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Introduction

This year marks my tenth occasion as Chief Justice to issue an annual report on the federal judiciary. Since Chief Justice Warren Burger began the tradition, this year-end report has served as a valuable way to speak to Congress, the Executive branch, the Judiciary itself, and the public at large. Over the years I have noticed how some issues reappear while others mark a new direction or watershed. This year we have seen both the return of old issues and the emergence of new ones.

The Third Branch has long stood as a powerful example of the way in which a properly functioning legal institution in a democracy can work - - when there are three separate, independent, co-equal, interactive branches of government. It is a separateness that, as James Madison noted, is "essential to the preservation of liberty," and as Montesquieu stressed, is required, because "there is no liberty if the power of judging be not separated from the legislative and executive powers."

Last year I highlighted the relationship between the federal judiciary and Congress and this year I return to this theme. The past year's events make this an easy choice for a leitmotif again. Our nation's Founders ensured judicial independence through constitutional provisions that grant federal judges life tenure during good behavior and protect members of the federal judiciary from reductions in compensation. But the drafters of the Constitution also were careful to secure an equally important interdependence and interaction among the branches.

The Constitution places the independent judiciary it creates within a democratic government that is ultimately accountable to the people. One of the challenges of American government is to preserve the legitimate independence of the judicial function while recognizing the role Congress must play in determining how the judiciary functions. The Constitution gives Congress authority to determine the size, jurisdiction, and structure of the judicial branch, the level at which it will be funded, and, within limits, the basic procedural rules the courts apply. Congress, though, has historically recognized that close consultation with the judiciary is a vital ingredient to ensure appropriate exercise of these responsibilities. Naturally, Congress and the courts view these matters from different perspectives, but those differences, as often as not, result in a sort of Hegelian synthesis which is better than either perspective standing alone. Over the last twenty years, four statutes exemplify Congress' increasing interest in judicial administration: the Speedy Trial Act (1974); the Judicial Conduct and Disability Act (1980); the Sentencing Reform Act (1984); and the Civil Justice Reform Act (1990). Some have criticized Congress for becoming involved in these areas; others view the legislation as an appropriate exercise in oversight.

At present there are two issues of concern to the judiciary which illustrate this often creative tension between Congress and the courts. The first is the current governmental "shutdown" because of the inability of Congress and the President to agree on appropriation bills. It would be a mistake to regard this dispute as some sort of Washington- based turf battle. Important questions of policy are involved, and since Congress and the President are both part of the law-making process it is understandable why each maneuvers to have its own view prevail.

But the judiciary is not part of the law-making process, and nothing in the judiciary's budget involves any dispute of principle between Congress and the President. Because of this, I have requested both the House and the Senate to separate the judiciary's budget from the comprehensive appropriation for Commerce, Justice, State, and the Judiciary, of which it is traditionally a part. There is simply no reason for depriving the public of any part of the function which the judicial branch performs because of disputes between the executive and legislative branches with respect to other agencies included in the larger appropriation bill.

The second issue arises because of the plan of Senator Charles Grassley, Chairman of the Senate Judiciary Subcommittee on Administrative Oversight and the Courts, to send questionnaires to all judges asking about the amount of time they devote to judicial and related tasks. There can be no doubt that answers to some form of such questions could aid Congress in making decisions about judicial salaries, permitted outside income from teaching, creating new judgeships, and filling existing vacancies. There can also be no doubt that the subject matter of the questions and the detail required for answering them could amount to an unwarranted and ill-considered effort to micro-manage the work of the federal judiciary. We must hope that the Committee's inquiries are designed to obtain information which is the legitimate prerogative of Congress without trenching on judicial independence.

During my ten-year tenure as Chief Justice, I have seen the continuing cultivation of a positive relationship. Congress has consistently balanced economic, practical, political, and constitutional considerations. Since its inception, Congress has cooperated with the Judicial Conference of the United States, the judiciary's policy-making body, and the Administrative Office of the United States Courts. Congress has also benefitted from the research of the Federal Judicial Center in a variety of policy areas. The forging of an effective working relationship with Congress has occurred when the federal bench simultaneously has maintained its independence and impartiality while participating in a suitable manner. As an example, from 1985 to 1995, the total judiciary budget has grown by 180 percent due to the support of Congress.

Examples of accountability include the recent General Accounting Office Report on the federal judiciary. The Report, among other things, reviews the relationship between the Administrative Office and the Federal Judicial Center. It reaches positive conclusions about the continued independence of the Administrative Office and the Federal Judicial Center, concluding that there is little or no duplication of work between the two agencies, and thus no cost savings to be had in merging them. This type of inquiry is entirely legitimate, appropriate, and I hope it will continue to be used in a responsible fashion. I am confident that such examination will not only reveal the value of the work of agencies such as the Federal Judicial Center and the Administrative Office, but will reinforce the continued need for independence and strong financial support from Congress.

