So, you’d think with all the talk about expanding the number of SCOTUS Justices at some point rationality would settle in and we’d take a close, sober and objective look.
Nothing doing. This is the United States in post Trump world and we don’t do rational or sober or objective.
But we at LoS are going to make the effort, as we so often do, by ourselves.
There are nine Supreme Court Justices, a number that apparently hasn’t changed since 1869. In 1870 the population of the US was about 38 million. In 2021 it’s about 330 million. If we’re going to start talking about expanding the number of Justices, then, these figures suggest a number. But that number – 90 or thereabouts – is, you know, completely unworkable.
Not to mention, a ten fold increase in population does not necessarily generate, or even suggest, a 10 fold increase in the number of legal claims or legal issues. It does say something, we think. But that’s for another post.
What we’d like to focus on this morning is that the SCOTUS, however dysfunctional it may be – and we think it is quite dysfunctional – doesn’t really do a lot, because with 9 Justices in a country of 330 million it really couldn’t possibly. In practical terms the SCOTUS is less important than other institutions, and less important even than other courts.
Which brings us to the point of this post, and not some future post we may or may not ever get around to writing.
Let’s look at some other numbers, just in the federal courts. There are 673 authorized US District Court judges. This does not seem like a lot for a country of 330 million. And there are only 179 authorized judges on the federal appeals courts. Same observation there.
According to wikipedia, the number of these lower federal court judges have substantially increased since, say, 1950: three fold for District Court judges and two fold for the appeals courts.
But let’s focus on the appeals courts for now.
We submit that the number of these judges is way too low. There are 13 such courts, mainly distributed geographically across the US and its territories, and what has happened with them over the last few decades is disturbing. Their primary function is to review the judgments of the District Courts, but they do not do that in any serious way. At one point a 7th circuit judge (Judge Posner) admitted this but the published article in which he did has disappeared from the internet.
Instead, these courts have become certiorari courts like the SCOTUS. Which is to say, they pay close attention to only a small number of the appeals that are brought to them. For the SCOTUS this is out in the open, and the SCOTUS has its criteria and practitioners know what they are and work within those parameters. But the courts of appeal cannot admit that they are certiorari courts even though they function exactly like that at this point.
And what are the criteria for deciding which cases go in the “A” pile and get serious attention and the vast majority – the “B” pile – which get no attention at all? Because the courts cannot be open about how they are really functioning, the answer is…nobody really knows. Some criteria are predictable: there’s a lot of money involved, or prestigious law firms are involved, or the government is a party and in a hen’s teeth rare occurrence actually lost at the District Court level.
Now that we think about it, those are pretty much the criteria. With a few others we may mention elsewhere. In that other post we may get to someday.
We think one of the biggest problems with the federal judicial system is the absence of meaningful review on appeal, and one of the primary drivers of that is….not enough appeals court judges. It takes at least three of them on a panel to entertain an appeal, so functionally there are only 60 panels to hear appeals from 673 District Court judges. To have meaningful appellate review for the cases that warrant it, we’d hazard a guess that that 60 number should double.
At least double.
We noted elsewhere a study that we can no longer find indicating that one of the primary obstacles to expanding the number of federal appeals court judges surprisingly comes from the judges themselves, who apparently feel that such a move would diminish their prestige.
That says a lot right there. And we can’t say more, this morning, so we may have to return to the subject at another time to expand upon these themes. We know our readers (all three of them!) will be impatient with this gap, but we have no alternative at the moment and pledge our best efforts.
In other words, to be continued………
Lawyers on Strike 