly Court in inferred. I note that the and one should not Peru, referring parte both 234 and stated that Ex § § statutory jurisdiction provisions, Court the the “[u]nder appellate jurisdiction has been aid of its issue common-law writs S., consistently at of the U. 582-583. Its use sustained.” jurisdiction” appellate expression its to characterize both “in aid of may phrase (a) suggests the similar also statutes § by this powers exercised Court 234. encompass the under How- § question light to decide this here in of the ever, is no need there reviewability many in this Court of the cases whose fact the brings the Judicial Council’s orders is determined allocation they powers within Court’s existed as petition Chandler’s under §262. procedures him from as well office,
moved argument issued. His substantive the order was which does not relied, the Council 332, on which is that func upon placing restrictions authorize temporarily, and that district even judge, of a tioning is unconstitutional because the if does the statute it authority provisions16 vesting Congress constitutional establish officers, including judges, federal impeach inquiry into the fitness of a fed means the exclusive In perform response his duties. the United judge eral provisions argues impeachment amicus that the States as not be read as that would precluding legislation should supervision “judicial of federal trial authorize fulfillment of the condition of federal tenure under Article III —that maintain his ” question subject This has behavior.’ been ‘good scholarly debate, presently and is before Senate as Reform proposed Judicial Act. considers See 1516 before the on Hearings S. 1506-S. Subcommittee Machinery Judicial Com Improvements Senate *39 Judiciary, (1969). on the 91st 1st Cong., mittee Sess. procedural objections to the 13 Petitioner’s December parte, to its issuance ex without or Order relate notice that raise hearing questions serious under —circumstances the Due Process Clause of the Fifth Amendment.
I respondent believe the and the United are States that these need contending correct issues not be re- on this occasion. As already appears, solved the Decem- no longer ber 13 Order is before us. Therefore, only question requiring still decision is the validity of 4 outstanding February Order the enabling under statutes.
B February The Council rested the 4 on its author- Order § both 137 and ity § 332. Considering first Const., I, 2, 3; II, Art. U. S. Art. See 4. §§ § more of general grant authority, 332, § Council’s powers think this order was within the substantively provision. conferred that The order was by designed to deal with the situation in Chandler’s court by dispose him to requiring backlog notifying before the Council that he is and able to undertake new willing assignments. Supplemental Memorandum for Re- See spondent. That the Councils might issue orders contemplated type clearly § draftsmen a customary and such orders seem to have been measure taken the Councils under the section. II history
The summarized in Part legislative clear a Judicial above, makes Council’s mandate necessary to “make all orders for the effective and ex- peditious administration of the business of the courts encompass within its circuit” was intended to the mak- ing of that would judge orders direct a district to clear up his docket would channel cases to other judges when a situation existed with respect judge to one justice. was inimical to the effective administration Vinson, Cf. Business Judicial Administration: to the Suggestions Justices, Conference of Chief (1949). A. J. A. B.
The Judicial Conference of the United made a States in 1961 of the role of study the Judicial culmi- Councils, report in a nating was transmitted to Congress Chief Justice Warren. That after report, thorough of the legislative history consideration of the 1939 Act, specifically as among responsibilities listed “having Councils who has accumulation of submitted not on any cases take further trial work *40 such cases have been until decided.” H. R. Doc. No. supra, power at 10. This has been exercised on other by g., occasions other Judicial e. See, Councils. Fish, 37 at supra, Rev., 230; U. Chi. L. Lumbard, The Place of the Federal Judicial Councils in the Administration
122 (1961) ; 169, 170-171 Courts, 47 A. B. A. J.
