The Supreme Court/The Supreme Court.iso/pc/wordperf/misc/2rulesda.za

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                       SUPREME COURT OF THE UNITED STATES


                         AMENDMENTS TO THE FEDERAL RULES
                               OF CIVIL PROCEDURE


                                [April 22, 1993]


  Statement of JUSTICE WHITE.  28 U. S. C. S2072 empowers the Supreme Court to
prescribe general rules of practice and procedure and rules of evidence for
cases in the federal courts, including proceedings before magistrates and courts
of appeals. (Ftnote. 1)  But the Court does not itself draft and            (Ftnote. 1)
initially propose these rules.  Section 2073 directs the Judicial Conference to
prescribe the procedures for proposing the rules mentioned in S2072.  The
Conference is authorized to appoint committees to propose such rules.  These
rules advisory committees are to be made up of members of the professional bar
and trial and appellate judges.  The Conference is also to appoint a standing
committee on rules of practice and evidence to review the recommendations of the
advisory committees and to recommend to the Conference such rules and amendments
to those rules "as may be necessary to maintain consistency and otherwise
promote the interest of justice."  S2073(b).  Any rules approved by the
Conference are transmitted to the Supreme Court, which in turn transmits any
rules "prescribed" pursuant to S2072 to the Congress.  Except as provided in
S2074(b), such rules become effective at a specified time unless Congress
otherwise provides.
  The members of the advisory and standing committees are carefully named by THE
CHIEF JUSTICE, and I am























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   1)  Section 2075 vests a similar power in the Court with respect to rules   1)
for the bankruptcy courts.2                           RULES OF CIVIL PROCEDURE

quite sure that these experienced judges and lawyers take their work very seri-
ously.  It is also quite evident that neither the standing committee nor the
Judicial Conference merely rubber stamps the proposals recommended to it.  It is
not at all rare that advisory committee proposals are returned to the
originating committee for further study.
  During my 31 years on the Court, the number of advisory committees has grown
as necessitated by statutory changes.  During that time, by my count at least,
on some 64 occasions we have "prescribed" and transmitted to Congress a new set
of rules or amendments to certain rules.  Some of the transmissions have been
minor, but many of them have been extensive.  Over this time, Justices Black and
Douglas, either together or separately, dissented 13 times on the ground that it
was inappropriate for the Court to pass on the merits of the rules before
it. (Ftnote. 2)  Aside from those two Justices, Justices Powell,    (Ftnote. 2)
Stewart and then-Justice REHNQUIST dissented on one occasion and JUSTICE
O'CONNOR on another as to the substance of proposed rules.  446 U. S. 995, 997
(1980) (Powell, J., dissenting); 461 U. S. 1117, 1119 (1983) (O'CONNOR, J.,
dissenting).  Only once in my memory did the Court refuse to transmit some of
the rule changes proposed by the Judicial Conference.  500 U. S. ___ (1991).
  That the Justices have hardly ever refused to transmit the rules submitted by
the Judicial Conference and the


























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   2)   421 U. S. 1019, 1022 (1975) (Douglas, J., dissenting); 416 U. S. 1001,   2)
1003 (1974) (Douglas, J., dissenting); 411 U. S. 989, 992 (1973) (Douglas, J.,
dissenting); 409 U. S. 1132 (1972) (Douglas, J., dissenting); 406 U. S. 979, 981
(1972) (Douglas, J., dissenting); 401 U. S. 1017, 1019 (1971) (Black and
Douglas, JJ., dissenting); 400 U. S. 1029, 1031 (1971) (Black, J., with whom
Douglas, J., joins, dissenting); 398 U. S. 977, 979 (1970) (Black and Douglas,
JJ., dissenting); 395 U. S. 989, 990 (1969) (Black, J., not voting); 383 U. S.
1087, 1089 (1966) (Black, J., dissenting); ibid. (Douglas, J., dissenting); 383                                           ____
U. S. 1029, 1032 (1966) (Black, J., dissenting); 374 U. S. 861, 865 (1963)
(Black and Douglas, JJ., dissenting).                            RULES OF CIVIL PROCEDURE                           3

