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by Andrew Flake

Every year, Chief Justice John Roberts prepares a report on the state of the judiciary, frequently with interesting reference to American history. This year, his thematic focus was judicial independence, a topic for which he selected former U.S. President and Chief Justice William Taft. Taft’s branch-spanning leadership gave him a unique perspective that provides a jumping off point for the current Chief Justice. I’ll provide a quick summary here, but also commend the full 2021 report, well-written and important from a policy perspective, to your review.

In court, as in arbitration or any institutional decision-making context, we expect a neutral and impartial decisionmaker, one with a clear-eyed and fresh approach to each dispute, and a commitment to working hard, ensuring a fair and efficient process, and reaching the right result. Those are individual qualities, inherent in temperament and reinforced by experience. But there is also institutional independence, meaning that the structure of the judiciary itself helps ensure impartiality.

In this regard, there are three issues Chief Justice Roberts examines: first, the widely-reported and to all appearances unintentional, instances of judicial conflicts of interest arising from securities holdings; second, the rules of conduct in the workplace, presumably in the context of judicial staff and supervisory oversight; third, a patent-specific concern concerns about the ability of parties to select not only the venue for their patent cases, but also to effectively select their judge.

This third issue, one the report terms an “arcane but important matter of judicial administration,” is worth some additional attention from litigators. The driver for discussion by the Chief Justice, as well as in Congress, is the continued prevalence of certain venues, in particular the Western District of Texas, for plaintiffs in patent cases.

Since filing rules permit selection of a particular division of a judicial district, if there are only two judges, or even one, as with Judge Albright in Waco, a party with multiple divisional options can in effect select her judge, at least in the perception of many. When we talk about “institutional independence,” a filing rule of this nature is an excellent example of procedure that ties into due process and the nature of decisionmaking itself.

In commiting the issue to study and potential redress, Justice Roberts rightly acknowledges that while the division system does serve the purpose of connecting judges to their communities, it is counterbalanced by the need for federal trial judges who are, and who are perceived by the public to be, neutral generalists:

Two important and sometimes competing values are at issue. First, the Judicial Conference has long supported the random assignment of cases and fostered the role of district judges as generalists capable of handling the full range of legal issues. But the Conference is also mindful that Congress has intentionally shaped the lower courts into districts and divisions codified by law so that litigants are served by federal judges tied to their communities.

And striking the right balance is important to fostering and maintaining ongoing public confidence in the courts.

27th President of the United States William Taft, during his period of service as Chief Justice of the U.S. Supreme Court. As quoted by Chief Justice Roberts, he had concerns about protecting judicial indepedence that will sound very familiar to contemporary ears: “The agitation with reference to the courts, the general attacks on them, . . . all impose upon us, members of the Bar and upon judges of the courts and legislatures, the duty to remove, as far as possible, grounds for just criticism of our judicial system.”

From an ADR perspective, I would add this: Strong institutional independence is just as critical for our arbitral institutions. That is why in both the domestic and international context, contemporary rulesets provide robust provisions for selection of arbitrators, and for disclosure and vetting of any particular conflicts. It is why the arbitral system is so frequently chosen by commercial parties, in complex organizations, operating in complex markets, bringing complex and intricate claims for resolution. And it is why, to ensure that the system continues to enjoy such a high degree of confidence, we need to make continual evaluation and enhancement of our processes a priority. Former President Taft, atlhough his tenure preceded the widespread domestic adoption of the commercial arbitration system, would approve.