Renewing Our Faith in the Federal Judiciary

This is another commentary in Civic Way’s series on reconstructing American government. The author, Bob Melville, is the founder of Civic Way, a nonprofit dedicated to good government, and a management consultant with over 45 years of experience working with governmental agencies across the US.

Highlights

The fierce partisanship surrounding federal court nominations is distracting us from serious threats to the judiciary—their effectiveness, efficiency and independence, their very legitimacy
The Supreme Court, the face of the federal judiciary, has taken few steps to prevent perceptions of elitism and favoritism, thereby risking the reputation of the entire federal judiciary system
The inefficiency of the federal judiciary unnecessarily defers justice and strains decision-making, leaving the prospects of more legal uncertainty and litigation in its wake
Congress should take steps to refine the jurisdiction of the federal courts, such as super-majority thresholds for overturning federal laws and a shift from generalized to specialized federal courts
Congress should empower the Judicial Conference and Administrative Office to calibrate judicial resources to caseloads and manage the federal courts more effectively and efficiently
Congress should establish tough ethics and disclosure standards for all federal judges, including Supreme Court justices, as well as strong enforcement mechanisms

Blinded by the Fight

As the US Senate confirms the latest Supreme Court nominee in record time (and as Covid-19 infections surge again), we should worry about the legitimacy of the federal courts—the very foundation of their constitutional role. In their war over the ideological balance of federal judges, the two parties may be doing more to undermine the American experiment than the current President, no small feat.

Neither party holds the moral high ground. Since 2009, Senate Republicans have employed a ruthlessly simple strategy to place ideologically-suitable judges in the federal judiciary—block Democratic nominees and expedite GOP nominees. First, the Senate left 110 federal judgeships vacant, including a Supreme Court seat, during Obama’s presidency. Second, once the GOP won the presidency in 2017, the Senate approved the appointment of over 200 federal judges.

Democratic leaders, while arguably less ambitious, also have tried to shape the ideological balance of the federal courts. In 2003, they used filibusters to block some judicial appellate court nominees, prompting the Washington Post to label the Democratic tactics a “dramatic escalation in the war over the courts — one Democrats may come to regret.” The tactics used against Supreme Court nominee Kavanaugh were dubious at best. And now, justifiably angry at the Senate Majority Leader’s latest display of rank hypocrisy, some Democrats are demanding retaliatory strikes.

At the state level, several GOP-led legislatures have sought to add state supreme court seats or alter nominating rules for political ends (e.g., Arizona, Florida, Georgia and Iowa). In North Carolina, days after losing a gubernatorial race, GOP legislators tried and failed to add two seats to the state supreme court and then tried and failed to pass a constitutional amendment to strip the governor’s judicial appointment powers. Not to be outdone, Democratic legislators in Massachusetts tried and failed to limit the terms of the GOP Governor’s court appointees.

So here we go again, allowing politicians to distract us. Republicans accuse Democrats of court-packing, yet ignore their own court packing schemes. Democrats accuse Republicans of court-stacking while dodging questions about their own plans. The media, obsessed with ratings, cover the scrum with bated breath, all the while missing the big picture. They fail to reveal doctrines like textualism and originalism for what they are, ideological veneers. Most importantly, they overlook the fragile effectiveness, efficiency and legitimacy of the federal courts.

Establishing the Federal Judiciary System

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” – US Constitution, Article III

Article III established the Supreme Court and empowered Congress to create the federal judicial system, including structure, jurisdiction and procedures. Under Articles I and IV, Congress is empowered to establish other tribunals (e.g., specialty and territorial courts). The Supreme Court assumed the power to review federal laws in the 1803 Marbury v. Madison ruling.

Congress has enacted many laws to build the federal judiciary system. The 1789 Judiciary Act created the Supreme Court and first lower courts (13 district and three circuit courts). The 1891 Judiciary Act gave us the Courts of Appeals. Congress trimmed the Supreme Court’s mandatory jurisdiction in 1925 and 1988. Congress also changed the number of Supreme Court justices several times during the early 19th century, landing at nine justices in 1869 (the number of circuit courts at that time).

