The Authors of Law

Introduction The U.S. Supreme Court is best known as the ultimate judicial arbiter: It hears disputes from around the country and world and resolves them according to the Constitution and federal law. The members of the Supreme Court, the justices, are often regarded as lawmakers in their own right, as they frequently rule on issues of federal law that have never been tested in courts before.

One lesser known feature of the Court's authority is that is has the power to prescribe general rules governing federal practice, procedure, and evidence.

The Supreme Court has the power to decide cases and controversies pursuant to Article III of the Constitution and the Rules Enabling Act, which allows the Judicial Conference the authority to prescribe the "general rules" of practice and procedure for the U.S. courts.

This process is different than traditional legislation in a truly important way. The Rules Enabling Act gives the Supreme Court the power to prescribe rules that have the weight of law, but only after Congressional approval.

But why is this important? It turns out that the separation of powers between the branches and between courts and legislatures is an issue of both theoretical and practical import.

While legislatures are generally charged with making laws and courts with interpreting them and trying disputes, there are many situations in which the line between law and procedure blurs. Procedural law touches nearly everything that happens in federal court. From the rules of pleading to the rules of evidence and procedure, courts deal with issues of form and method almost exclusively.

Although some people think of rules as unimportant "formality" of litigation, they actually have the power to determine who wins and loses. That is why the Court's power over the rules of procedure is an issue of exceptional theoretical and practical interest.

Even more surprising, perhaps, is the fact that the Court has not always had this power.

The History of the Rule making Power

Long before the modern Federal Rules of Civil Procedure, though, the Supreme Court had already been given authority to prescribe rules of federal procedure.

In 1842, Congress granted the Supreme Court plenary power to regulate the writs and "generally to regulate the whole practice" of the lower courts.¹ The Court did not exercise that power extensively for many years.

Judicial historiography shows that during this era, the Justices were not very proactive in exercising this power, devoting it mostly to matters of equity and admiralty and leaving "the ordinary common law actions" to federal judges in accordance with their "existing general practice". ²

The Court could have regulated litigation more thoroughly in the decades following the enactment of the 1842 Act. But it didn't.

Procedure Matters

It seems surprising that something as seemingly unimportant as the rules of procedure would have the power to affect the outcome of a lawsuit. But when it comes to lawsuits, procedure matters a great deal.

Procedural law can determine what evidence is admissible, how long a case may last, when appeals may be made, and even who may bring a case to court.

In this respect, the procedural rules can be compared to the operating system in a computer: They do not dictate the content of a lawsuit, per se, but they do determine how a lawsuit proceeds and what tools are available to the participants.

That is why the Court's power over the "rules of the game" is so important to our system of justice in the United States.

One may ask "Who writes the rules?" and then examine the theoretical and practical implications of such a position. The theoretical implications of the Court's power are complex, but the practical implications are even more so. That is why it is important to understand how the process really works in practice.

The Making of the Rules

Congress has long given the Supreme Court the power to enact and repeal procedural rules for the federal courts. In 1934, the Congress added a new twist by enacting the Rules Enabling Act.

The Rules Enabling Act of 1934 provided that the Supreme Court "shall prescribe general rules... of civil procedure to... courts of the United States". The Court began to fill its procedural mandate in 1937 when the Rules Advisory Committee produced the first set of Federal Rules of Civil Procedure.

The Federal Rules of Civil Procedure were enacted and promulgated for the lower federal courts in 1938.³ There is no doubt that the Federal Rules of Civil Procedure have been enormously influential and that they have changed the face of federal civil litigation.⁴

The Rules were enacted to "secure the just, speedy, and inexpensive determination of every action and proceeding...."⁵

At the same time, the Rules Enabling Act itself contains a carefully crafted limitation. Section 2072(b) of Title 28 of the United States Code contains specific language prohibiting the Supreme Court from passing any rules of "procedure and evidence" that "abridge, enlarge or modify any substantive right".⁶ Because of this, the boundary between procedure and law is blurred.

Theoretically, it is simple to understand why procedure is important. In practice, however, it is much harder for courts to walk the line between procedure and law. There is no dispute about the theoretical basis for making the distinction between law and procedure, but the practical implications may prove more complex.

Suppose that a procedural rule had a substantially chilling effect on the right of a party to bring a suit in federal court.

It may prove very hard to separate the right of the plaintiff to bring the suit and her ability to comply with the peculiarities of the particular rule at issue. That is why the ability to walk the line between procedure and law proves to be extremely important in many important cases.

The question the Rules Enabling Act presents is not as simple as it appears on the surface. There is more than a theoretical difficulty in distinguishing between what constitutes "substantive" law and what constitutes "procedural" law.

The Court may create a set of procedures that have the effect of enlarging or abridging "substantive" rights, even if they are not explicitly stated. For example, a procedural rule that prevents all discovery may have a substantial chilling effect on the right to bring a suit. Thus, although it is arguably a procedural rule, it may enlarge or abridging "substantive" rights in practice.

Now, this is perhaps a hypothetical situation, but it illustrates a theoretical difficulty. It also presents the practical difficulty the courts have faced in the real-world operation of the Rules Enabling Act.

Even the brightest minds working within the system struggle to devise a way to ensure that substantive and procedural rights remain separated.

Why It Is Important Who Makes the Rules

There is a very good reason that the Supreme Court was charged with the responsibility of creating rules for the federal courts and the United States District Courts.

