Statement of the Honorable Gerald Bard Tjoflat,
U.S. Court of Appeals for the Eleventh Circuit
During our debate over the structure and characteristics of the federal courts of appeals, certain things must be borne in mind. Restructuring these courts is not merely an administrative matter; the ways in which cases are adjudicated, and indeed the ways in which citizens exercise their rights and fulfill their duties under law, depend in large part on the way the courts are structured and the way they work. Any restructuring of the courts of appeals must enhance, rather than muddle, the rule of law. To this end, I offer two basic points: the courts of appeals must not continue to grow in size, and Congress must set priorities and take steps to reduce the number of cases that reach the Article III courts in general and the courts of appeals in particular.
The Commission has identified four objectives that any reform must adequately serve:
- Dispositions of cases must be timely;
- Outcomes must be consistent among litigants;
- Decisions should be uniform among circuits; and
- Deliberative attention must be paid to each appeal.
These objectives will be best achieved by a proper balance between the number of federal circuits and the size of the court of appeals of each circuit. A single national court of appeals would solve the problem of discord among circuits--but decisions of that court would not be consistent among litigants (for reasons discussed below), and timeliness and deliberation would suffer; at the other extreme, if there were dozens of small circuits with sufficient legions of judges to ensure that no judge had more than a few cases to consider at any time, dispositions would be timely and deliberative attention would certainly be paid to each appeal--but intercircuit conflicts would cripple the Supreme Court. The efficiency and competence of the federal judiciary will of course be optimized somewhere between these extremes, by a proper balance between the number of circuits and the size of each circuit. I believe that the threat currently posed by growth in the size of the courts of appeals currently is much greater than that posed by growth in the number of such courts.(1)
The clarity and stability of the rule of law in a circuit depends on the number of judges pronouncing the law. Posit a court of appeals consisting of only three judges, such as the First
Circuit as recently as 1970. Posit another court of appeals, such as the old Fifth Circuit (on which I sat for six years, until 1981, when Congress divided the Circuit) consisting of twenty-six judges, sitting in panels of three. One need not be clairvoyant to foresee that the rule of law will be clearer and more stable in the first circuit than it will be in the second circuit, with its "jumbo" court of appeals. Potential litigants in the second circuit will have little difficulty understanding the court of appeals' decisions, whether handed down by a unanimous or divided court, or predicting the outcome of a dispute. Not so for the potential litigants in the second circuit. Because the number of different three-judge panels deciding the court's cases is so large (in the old Fifth Circuit, when we included our senior judges in the draw for panels, the possible panel combinations available to hear a case numbered in excess of 3500), it is inevitable that one panel will overrule another, or gloss the circuit's precedent, and thus render the law unclear.
With the potential for such mischief, the law is rendered unpredictable. This unpredictability itself creates more and more appeals, as counsel follow the court's lead in parsing the precedent, and as litigants grow more willing to bring and defend claims in hopes of exploiting the ambiguous jurisprudence of the circuit or of drawing a sympathetic--and now relatively unconstrained--appellate panel. The end result is that the expected contributions of new judges are not realized.
To maintain the clarity and stability of their circuit's rules of law, the judges of a court of appeals having more than three judges must monitor the work of their colleagues. This is not a terribly time-consuming task for the judges on a small court, but it is for the judges on a jumbo court. As the size of the court increases, the time that must be devoted to this task increases greatly, and the time and energy that each judge can devote to the disposition of his or her own cases perforce decreases. On the basis of experience, I believe that the quality of justice provided by a court of appeals is palpably diminished when the court becomes larger than about twelve judges. If the court continues to grow far beyond this point, there will eventually come a time when the monitoring vigil overwhelms the business of deciding cases, and the addition of a new judge will not even result in an increase in the court's overall output of decisions, but will merely gum up the works even more. Such an institution would cease to be a court in the sense that I attach to the term; it would instead be "a stable of judges, each one called upon to plough through the unrelenting volume, harnessed on any given day with two other judges who barely know each other."(2) In short, Congress can never give a jumbo court enough judges; at some point, additional judges will not increase the court's productivity, but will diminish it. The judge's only way out of this vicious cycle is to shirk his or her monitoring duties; when this occurs, discordant rules will proliferate within the circuit, and the rule of law in that circuit will begin to crumble.
