What do we know about the judicial contempt power?

by on February 9, 2017 at 12:11 am in Current Affairs, Law, Political Science | Permalink

Nicholas R. Parrillo of Yale Law School has a new paper on this topic.  I have not yet read it, but here is the abstract:

Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the court says. But in fact, the federal government’s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. Such orders can strain a federal agency’s resources, interfere with its other legally-required tasks, and force it to make decisions on little information. An agency hit with such an order will often warn the judge that it badly needs more latitude and more time to comply. Judges relent, cutting slack and extending deadlines. The plaintiff who has “won” the suit finds that victory was merely the start of a tough negotiation that can drag on for years.

These compliance negotiations are little understood. Basic questions about them are unexplored, including the most fundamental: What is the endgame? That is, if the judge concludes that the agency has delayed too long and demanded too much, is there anything she can do, at long last, to make the agency comply?

What the judge can do, ultimately, is the same thing as for any disobedient litigant: find the agency (and its high officials) in contempt. But do judges actually make such contempt findings? If so, can judges couple those findings with the sanctions of fine and imprisonment that give contempt its potency against private parties? If not, what use is contempt? The literature is silent on these questions, and conventional research methods, confined to appellate case law, are hopeless for addressing it. There are no opinions of the Supreme Court on the subject, and while the courts of appeals have handled the problem many times, they have dealt with it in a manner calculated to avoid setting clear and general precedent.

Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government’s disobedience. It makes four conclusions. First, the federal judiciary is willing to issue contempt findings against agencies and officials. Second, while several federal judges believe they can (and have tried to) attach sanctions to these findings, the higher courts have exhibited a virtually complete unwillingness to allow sanctions, at times swooping down at the eleventh hour to rescue an agency from incurring a budget-straining fine or its top official from being thrown in jail. Third, the higher courts, even as they unfailingly thwart sanctions in all but a few minor instances, have bent over backward to avoid making pronouncements that sanctions are categorically unavailable, deliberately keeping the sanctions issue in a state of low salience and at least nominal legal uncertainty. Fourth, even though contempt findings are practically devoid of sanctions, they have a shaming effect that gives them substantial if imperfect deterrent power.

The efficacy of litigation against agencies rests on a widespread perception that federal officials simply do not disobey court orders and a concomitant norm that identifies any violation as deviant. Contempt findings, regardless of sanctions, are a means of weaponizing that norm by designating the agency and official as violators and subjecting them to shame. But if judges make too many such findings, and especially if they impose (inevitably publicity-grabbing) sanctions, they may risk undermining the perception that officials always comply and thus the norm that they do so. The judiciary therefore may sometimes pull its punches to preserve the substantial yet limited norm-based power it has.

For the pointer I thank the excellent Kevin Lewis, note the link to Kevin is Kevin survey some new and interesting papers on international trade.

1 Mark Thorson February 9, 2017 at 12:56 am

But does that separate out the FOIA requests due to Ms. Barbara Schwarz?

2 Enrique February 9, 2017 at 1:28 am

Wow, the “abstract” is almost 600 words! My fellow law professors need abstracts for their abstracts…

3 Walcott February 9, 2017 at 9:13 am

Yes, that was exactly my first (..and second) impression of this abstract.

The awkward logic flow and sentence structure immediately destroys the credibility of Nicholas R. Parrillo of Yale Law School.

Judicial Contempt authority and processes are a very interesting topic. Even more interesting is U.S. Congressional contempt authority.

4 glowend@live.com February 9, 2017 at 12:15 pm

“The awkward logic flow and sentence structure immediately destroys the credibility of Nicholas R. Parrillo of Yale Law School.” I’m not sure how useful it is to evaluate arguments or someone’s credibility based on prose style. I believe it was to Spohists who valued such skills and Socrates who showed that the substance and logic of an argument were the best way to evaluate ideas, not slick presentation.

5 Thanatos Savehn February 9, 2017 at 1:48 am

Rehnquist was played by the Left. He never understood their endgame which is to seize power first and then have the courts cement it – eternally. As a result he let them win, over and over, as they expanded the administrative hyper-state. He thought the people would surely rise up, but he failed to anticipate that most Americans would gladly trade their Liberty for a free baloney sandwich, stale chips and flat soda.

6 Sam Haysom February 9, 2017 at 4:17 am

Relinquish failed to comprehend just how radically anti-majoritarian left wing judicial oligarchy was becoming. He mistakenly though the left was simply overly committed to curbing the excesses of majoritarianism. Instead the left is devoted to a rigid minoritarianism that repudiates any role for majorities in adjucating questions of rights.

Needless to say this is a complete repudiation of the founding fathers, but has proved ruthlessly effective.

Trump has done an excellent job at bring this element of the left to the forefront as has laid the foundation for some likely pretty substantial Republican victories over the next four years. We will see if that holds.

