It Is Past Time for Congress To Expand the Lower Courts
It Is Past Time for Congress To Expand the Lower Courts
Congress must ensure the federal judiciary reflects the needs and diversity of the people it serves.
Expansion of the federal courts has been common throughout U.S. history. In the 100 years after the modern courts of appeals were created in 1891, Congress has enacted nearly 30 expansions. Currently, however, the bench is experiencing historic neglect. The lower courts haven’t been meaningfully updated in more than three decades—the longest period of such inaction in American history. As a result, a population that has grown by nearly a third and has dramatically diversified faces long waits to appear before judges who do not represent the country’s complexity.
It is time again to modernize the courts. The federal judiciary must be expanded, significantly and immediately, to meet the needs of the American people.
America’s outdated courts
The federal bench underwent its last meaningful update in 1990, when Congress expanded the circuit courts by 11 permanent seats and the district courts by 61 permanent seats. While these numbers may sound large to today’s court observers given the current long period of inactivity from Congress, a much more robust expansion had occurred about a decade prior: In 1978, Congress expanded the federal courts under then-President Jimmy Carter by more than 30 percent at the district and appellate levels. After passage, President Carter immediately began filling those seats.
The expansion under Carter was focused on easing the backlogs of cases that had led to unreasonable delays in justice across the country. It also led to a historic expansion of diversity on the bench, thanks to President Carter’s dedication to improving the numbers of women and people of color serving as judges.
With respect to the challenges facing today’s judiciary, the goals and results of this 1978 expansion speak to the type of action needed now.
Justice delayed and a judiciary unrepresentative of America
Across the country, many litigants must wait years to have their cases resolved. The average time between filing and trial in federal civil suits, for example, is two years. In fact, in some jurisdictions, attorneys have even taken to finding ways to avoid federal courts and the delays that await their clients within the federal system. One federal judge recently pleaded during a hearing in the U.S. House of Representatives: “The bottom line of my testimony today is that we cannot fulfill our obligations without congressional action to create new judgeships.”
This state of affairs is unsurprising given that the country’s population has grown by nearly a third since the 1990 expansion without any significant growth of the judiciary. Likewise, the diversity of the American population has undergone profound changes over that period: Since 1990, the Black population has increased by approximately 41 percent, the Latino population has increased by 170 percent, and the Asian population has increased by 185 percent.*
Yet these changes in the American population are not represented in the makeup of the bench. Out of all active federal appellate and district court judges, more than 65 percent are men—despite the fact that women make up more than half of the U.S. population. And while people of color make up approximately 40 percent of the population, more than 70 percent of the bench is white.
This lack of representation has real consequences: A diverse judiciary has long been recognized as both improving the quality of judicial decision-making and increasing the public perception of judicial branch legitimacy. In addition to the deficit of judges, the severe disconnect between the diversity of Americans and that of the judiciary harms the quality of justice overall.
Americans also deserve a judiciary made up of judges with a wide range of legal backgrounds—not only in high-powered corporate law but also in fields that serve more ordinary and often underrepresented people. While President Joe Biden has stated his commitment to diversifying the bench in this regard, the disparities are stark: Less than 10 percent of all active federal district and appellate judges have worked as public defenders for any period of time, compared with the nearly 90 percent of judges with experience in private practice.
Similar to the lack of demographic diversity, this lack of professional diversity on the bench is out of step with the reality of America. The vast majority of the people in the country are not high-powered business executives or otherwise wealthy people who can afford the help of expensive attorneys. In fact, since the 1970s, the size of the middle class has shrunk by nearly 20 percent as income inequality has grown. And over roughly the same time period, the number of incarcerated people has grown by 500 percent. While a more professionally diverse judiciary is not a panacea for these significant public policy crises, the perspectives of judges who have experience representing ordinary Americans would do much to ensure that the judiciary is equipped to fairly evaluate the variety of suits brought before it.
The scope of reform needed
Despite this state of affairs, in recent years, policymakers have traditionally focused on narrow proposals. The influential U.S. Judicial Conference, for instance, currently suggests only two additional circuit court seats on top of the current 179, amounting to a 1 percent increase in the circuit courts. In making its recommendations, the Judicial Conference uses a system based on examining the number of filings for each court, which is calculated differently at the district and appellate levels. The complexities of those calculations are outside the scope of this analysis; however, even if one were to rely on the conference’s stated baselines in regard to ideal filings per judge to gauge the size of expansion needed, the recent recommendations by the conference would still fall short of meeting its own benchmarks.