of the Adminis- in Judicial Developments Modern Shafroth, pro- (1963). 160 L. Rev. tration, 12 Am. U. been never before apparently has priety of such action seriously challenged. limits the however, that 332 argues, Chandler
Judge of order to situa- type this authority making Council's existence by order necessitated tions in which the is Febru- backlog cases, and that the extraordinary a but prompted, backlog, not ary Order was such for punish Judge the Council’s desire to Chandler to this misbehavior. There seem to be two strands in petitioner’s there are argument. First, suggestions Shipley briefs and in those of amicus curiae taken, Council’s actions have been not for the reasons Council, stated the various orders and minutes for personal animosity. nothing but reasons of There is petition in the record, Judge which consists Chandler’s and the orders Council, and minutes to substan- tiate this and I for one am charge, quite unwilling to attribute Second, such motives to the Judge Council. Chandler seems to assert that is February Order only supported sustainable if showing a docket a numerically bore heavier load of pending cases than did those of his colleagues on the District Court, justification and that is lacking here.17 believe 17Although neither the December February 13 Order nor the in, figures concerning Order recited status docket Court, District the former order did predicated state it was meetings four-year period series of over a in which the Council “has discussed and considered the business of the United States District Court the Western District of Oklahoma particular regard has done so with to the effect thereon of the atti who, tude and conduct of Chandler as the Chief of that District, primarily responsible for the administration of such business.” year
Approximately February Order, after the issuance of the determining existing in the course of “whether order was still
123 argument this reflects an overly restrictive view of the Judicial Council’s role. legislative history of 332 refu- positive contains petitioner’s only
tation of argument that factor a Council might appropriately in an order making consider such as 4 February weight is the statistical of the workloads of the district It is judges. various true, history as the II legislative confirms, Part above delays that abatement of disposition of cases was a principal purpose creation of the Councils; but the Councils were deliberately given responsi- broad bilities to meet other problems they as arose. Chief Justice Groner contemplated that would Councils cope not only delays but also with other “any matter which the subject of criticism, properly could be made the subject of criticism, for which dis- [a judge] responsible.” trict may Hearings on 188, S. suitable or whether the changed conditions had to an extent suffi- change cient order,” dictate in the the Council examined statistics furnished the Administrative Office the United Courts, showing February 1, States that on 138 cases had pending Judge been before Chandler, 92, 91, as contrasted to respectively 99 pending cases judges. before the other active district Further statistics showed that 50 pending cases were still before January 31, Chandler on figures 1967. On the basis of these the Council determined no appropriate action was then regarding assignment of eases the District Court. July 12, 1967, again On the Council reviewed the condition of the and, discovering only District Court docket cases were pending Judge Chandler, before determined that a revision should disposition be made of the February business mandated requested Order. It judges notification from the district of a new However, order of business suitable to appears them. from opinion, Court’s the district advised the Council “that current order for agreeable the division of business this district is receiving message the circumstances.” On this the Council February Subsequent- determined to leave the 4 Order in effect. statistics, submitted to the Council Office, the Administrative pending showed that Chandler had six cases on June 1969. part supra, at 11. The committee included Senate report recommending passage in its testimony (1939). Rep. Cong., Sess., No.. 76th 1st bill. S. *42 respon- The later that the Council’s same witness stated wrong sibilities would embrace correction of “whatever justice, in the of from whatever sources administration a may arise,” strengthen- as means of “the promoting ing part people.” Hearings of confidence on the supra, on at 12-13, S. 14.18 The broad mandate of the Councils was further report. stressed the Judicial Conference in its 1961 The from the be.“patent” Conference considered it to history legislative § that 332 “imposed upon responsibility a council the seeing of that the work and of function the courts in its circuit expeditiously per- were and effectively formed; that of responsibility observation, supervision, and correction went to the whole of a personal court’s both functioning, and institu- aspect.” tional supra, H. R. Doc. No. at 6. From study of the applications of the statute various Councils, the Conference concluded that
“most of the councils appear, from the things with they which have dealt in these situations, to have recognized their responsibilities power ex- tend, merely not to dealing with the questions of the handling and dispatching of a trial court’s busi- ness its technical sense, but also to dealing with of business the judiciary in its broader or institu- sense, tional such as the of preventing any stigma, disrepute, other element of of public loss confi- dence occurring as to the Federal courts or to the 18 Hearings See also supra, H. R. (statement at of id., Groner); Chief (statement Justice at 22 Parker). from justice by
administration nature them, person of action or a attached individual Id., courts.” at 7. specifically approved Conference this construction Id., in spelling out its conclusions. at 8-9. necessary
It is not on the define all the limits powers of determine the Councils under order to February proper Order was a exercise those powers. The December 13 Order noted that Council was familiar with Judge Chandler’s conduct years official business from four it fur- scrutiny, and ther recited that
“[djuring period Judge Chandler has been party defendant in both criminal litiga- civil and tion. One civil case is Two *43 pending. pro- still ceedings have been brought United States Appeals Court of for the Tenth Circuit to dis- him from qualify specific In handling litigation. one instance he was ordered to no proceed further and the other pending.” is still whole, I believe that these circumstances, taken as a prima established a facie basis for the Council’s conclu- sion that some action appropriate to alleviate what perceived Council members public as a to threat confidence in the justice. administration of