7 Thiago Ribeiro February 9, 2017 at 12:00 pm

Interesting enough, it is right wing fellows who keep saying the Founding Fathers created a Republic, norta Democracy (as if those things were opposite to each other) and whine about senators being elected instead of nominated (yeah, it is quaint, but it is a righ wing-only quirk). The real problem is the American regime has become nightmarishy disfunctional because Americans hated one another and themselves. The so-called American Dream has become sour and a powerful cabal of plutocrats control both main political parties. The American government has turned against its own people.

8 rluser February 9, 2017 at 6:41 am

We still have Jackson’s (apocryphal?) “John Marshall has made his decision. Now let him enforce it.” Perhaps I shall read this paper.

9 TuringTest February 11, 2017 at 3:15 am

Yeah right! The paper is 91 pages long

10 chuck martel February 9, 2017 at 6:02 am

“An agency hit with such an order will often warn the judge that it badly needs more latitude and more time to comply.”

Sure, the government, with its non-negotiable and arbitrary calendar dates, wants more time, hoping the problem resolves itself or is solved without activity by themselves or is simply accepted as the norm.

11 rayward February 9, 2017 at 7:27 am

Autocracy is a greater threat than most believe, for our form government, with its checks and balances split among three branches, does not apportion power evenly; indeed, the judicial branch is by far the weakest even though it has at times been called upon to resolve the thorniest of disputes. Without an army to enforce sanctions or the power of the purse to raise an army, the judicial branch’s power rests on the willingness to accept and comply with its orders. Hence, the judicial branch cannot check the actions of a determined autocrat. As Ezra Klein persuasively argues in a recent essay, only “Congress can protect the American system from an overbearing president.” Klein quoting David Frum: http://www.vox.com/policy-and-politics/2017/2/7/14454370/trump-autocracy-congress-frum Klein: “The president can do little without Congress’s express permission. He cannot raise money. He cannot declare war. He cannot even staff his government. If Congress, tomorrow, wanted to compel Trump to release his tax returns, they could. If Congress, tomorrow, wanted to impeach Trump unless he agreed to turn his assets over to a blind trust, they could. If Congress, tomorrow, wanted to take Trump’s power to choose who can and cannot enter the country, they could.” Unfortunately, Frum believes that Congress, this Congress, will likely fall to Trump’s will, failing the responsibility placed on Congress by the founders and failing us. The framers mistakenly believed that the government would be balanced by competition among the three branches. This Congress, led by McConnell and Ryan, is yoked to a president who hijacked their political party and now wishes to hijack the entire government, and shows no inclination to resist. That’s Frum’s pessimistic view. Klein is only a little less pessimistic, but to Klein it won’t be the judicial branch that preserves our constitutional government by imposing sanctions, it will be the Congress. To encourage Congress to live up to its responsibility, the media, the country, should focus on the Congress, not the judiciary, and demand that “Congress do its damn job”.

12 MOFO February 9, 2017 at 10:01 am

FTFA: “Trump has shown himself unconcerned with the norms of American democracy. He routinely proclaims elections rigged, facts false, the media crooked, and his opponents corrupt. During the campaign, he flouted basic traditions of transparency and threatened to jail his opponent. His tendencies toward nepotism, crony capitalism, and vengeance unnerve.Trump has shown himself unconcerned with the norms of American democracy. He routinely proclaims elections rigged, facts false, the media crooked, and his opponents corrupt. During the campaign, he flouted basic traditions of transparency and threatened to jail his opponent. His tendencies toward nepotism, crony capitalism, and vengeance unnerve.”

Yup, those things are unique to Trump and his supporters. No good, right thinking democrat has ever done any of those things. No sir, you will find none of that on Mr. Kliein’s fine website. No baseless claims that minorities are having their votes suppressed or that R’s are gerrymandering. No false facts there, Vox and company only report the unvarnished truth, and all of it, too. And they would never ever ever attack the media for reporting on the Hillary email investigations. Or Hillary in general. Vox would never claim that the media is biased against Hillary. And transparency? Thats the real tragedy here. No president ever in the history of the presidency has had transparency problems like Trump. Certainly not Obama who was without a doubt the most transperentest president ever.

13 Ray Lopez February 9, 2017 at 7:51 am

Good article. Shorter summary (one anecdote), from the Andrew Jackson era: Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), https://en.wikipedia.org/wiki/Worcester_v._Georgia (“President Andrew Jackson [Donald Trump?] reportedly responded: “John Marshall has made his decision; now let him enforce it!”)

14 Art Deco February 9, 2017 at 8:42 am

A more interesting question is to as what we can engineer that will allow elected officials to hold judges in contempt. Contemptuous and contemptible our judiciary certainly is, as are the law faculties who train them and supply them with ideas (and shallow smart-assed clerks).

