The Supreme Court is the highest court in the land, sitting at the apex of the federal judiciary and reviewing appeals from the lower federal courts as well as from state supreme courts. Yet, in spite of the familiar expression—“I’ll take my case all the way to the Supreme Court”—few litigants actually take their cases all the way to the Court, and even fewer are granted a hearing. For the overwhelming majority of cases in the federal system, the decisions of the lower courts are in fact final and never appealed or granted review. Indeed, the modern Supreme Court confronts a very small percentage of the cases in the system. Moreover, the Court no longer functions, as it once did, to resolve private disputes and to correct errors in the lower courts. As a result, the lower federal courts handle most of the federal judiciary’s business, wielding enormous power with finality in all but a small fraction of the federal judiciary’s caseload.

The Evolving Structure and Business
of the Federal Judiciary

Article III of the Constitution vests the judicial power “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” (Under Article I, Congress may also create legislative courts to carry out its own powers. The United States Court of Military Appeals, which applies military law, is one such court; federal bankruptcy courts are another type of such specialized courts.)

The First Congress was, thus, left with the task of establishing the federal judiciary and defining its power. The Judiciary Act of 1789 authorized five associate justices and one chief justice of the Supreme Court and created two “inferior” types of courts: district courts and circuit courts. The former, located in every state, served as trial courts for minor federal crimes. Circuit courts, established in different geographical regions of the country, had jurisdiction over the trial of major federal crimes and also acted as courts of appeal. The Judiciary Act required the justices to “ride circuit” twice a year and sit with district judges to hear cases in the circuit courts. There were no permanent appellate court judges until after the passage of the Circuit Court of Appeals Act in 1891.

As the country grew in population, the size of the federal bench gradually grew as well. Beginning with six justices and three circuits, the number of justices grew from seven in 1807, to nine in 1837, and to ten in 1863. Because of the Reconstruction Congress’s antagonism toward President Andrew Johnson, it reduced the number of justices from ten to seven in order to deny Johnson appointments to the Court. After General Ulysses S. Grant became president, Congress again authorized nine justices—the number that has prevailed. The number of circuits, however, continued to grow due to increased caseloads and the country’s rising population; there are now thirteen circuit courts of appeals.

From the original nineteen federal judges, the number has grown to over one thousand, including over eight hundred full-time lower court judges and another three hundred who have senior status but continue to hear cases. Along with the increasing number of federal judges, there has been significant growth in the number of law clerks, secretaries, support staff, magistrate and bankruptcy judges, probation and pre-trial workers, and hence, in the size of the entire federal judiciary. Whereas in 1900 there were 2,770 employees in the federal judicial system, by 1960 there were 4,992. For the next fifteen years, the number increased modestly, and then swelled to 14,500 in 1980, and to over 24,600 in the 1990s.

The changes in the size of the federal judiciary reflect the ever-increasing flow of litigation into the federal courts, especially in the second half of the twentieth century when caseloads sky-rocketed due to the expansion of federal regulations and criminal law. From 1950 to 1990, for instance, federal district courts experienced a 300 percent increase in cases. Whereas in the 1950s they faced a little over ninety thousand new filings each year, by the mid-1990s they annually confronted over three hundred thousand cases.

The business of the federal judiciary has changed as well. Along with broader social and economic forces, federal legislation and administrative regulations have affected the nature of the federal courts’ business. The work of federal district courts has generally evolved toward less criminal and more civil litigation. In the late nineteenth century, 61 percent of the work of federal trial courts involved criminal cases. The filing of criminal cases rapidly increased during the 1920s and early 1930s, when it leveled off until another surge in the late 1960s, and then declined from 1975 to the end of the decade. Although not keeping pace with the increasing rate of civil litigation, the number of criminal cases steadily climbed again throughout the 1980s and 1990s. The number of drug-related criminal cases alone more than doubled between the 1980s and the 1990s. Still, in 1997, criminal cases accounted for just 15 percent of federal district courts’ caseloads.

The changes in the business of the federal judiciary register shifts in the national government’s legal policies and litigation strategies. District courts’ caseloads were significantly affected by the decriminalization of internal revenue offenses and the abolition of federal prohibition in the early twentieth century; by a subsequent change in the government’s prosecu-torial policy on immigration and the diversion of criminal cases to state courts; and by the “war” on crime and drugs in the 1980s and 1990s. The increase in civil litigation also reflects changes in the policies and priorities of the federal government. In the 1980s, for example, the federal government made a concerted effort to recover defaulted student loans and overpaid veteran’s benefits in federal courts. As a result, the federal government was a plaintiff in almost 65 percent of all civil government cases, as compared with just 51 percent a decade earlier.

