Policymaking under Constraint: Decision Modes in the U.S. Courts of Appeals

Abstract

The caseload of the U.S. Courts of Appeals has increased dramatically while the volume of cases decided by the United States Supreme Court has declined precipitously. Thus, the Courts of Appeals have increasingly assumed an important policymaking role as the final arbiter of federal law, while simultaneously confronted with increased demand to monitor the decisions of the U.S. District Courts for error. In the present study, we exploit this dilemma to examine how courts with mandatory jurisdiction respond to the challenge to increase their policymaking role under the increasing resource constraints posed by caseload growth. We focus on shifts in the use of two important policymaking institutions of the Courts of Appeals—disposition with oral argument and by en banc rehearing. We find that as caseload stress has become particularly acute, the Courts of Appeals have prioritized disposition by oral argument over the use of en banc rehearing. Given the decline in the docket of the Supreme Court, an implication of this finding is that the constraint produced by rising caseloads has diminished oversight and increased autonomy for policymaking by three-judge panels in the Courts of Appeals.