Article Three protectionism

In a case handed down last week — Wellness International Network, Ltd. v. Sharif — the Supreme Court upheld the power of bankruptcy judges to hear, with the consent of the parties, matters that fall within the ambit of Article III of the U.S. Constitution. Article III, where the Constitution focuses on the federal judiciary, directs that the federal judicial power of the United States be vested in federal courts that are staffed by so-called "Article III judges" — that is, judges who are appointed by the president with the consent of the Senate and enjoy life tenure and a guarantee of no reduction in salary during their service. Yet bankruptcy judges are not Article III judges; they are appointed by federal circuit judges for 14-year terms, and their salaries are set by Congress (which has to date chosen statutorily to guarantee no reduction in salary during a bankruptcy judge's term). The court justified its remarkable holding — that non-Article III judges can hear Article III claims in some circumstances — on grounds of judicial efficiency. Yet the real reason underlying the court's holding is a desire to protect the "brand" of Article III judges by limiting their ranks.

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Both the majority and the primary dissent in Wellness invoked efficiency in their opinions. Justice Sonia Sotomayor's majority opinion noted the crucial role non-Article III judges now play in the federal judiciary: "[I]t is no exaggeration to say that without the distinguished service of these [non-Article III] judicial colleagues, the work of the federal court system would grind nearly to a halt." The court then quoted earlier precedent that directed that the constitutionality of having non-Article III judges exercise a power should be determined in light of the "practical effect" of vesting (or not vesting) non-Article III judges with that power. It concluded that allowing bankruptcy judges the power at issue in Wellness would "increase[e] judicial efficiency."

The principal dissent, authored by Chief Justice John Roberts, denied the relevance of efficiency, emphasizing that "practical considerations of efficiency and convenience cannot trump the structural protections of the Constitution." Still, by putting matters in those terms, Roberts seemed to accept at least in part that the majority's solution led to greater efficiency, Thus, while Roberts denied that efficiency was a valid basis for finding it constitutional to have non-Article III judges decide Article III claims (with or without consent), he seemed to concede that having non-Article III judges decide Article III claims (with consent) could enhance efficiency.

In short, the majority and principal dissent both assume that restricting the adjudication of Article III claims to Article III judges would at least to some extent impinge upon judicial efficiency. Yet the decrease in efficiency that would result from such a restriction is largely a result of Congress's choice not to increase the ranks of lower federal court Article III judges. Article III gives Congress plenary power over the creation of lower federal court judges: It gives Congress the freedom not to create lower federal courts (and thus not to appoint lower court Article III judges) at all, and it imposes no cap on the number of lower federal court Article III judgeships. As the majority opinion belatedly concedes, "Congress could choose to rest the full share of the Judiciary's labor on the shoulders of Article III judges. But doing so would require a substantial increase in the number of district judgeships. Instead, Congress has supplemented the capacity of district courts through the able assistance of bankruptcy judges."

More disturbing than the court's lack of emphasis on Congress's other options is the failure of the court to come clean over exactly why Congress has not conferred Article III status on bankruptcy judges. In fact, in considering the 1978 Bankruptcy Reform Act (which gave rise to the modern Bankruptcy Code) and then 1984 amendments to the act — undertaken in the wake of a 1982 Supreme Court decision that drew in question the constitutional status of bankruptcy judges under the act — Congress considered constituting bankruptcy judges as Article III judges. Existing Article III judges were the main opposition to that plan, concerned over the devaluation of their own status if more Article III positions and judges were minted. In other words, the "need" to have non-Article III bankruptcy judges hear Article III claims as a matter of judicial efficiency arises out of Article III judges' desire to limit the nation's supply of Article III judges.

None of this is to say that non-Article III judges are unqualified adjudicators. Indeed, it is often argued that the fact that many non-Article III judges are appointed with a focus on merit and expertise makes them better at many aspects of adjudication than their Article III counterparts. The fact remains that the court misleads when it frames the "need" for non-Article III judges to adjudicate Article III matters in terms of inexorable demands of judicial efficiency. Even more troubling is the court's failure to confront the reality that it is existing Article III judges who benefit from limiting the number of Article III judges while the ranks of non-Article III judges proliferate.

Nash is professor of law and David J. Bederman Research Professor (2014-15) at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash.