Berkeley Judicial Institute/California Law Review Spring 2019 Symposium
Charting a Path for Federal Judiciary Reform
Friday, April 12, 2019
Chevron Auditorium, International House, UC Berkeley
Registration is free.
Nearly a century ago, Justice Felix Frankfurter and Professor James M. Landis remarked that “great judiciary acts, unlike great poems, are not written for all times.” The Business of the Supreme Court 107 (1927). From the time of the American Revolution through the early twentieth century, the United States reformed the federal judiciary at approximately 25 year intervals. Nearly half a century later, Professor Paul Carrington observed that “we have now set a new record for consecutive years of restraint from tinkering with the system.” Crowded Dockets and the Courts of Appeals: The Threat to the Function of Review and the National Law, 82 Harv. L. Rev. 542, 543 (1969).
Professor Carrington’s seminal article provided powerful empirical support for the mounting sentiment among jurists, scholars, practitioners, and policymakers that the federal judiciary was struggling to address the growing caseloads and complexity of the federal docket. Heeding widespread calls for judiciary reform, in 1972 Congress charged a bi-partisan and cross-branch commission chaired by Senator Roman Hruska to study the functioning of the federal judiciary and recommend reforms. After two years of extensive study, the Hruska Commission concluded that
No part of the federal judicial system has borne the brunt of  increased demands [to protect individual rights and basic liberties and resolve difficult issues affecting the financial structure and commercial life of the nation] more than the courts of appeals. Since 1960 the number of cases filed in these courts has increased 321 percent, while the number of active judges authorized by the Congress to hear these cases increased only 43 percent.
Commission on Revision of the Federal Court Apellate System, Structure and Internal Procedures: Recommendations for Change 1 (1975). The Commission called attention to the Supreme Court’s capacity constraints and the risks to the body of national law posed by the growing number of circuit conflicts.
Based on these findings, the Hruska Commission recommended that Congress establish a National Court of Appeals to alleviate the strains on the Supreme Court and regional courts of appeals. The Supreme Court would have authority to transfer cases to the new intermediate appellate court. Regional circuit courts would have authority to transfer cases involving circuit splits.
The proposal was initially greeted with enthusiasm, but failed to survive the legislative gauntlet. No major structural changes to the federal appellate system came to pass then or since. Apart from repeal of three-judge district courts, division of the Fifth Circuit (creating the Eleventh Circuit), the creation of specialty courts for bankruptcy and patent appeals, and increases in the number of district court and appellate court slots, the fundamental structure of the federal appellate system has remained the same.
We are now another half century past Professor Carrington’s clarion call. Does this mean that the problems that galvanized attention have abated or been addressed through other means? The data on caseloads and capacity constraints suggest otherwise. The number of Supreme Court merits decisions per term has declined by more than half since the time of the Hruska Commission while the number of certiorari petitions has doubled. District and appellate court caseloads per judge have continued to increase. The change in attitude toward judiciary reform appears to be skepticism that it is possible. Judiciary reform has become a legislative third rail, too dangerous for politicians to discuss.
This symposium revisits the half-century old questions about the functioning of the federal appellate system, identifies new issues and perspectives, and explores how the federal judiciary might be reformed to improve the administration of justice. The lead article, being prepared by Professors Peter Menell and Ryan Vacca, traces the history and political economy surrounding judiciary reform and updates data on caseloads, processing times, certiorari petitions, en banc review, and other measures of judicial performance. It identifies four persistent pathologies: (1) expanding caseloads per judge; (2) growing complexity of federal law; (3) fragmentation of national law; and, most critically, (4) the political difficulty of judiciary reform.
The article offers an antidote to the historic logjam over judiciary reform: a commission tasked with developing a judiciary reform act that would not go into effect until 2030. The “2030 Commission” members would not know the identity or party of the President or who controls the Senate. And judges involved in the process would likely be senior or retired by the time that the reform went into effect, so they would be less focused on how reform proposals would affect their stature. By delaying implementation, the 2030 Commission members would in effect be behind a Rawlsian veil of ignorance that would enable them to pursue the best interests of the nation.
The Symposium will step behind the veil to consider constructive and balanced proposals for judiciary reform, such as structural changes aimed at relieving circuit splits, changes to the jurisdiction of the federal courts, Supreme Court term or age limits, greater specialization, expansion of judicial slots, the ramifications of technological change, and case management practices. The California Law Review plans to publish a symposium issue featuring the lead article and commentaries from the symposium.
Registration is free.