Chandler v. Judicial Council of the Tenth Circuit/Concurrence Harlan

by John Marshall Harlan II

United States Supreme Court

398 U.S. 74

Chandler  v.  Judicial Council of the Tenth Circuit

 Argued: Dec. 10, 1969. --- Decided: June 1, 1970

Mr. Justice HARLAN, concurring in the denial of an extraordinary writ.

This opinion sets forth my reasons for concluding (1) that the subsisting Order of the Judicial Council of February 4, 1966, raises issues that are adequately presented to this Court and should be faced by it; (2) that this Court does have jurisdiction to pass upon them; and (3) that promulgation and effectuation of the Order of February 4, 1966, are within the Council's authority, and hence this petition for an extraordinary writ should be denied. The novelty and unusual character of these questions require, regrettably, an opinion of some length.

* I am perplexed by the Court's explanation for its failure to reach the issues presented by Judge Chandler's petition. As the Court states, the issues are whether this Court has jurisdiction to review the orders of the Judicial Council, and, if so, whether those orders are invalid because beyond the statutory and constitutional bounds of the Council's authority. The Court says, correctly I believe, that 'the threshold question in this case is whether we have jurisdiction to entertain the petition for extraordinary relief.' Ante, at 86. However, that question is never decided, and the Court's opinion closes with the statement that whether or not we have jurisdiction, 'plainly petitioner has not made a case for the extraordinary relief of mandamus or prohibition.' The predicate for this conclusion appears to be that Judge Chandler has an adequate remedy available before the Council, which he must invoke before seeking relief here. As authority for this unusual disposition, the Court cites only Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947), a decision that I do not consider lends itself to the gloss the Court today places upon it.

It is clear that, although the Council's Order of December 13, 1965, has been revoked, the subsequent Order of February 4, 1966, is still outstanding and is attacked by Judge Chandler as beyond the authority constitutional exercisable by the Council under either § 137 or § 332 of the Judicial Code. Judge Chandler has twice certified to the Council his acquiescence in the allocation of business mandated by the February 4 Order; indeed, his first certification was relied upon by the then Solicitor General, appearing for the Council in February 1966, as a basis for suggesting that the case was moot. Judge Chandler immediately responded that he did not in any way concede the Council's power to enter the February 4 Order, and that his indication of acquiescence made to the Council did not constitute such a concession. In light of this continued challenge to the order, the Solicitor General in March 1966 agreed 'that the case can no longer be deemed moot.'

The case thus reached the posture in which it now stands: Judge Chandler unequivocally asserts that the February 4 Order is beyond the Council's authority. If his contention were sound, the only validly outstanding directives for the allocation of business in the District Court would be those 'rules and orders' of that court, issued under § 137, that were in effect prior to December 13, 1965. Though the terms of those rules and orders are not before us, it is evident that they provided for assignment to Judge Chandler of a portion of the cases continually filed in his court. In challenging the validity of the Council's attempts to modify the previous allocation of business, and in requesting restoration of the status quo ante, Judge Chandler seeks to achieve a marked departure from the manner in which business is currently allocated.

Judge Chandler claims a right to accomplish this result without the necessity of mobilizing all the judges of his district to change the assignment of business by unanimous action, as the February 4 Order allows them to do. Further, since he denies the Council's authority to deprive him of all new business, he of course denies that he should be required to request the Council to renege as a condition of obtaining review of its outstanding order. He claims that it is illegal for the Council to deprive him of new cases, and equally so for the Council to condition his access to new cases upon his making a request to it that is tantamount to a form of a certification of disagreement under § 137.

Although the Court states that it does not decide the merits of this claim, see ante, at 87, I can read its opinion only as a determination that the claim is insubstantial. The Court states that it is a 'remarkable litigation posture' for Judge Chandler to argue that the Council has no authority to force him to choose between remaining without new business, seeking further action by the Council, or seeking unanimous action by the District Judges. The Court denies relief because '(n)othing in this record suggests that, were he to express disagreement, relief would not be forthcoming,' a decision that can only be premised on a holding that he is denied no rights by being relegated to that course of action. Ante, at 87, 88-89. But this is the contrary of what Judge Chandler contends, and a conclusion with which two members of this Court sharply differ. As explained in Part III, infra, I too believe that Judge Chandler now lacks meritorious ground for complaint. However, I do not believe that the Court can properly make that holding without first determining its jurisdiction to consider the question.

Rescue Army, supra, provides no authority for such a procedure. That decision represents one branch of the longsettled doctrine that this Court will not determine constitutional questions unnecessarily or in a case that does not present them with sufficient clarity to make possible the circumspect consideration they require. See generally id., at 568-585, 67 S.Ct. at 1419-1428; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Because the constitutional issues in Rescue Army were presented in a highly abstract and speculative form, and were clouded by factors not present in this case, ^[1] the Court dismissed the appeal, declining to adjudicate them. It concluded that an appellant there, faced with state criminal charges, would have to undergo a trial on the charges before obtaining review in this Court of his constitutional claims. As in this case, the Court's action had the effect of rejecting the appellant's claim of a right to obtain relief without further proceedings in a lower tribunal, see 331 U.S., at 584, 67 S.Ct., at 1427. However, the Court made that disposition only after carefully determining that it had jurisdiction in the case. See id., at 565-568, 67 S.Ct., at 1417 1419.