Other old pressures have resurfaced. In one of Chief Justice Burger's last year-end reports he drew attention to the critical problem posed by inflation shrinking judges' compensation. Although a Quadrennial Commission on Executive, Legislative and Judicial Salaries had been established to address the problem of compensation, its recommendations have fallen victim to political pressures. The problem then, continues to be a problem now; unless a solution is found to deal adequately with the issue of judicial salary erosion, it will be difficult to attract outstanding lawyers to the bench and retain them.

To resolve this type of financial strain in the face of dwindling resources requires cooperation. Similarly, I think it is important that appropriate representatives of the Congress and the judiciary sit down together to discuss and evaluate other current challenges facing the legal system. Renewed cooperation such as the upcoming Three Branch Conference, where we can gather in small groups to focus on specific issues, is a welcome forum.

A recent example of how the process of cooperation should work involved the discussion of courthouse construction. Over the last few decades, the judiciary began to outgrow the courthouses built primarily in the 1930's. This is a complicated process, involving the judiciary, which has a need for space, the General Services Administration, which has a large and complicated building program to manage, and Congress, whose members are interested in ensuring that the courts in their home states are properly served and that their constituents share in the economic benefits of construction. In response to criticisms, the judiciary prioritized its needs using objective criteria such as the amount previously expended, the need for courtrooms, security risks, leasing pressures and the number of years of occupancy strain.

Such examples of cooperative relations whereby the judiciary sets its own priorities in order to aid the Congress in dispensing scarce resources is why I have supported the process of long-range planning. I am hopeful that Congress will give serious study and consideration to the Long Range Plan for the Federal Courts, which the Judicial Conference is currently in the process of approving. This plan was developed to help guide future administrative action and policy development by the Conference and other judicial branch authorities. Among its commentary are a number of sections relating specifically to Congress' oversight role and the continuing interaction of, and communication among, the three branches. While I do not expect every part of this plan to become national policy, I believe it is a valuable document that offers a framework for the interests of the federal judiciary, and provides a road map for serious study from which the other branches could certainly benefit. As underscored by the plan, the courts, both federal and state, require adequate resources to accommodate the impact of new legislation.

A continuing emerging issue raised by the Long Range Plan is caseload growth. All judges, lawyers, and even many casual observers of the judicial system, are aware of the increase in filings in the various federal courts of appeals. There are several different ways to try to solve this problem. One is to expand the number of judges who hear appeals -- either by increasing the number of judges on each circuit, or creating some hybrid court between the present trial courts and courts of appeals. Another approach is to begin limiting the appeal as of right from the trial court to the court of appeals further than it is already limited. Others have advocated splitting circuits, or a unified court of appeals. As is to be expected, each solution has generated debate. The Judicial Conference is strongly opposed to unlimited expansion of the federal judiciary, because an appellate court that is too large often becomes unwieldy, and may have difficulty maintaining consistency of precedent. Carefully controlled growth is required in this area. Whether, or how, to attempt to circumscribe the appeal as of right is a matter for debate and one which I hope will be the source of study and robust discussion.

II. The Year in Review

A. The Federal Courts' Caseload

The most significant factor in the Federal Courts' caseload in 1995 is that filings increased in the 12 regional courts of appeals, the district courts, and the bankruptcy courts. Overall, district court filings climbed 4 percent as civil filings[1] increased 5 percent and criminal filings[2] remained stable. United States bankruptcy court filings[3] increased 6 percent, reversing two years of decreasing filings that, in turn, had followed eight years of sustained growth. After declining 4 percent in 1994, appeals filings

[1] Civil case filings in the U.S. district courts increased from 236,400 to 248,300, a 5 percent increase. This rise resulted mostly from increases in private cases involving federal question litigation. Federal question litigation rose 13 percent, primarily due to personal injury product liability cases which nearly doubled. This sizeable increase was due to breast implant cases which were removed from state to federal courts following the bankruptcy of Dow Corning. Other areas of federal question litigation that increased were civil rights filings which rose 13 percent and prisoner petitions which rose 9 percent. In contrast, diversity of citizenship cases declined 6 percent, mostly as a result of a 30 percent drop in personal injury/product liability cases. Cases involving the U.S. government as plaintiff or defendant dropped 5 percent, primarily as a result of decreases in cases brought by the U.S. government to recover on defaulted student loans (down 13 percent) and overpayment of veterans' benefits (down 62 percent).

