05 July 2007

Pipe Dream: Shrinking the Federal Courts

Why Shrink The Federal Courts?

Liberals still have a love affair with the federal courts, as they were pivotal in bringing about societal change, over the objections of Southern segregationists and law and order conservatives, during the Civil Rights era. It is time to break up.

The simple fact of the matter is the judicial ideology matters. No judge leaves his or her political worldview at the door when he or she steps onto the bench. And, despite a significant number of holdovers from more liberal administrations, the federal judiciary is now dominanted by one of the most deliberately conservative judiciaries in the nation, short of the Texas Court of Criminal Appeals.

Democrats have regained control of Congress, although progressives still don't have a strong enough hold on the U.S. Senate to reliably prevent conservatives from being appointed to the federal bench. Democrats have a real chance of tightening their hold in Congress and getting a Democratic President elected in 2008. But, because federal judges hold their offices for life, restoring balance to the federal judiciary will take far longer.

What should liberals do about it? They should dramatically reduce the importance of the federal court system where possible. How? It is really quite simple.

Shrinking the Federal Civil Docket

A dramatic reduction in the federal civil docket that still protects the important federal values for which liberals have long valued the federal courts could be accomplished in a single piece of legislation only a few pages long.

1. Repeal 28 U.S.C. Section 1331 (ordinary federal question jurisdiction).

2. Repeal 28 U.S.C. Section 1332 (ordinary diversity jurisdiction).

This would still allow many kinds of civil cases that have a separate jurisdictional basis to be brought in federal court. They include (with reference to the appropriate section of Title 28):

Cases involving governmental or quasi-governmental parties, or sovereignty derived rights:
actions against foreign states (1330)
Surface Transporation Board orders (1336)
postal matters (1339)
federal tax cases (1340)
civil rights and election cases (1343)
election disputes (1344)
United States plaintiff (1345)
United States defendant (1346)
United States party real estate cases (1347)
diplomatic cases (1351)
Indian rights (1353)
land grants from different states (1354)
federal fines and penalties (1355)
federal seizures other than admiralty (1356)
suits against persons collecting U.S. taxes and enforcing voting rights (1357)
eminent domain (1358)
federal mandamus (1361)
Indian tribe parties (1362)
federal juror's rights (1363)
direct actions against insurers of diplomats (1364)
Senate actions (1365)
unfair intentional trade counterclaims (1368)

Cases where often no state or no one state would have jurisdiction over the entire case:
admiralty cases (1333)
bankruptcy cases (1334)
interpleader (1335)
certain commerce and anti-trust cases (1337)
intellectual property cases (1338)
alien tort claims (1350)
federal bonds (1352)
national bank liquidations and receiverships (1348)
large interstate class actions (1369)

But, this change would still dramatically reduce the scope of federal civil litigation involving exclusive private parties, while preserving jurisdiction in cases where federalism interests or interests in national uniformity are important.

There are about 260,000 civil suits filed each year in federal district courts (exclusive of bankruptcy cases). About 44,000 are U.S. party cases, about 49,000 are civil rights and prisoner's petition cases, about 2,000 are admiralty cases and about 12,000 are intellectual property cases. So, these 107,000 or so cases would remain in federal court, as would a small portion of the remaining private party cases. But, something on the order of 150,000 cases involving private parties would end up in state court instead -- this would be a 57% reduction in federal civil litigation, although it would be an even greater reduction in practice, because many diversity cases are more time consuming than a good share of the cases like U.S. government collection cases and prisoner's petitions, which would remain in federal court.

A large share of the civil cases no longer in federal court would involve employment litigation, interstate contract disputes, and personal injury suits involving diversity of citizenship. This means that many federal laws involving employment law or consumer protection would end up in state court where often less conservative state court judges would interpret the laws, and where smaller, often urban, jury pools would provide juries in many cases. Opportunities for forum shopping would also decline.

Meanwhile, federal judges would still remain, via civil rights suits and prisoner's petitions, as a source of recourse for unconstitutional acts by local government officials and state criminal justice systems.