Thus, the Ninth Circuit should be split,(3) and other circuits also should be realigned to ensure that each remains at a moderate size (again, a dozen judges or less). More circuits would seem to make for more work for the Supreme Court, but I suspect that this danger is overstated, and that the High Court would not see many more appeals if the number of circuits were to increase to fourteen or fifteen; if each court of appeals has fewer judges and therefore yields a more stable rule of law, each court will beget fewer meritorious appeals for the High Court to consider, and will be better able to consider the case law of its sister circuits, resulting in fewer circuit splits. Even if I am wrong in this expectation, however, my recommendation remains the same, because I believe the threat to the rule of law in the federal system posed by the increasing size of some of the courts of appeals is greater than that posed by an addition of one or two "new" circuits. The Eleventh Circuit, at twelve judges, currently works well; its size enhances its efficiency because the judges know each other well and work well together. As a result, the Eleventh Circuit now adjudicates more appeals per judge and per three-judge panel than any other circuit. Holding the size of the courts of appeals in check will do much to promote consistency among litigants, will allow the courts to afford more deliberative attention to each appeal, and will at worst only marginally diminish uniformity among the circuits.
The question of the size of the courts of appeals is intimately related to the question of the competence and efficiency of the courts' personnel. As Chief Justice Rehnquist and others have noted, as the size of the federal judiciary increases, we may expect the competence of those appointed to the federal bench to decrease. As Judge Newman has explained, the reason for this decline in the quality of the judiciary will not be that we will be unable to find enough qualified people to fill the posts; they will be out there. Instead,
[t]he reason growth impairs quality is that an increase in the number of judicial appointments made every year reduces the visibility of each appointment and permits the political process to select many candidates of mediocre attainments and even a few of marginal competence.
When a court has seven or nine judges, a vacancy is an event. The vacancy is filled under the intense scrutiny of knowledgeable observers--the bar, law schools, advocacy groups, the press, and many other public elements. Any name even mentioned for the vacancy, and surely any name proposed, precipitates careful evaluation. The certainty of that evaluation exerts a healthy restraining influence on presidents and senators. With appointments of high visibility, they know they must make selections of high quality. That restraint is absent when a court numbers 50, 75, and more.(4)
The pressure placed on the courts of appeals by their increasing caseload might be lessened by a number of different possible measures. Staff counsel, for instance, should be utilized to reduce the amount of time a judge devotes to particular sorts of matters and at the same time enhance the quality of the time the judge devotes to the matter. This requires effective oversight of staff by the court to ensure that judicial rulings are fashioned by the judges, not by staff. With proper oversight, however, staff counsel can be of considerable assistance in the efficient adjudication of motions and of certain types of cases--such as habeas corpus appeals and prisoner civil rights cases--in which the controlling law is well settled and factual and procedural matters dominate. Local rules and operating procedures and the Federal Rules of Appellate Procedure should perhaps also be revisited with an eye toward expediting and streamlining appeals.
The modern regime of notice pleading also worsens the courts' appellate workload. Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a plaintiff's complaint need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," sufficient to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."(5) Notice pleading allows the filing of complaints before the plaintiff and his counsel have even clearly defined their claim, and encourages the filing of "shotgun complaints" that make vague and conclusory factual allegations in support of claims brought under ill-conceived legal theories. Allowing such pleadings adds numbers of highly speculative suits to the district courts' dockets and challenges the district courts to sift out the chaff. Whether the district court does so or not, appeals ensue from these unworthy cases.
The ultimate solution to the problem of the appellate courts' workload, however, must be found outside of the judiciary itself. Congress must take steps to reduce the number of cases that reach the Article II courts in general and the courts of appeals in particular. A number of measures have been proposed. Diversity reform could lessen the federal courts' workload, for instance, and specialized courts could take on certain types of cases, such as prisoner appeals or employment discrimination cases. (But for increases in the number of criminal appeals, prisoner petitions, and employment discrimination appeals, the Eleventh Circuit's caseload (and that of most of the courts of appeals) would have remained essentially constant in recent years.)(6) Judge Newman has suggested that the federal judiciary's workload could be significantly lightened by diverting some sorts of cases to the state courts, through diversity reform and other measures. Judge Newman points out that shifting around thirty percent of the federal courts' cases to the state courts would only increase the state courts' workload by about one percent.(7) I believe this to be a promising avenue of relief for consideration by the Commission and Congress. Congress also might (and I believe should) exercise restraint in creating federal causes of action, as several of my colleagues have advocated.(8) Finally, an especially promising possibility, I believe, would be to give the courts of appeals discretion in which appeals to take, by requiring prospective appellants to apply for certification to appeal, at least for some types of cases.
