28 Third Branch 1 (1996)

handle is hein.journals/thirdbran28 and id is 1 raw text is: THE


of tile
VoL 28
January 1996
Special Issue

Chief Justice Recaps 1005 in Year-end Report

Due to an error in the January 1996
issue of The Third Branch, the folloz-
ing is a reprint of Chief Justice William
H. Rehnquist's 1996 Year-end Report
on the Federal Judiciary.
This year marks my tenth occa-
sion as Chief Justice to issue an an-
nual report on the federal judiciary.
Since Chief Justice Warren Burger
began the tradition, this year-end re-
port 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 water-shed. 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 sepa-
rate, independent, co-equal, interac-
tive branches of government. It is a
separateness that, as James Madison
noted, is essential to the preserva-
tion 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 rela-

tionship between the federal judi-
ciary 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 Found-
ers 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 inde-
pendent judiciary it creates within a
democratic government that is ulti-
mately accountable to the people.
One of the challenges of American
government is to preserve the legiti-
mate 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 ju-
dicial branch, the level at which it
will be funded, and, within limits,
the basic procedural rules the courts
apply. Congress, though, has histori-
cally recognized that close consulta-
tion with the judiciary is a vital in-
gredient 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' in-
creasing interest in judicial adminis-
tration: the Speedy Trial Act (1974);
the Judicial Conduct and Disability
Act (1980); the Sentencing Reform
Act (1984); and the Civil Justice Re-
form Act (1990). Some have criticized
Congress for becoming involved in
these areas; others view the legisla-
tion as an appropriate exercise in
At present there are two issues of
concern to the judiciary which illus-
trate this often creative tension be-
tween 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 Con-
gress and the President are both
part of the law-making process it
is understandable why each maneu-
vers to have its own view prevail.
But the judiciary is not part of the
See Report on page 2

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