The Yale Law Journal


Interbranch Communication: A Note on “Article III En Banc”

17 Oct 2007

The comment Article III En Banc is a welcome sign of increasing attention to the understudied topic of federal judicial administration. The comment alludes briefly to a project designed almost twenty years ago by the Governance Institute, a small Washington, D.C., think tank, “to increase communication between the courts and Congress and improve statutory drafting.” Courts of appeals transmit opinions that point out possible technical problems in statutes to Congress for its information and for whatever action it wishes to take. This mechanism of “statutory housekeeping,” in Justice Ruth Bader Ginsburg’s felicitous phrase, is a way for circuit courts to inform Congress about possible grammatical and drafting errors and other litigation-prompting ambiguities in federal statutes. The project, implemented first on a pilot basis in the early 1990s, has had the full support and active encouragement of congressional leaders in both chambers. Indeed, when project activity waned somewhat in recent years, the legislative drafters and the bipartisan Judiciary Committee leadership in both houses called for its reinvigoration, a work now in progress, as we describe below. The comment, however, tells the reader nothing of this project's continuing vitality. Thus, this response highlights congressional support for the initiative and shows that this project is, in fact, an island of interbranch cooperation in a sea of sometimes choppy interbranch confrontation.

How the Project Evolved

The mechanism took its cue from a not always appreciated phenomenon highlighted by Justice Ginsburg: “Most of the work currently done by the federal courts, including the Supreme Court, involves not grand constitutional principles, but the interpretation and application of laws passed by Congress, laws that are sometimes ambiguous or obscure.” In 1988, then-Professor Robert A. Katzmann and Judge Frank M. Coffin examined what happened in Congress after the Court issued statutory opinions that flagged problems in grammar, apparent “glitches,” ambiguous terminology and omission of key details, such as effective dates. Katzmann, then-president of the Governance Institute, and Coffin, then-chair of the U.S. Judicial Conference Committee on the Judicial Branch, acted at the invitation of judges of the U.S. Court of Appeals for the District of Columbia Circuit. The study, in brief, explored legislative awareness of these opinions. The conclusion: committee staff, while largely aware of decisions on broad, policy-oriented issues of statutory interpretation or when a losing party seeks legislative redress, are generally uninformed about judicial opinions concerning more technical aspects of the statutes under the jurisdiction of their committees.

Working with legislators and their staffs, Judge Coffin and Robert Katzmann, with the counsel of Governance Institute Distinguished Fellow and former House member, Robert W. Kastenmeier, developed a pilot project in the early nineties, starting with the D.C. Circuit’s court of appeals and the House of Representatives, to transmit relevant statutory opinions from that court to the Congress. After the pilot project received the endorsements of Chief Justice Rehnquist in 1993, and, two years later, of the Judicial Conference, it gained the participation of over half the federal courts of appeals. But the project had not been fully institutionalized within the judiciary, and participation declined after Judge Katzmann’s 1999 appointment to the U.S. Court of Appeals for the Second Circuit. Responding to legislative urgings that more courts of appeals participate, Russell Wheeler, current president of the Governance Institute, worked in 2006 and 2007 with the Judiciary Committees, the legislative counsels, and the Judicial Branch Committee, which has jurisdiction over the project. In July 2007, Judge D. Brock Hornby and Judge Katzmann, chair and member, respectively, of the Judicial Branch Committee, and James C. Duff, Director of the Administrative Office of the U.S. Courts, wrote to all circuit judges about Congress’s receptivity to receiving opinions pointing out possible drafting flaws and announced that the Administrative Office would make a staffing commitment to the judiciary’s component of the project.

How the Project Works

The participating courts of appeals either ask the clerk of court or staff attorney to identify appropriate opinions, or leave the task to each three-judge panel. The clerk of court sends the selected opinion without comment, in the nature of an executive communication, to the Speaker of the House and the President Pro Tempore of the Senate (“Enclosed please find an opinion of the United States Courts of Appeals for XXX Circuit, which may be of interest to the Congress.”). The reason for this protocol—not commenting substantively on the opinion in the transmission letter—is the norm that judges speak on matters under litigation through their opinions. Transmitting an opinion to Congress—an opinion that legislative staffers could find through normal legal research if they had more time—is different from elaborating on the opinion extrajudicially. It was attention to such subtleties of interbranch relations that helps explain the give-and-take necessary to bring the project into existence.

The clerk of court sends copies to the Judiciary Committees and to the House and Senate Offices of Legislative Counsel. The Legislative Counsel are responsible for analyzing the drafting issues identified in each opinion and sending it with an explanatory note to the committee with jurisdiction over the opinion’s subject matter. The committees are free to do whatever they wish. From the outset, however, the project’s creators cautioned that its main objective was not to produce legislative change but rather to inform busy legislators and their staffs of possible technical problems in statutes. As Robert Katzmann said in 1993, “[t]hese opinions are not being sent with the objective of getting Congress to do anything in particular, but to give Congress information about how courts interpret its work.”

