SUPREME COURT'S WORK LOAD

With the growth of population and the enormous expansion of federal law in the post-new deal period, the business of the federal courts has mushroomed. This increase is most striking in the first two tiers of the federal judicial pyramid. In the years 1960–1983, cases filed in united states district courts more than tripled, from 80,000 to 280,000, but cases docketed in the united states courts of appeals during the same period increased eightfold, from 3,765 to 25,580. To cope with this rise in appeals, Congress more than doubled the number of appellate judgeships. Not surprisingly, a similar growth can be found in Supreme Court filings: decade averages have increased in units of a thousand, from 1,516 per term in the 1950s to 2,639 in the 1960s, to 3,683 in the 1970s, to 4,422 in the 1981 term and 4,806 in the 1988 term.

The contrast between this explosion in federal judicial business and the fixed decisional capacity of the Supreme Court—the nine Justices sitting as a full bench hear an average of 150 argued cases per year—has led to persistent calls for enhancing the appellate capacity of the federal system. A number of proposals have emerged since 1970, none resulting in legislation. In 1971 the Study Commission on the Caseload of the Supreme Court, chaired by paul a. freund of the Harvard Law School, recommended creation of a National Court of Appeals (NCA) that would assume the Supreme Court's task of selecting cases for review. The Freund committee believed that the selection process consumed time and energy the Justices might better spend in deliberation and opinion writing. This proposal died at birth. In 1972, Congress created the Commission on Revision of the Federal Court Appellate System, chaired by Senator Roman Hruska. The Hruska commission envisioned a mechanism for national resolution of open intercircuit conflicts, recommending an NCA that would hear cases referred to it by the Supreme Court or the United States Courts of Appeals. This NCA was to be a permanent tribunal, with its own institutional identity and personnel. In 1983, Chief Justice warren e. burger publicly endorsed proposed legislation to create on an experimental basis an Intercircuit Tribunal of the United State Courts of Appeals (ICT), which would decide cases referred to it by the Supreme Court. The ICT would be comprised of judges drawn from the current courts of appeals who would sit for a specified number of years. This proposal drew faint support.

Other proposals have sought to enhance national appellate capacity without establishing new tribunals. The most recent recommendation of this type can be found in the 1990 report of the Federal Courts Study Committee, chaired by Judge Joseph F. Weis, Jr. The report urges Congress to give the Supreme Court authority, for an experimental period, to refer cases presenting unresolved intercircuit conflicts to a randomly selected court of appeals for a ruling by that court's full bench. These en banc determinations would be binding on all other courts, save the Supreme Court.

Many of these proposals are conceived as measures to alleviate the Supreme Court's work load. The work load problem is, however, not one of obligatory jurisdiction; the Court's appellate jurisdiction has been largely discretionary as far back as the judiciary act of 1925, but even more so after 1988 legislation repealing virtually all mandatory appeals. The Justices do have to screen all of the petitions filed. It is doubtful, though, that any of the recent proposals promise much relief on this score. The Freund committee's NCA did, but received widespread criticism for suggesting delegation of the selection function. It is hard to believe referral to an NCA or a randomly selected court of appeals would reduce the Court's screening burden, for the losing party would still be free to appeal to the High Court. Moreover, the Justices will not likely tolerate nationally binding resolutions with which they disagree. Indeed, the Court's case selection process may be significantly complicated by adoption of any of these proposals.

If the Court's overload is not a function of its mandatory jurisdiction and if its selection burden cannot be alleviated (under current proposals), what function is the Court failing to perform that it ought to perform?

Critics claim that the Court is unable to ensure uniformity in federal law, because 150 appeals a year must leave unresolved an intolerable number of intercircuit conflicts. The evidence for this contention is largely anecdotal, and what little empirical work exists is sharply contested in the literature. Significant disagreement exists as to what constitutes a "conflict." Are conflicts clear disagreements over a governing issue of law or simply different approaches to a legal issue that are capable ultimately of being reconciled? Much also depends on one's view of the costs and benefits of leaving particular conflicts unresolved for a time. Does the absence of a rule of intercircuit stare decisis in the federal system reflect a deliberate policy of allowing disagreements to percolate? The continuing conflicts may aid the Court's selection process by highlighting legal issues requiring national resolution. Through the process of multicourt consideration, the conflicts may improve the final decision of the Supreme Court when it does intervene. Moreover, some conflicts do not require immediate resolution, because they involve questions of local procedure, or do not frustrate planning concerns of multicircuit actors, or are not capable of being exploited by litigant forum shopping.

A broader claim, one not dependent upon the incidence of intercircuit conflict, is also made: that the problem is fundamentally one of insufficient supervision of the panel rulings of the courts of appeals. That conflicts are appropriately left unresolved does not matter, the argument goes. Given the sheer number of appeals, the practical inability of many of the circuits to engage in en banc review, and the infinitesimal probability of Supreme Court review, the panels operate as a law unto themselves. This version of the case for enhancing appellate capacity does have some force. It is undeniable that the Court can no longer engage in the kind of direct oversight of the courts of appeals that was possible in the 1920s, when it reviewed one in ten appellate rulings.

Whether this inability to supervise creates a problem requiring new institutional arrangements is, however, debatable. At present the Supreme Court appears not to have on its docket enough cases warranting plenary review to fill its argument calendar. Moreover, whether the panels operate as such wayward institutions is not clear. Many a circuit has, for example, adopted a "mini" en banc procedure to ensure uniformity of law within the circuit and to promote reconciliation of intercircuit splits. Even if one concedes that the Supreme Court has a work load problem (or that there is a need for additional appellate capacity), will the oversight benefits of an additional layer of review in, say, another 150 cases outweigh the attendant costs? Or will these otherwise nationally binding rulings be irresistible candidates for immediate plenary review by the Supreme Court—and hence a new category of practically mandatory jurisdiction?

The expansion of federal judicial business is the result of an explosion in federal law. Creating new layers of appeals creates more law, but not law enjoying the peculiar finality of a Supreme Court resolution. Improvements can be made. They are more likely to be found, however, in legislation reducing forum choice in federal statutes and imposing sanctions for unwarranted appeals; better management by the courts of appeals of panel disagreements and a greater willingness to reconsider circuit law in light of developments elsewhere; and strategic deployment by the High Court of its scarce decisional resources.

Samuel Estreicher
(1992)

Bibliography

Baker, Thomas E. and Mc Farland, Douglas D. 1987 The Need for a New National Court. Harvard Law Review 100: 1401–1416.

Estreicher, Samuel and Sexton, John E. 1986 Redefining the Supreme Court's Role: A Theory of Managing the Federal Judicial Process. New Haven, Conn.: Yale University Press.

Ginsburg, Ruth Bader and Huber, Peter W. 1987 The Intercircuit Committee. Harvard Law Review 100:1417–1435.

Posner, Richard 1985 The Federal Courts: Crisis and Reform. Cambridge, Mass.: Harvard University Press.

Strauss, Peter L. 1987 One Hundred Fifty Cases per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action. Columbia Law Review 87:1093–1136.