Creating rules of procedure for federal courts: Administrative prerogative or legislative policymaking?

Justice System Journal, 2003 by Johnson, Lori A

The responsibility for making the rules of practice and procedure that structure litigation in federal courts has always been shared between the legislative and judicial branches. From the 1930s to the early 1970s, judicial branch committees dominated the process, and Congress uniformly accepted their recommendations. Then Congress began to express much more interest in the rules for federal courts, and the environment of procedural rulemaking became increasingly politicized. In this article, I review the historical trends toward politicization of procedural rulemaking and the resulting changes in the political dynamics between Congress and the judicial branch.

In our federal system of shared power across separate institutions, the three branches of government often must interact to accomplish their objectives. From the creation of the lower federal courts in the Judiciary Act of 1789, Congress and the judicial branch have shared the responsibility for creating the rules of procedure that structure litigation in the federal courts. For cases at law, Congress generally called for the federal courts to follow state practice, and this intention was codified in the Conformity Act of 1872. Nevertheless, as early as 1792, Congress authorized the Supreme Court to promulgate rules of procedure for equity cases, and the Court adopted the first set of such rules in 1822. The Supreme Court continued to update and revise the equity rules, substantially modernizing and simplifying them in 1912. The adoption of uniform equity rules across all federal courts inspired assiduous efforts on the part of the American Bar Association to convince Congress to grant the Supreme Court the authority to adopt such uniform rules for cases at law. These lobbying efforts were unsuccessful for twenty years, but in 1934 the coalition necessary for the success of these efforts came into being.

Enabling the Supreme Court

In 1934 Congress passed the Rules Enabling Act giving the judicial branch authority to promulgate the Federal Rules of Civil Procedure (Civil Rules), which were adopted in 1938. The successful passage of the act was the result of a powerful alliance between Arthur Vanderbilt, then president of the American Bar Association, Attorney General Homer Cummings, and Chief Justice Charles Evans Hughes. According to the act, the Supreme Court would have the power to promulgate rules of procedure for civil actions as long as these procedural rules did not "abridge, enlarge, nor modify the substantive rights of any litigant." This distinction between procedure and substance was an important limiting component in Congress's delegation of rulemaking authority.

The Supreme Court selected an Advisory Committee composed of law professors and lawyers to formulate the initial version of the Civil Rules. Early in the process, the Advisory Committee, with the support of the Chief Justice, decided to merge the systems of law and equity and issue uniform rules for all civil cases. Although no judges were on the initial Advisory Committee, each federal judicial circuit had a conference to discuss the rules and make recommendations to the committee. The relatively new Judicial Conference of Senior Circuit Judges of the Courts of Appeals, created in 1922, had no formal role in the process but played an informal advisory role. The Advisory Committee spent three years working on the Civil Rules and prepared at least three drafts that were circulated to the members of the judicial branch and the bar before the Civil Rules were submitted to the Supreme Court. The Supreme Court itself made several amendments before sending the Civil Rules to Congress. According to the Rules Enabling Act, after the Supreme Court transmits the rules to Congress, they take effect sixty days after the end of the legislative session as long as Congress takes no action regarding them. The original Federal Rules of Civil Procedure were adopted in this manner in 1938.

In 1940 Congress gave the Supreme Court the authority to develop rules of criminal procedure for all matters before and including the verdict. Developed by another advisory committee operating under the same legislative requirements, the Federal Rules of Criminal Procedure (Criminal Rules) became effective in 1946, the same year the first major amendments to the Civil Rules were adopted.

Until 1958 the rulemaking amendment and revision process continued to be that of advisory committee development, Supreme Court promulgation, and congressional ratification by inaction. Indeed, Congress's willingness to allow the Supreme Court to conduct its rulemaking business without intervention was considered a benchmark of the success of the Civil Rules. As the reporter to the Advisory Committee from 1935 to 1956 described it:

Since the advent of the rules the result has been quite phenomenal. Notwithstanding many proposals, Congress has withstood all attempts to obtain passage of procedural statutes of any consequence. A search has turned up in the rules area only a single statute, one of no far-reaching importance. Congress has seemed literally uninterested in all such proposals, and committee chairmen have quite regularly turned them over to the Court or the Advisory Committee for final attention (Clark, 1958:443).