They are not your grandfather’s federal circuit courts


The period between the two World Wars might be looked upon as the Golden Age of the federal circuit courts: The judges heard argument in almost all of the cases that came before them, and they decided almost all cases with opinions that could be cited as precedent. In doing so, the courts followed hallowed common-law tradition: Judges can decide cases only if that decision serves as precedent—that is, if the decision /reasoning binds other judges in similar situations. That rule seems to have been well-established through, say, 1960.
The 1960s challenged that basic precept. The decade saw a revolution in both civil-rights and habeas corpus litigation that led to a dramatic increase in the workload of the federal circuit courts. The obvious response to an increased workload, of course, was to ask for a proportionate increase in judgeships; the federal judicial establishment, however, eschewed that choice and settled instead on an array of procedural devices as a way to handle the increased caseload. Those devices included the following: Reduced oral argument, limited publication of opinions, the introduction of “non-precedential” opinions, and a vastly increased use of central staff.
In short, the decision-making procedures in today’s federal circuit courts would come as a complete surprise to Learned Hand or even Henry Friendly. Today, the vast majority of decisions are rendered by central staff, without the benefit of oral argument, and lack precedential appeal. More surprisingly, perhaps, is that those changes have been accomplished with virtually no discussion in the judiciary. The only serious study of the unpublished opinion regime was one that Bill Richman and I did for the Federal Judicial Center a third of a century ago. In 2006, Rule 32.1 of the F.R.A.P. was adopted to permit citation to “unpublished” opinions; it is the only formal response by the judicial establishment to the changes discussed above.
The failure to respond to the dual issues of increased caseload and changing appellate procedures is not due to a lack of study. Indeed, we count some thirteen commissions in the past forty years that have addressed concerns in the federal appellate courts. None of those commissions, however, has produced successful recommendations to deal with the problem of increased caseload and truncated procedures.
In particular, there is an obvious solution to increased caseload that would not require truncating well-known decision-making procedures: That solution is an elegant one—simply ask for more judges. But, amazingly, the Federal Judicial Establishment has resolutely refused to ask for enough judgeships to handle the load. Why they have refused to do so is an important topic on its own.
Professor William Richman (of the University of Toledo School of Law) and I have just published a book, Injustice on Appeal (Oxford University Press, 2012) where we examine the implications of the developments discussed above. In later postings, I shall go into more detail on these issues.

You may also like...

7 Responses

  1. Orin Kerr says:

    I look forward to your blogging.

    One reaction, if I may: Even if sitting judges can “simply ask for more judges,” why do you think that would actually lead to more judges? In the current environment of judicial nominations, Senators not in the party of the President will strongly oppose any proposal to increase the size of the federal judiciary. These days, confirming a single non-controversial district court judge requires a lot of effort. Given that, it’s not clear to me that having the blessing of sitting judges would make that much of a difference.

  2. William Reynolds says:

    Orin. I understand the difficulty with getting judges confirmed today. The problem is that the judicial establishment has not asked for more judges for over thirty years. Why not? A later blog will address this, but the short answer is that the judges like the current situation. In any event, they should make an effort to alleviate the situation

  3. Orin Kerr says:

    Judges don’t want more judges because it would hurt their power and prestige: More judges means less power and prestige per judge. But my point is just that it’s not clear that the judges’ views actually matters all that much to how many judges there are.

  4. You’re mostly right, Orin. But the judges should have been asking for more long ago; and they did not

  5. Guest says:

    What do you mean by “the vast majority of decisions are rendered by central staff”? Are you referring to basic administrative matters like scheduling, whether to accept a document for filing, or how to something should be docketed? Other than those types of things, I’ve never heard of any decision in a federal circuit court being rendered by anyone other than one or more judges.

  6. Thwe number of federal circuit clerks–staff clerks– exceeds the number of elbow clerks. What do you think they are doing? Ample evidence supports the statement, as well

  7. Guest says:

    Based on their output, it appears to me a lot of them are doing basic screening, scheduling, case management work, and handling other administrative work concerning the various details involved in moving a case along. A good number do the same basic work as elbow clerks, but with respect to habeas, death penalty cases, or cases brought by pro se litigants.

    It’s possible, of course, to lose your appeal by failing to meet some basic requirement, like paying the filing fee or obtaining a certificate of appealability. And I suppose it could be said that a clerk who determines that someone didn’t do those things can be said to be “rendering decisions,” in a sense. But that isn’t what most of us think of when we think of courts rendering decisions.

    I wonder if instead of “rendering decisions” you meant something else, like “drafting orders” or “influencing how judges render decisions”?