There are three primary institutional pillars on which U.S. judicial administration is based. The first is the Judicial Conference of the United States, which was created in 1922 as the Conference of Senior Circuit Judges. It is composed of the Chief Justice of the Supreme Court, the 13 chief judges of the circuits, 12 district court judges and the chief judge of the Court of International Trade. The Judicial Conference is the national policymaking body for the judiciary, and supervises the Administrative Office of the U.S. Courts. Most important is the role that the Judicial Conference plays in the rulemaking process.

 

The first and most central power that the Constitution leaves to Congress, but whose administration Congress transferred to a significant extent to the courts, is the power to set the rules of procedure in court cases. In the Rules Enabling Act, Congress empowered the judiciary to set its own rules of criminal and civil procedure, and since the promulgation of the Federal Rules of Civil Procedure in 1938, the Supreme Court (and lower courts in the case of local rules) has controlled the majority of procedural rules in federal courts. The rulemaking process, although independent of Congress, is not a cloistered affair sheltered from public responsibility. The rules are developed by advisory committees that specialize in civil, criminal, bankruptcy, appellate and evidence rules. These committees, composed of a broad cross-section of the participants in the legal process—judges, the Department of Justice, law professors, and members of the criminal and civil bar who represent both plaintiffs and defendants—propose rules, subject them to public comment, and submit them to the Standing Committee on Rules of Practice and Procedure, which in turn submits them to the Judicial Conference, which recommends them to the Supreme Court for approval. Once the Supreme Court promulgates a rule, it is sent to Congress and becomes effective unless Congress affirmatively rejects it within a statutorily prescribed time. (Rules of Evidence, however, which are considered substantive rather than procedural, are proposed by the judiciary but must be passed as acts of Congress.) The power over the procedural environment in which cases are heard and decisions are rendered is probably the power that is nearest the core of institutional judicial independence.