On Expanding Federal Courts

Ronald A. Cass

Current Issue

Americans generally respect judges and trust them, along with our judicial system as a whole. Though public approval of all major U.S. governing institutions has fallen to remarkable lows in recent years, Gallup found in September 2021 that 54% of Americans expressed trust in the federal judicial branch — a higher percentage than the other two branches and the only branch with a majority voting in its favor. That trust has been a fact of American life for generations, as Alexis de Tocqueville observed two centuries ago. It is a matter of great importance to the nation, and not something we should take for granted.

Maintaining that trust, and building on it, should be on the minds of lawmakers entrusted with decisions about the structure of the federal judiciary. Debates about the number of justices on the Supreme Court — which generally follow some decision or set of decisions that raise the ire of a political party — might give us the wrong impression about the questions involved in determining the size and shape of the third branch as a whole. They may offer outlets for frustration, but they have almost never translated into changes in the size of the nation's highest court. The most recent example occurred last year, after Democrats' heated criticism of a Supreme Court they viewed as unfairly dominated by conservatives prompted President Joe Biden to assemble a commission to examine the possibility of adding seats to the Court, among other potential adjustments to the justices' selection and tenure. When the commission issued its final report in December 2021, the panel declined to take a position on the matter of Court expansion, and the president seems inclined to drop the matter.

But the Supreme Court is not the only federal court, of course. And changes to the other federal courts are a far more common occurrence. For that reason, debates concerning their size and composition often prove far more meaningful.

Several recent proposals have floated the idea of expanding the number of federal judgeships at the district and appellate levels. In March 2021, the Judicial Conference of the United States — the national policymaking body for the federal courts — recommended adding 79 new positions to the federal court system, in addition to making nine temporary judicial positions permanent. This would increase authorized circuit- and district-court judgeships by a total of 88 members — 10% of the current total. Democratic members of Congress have also introduced legislation to add 203 new federal judgeships and convert temporary seats to permanent ones in nine districts, which would increase the number of authorized district-court judges by almost one-third.

While not divorced from reactions to particular judicial decisions, calls for making changes to the courts below the Supreme Court often respond to considerations unique to those courts. Examining and weighing these concerns can help guide us in deciding whether it would be prudent to add judgeships to those courts.

The politics of the day will inevitably inform the argument over whether new seats need to be added and, if so, how many and on which courts. But we should resist the temptation to allow the courts to be shaped by transient political winds. The more important question is what considerations ought to guide policymakers in deciding what judicial resources are appropriate for which courts.

Ultimately, before any courts are expanded, public officials should consider not just the number of judges, but also their caliber and the role they play in our system. Identifying these principles will allow us to apply them to the circumstances of today's courts and determine whether recent proposals to expand the lower federal courts truly have merit.

DESIGNING THE FEDERAL JUDICIARY

The U.S. Constitution gives considerable leeway to Congress to decide how to organize the federal courts. Article III defines the basic requirements that must be met for a matter to fall within the judicial power of the United States, the method for appointing judges to the courts, and procedural protections for the judiciary, such as life tenure and irreducible pay. The Constitution also commits specific matters to the original jurisdiction of the Supreme Court. As for the remainder of the judiciary, Article III says only that it is to be constituted of "such inferior Courts as the Congress may from time to time ordain and establish." How many courts, of what type, with what jurisdiction, and composed of how many judges — all of this is left to Congress to decide.

Starting with the first Judiciary Act in 1789, Congress created a system of geographically distributed district courts as first-level trial courts and similarly distributed circuit courts, which were granted dual roles as both original trial courts and courts of review for certain challenges to district-court decisions. Subsequently, Congress expanded the federal courts' jurisdiction, altered requirements for some matters, and created a system of intermediate appellate courts (the U.S. courts of appeals).

The federal judiciary's numbers have remained relatively stable over time. This is especially true of the Supreme Court: Congress assigned six seats to the Court for its first 18 years, seven for the following 30 years, and, except for a brief dalliance with 10 justices in the 1860s, nine for the next 185 years and counting.