The judicial system created by Congress comprises four Article III courts—the Supreme Court, Appellate Courts, District Courts and US Court of International Trade— Article I courts with original jurisdiction for special matters (e.g., bankruptcy, immigration, federal claims and tax courts) and Article IV courts (e.g., territorial courts). The specialized federal trial courts may have original or appellate jurisdiction.

The Supreme Court, as the court of last resort, hears appeals from the federal appellate and state courts (by issuing writs of certiorari) and is the only federal court that can issue binding federal rulings to state courts. The Court of Appeals, the intermediate federal courts, have mandatory review jurisdiction for all appeals of contested district court decisions (usually in the circuit in which the district court is located).

District courts have original jurisdiction for federal civil and criminal matters as well as certain other matters (e.g., civil maritime actions). For most cases, federal district and state courts share concurrent jurisdiction (i.e., plaintiffs can file in either court). District court judges manage dockets, supervise trials and write opinions, but may refer routine tasks (e.g., pre-trial matters) to magistrate judges.

Running the Federal Courts

The system’s FY20 budget is $7.6 billion. The Supreme Court garners the most attention, but the Appellate and District courts are much larger operations. There are 13 appellate circuits, including 11 regional circuits, the DC Circuit and Federal Circuit. There are 94 district courts, including 89 districts in the states and five in territories, each within a single circuit and most within a single state. Each state has at least one district. The largest district courts serve metro Los Angeles and New York.

There are 870 authorized Article III judgeships, nine on the Supreme Court, 179 on appellate courts, 673 on district courts and nine on the Court of International Trade. The number of appellate judges varies by circuit, from six to 29, but the median is 13. The number of district judges varies by district. There are 898 Article I/IV judges, including 347 bankruptcy judges and 551 magistrate judges.

Article III judges are appointed by the President with Senate consent. They serve for life or until they resign or retire. Any judge violating the vague Article III good behavior standard may be impeached by the US House and convicted by a 2/3 Senate vote. Any judge disabled or turning 65 may retire or work as a senior judge. Bankruptcy judges are appointed by circuit judges for 14-year renewable terms. Magistrate judges are appointed by a majority of active district judges for four- or eight-year renewable terms and may be removed for misconduct, incompetency and neglect of duty.

The federal caseload, based on 2019 filings, includes 47,977 appellate cases (excluding Federal Circuit cases), 286,289 district court civil cases, 90,473 district court criminal cases and 772,646 bankruptcy cases. Typically, court clerks supervise administrative work and other court employees. The US Judicial Conference maintains federal procedural rules and the Administrative Office of US Courts, under the Judicial Conference’s direction, oversees court budgets and facilities.

The Impartiality of our Federal Courts, Fact or Fiction?

“The Supreme Court must never be viewed as a partisan institution.” – Supreme Court Justice Brett Kavanaugh

The Supreme Court’s reputation for “fair, impartial justice” cannot be separated from reputation of the entire federal judiciary system. To the extent we lose faith in the Supreme Court, we will likely lose faith in the entire system. Unlike the other two branches, the federal courts must rely solely on its credibility for its clout. This raises the stakes for the Supreme Court.

Fortunately, the Supreme Court’s favorability ratings are relatively high, at least compared to the President and Congress. But there are some ominous signals. According to Gallup, the percent of Americans expressing confidence in the Supreme Court fell from 62 percent in 2000 to 53 percent in 2020. Worse, our assessments are increasingly partisan. Per the Pew Charitable Trust, Republican approval of the Court rose from 33 percent in 2015 to 75 percent in 2019 while Democratic approval fell from 72 percent in 2016 to 49 percent in 2019.

This partisan divide distorts our views of the Court. Cultural conservatives see the Court as too permissive, referring to rulings like Brown v. Board of Education, Roe v. Wade and Obergefell v. Hodges as “legislating from the bench.” Liberals emphasize the Court’s many regressive opinions like Dred Scott, Plessy v. Ferguson, Buck v. Bell, Korematsu and Shelby County v. Holder. Often overlooked by both sides is the court’s long list of aristocratic, autocratic opinions that served the interests of elites (think Lochner, Hammer, Pembina Consolidated and Citizens United).

