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[Editor's Note: Following the controversy over President Clinton's
public pressure on U.S. District Judge Harold Baer, Chief Justice of the
United States William Rehnquist delivered a speech at American
University in Washington, D.C. on the importance of an
independent judiciary. Here is the text of that April 9, 1996
speech.]



REMARKS OF THE CHIEF JUSTICE

WASHINGTON COLLEGE OF LAW CENTENNIAL
CELEBRATION

PLENARY ACADEMIC PANEL: THE FUTURE OF THE
FEDERAL COURTS

AMERICAN UNIVERSITY
April 9, 1996


It is a great pleasure to be here this evening and participate in
American University Washington College of Law's celebration of
its centennial.  And since the federal judiciary celebrated its
bicentennial only a few years ago, this is an appropriate occasion
to speak about the future of the federal courts.  But it will be
helpful, in trying to forecast the future of the federal courts, to
look briefly at how they have evolved over the more than two
hundred years they have been in existence.


The federal court system in the United States got off to a
remarkably slow start two hundred years ago.  The Supreme Court
ruled quite early in the game that there were no common law
crimes in the federal courts, and therefore no criminal
prosecutions could be had unless authorized by an act of Congress
criminalizing certain conduct.  The federal trial courts had no
"federal question" jurisdiction until 1875; this meant that if an
individual wished to bring a lawsuit claiming that a right secured
him by the federal constitution had been violated, that lawsuit had
to be brought in state court.  The Supreme Court of the United
States could review a decision by the highest court of a state
which decided a federal question, but the lower federal courts
were not involved.  Thus for nearly the first century of their
existence, the staple of the business of the lower federal courts
was admiralty cases and cases in which jurisdiction was based on
diversity of citizenship.

But this distribution of business between the state court systems
and the federal courts changed quite dramatically after the Civil
War.  In the aftermath of the conflict, the so-called Civil War
amendments to the Constitution were adopted, and of those the
Fourteenth Amendment has been a prolific source of judicial
business. In 1875 federal district courts were given federal
question jurisdiction, so that from then on cases involving
constitutional claims could be initiated in the federal courts.
Finally, the public view of the appropriate role for the federal
government changed after the Civil War - - although the change
moved in fits and starts at first, it inexorably moved in the
direction of greater federal regulation of the citizenry.  Until well
after the Civil War, the general view was that the federal
government should provide for the common defense, coin money,
carry the mails, and pay for itself by collecting customs duties.
But the increasing pace of the Industrial Revolution, the rapid
spread of the railroad into every nook and cranny of the nation,
the increasing size of manufacturing enterprises all provoked calls
for regulation of what was increasingly a commerce which paid
scant attention to state borders.

Before the turn of the twentieth century, Congress had passed the
Interstate Commerce Act, giving a federal commission some
control over railroad rates and practices, and the Sherman Anti-
Trust Act, forbidding conspiracies in restraint of trade.  As we
moved into the twentieth century, the coming of the automobile
and the airplane continued the transportation revolution.  The pace
of increase in federal regulation continued, driven partly by the
interstate nature of so much of the country's business, and partly
by a number of reform movements seeking to ameliorate the
plight of those who did not share in the generally rising tide of
prosperity.  The typical pattern was for reform movements to
originate in the states, only to discover that the practices which
they sought to prohibit or limit could not be prohibited or limited
to their satisfaction without the intervention of the federal
government.

First came concern about wages and hours worked in factories,
and child labor there.  States adopted maximum hour and
minimum wage laws, and laws prohibiting child labor.  But as
often as not the manufacturing plants which would be effected by
these laws would pick up and move to a state which did not have
such laws.  Congress, viewing this phenomenon with dismay,
finally itself enacted federal prohibitions against child labor, and
later a federal maximum hour and minimum wage law.  This
pattern has continued in various areas of the law.  A wave of
reform lead to the enactment by the states of "blue sky" laws in
the first part of this century, regulating the business of issuing and
selling stock, and punishing fraud.  But these laws were deemed
inadequate, and the federal government stepped in as a part of
President Franklin Roosevelt's New Deal to enact federal
regulations in that field.  In the 1950s, many states enacted fair
employment practice laws and anti-discrimination laws governing
public accommodations and the like.  But some states chose not to
enact such laws, and dissatisfied reformers went to Congress to
nationalize this field of lawmaking.  The result was the Civil
Rights laws enacted in the 1960s.

The wave of federal regulatory statutes also brings with it related
problems that give rise to legal disputes. In the first place,
disputes arise as to whether an agency or commission that is
empowered to issue regulations under a statute has exceeded its
authority with respect to one or more particular regulations.
Federal courts must decide these questions, as well as basic
questions of statutory interpretation.  Second, because of the
Supremacy Clause in our Constitution, every time Congress
enacts a new statute dealing with some phase of the economy it
very likely supersedes some of the laws of the various states
which previously governed that area.  For example, in 1974
Congress enacted the modestly titled Employees Retirement
Income Security Act, which had as its basic purpose the
introduction of some federal supervision over employer plans to
provide various health and retirement benefits to employees.  In
the twenty years in which that statute has been on the books, our
Court has decided twenty-one cases involving the question of
whether or not the federal law preempted a particular state law
dealing with the same general subject matter.  And that, of course,
is only the tip of the iceberg; if the Supreme Court has decided
that number of cases, the federal appeals courts will have decided
fifteen or twenty times that number of cases dealing with
preemption under this particular federal statute.

