The Supreme Court, the Rules Enabling Act, and the Politicization of the Federal Rules: Constitutional and Statutory Implications

To a certain portion of the populace, the Federal Rules of Civil Procedure probably represent little more than highly technical and esoteric directives for the day-to-day operation of the federal litigation process—if, indeed, they represent anything at all. Even the average federal litigator may well think of the Rules primarily as either technical requirements that must be complied with or strategic devices employable to facilitate victory. In reality, however, many of the Federal Rules have a dramatic impact on fundamental socio-political and economic concerns: the allocation of governmental resources, the redistribution of private wealth, the effectiveness of legislatively imposed behavioral proscriptions, and concerns of fairness and equality. This is probably not what either the Congress that originally authorized them, the Advisory Committee that originally prepared them, or the Supreme Court Justices who originally promulgated them expected the Rules to do. Recognized at the time or not, however, the choices made by the drafters of the Rules have often had a significant impact on foundational moral, economic, and social choices made by society as a whole. Over the last twenty-five years or so, the political stakes involved in shaping the Federal Rules of Civil Procedure have gradually risen to the surface, and those interest groups most affected have responded accordingly. During that time, the process by which the Rules are revised has been made consid-