The Article III courts are a scarce and precious dispute resolution resource. The size of
these courts is constrained by the size of the courts of appeals, and the size of the courts of
appeals should be constrained by the considerations discussed above. As long as all parties to
federal cases may take appeals as a matter of right, however, and as long as new federal causes of
action are being created, the pressure on the federal courts in general and on the courts of appeals
in particular will continue to increase. The Congress therefore must set priorities. This is a
matter of legislative, not judicial, prerogative; Congress must deliberately decide which disputes it
would have the Article III courts adjudicate and which must be left to other fora. Making these
decisions--soon--is crucially important if the federal judiciary is not to become one more
bureaucracy.
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Endnotes
1. I have articulated this position before. See, e.g., Gerald Bard Tjoflat, "Preserving Judicial Resources," 1997 WL 11233514 (June 9, 1997) (testimony before Senate Judiciary Committee); Gerald Bard Tjoflat, "The Federal Judiciary: A Scarce Resource," 27 Conn. L. Rev. 871 (1995); Gerald Bard Tjoflat, "More Judges, Less Justice," ABA Journal, July 1993, p. 70. Other veterans of the federal appellate judiciary have voiced concordant sentiments. See, e.g., J. Harvie Wilkinson III, "We Don't Need More Federal Judges," Wall Street Journal, Feb. 9, 1998, p. A19 ("The federal judiciary is caught in a spiral of expansion that must stop."); Robert M. Parker and Leslie J. Hagin, "Federal Courts at the Crossroads: Adapt or Lose," 14 Miss. C. L. Rev. 211, 218 (1995) ("[T]he diminution of collegiality in courts larger than twelve [judges] is a risk that the judicial system and the nation can ill afford.") (internal quotation marks and citations omitted); J. Harvie Wilkinson III, "The Drawbacks of Growth in the Federal Judiciary," 43 Emory L. J. 1147, 1173 (1994) ("Expansion of personnel . . . will render the appellate process all but unworkable."); Jon O. Newman, "1,000 Judges--The Limit for an Effective Federal Judiciary," 76 Judicature 187, 188 (1993) ("Twenty-one years of service as a federal judge have persuaded me that the most serious threat to the proper functioning of the federal judiciary is the current trend to increase its size beyond tolerable limits."); Harry T. Edwards, "The Rising Work Load and Perceived 'Bureaucracy' of the Federal Courts: A Causation-Based Approach to the Search for Appropriate Remedies," 68 Iowa L. Rev. 871 (1983) ("[F]ew judges who have sat on an appellate court would deny that--to some unquantifiable degree--the impediments to collegiality that stem from the sheer number of members of the court reduce the overall quality of the court's work product."). (Judges Wilkinson, Newman, and Edwards and I are all current or former chief judges of our respective circuits.) I am also of the belief that the overwhelming majority of my colleagues on the Eleventh Circuit are opposed to any increase in the size of our court.
2. Newman, supra note 1, at 188.
3. Moreover, the Judicial Conference's recommendation that the Ninth Circuit should receive nine new judgeships should be reconsidered and, I believe, denied.
4. Newman, supra note 1, at 187.
5. Quality Foods v. Latin Am. Agribusiness Dev. Corp., 711 F.2d 989, 995 (11th Cir.1983) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957)).
6. This is not to suggest that these sorts of appeals are any less deserving of deliberate judicial attention than other sorts of cases. It is merely to suggest that, because the substantive and procedural law in these cases is well-settled, and because these cases constitute much of the recent increase in the district and circuit courts' workload, they might profitably be handled by different fora operating under procedures tailored to the needs of such cases--as do the bankruptcy courts.
7. Newman, supra note 1, at 194.
8. See, e.g., Carolyn Dineen King, "A Matter of Conscience," 28 Hous. L. Rev. 955 (1991); Edwards, supra note 1, at 922-24.