UNITED STATES COURTS OF APPEALS

The United States Courts of Appeals form the intermediate component of the three-tiered federal judiciary, lying between the united states district courts and the supreme court of the United States. As such, they normally serve as the first courts of review in the federal judicial system. But because of the natural limitations upon the Supreme Court's capacity, the Courts of Appeals are often also the final courts of review.

Article III, section 1, of the Constitution provides: "The judicial power of the united states, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Thus, in contrast to the Supreme Court, inferior federal courts were not required by the Constitution; rather, their creation was left to the discretion of Congress. Such treatment reflected a compromise between two views, one favoring the mandatory creation of inferior courts, and the other completely opposed to the existence of any such courts.

The Courts of Appeals are relative newcomers to the federal judicial system, having been born with the circuit courts of appeals act (Evarts Act) of 1891. The Courts of Appeals were created to solve an acute crisis in the federal judiciary stemming from the limited capacity of the existing system, which had remained largely unchanged since the judiciary act of 1789. That act had established a bilevel system of inferior federal courts. There were, first of all, single-judge "district courts," generally one per state. The Union was also divided into several "circuits." circuit court was to be held twice a year in each of the districts encompassed by a given circuit. At these sittings, cases would be heard by a three-judge panel consisting of two Supreme Court Justices and the district judge for the district in which the circuit court was being held.

Having determined to avail itself of its constitutional prerogative to establish inferior federal courts, Congress faced the further issue of those courts' appropriate function and jurisdiction. In the debates over Article III, there had been substantial support for giving Congress the power to create only admiralty courts, rather than inferior courts of general jurisdiction. No such limitation was adopted, however. It has therefore been generally assumed that Congress is constitutionally free to define the role of the inferior federal courts however it chooses.

The manner that Congress selected in the 1789 act is of some interest. The district courts were, and remain today, trial courts or courts of first instance. The circuit courts, in distinct contrast to today's middle-tier courts, also functioned primarily as trial courts. In the area of private civil law, the circuit courts' jurisdiction was largely concurrent with that of the district courts: it encompassed cases within the diversity jurisdiction, but not federal question cases. (Original federal jurisdiction was not extended to federal question cases until 1875.) Similarly, with respect to civil suits by the United States, both circuit and district courts were given original jurisdiction, the only difference being that the requisite amount in controversy was higher for circuit court jurisdiction.

The circuit courts even had certain original jurisdiction that the district courts lacked. The first removal jurisdiction was vested in the circuit courts alone. And the circuit courts had exclusive jurisdiction over most federal crimes.

Nonetheless, the seeds of the modern federal courts of appeals were planted by the first Judiciary Act. The early circuit courts had appellate jurisdiction in civil cases involving disputes over amounts exceeding $50, and in admiralty cases exceeding $300. (A district judge sitting as a circuit judge was not, however, permitted to vote on appeals from his own decisions.) Unlike the modern courts of appeals, however, the circuit courts were the final federal forum for many of these cases. In civil suits, circuit court judgments were reviewable only when the amount in dispute exceeded $2,000. Judgments in criminal cases were categorically unreviewable.

The early circuit courts proved problematic, in the main because of the burden that circuit riding placed on the Supreme Court Justices. Congress attempted to alleviate that hardship by reducing from two to one the number of Justices required to sit on a circuit court, but the benefit of the reduction was more than outweighed by several important augmentations of the High Court's jurisdiction that were enacted by Congress during the century following the 1789 Judiciary Act. Most notable of such legislation was the judiciary act of 1875, which granted the lower courts, as well as the Supreme Court, nearly the full scope of Article III jurisdiction, including original federal question jurisdiction in the district and circuit courts. The federal courts, already vastly overloaded with cases, were virtually submerged after this act. Reform was inevitable.

