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How Constitutional Silence and Politicized Federalism Led to Erosion of "Judicial Hallmarks" in Federal Appellate Process

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How Constitutional Silence and Politicized Federalism Led to Erosion of Tulsa Law Review Volume 56 Issue 1 Fall 2020 Short-Circuited: How Constitutional Silence and Politicized Federalism Led to Erosion of "Judicial Hallmarks" in Federal Appellate Process Adam Heavin Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Adam Heavin, Short-Circuited: How Constitutional Silence and Politicized Federalism Led to Erosion of "Judicial Hallmarks" in Federal Appellate Process, 56 Tulsa L. Rev. 109 (). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol56/iss1/7 This Casenote/Comment is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Heavin: Short-Circuited: How Constitutional Silence and Politicized Feder SHORT-CIRCUITED: HOW CONSTITUTIONAL SILENCE AND POLITICIZED FEDERALISM LED TO (526,212)³-8',&,$/+$//0$5.6´,1)('(5$/ APPELLATE PROCESS The judiciary is now under consideration. I view it as you do, as defective both in its general structure, and many of its particular regulations. The attachment of the Eastern members, the difficulty of substituting another plan, with the consent of those who agree in disliking the bill, the defect of time &c. will however prevent any radical alterations. The most I hope is that some offensive violations of Southern jurisprudence may be corrected, and that the system may speedily undergo a re-consideration under the auspices of the Judges who alone will be able perhaps to set it to rights. -James Madison [1789] 109 Published by TU Law Digital Commons, 1 Tulsa Law Review, Vol. 56 [], Iss. 1, Art. 7 110 TULSA LAW REVIEW [Vol. 56:109 I.THE CIRCUIT COURTS HAVE DETERIORATED FROM A PERSONALLY CONDUCTED TO A BUREAUCRATICALLY CONDUCTED APPELLATE PROCESS. ................................. 111 II.CIRCUIT RIDING WAS AN EARLY EXAMPLE OF CONGRESS¶ TENDENCY TO HINDER JUDICIAL ADAPTATION. ...................................................................................... 113 A. Until Five Score and Nine Years Ago, Circuit Riding Plagued the Federal Judiciary. .................................................................................................... 114 B. The Supreme Court Endured Circuit Riding for Over a Century. ................. 117 C. Congress Is Historically Uncooperative When Adaptation Is Needed in the Circuits. ...................................................................................................... 118 III.CONSTITUTIONAL SILENCE AND POLITICIZED FEDERALISM HAVE PREVENTED EFFICIENT ADAPTATION SINCE THE JUDICIARY¶S FOUNDING. ............................ 120 A. The Constitution Does Not Provide a Method for Adapting the Federal Courts Over Time. ................................................................................................. 120 B. Judicial Acts Illustrate the Ineffective Relationship Between the Judiciary and Congress. ................................................................................................... 122 i. The Judiciary Act of 1789 Established a Flawed Federal Court System. 122 ii. The Judiciary Acts of 1801 and 1802 Demonstrate How Politicized Federalism Harms the Federal Courts. ................................................. 125 iii. Legislation Aimed Directly at the Circuits Is Not Immune from Politicized Federalism. ......................................................................... 128 iv. Politicized Federalism Continued Influencing the Federal Courts Throughout the Nineteenth Century. ................................................... 129 v. The Federal Judgeship Act of 1990 Is the Most Recent Example of Legislation That Was Inadequate Because of Politicized Federalism. 131 C. Constitutional Silence and Politicized Federalism Have Always Been the True Culprits. ..................................................................................................... 132 IV.THE ³&RISIS OF VOLUME´ IS THE LATEST EXAMPLE OF AN OLD INFECTION. ........... 134 A. The Report of the Federal Courts Study Committee Addressed the Problem Thirty Years Ago. ...................................................................................... 134 %:KDW,VWKH&XUUHQW6WDWHRIWKH³&ULVLVRI9ROXPH"´ .................................. 136 C. The Death RIWKH³3HUVRQDOO\&RQGXFWHG´)HGHUDO$SSHOODWH3URFHVV0XVW%H Mourned if It Is Ever to Be Born Again. ................................................... 139 V.CONCLUSION .............................................................................................................. 