15 Ricardo February 9, 2017 at 8:57 am

Judges can be impeached by Congress. Anything beyond that requires rewriting the constitution.

16 Ak Mike February 9, 2017 at 10:00 am

Actually, no, the constitution says nothing about how judges are removed from office. It just says they hold office during good behavior.

17 Ricardo February 9, 2017 at 11:58 am

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

As far as I can tell, the term “civil officers” has been interpreted to include federal judges and this interpretation stretches back to the attempted impeachment of Samuel Chase in the early days of the republic.

18 Sam Haysom February 9, 2017 at 4:19 pm

The courts other than the Supreme Court are the creations of Congress- they can dispense with judges how they deem fit.

19 Ricardo February 9, 2017 at 5:50 pm

“The courts other than the Supreme Court are the creations of Congress- they can dispense with judges how they deem fit.”

From the Constitution: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

Congress may consolidate judicial districts or courts of appeal and may be able to eliminate certain judicial positions as part of that reorganization — that appears to be an open question. The Constitution is clear, however, that a judge may not be removed or face a salary cut due to philosophical differences with the other two branches of government. In case of “bad behavior,” the appropriate path is impeachment which is, as I noted, described elsewhere in the Constitution. The most recent impeachment of a federal judge was that of Thomas Porteous in 2010.

20 anon February 9, 2017 at 9:31 am

I bet most of these judgements against government, and actions required, were environmental.

Something comments above seem not to realize.


21 anon February 9, 2017 at 9:40 am

BTW, why is the right suddenly leaving it to the (center and) left to talk about asset forfeiture?

I would think that is right up this blog’s alley.


22 MOFO February 9, 2017 at 10:07 am

Reason.com has been on that for a long time.

23 anon February 9, 2017 at 10:21 am

Yes, looks like good reporting of the new .. ok, I shouldn’t say new police state, but as I have said, it is really bad that Trump likes to meet with and be photographed with people in uniform. People with guns. It gives credence to the “authoritarian” description/indictment.


24 Turkey Vulture February 9, 2017 at 10:29 am
25 anon February 9, 2017 at 10:41 am

You need better material. Or a younger audience. The tank ride was meant as counter-programming to the perception of Dukakis as a wimp. Instead the comically small man with the comically large helmet reinforced it.

26 anon February 9, 2017 at 10:42 am

On the other hand, good material would involve polling:

My finding is the result of a national poll I conducted in the last five days of December under the auspices of the University of Massachusetts, Amherst, sampling 1,800 registered voters across the country and the political spectrum. Running a standard statistical analysis, I found that education, income, gender, age, ideology and religiosity had no significant bearing on a Republican voter’s preferred candidate. Only two of the variables I looked at were statistically significant: authoritarianism, followed by fear of terrorism, though the former was far more significant than the latter.


27 anon February 9, 2017 at 10:48 am

Just to be clear, about venue. People who go into law enforcement are (no surprise) more authoritarian than the general public. When Trump visits them “as base” he visits an authoritarian base.

New police recruits did show significantly more prejudice than control participants — evidence of selection. But a closer look at the data revealed that prisoners were the only group against whom the recruits were significantly more prejudiced than the control group was. The new police recruits were not significantly more prejudiced than the control group against the poor, Gypsies, or Arabs. Unlike other marginalized groups, prisoners are directly associated with danger because presumably they have threatened society by violating the law. Therefore, the scientists identified right wing authoritarianism — an ideological belief that favors addressing perceived danger in the social realm through group control, stability, and cohesion — as a likely cause of new recruits’ prejudice.


28 Turkey Vulture February 9, 2017 at 10:51 am

“And in the 2008 Democratic primary, the political scientist Marc Hetherington found that authoritarianism mattered more than income, ideology, gender, age and education in predicting whether voters preferred Hillary Clinton over Barack Obama.”

He also conflates two forms of significance in the portion you quote: actual significance and statistical significance. He never quantifies the extent to which his model finds that “authoritarianism” predicts voting behavior. He just says it is statistically significant.

29 anon February 9, 2017 at 10:57 am

Everyone is on the authoritarian scale somewhere. I can see why Clinton would be higher than Obama. I can be happy (non-authoritarian that I am) that the less authoritarian candidate won that round.

But you seem to misunderstand the transitive relation. Whenever A > B and B > C, then also A > C.

30 Turkey Vulture February 9, 2017 at 11:09 am

Thanks for the education. Always so helpful.

The identity of voters doesn’t make the candidate that identity.

There are many unmeasured variables that likely co-vary with measured “authoritarianism.” If “authoritarian” voters choose a candidate based on these, the analysis would attribute it to “authoritarianism” when it was something else. And again, none of these are measuring the size of the claimed effect. If “strong authoritarianism” makes someone 10% more likely to vote for a candidate, is that a reasonable basis to construct an entire theory of that candidate’s authoritarianism around? I don’t think so.