fact that, aside from Justices Black and Douglas, it has been quite rare for any
Justice to dissent from transmitting any such rule, suggest that a sizable
majority of the 21 Justices who sat during this period concluded that Congress
intended them to have a rather limited role in the rulemaking process.  The vast
majority (including myself) obviously have not explicitly subscribed to the
Black-Douglas view that many of the rules proposed dealt with substantive
matters that the Constitution reserved to Congress and that in any event were
prohibited by S2072's injunction against abridging, enlarging or modifying
substantive rights.
  Some of us, however, have silently shared Justice Black's and Justice Douglas'
suggestion that the enabling statutes be amended
   "to place the responsibility upon the Judicial Conference rather than upon
   this Court.  Since the statute was first enacted in 1934, 48 Stat. 1064, the
   Judicial Conference has been enlarged and improved and is now very active in
   its surveillance of the work of the federal courts and in recommending
   appropriate legislation to Congress.  The present rules produced under 28
   U. S. C. S2072 are not prepared by us but by Committees of the Judicial
   Conference designated by THE CHIEF JUSTICE, and before coming to us they are
   approved by the Judicial Conference pursuant to 28 U. S. C. S331.  The
   Committees and the Conference are composed of able and distinguished members
   and they render a high public service.  It is they, however, who do the work,
   not we, and the rules have only our imprimatur.  The only contribution that
   we actually make is an occasional exercise of a veto power.  If the rule-
   making for Federal District Courts is to continue under the present plan, we
   believe that the Supreme Court should not have any part in the task; rather,
   the statute should be amended to substitute the Judicial Conference.  The
   Judicial Conference can participate4                           RULES OF CIVIL PROCEDURE

   more actively in fashioning the rules and affirmatively contribute to their
   content and design better than we can.  Transfer of the function to the
   Judicial Conference would relieve us of the embarrassment of having to sit in
   judgment on the constitutionality of rules which we have approved and which
   as applied in given situations might have to be declared invalid."  374 U. S.
   865, 869-870 (1963) (footnote omitted).

  Despite the repeated protestations of both or one of those Justices, Congress
did not eliminate our participation in the rulemaking process.  Indeed, our
statutory role was continued as the coverage of S2072 was extended to the rules
of evidence and to proceedings before magistrates.  Congress clearly continued
to direct us to "prescribe" specified rules.  But most of us concluded that for
at least two reasons Congress could not have intended us to provide another
layer of review equivalent to that of the standing committee and the Judicial
Conference.  First, to perform such a function would take an inordinate amount
of time, the expenditure of which would be inconsistent with the demands of a
growing caseload.  Second, some us, and I remain of this view, were quite sure
that the Judicial Conference and its committees, "being in large part judges of
the lower courts and attorneys who are using the Rules day in and day out, are
in a far better position to make a practical judgment upon their utility or
inutility than we."  383 U. S. 1089, 1090 (1966) (Douglas, J., dissenting).
  I did my share of litigating when in practice and once served on the Advisory
Committee for the Civil Rules, but the trial practice is a dynamic profession,
and the longer one is away from it the less likely it is that he or she should
presume to second-guess the careful work of the active professionals manning the
rulemaking committees, work that the Judicial Conference has approved.  At the
very least, we should not perform a de novo review and should defer to the                                    _______
Judicial Conference and its committees                             RULES OF CIVIL PROCEDURE                           5

as long as they have some rational basis for their proposed amendments.
  Hence,  as I have seen the Court's role over the years, it is to transmit the
Judicial Conference's recommendations without change and without careful study,
as long as there is no suggestion that the committee system has not operated
with integrity.  If it has not, such a fact, or even such a claim, about a body
so open to public inspection would inevitably surface.  This has been my
practice, even though on several occasions, based perhaps on out-of-date
conceptions, I had serious questions about the wisdom of particular proposals to
amend certain rules.
  In connection with the proposed rule changes now before us, there is no
suggestion that the rulemaking process has failed to function properly.  No
doubt the proposed changes do not please everyone, as letters I have received
indicate.  But I assume that such opposing views have been before the committees
and have been rejected on the merits.  That is enough for me.
  Justice Douglas thought that the Court should be taken out of the rulemaking
process entirely, but as long as Congress insisted on our "prescribing" rules,
he refused to be a mere conduit and would dissent to forwarding rule changes
with which he disagreed.  I note that JUSTICE SCALIA seems to follow that
example.  But I also note that as time went on, Justice Douglas confessed to
insufficient familiarity with the context in which new rules would operate to
pass judgment on their merits. (Ftnote. 3)                               (Ftnote. 3)






















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   3)  In dissenting from the order transmitting the Chapter XIII Bankruptcy   3)
Rules, Justice Douglas, among other things said: "Forty years ago I had perhaps
some expertise in the field; and I know enough about history, our Constitution,
and our decisions to oppose the adoption of Rule 920.  But for most of these
Rules I do not have sufficient insight and experience to know whether the are
desirable or undesirable.  I must, therefore, disassociate myself from them."
411 U. S. 992, 994 (1973).
 With respect to Amendments to the Rules of Criminal Procedure forwarded by the
Court a year later, the following statement was appended to the Court's order,
416 U. S. 1003 (1974): "MR. JUSTICE DOUGLAS is opposed to the Court's being a
mere conduit of Rules to Congress since the Court has had no hand in drafting
them and has no competence to design them in keeping with the titles and spirit
of the Constitution."6                           RULES OF CIVIL PROCEDURE

  In conclusion, I suggest that it would be a mistake for the bench, the bar, or
the Congress to assume that we are duplicating the function performed by the
standing committee or the Judicial Conference with respect to changes in the
various rules which come to us for transmittal.  As I have said, over the years
our role has been a much more limited one.