Rationing Justice on Appeal: The Problems of the U.S. Courts of Appeals.

• Author: Weis, Jr., Joseph F.

That the U.S. courts of appeals are in trouble is obvious to many close observers. Skeptics who question the existence of a crisis point to the fact that the appellate courts are relatively current in their caseload, despite the soaring number of appeals within the past thirty-five years. Comforted by the disposition statistics, the doubters see little need to worry about such matters as the radical changes in appellate procedures that have occurred and are content to sit back, complacently awaiting the arrival of a "real" crisis before taking any steps to modify the century-old system of appellate courts.

Professor Thomas E. Baker(1) takes quite a different view. He writes wistfully, "Gone forever are the days when every federal appeal was fully briefed and orally argued and then decided with a written opinion collegially produced by a three-judge panel with the full focused attention and active participation of each individual circuit judge" (p. 287). The deletion or curtailment of various stages of the ideal appellate procedure smacks to him of "rationing justice on appeal," the title he has chosen for his comprehensive study of the problems of the U.S. courts of appeals.

In 1988, Congress created the Federal Courts Study Committee and assigned to it -- in addition to a broad mandate to examine the problems of the federal courts -- the task of studying the structure of the appellate courts.(2) Baker served ably as Associate Reporter of this Committee, working directly with the subcommittee on administration, management, and structure. In addition, he has written extensively on various aspects of the federal court system(3) and is therefore particularly well qualified to examine some of the suggestions for its reorganization.

The dramatic increase in the workload of the courts of appeals is beyond dispute. In 1960, approximately 4000 appeals were filed. By 1990, that number had risen to 40,000, a ten-fold increase in a mere thirty years. Not only has the number of appeals in absolute terms soared, but the rate of appeal has increased as well -- from one in forth district court dispositions in 1960 to the current one in eight, a five-fold increase.(4)

In 1960, there were 68 circuit judges. In 1990, there were 168, only approximately two-and-one-half times more. Comparing the number of appeals per panel demonstrates the increased workload of the individual judge: there were 172 such appeals in 1960, and 787 in 1990.(5) Even if the ratio of circuit judges to the number of appeals was low in 1960, the dramatic increase reflected in the 1990 ratio represents a significant augmentation in the responsibility of each circuit judge.

Baker discusses the various changes in procedure that have been adopted to keep the courts current. He describes in detail such controversial measures as reduced opportunity for oral argument, screening of cases by staff attorneys, filing of decisions without opinions, nonpublication of opinions, and increased use of law clerks to draft opinions. The author concedes that without these "intramural reforms," the courts of appeals as we know them would not have survived, but he asserts that as a result, the courts have become quite different institutions from the ones of only a few years ago.

The various procedures that courts have adopted to keep from being inundated have received substantial criticism. After observing these modifications for some years, however, it seems more appropriate to ponder, "What else could the courts have done?" With a sense of discouragement one is also tempted at times to ask, "Does anyone really care?"

Although a few commentators have decried the increasing bureaucratization of the federal judiciary,(6) this process continues unabated. Indeed, some courts have devised systems for quickly screening in wholesale batches cases staff attorneys deem to be of little merit. Staff attorneys assigned to the cases meet with a panel of three judges and orally present the cases to the panel, along with a proposed dispositive memorandum order or judgment...