Your interest in this isn’t some neutral desire to understand the world. It is that “authoritarianism” has a negative connotation, so you are interested in labeling your political enemy with it.

31 anon February 9, 2017 at 11:38 am

As I say, everyone is somewhere on the authoritarian scale.

The US has typically sought balance, emphasizing “freedom” as the other side of the coin.

We have leaned quite strongly for freedom, in fact.

32 Turkey Vulture February 9, 2017 at 11:59 am

You’re conflating what should be two separate concepts, which I suspect many studying “authoritarianism” do as well.

“Authoritarianism” should be understood in relation to the structure of government and political decision-making. An “Authoritarian” believes that power should be largely in the hands of one person or a small number of people. They favor the centralization of power and hierarchy. “Freedom” is the degree to which people can make their own choices about how to lead their lives. These interact with each other, and there is some overlap as “political freedom” is part of the larger idea of “freedom.”

But imagine a democratic nation with a highly dispersed structure of governmental power and political decision-making. Say most decisions rest in local “town councils,” which decide issues based on majority vote by all of the adult members of the community. Such a system should not be called “authoritarian.” It should be very low on any “authoritarian” scale. But it is easy to see how it could become a localized tyranny of the majority that suppresses individual freedoms.

Similarly you can imagine an authoritarian leader who grants the citizenry significant freedom in how they lead their lives (some libertarians seem to believe this is a more likely route to the libertarian paradise than democratic rule).

33 MOFO February 9, 2017 at 12:42 pm

“it is really bad that Trump likes to meet with and be photographed with people in uniform.”

IF thats the worst he does then we will all be blessed.

34 TMC February 9, 2017 at 12:15 pm

Glad you finally noticed. I am disappointed Trump isn’t firmly against this, but it has been normal policy for quite some time.

35 Turkey Vulture February 9, 2017 at 10:26 am

Glad to see the topic get some attention.

The courts face a coordination problem here, as a given judge in a given case will not tend to fully factor in the dilution in the norm from their own assessment of sanctions. So it is the appellate courts that have to step in and try to act as coordinators. If any of them (or if the Supreme Court) give up on the idea of enforcing the norm, it collapses.

The same applies to the norm of judicial restraint (namely making decisions based on the law rather than a judge’s own political preferences). Individual judges will tend to over-step the bounds of the norm because their own gains from imposing their preferences outweigh the marginal reduction in the norm’s force (which acts both to constrain judges and to constrain other branches to follow judicial decisions). Appeals courts need to take action to try to counter this tendency in order to maintain the norm (and hence judicial power). They are in a better position to do so because they are less dispersed, have a greater sense of (and access to) the judicial power, and so weigh the cost vs. gains of a political decision differently. If, say, the Supreme Court becomes too obviously political (or foolishly acknowledges its politicization), the norm collapses, potentially leading the norm of complying with the judiciary’s decision to collapse as well, and with it the power of the judiciary.

36 Cyrus February 9, 2017 at 9:12 pm

How obvious do the Supremes need to become? The majorities in Citizens United and Obergefell enunciated precisely the same legal theory on behalf of different constituents (individual rights persist when exercised in association) and yet Justice Kennedy was the only judge in both majorities.

37 Picador February 9, 2017 at 12:26 pm

The problem addressed in this paper is a special case of a more general problem: a litigant who doesn’t care about his or her reputation or credit rating is exceptionally hard to hold accountable under civil law. The courts have very little enforcement power, as the paper points out — their influence mostly comes from setting norms, which most respectable member of civil society will respect. It has been my experience that courts are extremely reluctant to hold ANYONE in contempt — not just government actors. The theory proffered here — that judges don’t want to declare contempt out of concern that further defiance will undermine the perceived force of those norms — goes a long way to explaining that tendency in the case of ordinary litigants as well.

All I know is that it’s very, very hard to get someone to comply with civil law if they don’t give a f*** about social norms. While judges pretend that part of their job is upholding respect for the law, they are very reluctant to do that job when push comes to shove.

38 poorlando February 9, 2017 at 6:04 pm

At a conference that I attended recently, there was discussion of the fact that certain state constitutions have positive mandates such as requiring that schools be properly funded. Setting aside the morass of having the judicial branch pass judgment on what is ultimately a political decision, the issue was raised of how to get the legislative and executive branches to comply with a court’s order that more money be spent on schools. The conference panelists could not come up with any good general principles to apply, and could only point to questionable ad hoc devices, such as ordering the state controller to withhold legislators’ pay until they complied or striking laws that provided tax deductions and credits in order to feed the state’s coffers.

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