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Marin K. Levy

Publication Date

1-17-2021

Abstract

Judges, lawmakers, and scholars have long debated whether the federal courts of appeals are understaffed and, if so, how Congress should go about redressing that fact. Even though there is currently a strong argument that some new judgeships should be created, such a path presents logistical complications. If a significant number of seats are added to the appellate bench, circuits may eventually become too large to function well. And if a significant number of circuits are ultimately split, the total number of federal appellate courts may become too large for the judiciary as a whole to function well. Furthermore, there are political complications. Congress may be disinclined to authorize new judgeships, as has been the case for the past thirty years.

But this does not mean that there is no smooth path to increasing judge power at the courts of appeals. Indeed, a promising possibility exists that rests almost entirely within the judiciary’s control: raise the incentives (and lower the disincentives) for taking senior status. Currently, when a judge has satisfied the “Rule of 80” (meaning that the judge is sixty-five or older and his or her age plus years of service totals eighty or more), that judge can leave regular active service. The judge can elect to continue hearing cases and assist the court as a senior judge, but “going senior” also creates a vacancy that can be filled with another judge, thereby adding to the court’s overall capacity. There are currently more than sixty judges who are eligible to take senior status, amounting to a third of all authorized federal appellate judgeships—the possible gains are considerable.

This Essay begins the task of identifying and proposing stronger incentives for federal appellate judges to take senior status. As part of a larger research project on the internal operations of the federal courts of appeals, it relies upon interview data with judges and survey data from court administrators to identify the different ways senior judges are treated across the courts of appeals. These variations in practice are important to document, particularly since some of them were unknown even to members of the judiciary. But these variations also highlight possible changes that could improve the balance of incentives for taking senior status.

Ultimately, the Essay’s reform proposal involves modest changes that could create substantial benefits in terms of judge power. Its promise lies with appreciating the finer details of court administration, including which can feasibly be altered. Just as importantly, its promise lies with not relying upon the actions of the elected branches, but upon changes that can be made by the courts themselves.

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