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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
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
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 increased 5 percent and
criminal filings remained stable. United States bankruptcy court
filings 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
 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).
 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
 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.
 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.
B. The Supreme Court of the United States
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
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
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
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
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.
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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