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A struggle over the norms and boundaries of federal judicial authority is ongoing, both within the United States Supreme Court and between the Court and Congress. That debate is taking place not only in the Court's high-profile constitutional docket but in ordinary cases and in work other than adjudication. The five-person majority that has become famous for its jurisprudence on the Commerce Clause, the Fourteenth Amendment, and sovereign immunity has also revised the scope of federal equitable and common law powers. The emerging legal rules stem from cases—such as Grupo Mexicano de Desarrollo, S.A., v. Alliance Bond Fund, Inc. and Great-West Life & Annuity Insurance Co. v. Knudson—that may not come trippingly off the constitutional scholar's tongue but must be understood as working in tandem with the majority's restrictions on the power of Congress to develop new federal rights. These holdings instruct federal judges not to craft remedies without express congressional permission, and, when permission has been granted, to read it narrowly.
Moreover, through collective action unprecedented in the American experience, the Rehnquist Judiciary is attempting to convince Congress not to grant such permission. The Article III judiciary has become increasingly active in Congress before legislation is enacted-opining to Congress and the public about which litigants ought to be able to bring substantive claims to the federal courts.
Eighty years ago, Congress chartered a conference of circuit judges to meet under the leadership of the Chief Justice and—"in the interest of uniformity and expedition of business"—to "survey ... the condition of business" of the federal courts. Thus began an entity, novel for the United States, which provided a means for judges to coordinate and collaborate. As I detail in a brief history below, during its first decades, the Conference did not use its collective voice to comment on which litigants merited access to federal courts. Thereafter, the Conference occasionally advised against federal court remediation for certain kinds of cases.
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