SHADY ACTION FROM THE JUDICIAL COUNCIL: The Judicial Council Legislates From The Shadow Docket: The Chief Justice and his associates target only one type of forum shopping in response to political criticism through a secret policy that will not be released for months.
On Tuesday afternoon, a reporter from the Washington Post called to ask me about a new policy from the Judicial Council designed to limit forum shopping. I inquired if she had a copy of the policy. She said no, but there was a press release. I was tempted to reply, “Democracy dies in darkness.” Still, all we have is a press release. . . .
How will this policy operate? When does it actually go into effect? How are litigants to know what types of remedies will trigger the policy? Who the hell knows? Not even the district court judges have seen a copy of the policy. They learned about it when we did. Courthouse News reported that the policy will be circulated to judges later this week, and the chief judges will “have to meet to discuss the change.” You think?
After years of complaints about the secretive “shadow” docket, the Chief Justice of the United States, the Chief Judges of the Circuit Courts, and various District Court judges, have the temerity to announce a secret policy that no one can see that will fundamentally change the way litigation operates in federal courts. Maybe it is posted on top of a tall column, like in Nero’s day. Worse still, this policy change was plainly motivated by the same critics who harp about the shadow docket. The courts should resist the political currents, but here, the Judicial Council has kowtowed to Senators Schumer and Whitehouse, and some scholars. . . . As a general matter, the Judicial Council has remained silent about serious abuses of power (Judge Moore’s stealth impeachment of Judge Newman and Judge Sullivan’s sitting on the judicial selection committee). Meanwhile, the Judicial Council caves into criticism from Schumer and others, without even the courtesy of seeking comments from the District Court Judges nationwide. This is a body that operates in the shadows, and lacks fortitude.
The Chief Justice reminds me of what Teddy Roosevelt said about Holmes: I could carve a better backbone out of a banana.
Plus: “Fourth, the impetus of this policy was perceived abuses of the patent system. (Speaking of patents, I’m glad Chief Justice Roberts and Chief Judge Kimberly Moore found something productive to work on together, as Judge Pauline Newman remains trapped in Article III purgatory).”