NCJ Number
173018
Journal
Judicature Volume: 80 Issue: 5 Dated: March-April 1997 Pages: 206-212
Date Published
1997
Length
7 pages
Annotation
Congress must expand the number of judges on the U.S. courts of appeals to restore their traditional role.
Abstract
Congress established the U.S. Courts of Appeals to correct error at the trial court level. For the first 80 years of their existence, the circuit courts performed that function as appellate courts should: visibly, accountably, and equitably. In nearly all cases, they heard oral argument, held face-to-face conferences, and personally wrote and published reasoned opinions. Beginning around 1970, however, the courts began to truncate the traditional model to keep pace with an overwhelming increase in volume. Today, many cases get no argument, no conference, and no written, published precedential opinion. Instead of the personal attention of Article III judges, those cases receive bureaucratic treatment at the hands of central staff. Further, the difference in treatment often occurs along class lines, with wealthy institutional litigants receiving most of the courts' limited resources. The obvious solution is to create enough judgeships to treat all cases traditionally, but the judicial establishment has opposed that solution vigorously, relying on an array of weak arguments. There is no empirical support for the fear that expansion will reduce the quality of the bench. The cost of new judges is not overwhelming; even if it were, that would explain only Congress's failure to supply the positions, not the judiciary's refusal to ask for them. Expansion will not create legal instability; even if it did, adequate capacity is at least as important as consistency. Congress is not about to make radical cuts in Federal jurisdiction to accommodate the judiciary's desire to remain small, nor should it. The size of the job should dictate the size of the tool, not vice versa. 13 notes