Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power JUDITH RESNIK* I. FROM THE REHNQUIST COURT TO THE REHNQUIST JUDICIARY ............................. 224 A. Developing New Norms.............................................................................. 224 B. Sources of JudicialAuthority, ExercisedIndividually and Collectively ....... 225 C. Collective Advocacy and JudicialIndependence ......................................... 226 II. POLICING BOUNDARIES: REFRAMING THE POWER OF FEDERAL JUDGES BY DISABLING THEIR REMEDIAL CAPACITIES ............................................................. 231 A. A Dearth of Equitable Powers, If Unknown in 1789: Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc .................................................. 234 1. Requiring English History .................................................................... 235 2. Insisting on Courts as Agents ............................................................... 236 3. Reading Federal Rules as Prohibitions ................................................. 242 4. Ignoring State Practices ............................................................................ 245 5. Refusing Transnational Jurisprudential Exchanges ................................. 246 6. Broader Equitable Powers for the Public Interest? .................................. 249 7. Shadow ing Equity .................................................................................... 252 B. Limiting the Meaning of the Mandate to Fashion "Appropriate Equitable Relief': Great-West Life & Annuity Insurance Company v. Knudson ............ 256 1. Editing Statutes .................................................................................... 258 2. Ignoring State Proceedings ................................................................... 261 3. Revising ERISA Jurisdiction ................................................................ 262 4. Seventy-Seven Statutes Providing for Equitable Relief ......................... 265 5. Characterizing Declaratory Relief ........................................................... 267 6. Congressional Responses ......................................................................... 269 C. Impoverishing the Job ofJudging ............................................................... 270 III. BREACHING BOUNDARIES BY CLAIMING POLICYMAKNG PREROGATIVES: THE PROGRAMMATIC JUDICIARY .................................................................................... 272 A. The StatutoryParameters ............................................................................ 275 B. Practicesand Politics................................................................................. 281 IV. THE PROBLEMS OF LIFE-TENURED PRINCIPALS ................................................. 291 A. Comparing the Judiciary's "Policy Predilections" andIts Judgments........ 291 Arthur Liman Professor of Law, Yale Law School. C 2003 Judith Resnik. All rights reserved. Thanks to Joshua Civin, Reema EI-Amamy, Amina EI-Sayad, Jed Handlesman- Shugerman, Anya McMurray, Tracey Parr, Daphna Renan, Anna Rich, Lara Slachta, Cori Van Noy, and Laura Viscomi for insightful assistance, to Gene Coakley for his generous aid to us all, and to Dennis Curtis, Owen Fiss, Barry Friedman, Vicki Jackson, John Langbein, Michael Levine, Daniel Meltzer, Colleen Medill, Alan Morrison, Peter Schuck, Herman Schwartz, and participants at the Symposium, at the Faculty Workshop at American University, and at the Yale Faculty Workshop for helpful exchanges. Research assistance was provided by the staff at the National Archives, the Library of Congress, the Administrative Office of the United States Courts, and the Federal Judicial Center. Special thanks are owed to Charlie Geyh, Dawn Johnson, and Lauren Robel, who created the framework for these exchanges and who succeeded in sparking an unusually engaging andintense conference. INDIANA LAWJOURNAL [Vol. 78:223 B. Lobbying the Judiciary................................................................................ 296 C. DistinguishingForms of "the JudicialPower" .......................................... 