The number of district- and circuit-court judgeships has increased over time, but usually quite gradually. What's more, the enlargement of the courts hasn't always kept pace with changes in population and economic growth, both of which affect demands on the judiciary. For example, between 1789 (following the first Judiciary Act's creation of the lower federal courts) and 1889 (shortly before the law creating our current arrangement of district and circuit courts was adopted), the number of district-court judgeships rose from 13 to 59 — about four and a half times the original number — over the period of a century. During that same time frame, the U.S. population increased to more than 16 times its size in 1789, while the nation's economy grew to a figure approximately 70 times its initial size. Over a 230-plus-year span, judgeships sometimes rose at a faster pace than the population, other times much slower, and always behind the rate of economic activity.

JUDICIAL SELECTION AND THE RULE OF LAW

Population and economic growth are not the only factors that should be considered when contemplating further expansions of the federal judiciary. Deciding what does or should control the number of judges requires understanding not only how many judges are needed, but also what type of judges are required to serve public interests. The lodestar must be what judges are supposed to do: What are their obligations under our constitutional and legal systems, and how do they fulfill them?

The essential predicate for the judiciary is that it implements the rule of law, meaning that it interprets and applies rules made by others (including the Constitution, congressionally enacted statutes, and regulations adopted by the agencies) in ways that are consistent, predictable, and based on the laws as written. To do that, judges must be independent of political influence and have the inclination and skills needed to perform the work relevant to their assignment. At the trial-court level, this entails supervising trials and managing litigation; at the appellate level, it involves working with other judges to decide disputes over legal questions. These are matters of the judiciary's structure, as well as the professional ability and personal disposition of individual judges.

Ultimately, the federal judicial system works only if the judges appointed to the bench possess the skill sets required of their positions and are committed to behaving in ways consistent with their assigned roles. They must also have the temperament to perform the work in each court's particular context — the ability to work collaboratively with other judges in appellate work, or with other court personnel and litigants in trial settings.

These requirements are not simply a list of attributes handed to the president to guide his appointments; they also inform how the confirmation of judges proceeds, as well as deliberations about the size of the judiciary — discussions that ought to be oriented toward the goal of selecting judges who adhere to and promote the rule of law. The wrong process for appointing and confirming judges, along with the wrong structures for political interactions with the judiciary, can undermine this goal.

A judiciary that is the wrong size will also find it more difficult to support the rule of law. Appointing too many judges inevitably requires at least some compromises during the search for candidates with the right character and proficiency. As with picking members of any team, one starts by selecting the people thought to best embody the qualities desired. But choosing people for any task includes an element of chance — there is never complete foresight or a perfect set of incentives to pick the best-qualified candidate. What's more, there is a limited pool of qualified candidates, meaning the more one expands the number who are chosen, the greater the risk that the average level of quality will decline. The same principle holds true regardless of whether one is selecting athletes or judges.

Practical concerns should also guide discussions about the right number of judges. There is an optimal number for performing the work that needs to be done on each court, and for doing it well. Having too few judges can impede those who serve from carrying out their work properly and efficiently, but having too many judges on any court, or too many in total, can have equally — or perhaps more — detrimental consequences. What suffers most in the latter situation is the coherence of judges' rulings and interpretations of the law.

This last point was emphasized by Judge Gerald Tjoflat in the 1990s, in his response to a proposal from Ninth Circuit Judge Stephen Reinhardt to double the number of federal appellate judges. Tjoflat, a long-serving judge on the U.S. Court of Appeals for the 11th Circuit, pointed out that a principal responsibility of appellate judges is to ensure — or at least to improve — the clarity and consistency of interpretations of law within a circuit. This means both addressing district judges' divergent legal interpretations and collaborating with colleagues on the appellate court to determine what the circuit's preferred approach will be. But as the number of judges on an appellate court increases, the possible combinations of judges on the three-member panels that typically make the court's decisions rise exponentially. Tjoflat observed that when a court increases from the size of the 11th Circuit (then with 11 active judges) to that of the Ninth Circuit (then with 28 active judges), the number of possible panel combinations rises from under 200 to over 3,200. With Reinhardt's proposed increase, the number would have approached 28,000.

