Last month, with relatively little fanfare, the America First Legal Foundation filed suit against Chief Justice John Roberts, in his capacity as the presiding officer of the Judicial Conference of the United States, and Robert J. Conrad, Director of the Administrative Office of the U.S. Courts. The suit is nominally seeking to enforce a document request under the Freedom of Information Act (FOIA), but substantively raises broad separation-of-powers claims.
The suit was prompted by the refusal of the Judicial Conference and Administrative Office to respond to AFLF’s FOIA requests for copies of communication with the offices of Senator Sheldon Whitehouse and Representative Hank Johnson, two legislators who have worked overtime to stir up ethical allegations against sitting Supreme Court justices. The Judicial Conference and Administrative Office rebuffed the requests on the grounds that each are exempt from FOIA.
The basis for AFLF’s suit is that the Judicial Conference and Administrative Office are not part of the judiciary, but are instead executive branch agencies subject to FOIA. According to AFLF, neither entity is a “court,” and insofar as each has other responsibilities, including the promulgation of rules governing federal courts and responding to Congressional inquiries, each is an “agency” under FOIA. It further claims that insofar as the Chief Justice is able to appoint members of Judicial Conference committees “then he must be acting as an agency head, subjecting the Judicial Conference to the FOIA.” (Cf. Art. II, section 2, which authorizes Congress to delegate authority to appoint inferior officers to “the Courts of Law.”)
The suit does not merely seek fulfillment of the FOIA requests. It seeks to have the Judicial Conference and Administrative Office are “independent agencies within the executive branch.” It further suggests, but does not allege, that the President should have the power to appoint and remove the Presiding Officer of the Judicial Conference and the Director of the Administrative Office.
