Deciding Who Decides: Understanding the Realities of Judicial Reform

Abstract

On October 1, 1981, an extraordinary spectacle took place in the ceremonial courtroom of the ornate Fifth Circuit Court of Appeals building in New Orleans. More than 30 circuit judges assembled on a platform along with Solicitor General Rex E. Lee, former Attorney General Griffin Bell, and other dignitaries. After a series of speeches extolling the Fifth Circuit’s illustrious past, 17 of the judges, led by Chief Judge John Godbold, filed from the platform. They were now members of a new tribunal, the Court of Appeals for the Eleventh Circuit. The old Fifth Circuit had passed into history.

The story of how the Fifth Circuit came to be divided into two new circuits is told by two political scientists, Deborah J. Barrow and Thomas G. Walker, in A Court Divided: The Fifth Circuit Court of Appeals and the Politics of Judicial Reform. The account is fascinating in its own right, but it also raises a number of questions that transcend the particular restructuring that is the book’s subject. This essay addresses two of these broader issues. First, how does a scholar go about investigating the origins of judicial reforms? Second, were the political underpinnings to the controversy over dividing the Fifth Circuit aberrational, or are political consequences implicit in any proposal for the restructuring of judicial institutions?

In this essay, the author draws on his experiences as the deputy director of the Hruska Commission to provide additional context for the events discussed in the book and to illustrate the difficulties of accurately tracing the history of a judicial reform measure. The author also examines the history and political implications of other judicial-reform efforts, including a successful proposal to centralize patent appeals in a single national court and pending legislation to divide the largest of the federal circuits, the Ninth.

Keywords: judicial reform, judicial restructuring, circuit realignment, circuit division, Hruska Commission, appellate courts, Eleventh Circuit Court of Appeals, Federal Circuit, patent appeals, Ninth Circuit Court of Appeals