Indeed, attempts to improve the judicial system had more than once been made. In 1801 Congress had enacted the judiciary act of 1801 (the "Law of the Midnight Judges"), which among other things had established permanent circuit judgeships, three to a circuit. When political tides shifted the following year, however, the act was repealed, and the system reverted essentially to its original condition, except that Congress permitted circuit court to be held by a single judge, rather than three. Much later, in 1869, Congress partially restored the plan of 1801 by creating a single permanent circuit judgeship for each of the nine circuits then in existence. And in 1887 and 1888 Congress passed a series of measures aimed at pruning the expanded jurisdiction of the lower federal courts.

But it was not until the Evarts Act that Congress provided structural reforms adequate to the crisis of judicial overload. The act established three-judge courts of appeals for each of the nine circuits, and increased the number of permanent circuit judgeships to two per circuit. The third appeals judge would in most instances be a district judge (though Supreme Court Justices remained eligible), but the act, following the rule set down by the Act of 1789, barred district judges from reviewing their own decisions.

Curiously, the Evarts Act left the old circuit courts standing, although it did remove their appellate jurisdiction. Until these courts were abolished in 1911, there thus functioned two sets of federal trial courts.

The Evarts Act provided for direct review by the Supreme Court of the decisions of the district courts and the old circuit courts, in some important cases. The new circuit courts of appeals would review the remainder. Under the act, a circuit court's decision in an admiralty or diversity case would be final, unless that court certified a question to the Supreme Court or the Supreme Court granted a writ of certiorari in order to review the circuit court's decision. In most other cases, circuit court decisions were appealable as of right.

Since the Evarts Act, only a few significant alterations have been made to the federal judicial system in general, and the courts of appeals in particular. The rules governing Supreme Court review are perhaps the most important arena of change. In 1925, Congress replaced appeal as of right with discretionary review for all circuit court judgments except those holding a state statute unconstitutional. In 1937, Congress passed a law permitting appeal to the Supreme Court from any judgment by a federal court holding an act of Congress unconstitutional in any civil case to which the United States is a party.

In 1948 the circuit courts established by the Evarts Act were renamed; each court is now known as the United States Court of Appeals for theCircuit. The number of circuits has also been increased; and there is now a "Federal Circuit" court to hear appeals from the claims court and from district courts in patent cases or in cases arising under the tucker act. Finally, procedures in the various courts of appeals were standardized in 1968 in the Federal Rules of Appellate Procedure. Each circuit, however, retains its own rule-making power for matters not covered by the Federal Rules.

The chief work of the courts of appeals is the review of final judgments of the United States district courts. The courts, however, are also empowered to review certain orders that are not strictly final, essentially when the benefit of such review clearly outweighs any attendant disruption and delay of district court proceedings. In addition, Congress has enabled the appeals courts to issue the extraordinary writ of mandamus and writ of prohibition in cases in which district courts may abuse their constitutional powers. Finally, the statutes governing many of the various federal administrative agencies provide for direct review of agency adjudication and rule-making in the court of appeals for the circuit in which the party seeking review resides, or in the Court of Appeals for the District of Columbia Circuit. The latter circuit court has been a frequent forum for challenges, constitutional and otherwise, to federal agency action.

To understand the role of the courts of appeals in the development of constitutional law, it is necessary to understand the relationship between the appeals courts and the Supreme Court. As was noted above, since the judiciary act of 1925, the "Judges Bill," the Supreme Court has had a discretionary power of review of most circuit court decisions. Again, however, appeal as of right lies in cases in which the appeals court has held a state statute to be repugnant to the Constitution, laws, or treaties of the United States, and in civil cases in which either a court of appeals or a district court has held an act of Congress unconstitutional and the United States is a party. Nonetheless, neither type of case in which appeal is of right bulks very large in the overall volume of appeals from circuit courts, and of those, many are denied Supreme Court review for want of a substantial federal question.

Accordingly, the Supreme Court has the discretion to review or not to review the vast majority of decisions by the courts of appeals. Not surprisingly, because of the limited capacity of the High Court, its discretion is much more often exercised to deny review than to grant it. As a general rule, in fact, the Supreme Court tends not to review appeals court decisions unless the issues involved either have an urgent importance or have received conflicting treatment by different circuits, or both.