C Passing over the now-revoked action taken on Decem- ber February consider 4 Order, restricting Judge Chandler for the being time to the pending cases then permissible before be him, step a interim ex- toward ploration problem presented. solution of the presumed Council be must to have known of the sub- number of stantial cases then available to Judge Chandler, supra, n. see it could have reasonably be to would way proceed that a careful
concluded handled Judge Chandler manner which observe the permanent more what determining cases before those administration to the respect taken with steps should be of the District Court. of the business had Chandler Judge When the Council learned him and the it invited cases, of the bulk of his disposed new distribution propose a judges other district Judge Chandler business; judges together, the district dis- certify 137 to exercising right alone his pro- make could such a agreement Council, Chandler’s claim that posal at time. is the result of unlawful failure to seek a new allocation light insubstantial the initial valid- “duress” seems if February 4 Order. Even the December ity January 1966, impose did a form of duress Order upon present divi- judges when the district settled and there cases, revoked, sion of that order had been hardly duress, could be said to have been when the July district declined the Council’s 1967 invita- propose questions tion to new order. Serious would presented if, exhausting pending after much of his business, Judge sought Chandler had additional business spb- and the had declined without advancing justification stantial additional for the refusal. How- ever, because Chandler’s inaction, that situation presented not on this record. *44 my February In view of conclusion that the 4 Order power valid exercise of the Council’s was a 332, § justification I need not consider the Council’s alternative petitioner’s the order under or of arguments con- inapplicability the of that cerning provision.
D Finally, the procedures followed the in pro- February 4 mulgating its Order do not appear to have of the manner Congress’ conception to been offensive with the act, which the Councils would inconsistent process due of law. It seems to have basic demands of the of the 1939 throughout assumed consideration been that, relatively matters, Act at on minor the least See, g., ex e. ordinarily proceed parte. Councils would supra, (statement Chief hearings on H. R. at of Groner). with the initial Beginning suggestion Justice one Hughes, major Chief reasons for Justice body these placing responsibilities of circuit they great was that would have a deal of firsthand knowl- about edge district courts and about work and conduct of individual district H. judges. See R. supra, (Chief Hughes) Doe. No. at 3 ; Justice 188, supra, on at Hearings (statement S. A. Vander- bilt). major The other on source information which the Councils would act to be gathered the data by the Administrative Office.
However, statute, very which uses general language heavy to vest responsibilities in Councils, certainly allows vary the Councils the flexibility proce- their dures, adopting particular instance those that are especially suited to the matter at hand or necessitated by the supra, demands fairness. Fish, See at 222. There much in our tradition process of due of law that runs counter taking serious on action the basis parte exof assertions or suspicions of misbehavior or in- capacity. Apparently recognizing this, the Council after temporary its December 13 Order scheduled a hearing question of assignment of cases to Judge Chandler, him appear and invited with counsel. Cf. Chandler v. Council, Judicial 382 U. S. 1003 (1966). As explained opinion the Court, this hearing was canceled the Council when learned that no judge the District appear. In Court wished these circumstances the *45 128 the Feb- issuing justified me, it seems to
Council, proceedings. further ruary 4 Order without ways. in several this conclusion challenges Petitioner hearing, directing the the order argues he First, notice adequate contain did not January 27,1966, entered ex- order That hearing. of the subject matter Judge and to 13 Order to the December pressly referred declared and upon Court, it in this Chandler’s attack which hearing for at be set that “this matter” would matters “present such might Chandler fact that In view of the may as he deem fit.” Council specific grounds listed 13 Order had December based, action was which the Council’s specification, no for further request Chandler made present contention well taken. cannot consider his of the hear- Second, petitioner boycott states that denial had ing was based on his the Council jurisdiction to hold He from apparently it. concludes February 4 though this that Order stands as However, Council had never scheduled a at all. hearing already Order, the Council had entered December 13 stated, pertinent order part: The gave 13, 1965, “The consideration to its December order matter, proceedings Supreme in this to the in the Court entitled Stephen Chandler, ‘Honorable etc. v. S. Judicial Council . . . stay petitioner, response to the motion for filed therein to the States, thereto the Solicitor General of the United and to the Supreme January 21, order of the Court entered on 1966. Supreme Council noted the reference Court to the statement response in the Solicitor General that the Council contem- plated prompt proceedings Supreme further and the order of the application Court stay ‘pending for be denied this con- templated prompt action of the Judicial Council.’ hearing M.,
“It is ordered that this matter is set at 9:30 A. February Thursday, 10, 1966, in Room of the United States City, Oklahoma, Courthouse at Oklahoma when where the Stephen may appear person Honorable S. Chandler and with present may counsel and such matters to the Council deem as he fit.” *46 temporarily, which had least declined, this Court at proceed to fur- disturb, authority and Council's ther Chandler surely sufficiently evident that setting was not entitled to remain indifferent to its order petitioner the matter for a hearing. Finally, asserts proposed merely deficient he hearing was because was invited, appear. rather than He cites no ordered, for authority this and proposition, appears quite untenable.