Overall, this recommendation appears to reflect a resignation that high caseloads for judges and long waits for those in their courtrooms are an unavoidable part of judicial life—a resignation that can perhaps be explained, in part, by Congress’s long inaction. Given the above statistics and illustrations, however, it is clear that a much broader expansion is necessary to begin to make meaningful improvements.
An expansion of the appellate courts by approximately the same rate that occurred in 1978—30 percent—would mirror the growth of the U.S. population since the 1990 law. Further, such an expansion would help the judiciary become more reflective of America. If all the newly appointed judges were women, for example, women would finally make up approximately half of the bench.
Of course, not every new judge is likely to be a woman—or a person of color, public defender, legal aid attorney, or civil rights attorney. There would still be significant work to do after a robust court expansion to improve diversity on the courts. But this example shows why a large expansion—much closer to the expansion that occurred under President Carter than that proposed by the Judicial Conference—is the only meaningful path forward to bring real change to the courts in the near future, in regard to both access to justice and diversity.
Moving past politics: Expansion should go into effect immediately
Although previous modernization efforts have received broad support from both Democrats and Republicans, far-right extremists have succeeded in fostering a politically charged atmosphere that has infected current discussions on expansion. When Donald Trump won the 2016 presidential election, conservative legal activists were elated. Fresh from victory after blocking President Barack Obama’s Supreme Court nominee Merrick Garland—whose recent confirmation as U.S. attorney general on a broad bipartisan basis demonstrated the base political motivation for blocking his Supreme Court nomination—conservative legal activists turned to promoting far-right ideologues and Trump political appointees for judgeships.
In 2017, a well-known leader of the legal right, Steven G. Calabresi, went a step further to suggest that Republicans should dramatically expand the lower courts. While Calabresi did rightfully acknowledge the workload changes that necessitate such an expansion, he also revealed a much more partisan motivation: By enacting the needed increase, Calabresi wrote, “Congress could achieve another important reform: undoing the judicial legacy of President Barack Obama.” Such rhetoric has done much to taint and damper the current discussion on updating the bench.
In fact, despite general bipartisan agreement that expansion is necessary, many congressional Republicans have been fixated on preventing the current president from filling any new seats Congress may eventually create. This posturing should not be taken seriously. Historically, when an expansion bill has passed, the president in office has begun the task of filling new seats as a matter of course.
Moreover, the current president has already proven himself dedicated to modernizing the courts in a variety of ways. Not only has President Biden announced the creation of a bipartisan task force to study Supreme Court reform that includes experts from a variety of legal disciplines and ideological perspectives, but he has also proven himself dedicated to prioritizing the courts and diversifying them writ large. The president’s first slates of judicial nominees have been historically diverse in regard to gender, race, religion, and professional diversity.
These actions strongly demonstrate that President Biden will fairly and swiftly fill newly created seats with talented and diverse nominees. Any new bill to expand the courts should not prevent him from doing so.
America has undergone profound changes since the 1990 judgeship expansion. Access to justice is taking far too long, and many judges feel unable to meet their constitutional duty, all while the population continues to grow both in numbers and in diversity. Ordinary people across the country are facing challenges that would be best served by judges with a wide range of expertise and experience. The federal judiciary must be modernized to reflect this reality.
The need for robust court expansion is clear. Congress should act.
Maggie Jo Buchanan is the director of Courts and Legal Reform at the Center for American Progress.
Stephanie Wylie is the senior policy analyst for Courts and Legal Reform at the Center.
*Authors’ note: Unless otherwise noted, all data in regard to federal judges’ professional experience were pulled from the Federal Judicial Center’s “Biographical Directory of Article III Federal Judges, 1789-present” and are accurate as of July 26, 2021. In order to calculate growth rates for the Black, non-Hispanic or Latino population; the Asian, non-Hispanic or Latino population; and the Hispanic or Latino population (of any race), the authors used data from the U.S. Census Bureau. They reviewed 1990, 2000, and 2010 census results of the population by race and Hispanic origin, as well as estimates of the population by race and Hispanic origin from 2019, as 2020 census results by race and Hispanic origin have not yet been released. For each demographic category listed, the population numbers of 1990 were subtracted from the population numbers of 2019 to determine the change in population. Finally, to calculate the percentage population increase since 1990, the change in population was divided by the 1990 population numbers.
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Maggie Jo Buchanan
Senior Director and Senior Legal Fellow, Women’s Initiative
Former Associate Director, Courts and Legal Policy