Bench Memos

Supreme Court Candidate Diane P. Wood—Part 3

Judge Wood’s opinion in French v. Duckworth, 178 F.3d 437 (1999), presents a badly confused application of separation-of-powers principles.  In the Supreme Court’s 5-2-2 ruling reversing Judge Wood (in the case styled Miller v. French, 530 U.S. 327 (2000)), not a single justice adopted a position as extreme in favor of judicial power as Wood’s.

The Prison Litigation Reform Act, enacted in 1996, altered the criteria—both for then-pending decrees and for future ones—under which a federal court may take over the management of a prison.  Once a year has passed since the court last addressed the decree, any party may file a motion to terminate relief.  The decree must then be terminated unless the court determines that certain standards are met.  The court is required to decide the motion promptly.  Under the PLRA’s automatic-stay provision (“section (e)(2)”), if the court fails to decide the motion within 30 days (or, if it finds good cause for an extension, within 90 days), the decree is stayed—i.e., rendered ineffective—until the court rules on the motion.

In French, Judge Wood ruled that that section (e)(2) “violates the separation of powers principle because it is a direct legislative suspension of a court order.”  In her view, it “operates directly on the internal adjudication of a case in federal court” and “strips from the court the authority to decide whether the status quo (defined by the earlier decree the court entered that required prospective relief) should be continued or modified pending the court’s decision on the immediate termination petition.”

In his dissent from the Seventh Circuit’s denial of rehearing en banc, Judge Easterbrook explained that Wood had “invented a right of the judicial branch to freedom from deadlines”—a right that would render “many other important statutes and rules … unconstitutional.”  Rejecting Wood’s description of section (e)(2) as inaccurate, Easterbrook explained that that provision “does not tell judges when, how, or what to do, but specifies what happens if the judge does not act.”  Section (e)(2) does not “undermine any of the constitutional safeguards of judicial independence.  It “just goads judges to get a move on.”  Federal judges “have no constitutional power to frustrate through delay the implementation of valid legislation,” and there is no Supreme Court case “holding, or even suggesting, that statutes requiring judges to adjudicate with dispatch pose constitutional problems.”  A hypothetical statute that deprived the court of a reasonable time to rule would violate the due process rights of the litigants, but would not raise a separation-of-powers problem.  (178 F.3d at 448-453.)

On review, the Supreme Court reversed Wood’s ruling, with none of the justices adopting her position that section (e)(2) “violates the separation of powers principle because it is a direct legislative suspension of a court order.”  Justice O’Connor’s majority opinion (for herself and four other justices) largely embraced Judge Easterbrook’s views.  Justice Souter, concurring in part and dissenting in part (joined by Justice Ginsburg), opined that section (e)(2) “may … raise a serious separation-of-powers issue if the time it allows turns out to be inadequate for a court to determine whether the new prerequisite to relief is satisfied in a particular case,” and he would have remanded so that the district court could address this issue.  Justice Breyer, in dissent (joined by Justice Stevens), read section (e)(2) differently from everyone else, including Wood, in part to “avoid[] constitutional difficulties that might arise in unusual cases.”

Quite an unimpressive and troubling performance by Wood. 

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