Rebuilding the Federal Circuit Courts

Abstract

The conversation about Supreme Court reform—as important as it is—has obscured another, equally important conversation: the need for lower federal court reform. The U.S. Courts of Appeals, in particular, have not seen their ranks grow in over three decades. Even then, those additions were stopgap measures built on an appellate triage system that had outsourced much of its work to non-judicial decisionmakers (central judicial staff and law clerks). Those changes born of necessity have now become core features of the federal appellate system, which distributes Article III resources—including oral argument and judicial scrutiny—to a select few. This work begins to reimagine the courts in a time of surplus, not scarcity, and it offers a comprehensive framework for identifying why, where, and how to add judges to the federal appellate courts. The existing distribution of judicial resources has created a problem: the courts have relied too much on procedural shortcuts that permit them to be highly selective in deciding which cases receive judicial attention. Some quantitative evidence—review rates from the U.S. Supreme Court from unpublished lower court decisions—and some qualitative evidence—the attitude of appellate judges themselves—support that observation. Ultimately, the distribution of appellate resources has been uneven across the country in ways that have a disparate impact on communities of color and poor communities. To redress these systemic deficits, this works urges Congress to engage in lower court reform by adding judges to the most under-resourced federal appellate courts. In so doing, it offers a framework for identifying under-resourced courts that would ensure periodic and consistent congressional review of judicial needs. These measures consider indicia of over-delegation, population growth, and caseload demands—all while incentivizing courts not to over-rely on procedural shortcuts in the first place.