The Judicial Administrative Power

Article III of the Constitution confines the “judicial Power of the United States” to the adjudication of “cases” and “controversies.” In practice, however, federal judges exercise control over, and spend their scarce time on, a wide range of activities that traverse far beyond any individual adjudication. Typically classified as a form of “judicial administration,” these activities span everything from promulgating the rules of the various federal courts to overseeing federal pretrial detention services or choosing federal public defenders.

This Article describes how judges became involved in these nonadjudicatory Article III activities, clarifies the activities’ relationship to Article III adjudication, and considers the role the activities play for the modern federal judiciary. When judges participate in judicial administration, they are ordinarily performing one of three actions: they are rulemaking, they are managing, and they are communicating. These categories are imperfect. But they provide a useful backdrop against which to demonstrate the federal judiciary’s considerable administrative power, which ranges across an array of domains and affects the private litigants who come before the federal courts, the rights of the judges and judicial employees who run those courts, and the public more generally.

Based on these observations, we argue that the judicial administrative power has profound consequences that carry us far beyond baseline questions of whether or to what extent judicial administration facilitates or improves federal adjudication. Judicial administration upends core notions of what makes the judiciary the judiciary. By freeing the judiciary from the constraints of an individual case or controversy, judicial administration shuffles the means through which certain rights-related problems reach the federal judiciary, empowers the judiciary to proactively solve problems of its own choosing, and alters the considerations viewed as appropriate for judges to weigh when their decisions affect people’s rights. And, from the perspective of the coordinate branches, the judicial administrative power similarly unsettles traditional notions of the role of the judiciary in interbranch decision-making. Judicial administration facilitates, aggregates, and channels judicial expertise, putting it to use throughout the whole of our government and making the judiciary a more forceful advocate for its own interests. Viewed through a separation of powers lens, judicial administration blurs the lines between legislative, administrative, and adjudicatory forms of governance and works to the detriment of certain higher-level values like democratic accountability, transparency, and the rule of law.

We conclude with a set of proposed reforms that would respond to these challenges by treating the judicial administrative power as administrative first and judicial second—and not the other way around. First, Congress should emulate the institutional design of the Sentencing Commission and assign certain judicial administrative responsibilities to new independent agencies. Second, generally applicable good governance provisions—like the Freedom of Information Act and some Administrative Procedure Act requirements—should be extended to at least some extent to a variety of judicial administrative acts. Finally, Congress should reduce the Chief Justice’s singularly powerful role in judicial administration by reassigning many of the Chief Justice’s administrative duties to a more diverse group of Article III judges and judicial stakeholders