Revisiting and Confronting the Federal Judiciary Capacity “Crisis”: Charting a Path for Federal Judiciary Reform Peter S. Menell* and Ryan Vacca** The modern federal judiciary was established well over a century ago by the Judiciary Act of 1891. Over the next seventy years, the structure and core functioning of the judiciary largely remained unchanged apart from gradual increases in judicial slots. By the mid- 1960s, jurists, scholars, practitioners, and policy-makers had voiced grave concerns about the capacity of the federal system to function effectively in the face of ever-increasing caseloads. Heeding calls for reform, in 1972 Congress charged a commission chaired by Senator Roman Hruska to study the functioning of the federal courts and recommend reforms. After extensive study, the Hruska Commission concluded that “[n]o part of the federal judicial system has borne the brunt of . increased demands [to protect individual rights and basic liberties and resolve difficult issues affecting the financial structure and commercial life of the nation] more than the courts of appeals.”1 The Commission called attention to the Supreme Court’s capacity constraints and the risks to the body of national law posed by the growing number of circuit conflicts. DOI: https://doi.org/10.15779/Z38BK16Q3Q. Copyright © 2020 Peter S. Menell and Ryan Vacca. * Koret Professor of Law and Director, Berkeley Center for Law & Technology, University of California, Berkeley, School of Law. ** Professor of Law, University of New Hampshire School of Law. We thank the Administrative Office of the U.S. Courts and the Federal Judicial Center for providing data on the federal judiciary and to Su Li for exceptional research assistance in formatting, synthesizing, and analyzing the data. We are also grateful to Concord Cheung, Erin Delaney, Su Li, and Megan McKnelly for general research assistance on this project. We thank participants of the April 2019 Berkeley Judicial Institute/California Law Review Symposium on “Charting a Path for Federal Judiciary Reform” as well as George Fisher, Arthur Hellman, Katerina Linos, Stephen Wasby, and Daniel Yablon for comments on this Article. 1. ROMAN L. HRUSKA ET AL., COMMISSION ON REVISION OF THE FEDERAL COURT APPELLATE SYSTEM, STRUCTURE AND INTERNAL PROCEDURES: RECOMMENDATIONS FOR CHANGE 1 (1975) [hereinafter HRUSKA COMMISSION STRUCTURE REPORT]. 789 790 CALIFORNIA LAW REVIEW [Vol. 108:789 Based on these findings, the Hruska Commission recommended that Congress establish a National Court of Appeals to alleviate the strains on the Supreme Court and regional courts of appeals. The Supreme Court would have authority to transfer cases to the new intermediate appellate court and regional circuit courts would have authority to transfer cases posing circuit splits. The proposal was initially greeted with enthusiasm but ultimately failed. Apart from the substantial repeal of three-judge district courts, the division of the Fifth Circuit (creating the Eleventh Circuit), the creation of specialty courts for bankruptcy and patent appeals, and increases in the number of district court and appellate court slots, the fundamental structure of the federal appellate system has remained the same. Does this mean that the problems that galvanized attention half a century ago have abated or been addressed through other means? The data on caseloads and capacity constraints suggest otherwise. District and appellate court caseloads per judge have continued to mount and the number of certiorari petitions has more than doubled. The major impediments to judiciary reform are political, institutional, and human. Judiciary reform has become a legislative third rail, too dangerous for politicians, or even academics, to discuss. This Article revisits and confronts the growing caseload and congestion problems plaguing the federal judiciary. It begins by tracing the history and political economy surrounding judiciary reform. It then updates data on caseloads, processing times, certiorari petitions, en banc review, and other measures of judicial performance, revealing expanding caseloads and growing complexity and fragmentation of federal law. Part III explores the political, institutional, and human causes of the logjam over judiciary reform and offers an antidote: a commission tasked with developing a judiciary reform act that would not go into effect until 2030. The “2030 Commission” members would not know the identity or party of the President or who controls the Senate. Furthermore, any federal judges involved in the process likely would have taken senior status or be retired by the time any reforms went into effect and thus presumably would be less concerned about how reform proposals might affect them personally. By delaying implementation, the 2030 Commission members would effectively work behind a veil of ignorance that would enable them to focus on the best interests of future generations of citizens (and judges and practitioners) while at the same time drawing upon their own experiences. The article concludes by outlining a judiciary reform agenda for the 2030 Commission. Introduction ............................................................................................. 793 I. Evolution of the Federal Judiciary ...................................................... 795 A. Early History of the Federal Judiciary ................................. 796 2020] FEDERAL JUDICIARY REFORM 791 B. Establishment of the Modern Federal Judicial System ........ 800 1. The Evarts Act of 1891 .................................................. 801 2. Bankruptcy Act of 1898 ................................................ 801 3. Three-Judge Court Acts ................................................. 802 4. Judicial Code of 1911 .................................................... 802 C. 1920s–1960s: Dealing with Docket Growth and Complexity ....................................................................................... 803 1. Expanding Judgeships ................................................... 803 2. The Judiciary Acts of 1916 and 1925: Expansion of Discretionary Jurisdiction .............................................. 804 3. The Ill-Fated Court-Packing Plan and Judiciary Act of 1937 ............................................................................... 804 4. Expansion of Three-Judge District Court Jurisdiction .. 805 5. Emergence of En Banc Review ..................................... 806 6. Vast Expansion of the Administrative State .................. 809 7. Federal Judicial Center .................................................. 810 8. Multidistrict Litigation .................................................. 810 9. Appointment of U.S. Magistrate Judges ........................ 811 D. 1970s: The “Crisis of Volume” and Aborted Reform ......... 813 1. The Freund Study Group ............................................... 814 2. The Hruska Commission ............................................... 815 a. The Geographical Boundaries of the Several Judicial Circuits: Recommendations for Change ................. 816 b. Structure and Internal Procedures: Recommendations for Change .............................................................. 817 3. Speedy Trial Act ............................................................ 819 4. Repeal of the Three-Judge Court Act ............................ 820 5. Clarification and Expansion of Magistrate Judges’ Authority ........................................................................ 820 6. The Demise of the Hruska Commission Proposal ......... 821 E. Late 1970s and Early 1980s: Modest Reforms .................... 823 1. Expansion of Judgeships ............................................... 823 2. Bankruptcy Court Reform ............................................. 824 3. Division of the Fifth Circuit .......................................... 825 4. Failed Revival of the Hruska NCA Proposal ................. 826 5. Establishment of the Federal Circuit ............................. 827 6. The Intercircuit Tribunal Proposals ............................... 828 F. Retrenchment of En Banc Review ....................................... 831 G. Late 1980s and 1990s: Renewed Study of Judiciary Reform ....................................................................................... 834 1. Abolition of Mandatory Supreme Court Jurisdiction .... 836 2. Civil Justice Reform Act of 1990 .................................. 836 3. Increasing Judgeships .................................................... 839 4. Bankruptcy Appellate Panel Reform ............................. 840 792 CALIFORNIA LAW REVIEW [Vol. 108:789 5. En Banc Reform ............................................................ 840 H. 2000s: Judiciary Reform Stagnation .................................... 841 1. Further Expansion of Magistrate Judge Authority ........ 841 2. Jurisdictional Expansion: Class Action Fairness Act of 2005 ............................................................................... 841 3. Judgeship Stasis ............................................................. 842 4. Judiciary Reform Dormancy ......................................... 843 II. Empirical Assessment of Federal Judiciary Caseloads and Practices 843 A. District Courts ...................................................................... 843 1. Caseloads ....................................................................... 844 2. Geographic Distribution of Cases .................................. 848 3. Multidistrict