Throughout briefs, Chandler’s and the dis- sents of my Brothers there are Black Douglas, strong importance assertions of an independent federal I judiciary. fully agree principie holds a profoundly important place in govern- our scheme of ment. I can However, discern no incursion on that principle the legislation creating Judicial Councils them empowering supervise the work of the courts, district in order to ensure the effective and expeditious of their handling business. The February Order, pursuant entered to this statutory authority, supportable exercise of the responsibility Council’s oversee the administration of federal justice.
I would grant Judge for Chandler’s motion leave to petition file his for prohibition a writ of or mandamus, but for the reasons stated opinion above am of the no such writ should issue. Douglas,
Mr. Justice with whom Mr. Justice Black concurs, dissenting. which Congress, created the lower courts, federal
also created a Judicial Council for each composed circuit “of the circuit judges circuit, regular active service.” 28 U. S. C. 332. The Council “shall make necessary all orders for the effective and expeditious administration of the business of the courts within its circuit.” Ibid. And Congress directed that dis- “[t]he carry into effect all orders promptly shall judges
trict Ibid. council.” federal district Stephen Chandler, is a Petitioner, S. 13, 1966, December the Tenth Circuit. On judge of composed of five Court Council, “until the further order entered an order that Appeals, Stephen the Honorable Council, of the Judicial S. in any shall take no action whatsoever case or Chandler in the proceeding pending now hereafter United States *47 of Oklahoma; District Court for the Western District to or proceedings assigned pend- that all cases and now reassigned before him shall be to and ing among the other judges court; said and that until the further order of the Judicial Council no cases or filed proceedings or instituted in the United District Court for States the Western District of assigned Oklahoma shall be to any him for action whatsoever.” Petitioner filed petition prohibition a man- and/or damus, stay and sought of the order of the Council. The Court denied relief stating that the order “en- was tirely interlocutory in character pending prompt further proceedings.” 382 U. S. 1003. and Mr. Justice Black I February dissented. On 4, 1966, the Council entered an order allowing petitioner to continue to sit on cases filed and assigned 28, as of December 1965; appor- but it tioned all subsequent cases among the remaining judges. The Council stated that order its of February 4, 1966, superseded its order of December 13, By 1965. a subse- quent order the Council directed judicial that new busi- not, ness would until further order, assigned to petitioner.
I This has case been and continues to be the liveliest, most controversial contest involving federal judge modern United history. States February 4, 1966, made order on the basis of an alleged “disagreement” among Council on one side on judges Judge the district and Chandler previously the other over the of cases as- reassignment on Judge to Chandler signed December 1965. The Judge Council authorized Chandler to sit cases as- prior to him signed 28, 1965; December it assigned to the other all district cases filed after that date. on the order, January Chandler eve of that agreed acquiesce assignment in the of new cases to the other district But he judges. disagreed “my concerning action As pending cases.” to them he provision said: “There is no that grants law a Judicial jurisdiction over cases pending before a in the various stages process after valid assignment my to him. consider duty to continue my assert jurisdiction exclusive over cases, these do shall so.” February the order of 4, 1966,
Since said that all cases “assigned to Chandler as of December 28, 1965, assigned him,” shall remain and since Judge Chandler *48 did not to the object being later cases assigned others, the then (now Solicitor General Mr. Justice Marshall) in a suggested memorandum the that case had become moot.