The Court does suggest, by footnote, an alternative basis for its refusal to consider Judge Chandler's petition. Ante, at 87 n. 8. If an adequate means of review of Council orders were available in the Federal District Court under 28 U.S.C. § 1361, that might justify this Court's staying its hand until such review had been sought. However, as pointed out by the United States as amicus curiae, it seems wholly unrealistic to suggest that an appropriate remedy could be obtained from a District Court. The District Court mandamus statute, § 1361, extends to 'officers,' 'employees,' and 'agencies' of the United States; there is no indication that it empowers the District Courts to issue mandamus to other judicial tribunals. Thus, as the Judicial Council seems to concede, the availability of a remedy under that statute hinges on a determination, which the Court avoids making, whether the Council's actions under review were judicial or not. Brief for Respondent 19. Beyond that, direct review by a district judge of the actions of circuit judges would present serious incongruities and practical problems certainly not contemplated when § 1361 was enacted. It is unrealistic for the Court to imply that § 1361 presents an appropriate avenue of relief justifying this Court's refusal to exercise its jurisdiction.

I do not disagree with the Court that the issues presented by Judge Chandler's petition are troublesome ones that we might wish to avoid deciding. However, I can perceive no reasoned justification for the Court's refusal to decide them. Chief Justice Marshall long ago enunciated the principle that should govern us here:

'It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. * * * With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usrup that which is not given.' Cohens v. Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257 (1821).

That principle has not been abrogated by the Rescue Army decision, which merely undertook to define the limits of our ability to adjudicate constitutional issues in cases that adequately present them. I find no license in that decision for the action taken by the Court today.

Before Judge Chandler's attack on the orders of the Judicial Council can be considered, it must be determined whether the Court possesses jurisdiction to entertain his petition for a writ of mandamus or prohibition. While I agree with my Brothers Black and Douglas that the Court does have jurisdiction, I think the question warrants fuller treatment than they have given it.

Any discussion of the scope of this Court's authority under the Constitution must take as its point of departure Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (1803), where the Court held that except in those instances specifically enumerated in Article III of the Constitution, ^[2] this Court may exercise only appellate not original-jurisdiction. Because this suit is not cognizable as an original cause, the question initially to be faced is whether it is within our appellate jurisdiction.

The Court was asked in Marbury to issue a writ of mandamus to compel the Secretary of State to deliver to an appointed justice of the peace his previously signed commission. After nothing that the suit did not fall within any of the enumerated heads of original jurisdiction, the Court, through Chief Justice Marshall, concluded: 'To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable (the Court) to exercise appellate jurisdiction.' Id., at 175. The Court held that issuance of mandamus to a nonjudicial federal officer would not be an exercise of appellate, but of original, jurisdiction. Thus the statute that purported to authorize such action by the Supreme Court was ineffective. See 2 J. Story, Commentaries on the Constitution of the United States § 1761 (5th ed. 1891).

The Chief Justice stated, as the 'essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.' I Cranch, at 175. Beyond cavil, the issuance of a writ of mandamus to an inferior court is an exercise of appellate jurisdiction. In re Winn, 213 U.S. 458, 465-466, 29 S.Ct. 515, 516 517, 53 L.Ed. 873 (1909). If the challenged orders of the Judicial Council in this instance were 'an exercise of judicial power.' this Court is constitutionally vested with jurisdiction to review them, absent any statute curtailing such review. Williams v. United States, 289 U.S. 553, 566, 53 S.Ct. 751, 755, 77 L.Ed. 1372 (1933); Old Colony Trust Co. v. Commissioner of Internal Revenue, 279 U.S. 716, 723, 49 S.Ct. 499, 501, 73 L.Ed. 918 (1929); In re Sanborn, 148 U.S. 222, 224, 13 S.Ct. 577, 578, 37 L.Ed. 429 (1893). On the other hand, if they were not, Marbury alone is sufficient authority to support a conclusion that this suit is beyond this Court's power under Article III. An analysis of the nature of the Council's orders must begin with consideration of the statute by which the Council was created.

The Judicial Councils of the circuits were brought into being by the Act of August 7, 1939, which was termed 'An act to provide for the administration of the United States courts, and for other purposes.' 53 Stat. 1223. The major purposes of the Act were to free the federal courts from their previous reliance on the Justice Department in budgetary matters, and 'to furnish to the Federal courts the administrative machinery for self-improvement, through which those courts will be able to scrutinize their own work and develop efficiency and promptness in their administration of justice.' H.R.Rep. No. 702, 76th Cong., 1st Sess., 2 (1939). To this end the Act established the Administrative Office of the United States Courts, headed by a Director, to compile statistical data on the operation of the courts and to provide support services of a logistical nature. ^[3] The Act further established two new entities in each of the judicial circuits: the Judicial Council, composed of all the active circuit judges, and the Judicial Conference, composed of circuit and district judges along with participating members of the bar. The Council, in regular meetings, was to consider the reports of the Director and take 'such action * * * thereon' as might be necessary; ^[4] the Conference was to meet annually 'for the purpose of considering the state of the business of the courts and advising ways and means of improving the administration of justice within the circuit.' ^[5]

As these statutory provisions indicate, Congress envisioned quite different functions for the three new bodies. The role of the Administrative Office, and its Director, was to be 'administrative' in the narrowest sense of that term. The Director was entrusted with no authority over the performance of judicial business-his role with respect to such business was, and is, merely to collect information for use by the courts themselves. Chief Justice Groner of the Court of Appeals for the District of Columbia, who was chairman of the committee of circuit judges that participated in drafting the bill, stressed to the Senate Committee on the Judiciary that the bill would give the Director no 'supervision or control over the exercise of purely judicial duties,' because to grant such power to an administrative officer 'would be to destroy the very fundamentals of our theory of government. The administrative officer (the Director) proposed in this bill is purely an administrative officer.' Hearings on S. 188 before a Subcommittee of the Senate Committee on the Judiciary, 76th Cong., 1st Sess., 12 (1939) (response to question by Senator Hatch). See also id., at 36 (statement of A. Holtzoff).