It is important for efficiency and orderliness. Procedural rules for civil and litigation are very complex. It takes many hours of training for lawyers to understand the complicated federal procedural rules and the various forms of remedy available in the United States district courts.

The law firms, corporate houses, and governmental agencies that deal with litigation on a regular basis will invest significant time and resources to master the intricacies of procedural forms and practice.

But small business owners and other individuals without substantial resources may not know the rules of law at all. Thus, in a highly complicated system where the stakes are often great, there is a serious risk of denying equal justice to those who are less prepared.

Perhaps that accounts for why the federal procedural rules contain a lot of detail that is not found in state procedural law. The procedural rules in the federal system are much more highly developed. The Court does not act alone, however.

There is a vast array of advisory committees that advise the Court about the rules of procedure and provide draft models for its consideration. The committees operate within the framework prescribed by the Rules Enabling Act.⁷

They provide the opportunity for the public and the bar to participate in the rulemaking, either orally or in writing. All told, there is a vast and complicated procedural system that facilitates the orderly and expeditious disposition of lawsuits across our federal system.

The Democratic Question

The democratic question arises in this context in a particularly interesting way. The federal judiciary is not an elected body, but the members serve for life in order to ensure independence and impartiality under Article III.

Congress, on the other hand, is an elected body. Why should an unelected body have the power to enact rules and procedures that could affect virtually everyone in the federal system?

The answer is that Congress has delegated its authority to a representative body in order to promote efficiency in the adjudication and resolution of disputes. That does not answer the democratic question, however.

The question remains: Why should unelected judges have the power to create rules and procedural requirements that could affect everyone in the system. In order understand the theory behind the operation of this aspect of our form of government is essential to understanding the democratic implications of the process.

The Separation of Powers Question

The Rules Enabling Act raises an interesting theory of separation of powers as well.

Typically, when a court is discussing the issue of separation of powers it is talking about a situation in which the judiciary, executive, and legislative bodies are separate and distinct. When the Court is exercising its authority to create procedural rules, however, this is not the situation.

When the Court is creating the procedural rules, it shares responsibility with Congress, the Supreme Court, and a number of other committees in the formulation of rules that affect everyone who comes before the federal court system. The Rule making system actually allows for the separation of powers amongst the various bodies with authority in the federal system. It is no surprise that the separation of powers doctrine is of great concern to academics.

The rules of procedure create a sort of separation of powers amongst all the bodies with any involvement in litigation in the federal system. As such, these rules could represent a fascinating new area of inquiry in the field of separation of powers studies.

Still, there is a potential downside to the complexity of the procedural rules. Federal procedural rules are so highly technical that lawyers often study them for years in order to become proficient.⁸ This means that the rules of procedure have the potential to limit access to justice for individuals who are not as familiar with them.

It means that while individuals theoretically have a right to due process in the litigation process, they may not actually know how to enforce their rights in federal court. Thus, there is an access to justice dilemma when it comes to the rules of procedure.

Why It Matters The more specific the rules of procedure are, the more potential there is for confusion among people not trained in procedure. That does not mean that people should not be familiar with the law. It does mean that complicated procedural rules may create unanticipated barriers to access.

The complexity may be worth it, in some cases. But the rules are too complicated.

The Federal Rules of Evidence provide an interesting illustration, both of the judiciary's rulemaking capacity and of the role Congress plays in the rulemaking process.

The Federal Rules of Evidence were submitted by the Supreme Court to Congress for consideration in 1973. In 1973, Congress exercised its power under the Rules Enabling Act to suspend their implementation. The rules eventually became law in 1975, when Congress enacted legislation incorporating certain amendments suggested by the Supreme Court. The rules of evidence demonstrate the way in which the separation of powers operates within the rules of procedure, as well.

The whole arrangement illustrates the delicate balancing act between procedure and law, and the complexity of a procedure system that involves a number of actors with separate spheres of power and control.

Conclusion The procedural rules governing the federal courts were designed to create a system for orderly litigation that is accessible to everyone. They also have the capacity to prevent access to justice while creating a convoluted labyrinth of rules that courts have to navigate in order to decide difficult issues of law.

It is worth reviewing the system, then, to understand how the courts work and why it matters. By getting to know the nuts and bolts of the law, we can understand why it is so important to keep the balls of justice rolling down the street, which is essential to our separation of powers system and to protecting individual liberty. This is important both theoretically and practically.

The rules of law are the rules behind the rules: they are the rules that make rules possible

1. Act of Aug. 23, 1842, ch. 188, 5 Stat. 516.

2. Making the Rules of the Rules of the Game: The Use, Misuse, and Disuse of the Rulemaking Grant in the Act of 1842, 139 Harv. L. Rev. 1162, 1162–63 (2026).

3. Act of June 19, 1934, ch. 651, § 1, 48 Stat. 1064 (codified as amended at 28 U.S.C. § 2072).

4. Administrative Office of the U.S. Courts, Federal Rules of Civil Procedure, https://www.uscourts.gov/forms-rules/current-rules-practice-procedure/federal-rules-civil-procedure.

5. Fed. R. Civ. P. 1.

6. 28 U.S.C. § 2072(b).

7. 28 U.S.C. § 2073; Administrative Office of the U.S. Courts, Overview for the Bench, Bar, and Public, U.S. Courts, https://www.uscourts.gov/forms-rules/about-rulemaking-process/how-rulemaking-process-works/overview-bench-bar-and-public.

8. Administrative Office of the U.S. Courts, Overview for the Bench, Bar, and Public, supra note 9.