But in the Solicitor General later memorandum filed 17, 1966, here March agreed “that case can longer no be deemed moot” because of Judge Chandler’s continuing, expressed disagreement with February the order of 1966. noted,
As the original action against Judge Chandler was taken under 28 § U. S. 332. C. The action taken February 4, 1966, § U. S. C. which provides part: in
“If the any district judges district are unable upon adoption agree rules orders shall council of the circuit purpose necessary
make the orders.” district among no disagreement But there was of the Council to act under 28 power and no precisely That was strategy §C. 137. U. S. if him against Chandler selected so that the feud continued, under 28 waged it would have to be U. S. C. oblige. But the did not It recited its § 332. “In February 4, order of 1966: the circumstances a as to the division of business and disagreement exists of cases the Western District of assignment Oklahoma.” February
If disagreement 4, 1966, existed on it ex- “acquiescence” isted after Chandler’s so-called expressed January which was in the letter of 24, 1966. swept The entire ground thus out from under the moot- In argument. spite ness of Chandler’s “acquiescence” controversy Council considered the case a live and Chan- February 4, 1966, dler has contested the order ever since opposition it His continuing raging issued. and the con- led troversy the former General Solicitor to concede Council, the case had not become moot. Nor does even at this late make date, suggestion. such Nor present does the Solicitor General.
The Court holds that because Judge Chandler refused express to the Council his disagreement with the February 4, 1966, he failed order, possible to exhaust a means for he obtaining relief now seeks Court. Had he disagreed, however, he would have vested authority the Council with to act under and that was he precisely what wanted to avoid. As points out, the whole basis for Mr. Justice Harlan Judge Chandler’s attack is “that is illegal for the *49 deprive Council to him of new cases, and equally for so the Council to condition his access to new upon cases making request to it that is tantamount to a form of a certification of The Court disagreement § 137.” states that disagreement not to the Council certifying apparently Chandler is “to have it both attempting ways.” It clear, opinion seems that the Court’s however, ways” now allows the Council “to both unless have it —for Chandler Febru- disagreement certifies with the ary 4, 1966, order, Court; he is barred from relief in this and if he by disagreeing seeks relief from for order, jurisdiction its he concedes in the Council Army its actions under in Rescue v. Nothing § 137. Court, Municipal Court, relied on U. S. compels this result.
For the fully stated reasons Harlan, Justice Mr. Part of his opinion, ripe the case is decision we have no excuse for declining to decide it.
II
Our first substantial question is whether
is
this
“controversy”
“case” or
jurisdiction.
within our
As
Madison,
Chief Justice
in Marbury
Marshall
said
v.
“To enable court, then, to issue a it must be shown to be an appellate juris- exercise of diction, necessary or to be to enable [the Court] appellate jurisdiction. exercise “It is the essential appellate criterion of jurisdic- tion, that it revises and corrects the proceedings already a cause instituted, and does not create that cause.” question therefore is whether a judicial council is
a lower court inferior tribunal whose decisions are reviewable the exercise of our appellate jurisdiction. A council only appeals court of for a circuit en sitting named banc. These councils were place “responsibility created for judicial administra- *50 Rep. tion where it the belongs judiciary.” H. R. —with Sess., No. 76th 1st 4. Chief Justice Groner Cong., Columbia, Appeals of the Court of for the District of helped enacted, explained who draft the bill that was it as follows to the Senate:1 any supervi-
“To the administrative officer [give judicial sion or control over the of purely exercise would be to funda- destroy very the functions] theory mentals of our of The admin- government. proposed officer purely istrative this bill is administrative officer. ... It is his duty to observe and see that whatever is in the wrong administra- tion justice, of from may arise, whatever sources it brought is judicial the attention the council may corrected, by the courts themselves. That is, as respectfully suggest, as it ought to be.” (Italics added.) 28 U. S. C. 137 is duty under a
