A Note on Carter's "Court-Packing"

As I discussed in my prior post, Professor Steven Calabresi has recently proposed that Congress create sixty-one new circuit judgeships, for a 36.1% increase in the number of regional circuit judgeships (i.e., circuit judgeships outside the Federal Circuit).  In his paper proposing this increase, he looked to a 1978 bill signed by President Carter that added thirty-five judgeships to the then ninety-seven-judge-strong courts of appeals, for a 36.1% increase, as a precedent for the propriety of a proportionate increase under President Trump.  But in response to suggestions that his proposal was a court-packing scheme, he rapidly switched tack, arguing that Carter had packed the courts, that the current composition of the courts was the result of Carter's "court-packing," and that his proposal would merely "restore the judiciary to what would have been the status quo but for Democratic court-packing" by expanding the circuit courts in proportions equal to Carter's expansion.

I have already demonstrated that Carter's so-called court-packing has no effect whatsoever on the present composition of the circuit courts.  Of Carter's fifty-six appointees to the circuit courts, only one, Judge Reinhardt, is still in active service on those courts.  And (this point is new to this post), of the thirty-five judgeships that Carter and the Democratic Congress of 1978 created (some of which Carter never got to fill), sixteen are now held by Democratic appointees, fourteen by Republican appointees, and five are vacant, with Trump nominees already down the pike in some cases.  (In the case of one such vacancy, Republicans successfully held it open for seven years after rejecting multiple Obama nominees and appear primed to fill it.)  Republican appointees will soon hold a majority of the judgeships Carter created.  There is no persisting Carter court-packing to, in Calabresi's words, "counteract."

That said, Calabresi's proposal not only can't be justified as a corrective to some present-day Carter court-packing problem; it also can't even be justified as payback for Democratic court-packing of the past.  For what Carter did was neither court-packing, nor unique to Carter, who was only the first of several presidents to expand the circuit courts at the behest of the Judicial Conference.

The circuit courts of 1978 were, in some cases, not so different from the circuit courts of today; in other cases, they were unrecognizable.  There was no Eleventh Circuit then, and the Fifth Circuit had jurisdiction over Florida, Texas, Alabama, Georgia, Mississippi, and Louisiana.  This super-circuit, which had jurisdiction over approximately 15% of the population of the country, only a little shy of the Ninth Circuit's share of the population, had only fifteen judges.  Today, the Florida-less Fifth Circuit has seventeen judges alone, and the Eleventh Circuit, which has jurisdiction over three of the former Fifth Circuit's states, has twelve.  The Ninth Circuit, even more impossibly, had only thirteen judges to hear mandatory appeals from California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Hawaii, and Alaska.  Prior to the Carter expansion, some of the Ninth Circuit's smaller states didn't have a circuit judge who sat in their state.  

According to Calabresi's own paper (see pp. 14–15), a circuit judge should only make 255 merits votes a year; on the basis of this figure, he calculates that the Ninth Circuit should have seventy-nine judges and that today's Fifth and Eleventh Circuits should have a total of 109 judges.  And given Calabresi's concern for appellate caseloads, it should interest Calabresi to know that appellate filings more than doubled from 1968 to 1978 while the size of the circuit courts remained constant.  Surely, then, Calabresi would grant that the thirteen-judge Ninth Circuit of 1978 and the fifteen-judge super-Fifth Circuit of 1978 were badly understaffed.  

So the Judicial Conference and Congress thought, apparently, when on the former's urging the latter expanded the Ninth Circuit to the more recognizable size of twenty-three judges and expanded the Fifth Circuit to twenty-six judges, or three fewer than its descendants have today.  Outside of these two profoundly understaffed super-circuits, the 1978 bill created only fourteen new judgeships in the ten other regional circuits, increasing their total size from sixty-nine to eighty-three, a rather modest 20% increase for a period in which appellate filings more than doubled.