The Supreme Court’s partisan environment poses serious threats to the long-term legitimacy of the Court and federal judiciary. Too many 5-4 votes along strict partisan lines. A mere majority threshold for upending precedent. A toxic confirmation process. The appointment of judges deemed unqualified by the American Bar Association. Unless the Court is viewed by most Americans as bipartisan, impartial and fair, the federal judiciary system will lose its legitimacy.

The Supreme Court also faces serious questions about being out of touch with most Americans. Its very composition gives rise to reasonable concerns about being insular and obsolete. All eight justices graduated from Harvard or Yale Law School. Most worked at prestigious law firms or in political positions. Their median net worth is at least $2 million. And they are serving much longer—and at more advanced ages—than ever before.

Finally, and most troubling, the Supreme Court has done little to address perceptions of improper influence, bias and favoritism. Justices often refuse to recuse themselves from cases when they otherwise should. Justices join opinions even as they or their spouses engage in activities that engender doubts about their independence. The potential conflicts are disturbing if not shocking (see the nonpartisan Fix the Court list).

The Untold Inefficiency of our Federal Courts

Lost in the partisan strife about ideological balance is the gap between judicial performance and resources. Due in large part to the partisan maneuvers around nominations, the federal courts have been migrating away from many principles of good governance, most notably objective efforts to align judicial resources with service demands.

Chief Justice Roberts has referred to the budget as the most important issue facing the courts. Every two years, the courts recommend additional judgeships, but the Senate’s single-minded focus on judicial appointments has perversely suppressed judicial resources. Even as federal litigation demands have escalated, the total authorized number of federal judges has remained relatively static (up only five percent from 829 in 1995 to 870 today, with much of that increase due to recent appointments).

Ironically, the Supreme Court’s docket has contract as appellate and district court caseloads have grown. Since 2005, the Court has decided about 80 cases per term, compared to 200 before 1940. Relying heavily on its cert pool law clerks, the Court only accepts about one percent of cases submitted for review. If the Court’s approval ratio was valid in the early 1980s, it may be denying half of the meritorious certiorari petitions today. The implications are disquieting. Weighty legal issues are deferred. The lower courts see more litigation. The Supreme Court looks more isolated.

The appellate courts, despite significant caseload fluctuations, have been hamstrung by resource constraints. For example, the number of appellate case filings (excluding Federal Circuit filings) rose from 49,131 in 1995 to 70,003 in 2005 and then fell to 47,977 in 2019. During the same period, the number of appellate judges remained fixed at 167. Appellate caseloads also vary widely by circuit and judge. With the exception of the Federal Circuit (and its specialized patent law docket), the appellate courts are conducting fewer en banc proceedings (a tool for resolving intra-circuit opinion splits).

District court caseloads have been outpacing judicial resources. According to the Administrative Office of the US Courts, district caseloads have risen much faster than judicial resources since 1995. From 1995 to 2019, the number of district court judges rose five percent from 632 to 663. For the same time period, aggregate civil caseloads rose by 20 percent and total criminal caseloads doubled.

District court caseloads vary significantly among the district courts. According to Syracuse University’s Transactional Records Access Clearinghouse (TRAC), the actual weighted caseload for district courts in 2014 ranged from 255 for the Eastern District of Michigan (Detroit) to 530 for the Middle District of Florida (Tampa). The average weighted caseload was 388. The busiest districts tend to be those with the most immigration cases (e.g., Arizona, California and Florida) or most patent litigation (Delaware and Texas). District court caseloads also vary among individual judges.

The federal judiciary system has some management tools at its disposal for responding to caseload fluctuations. The Chief Justice and chief circuit court judges can assign appellate judges to district courts. Senior judges are assigned to as many as 1/4 of district court cases. And similar matters may be bundled across districts (multidistrict litigation) to help manage caseloads more efficiently.

Such tools notwithstanding, current laws, rules and practices impair the federal judiciary system’s ability to handle fluid caseload demands. Under federal law, each district has a set number of authorized judges, and district court judges are appointed to serve a specific district. While Congress has established some specialized courts, the federal judiciary is largely a generalist institution. The system lacks sufficient means to align federal judicial resources with ever-changing legal demands.