“make necessary the orders” case the district judges are “unable to agree upon the adoption of rules or orders purpose.” The Council directs the district carry out certain measures. That is indeed the judicial entity. Only role of a members of the Court of Appeals are members of the Council. Those sitting on the Council do not even change Expe their hats. diting flow of cases to the dockets district judges wholly line with function. We stated in Textile Corp. Mills Commissioner, v. U. S. 332:
“There are numerous functions of the court, as a 'court of record, appellate jurisdiction,’ other than and hearing appeals. deciding Under Judicial Code these embrace the form prescribing 1 Hearings on S. 188 before a Subcommittee of the Senate Com Judiciary, mittee on the Cong., 76th Sess., 1st (Apr. 4r-5, 1939). 12-13 style other and form and process writs and (§ 122); making its seal of rules and regulations (§ (§ 122); appointment 124) a clerk deputy approval appointment and removal of (§ when 125); fixing clerks ‘times’ *51 be 126.” § court shall held. performed by may functions
Some a Judicial Council be But where, here, “administrative.” as it moves tanto pro disqualify judge from him sitting, removing a from office, moves all of against individual with the sting impeachment and much of the stigma carries. That action rise to “case” or gives a “contro- versy” by the triggered Council. The Council there- is fore under the circumstances inferior tribunal appellate jurisdiction over which we have where “case” a or “controversy” On that arises. it is not assumption, seriously argued inappropriate that mandamus is an rem- edy under All the Writs Act.2 may
The order December quali- have been fied has not but it been erased. Petitioner still is dis- qualified incoming to sit on He cases. still carries the on him stigma put by of the brand the Council. We should remember the cessation illegal conduct does a not make case moot:
“A controversy may remain settled in such g., circumstances . . . e. over dispute legality challenged practices. The . . . is defendant free return ways. to his old This, together public interest in having legality prac- settled, against tices militates a mootness conclu- United States v. W. T. Grant Co., sion.” U. S. 629, 632. Supreme “The all by Court and courts established Act of Con
gress may necessary all appropriate issue writs in aid of their respective jurisdictions agreeable usages and principles (a). C. law.” 28 U. S. §1651
Ill out- is of this An one Nation’s independent judiciary is con- Once a federal characteristics. standing is inde- oath, he firmed the Senate and takes by works judge. commonly He pendent every other sovereign. federal who are likewise with other to- one nor number banded But alone neither on him. place as sanctions can act censor gether can be leverage only Under the Constitution impeachment, pursuant him where against asserted he passed is tried House, to a resolution I, § 2 and 3. Our sitting jury. as a Art. Senate, impeachments evidenced political tradition even bars oust unsuccessful, but effort to highly partisan, Chase of this Court 1805.3 Justice Samuel *52 pro- of the indeed Impeachment Provision Constitution4 States,” vides for the removal of “Officers of United “Impeachment Con- on and judges, for, which includes Bribery, high or other and of, Treason, viction Crimes II, § Misdemeanors.” Art. 4. peti- the Judicial Council did when ordered
What or tioner to “take no action case any whatsoever now or hereafter proceeding pending” his court If only Impeachment to do do. what Court can the business the federal courts needs administrative of cases oversight, regulated. flow can be Some may more judges slowly others; work than some cases take while others take hours or days. months Matters may pro- of this kind regulated by the assignment 3 Chase, (1805, See of Samuel vols. 1 Trial and in short taken Lloyd). H. hand Samuel Smith and Thomas vary. Thus procedures State York New its constitution judges by judiciary court, provides for the removal of made State, Friedman v. up judges. See N. Y. 2d 249 N. E. 2d 369. power
cedure. But there no under our Constitution is group discipline one of federal to censor or judges power and to declare him ineffi- judge federal no him a strip power judge. cient and act as to The mood some judges opposed federal is to this they view and are active to make all federal attempting step. happened walk in some uniform What has petitioner not rare instance; happened a it has federal judges perhaps other who have had a more liber- approach tarian to the Bill of their brethren. Rights than The result is that the greatly nonconformist has suffered at the hands of his fellow judges.