This bill passed the House 292-112 and the Senate 67-15 (Richard Primus is mistaken in claiming it passed the Senate by voice vote—only the original Senate bill did so), with the votes of, among others, Orrin Hatch, Strom Thurmond and Dan Quayle.  I have not been able to find a list of the yeas and nays by party, but it does seem possible that a majority of Republicans in both chambers either voted against the bill or abstained.  While Republicans didn't quite call the bill a court-packing scheme, some Republicans complained that Democratic Congresses had resisted Nixon's requests for more judges, only to accede to Carter's.  But there wasn't much doubt about the need for more judges, only criticisms of the bill's failure to abolish diversity jurisdiction, to create merit selection for the district courts, and of its compromise solution to the Fifth Circuit problem (the bill allowed the Fifth Circuit to split into administrative units, as it briefly did).

It wouldn't be long before the Judicial Conference came back to Congress asking for more judges.  In 1984, during the Reagan administration, Congress created twenty-four new circuit judgeships, this time on a much more evenly spread basis; seventeen of the twenty-four were outside the Fifth, Ninth, and Eleventh Circuits, compared to the Carter bill's fourteen of thirty-five.  The bill, which was primarily concerned with reorganizing the bankruptcy courts in the wake of the Court's decision in Northern Pipeline, passed both chambers by voice vote.  Interestingly, it provided that Reagan could fill no more than eleven of the new circuit judgeships before Inauguration Day, 1985, presumably in the hope that Reagan might not get reelected, though there was never much doubt that he would.  (Even had the bill lacked this provision, the Senate never would have processed twenty-four circuit court nominations between the bill's passage on July 10 and Inauguration Day.)  Reagan did get reelected, of course, and he got to fill the remaining seats.  

Six years later, during the George H.W. Bush administration, Congress created another eleven circuit judgeships, again by voice vote in both chambers after a 387-18 vote in favor of the original House bill.  Only six of the circuits were expanded, and only one seat went to the Fifth, Ninth or Eleventh; four of the seats went to the Fourth Circuit alone, giving Bush an opportunity to fill nearly a third of its seats.  Bush, however, would only fill two; one remained vacant for eleven years until his son filled it with Clinton's renominated nominee, now-Chief Judge Roger Gregory.

In a six-year period, Reagan and Bush added thirty-five judgeships to the circuit courts, exactly the number that Carter had.  To be sure, Carter expanded the circuit courts by a somewhat greater percentage—36%, to Reagan/Bush's 26%.  I don't quite see, though, how that matters; if one party increased the size of the Court by four Justices, would the next party to do it be any less court-packers than the first?  From the perspective of 1990, both parties were responsible for creating thirty-five of the regional 167 judgeships each (putting to one side the bipartisan support for all three bills).  

Moreover, raw numbers seriously distort the two expansion's effects.  The Carter bill primarily addressed an understaffing disaster in the nation's two most populous circuits; Reagan and Bush did relatively little to them.  Whereas Carter added twenty-one judges to the super-Fifth and Ninth Circuits, Reagan and Bush added only eight to the Ninth, Fifth and Eleventh.  On the other hand, while Carter added just fourteen judgeships to the rest of the circuits, Reagan and Bush added twenty-seven.  Carter expanded these circuits by 20%; Reagan and Bush, by 33%.  

Carter, then, created a famously liberal majority on the Ninth Circuit that persists today, as many of his appointees took senior status in the '90s and were replaced by Clinton appointments.  (His impact on the Fifth Circuit was far more fleeting, as his appointees were split between the rump Fifth Circuit and the Eleventh Circuit in 1981.)  But outside the Ninth Circuit, the Reagan/Bush expansion had the greater impact.  Reagan and Bush expanded the Third Circuit by 40%, the First Circuit by 50%, the Fourth Circuit by 50%, the Tenth Circuit by 50%, and the Sixth Circuit by 45%.  Of course, these unanimously enacted expansions of the small and mid-sized regional circuits weren't court-packing.  But if that's true, what Carter did wasn't either.