[2] Criminal cases in the U.S. district courts remained stable in 1995, rising from 45,500 to 45,800, an increase of approximately 1 percent. The overall increase in criminal filings would have been greater but drunk driving and traffic violations, usually misdemeanors, fell 26 percent. Drug filings were stable, rising only 1 percent and remained at 25 percent of all criminal case filings. Immigration offenses were 53 percent higher in 1995, and weapons and firearms filings rose 16 percent.

[3] For the first time in 2 years, filings increased almost 6 percent in the U.S. bankruptcy courts, rising from 838,000 to 883,000. This was primarily due to increases in Chapter 7 and 13 cases. Chapter 7 filings, which account for over 68 percent of all bankruptcy filings, rose 5 percent and Chapter 13 filings, which account for 31 percent of all bankruptcy filings, rose 9 percent. Filings of Chapters 11 and 12 continued to drop at 21 and 5 percent, respectively.

[4] Returning to the historical trend, the number of appeals filed in the 12 regional courts of appeals rose in 1995 by almost 4 percent from 48,000 to 50,000. Original proceedings, bankruptcy and civil appeals all experienced increases in filings, up 27, 21 and 6 percent, respectively. Criminal appeals declined 5 percent, with drug-related appeals experiencing the most notable drop.
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B. The Supreme Court of the United States

IN MEMORIAM

On June 25, 1995, the death of Chief Justice Warren Burger brought to an end a memorable judicial career. Chief Justice Burger presided over the Supreme Court for seventeen years, authoring important opinions, lending his leadership to questions of law and judicial policy, and playing an important part in the creation of various institutions such as the National Center for State Courts, the Institute for Court Management, and the state-federal judicial councils. He worked tirelessly to improve the agencies of judicial administration, broaden their programs, and implement policies such as the drafting of the standards of criminal justice for the American Bar Association. All these efforts contributed mightily to the improved functioning of the judiciary.

C. Caseload Statistics

The total number of case filings in the Supreme Court again increased, although less dramatically than in the previous Term, and the number of cases heard and decided on the merits declined. During the 1994 Term, case filings totalled 6,996, up from 6,897 the previous Term, a 1.4 percent increase. Filings in the Court's in forma pauperis docket also increased slightly -- up 1.3 percent, from 4,796 to 4,858. The Court's paid docket experienced a jump of 38 cases from the previous Term, reaching 2,138. It was an increase identical to that from the 1993 Term. The Court decided 94 cases in the 1994 Term, compared to 99 the previous Term. Signed opinions accompanied 82 of the decisions, a drop of two from the 1993 Term. Again last Term, there were no cases set for reargument.

III. The Administrative Office of the United States Courts

The Administrative Office, established in 1939, enables the judiciary to conduct its own affairs and carry out its responsibilities for the proper administration of justice. Among its responsibilities, the Judicial Conference of the United States is charged with surveying the condition of business in the courts and making recommendations to promote uniformity of management procedures and expeditious conduct of court business. With assistance from its standing committees, the Judicial Conference oversees the programs and operations of the judiciary.

The Director of the Administrative Office is supervised by the Judicial Conference of the United States, and the Administrative Office provides the principal staff work that enables the Conference to carry out its policymaking and oversight functions. The Administrative Office plays a pivotal role in federal court administration, and the breadth of the agency's functions is evidenced by a solid record of accomplishments, e.g. monitoring judiciary operations and programs, collecting and analyzing data, allocating resources, conducting studies and evaluations, identifying opportunities for cost reductions and efficiencies, designing new systems, providing technical assistance and advice to the courts, monitoring legislative proposals that would affect the judiciary, and fostering communications with the other branches of government and the public.

The judicial councils of the circuits, also created in 1939, are granted authority to make all necessary and appropriate orders for the effective and expeditious administration of justice within their circuits, and the judicial councils, among other things, consider allegations of judicial misconduct or disability under 28 U.S.C. 372(c). The courts themselves have substantial responsibility for their own administration, and each individual judge is responsible for the management of his or her cases. These complementary elements of the judiciary's uniquely effective governance structure support the fundamental principle of judicial independence.

The Administrative Office continues to do an admirable job of providing leadership and support to the federal courts despite severe budget constraints. While the courts' workload and staff have expanded, so has the demand for services from the Administrative Office. The budget increases for the Administrative Office have not kept pace with the greater expansion of the judiciary; this imbalance has intensified in recent years. The agency's appropriation has grown only 6 percent since 1992 -- not nearly enough even to cover inflation -- while the courts' budget increased 22 percent. The outlook for 1996 and beyond does not promise financial relief.

