Congressional Discretion in Dealing with the Federal Rules of Evidence

On November 20, 1972, the Supreme Court, pursuant to statutory authority, adopted the Federal Rules of Evidence. The new rules of evidence were not to take effect, however, until ninety days after they had been submitted to Congress. The rules were officially submitted on February 5, 1973, but even before that date they had become the subject of extensive legislative debate. While some attorneys praise the codification of evidence rules as a progressive step, others maintain that certain of these promulgations will have an objectionable impact on the federal judicial system or that the Supreme Court has exceeded its authority to adopt rules of “practice and procedure.” As a result of this controversy, Congress has enacted a measure which defers the effective date of the rules until approved by an Act of Congress. The objections raised reemphasize a problem that has existed ever since Congress granted to the Supreme Court the power to enact rules of “practice and procedure”: it is unclear what power Congress possesses to modify rules it considers offensive or beyond the authority of the Supreme Court to adopt. This article focuses on the terms of the applicable rules enabling statutes and examines the various methods by which Congress may respond to the rules.