Even assuming that judges on all panels labor mightily to maintain consonant approaches, the difficulty of making decisions in more complex matters, or in cases where the law is less well established, means that adding judges to the bench will inevitably reduce the clarity and consistency of rulings within the circuit. The problems that come from having less lucid and less consistent decisions at the appellate level will manifest at the district-court level and, in turn, in the behavior of those living and conducting business within the appellate-court's jurisdiction.

Many highly respected judges have expressed reservations similar to Tjoflat's, including Supreme Court chief justices Charles Evans Hughes and William Rehnquist, associate justices Joseph Story and Felix Frankfurter, and several circuit-court judges. In general, they argued that as more judges are added to an appellate court beyond a relatively modest number, the court becomes less collegial, less efficient, and less well functioning. This problem applies with special force to appellate courts because of their mission — deciding difficult legal issues and resolving disputes among lower courts — and their communal approach to decision-making. Thus, Congress should be especially cautious about expanding the number of circuit judgeships.

The problems that stem from overexpanding the judiciary do not only affect appellate courts. At the district-court level, having more judges makes consistent and lucid interpretations of law less readily attainable. This is true on any given district court as well as when judges are added across multiple districts within one state or regional circuit. And at the district level, the mechanisms for addressing differences in the interpretation and application of law apart from appeals to the circuit courts are limited and weak.

Beyond these concerns about upholding the rule of law and maintaining a consistent jurisprudence, there is another cost of adding judges to federal courts that should be considered: the risk of diminishing judges' perceptions that they and their colleagues are participating cooperatively in a law-bound enterprise. When judges don't see colleagues very often or overlap in their work as readily — not to mention when judges are increasingly treated as players in a political conflict by politicians, the media, and the public — their sense of being part of the same team declines. That perception diminishes incentives for judges to try to work together to produce clear and consistent decisions.

THE DANGER OF POLITICIZATION

The latter concern points to the relationship between efforts to expand the federal courts and the public reputation of judges. Politicians and pundits often criticize specific judges or decisions through a political lens, viewing the judicial enterprise as an extension of ordinary political combat. Many scholars who write about the courts — especially the Supreme Court — follow suit, constructing models of judging that evaluate decisions along a linear, liberal-conservative spectrum.

For other scholars and commentators who write about the American judiciary, the important question is not whether there are divisions among the judges and justices, but why the divisions that exist are so modest. On the federal courts of appeals — including those often portrayed as bitterly divided by ideology — panel decisions are unanimous more than 95% of the time. Unanimity is also the most common outcome for the Supreme Court, with only one or two dissents in many other instances.

This degree of consensus on the federal courts suggests that judges are, generally speaking, committed to deciding cases under the law. In difficult cases, different approaches to interpreting the law may lead to divergent conclusions. But for the vast majority of federal judges, commitment to law-bound decision-making remains the norm.

Even if increasing judgeships did not undermine this commitment, it risks making courts appear more political. Some of the arguments for expanding the judiciary are in fact rooted in a desire to amend judicial decisions that a party disfavors for political reasons — or, at best, for reasons that correspond closely with political judgments. During Barack Obama's term, for instance, law professor Steven Calabresi called for a substantial increase in judgeships to reduce the impact of the president's judicial appointments. Ever since Republican appointees gained a 6-3 majority on the Supreme Court, Democrats have been calling on Congress to create four additional seats, all while admitting their proposal is designed to secure outcomes that better fit their political preferences.

Yet as the late Justice Ruth Bader Ginsburg and, more recently, Justice Stephen Breyer have cautioned, whatever the behavior of the judges themselves, adding seats to the Supreme Court — even if not entirely motivated by partisan interests — would inevitably make the Court appear more political. The justices' warnings are sound, and they apply to lower federal courts as well; even the appearance of a politically motivated expansion of judgeships — not to mention the reality of it — threatens the judiciary. And it does so along three fronts.

