Does Court Time-Saving Cost Liberty?

By Fulmer, Richard W. | Ideas on Liberty, November 2002 | Go to article overview
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Does Court Time-Saving Cost Liberty?


Fulmer, Richard W., Ideas on Liberty


The ability of ordinary American citizens to appeal unjust and arbitrary government decisions is being steadily eroded by the federal court system. In the name of efficiency and cost-saving, courts have been discarding time-proven practices such as hearing oral arguments and writing, presenting, and publishing reasoned opinions. These practices, which open the proceedings of the judicial process to reasonable and necessary public oversight, are being curtailed.

Originally, the only federal courts of appeal in the United States were the Supreme Court and "circuit" courts staffed by federal district-court judges and Supreme Court justices "riding circuit." The physical hardship of traveling to these district courts caused the practice of circuit riding to all but cease by the 1840s.1 This left the Supreme Court as the only federal court of appeal until the Judiciary Act of 1869 established nine circuit courts having the same powers and jurisdiction as the Supreme Court justices had when they were riding circuit. (Article III, Section 1, of the U.S. Constitution vests judicial power "in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.")

Court workloads increased with growing federal power, and circuit-court judges quickly found that they had less and less time to spend on appeals. Again, appellate duties shifted back to the Supreme Court. The number of cases requiring Court review rose steadily from 310 in 1860 to 1,816 in 1890.2 This heavy and growing burden was eased by the Judiciary Act of 1891, which abolished the appellate powers of the circuit courts entirely and transferred them to nine new appellate courts. These new Circuit Courts of Appeal (renamed Courts of Appeal in 1948) were each staffed by three judges tasked with reviewing cases to correct any errors made at the district-court level. Since 1891, the number of regional Courts of Appeal has increased to 12 (11 covering at least three states each and one for the District of Columbia), and the number of judges to 167.

Until the early 1970s, oral arguments were heard from the litigants in virtually all cases. After hearing the arguments, the judges on the panel discussed each case in order to learn and consider one another's views. Following a thorough discussion, one or more of the judges, with the help of law clerks, prepared a written opinion. Black's Law Dictionary (6th ed., 1990) defines the term "opinion" as a "statement by a judge or court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based."

The draft of the opinion was then circulated among the panel members and revised in response to their comments. In case of disagreement between the judges, a dissenting opinion might also be produced.

The final copy of the opinion was presented in court and then published. These published opinions became part of the nation's body of law and served as precedent in subsequent cases. If a decision were appealed, the Supreme Court would review the arguments presented to determine whether the lower court's ruling was correct.

Federal power continued to increase throughout the twentieth century because of legislation generated by or during the Progressive Era, the New Deal, the war on poverty, civil-rights issues, environmental regulation, and the war on drugs. As a result, appellate-court caseloads exploded once again. (In 1970 the courts of appeals disposed of over 10,000 cases. By 1997 the number exceeded 51,000). Moreover, the nature of the courts' work changed from dealing primarily with disputes between citizens to dealing with disputes between citizens and federal regulatory agencies. In effect, the court system became the regulator of the regulators.3

Despite the huge increase in workload, Congress chose not to expand the appellate-- court system as it had done in the past.

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