Court Sanctions,
Contempts, and Defaults (OFFSITE LINK)
Young v. Ex. Rel. Vuitton Et Fils, 481 U.S. 787 (1987)
Our only holdings conferring an inherent contempt power to enforce judgments emanate from In re Debs, 158 U.S. 564 (1895), whose outcome and reasoning we have disapproved. There a Circuit Court, which had enjoined union officers and organizers from engaging in activities disruptive of interstate rail traffic, held them in contempt for failing to comply with the injunction and sentenced them to jail for terms from three to six months. This Court rejected the argument that they had thereby been deprived of their right to a jury trial, stating:
[T]he power of a court to make an order carries with it the equal power to punish for a disobedience of that order, and the inquiry as to the question of disobedience has been, from time immemorial, the special function of the court. And this is no technical rule. In order that a court may compel obedience to its orders, it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency.
Id. at 594-595.
At the time, many considered Debs a dangerous decision, see Dunbar, Government by Injunction, 13 L.Q.Rev. 347 (1897); Gregory, Government by Injunction, 11 Harv.L.Rev. 487 (1898); Lewis, Strikes and Courts of Equity, 46 Am.L.Reg. [481 U.S. 823] 1 (1898); Lewis, A Protest Against Administering Criminal Law by Injunction, 42 Am.L.Reg. 879 (1894); and the opinion continued to be criticized long after it was handed down. See Green v. United States, 356 U.S. 165, 193-216, especially 196, and n. 6 (1958) (Black, J., dissenting). Ultimately, its holding was repudiated in Bloom v. Illinois, 391 U.S. 194 (1968), where we ruled that courts are required to afford persons charged with criminal contempt a jury trial to the same extent they are required to afford a jury trial in other criminal cases. But Bloom repudiated more than Debs' holding. It specifically rejected Debs' rationale that courts must have self-contained power to punish disobedience of their judgments, because
"[t]o submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency."
391 U.S. at 208, quoting Debs, supra, at 595. The Bloom Court, to the contrary,
place[d] little credence in the notion that the independence of the judiciary hangs on the power to try contempts summarily and [was] not persuaded that the additional time and expense possibly involved in submitting serious contempts to juries will seriously handicap the effective functioning of the courts.
Bloom, supra, at 208-209.
The Court argues that Bloom does not control these cases, because
[t]he fact that we have come to regard criminal contempt as "a crime in the ordinary sense," Bloom, supra, at 201, does not mean that any prosecution of contempt must now be considered an execution of the criminal law in which only the Executive Branch may engage.
Ante at 799-800. To this argument it could be added that Bloom did not draw the distinction relied on here between the narrow Anderson necessity principle, that the courts must be able to conduct their business free of interference, and the broad necessity principle, that courts must be able to do anything required to give effect to their decisions. [481 U.S. 824]
While both these points are true, it seems to me that Bloom is nonetheless highly relevant to the present cases. First, it eliminates this Court's only holdings that the courts must have autonomous power to hold litigants in contempt as a means of enforcing their judgments. And second, it makes clear that the argument from necessity to the existence of an inherent power must be restrained by the totality of the Constitution, lest it swallow up the carefully crafted guarantees of liberty. 391 U.S. at 209. While this principle may have varying application to the jury trial and separation of powers guarantees, it is inconceivable to me that it would not prevent so flagrant a violation of the latter as permitting a judge to promulgate a rule of behavior, prosecute its violation, and adjudicate whether the violation took place. That arrangement is no less fundamental a threat to liberty than is deprivation of a jury trial, since "there is no liberty if the power of judging be not separated from the legislative and executive powers." 1 Montesquieu, Spirit of the Laws 181, as quoted in The Federalist No. 78, p. 523 (J. Cooke ed.1961). Moreover, as a practical matter the impairment of judicial power produced by requiring the Executive to prosecute contempts is no more substantial than the impairment produced by requiring a jury. The power to acquit is as decisive as the power not to prosecute; and a jury may abuse the former power with impunity, whereas a United States Attorney must litigate regularly before the judges whose violated judgments he ignores.
Finally, the Court suggests that the various procedural protections that the Constitution requires us to provide contemners undercut the separation of powers argument against judicial prosecution. Ante at 799, n. 9. The reverse argument -- that the structural provisions of the Constitution were not only sufficient but indeed were the only sure mechanism for protecting liberty -- was made against adoption of a Bill of Rights. Ultimately, the people elected to have both checks. The Court is right that disregard of one of these raises less of a prospect of "tyrannical licentiousness" than [481 U.S. 825] disregard of both. But that is no argument for disregard of either.
I would therefore hold that the federal courts have no power to prosecute contemners for disobedience of court judgments, and no derivative power to appoint an attorney to conduct contempt prosecutions. That is not to say, of course, that the federal courts may not impose criminal sentences for such contempts. But they derive that power from the same source they derive the power to pass on other crimes which it has never been contended they may prosecute: a statute enacted by Congress criminalizing the conduct which has been on the books in one form or another since the Judiciary Act of 1789, supra, at 821. See 18 U.S.C. § 401.