The Judicial Conference for each circuit was given a complementary role, again divorced from direct involvement in the disposition by the courts of their judicial business. Patterned in large part after the voluntary conferences that had been held for years in the Fourth Circuit, the Conference was intended to provide an opportunity for friendly interchange among judges and between bench and bar, out of which might grow increased understanding of problems of judicial administration and enhanced cooperation toward their solution. Its function, as indicated by the statutory language quoted above, was to be 'purely advisory.' See Hearings on H.R. 5999 before the House Committee on the Judiciary, 76th Cong., 1st Sess., 11-12, 17, 23-24 (1939).

The Judicial Council, on the other hand, was designed as an actual participant in the management of the judicial work of the circuit. The Act provided that, '(t)o the end that the work of the district courts shall be effectively and expeditiously transacted,' the circuit judges of each circuit were to meet as a council at least twice a year. After consideration of the statistical reports submitted by the Administrative Office, 'such action shall be taken thereon by the council as may be necessary. It shall be the duty of the district judges promptly to carry out the directions of the council as to the administration of the business of their respective courts.' ^[6] This provision exists today as § 332 without relevant change, except that the 1948 revision of the Judicial Code added a declaration that '(e)ach judicial council shall make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit,' and correspondingly directed the district judges to carry out all such 'orders.' The reviser's note explained this amendment as merely a change in 'phraseology,' embodying in new words the original understanding of the powers of the councils. H.R.Rep. No. 308, 80th Cong., 1st Sess., A46 (1947).

The most helpful guide in determining the role envisaged for the Judicial Councils is the testimony of Chief Justice Groner, who shouldered most of the task of explaining the purposes of the bill to the committees of both Houses of Congress. He explained that under existing law the circuit judges had 'no authority to require a district judge to speed up his work or to admonish him that he is not bearing the full and fair burden that he is expected to bear, or to take action as to any other matter which is the subject of criticism, * * * for which he may be responsible.' Hearings on S. 188, supra, at 11. In contrast, under the proposed bill the Administrative Office would 'observe and see that whatever is wrong in the administration of justice, from whatever sources it may arise, is brought to the attention of the judicial council that it may be corrected, by the courts themselves.' Id., at 12 13.

As examples of the kinds of action a Judicial Council might be expected to take under the proposed bill, Chief Justice Groner suggested that if the statistics showed a particular district court to be falling behind in its work, the Council would 'see to it, either that the particular judge who is behind in his work catches up with his work, or that assistance is given to him whereby the work may be made current.' Id., at 11. If it appeared that a particular judge 'had been sick for 4 or 5 months and had been unable to hold any court, or had been unable, by reason of one thing or another, to transact any business, * * * immediate action could be taken to correct that situation.' Hearings on H.R. 5999, supra, at 11. Asked by Representative Walter Chandler 'what power is given there to require a judge to decide a case that he has had under advisement for months and years,' he responded that the Council, after considering the matter, could issue directions that would be 'final.' Id., at 13. Any 'lazy judge's work would be reported to the council, (which) would take the correct action.' Id., at 27. ^[7]

'what we have done is this, up to this point: We have given to the Circuit Court of Appeals supervisory power over the decisions of the district judges, but we have given them no power whatever over administration by the district judges.

'If Judge Jones decides a case contrary to the views of the majority of the Circuit Court of Appeals, we can tell him so and reverse him. But if he holds a case under advisement for 2 years, instead of deciding it promptly, there is nothing that we are authorized by the law to do about it in the absence of an application for mandamus. Now, this (bill) authorizes us to do something about it; and I agree with you that something ought to be done about it.' Id., at 21.

In place of the inadequate extraordinary remedy of mandamus, which could correct only the extreme abuse in a particular case, the circuit judges, sitting as the Judicial Council, were given the authority for continuous supervision of the flow of work through the district courts.

In short, the proposed Judicial Council was intended to fill the hiatus of authority that existed under the then-current arrangements, whereby the Attorney General collected data about the operation of the courts but had no power to take corrective action, 'except, perhaps, as a result of the moral suasion of his office.' The proposed bill would allow compilation of more complete information, and would 'provide a method, a legitimate, valid, legal method, by which if necessary, and when necessary, the courts may clean their own house'; it would 'give a body, in which the authority is firmly lodged, the power to do that and to do it expeditiously.' Id., at 8. See generally Report on the Powers and Responsibilities of the Judicial Councils, H.R.Doc. No. 201, 87th Cong., 1st Sess. (1961); Fish, The Circuit Councils: Rusty Hinges of Federal Judicial Administration, 37 U.Chi.L.Rev. 203 (1970).