The first is that it makes politicians even more likely to inject political calculations into the process of selecting and confirming judges. After all, if the number of judgeships is raised at least in part to influence case outcomes, there is all the more reason for politicians to make this factor the focus of judicial confirmations as well. The second danger is that politically inspired expansion can diminish judges' sense of shared, collegial engagement in their work. As discussed above, this can undermine the quality and consistency of a court's decisions. Finally, expansions of the judiciary that appear politically motivated reduce public confidence in the notion that courts uphold the rule of law. Absent the public's trust, a judiciary in a democratic republic like ours cannot long maintain its legitimacy.

The point here is not that every suggestion to expand the number of judgeships is political, although many of the calls for adding judges are doubtlessly intertwined with political considerations. The more important point is that, even if expanding the judiciary is justified for politically neutral reasons, too great an expansion still risks looking political, thereby coloring appointments and reducing trust in the judiciary as an institution.

The same problem affects proposals to increase the number of judges with an eye toward making the bench more representative of different demographic characteristics. Calling for a more representative judiciary, like calling for a larger judiciary more generally, could be based on something other than preferences for particular judicial outcomes — perhaps a sense that, at least in some cases, people of different backgrounds may have increased sensitivity to certain factors relevant to judicial decisions, and that these perspectives might influence assessment of either factual or legal issues. But such arguments are rarely supported by meaningful data, and they undervalue the core element of judging: adherence to the law.

As with more explicitly political bases for expanding the number of judgeships, this approach risks making the judiciary appear more like another political-representative branch of government than a branch that embodies the value of decision-making in keeping with the rule of law. That could undermine the functioning of the courts as well as the public's sense of their legitimacy. These are serious dangers that are worth taking seriously.

LITIGANT CONCERNS

Another crucial consideration to take into account when contemplating an increase in the number of federal judges is the effect it might have on litigants, both actual and potential.

Litigants are chiefly concerned with three elements of judicial decision-making: quality, cost, and speed. To get a sense of how adding judges might affect those who come before a court, we must consider each of these elements in turn.

The quality of judicial decision-making hinges on whether courts interpret and apply the law in sensible and predictable ways. Their opinions should also provide guidance for future litigants that is coherent and meaningful. Crafting tests for the application of law that litigants and other observers can understand requires skilled judges who evince a commitment to clear thinking and careful attention to the elements of legal reading and writing. Understanding the facts, observing predictable rules, and articulating them clearly are qualities lawyers typically want in a judge — in fact, lawyers frequently cite doubts about finding decision-makers who fit these criteria when they opt for using arbitration or other alternative dispute-resolution vehicles.

Another concern litigants have is the cost of presenting matters to courts and having their issues resolved. Rules that define the way litigation unfolds, the burdens of production and persuasion, how litigants can access information held by others, and how they may present findings to the decision-maker all have significant implications for the cost of litigation. Though such expenses cannot be taken as free-standing matters unrelated to the choices litigants make, judicial interpretations of the rules can affect them. Judges who understand the rules of procedure and exercise good practical judgment can keep a lid on costs to some degree.

The third element of judicial decision-making that litigants value is speed. This is often the most prominent consideration in public discussions of how many judges should sit on the federal courts. Congressional representatives from both parties, including Democrat Hank Johnson and Republican Darrell Issa, have made the issue of delays in judicial decisions their central argument in favor of adding new judgeships. Other advocates of expanding the courts have pointed to judges' caseloads, which are often taken as a proxy for the speed with which litigation can be resolved. Caseloads are not necessarily correlated with the speed of case resolution, however, meaning that the debate speaks more to the concerns of the judges themselves than the interest litigants have in a speedy resolution of their case. And as we shall see later on, the data are broadly consistent with the conclusion that there is no caseload crisis in the federal courts that calls for additional judges.