Shrinking The Federal Criminal Docket

Crafting legislation on the criminal side of the docket would be more involved, but the basic premise would be to remove from the books, or bar enforcement of in areas where state courts can assert jurisdiction, crimes involving non-federal parties that are duplicative of state laws, like most federal drug crimes implicating events occuring in a single state.

About 66,000 federal criminal cases are commenced each year. About 16,000 of them involve drug offenses which could in a large share of cases be tried under state law instead. About 11,000 involve frauds, thefts and robberies (the robberies are principally bank robberies) that likewise could be prosecuted under state laws. And, about 8,000 are for firearms offenses that could be prosecuted under state laws.

Some cases would have to remain in federal jurisdiction. About 16,000 cases involve immigration offenses that cannot, for federalism reasons, exist under state law. Several thousand more are brought in federal court because the arise on federal property or in Indian territory where state courts don't have jurisdiction (including about 3,000 traffic offenses). But, a reduction in federal criminal caseloads by 25%-50% by reducing the number of prosecution made where state courts could handle the cases, often to take advantage of federal law mandatory minimum sentences, is significant.

Indeed, pending legislation, a President could simply make it Department of Justice policy not to bring such cases. This would make problems with the federal criminal justice system like harsh sentencing guidelines, mandatory minimum sentences, and often conservative interpretations of federal criminal laws put in place by conservative federal judges, irrelevant. It would also give state district attorneys more power in the plea bargaining process, because their dispensations could not be undercut by federal U.S. attorneys.


Article III of the United States constitution allows many cases to be heard in federal courts, but does not require that this be done, at least so long as cases and controversies can be litigated elsewhere.

These changes would also be possible without a constitutionally amendment. For most of the nation's history, some federal question and diversity cases, usually those asserting smaller claims, could only be brought in state court. The precedents that allowed this then, would continue to make simple legislation sufficient to accomplish this end.

Also, Presidents have always prosecuted federal laws selectively. Indeed, a tamer version of the policy of not using federal criminal laws when state criminal laws will do, already exists.

Administrative Impact

The administrative burden on state courts would be relatively modest, as so small a share of all civil litigation is handled in the federal courts. For example, in Colorado, probably on the order of 5% or less of civil litigation, measured by judicial resources devoted to the cases, is decided in federal court. This would be on the order of have two years of ordinary caseload growth in a single year.

Also, it isn't as if federal judges would be left sitting on their hands. Right now the federal courts over overburdened. A major reduction in caseloads would take that pressure off, freeing judges to pay more attention to the cases that they have left, but would still leave federal judges with meaningful caseloads. Indeed, a reduced workload would be a cheap alternative to the prospect of a pay increase for judges, something that several successive Chief Justices of the U.S. Supreme Court have said is necessary. A U.S. District Judge's pay (the pay can't be reduced under the U.S. Constitution) would be a pretty sweet deal for a three-quarters time job, and a less demanding case load makes sense of a judiciary with a large share of judges who are often older and have already had long, high pressure careers in private or governmental service as attorneys.

The average age at time of judicial appointment is 52 years for circuit court judges and 50 years for district court judges. By that age, most individuals who have been tapped for the bench have spent 20 to 25 years building their careers.

The average non-senior federal judge is probably about 58-60 years old, not necessarily elderly, but not necessarily interesting in working crushing 70 hours weeks either.

Also, even after reaching age 65-70, when many federal judges "retire" (possible after 15 years of service at age 65 or 10 yers of service at age 70), they often remain "senior judges" on a part time basis for decades. This contingent work force could be trimmed back if the case load for active judges got too low without offending the constitution.


The combined effect would be greatly decreased influence for the conservative federal courts, which would often benefit employees and consumers. This change would do so without scaling back the substantive protections of federal laws to benefit these individuals, which would be enforced primarily in state courts. It would also do so without expressly results driven jurisdiction rules that have characterized many conservative jurisdiction stripping legislatie efforts; these changes would be facially neutral. The conservative U.S. Supreme Court could intervene somewhat by granting certiorari from state supreme courts in federal law cases, but there is a real limit on its capacity to handle the volume of cases that come up, as it decides only a few dozen cases a year.

The end result would be good for progressive values, and would likely secure support also from many conservatives who have an ideological commitment to a weaker federal government separate and apart from the policy implications of that stance.

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