Of particular note among the many achievements this year, the Administrative Office: conducted Economy Subcommittee-sponsored studies to control costs; assisted in the completion of the Long Range Plan for the Federal Courts; coordinated the judiciary's communications with the 104th Congress on legislation and appropriation matters affecting the federal courts; expanded the new Court Personnel System and the Cost Control Monitoring System; began conducting program administration reviews of federal defender organizations; installed the Data Communications Network at 83 court sites; assumed direct responsibility for the automation training and support centers in Arizona and Texas and for the Central Violations Bureau; sponsored a Summit on Supervision of Offenders; promulgated new quality standards for pretrial services, petty offense presentence investigation, and post-sentence investigation reports; developed information for the judicial councils of the circuits on bankruptcy appellate panels; issued standards for the conduct of court reviews; improved automated statistical reporting; and took numerous steps to reduce the judiciary's space costs.

1995 marked the tenth anniversary of L. Ralph Mecham's tenure as Director of the Administrative Office, and I join many others throughout the judicial branch in recognizing this milestone of service and leadership.

IV. The Federal Judicial Center

In March, Judge William Schwarzer concluded five years of leadership of the Center when he reached the mandatory retirement age for the Center's Director. During his stewardship the Center added to its reputation as a nationally recognized research institution whose studies were marked by excellence. I have every expectation that Judge Rya Zobel, of the United States District Court for the District of Massachusetts, as the Center's seventh director, will not only continue this tradition, but enhance it.

In an ever more challenging environment, the Federal Judicial Center continues to carry out its statutory mandate -- to educate and train judges and court staff, conduct research concerning the operation of the courts and assist the Judicial Conference and its committees with analysis and evaluation of court procedures.

In 1995, the Center provided orientation seminars for almost 200 federal judges and continuing judicial education programs to about 2,500 judges. The topics ranged in variety from the intricacies of DNA, to the changing law of sentencing, to the use of alternative procedures for resolving litigation. The Center responded to an imminent increase in the number of trials under federal death penalty legislation by offering trial judges advice and assistance, began a project to help federal courts manage the growing number of cases filed by prisoners and others without lawyers, and published manuals to help judges try complex cases, often with scientific evidence.

Center educational programs reached nearly 20,000 supporting staff of the federal courts system including probation and pretrial services officers, employees of the clerks' offices, and others. These programs reveal the mix of administrative and management issues facing the federal judicial system, such as instructing probation officers on the supervision of mentally ill or addicted offenders, stressing the importance of customer service in dealing with litigants, lawyers, and the public, and teaching the importance of security and safety.

Because of the Center's growing reliance on alternative educational methods, four out of every five court support staff who participate in Center education do so in programs held at the work site, saving travel dollars. Center video programs are major instruments for orientation of new judges and court personnel. Interactive instructional programs let deputy clerks learn about federal procedural rules on their desk top computers. On-line computer conferences instruct judges and staff on how to be better managers, and let them exchange experiences with colleagues across the country without leaving their offices.

The judiciary, the bar, and the Congress are reassessing many of the procedural rules that determine how federal courts operate. In 1995, Center analyses informed the committees of the Judicial Conference and relevant congressional committees of the actual operations of rules governing imposition of attorney sanctions, class actions, pretrial discovery, jury selection, and fee shifting.

The Center will be an important contributor in helping the judiciary learn to do more with less, without sacrificing quality. Independent studies will be required to evaluate the effects of new projects, demands for continuing educational programs in complex areas of the law, and Center's support for Judicial Conference Committees will increase as more becomes expected from the judiciary. I am confident that the Center, under Judge Zobel, will be able to meet these challenges and hope that Congress will continue to support the Center with all the resources it needs.

V. United States Sentencing Commission

After an extended tour of eight years as chairman of the United States Sentencing Commission, Judge William W. Wilkins, Jr., from the United States Court of Appeals for the Fourth Circuit, was replaced by Richard P. Conaboy, a district court judge from the Middle District of Pennsylvania. Judge Wilkins should be commended for his skillful guidance of the Commission on the challenging questions and issues raised in the sentencing arena.

Day-to-day the Commission is focused on amending guidelines; writing statutorily required reports; and facilitating a working relationship with the executive, legislative and judicial branches. The guidelines have been under constant review since their enactment and last year 25 of 27 amendments submitted to Congress became effective on November 1. Judge Conaboy has promised a plan of continuity, assessment, simplification, and management review during his tenure.

Conclusion

Justice Oliver Wendell Holmes observed, albeit in dissent, that "[t]he great ordinances of the Constitution do not establish and divide fields of black and white." The subjects of current interest in which both Congress and the judiciary have a role to play illustrate the truth of his comment. No one doubts that it is Congress, and not the judiciary, which makes laws. No one doubts that it is the judiciary, and not Congress, which decides cases. But in the great gray area between these core functions, there must be give and take in order to work out common sense solutions to recognized problems.

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