The Conservative Court-Packing Plan and the Facts about their Fictional “Caseload Crisis”

Federalist Society co-founder Steven Calabresi, writing with Shams Hirji, dropped a bombshell before Thanksgiving. They proposed a massive expansion of the federal judiciary by 33% or even 50%. Linda Greenhouse and Dahlia Lithwick have criticized this proposal. As Ron Klain explained in the Washington Post:

“If conservatives get their way, President Trump will add twice as many lifetime members to the federal judiciary in the next 12 months (650) as Barack Obama named in eight years (325)…”

At times, Calabresi and Hirji are forthright about their motives. On the first page of their memo, the first header trumpets: “Undoing President Obama’s Judicial Legacy.” But the rest of their memo, from page 5 through 38, emphasizes an unprecedented “crisis” in judicial workload. “Caseloads have reached unprecedented levels.” (6). “[A] crisis in volume.” (6) Apparently, the sky is falling, and they just happened to notice. The Calabresi-Hirji memo is misleading about the facts of the federal judiciary. There is no workload crisis whatsoever.

First, it’s notable that Calabresi and Hirji only suddenly noticed this apparent crisis in 2017, even though their memo searches for — and purports to find — evidence of a workload crisis going back for years, even decades. Somehow conservatives did not suggest increasing the size of the judiciary under Obama. In fact, Senate Republicans did the opposite: they blocked Obama’s nominations to leave those seats open for Republicans. Klain writes, “The Garland-to-Gorsuch Supreme Court switch is the most visible example of this tactic but far from the only one: Due to GOP obstruction, ‘the number of [judicial] vacancies . . . on the table when [Trump] was sworn in was unprecedented,’ White House Counsel Donald McGahn recently boasted to the conservative Federalist Society. Trump is wasting no time in filling the 103 judicial vacancies he inherited. In the first nine months of Obama’s tenure, he nominated 20 judges to the federal trial and appellate courts; in Trump’s first nine months, he named 58.”

Second, there is no “judicial workload crisis.” As I will show below, trial and appellate workload have been flat for years.

Third, Calabresi and Hirji have been shifting their argument to “what about Jimmy Carter?” In their “full-court press” for their plan, if you will, they have written more recently:

In fact, [our proposal] is a court-unpacking plan. It counteracts Democratic court-packing under President Carter and a Democratic Congress in 1978, which increased the size of the federal courts by 33 percent… This [workload crisis] is a national scandal of epic proportions, which Congress should and could address by increasing the size of the federal courts of appeals and district courts by 33 percent, as Jimmy Carter and a Democratic Congress did in 1978. If what Carter and the Democrats did in 1978 was permissible, then what we propose is permissible as well.

This is misleading “whatabout-ism.” Richard Primus addresses part of their argument with details of the passage of the 1978 statute. I write here to show that the litigation statistics reflect a huge increase in the 1970s, but no crisis today.

The Federal Judicial Center, the research and education agency of the judicial branch, tracks judicial workload over the past century.  Here is what their actual records show: A dramatically sharp increase in appellate cases from the 1960s to the early 2000s, and then a drop over the last decade: Court of Appeals Caseloads, 1892-2016

Civil suits rose steadily from the 1960s through the 1990s, and then have leveled off since then.

Total non-bankruptcy filings increased rapidly starting in the late 1960s through the late 1980s, and also leveled off to a flat steady line.

The bottom line of these charts and statistics is that in the late 1970s, there actually was a workload crisis, and Congress responded with a bipartisan solution. Again, Primus explains that the 1978 Act was designed primarily to address the dramatic population expansion in the 9th Circuit (California and the west) and in the 5th Circuit (mostly Texas):

“[T]he statute was not a partisan or ideological power play. In both Houses of Congress, most Republicans supported its passage. (Or, strictly speaking, we know for sure that that was true in the House, where there was a roll-call vote. In the Senate, the measure passed by voice vote, which suggests that it wasn’t a highly contested question.) The point here is just that although it’s true that a prior bill passed by a majority-Democratic Congress and signed by a Democratic President expanded the number of circuit judgeships by 36%, it would be a mistake to infer that that bill, like the one Calabresi and Hirji propose, was an effort to seize ideological control of the lower courts.”

I add to Primus’s account that there was indeed a workload explosion from the FJC’s statistics. From 1968 to 1978, the number of non-bankruptcy cases almost doubled (100,000 non-bankruptcy cases to about 180,000), and the number of appeals almost quadrupled.

But I also want to note what is so striking about these charts: after such a dramatic increase in caseload over the late 20th century, this problem has been solved. And Congress probably way over-solved it. We have overcorrected one problem, and we have created another. Federal statutes have made it far too difficult for prisoners to assert their constitutional rights through habeas corpus. Congress has “fixed” the workload problem by making it far harder for criminal defendants and immigrants to get into court. Congress and the Supreme Court is cutting back on access to justice through civil procedure reforms, including limits on class action litigation. Consumers have always had a difficult time challenging big banks and big business, and Congress just made it a lot harder.

So there are several ways Calabresi and Hirji have it all backwards. There is no judicial workload crisis. They conveniently manufacture one in 2017, but conservatives acted as if there were too many judges on the bench in the Obama years. And the problem in America is not too much access to justice, but far too little. Beneath a fiction of a “caseload crisis,” Calabresi and Hirji actually want to help Trump make access to justice even worse for average Americans.


Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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