305 I. FROM THE REHNQUIST COURT TO THE REHNQUIST JUDICIARY A. Developing New Norms A struggle over the norms and boundaries of federal judicial authority is ongoing, both within the United States Supreme Court and between the Court and Congress. That debate is taking place not only in the Court's high-profile constitutional docket but in ordinary cases and in work other than adjudication. The five-person majority that has become famous for its jurisprudence on the Commerce Clause, the Fourteenth Amendment, and sovereign immunity' has also revised the scope of federal equitable and common law powers. The emerging legal rules stem from cases-such as Grupo Mexicano de Desarrollo,S.A., v. Alliance Bond Fund, Inc.2 and Great-West Life & Annuity Insurance Co. v. Knudson3-that may not come trippingly off the constitutional scholar's tongue but must be understood as working in tandem with the majority's restrictions on the power of Congress to develop new federal rights. These holdings instruct federal judges not to craft remedies without express congressional permission, and, when permission has been granted, to read it narrowly. Moreover, through collective action unprecedented in the American experience, the Rehnquist Judiciary is attempting to convince Congress not to grant such permission. The Article III judiciary has become increasingly active in Congress before legislation is enacted-opining to Congress and the public about which litigants ought to be able to bring substantive claims to the federal courts. Eighty years ago, Congress chartered a conference of circuit judges to meet under the leadership of the Chief Justice and-"in the interest of uniformity and expedition of business"-to "survey ... the condition of business" of the federal courts.4 Thus began an entity, novel for the United States, which provided a means for judges to coordinate and collaborate. As I detail in a brief history below, during its first decades, the Conference did not use its collective voice to comment on which litigants merited access to federal courts. Thereafter, the Conference occasionally advised against federal court remediation for certain kinds of cases. A different posture has been adopted under the current Chief Justice. The Judicial 1. See, e.g., Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001); United States v. Morrison, 529 U.S. 598 (2000); Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Alden v. Maine, 527 U.S. 706 (1999). The five in the majority are Chief Justice Rehnquist and Justices O'Connor, Kennedy, Scalia, and Thomas. The dissenters include Justices Stevens, Souter, Ginsburg, and Breyer. 2. 527 U.S. 308 (1999). 3. 534 U.S. 204 (2002). 4.See Act of Sept. 14, Pub. L. No. 67-298, §2,42 Stat. 837, 838-39 (1922) [hereinafter 1922 Judgeship Act]. The current formulation, at 28 U.S.C. § 331 (2000) (discussed infra notes 280- 311 and accompanying text), provides that the Judicial Conference survey the condition of business in the courts of the United States and requires the Chief Justice to "submit to Congress an annual report of the proceedings of the Judicial Conference and its recommendations for legislation." 2003] CONSTRICTING REMEDIES Conference has proposed that Congress hold a general presumption against creating new rights if enforced through federal courts. In the mid-1990s, through its first-ever Long Range Plan,5 the Conference offered a vision of the appropriate allocation of power between state and federal systems and of the appropriate size and shape of the federal courts.6 The Conference made some ninety recommendations, including this presumption against federal remediation. 7 The approach of the Long Range Plan is paralleled by commentary by the current Chief Justice, who has regularly used annual "state of the judiciary" addresses to criticize congressional decisions to empower 8 particular kinds of litigants to appear in federal courts. Examining the Rehnquist Judiciary's adjudication and advocacy together reveals a particular, and in some ways contradictory, delineation of the role for the federal judiciary: at once incompetent to help ordinary litigants who seek small-scale remediation through adjudication predicated on fact-filled records subject to appellate review, yet at the same time competent to use a collective voice to advise Congress on the shape of the rights that "the people" ought to have. These activities also illuminate the Rehnquist Judiciary's view of congressional capacities. Through constitutional adjudication, the majority has disabled Congress from certain forms of generativity and innovation. Through statutory interpretations and judicial policy prescriptions, the majority has discouraged Congress from looking to federal courts as a means of enforcing national agendas. While others have identified the majority as claiming its supremacy 9 and assessed its political vision and its interpretative norms,'0 here I bring into focus the effects of the Rehnquist Judiciary on the daily experiences of lower tier judges, litigants, and members of Congress. The work of both judging and governing at the national level becomes impoverished. B. Sources ofJudicial Authority, Exercised Individuallyand Collectively This article both excavates the developing norms and analyzes them. Below, in Part II, I document the Rehnquist Judiciary's stances towards rights