The consequences, while unintended, are potentially dire for the entire system. Unbearable workload pressures. Longer processing times for civil and criminal cases (an estimated 60 percent longer for civil matters and 15 percent longer for criminal cases, according to TRAC). More plea bargains and settlements. Less rigorous case reviews. Legal uncertainty. More litigation.

The Federal Judiciary’s Accountability Problem

Accountability is a principle inconsistently applied to the federal courts. There are ethical standards for most federal judges. For example, the Code of Conduct for federal judges requires recusal for potential conflicts. The Judicial Conduct and Disability Act allows anyone to file an allegation of federal judge misconduct. The Ethics in Government Act requires federal judges to file annual financial disclosures.

Inexcusably, most such rules don’t apply to Supreme Court justices. Even if they do, they are unenforceable. It is comforting that there is some accountability for the appellate and district courts, but it is the Supreme Court that is in the public eye. It sets the standard for other federal courts. and should be above reproach. Any failure to hold the Supreme Court accountable jeopardizes the legitimacy of the entire system.

The Supreme Court is essentially self-regulated. With few (if any) enforceable conduct codes, Supreme Court justices are largely immune from the laws, rules and standards intended to hold other federal judges accountable. No enforceable rules against stock ownership, gifts, payments or speaking fees. No enforceable disclosure requirements for perceived conflicts. Vague recusal policies. No guidelines discouraging partisan behavior that could damage the Court’s credibility.

The enforcement mechanisms for federal judges are outmoded and ineffectual. Congress has the power to impeach judges, but it has been rarely invoked. The Judicial Conduct and Disability Act allows complaints against lower court judge for unethical behavior, but not Supreme Court justices. There is no proven effective way to enforce recusal policies or other ethical standards. There is no reliable mechanism for disciplining, let alone terminating inept, biased or lazy judges.

An Objective, Bipartisan Approach to Reform

Regardless of which party wins the next election, it should resist the temptation to engage in partisan retaliation. It shouldn’t advocate changes crafted solely to change a court’s ideological balance. Instead, it should join with the other party to launch a bipartisan, data-driven study of the entire federal judicial system. Instead of circling the wagons and conferring with fellow partisans behind closed doors, it should seek the input of diverse experts, stakeholders and citizens in public forums.

If the system works, don’t fix it. If there are opportunities for improving the system’s operations and its ability to mete justice, seize them. Don’t make changes solely for ideological reasons, but don’t shy away from changes that would make the system more efficient, effective and impartial—changes that would enhance the judiciary system’s long-term legitimacy with most Americans. And, if possible, avoid the pitfalls inherent in seeking a constitutional amendment.

Realigning Jurisdiction with Demands

We may be seduced into thinking that only ideology matters for the federal judiciary. While ideology cannot be ignored, it is far less significant than independence, fair-mindedness and justice, especially when it comes to the federal courts.

Since Marbury v. Madison, we have come to accept the Supreme Court’s over-sized (and unforeseen) role in reviewing the constitutionality of federal laws. Yet, the Constitution neither mandates nor implies this role. Since one legacy of Marbury v. Madison is the toxic partisanship surrounding Supreme Court appointments, we should reexamine opportunities for refining federal jurisdiction to better prepare our federal judiciary system for the legal challenges of this century.

Step one should be to craft a modern vision for the federal judicial system. How should “fair, impartial justice” be defined? How should our courts apply the rule of law to the facts? How should they ensure due process? How should they minimize the incidence of undue bias or improper influence? A good faith effort should be made to develop measurable performance criteria for the courts, including the quality, fairness and timeliness of decisions. With a coherent vision and clear performance metrics, each court’s jurisdiction and roles can be more readily determined.

Many jurists, including Chief Justice Roberts and Justice Gorsuch, have expressed their support for the stare decisis doctrine and some jurisdiction reforms. One idea that merits serious consideration is a super-majority threshold for overturning judicial precedent. A variation of that idea would require a 2/3 vote to approve a certiorari petition and a ¾ vote to overturn a Court decision. Another idea would enable Congress to override a Supreme Court decision with a super-majority (Canada has a similar mechanism, but it would likely require a constitutional amendment in the US).

