Excerpt from The Process of Making Process: Court Rulemaking, Democratic Legitimacy, and Procedural Efficacy by Robert G. Bone
The ideal of nationally uniform procedural rules promulgated by the Supreme Court after consideration by expert committees—commonly known as “court rulemaking”—has been the cornerstone of civil rulemaking in the federal courts since adoption of the Rules Enabling Act in 1934. …
I. The Court Rulemaking Model
Civil rulemaking for the federal courts illustrates the core features of the court rulemaking model—centralized rulemaking by courts relying on the expertise of committees and aimed at creating uniform, general, and systemically integrated rules. The Supreme Court has the power to “prescribe general rules of practice and procedure” for the federal courts, and the Judicial Conference of the United States has the authority to recommend rule changes to the Supreme Court.The Judicial Conference in turn oversees a committee structure that includes a Standing Committee on Rules of Practice and Procedure appointed by the Chief Justice of the Supreme Court and various advisory committees accountable to the Standing Committee. The Advisory Committee on Civil Rules, which consists of judges, lawyers, and legal academics, is responsible for the Federal Rules of Civil Procedure.
There are several stages in the rulemaking process. A proposed rule is first considered by the Advisory Committee. If the Advisory Committee approves the proposal, it is then reviewed by the Standing Committee and finally by the Judicial Conference before being forwarded to the Supreme Court. If the Supreme Court concurs, the proposal is transmitted to Congress, which then has roughly seven months to exercise a veto. In the absence of a veto, the proposed rule goes into effect.
Robert G. Bone, The Process of Making Process: Court Rulemaking, Democratic Legitimacy, and Procedural Efficacy, 87 Geo. L.J. 887, 888-92 (1999) (Footnotes omitted).
Substance v. Procedure and Sibbach v. Wilson & Co.
The Court was faced with a challenged to the validity of an FRCP in Sibbach v. Wilson & Co., 312 U.S. 1 (1941). In that case, the petitioner specifically challenged FRCP 35 (Physical and Mental Examination of Persons) as exceeding the rulemaking power of Congress under the Rules Enabling Act. FRCP 35, in relevant part, provides:
“Order for Examination. In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”
After refusing to submit to an order for such physical examination made by the District Court for Northern Illinois, petitioner challenged the order as void as the state courts of Illinois do not allow for such an order to be made. The Court characterized the petitioner’s challenge to the FRCP as one requiring a determination of the relative “importance” of a given right rather than the proper characterization of an FRCP as either “procedural” or “substantive” – a lens of analysis it squarely rejected:
“We are thrown back, then, to the arguments drawn from the language of the Act of June 19, 1934. Is the phrase ‘substantive rights' confined to rights conferred by law to be protected and enforced in accordance with the adjective law of judicial procedure? It certainly embraces such rights. … The petitioner says the phrase connotes more; that by its use Congress intended that in regulating procedure this court should not deal with important and substantial rights theretofore recognized. Recognized where and by whom? The state courts are divided as to the power in the absence of statute to order a physical examination. In a number such an order is authorized by statute or rule. The rules in question accord with the procedure now in force in Canada and England.
The asserted right, moreover, is no more important than many others enjoyed by litigants in District Courts sitting in the several states, before the Federal Rules of Civil Procedure altered and abolished old rights or privileges and created new ones in connection with the conduct of litigation. The suggestion that the rule offends the important right to freedom from invasion of the person ignores the fact that as we hold, no invasion of freedom from personal restraint attaches to refusal so to comply with its provisions. If we were to adopt the suggested criterion of the importance of the alleged right we should invite endless litigation and confusion worse confounded. The test must be whether a rule really regulates procedure,—the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them. That the rules in question are such is admitted.”
In dissent, Justice Frankfurter highlighted the significance of the personal right in question and the relative insignificance of Congressional approval of the federal rulemaking process:
“So far as national law is concerned, a drastic change in public policy in a matter deeply touching the sensibilities of people or even their prejudices as to privacy, ought not to be inferred from a general authorization to formulate rules for the more uniform and effective dispatch of business on the civil side of the federal courts. I deem a requirement as to the invasion of the person to stand on a very different footing from questions pertaining to the discovery of documents, pre-trial procedure and other devices for the expeditious, economic and fair conduct of litigation.”
“In this view little significance attaches to the fact that the Rules, in accordance with the statute, remained on the table of two Houses of Congress without evoking any objection to Rule 35 and thereby automatically came into force. Plainly the Rules are not acts of Congress and can not be treated as such. Having due regard to the mechanics of legislation and the practical conditions surrounding the business of Congress when the Rules were submitted, to draw any inference of tacit approval from non-action by Congress is to appeal to unreality. And so I conclude that to make the drastic change that Rule 35 sought to introduce would require explicit legislation.”