The result of this two hundred year evolution has been that
although ninety-five percent of the judicial business in the United
States is still transacted in state courts, there has been a
remarkable increase in the business of the federal courts because
of these changes which I have described.  And the federal courts
are now awash in the most recent of these changes, which is the
federalization of more and more crimes which once were thought
to be matters of exclusive concern to the states.

Forty some years ago when I began the practice of law in Arizona,
there were not many federal criminal statutes on the books.  There
were some very esoteric crimes, but the staple of the criminal
business of federal courts outside of the metropolitan areas was
confined to prosecutions for transporting a stolen car in interstate
commerce, using the mails for interstate communications to
commit fraud, and a very few other similar crimes.

But that landscape has entirely changed in the last forty years.
Congress, understandably concerned with the increasing traffic
and drugs and the violence resulting from the use of guns, has
legislated again and again to make what once were only state
crimes federal offenses. The same sort of dissatisfaction with state
treatment of the cases in this area of the law has obtained as
obtained earlier with welfare legislation and civil rights laws.
Congress has been of the opinion that even though these gun and
drug crimes could be prosecuted under state law, the state penal
systems were too lenient in paroling serious offenders after having
served only a fraction of the time to which they were sentenced.
So Congress has stepped in, prescribed very severe sentencing
guidelines for federal crimes, and federalized countless crimes
involving drugs and guns.

All of this means that in talking about the future of the federal
courts, we must understand that Congress will probably continue
to enact new legislation which provides new causes of action for
litigants on the civil side of the docket, and new federal crimes to
be prosecuted on the criminal side of the federal docket.

It is the federal district courts of appeals that are being hit hardest
by this ever increasing wave of litigation.  The Supreme Court's
docket is actually down from what it was several years ago.  With
the district courts, it is largely a question of having enough
judicial manpower to adjudicate the incoming cases.  The same is
true to a large extent of the courts of appeals, except that
indefinite enlargement of the number of judges on the courts of
appeals poses problems of collegiality, maintaining a coherent
body of law in the circuit, and the like.  The majority of federal
judges, if the Judicial Conference of the United States accurately
reflects their views, think that the federal judiciary should remain
a limited and somewhat specialized system of administering
justice.  Possible alternatives to indefinite enlargement of the
courts of appeals would be the creation of specialized appellate
courts for a particular subject matter, or the limitation of the
automatic right of appeal from district courts to the courts of
appeals.  We have on our panel tonight two distinguished judges
of the courts of appeals, Judge Reinhardt and Judge Becker, and a
distinguished district court judge, Judge Barker, who can discuss
these aspects of the federal courts more knowledgeably than I can.

It would be a mistake to think that just because a certain kind of
judicial business has always been conducted in a particular way in
the past, it therefore ought to be conducted that way in the future.
The federal courts, like other governmental institutions, must,
where necessary, change with the changing times.  A Long Range
Planning Committee of the Judicial Conference, of which both
Judges Becker and Barker were members, has recently peered into
the future and come up with a number of recommendations for
how the federal judiciary can cope with the changes which the
future will assuredly bring.  But all of the planning and discussion
by judges as to the future of the federal judiciary has a somewhat
tentative, conditional air about it: in this area we are not masters
in our own houses and any major change will have to be approved
by Congress.

I have said that the judiciary must change with the changing
times.  But there are a very few essentials that are vital to the
functioning of the federal court system as we know it.  Surely one
of these essentials is the independence of the judges who sit on
these courts.

Article III of the Constitution guarantees to federal judges the
right to continue in office during good behavior, and prohibits the
diminution of their compensation.  But these two constitutional
provisions did not settle every question about the independence of
the judiciary.  As a result, there have been several actions by
Congress over the years which have fleshed out the constitutional
provision in a manner akin to the development of an "unwritten
constitution" in Great Britain.

Article I of the Constitution provides that civil officers --
including judges -- may be impeached by the House of
Representatives for "high crimes and misdemeanors," and if
convicted by the Senate may be thereupon removed from office.
The term "high crimes and misdemeanors" was sufficiently
amorphous to leave open the possibility that a federal judge could
be removed from office, not only for conduct that was criminal,
but for rulings from the bench that seemed flagrantly wrong.

An important episode early in our nation's history in effect
resolved this question.  This was the impeachment trail of Samuel
Chase, then an Associate Justice of the Supreme Court, in 1805.
Chase had been appointed to the Supreme Court by George
Washington in 1796, but in those days the Supreme Court docket
was even lighter than it is today; Supreme Court justices spent
most of their judicial time riding circuit trying lawsuits in tandem
with the resident judge.  Chase was a striking figure physically - -
over six feet tall, with a ruddy complexion which earned him the
sobriquet (behind his back, of course) of "Old Bacon Face."  He
was able but imperious, and totally lacking in the patience
necessary for a trial judge.