This legislative history lends support to a conclusion that, at least in the issuance of orders to district judges to regulate the exercise of their official duties, the Judicial Council acts as a judicial tribunal for purposes of this Court's appellate jurisdiction under Article III. It seems clear that the sponsors of the bill considered the power to give such orders something that could not be entrusted to any purely 'administrative' agency not even to the Administrative Office, which was to be an arm of the judicial branch of government and under the direct control of the Supreme Court and the Judicial Conference of the United States. Chief Justice Groner, in the passage quoted above, stated that to give such power to an administrative agency 'would be to destroy the very fundamentals of our theory of government.' Instead, any problems unearthed by the Director's studies were to be 'corrected, by the courts themselves.' Hearings on S. 188, supra, at 12-13. See also Hearings on H.R. 5999, supra, at 8.

There were further references throughout the hearings and committee reports to the fact that the corrective power would be exercised by the courts themselves. E.g., Hearings on S. 188, supra, at 16 (statement of A. Vanderbilt); id., at 31-32 (statement of Hon. Harold M. Stephens); id., at 36 (statement of A. Holtzoff); H.R.Rep. No. 702, 76th Cong., 1st Sess., 4 (1939). The House report quoted with approval an endorsement of the bill by the American Judicature Society, stating that 'there is no way to fortify judicial independence equal to that of enabling the judges to perform their work under judicial supervision.' Ibid. These statements indicate that the power to direct trial judges in the execution of their decision-making duties was regarded as a judicial power, one to be entrusted only to a judicial body.

In this regard it is important to note that an earlier draft of the 1939 Act would have given responsibility for supervising the lower courts to the Supreme Court and the Chief Justice of the United States. The idea of devolving the authority to councils at the circuit level was suggested by Chief Justice Hughes, who believed that the supervision could be made most effective by 'concentration of responsibility in the various circuits * * * with power and authority to make the supervision all that is necessary to induce competence in the work of all of the judges of the various districts within the circuit.' H.R.Doc. No. 201, supra, at 3. It is equally notable that, while the draftsmen did consider giving district judges some representation on the Councils, see id., at 4-5, there was apparently no thought given to including nonjudicial officers. These indications leave no doubt that the Councils' architects regarded the authority granted the Councils as closely bound up with the process of judging itself. ^[8]

Because the legislative history shows Congress intended the Councils to act as judicial bodies in supervising the district judges, there is no need to decide whether placement of this authority in a nonjudicial body would violate the constitutional separation of powers, as Chief Justice Groner seems to have believed. It is sufficient to conclude from reason and analogy that this responsibility is of such a nature that it may be placed in the hands of Article III judges to be exercised as a judicial function.

An order by the Council to a district judge, directing his handling of one or many cases in his court, is an integral step in the progress of those cases from initial filing to final adjudication. Like the district judge's own orders setting a time for discovery or trial, or transferring a case to another district pursuant to 28 U.S.C. § 1404(a), such an order, even though concerned with a matter of 'judicial administration,' is part of the official conduct of judicial business. Unlike the more common orders of the district court, the Council's orders involve supervision of a subordinate judicial officer. But in this regard they are not unlike the extraordinary writ of mandamus, which Judge Parker thought the Council's orders would supplement, or the orders entered by courts in proceedings for disbarment of an attorney. In short, the function of the Council in ordering the district judges to take certain measures related to the cases before them is, as the legislative history indicates Congress understood, judicial in nature. ^[9]

To support a contrary conclusion, respondent points to the language of Justice Holmes in Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908), defining a 'judicial inquiry' as one that 'investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist,' as contrasted to legislation, which 'looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.' The Court in Prentis held that a ratemaking proceeding in the Virginia State Corporation Commission was legislative in character, despite the fact that the Commission was assumed to function as a court in performing other duties. Similarly, in United States v. Ferreira, 13 How. 40, 14 L.Ed. 42 (1852), this Court concluded that the act of a district judge in passing on claims under a treaty, subject to approval by the Secretary of the Treasury, was not a judicial one; the Court held that Congress, in giving this authority to judges, referred to them by their office 'merely as a designation of the persons to whom the authority is confided, and the territorial limits to which it extends.' Id., at 47. See also Gordon v. United States, 2 Wall. 561, 17 L.Ed. 921 (1865); In re Metzger, 5 How. 176, 12 L.Ed. 104 (1847); Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436 (1792).

Respondent argues that the functions of the Judicial Council under § 332 are, under Justice Holmes' definitions, legislative, or administrative, rather than judicial; and that the statutory provision making the membership of the Council coextensive with that of the Court of Appeals for each circuit ^[10] is merely a means of designating the individual members by reference to their office. Certainly respondent is correct in urging that Congress' designation of circuit judges as the members of the Council does not in itself make the Council's function judicial. I think, however, that the Council's orders directing the official business of the district courts are judicial within the general definition of that term in Prentis. In urging that the Council's function merely 'looks to the future and changes existing conditions by making a new rule,' respondent disregards the fact that each of the Council's orders, such as those challenged here, is rooted in the factual circumstances of the business of a particular judge or judges and the status of a particular case or cases in the district court; and each order, if properly entered, extends only as far as the circumstances that make it 'necessary * * * for the effective and expeditious administration of the business of the courts.' 28 U.S.C. § 332. As noted above, the Council's orders for the handling of cases in the district court serve as one step in the progress of those cases toward judgment. Those orders can be expected to apply commonly accepted notions of proper judicial administration to the special factual situations of particular cases or particular judges.