District Courts:
First and Last Resort in Most Cases

Because the bulk of federal litigation takes place in district courts, they basically function as courts of first and last resort for the overwhelming majority of cases. There are 649 federal judges presiding in ninety-four district courts, with one or more in each state, depending on caseloads. District judges sit alone and preside over trials (with or without juries) and other criminal and civil proceedings. They also approve plea bargains, supervise settlements, monitor remedial decrees, and manage the processing of cases. They, therefore, have primary responsibility for applying federal statutes and higher court rulings. Federal district courts, for example, carried the burden of enforcing the Supreme Court’s watershed school desegregation ruling in Brown v. Board of Education (1954 and 1955). And four decades later, integration efforts in approximately five hundred school districts still remain under the supervision of federal district courts.

In 1997, district courts faced 272,027 civil filings and 50,363 criminal cases, for an average of 498 cases per judge. Since less than 15 percent of their decisions are appealed, federal district courts largely function as courts of first and last resort. As a federal judge once said, “Justice stops in the district. [Litigants] either get it here or they can’t get it at all.”

Circuit Courts of Appeals:
Toward “Bureaucratic Justice?”

The country is divided into eleven geographical regions or circuits, with one court of appeals in each. These courts have general appellate jurisdiction over appeals from the district courts, rulings by independent regulatory commissions, and from federal agencies’ enforcement decisions. The Court of Appeals for the District of Columbia Circuit also has general jurisdiction over federal cases, but by statute handles mostly challenges to federal agencies’ regulations. In 1982, Congress added the Court of Appeals for the Federal Circuit, which is also located in the District of Columbia and has general jurisdiction, as well as specialized jurisdiction, over tax, patent, and international trade cases and appeals.

Unlike district courts, federal appellate courts have twenty or more judges; in all, there are 179 appellate judges. Within each circuit, they generally hear cases on the basis of rotating three-judge panels. In important and divisive cases— particularly those presenting issues on which two or more three-judge panels have reached opposite results in similar cases—the entire circuit court sits as a panel, or en banc, to resolve conflicting interpretations of the law within the circuit.

The thirteen circuit courts of appeals face an ever growing number of appeals, over fifty thousand in 1997. In response to rising caseloads, Congress has increased the number of appellate judges and the size of their staffs. Yet, larger appellate courts are problematic given the collegial nature of appellate court decision-making and the rotation of three-judge panels. With more judges come, perhaps inevitably, not only more intracircuit conflicts but also “intercircuit conflicts”—conflicts in rulings by different appellate courts which the Supreme Court must resolve in order to ensure uniformity and stability in the law. Former Chief Judge John Godbold, who served on the Eleventh Circuit, describes another problem:

[A]s the [circuit court] grew in size to twenty-six, it tended to fragment into several groups. I don’t mean just in opinion writing, but also in differing views of the law. A smaller en banc court performs the process of adjudication in the traditional manner. Usually, there is one view in one direction and an opposing view, with debate back and forth, and maybe people change their minds, but ultimately the court concludes with probably two views and maybe three once in a while....

In contrast the twenty-six-person en banc performed somewhat like a legislative body. It divided up into groups, with judges seeking accommodation on some ground that, while maybe not ideal for everybody, was at least agreeable to a majority. Its function became almost legislative and, therefore, antithetical to the way that appellate courts normally operate.

There are other problems as well. In the Fifth, Eighth, and Eleventh Circuits, for instance, a judge trying to keep abreast of case law developments faces reading over two thousand new opinions each year. Appellate Judge Donald Lay spoke of his frustration: “A few months ago I was reading an opinion for our court; after reading several pages on a certain point, I wondered who wrote it. I was amazed to find that I had authored the opinion some 10 years before. The point is we read so much that we can no longer even recognize—let alone remember—our own opinions.”

Still another problem that concerns some appellate court judges is “bureaucratic justice.” Judges are more dependent on and must spend more of their time supervising a growing number of law clerks and support staff, resulting in appellate courts that are becoming “opinion-writing bureaus.”

