The House Judiciary Committee earlier this fall approved three bills that could dramatically affect the work of the federal courts and especially the Supreme Court. While the bills are not likely to become law anytime soon, they could be reintroduced in the next Congress in 2019 and generate considerable debate.

One of the most controversial bills would require all federal judges, including Supreme Court justices, to undergo periodic fitness for duty exams. Another measure would realign the structure of the Ninth Circuit Court of Appeals, while a third would limit the authority of district judges to impose nationwide injunctions. A closer look at the proposals follows.

 

The Judiciary ROOM Act, H.R. 6755

The Judiciary Reforms, Organization and Operational Modernization (ROOM) Act of 2018, H.R. 6755, was introduced by Subcommittee on Courts, Intellectual Property, and the Internet Chair Rep. Darrel Issa (R-Calif.). It would create additional federal judgeships, but would also install some significant changes in the operations of the federal courts and the Supreme Court.

The bill, for the first time in almost three decades, would comprehensively establish a number of new district judgeships, in line with the 2017 recommendations of the Judicial Conference of the Federal Judiciary. It would add 52 new permanent district court judgeships and convert eight of the 10 existing temporary district court judgeships to permanent status.

In addition, the ROOM Act would require federal judges and Supreme Court justices to undergo physical exams, with increasing frequency as they got older to ensure they are physically and mentally capable of performing their duties. The bill would require physical assessments every five years for judges and justices age 70 and younger, every two years for those older than 70 and younger than 81, and every year for those 81 and older. When a physician identifies a condition that may impact the ability of the judge or justice to carry out his or her duties, the bill would require the physician to submit his or her findings to the appropriate chief judge or chief justice.

The bill would also require the Judicial Conference to issue a code of conduct for all federal judges, including Supreme Court justices. The Judicial Code of Conduct currently does not apply to the justices, prompting critics to question why they are not bound by the same code of ethics that all other federal judges are required to follow. The bill also would require a Supreme Court justice, upon recusal, to release an online notice explaining the reasons for the recusal. No rule currently requires the justices to explain their recusals.

Finally, the ROOM Act would install new transparency requirements over appellate arguments, requiring the circuit courts to livestream their arguments and the Supreme Court to release same-day audio within a year and provide live audio within two years.

 

The CIRCUIT Act, H.R. 6754

The Court Imbalance Restructure Concerning Updates to Impacted Tribunals (CIRCUIT) Act of 2018, H.R. 6754, was also introduced by Rep. Issa. It would restructure the Ninth Circuit Court of Appeals into three regional divisions: the Northern Division, comprising Alaska, Idaho, Montana, Oregon, and Washington; the Middle Division, consisting of the existing Northern and Eastern Districts of California, Guam, Hawaii, Nevada, and the Northern Marianas; and the Southern Division, comprising Arizona and the existing Central and Southern Districts of California. A fourth division, covering the entire circuit, would hear cases to resolve conflicts between the divisions. The CIRCUIT Act’s approach toward restructuring of the Ninth Circuit resembles the recommendations of the 1998 Commission on Structural Alternatives for the Federal Courts of Appeal, which was chaired by Justice Byron White.

 

The Injunctive Authority Clarification Act, H.R. 6730

Finally, this measure, introduced by House Judiciary Committee Chair Rep. Robert Goodlatte (R-Va.), would ban nationwide injunctions in non-class action cases. Nationwide injunctions have been criticized for their ability to obstruct the implementation of certain initiatives of the Trump sdministration, as well as the Obama administration, over the past several years.