Two years after Thomas Jefferson took office as President, in
1803, Chase delivered a partisan charge to a grand jury in
Baltimore.  Jefferson, learning of this, wrote to his lieutenants in
the House of Representatives suggesting that they do something
about it.  The House proceeded to impeach Chase on a number of
counts.  The first count was the charge to the Baltimore grand
jury. Other counts were based on his conduct of the trial of John
Fries for treason in Philadelphia in 1800, and still others were
based on his conduct in the trial of James Callender in Richmond
for violation of the Sedition Act in the same year.  The trial before
the Senate began in February, 1805, presided over by the Vice
President, Aaron Burr.  Burr himself was a fugitive from justice at
the time, having killed Alexander Hamilton in a duel at
Weehawken, New Jersey the preceding summer.  Criminal
indictments were out for him in both New Jersey and New York,
which caused one wag to remark that whereas in most courts the
criminal was arraigned before the judge, in this court the judge
was arraigned before the criminal.

More than fifty witnesses testified before the Senate. The charges
pertaining to the Fries trial did not amount to much -- at the most
they showed him to be headstrong and somewhat domineering, a
trait not unknown in other federal judges.  The charges in
connection with the Callender trial were a good deal more serious.
Callender was charged under the Sedition Act with bringing
President John Adams into disrepute, inasmuch as he called him a
toady to British interests in a long and incredibly turgid book
entitled "The Prospect Before Us."  The evidence showed that
Chase had actually taken the book with him from Baltimore to
Richmond in order to allow the grand jury to consider it, and that
during the stagecoach trip from Baltimore to Richmond he
referred to Callender as a "scoundrel" to another passenger.

On March 1, 1805, the Senate convened to vote on the articles of
impeachment against Chase.  At that time there were thirty-four
senators, twenty-five of whom were Jeffersonian Republicans.  If
these senators voted a party line, there would be the necessary
two-thirds majority to convict Chase and remove him from office.
Happily, they broke ranks.  On the articles based on the Fries trial,
the vote was sixteen to convict, and eighteen to acquit.  The vote
on the articles relating to the Callender trial was eighteen to
convict, and sixteen for acquittal.  On the count based on the
charge to the Baltimore grand jury, the House managers came
closest to prevailing -- nineteen senators voted guilty, and fifteen
voted not guilty.  But even this number fell four votes short of the
two-thirds majority required, and Chase was therefore acquitted
on all of the counts against him.

This decision by the Senate was enormously important in securing
the kind of judicial independence contemplated by Article III.
Coming only two years after the seminal decision of the Court in
Marbury v. Madison, it coupled with the authority of the federal
courts to declare legislative acts unconstitutional the assurance to
federal judges that their judicial acts -- their rulings from the
bench -- would not be a basis for removal from office by
impeachment and conviction.  And that has been the guiding
principle of the House of Representatives and the Senate from that
day to this; federal judges have been impeached and convicted --
happily, only a very few -- but it has been for criminal conduct
such as tax evasion, perjury, and the like.

This principle only goes so far.  It obviously does not mean that
federal judges should not be criticized for the decisions which
they make; they are frequently so criticized by the media and by
law reviews, and there is certainly no reason why other citizens
should not engage in the same practice.  And the doctrine of
judicial independence does not mean that the country will be
forever in sway to groups of non-elected judges.  When vacancies
occur through death or retirement on any of the federal courts,
replacements are nominated by the President, who has been
elected by the people of the entire nation, subject to confirmation
by the Senate, whose members have been elected by the people of
their respective states. Both the President and the Senate have felt
free to take into consideration the likely judicial philosophy of
any nominee to the federal courts.  Thus there is indirect popular
input into the selection of federal judges.

This principle is perhaps best illustrated by the experience of
President Franklin Roosevelt with appointments to the Supreme
Court.  Dissatisfied with decisions of that court which invalidated
some provisions of his New Deal program, he asked Congress to
enact what soon became known as a "court-packing plan," which
would allow him to replace any Justice over seventy who did not
retire with an additional Justice, up to the number of fifteen.  This
rather bald effort to change the philosophy of the Court was
rejected by the United States Senate in 1937.  But although
Roosevelt lost that battle, he eventually won the war by serving
three full terms as President and appointing eight of the nine
members of the Court.  This simply shows that there is a wrong
way and a right way to go about putting a popular imprint on the
judiciary.

The framers of the United States Constitution came up with two
quite original ideas -- the first was the idea of a chief executive
who was not responsible to the legislature, as Chief Executives
are under the parliamentary system.  The second was the idea of
an independent judiciary with the authority to declare laws passed
by Congress unconstitutional.  The first idea -- a President not
responsible to Congress -- has not been widely copied by other
nations in the western world when they have come to review their
systems of government.  But the second idea -- that of an
independent judiciary with the authority to finally interpret a
written constitution - - has caught on with many other nations,
particularly since the end of the Second World War.  It is one of
the crown jewels of our system of government today.

Change is the law of life, and the judiciary will have to change to
meet the challenges which will face it in the future.  But the
independence of the federal judiciary is essential to its proper
functioning and must be retained.