Revisiting and Confronting the Federal Judiciary Capacity 'Crisis': Charting a Path for Federal Judiciary Reform

100 Pages Posted: 16 Aug 2019 Last revised: 14 Jan 2020

See all articles by Peter S. Menell

Peter S. Menell

University of California, Berkeley - School of Law

Ryan G. Vacca

University of New Hampshire School of Law

Date Written: January 13, 2020

Abstract

The modern federal judiciary was established well over a century ago by the Judiciary Act of 1891. Over the next 70 years, the structure and core functioning of the judiciary largely remained unchanged apart from gradual increases in judicial slots. By the mid-1960s, jurists, scholars, practitioners, and policymakers had voiced grave concerns about the capacity of the federal system to function effectively in the face of ever increasing caseloads.

Heeding calls for reform, in 1972 Congress charged a commission chaired by Senator Roman Hruska to study the functioning of the federal courts and recommend reforms. After extensive study, the Hruska Commission concluded that “[n]o part of the federal judicial system has borne the brunt of increased demands [to protect individual rights and basic liberties and resolve difficult issues affecting the financial structure and commercial life of the nation] more than the courts of appeals.” The Commission called attention to the Supreme Court’s capacity constraints and the risks to the body of national law posed by the growing number of circuit conflicts.

Based on these findings, the Hruska Commission recommended that Congress establish a National Court of Appeals to alleviate the strains on the Supreme Court and regional courts of appeals. The Supreme Court would have authority to transfer cases to the new intermediate appellate court and regional circuit courts would have authority to transfer cases posing circuit splits. The proposal was initially greeted with enthusiasm but ultimately failed. Apart from substantial repeal of three-judge district courts, division of the Fifth Circuit (creating the Eleventh Circuit), the creation of specialty courts for bankruptcy and patent appeals, and increases in the number of district court and appellate court slots, the fundamental structure of the federal appellate system has remained the same.

Does this mean that the problems that galvanized attention half a century ago have abated or been addressed through other means? The data on caseloads and capacity constraints suggest otherwise. District and appellate court caseloads per judge have continued to mount and the number of certiorari petitions has more than doubled. The major impediments to judiciary reform are political, institutional, and human. Judiciary reform has become a legislative third rail, too dangerous for politicians, or even academics, to discuss.

This article revisits and confronts the growing caseload and congestion problems plaguing the federal judiciary. It begins by tracing the history and political economy surrounding judiciary reform. It then updates data on caseloads, processing times, certiorari petitions, en banc review, and other measures of judicial performance, revealing expanding caseloads and growing complexity and fragmentation of federal law. Part III explores the political, institutional, and human causes of the logjam over judiciary reform and offers an antidote: a commission tasked with developing a judiciary reform act that would not go into effect until 2030. The “2030 Commission” members would not know the identity or party of the President or who controls the Senate. Furthermore, any federal judges involved in the process likely would have taken senior status or be retired by the time any reforms went into effect and thus presumably would be less concerned about how reform proposals might affect them personally. By delaying implementation, the 2030 Commission members would in effect be behind a veil of ignorance that would enable them to focus on the best interests of future generations of citizens (and judges and practitioners) while at the same time drawing upon their own experience. The article concludes by outlining a judiciary reform agenda for the 2030 Commission.

Keywords: Federal Courts, Judiciary Reform, Hruska Commission, Judiciary History

Suggested Citation

Menell, Peter S. and Vacca, Ryan G., Revisiting and Confronting the Federal Judiciary Capacity 'Crisis': Charting a Path for Federal Judiciary Reform (January 13, 2020). California Law Review, Vol. 108, Forthcoming . Available at SSRN: https://ssrn.com/abstract=3436493

Peter S. Menell (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

Ryan G. Vacca

University of New Hampshire School of Law ( email )

Two White Street
Concord, NH 03301
United States
603.513.5291 (Phone)

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