As respondent points out, the power entrusted to the Councils by § 332, like those added by later enactments see infra, at 109 110, necessarily involves a large amount of discretion; accordingly, review of the Councils' actions will usually be narrow in scope. But this does not mean that the Councils are 'left at large as planning agencies.' United States v. First City National Bank, 386 U.S. 361, 369, 87 S.Ct. 1088, 1094, 18 L.Ed.2d 151 (1967). In First City National Bank, we were faced with a federal statute directing the courts to determine whether the anticompetitive effect of a proposed bank merger was outweighed by considerations of community convenience and need. We ruled that the courts could accept this as a 'judicial task' because, like the 'rule of reason,' long prevalent in the antitrust field, the effect-on-competition standard was a familiar one within 'the area of judicial competence.' See also United Steel-workers of America v. United States, 361 U.S. 39, 80 S.Ct. 1, 4 L.Ed.2d 12 (1959). Judicial administration is a matter in which the courts even more clearly should have special competence. Within the framework of the statutes establishing the inferior federal courts and defining their jurisdiction, the Judicial Councils are charged with the duty to take such actions as are necessary for the expedition of the business of the courts in each circuit. Their discretion in this matter, while broad, does not seem to be of a different order from that possessed by district judges with respect to many matters of trial administration. In both instances, review can correct legal error or abuse of discretion where it occurs; that the scope of review will often be very narrow does not in itself establish that the exercise of such discretion is a nonjudicial act. ^[11]

Respondent makes a further argument to avert a conclusion that the actions here drawn in question were judicial actions. It points out that Congress since 1939 has given the Judicial Councils many specific powers-powers that respondent considers so clearly nonjudicial as to negate any inference that the Council serves as a 'judicial' body within the purview of Article III. Those powers include the power to order a district judge, where circumstances require, to reside in a particular part of the district for which he is appointed, 28 U.S.C. § 134(c); to make any necessary orders if the district judges in any district are unable to agree upon the division of business among them, 28 U.S.C. § 137; to consent to the pretermission of any regular session of a District Court for insufficient business or other good cause, 28 U.S.C. § 140(a); to approve as necessary the provision of judicial accommodations for the courts by the General Services Administration, 28 U.S.C. § 142; to consent to the designation and assignment of circuit or district judges to sit on courts other than those for which they are appointed, 28 U.S.C. § 295; to certify to the President that a circuit or district judge is unable to discharge efficiently all the duties of his office by reason of permanent mental or physical disability, thus authorizing the President to appoint an additional judge, 28 U.S.C. § 372(b); to direct where the records of the courts of appeals and district courts shall be kept, 28 U.S.C. § 457; to approve plans for furnishing representation for defendants under the Criminal Justice Act, 18 U.S.C. § 3006A(a); and to take various actions in regard to referees in bankruptcy, including removal of a referee for cause, 11 U.S.C. §§ 62(b), 65(a), (b), 68(a), (b), (c), 71(b), (c).

While many of these powers are trivial in comparison with the courts' basic responsibility for final adjudication of lawsuits, I am not persuaded that their possession is inconsistent with a conclusion that the Council, when performing its central responsibilities under 28 U.S.C. § 332, exercises judicial power granted under Article III. Cf. Glidden Co. v. Zdanok, 370 U.S. 530, 580-582, 82 S.Ct. 1459, 1488-1490, 8 L.Ed.2d 671 (1962) (opinion of Harlan, J.). In the first place, the respondent concedes that at least one of these enumerated powers-the power to remove referees for cause-'can properly be regarded as judicial,' and it is not at all clear that any of them is beyond the range of the permissible activities of an Article III court. In Textile Mills Securities Corp. v. Commissioner of Internal Revenue, 314 U.S. 326, 332, 62 S.Ct. 272, 276, 86 L.Ed. 249 (1941), the Court noted the range of relatively minor responsibilities, other than the hearing of appeals, placed by statute in the courts of appeals. These included prescribing the form of writs and other process and the form and style of the courts' seals; making rules and regulations; appointing a clerk and approving the appointment and removal of deputy clerks; and fixing the times when court should be held. Each of these functions was to be performed by the 'court.' While it is possible that the performance of some of them might never produce a case or controversy reviewable in this Court, they are reasonably ancillary to the primary, dispute-deciding function of the courts of appeals. Just as the Court in Textile Mills did not question the authority of Congress to grant such incidental powers to the courts of appeals, I see little reason to believe that any of the various supervisory tasks entrusted to the Judicial Council is beyond the capacities of a judicial body under Article III.

In the second place, my conclusion about the nature of the Council's primary function under § 332 would stand even if it were determined that one or more of the Council's assorted incidental powers were incapable of being exercised by an Article III court. If I am correct in concluding that Congress' purpose in 1939 in creating the Judicial Councils was to vest in them, as an arm of the Article III judiciary, supervisory powers over the disposition of business in the district courts, that purpose is not undone by a subsequent congressional attempt to give them a minor nonjudicial task; it would be 'perverse to make the status of (the Councils) turn upon so minuscule a portion of their purported functions.' Glidden Co. v. Zdanok, 370 U.S., at 583, 82 S.Ct., at 1490.