Even if the number of cases assigned to a judge did correlate with speed, the pace of litigation must also be weighed against the quality of the decision-making. From a litigant's standpoint, it's generally preferable to have judges on the bench who are serious, diligent, and efficient enough to resolve disputes quickly and properly, as opposed to just quickly. And enhancing speed — especially by adding seats, which can undermine judges' ability to carry out their duties — may come at the cost of the quality of judges' decisions.

ASSESSING NEEDS

One final element to consider before adding federal judgeships involves the practical needs of the courts themselves. Politics aside, the arguments most assiduously advanced in support of adding seats to the bench focus on difficulties in the timely processing of cases, backed by data indicating that the federal courts have witnessed a significant increase in caseloads. But a closer examination of these data reveals serious reason to doubt the need to add a significant number of judgeships to manage existing caseloads. At the very least, it supports taking a modest approach to the issue rather than rushing to expand the judiciary.

Turning first to the appellate level, advocates of creating additional judgeships have repeatedly asserted that the U.S. courts of appeals are facing a crisis due to the rising number of cases. Yet while the appellate caseload did increase from the 1970s through the 1990s, it leveled off afterward and then began to decline. The number of cases filed in the federal courts of appeals in 2020 was almost 10% below the number filed in 2000.

Not only are case numbers falling, but the time taken to reach decisions is, too. Though termination times rose precipitously in the 1970s, they leveled off during the following two decades and, after an uptick in the early 2000s, have shown signs of trending downward again. Since 2010, the median time for deciding cases in the federal courts of appeals has been lower each year in the past decade (from 2011 to 2020) than it was in the decade's first year. The difference is even more dramatic when compared with termination times from three decades earlier: In 1990, the median time it took the federal courts of appeals to close a case was over 15 months — roughly 69% higher than it was in 2020 and more than double what it was in 2016.

These data should temper the view that judges have reached their breaking point in terms of workload. As it appears, rising efficiency in the courts' handling of appellate filings has more than compensated for increases in case numbers. Four developments in particular explain why appellate courts have become more efficient at completing cases and, in turn, why judicial expansions are not necessary to help judges handle their caseloads.

The first is that technologies useful to judges have improved. Federal courts now have access to better computing, word-processing, research, and communications services than they once did, all of which allows judges and the staff members who manage cases to increase their efficiency, to work more collaboratively, and to be productive in a greater variety of places and settings than they could a decade or two ago. There is no reason to believe improvements in the relevant technologies have reached a stopping point, either.

Second, courts and those who interact with them have benefitted from improvements in the number and range of support personnel. Judges on the courts of appeals now routinely hire three or four clerks, many of whom have experience in the law, economics, statistics, or other professional fields that can be helpful for reviewing case-related submissions and assisting with writing opinions. This represents a major shift from the past, when judges had only clerical help and one or perhaps two clerks fresh out of law school to assist them.

In addition to the support personnel working for individual judges, many circuit courts of appeals employ large professional staffs to help process motions respecting dismissal, deal with criminal-sentencing issues, and provide special attention to cases involving pro se litigants (those who appear on their own behalf). Combined with improved technology, the growth in court personnel and their diversity of expertise have been a boon for courts' efficiency.

Third, a growing number of judges who hear and decide appeals are not included in the count of authorized judgeships. The federal courts of appeals have 179 positions for active judgeships, but they can also call upon an additional 114 senior circuit judges. If each senior judge carries just 25% of the caseload typical of an active judge (and many assume much more), this corps of auxiliary circuit judges boosts the courts of appeals' judicial capacity by one sixth. That is the equivalent of roughly 30 new judgeships.

