Adding Judges: Issues in Federal Courts' Governance

Abstract

Periodically, proposals are advanced for expanding federal courts, adding new judgeships to the courts of appeals, the district courts, or even the Supreme Court. Arguments respecting the size of the Supreme Court are rare, as the Court’s size has been relatively constant throughout the nation’s history and unchanged for more than a century and a half. Expansion of other federal courts, however, is proposed far more often and has occurred in fits and starts. Additions to the courts of appeals and, even more, to the district courts are at times helpful in allowing courts to function more efficiently.

Yet, proposals to add judgeships to these courts should be assessed with care, as expansions can create problems that are more significant than the problems they solve. The most important considerations should be that courts operate consistently with the rule of law, that they interpret and apply rules in a predictable fashion in keeping with the text of the Constitution and laws, and that the courts’ decisions allow others to understand the principled bases for applications of the laws. These aspects of judicial operation can be impeded by adding judgeships, especially to appellate courts where collegial decisionmaking becomes more difficult—and consistency less likely—as the number of judges whose views must be coordinated grows.

Before deciding whether to add judgeships, the political branches should review the way that courts currently function, the changes in technology, personnel, and organization that have altered judicial functioning, and the degree to which courts have maintained a pace of case dispositions that is responsive to needs of litigants and respect for the law. A look at these factors at present counsels extreme caution, making it very unlikely that expanding the courts of appeals is justified and likely that a few district courts merit expansion, but not as many (or as aggressively) as currently being advocated by some groups.

Keywords: 'Supreme Court', 'Court Packing', Congress

JEL Classification: K40