This Court does not, of course, necessarily possess all of the appellate jurisdiction permitted to it by Article III. That article provides that our appellate jurisdiction is to be exercised 'with such Exceptions, and under such Regulations as the Congress shall make,' and this language has been held to give Congress the power, within limits, to prescribe the instances in which it may be exercised. E.g., Ex parte McCardle, 7 Wall. 506, 512-513, 19 L.Ed. 264 (1869). I turn, therefore, to the Judicial Code to determine our statutory authority to consider Judge Chandler's petition.

Congress in the Code has not spoken, one way or the other, regarding review of the orders of Judicial Councils. Petitioner asserts that the Court has power to issue mandamus or prohibition to the Councils under the All Writs Act, 28 U.S.C. § 1651(a), which provides that

'(t)he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.'

This statute has been construed to empower this Court to issue an extraordinary writ to a lower federal court in a case falling within our statutory appellate jurisdiction, where the issuance of the writ will further the exercise of that jurisdiction. See e.g., De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566 (1945); United States Alkali Export Assn. v. United States, 325 U.S. 196, 201-204, 65 S.Ct. 1120, 1124-1126, 89 L.Ed. 1554 (1945). It is now settled that the case need not be already pending in this Court before an extraordinary writ may be issued under § 1651(a); rather, the Court may issue the writ when the lower court's action might defeat or frustrate this Court's eventual jurisdiction, even where that jurisdiciton could be invoked on the merits only after proceedings in an intermediate court. See, e.g., De Beers Consolidated Mines, Ltd. v. United States, 325 U.S., at 217, 65 S.Ct., at 1133; Ex parte Republic of Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014 (1943); Ex parte United States, 287 U.S. 241, 248-249, 53 S.Ct. 129, 130-131, 77 L.Ed. 283 (1932); McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762 (1910); cf. FTC v. Dean Foods Co., 384 U.S. 597, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966); Roche v. Evaporated Milk Assn., 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). But cf. In re Glaser, 198 U.S. 171, 173, 25 S.Ct. 653, 654, 49 L.Ed. 1000 (1905); In re Massachusetts, 197 U.S. 482, 488, 25 S.Ct. 512, 514, 49 L.Ed. 845 (1905).

Each of the prior cases in which this Court has invoked § 1651(a) to issue a writ 'in aid of (its jurisdiction)' has involved a particular lawsuit over which the Court would have statutory review jurisdiction at a later stage. By contrast, petitioner's reliance on this statute is bottomed on the fact that the action of the Judicial Council 'touches, through Judge Chandler's fate, hundreds of cases over which this Court has appellate or review jurisdiction.' Petition for Writ of Prohibition and/or Mandamus 13. He argues that the Council's orders, allocating to other judges in his district cases that would otherwise be decided by him, constitute a usurpation of power that cannot adequately be remedied on final review of those cases by certiorari or appeal in this Court. The United States as amicus curiae agrees that this claim properly invokes the Court's power to consider whether mandamus or prohibition should be granted. ^[12] Although this expansive use of § 1651(a) has no direct precedent in this Court, it seems to me wholly in line with the history of that statute and consistent with the manner in which it has been interpreted both here and in the lower courts.

Chief Justice Stone, writing for the Court in Ex parte Republic of Peru, 318 U.S., at 583, 63 S.Ct., at 796, characterized the 'historic use of writs of prohibition and mandamus directed by an appellate to an inferior court' as that of 'confining the inferior court to a lawful exercise of its prescribed jurisdiciton, or of compelling it to exercise its authority when it is its duty to do so.' The bounds of this Court's discretionary power to issue such writs were further stated in Parr v. United States, 351 U.S. 513, 520-521, 76 S.Ct. 912, 917, 100 L.Ed. 1377 (1956):

'The power to issue them is discretionary and it is sparingly exercised. * * * This is not a case where a court has exceeded or refused to exercise its jurisdiction, see Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185, nor one where appellate review will be defeated if a writ does not issue, cf. Maryland v. Soper, 270 U.S. 9, 29-30, 46 S.Ct. 185, 189, 70 L.Ed. 449. Here the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction. The extraordinary writs do not reach to such cases; they may not be used to thwart the congressional policy against piecemeal appeals. Roche v. Evaporated Milk Assn., supra, 319 U.S. at page 30, 63 S.Ct. at page 943.' ^[13]

In Parr, the petitioner's claim was simply that a district court had erred in dismissing an indictment at the Government's request after the Government had obtained a new indictment for the same offenses in another district. In contrast, the present case involves a claim that the Council's orders were entered in a matter entirely beyond its jurisdiction. Judge Chandler claims that the order of December 13, 1965, depriving him of both pending and future cases, was tantamount to his removal from office, and that such an act far exceeded the limited jurisdiction over 'administrative' matters conferred on the Council by § 332. He further asserts, as noted in Part I, supra, that the order of February 4, 1966, exceeded the Council's jurisdiction under either § 332 or § 137. Such grave charges clearly go beyond a mere claim that the Council has 'erred in ruling on matters within (its) jurisdiction.' Cf. Will v. United States, 389 U.S. 90, 95-96, 98 and n. 6, 88 S.Ct. 269, 273-274, 275, 19 L.Ed.2d 305 (1967); Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964).