The problem is not only judi- resolved saying cial power administrative are matters involved. The keep particular a from on case, a racial sitting a church-and-state case, free-press case, a a search-and- case, seizure a case, railroad a union case, antitrust may profound case have are not consequences. Judges fungible; they cover the spectrum; constitutional particular judge’s emphasis may make world dif- ference when it to rulings evidence, temper comes courtroom, the tolerance for a proffered defense, and the like. Lawyers recognize they this when talk “shopping” about for a judge; recognize Senators they when are asked to give their “advice and consent” laymen appointments; this when recognize they appraise the quality image of the judiciary *53 their own community.
These are subtle, imponderable factors which other judges should not be allowed to manipulate to further concept their own the public of good. That is the cru- cial issue at the of present heart the controversy. power heady
All ais thing by evidenced the increas- ing efforts of of federal groups judges to act as referees judges. over other federal adopted Conference the Judicial 10, 1969,
On June cir- many activities governance for the resolutions I provided:5 Resolution judges. districts judges cuit accept not shall service in active regular judge “A form in the whether any kind, compensation otherwise, honoraria gifts, gratuities, loans, by performed or to be performed hereafter services perform- for the provided by law except that him duties. judicial of his ance the council of judicial however, “Provided circuit, of a part not in the case of courts (or circuit may upon service) in the court active judges acceptance of judge approve- application of other of services performance for the compensation upon a determination judicial duties than justified interest or are public in the services are the services circumstances and exceptional by with his duties. Both the not will interfere compensation and the performed to be services public matter of record and be made a paid shall Conference of the United to the Judicial reported (Italics added.) States.” suspended 1, 1969, by on November the Judicial Resolution study, only presently in pending further residue force Conference requirement any quarterly judge period that a in being a who non-judicial compensation for services in a total amount “receives exceeding report “receiving $100” same shall to a officer” named by acting judges. for the federal In March the Chief Justice approved procedures the Judicial Conference and forms for report pursuant outside income to the Conference Reso requires approved listing lution of 1969. The November form judge, gifts judge outside income received received family $100, any knowing participation or his immediate excess of family cases which the or a member of his immediate parties, had a financial interest of the named and all “fidu ciary positions” judge, held “such as trustee or executor.” *54 Circuit, Justice, In the which I am Circuit Ninth a this resolution was federal assumed bar being from even an executor of his own mother’s estate, got permit unless course he from the other judges. permits I apparently required Resolution federal to teach in practice a law school—a which paid enormous professional implicates has dividends and the interest nothing but and Jus- energy judge. Joseph Story 1845) tice (who sat here from 1811 to would, appalled have been if he had imagine, been told he could not write many of his books6 without permission getting from group other federal judges. And I imagine Frank, Justice Cardozo, Judge Jerome and Learned Hand would have felt same.7 permit To obtain a the other judges must determine if public “in Pray, services are interest.” how they could they determine that unless or lecture, saw the lecture notes, manuscript? “public And whose interest” would Judges control? who have not been edu- cated to the of ecology needs and of conservation? Equity Jurisprudence (2 vols., 1836); Commentaries on Com Equity Pleadings (1838); mentaries on on Commentaries the Con (1834); flict of Laws Commentaries on the Constitution of (3 vols., 1833); United States Agency Commentaries on the Law of (1839); (1832); Commentaries on the Law of Bailments Commen Exchange (1843); taries on the Law of Bills of Commentaries Partnership (1841); Law Commentaries on the Law of Prom issory (1845); Exposition *55 of mind and state “plantation” a have who still
Judges citizenship? to second-class minorities many relegate expression freedom of narrow view have a who Judges deal with issues Public process? of due broad view or a views-; people, like other judges, and contrariety of a vast How under spectrum. parts in all to be found are because lips be sealed judge’s one can the Constitution easy reply An judges? of other predestined view “compensa- only services I covered is that Resolution it is not and tax-wise royalties; entail tion.” But books royalties. from an author always easy to disassociate they pass ultimately charity, they go though Even income tax returns. through federal efforts of put end be to these It is time that an a judges. federal This is ride herd on other judges to place no under Constitution. “hazing” having form of people, to the full entitled, are like other judges Federal they law, If freedom of the First Amendment. break corrupt If or they prosecuted. they can be become sit family stake, or they personal in cases in which have a impeached by Congress. be But search they can power in vain for