Editor's Note: Below are excerpts of remarks made by Chief Justice William H. Rehnquist before the annual meeting
of the American Law Institute, in Washington, D.C.,
I am pleased to be here with you at this opening session of the 1998 meeting, the 75th anniversary of the American Law Institute (ALI). The institute's work of synthesizing new judicial decisions and statutes into the broader corpus of the law is an important and difficult task. In that regard, if some of the pending legislation in the Second Session of the 105th Congress is passed, it is fairly clear that the ALI will be busy in the years to come. Indeed, several bills would, if enacted, both add to the work of the institute and of the federal judiciary itself.
In my annual report for last year, I criticized the Senate for moving too slowly in the filling of vacancies on the federal bench. This criticism received considerable public attention. I also criticized Congress and the President for their propensity to enact more and more legislation which brings more and more cases into the federal court system. This criticism received virtually no public attention. And yet the two are closely related: we need vacancies filled to deal with the cases arising under existing laws, but if Congress enacts, and the President signs, new laws allowing more cases to be brought into the federal courts, just filling the vacancies will not be enough. We will need additional judgeships.
Night Watchman Theory
If we look at the way this sort of legislation has developed in the course of our history, we see that for the first century of our nation the federal government epitomized what one of my college political science professors called the "night watchman" theory of the state. The government provided for the common defense in a rather halfhearted way, collected tariff revenues, delivered the mail, and left pretty much everything else to the states. So far as the lower federal courts were concerned, Congress did not even grant them federal question jurisdiction until 1875. Before that, these courts dealt only with cases based on diversity of citizenship or admiralty.The Industrial Revolution changed all of this, and with the enactment of the Interstate Commerce Act in 1887 and the Sherman Act in 1890, Congress began regulating commercial activity. The sweep of congressional regulation has expanded ever since. Some of the laws were in aid of existing state regulation -- the Lindbergh Act, for example, which established federal jurisdiction if a kidnapper crossed state lines. Some were federal grants-in-aid with strings attached; they had a regulatory effect, but they created no new business for the federal courts. But during the last half century, laws passed by Congress have created more and more claims that must be heard in federal courts. There was a time when the life of a federal judge was a rather leisurely one, and additions to the business of federal courts could engender no justifiable complaint. But those days are long gone.
Several years ago, the Judicial Conference of the United States, after much study, adopted the Long Range Plan for the Federal Courts for the next century. Recommendation 1 of the plan says, "Congress should commit itself to conserving the federal courts as a distinctive judicial forum of limited jurisdiction in our system of federalism. Civil and criminal jurisdiction should be assigned to the federal courts only to further clearly defined and justified national interests, leaving to the state courts the responsibility for adjudicating all other matters."
In accordance with this principle, the plan recommends that federal courts should only have criminal jurisdiction in five types of cases: "offenses against the federal government or its inherent interests; criminal activity with substantial multistate or international aspects; criminal activity involving complex commercial or institutional enterprises most effectively prosecuted using federal resources or expertise; serious, high-level or widespread state or local government corruption; criminal cases raising highly sensitive local issues."
Principle of Federalism
If we look at some recently passed federal legislation, and some currently pending legislation, we can see that it does not come close to meeting these criteria. There is, I hasten to say, no reason why Congress should slavishly follow the recommendations of the Judicial Conference. But the long range plan is based not simply on the preferences of federal judges, but on the traditional principle of federalism that has guided this country throughout its existence. It is a principle enunciated by Abraham Lincoln in the nineteenth century, and Dwight Eisenhower in the twentieth -- matters that can be adequately handled by states should be left to them, matters that cannot be so handled should be undertaken by the federal government. Reasonable minds will differ on how this very general maxim applies in a particular case, but the question which it implies should at least be asked.Pending Juvenile Crime Bills
With this in mind, let us turn to the two juvenile crime bills presently pending before the House and Senate. These bills raise the same concerns because they contain nearly identical provisions. First, both bills eliminate the traditional preference for state prosecutions of juvenile defendants, particularly if the juvenile is to be prosecuted as an adult. Current law favors state prosecution unless the government certifies to the district court that (1) the state cannot or will not take jurisdiction; (2) the state's juvenile programs are inadequate; or (3) the offense is a violent crime or a drug-trafficking offense and there is a substantial federal interest involved in the case. Either of the juvenile crime bills presently before Congress would eviscerate this traditional deference to state prosecutions, thereby increasing substantially the potential workload of the federal judiciary.With regard to certain violent crimes or drug offenses, both bills authorize the prosecution of juveniles as adults if they are 14 years of age or (in the House version) if they are 13 and the Attorney General approves of the prosecution. In addition, the House bill lowers the age at which the government can seek the death penalty from 18 to 16. Whether these policies are wise ones is debatable, but what is not debatable is that, if implemented, they will significantly add to the caseload burdens of the federal judiciary.
Just last year, criminal case filings in federal courts reached 50,363 -- their highest level since 1933. Ending the preference for state prosecution and prosecuting juveniles as adults in federal courts would exacerbate the problem revealed by these numbers because adult criminal proceedings are far more time consuming than their juvenile counterparts. Also, because of the more formalized structure of adult proceedings, convictions of adults may be much more likely to be appealed. Death penalty cases would obviously add additional burdens to both district and circuit courts.
The juvenile crime bills are especially troubling because of the surrounding context. These bills, if enacted, would be the latest in a series of laws passed by Congress that have expanded the jurisdiction of the federal courts. Some of the more notable examples of this trend are the Anti-Car Theft Act of 1992, the Violence Against Women Act of 1994, the Freedom of Access to Clinic Entrances Act of 1994, the Child Support Recovery Act of 1992, the Animal Enterprise Protection Act of 1992, and the recent arson provisions added to Title 18 in 1994. I cannot say categorically that these bills do not pass the Lincoln-Eisenhower test, but one senses from the context in which they were enacted that the question of whether the states were doing an adequate job in this particular area was never seriously asked.
More Like France
If the ill effects from these bills were confined to the increase of the workload of the federal judiciary, they would still be of concern to judges and to the legal profession. But there is a much broader question involved. How much of the complex system of legal relationships in this country should be decided in Washington, and how much by state and local governments? We cannot go back to the nineteenth century, but do we want to move forward into the twenty-first century with the prospect that our system will look more and more like the French government, where even the most minor details are ordained by the national government in Paris? This is a question which should at least be asked, even if all of us would not answer it in the same way.