141 https://digitalcommons.law.utulsa.edu/tlr/vol56/iss1/7 2 Heavin: Short-Circuited: How Constitutional Silence and Politicized Feder 2020] SHORT-CIRCUITED 111 I. THE CIRCUIT COURTS HAVE DETERIORATED FROM A PERSONALLY CONDUCTED TO A BUREAUCRATICALLY CONDUCTED APPELLATE PROCESS. In drafting Article Three of the United States Constitution, James Madison and his co-authors did not include methods for efficiently adapting the federal courts to an ever- evolving caseload.1 This profound lack of direction planted an infection in the federal court system, a potentially fatal illness called the ³crisis of volume.´2 Politicized federalism has served as a catalyst, perpetually spreading the infection and exacerbating the crisis.3 The term crisis is a misnomer in this instance, as most crises are temporary emergencies so pressing that they demand immediate attention and resolution. Ironically, warnings regarding the ³crisis of volume´ have been neglected for decades.4 This Comment will address the crisis, which currently plagues the United States Courts of Appeals (hereinafter ³the Circuits´).5 The Circuits are weighed down by an overwhelming caseload in the same way Atlas was weighed down by the world; except that Atlas was never expected to dispense justice effectively while shouldering his burden.6 The Circuits have endured the nagging ³crisis of volume´ because no expedient manner of adapting the federal courts is mentioned in the United States Constitution.7 The Founding Fathers set forth the structure of the legislature in Article One, the executive in Article Two, and the judiciary in Article Three.8 With significantly less text than those preceding, Article Three is silent regarding the inner workings of the federal courts, and the proper measures for maintaining reasonably efficient courts were left to the discretion of Congress.9 However, the discretion of Congress is often in opposition to the needs of the federal courts; that opposition is largely caused by a fundamental principle at the heart of American government, federalism.10 Federalism is the oldest, most pervasive, and politically polarizing debate in American history.11 Justice O¶Connor, in New York v. United States, described federalism as a ³constitutional question . as old as the Constitution: It consists of discerning the 1. See U.S. CONST. art. III. 2. FED.CTS.STUDY COMM., REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 109 (Apr. 2, 1990). The term ³crisis of volume´ was used by the Federal Courts Study Committee in its 1990 report to refer to the danger the judiciary faced under an overwhelming caseload. 3. See generally Stephanie K. Seymour, The Judicial Appointment Process: How Broken Is It?, 39 TULSA L. REV. 691 (2004) (discussing the politicization of judicial issues, in the context of the appointment process); Carl M. McGowan, Federalism – Old and New – and the Federal Courts, 70 GEO. L.J. 1421 (1982) (explaining the ways in which federalism has affected the federal courts). 4. See FED.CTS.STUDY COMM., supra note 2, at 109; Miner µ56, Roger J., Dealing with the Appellate Caseload Crisis: The Report of the Federal Courts Study Committee Revisited, 57 N.Y.L. SCH.L.REV. 517 (2013) (clarifying that the crisis worsened following the publication of the Federal Courts Study Committee¶s report). 5. FED.CTS.STUDY COMM., supra note 2, at 109. 6. FED.CTS.STUDY COMM., supra note 2, at 109; ROBIN HARD &H.J.ROSE,THE ROUTLEDGE HANDBOOK OF GREEK MYTHOLOGY:BASED ON H.J. ROSE¶S HANDBOOK OF GREEK MYTHOLOGY 49 (2004) (providing an explanation of the Greek myth of Atlas, known for helping the Titans rebel against the Olympians. Zeus punished Atlas¶ rebellion by mandating that he hold up the sky for eternity). 7. See U.S. CONST. art. III. 8. See U.S. CONST.arts. I±III. 9. See U.S. CONST. art. III. 10. New York v. United States, 505 U.S. 144, 149 (1992). 11. Id. Published by TU Law Digital Commons, 3 Tulsa Law Review, Vol. 56 [], Iss. 1, Art. 7 112 TULSA LAW REVIEW [Vol. 56:109 proper division of authority between the Federal Government and the States.´12 Any matter that invokes a question of federalism²of where the authority to govern lies²will be accompanied by the politicization of the issue.13 This Comment refers to those parallel manifestations of politics and federalism as politicized federalism. Politicized federalism is rampant in areas of confusion caused by constitutional silence.14 The absence of provision in Article Three for adapting the courts has meant a prevalence of politicized federalism in moments when that adaptation is needed.15 With politicized federalism acting as a catalyst for the infection, the federal judiciary has been unable to defend itself, as if there were no judicial immune system at all.16 Lawmakers must consider a new approach for addressing the ³crisis of volume,´ and the judiciary requires its own immune system to ward off future attacks.17 Article Three¶s silence
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