Declining Federal Supervisory Capacity

Ironically, the supervisory capacity of the federal appellate courts is also declining because of rising caseloads. The capacity of appellate courts to review and oversee lower courts’ decisions is critical to the equal application of the law. That is why the circuit courts of appeals were created in 1891; they were meant to relieve the Supreme Court of some of its caseload burdens in the late nineteenth century and at the same time to increase appellate supervision over the district courts. But the dramatic growth in caseloads since World War II has reduced the capacity of both the Supreme Court to review decisions of the appellate courts and that of circuit courts to correct errors in the district courts.

For example, in 1920 there were just 565 cases on the Supreme Court’s docket, but each decade since World War II the number has incrementally grown, from 1,300 in 1950, to over 2,300 by 1960, 4,200 by 1970, to 5,300 in 1980, and to over 8,000 cases by the mid-1990s. In response to those increases in the size of the high Court’s docket, Congress expanded the Court’s discretionary jurisdiction, giving it the power to deny the vast majority of cases a review. As a result, the Court annually reviews only about one hundred cases (about 1 percent of the cases arriving on its docket). The contemporary Court thus no longer serves primarily to supervise or correct the errors of lower courts. Instead, the Court functions like a “super-legislature,” reviewing major issues of public law and policy of interest to the national government and the states.

TABLE/ILLUSTRATION:
Historical and Projected Judgeships, 1950-2020

	Appellate Judges	District Judges
1950	65	224
1960	68	245
1970	97	401
1980	132	516
1990	156	575
2000	430	940
2010	840	1510
2020	1580	2530

Problems of Yesteryear
in the Twenty-First Century

The problem of ensuring equal justice under the law in the face of rising federal caseloads and declining appellate court supervision is certain to grow. The Committee on Long Range Planning of the Judicial Conference of the United States, the policymaking body of the federal judiciary, has made projections of the number of federal judges needed to handle the projected caseloads of the federal judiciary in the next century (see sidebar).

Federal judges, however, disagree about the appropriateness of dramatically increasing the size of the federal bench and about how to manage the rising caseloads. Some judges already lament the growth in federal judgeships and worry that continued growth will only exacerbate trends towards “bureaucratic justice.” Ninth Circuit Judge John O. Noonan, for one, proposes limiting the number of federal judges to no more than one thousand. By contrast, his circuit colleague Judge Stephen Reinhardt believes that the size of the federal bench should be doubled, not limited, in order to guarantee broader access to justice and to improve the efficiency of the federal judiciary.

Whatever the eventual response, or set of responses, to the continued increase in federal caseloads, it remains clear that the lower courts will continue to conduct the vast majority of the federal judiciary’s business. Federal district courts will increasingly function as courts of first and last resort, while circuit courts of appeal, like the Supreme Court, will pay less attention to correcting errors made in the district courts. And the Supreme Court in turn will undoubtedly devote more attention to resolving disagreements arising from conflicting appellate court decisions, thereby trying to provide stability and uniformity in the administration of justice, as well as addressing only issues of wide national legal and political importance.

Bibliography

Abraham, Henry J. The Judicial Process. 6th ed. New York: Oxford University Press, 1993.

Baker, Thomas. Rationing Justice on Appeal: The Problems of the U.S. Courts of Appeals. St. Paul: West Publishing Co., 1994.

Coffin, Frank M. On Appeal: Courts, Lawyering, and Judging. New York: W. W. Norton, 1994.

Cooper, Phillip J. Hard Judicial Choices: Federal District Court Judges and State and Local Officials. New York: Oxford University Press, 1988.

Howard, J. Woodford, Jr. Courts of Appeals in the Federal Judicial System. Princeton: Princeton University Press, 1981.

O’Brien, David M. Judges on Judging: Views from the Bench. Chatham, NJ: Chatham House, 1997.

———. Storm Center: The Supreme Court in American Politics. 4th ed. New York: W. W. Norton, 1996.

Peltason, Jack. Fifty-Eight Lonely Men: Southern Federal Judges and School Desegregation. New York: Harcourt, Brace, and World, 1961.

Posner, Richard. The Federal Courts: Challenge and Reform. Cambridge: Harvard University Press, 1996.

Rowland, C. K. and Robert Carp. Politics and Judgment in Federal District Courts. Lawrence: University Press of Kansas, 1996.

David M. O’Brien is the Leone Reaves and George W. Spicer Professor of Government and Foreign Affairs at the University of Virginia. He is author of numerous books, including a two-volume casebook, Constitutional Law and Politics (3rd ed., 1997), Storm Center: The Supreme Court in American Politics, (4th ed., 1996), and an annual Supreme Court Watch.