One might conclude that, because the Supreme Court does review important cases, the appeals courts have no significant role in the development of constitutional law. Constitutional law, however, is not the product solely of the Supreme Court.

To begin, the Supreme Court can only review a decision that a party seeks to have reviewed; not every losing party in the court of appeals may do so. For example, in Kennedy v. Sampson (1974) the District of Columbia Circuit construed the pocket veto clause of the Constitution (Article 1, section 7, clause 2) to bar the President from exercising the pocket veto power during brief, intrasession adjournments of Congress. The President then declined to seek review in the Supreme Court; he chose instead to acquiesce in the rule laid down by the appeals court. The court's decision thus became a cornerstone of the law respecting the presentation of laws for presidential approval.

Of course, as a glance at any constitutional law textbook or casebook reveals, the vast majority of important constitutional precedents are produced not by the courts of appeals but by the Supreme Court. Decisions like Kennedyare thus the exception, not the rule. Nonetheless, in several ways the appeals courts contribute significantly to the development of constitutional law.

Before a constitutional issue is decided by the Supreme Court, it will often have received a thorough ventilation by one or more circuit courts. The Supreme Court thus has the benefit of the circuit judges' consideration of difficult constitutional matters, and may sometimes explicitly adopt the reasoning of the court of appeals. For example, in United States v. Dennis (1950) the Second Circuit faced the difficult issue of whether, and if so, how, the clear and present danger test applied to a conspiracy to advocate the overthrow of the government by force and violence and to organize a political party for the purpose of such advocacy. The Court of Appeals, in an opinion by Judge learned hand, held that such advocacy was unprotected by the first amendment even though the actual forceful overthrow of the government was not imminent. The Supreme Court affirmed the decision in dennis v. united states (1951), and its opinion adopted much of Judge Hand's analysis, including Judge Hand's "clear and present danger" formula, namely, "whether the gravity of the "evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."

The role of the courts of appeals in resolving novel issues of constitutional law, however, is only half of the picture. Equally important is the appeals courts' adjudication of cases raising issues on which the Supreme Court has already spoken. Because the High Court can only sketch the broad outlines of constitutional doctrine, it remains for the lower courts to apply precedent, elaborate or clarify it, and extrapolate from it. Because appeal from the district courts to the appeals court is of right, and because most litigation never reaches the Supreme Court, it is in the courts of appeals that the Supreme Court's sketch is worked into a fully drawn landscape.

When the Supreme Court decides not to give plenary review to a case arising from an appeals court, what implication should be drawn concerning the value of the appeals court's opinion as a precedent? By denying a petition for certiorari or dismissing an appeal as of right for want of jurisdiction, the Court formally indicates no view of the merits or demerits of the appeals court's decision. Nonetheless, it is commonly thought that the Supreme Court generally does not decline to review an appeals court decision that it finds clearly incorrect. Similarly, when the Supreme Court summarily affirms an appeals court's decision, it is formally signaling its agreement with the result only, and not necessarily the reasoning of the lower court. Yet, such affirmances are popularly thought to indicate at least the Court's tentative agreement with the substance of the lower court's opinion.

Since the early 1960s, the federal courts at all three levels have experienced a dramatic and continuing increase in their workload. At the district and circuit levels, Congress has responded by adding judges to existing courts. When the number of judges in a circuit has become sufficiently great, Congress has divided the circuit into two. That course is not entirely satisfactory, however, because it tends to push the appeals courts in the direction of being regional, rather than national courts, and increases the likelihood of intercircuit conflict.

At the Supreme Court level, Congress has made no significant changes. Various proposals for reducing the Court's workload would also affect adjudication at the appeals court level. A frequent suggestion has been to establish a national court of appeals. In one version, the national court would sit only to resolve conflicts among the circuits, thereby eliminating a significant share of the Supreme Court's annual docket. In another version, the national court would screen cases to determine those worthy of Supreme Court review. Another proposal would reduce the Supreme Court's workload by eliminating appeal as of right. One effect of such a measure, of course, would be to increase the number of appeals court decisions that are effectively final.

Carl Mc Gowan
(1986)