Hart v. Massanari

Decision Date24 September 2001
Citation266 F.3d 1155
CourtU.S. Court of Appeals — Ninth Circuit

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Lawrence D. Rohlfing, Esq., Rohlfing Law Firm, Santa Fe Springs, California, for the plaintiff-appellant.

Kaladharan M.G. Nayar, Office of the Regional Attorney, Social Security Administration, San Francisco, California, for the defendant-appellant.

Before: Alex Kozinski and Richard C. Tallman, Circuit Judges, and Frank Zapata, District Judge.***

Kozinski, Circuit Judge

Appellant's opening brief cites Rice v. Chater, No. 9535604, 1996 WL 583605 (9th Cir. Oct. 9, 1996). Rice is an unpublished disposition, not reported in the Federal Reporter except as a one-line entry in a long table of cases. See Decisions Without Published Opinions, 98 F.3d 1345, 1346 tbl. (9th Cir. 1996). The full text of the disposition can be obtained from our clerk's office, and is available on Westlaw and LEXIS. However, it is marked with the following notice: "This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3." Our local rules are to the same effect: "Unpublished dispositions and orders of this Court are not binding precedent . . . [and generally] may not be cited to or by the courts of this circuit . . . ." 9th Cir. R. 36-3.

We ordered counsel to show cause as to why he should not be disciplined for violating Ninth Circuit Rule 36-3. Counsel responds by arguing that Rule 36-3 may be unconstitutional. He relies on the Eighth Circuit's opinion in Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000). Anastasoff, while vacated, continues to have persuasive force. See, e.g., Williams v. Dallas Area Rapid Transit, 256 F.3d 260 (5th Cir. 2001) (Smith, J., dissenting from denial of reh'g en banc).1 It may seduce members of our bar into violating our Rule 36-3 under the mistaken impression that it is unconstitutional. We write to lay these speculations to rest.


A. Anastasoff held that Eighth Circuit Rule 28A(i), which provides that unpublished dispositions are not precedential-and hence not binding on future panels of that court 2-violates Article III of the Constitution. See 223 F.3d at 899. According to Anastasoff, exercise of the"judicial Power" precludes federal courts from making rulings that are not binding in future cases. Or, to put it differently, federal judges are not merely required to follow the law, they are also required to make law in every case. To do otherwise, Anastasoff argues, would invite judicial tyranny by freeing courts from the doctrine of precedent: " `A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.' " Id. at 904 (quoting Joseph Story, Commentaries on the Constitution of the United States §§ 377 (1833)).3

We believe that Anastasoff overstates the case. Rules that empower courts of appeals to issue nonprecedential decisions do not cut those courts free from all legal rules and precedents; if they did, we might find cause for alarm. But such rules have a much more limited effect: They allow panels of the courts of appeals to determine whether future panels, as well as judges of the inferior courts of the circuit, will be bound by particular rulings. This is hardly the same as turning our back on all precedents, or on the concept of precedent altogether. Rather, it is an effort to deal with precedent in the context of a modern legal system, which has evolved considerably since the early days of common law, and even since the time the Constitution was adopted.

The only constitutional provision on which Anastasoff relies is that portion of Article III that vests the "judicial Power" of the United States in the federal courts. U.S. Const. art. III, §§ 1, cl. 1. Anastasoff may be the first case in the history of the Republic to hold that the phrase "judicial Power" encompasses a specific command that limits the power of the federal courts. There are, of course, other provisions of Article III that have received judicial enforcement, such as the requirement that the courts rule only in "Cases " or "Controversies," see, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992), and that the pay of federal judges not be diminished during their good behavior. See, e.g. , United States v. Hatter, 121 S. Ct. 1782, 1790-91 (2001). The judicial power clause, by contrast, has never before been thought to encompass a constitutional limitation on how courts conduct their business.

There are many practices that are common or even universal in the federal courts. Some are set by statute, such as the courts' basic organization. See, e.g., 28 U.S.C. §§ 43 (creating a court of appeals for each circuit); 28 U.S.C.§§ 127 (dividing Virginia into two judicial districts); 28 U.S.C.§§ 2101 (setting time for direct appeals to the Supreme Court and for applications to the Supreme Court for writs of certiorari). See generally David McGowan, Judicial Writing and the Ethics of the Judicial Office, 14 Geo. J. Legal Ethics 509, 509-10 (2001).

Others are the result of tradition, some dating from the days of the common law, others of more recent origin. Among them are the practices of issuing written opinions that speak for the court rather than for individual judges, adherence to the adversarial (rather than inquisitorial) model of developing cases, limits on the exercise of equitable relief hearing appeals with panels of three or more judges and countless others that are so much a part of the way we do business that few would think to question them. While well established, it is unclear that any of these practices have a constitutional foundation; indeed, Hart (no relation so far as we know), in his famous Dialogue, concluded that Congress could abolish the inferior federal courts altogether. See Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1363-64 (1953). While the greater power does not always include the lesser, the Dialogue does suggest that much of what the federal courts do could be modified or eliminated without offending the Constitution.

Anastasoff focused on one aspect of the way federal courts do business--the way they issue opinions--and held that they are subject to a constitutional limitation derived from the Framers' conception of what it means to exercise the judicial power. Given that no other aspect of the way courts exercise their power has ever been held subject to this limitation,4 we question whether the "judicial Power" clause contains any limitation at all, separate from the specific limitations of Article III and other parts of the Constitution. The more plausible view is that when the federal courts rule on cases or controversies assigned to them by Congress, comply with due process, accord trial by jury where commanded by the Seventh Amendment and generally comply with the specific constitutional commands applicable to judicial proceedings, they have ipso facto exercised the judicial power of the United States. In other words, the term "judicial Power" in Article III is more likely descriptive than prescriptive.5

If we nevertheless were to accept Anastasoff's premise that the phrase "judicial Power" contains limitations separate from those contained elsewhere in the Constitution, we should exercise considerable caution in recognizing those limitations, lest we freeze the law into the mold cast in the eighteenth century. The law has changed in many respects since the time of the Framing, some superficial, others quite fundamental. For example, as Professor William Nelson has convincingly demonstrated, colonial juries "usually possessed the power to find both law and fact in the cases in which they sat, " and were not bound to follow the instructions given to them by judges. See William E. Nelson, Marbury v. Madison: The Origins and Legacy of Judicial Review 16-17 (2000). Today, of course, we would consider it unfair--probably unconstitutional--to allow juries to make up the law as they go along.

Another example: At the time of the Framing, and for some time thereafter, the practice that prevailed both in the United States and England was for judges of appellate courts to express separate opinions, rather than speak with a single (or at least majority) voice. The practice changed around the turn of the nineteenth century, under the leadership of Chief Justice Marshall. See George L. Haskins & Herbert A. Johnson, Foundations of Power: John Marshall, 1801-15 , in 2 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States 382-89 (Paul A. Freund ed., 1981).

And yet another example: At the time of the Framing, and for some time thereafter, it was considered entirely appropriate for a judge to participate in the appeal of his own decision; indeed, before the creation of the Circuit Courts of Appeals, appeals from district court decisions were often taken to a panel consisting of a Supreme Court Justice riding circuit, and the district judge from whom the decision was taken. Act of March 2, 1793, ch. 22, §§ 1, 1 Stat. 333; see also Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure §§ 3504 (2d ed. 1984). Today, of course, it is widely recognized that a judge may not hear...

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