Further, there seems to be no means by which Judge Chandler's challenge to the orders could be aired adequately on review of the cases to which they pertain. While the losing party in a case assigned to another district judge might conceivably argue on appeal that he is entitled to reversal because his case should have been heard by Judge Chandler, such an argument would encounter formidable obstacles. A reviewing court would have no way of determining whether a particular case filed in the District Court after the February 4 Order would, but for that order, have been assigned to Judge Chandler; nor is it clear that the error, if detectable, would in itself entitle the losing party to invalidate proceedings had before another judge. More basically, Judge Chandler is asserting an injury to himself, apart from any injuries to the parties in those cases; the parties cannot be relied upon to seek vindication of that injury. Cf. Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041 (1947); Ex parte Harding, 219 U.S. 363, 372-380, 31 S.Ct. 324, 326 330, 55 L.Ed. 252 (1911).

It is difficult to see how the very multiplicity of the cases affected by the Council's orders could derogate from this Court's authority under § 1651(a) to issue an extraordinary writ in aid of its appellate jurisdiction over them. A somewhat analogous multiplicity was found to militate in favor of the issuance of mandamus in McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992 (1940), and in Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 47 § .Ct. 286, 71 L.Ed. 481 (1927). As later explained by Mr. Justice Brennan, dissenting in La Buy v. Howes Leather Co., 352 U.S. 249, 266, 77 S.Ct. 309, 318, 1 L.Ed.2d 290 (1952),

'Los Angeles Brush Mfg. Corp. was a case where a reference (to a master) was made, not because a district judge decided that the particular circumstances of the particular case required a reference but pursuant to an agreement among all the judges of that District Court always to appoint masters to hear patent cases regardless of the circumstances of particular cases.'

Mandamus was therefore issued in Los Angeles Brush Mfg. Corp., and in McCullough, which involved a similar situation in the same District Court, in order to remedy a pervasive disregard of the Rules of Civil Procedure affecting numerous cases. ^[14]

Similarly, in La Buy the Court upheld the authority of the Court of Appeals under § 1651(a) to issue writs of mandamus compelling a district judge to rescind his referral of two antitrust cases to a master for trial. The Court found that the referral 'was a clear abuse of discretion,' and further noted 'that the Court of Appeals has for years admonished the trial judges of the Seventh Circuit that the practice of making references 'does not commend itself' * * * (and that it was) 'all too common in the Northern District ofIllinois," 352 U.S., at 257, 258, 77 S.Ct., at 314. This factor was primary among the 'exceptional circumstances' found to warrant the Court of Appeals' issuance of the writs.

In the reported case most nearly analogous to this one, the Court of Appeals for the Third Circuit issued a writ of mandamus at the behest of the United States to compel a district judge to return to the judicial office from which he had been unlawfully removed. United States v. Malmin, 272 F. 785 (C.A.3d Cir. 1921). Judge Malmin, of the District Court of the Virgin Islands, had returned to the United States after the territorial governor had purported to remove him and appoint another to his seat. Relying on § 262 of the Judicial Code of 1911, a predecessor of the All Writs Act, the court ruled that it had authority to issue the writ 'in aid of' its jurisdiction, id., at 791; it observed that the absence of a lawfully appointed judge of the District Court affected the rights of litigants in cases reviewable in the Court of Appeals, and that 'the right of the public to a properly constituted trial court from which appeals can validly lie could not be asserted or brought about in proceedings on appeal or by writ of error.' In those circumstances, the court deemed it 'essential to the appellate jurisdiction of this court that orderly proceedings in the District Court of the Virgin Islands be restored.' Id., at 792.

A dissenter in Malmin disagreed with the majority's conclusion that the defect could not be rectified on appeal, and urged that mandamus should not issue because it could not bind the succeeding appointee, who was not a party. In the case before us, as noted above, the ordinary appeals are not adequate to protect Judge Chandler's interest; and there is no problem of missing parties, since it is the judge himself who is complaining of illegal interference with the exercise of his office, and that complaint can be remedied fully by the issuance of a writ against respondent Judicial Council.

For these reasons I would conclude that the actions challenged by Judge Chandler sufficiently affect matters within this Court's appellate jurisdiction to bring his application for an extraordinary writ within our authority under § 1651(a), and that his charges, if sustained, would present an appropriate occasion for the issuance of such a writ. ^[15]

In the present posture of this case Judge Chandler, in my opinion, is not entitled to the relief he seeks. The Order of December 13, 1965, which prompted his recourse to this Court, has been superseded by the Order of February 4, 1966, which I am satisfied is entirely within the authority of the Council. I am wholly unable to regard the latter order either as a 'removal' of Judge Chandler from judicial office, or as anything other than an effort to move along judicial traffic in the District Court. In this state of affairs, I can find no room for the constitutional argument so vigorously made by my Brothers BLACK and DOUGLAS.

Petitioner strenuously attacks the substance of the December 13 Order, which he claims effectively re-