Legislative Receptivity

The mechanism has served to promote interbranch cooperation in a small way, and Congress has embraced the concept from the start. In May 1992, House Speaker Thomas S. Foley, Majority Leader Richard A. Gephardt, and Republican Leader Robert H. Michel said, “We welcome this Court’s experimental initiative . . . [and] believe that the program would be most useful if it were applied to all circuits and both houses of Congress.” The Governance Institute secured the participation of the Senate later in 1992, when Majority Leader George Mitchell, Republican Leader Robert Dole, and President Pro Tempore Robert C. Byrd said that the project could be “a thoughtful and productive step in improving communications between the judiciary and the Congress to the benefit of both branches” and “hope[d] . . . that the identification and transmittal of such opinions to the appropriate committees will furnish information helpful to Congress’s efforts to improve its communication of legislative intent in statutory drafting.” The following year, the Joint Committee on the Organization of Congress endorsed the project as well.

In 2001, with the project out of the pilot stage, the chair and ranking member of the Senate Judiciary Committee, Orrin Hatch and Patrick Leahy, said that the transmitted opinions have “supplied pertinent information to Congress that it might not otherwise receive in a direct and timely manner about statutes that pose issues of grammar and drafting, that require the court to fill in a gap, or that present linguistic ambiguities or ambiguities arising from having to interpret related statutes . . . . If the project is to realize its full potential value to the Senate, we believe that all of the courts of appeals should participate.”

And in 2007, the chairs and ranking members of the Judiciary Committees in both chambers reiterated that support. Senate Judiciary Chair Leahy and Ranking Member Arlen Specter hoped “that all courts of appeals will participate in this project, so as to provide the maximum benefit to the Congress, and, in turn, perhaps reduce problematic statutory languages with which the courts must deal.” House Judiciary Committee Chair John Conyers, Jr., and ranking member Lamar Smith urged “all courts of appeal [to] participate” and asked the House Legislative Counsel to “keep us informed of the project’s course and let us know what might be done to promote its effectiveness.”

Judge Hornby observed recently: “By responding to this legislative initiative, courts are partners in interbranch cooperation in ways that promote mutual understanding to the benefit of both branches.” Similarly, Administrative Office Director Duff stressed that “Congress itself seeks the Judiciary’s assistance in encouraging judges to share appellate opinions that bear upon its work,” and to facilitate that assistance, he asked the Administrative Office’s General Counsel to track the number of opinions sent and consult periodically with the legislative counsels and the appellate courts as to whether the project needs adjustment. Since the July 19, 2007, memorandum announcing the project’s revitalization, clerks of court for two courts of appeals have already transmitted opinions to Congress.

Reasons for Consistent Legislative Support

The statutory housekeeping mechanism provides a neutral means for interbranch communications and facilitates institutional learning and understanding. Congress may respond to an opinion officially, or not, as it deems appropriate and practical. But perhaps more importantly, the legislative branch has a better appreciation of how courts interpret its work, and the courts have a better sense of how the legislative branch digests its opinions. Having seen how courts apply statutory language in specific contexts, Congress can be more attuned to drafting issues that result in litigation. Legislative Counsel Frank Burk, head of the Senate Office of Legislative Counsel in the 1990s, commented that the project “has helped stimulate a comprehensive two-year review of the basic rules of legislative drafting” by his office; that the office “has developed a drafting manual that compiles the drafting rules and conventions identified during the review,” and that cases transmitted under the project are used as teaching devices for beginning staff attorneys. James Fransen, Burk’s successor, said earlier this year that “it is useful for us if we can identify ways we can improve clarity and eliminate ambiguity.” House Legislative Counsel M. Pope Barrow agreed, remarking also in 2007, that the “opinions of judges would be especially useful if they can identify persistent patterns in drafting errors.” What Deputy Legislative Counsel, M. Douglass Bellis, who has overseen the project in the House for many years, said a decade ago, holds force today: “The greater the communication between the judicial and legislative branches of government, the more the courts and Congress will grow to understand each other and the more the public can examine what its agents are doing on its behalf.”

In any event, to repeat the point stressed earlier, the project’s effectiveness cannot be judged in terms of formal legislative action. The fact that Congress does not enact remedial legislation does not equate to “ignoring” the transmitted opinions. Sometimes ambiguities are the price of legislative compromise to secure enactment of the statute under review. And, as Bellis observed, Congress may do nothing because it determines that the “Circuit is making good decisions in hard cases” and thus leaves certain judicial opinions undisturbed: the objective of the project “is not to find ‘mistakes’ that Congress made and should correct. . . . [but] to open communication so that Congress can learn how the courts are reacting to and interpreting statutes.” Such enhanced judicial-legislative communication can only promote the more effective functioning of our governmental institutions.

Robert A. Katzmann is a Judge on the U.S. Court of Appeals for the Second Circuit. Russell R. Wheeler is President of the Governance Institute.

Preferred Citation: Robert A. Katzmann & Russell R. Wheeler, Interbranch Communication: A Note on “Article III En Banc,” 117 Yale L.J. Pocket Part 110 (2007),