The fourth and final factor that has enhanced appellate courts' efficiency is the redistribution of judicial resources toward producing precedential opinions in only certain cases. Some have criticized this process as privileging the managerial interests of judges over ensuring a fair trial to litigants. Though this is not a concern to take lightly, the allocation of judicial resources is more reasonably characterized as enhancing both the quality of judicial decisions and fairness to litigants. Allocation of resources is a function every organization performs, whether in a manner that is carefully planned and publicly acknowledged or one that occurs through accident and neglect. It makes sense for courts to spend more time and effort on cases that fit least clearly within the confines of established law. Cases for which the governing legal principles are readily identified and not seriously in doubt, on the other hand, should be resolved expeditiously, without requiring the same commitment of judicial resources. Resolving legal disputes more quickly by giving the right sort of attention to each category of cases offers a method that serves the interests of the participants without denying anyone due process of law.

When one looks at how the courts of appeals have updated their operations in recent years to adapt to changes in their workload, the sense of crisis should evaporate. There is no evidence of a mass exodus of federal circuit judges who are too overburdened by work to press on. The case for judicial expansion on these grounds, therefore, is a weak one.

As for the federal district courts, there are some important distinctions to consider. District courts differ from courts of appeals because most of what district judges do involves decisions regarding case management, trial supervision, and resolution of narrow legal questions, none of which have precedential control over other courts. Furthermore, some district courts have experienced rising caseloads and increased delays in case resolution, which offer reasons to look hard at possible additions to their benches.

Though district-court judges don't issue opinions that bind other courts, they are still part of a collegial enterprise in the sense that their decisions affect the pattern of law within their district. Any added judgeship, then, imposes potential costs on the effectiveness of this enterprise. Beyond that, the increased demands for and grants of nationwide injunctions by district judges threaten to politicize the courts.

Aside from these concerns, it's far from clear that there exists a widespread need for additional district judges. Politicians — who expect to exercise some influence over, and derive personal benefits from, new appointments in their home locales — may push for new judgeships in their jurisdictions, but the personal and professional interests of lawmakers should not dictate the addition of judgeships. Those calling for expanding their district court's bench should have to demonstrate that its workload per judge significantly exceeds that of other districts, and that this excess is not merely transitory.

Where there has been a persistently large and growing caseload (especially cases involving thorny legal issues that district-court judges feel compelled to decide), several questions should be asked before adding more judges, including: Was the increase in cases caused by a change in the law that could be expected to further increase those courts' workloads in the future? Was it caused by an alteration in policy or practice — as with the policy shifts triggering a surge in immigration that affects districts close to the border — and if so, is the policy permanent? Has there been a growth in population or other drivers of litigation that might be expected to contribute to increased demand for those courts' time and attention? And finally, have all opportunities for terminating cases more efficiently been exploited, or are there additional options — from technological solutions to new managerial strategies — that might lessen the burden on those courts?

Looking at these criteria suggests that, while a fair number of district judgeships that the U.S. Judicial Conference proposes adding are justified, others are not. Congressional Democrats' push for a far greater expansion is even more likely to include a high proportion of appointments justified by political, rather than legal, considerations. To avoid undermining public trust, each proposed addition should be tested by the criteria identified above, taking into account its own particular circumstances.

A TRUSTWORTHY JUDICIARY

Policymakers should exercise caution before adding judgeships to the federal courts. Expanding the judiciary carries the risk of politicizing the courts and diminishing the appearance, if not the reality, of impartial adherence to the rule of law. While politicians of opposing parties can't convince one another of much of anything regarding the propriety of controversial court decisions, both sides should be sensitive to the hazards of imposing political pressures on the courts, sparking further controversy, and reducing the clarity and consistency of the law.

If America is to remain a nation that trusts and respects judges, those who give shape to the judiciary should ensure that its expansion is driven by sound reasons that take into account the real costs that adding seats can bring. And lawmakers should also recognize that, however earnest their criticisms of judicial decisions, acting to gain short-term advantage by expanding the courts is likely to exacerbate the problems they see in our courts and undermine the principles they hold dear.

Ronald A. Cass is dean emeritus of the Boston University School of Law, distinguished senior fellow of the C. Boyden Gray Center for the Study of the Administrative State, and president of Cass & Associates, PC.


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