Notes

1. The appeal in Rescue Army involved review of a state prohibition proceeding in which was challenged, before trial, the complex state statutory scheme under which an appellant had been criminally charged. The Court observed that the meanings of the various statutory provisions, and their relationships to one another, were left undefined by the ambiguous opinion of the State Supreme Court; and since the attack was on the face of the statutes, the Court found it unclear which statutes were being challenged and even what the charges were against the appellant. In contrast, the present case involves two brief federal enactments that are challenged, not on their face, but as applied by specific orders of the Council relating to Judge Chandler.
2. 'In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.' U.S.Const., Art. III, § 2, cl. 2.
3. 53 Stat. 1223, as amended, 28 U.S.C. §§ 601, 604.
4. 53 Stat. 1224, as amended, 28 U.S.C. §§ 332.
5. 53 Stat. 1225, as amended, 28 U.S.C. § 333.
6. This provision stated in full:
7. The testimony of Judge Parker of the Fourth Circuit was to the same effect. He explained:
8. I find little guidance for our interpretive problem in the fact that the terms 'administration' and 'administrative' were sometimes used by witnesses or Congressmen to characterize the duties of the Councils. Those terms are not talismanic; they may, in various contexts, bear a range of related meanings. Certainly the phrase 'judicial administration' is often used to characterize judicial tasks
9. For similar reasons I have little difficulty in characterizing as a 'case or controversy' within the Article III judicial power a challenge to an order of the Council that regulates a district judge in the exercise of his official duties. Where, as here, the purpose and effect of the order are to restrict the judge's performance of judicial tasks, and he alleges illegal interference with the exercise of his office, his petition presents a cognizable case or controversy just as does a petition for review of the disbarment of an attorney. See Note, The Exclusiveness of the Impeachment Power under the Constitution, 51 Harv.L.Rev. 330, 334 (1937); cf. Ex parte Bradley, 7 Wall. 364, 19 L.Ed. 214 (1869); Ex parte Robinson, 19 Wall. 505, 22 L.Ed. 205 (1874); Ex parte Wall. 107 U.S. 265, 2 S.C.t. 569, 27 L.Ed. 552 (1883) (mandamus to review disbarment orders of lower federal courts). If a litigant in a case before the district court considered himself aggrieved by a Council order involving his case, his complaint also would seem to raise a justiciable case or controversy, although it is not necessary to decide now in what manner he might obtain review of the order.
10. Compare 28 U.S.C. § 332 with 28 U.S.C. § 43(a) and Fed.Rule App.Proc. 35(a).
11. It should be noted that virtually all of the additional powers that have been conferred on the Councils by provisions of the Judicial Code other than § 332, see infra, define the Council's tasks in terms commonly used as standards for judicial determination. See 28 U.S.C. § 134(c) ('(i)f the public interest and the nature of the business of a district court require'), § 137 ('necessary orders'), § 142 ('court quarters and accommodations * * * approved as necessary'), § 372(b) ('judge * * * unable to discharge efficiently all the duties of his office by reason of permanent mental or physical disability'); 11 U.S.C. § 62(b) ('(r)emoval * * * for incompetency, misconduct, or neglect of duty').
12. Respondent Judicial Council agrees, for 'substantially the reasons advanced by the Solicitor General,' that § 1651 provides statutory authority for exercise of jurisdiction in this proceeding, if the proceeding is within the permissible appellate jurisdiction of this Court under Article III. Like the amicus United States, however, respondent notes that the question is not free from doubt. It is incumbent upon the Court to consider the question even in the absence of disagreement between the parties.
13. See also Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Bankers Like & Cas. Co. v. Holland, 346 U.S. 379, 382-383, 74 S.Ct. 145, 147-148, 98 L.Ed. 106 (1953).
14. The Court in Los Angeles Brush Mfg. Corp. relied upon its mandamus power under § 234 of the Judicial Code of 1911, a provision that may no longer be in effect, see n. 15, infra. However, since the case was one that would be reviewable on certiorari at a later stage, it seems that § 262 (now carried forward in § 1651) was equally applicable. The per curiam opinion in McCullough did not disclose the statutory basis for the ruling there.
15. In many of the early mandamus cases in this Court, such as Ex parte Republic of Peru, supra, the Court based its action on both § 234 and § 262 of the Judicial Code of 1911, the predecessors of

§ 1651 (a). The Court usually did not specify whether it relied upon § 234 or § 262, apparently considering that they furnished overlapping authority. Section 234, which derived from § 13 of the Judiciary Act of 1789, conferred upon this Court, and this Court only, the 'power to issue * * * writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States * * *.' Section 262 provided that '(t)he Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.' The former provision was construed as conferring upon this Court 'a general supervisory power over the inferior courts, so far as this power was exercisable through a writ of mandamus in its historic function,' enabling the Court 'to exercise the essentially appellate function of reviewing and revising a judicial proceeding in a lower court by appropriate use of the common-law writ of mandamus, whether or not it had been given by Congress some other statutory appellate jurisdiction, or potential appellate jurisdiction, by way of an appeal or writ of error or otherwise.' In re Josephson, 218 F.2d 174, 177-178 (C.A.1st Cir. 1954). See, e.g., Virginia v. Rives, 100 U.S. 313, 323-324, 25 L.Ed. 667 (1880); Ex parte Bradley, 7 Wall. 364, 375-377, 19 L.Ed. 214 (1869); Ex parte Crane, 5 Pet. 190, 8 L.Ed. 92 (1831). In contrast, the power granted by § 262 was not an independent appellate power but merely an auxiliary power exercisable when appellate jurisdiction was granted by some other provision of law.

These two provisions were consolidated into § 1651(a) as part of the 1948 revision of the Judicial Code. The brief Reviser' Note explained that the 'revised section extends the power to issue writs in aid of jurisdiction, to all courts established by Act of Congress, thus making explicit the right to exercise powers implied from the creation of such courts.' The 'special provisions' of § 234 relating to the Supreme Court 'were omitted as unnecessary in view of the revised section.' H.R.Rep. No. 308, 80th Cong., 1st Sess., A144-