surveillance Constitution have over those aberrations.8 Some judges other federal Sess., Cong., Cf. 91st 1st which would amend 28 U. S. C. S. by creating Disabilities c. a Commission Judicial first Tenure, judges service; composed and of five federal in active giving power investigation second it to “undertake an of the official any judge appointed hold office conduct of the United States III article of the Constitution to whether the determine judge good conduct of been with the such has consistent required by article;” authority giving behavior and third recommend to the Judicial that he be removed from Conference following office under in office standard: “Willful misconduct persistent perform or willful failure to his official duties of the United States shall constitute conduct inconsistent required by good III with the behavior article of the Constitution judge.” and shall be cause for the removal of that idiosyncrasies may who displeasing to those walk more measured, steps. conservative But those idiosyncrasies can be of no possible constitutional concern to other federal judges. put
It is time we an end to practices the monstrous that seem about to us, vacating overtake the orders of the Judicial brand Chandler as unfit to in oncoming sit Only Congress cases. can take action, unless Constitution is amended to allow censor, police, impeach judges. their fellow *56 Douglas
Mr. Justice Justice Black, whom Mr. joins, dissenting. Douglas
Fully in the of concurring my dissent Brother I case, this wish to few to emphasize add a words once again1 gravity the of the wrong unconstitutional Court is inflicting upon United States District Judge Stephen Chandler, and, important, system more on our of government and the Constitution itself. The prep- aration and adoption great of that turn- document was a point history of ing country this and of the world. hopes Our gave Constitution new and for dreams freedom equal justice country and to signaled citizens and to oppressed and suffering people everywhere that could government many be humane. One factors gave hopes which birth to these new dreams and was our plan constitutional for a more independent sys- tem had before Judges system than ever in our existed. were hold their offices during “good their Behaviour,” not compensation was be “diminished their during they in Office,”2 Continuance and were to be removed only impeachment by after and trial the United States While like Congress. judges, other people, tried, can be Council, See Chandler v. Judicial (1966) 382 U. S. (dissenting opinion). Ill, Art. 1.§ crimes, word, phrase, no
convicted, for punished as a taken or even the Constitution clause, sentence, any ever to be any judge was indication that whole, gives except office wholly from disqualified or removed partly by the impeachment by admittedly difficult method by Representatives and conviction two-thirds House of in our guarantee was the written Senate. Such judiciary, independence Constitution people. our always proud been the boast of such has say compelled in this case regrettably am my faith with this today, judgment, breaks Court duly Chandler, principle. constitutional grand impeached never duly confirmed, and appointed, by other from his work doing has been barred Congress, obscured, judges. The real facts of this case cannot de- Council’s decisions nor the effect of the Judicial technical, effort show fended, legalistic orders issued over the one or the other of the Council’s what case must be viewed years “valid.” This long history of harassment Chandler is —a he to hold other who somehow feel is “unfit” Their on for at least going office. efforts have been *57 What years and Chandler finds no relief. Judge five still part on the simply is involved here is blatant effort through concerted action to make Council depriving him of the judge,” Chandler “second-class power right equally full his office and the to share other federal in the and re- judges privileges with all Judiciary. I am sponsibilities of the Federal unable to inor any authority find in our Constitution statute judges for and arrogate whatever themselves powers. like Chandler, every exercise such other judge including Court, federal Justices this only subject to removal from office the constitu- impeachment. prescribed mode tionally our provided The wise authors of Constitution for independence they because were familiar with history; knew they judges past good, patri- of the — judges otic occasionally lost not their offices only —had but had also sometimes lost their freedom their heads They because of the actions and decrees of other judges. were determined that no things happen such should here. appears But language they used protections they thought they had created not are suffi- to protect cient our from judges the contrived intricacies used of the Tenth Circuit and this Court to uphold happened what has Judge Chandler case.
I fear that unless the actions taken the Judicial way this case are some repudiated, hope independent judiciary prove will to have been no more than an evanescent dream. Notes A Familiar of the Constitution of (1840); Pleadings the United States A Selection of in Civil Actions (1805). 7Justice Cardozo: The (1931); Growth of the Law Law and Essays Literature and Other (1931); Addresses The Nature of (1921). the Judicial Process Judge Learned Rights (1958). Hand: The Bill Judge Jerome Myth Frank: Courts on Reality Trial — (1949); Guilty American Justice Not (1957); If Men Angels Were (1942); (1945). Fate and Freedom