Courts Creating Courts: Problems of Judicial Institutional Self-Design

Abstract

With prospects for reform of the federal judiciary growing, a critical—but overlooked—issue is the extent to which judicial branch actors can and ought to be recipients of congressional grants of power to reshape the federal court system? Existing law recognizes limited discretion for judicial institutional self-design; judicial reform may introduce more substantial examples. Yet the underpinnings of the practice remain unexamined, both doctrinally and normatively. This Article fills that gap. Doctrinally, congressional delegation of power on Article III actors to create courts (and layers of judicial review) raises serious constitutional questions. First, the Constitution authorizes only Congress to create lower Article III courts and legislative courts. Second, the nondelegation doctrine may raise a separate hurdle, to extent that Congress conveys on the judiciary discretion that is not limited by an intelligible principle. Third, vesting judicial self-institutional control in Article III actors may conflict with Supreme Court precedent limiting the types of authority that Congress can delegate to the judiciary. Subconstitutionally, the statutory power and status of judicially-created tribunals are muddled: It is unclear under current law whether such tribunals have the powers to issue writs of mandamus, to issue local court rules, and to allow litigants to proceed in forma pauperis. These issues can and should be clarified by amending the relevant statutes. Beyond the doctrinal, there are several normative issues with empowering courts to create tribunals. Courts are ill-suited to make well-informed judgments about the desirability of a new tribunal. Moreover, the decision whether to create a new tribunal might involve displacing some of the jurisdiction of existing judges. It seems instead that administrative actors within the judiciary are better suited to such tasks than are courts.