Circuit Capture and the National Court of Appeals

Abstract

We are facing a crisis of confidence in our federal courts. Polarization in the judicial selection process and partisanship in judicial decision-making have yielded a steep decline in the public’s trust of the judicial branch. Much of the blame lies with the Supreme Court, whose repeated ethical scandals and aggressive rightward tilt have renewed calls for major court reform—from court packing to jurisdiction stripping, from term limits to lottery dockets, and much more in between. But the Supreme Court is not the only court in need of reform. The vast majority of cases go no further than the thirteen U.S. Courts of Appeals, which increasingly suffer from the same polarization and politicization problems without the same level of scrutiny.

Regional organization is an arbitrary product of history. Perhaps it made sense when the Nation’s first circuit courts were staffed by Supreme Court justices, who had to contend with the realities of early 19th-century travel. But as the country expanded and the circuit courts evolved from trial courts into the powerful, law-making U.S. Courts of Appeals, that structure has long since outgrown its initial justification and is now being exploited for political gain. There’s no better example than the current Fifth Circuit—an ultra-conservative court stacked with appointees by Donald Trump hand-picked for their conservative bona fides and constantly in the headlines for its sweeping, politically-charged decisions.

This problem—one of circuit capture by partisan judges—is structural, and a structural problem requires a structural solution: the dissolution of the regional circuits. The idea of a single, unified National Court of Appeals is not new. Several commissions and judicial administration scholars have unsuccessfully proposed it in one form or another to combat increasing caseloads. But the problems the courts face today is not one of caseloads, it is one of legitimacy. And taking aim at the margins and working within the bounds of the current structure will not solve it. This Article argues that a single, centralized intermediate federal appellate court would alleviate the partisan problems generated by captured circuits, promote uniformity of federal law, and streamline the appellate process.