In Defense of (Circuit) Court-Packing

Abstract

Proposals to pack the Supreme Court have gained steam recently. Several leading Democratic Presidential candidates endorsed court-packing plans during their respective campaigns. A number of legal scholars have likewise called on Congress to consider expanding the Supreme Court, particularly following the contentious nominations of Justices Kavanaugh and Gorsuch. Yet this focus on packing the Supreme Court overlooks a much more politically feasible (yet still powerful) proposal: expanding the number of federal circuit court judgeships. I use this piece to develop several arguments in support of this idea.

First, I argue that circuit courts matter—that, indeed, they matter far more than the Supreme Court on many issues. Although the public may see the Supreme Court as having the final word on the law, it is circuit courts that represent the last arbiter for most litigants. The most commonly invoked reason behind this phenomenon is the capacity constraint: i.e., that the Supreme Court simply cannot take every case and resolve every circuit split. But I show that there are other, more subtle ways where the Court has devolved power back to the federal circuit courts: through, for instance, the increased use of balancing tests and discretionary review. I use two recent en banc decisions, from the Sixth and Ninth Circuits, to highlight these more subtle mechanisms.

Second, I argue that there are sound and non-partisan reasons for increasing the number of circuit judgeships. I have constructed a dataset comparing circuit judgeship growth to population growth since 1869. This dataset shows that the failure to increase the number of judgeships since 1991 is unprecedented. That failure, I further argue, has negatively impacted all players. Circuit judges find it harder to do their job, district judges are subject to less scrutiny, and litigants are deprived of a fair forum of review.

Third, I discuss how to increase the number of circuit judgeships in a fair and democratically responsive manner, so that any expansion is not viewed as overly partisan. My proposal here is not meant to be a final prescription, but a germ of thought that gives necessary space for political bargaining and democratic accountability.

Keywords: Supreme Court, court-packing, federal circuit courts, constitutional law

JEL Classification: K10, K40, K41