Another jurisdictional strategy would require a comprehensive analysis of jurisdiction specialization. In the advent of new technology, other dynamic global trends and national threats once unimaginable, new legal issues arise and the federal judiciary must reinvent itself to address those issues. To that end, the US should consider new specialized high courts. Such courts should be designed around critical legal issues, public policy priorities and expertise needs, such as:

Innovation (e.g., science, technology, communications, patents and trade secrets)
Economic opportunity (e.g., competition, fair trade, interstate commerce, finance, business associations, contracts and labor relations)
Public health and environment (e.g., natural resources, air and water quality and food and drug regulation)
Justice (e.g., criminal charging standards, legal representation, jury requirements, sentencing, pleading standards, settlement rules and class actions)
Civic engagement (e.g., voting, gerrymandering and campaign finance)

Once the jurisdictional needs for specialized federal courts are defined, these courts can be established de novo or through mergers. Congress should then transfer jurisdiction for relevant matters to the specialized courts and empower the new courts to hear appeals. While the Supreme Court would retain final appellant jurisdiction for these matters (without a constitutional amendment), Congress could require a super-majority threshold for the Supreme Court to overturn specialized court decisions.

Right-Sizing the Federal Courts

Congress must grant sufficient authority to the Administrative Office (AO) to manage the federal courts in a more effective and efficient manner. The AO should continue to report to the Judicial Conference for policy oversight, but it should have latitude to manage the Judiciary’s resources. Congress should approve a six-year judicial budget (with the Judicial Conference’s consent) to enhance the federal judiciary’s independence and protect it from future budget impasses.

Congress should clarify the AO’s role as the Chief Administrative Officer of the federal courts. This will require an itemized list of the AO’s duties, such as preparing long-term operating plans, managing operating and capital budgets, assessing and recommending organizational changes, acquiring and managing resources, supervising information systems, setting and monitoring court performance standards, evaluating personnel and implementing disciplinary recommendations.

Congress should direct the AO to track workload demands using a weighted caseload model approved by the Judicial Conference. It should direct the AO to report monthly workflow analyses and recommend measures for improving resource alignment at least quarterly. Subject to any budgetary parameters, the AO should be empowered to add or reduce the number of authorized federal judges for each court. Any judicial vacancies or redundancies would be addressed in accord with the Constitution.

Congress should direct the AO to publish quarterly judicial performance reports. It should require the AO to recommend, and empower the Judicial Conference to approve, other operational improvements. Such measures could include circuit and district court restructuring, specialized court changes, greater use of multi-party litigation and en banc reviews and more robust judicial performance standards. Any recommendations should be promptly disclosed to Congress and the public.

Making the Courts More Accountable

The legitimacy of the federal judiciary cannot be assured without rigorous, consistent accountability. To that end, Congress should enact new ethics and accountability legislation. The new law should require the Judicial Conference to establish a comprehensive, binding code of conduct for all personnel in the federal judiciary system, including the Supreme Court justices and their clerks. It also should define the Article III “good behavior” term to include any failure to comply with code of conduct.

The code of conduct should address all ethical challenges facing federal judges. It should, for example ban any behavior that could harm the judiciary’s reputation, such as post-court employment with prior litigants, a financial interest in any enterprise potentially impacted by a court ruling or the acceptance of any benefits from parties taking positions on federal matters. The code should include strict recusal rules banning a judge’s participation in any cases posing a potential conflict of interest.

The federal courts also must be more transparent. Congress should enact legislation requiring the Judicial Conference or AO to promptly publicize all reports, records and transactions, such as judicial financial statements, speeches, conferences, events and associations. All judges should be required to report all potential conflicts of interest, including spousal income and associations, and explain any recusal decisions. The AO should be required to publish annual judicial performance reports. The public should have easy, affordable access to all court deliberations and records.

The conduct and disclosure standards will mean little without effective enforcement mechanisms and serious sanctions. Congress should establish a permanent bipartisan Senate committee (with equal Democrats and Republicans) to conduct impeachment hearings for federal judges. Congress also should establish an independent panel under the Judicial Conference to investigate judicial ethics complaints, hear disciplinary cases, impose disciplinary action and, if merited, recommend impeachment. Finally, Congress should specify meaningful sanctions for judicial violations of ethics and disclosure standards.