A Fractured Judiciary: The Case For Reigning In The Lower Courts

The John Minor Wisdom U.S. Courthouse, home of the United States Court of Appeals for the Fifth Circuit, New Orleans, Louisiana. Photo by Bobak Ha’Eri.

During discussions on court reform, expanding the Supreme Court is often the first thing that comes to mind. Although the high court is in desperate need of reform, it is not the only level of the judiciary Congress must fix. 

The federal court system has three levels: district courts, circuit courts, and the Supreme Court. There are 94 district courts and 13 circuit courts throughout the country. All federal cases begin at the district court level. Once a district court has decided a case, it can be appealed to the corresponding United States court of appeals. Litigants in courts of appeals then have the option to appeal to the Supreme Court, but most appeals do not succeed. Out of 8,000 petitions filed each year, the Supreme Court agrees to hear about 80. That means the decisions made by the circuit courts are the last word in thousands of cases. Since the Supreme Court reviews a few cases, the procedures and structure of the lower courts deserve serious attention. 

Many issues plague the district and circuit courts. The most notable is “judge shopping,” which occurs when a plaintiff cherry-picks the court they would like to file their case in with the hopes of securing an ideologically friendly judge. The structure of the district courts facilitates this problem. Currently, there are 677 district judges. The number of judges assigned to each district varies by its caseload. Some districts are geographically enormous, so Congress has split them into smaller divisions. Judge shopping is a major problem at this sublevel because in many divisions all cases filed within their jurisdictions are assigned to the same one or two judges, which can guarantee a plaintiff a favorable judge. 

For example, in the Lake Charles Division of the Western District of Louisiana, 90 percent of civil cases are assigned to Trump-appointed Judge James Cain. In February, Judge Cain issued a national injunction—an order preventing the national implementation or continuation of a federal policy—against the Biden Administration. The injunction prevents the administration from adopting a higher carbon cost estimate, an important climate metric that puts a dollar value on damages caused by every additional ton of greenhouse gasses emitted into the atmosphere. Such a decision underscores the necessity of eliminating single-judge divisions. If litigants are able to hijack the judicial process by choosing divisions friendly to their cases, then the courts do not dispense justice. Rather, they deepen divisions within the United States by engendering distrust in the judicial system. Judge shopping demands immediate Congressional action. The time to act is now. 

Both Democrats and Republicans benefit from judge shopping when either party is in the minority and wants a court to issue an injunction against the majority’s policies. For this reason, judge shopping is unlikely to be addressed, even though it is relatively simple to solve. Ideally, Congress could mandate that judges limit their dockets to no more than one-third of division cases or one-half for two-judge divisions. By limiting dockets, Congress would ensure that no single judge hears a majority of cases, civil or criminal, filed within their division. This would complicate a savvy litigant’s attempt to game the judicial system as the probability that their case would be assigned to their preferred judge would decrease. This fix would not eliminate judge shopping completely, but it would make it much harder for district judges to play such a consequential role in national policy, especially when litigants are seeking a national injunction. 

In those cases, a second fix is also available: three-judge panels. Three-judge panels are not new. In fact, this reform was originally proposed by President Franklin D. Roosevelt. President Roosevelt successfully convinced Congress to pass a bill in 1937 that limited the powers of district judges and sped up appeals to the Supreme Court in response to the courts throwing out rules and regulations passed under the New Deal. The legislation created special three-judge district court panels to hear suits seeking an injunction against federal law or policy. Decisions issued by a panel could then be directly appealed to the Supreme Court. This statute was in effect until 1976 when Congress repealed it both because of exploding federal dockets full of civil rights era suits and increased confidence in individual district judges. Since then, the number of injunctions filed against the federal government has shot up, notably during the Obama and Trump administrations; the latter faced 20 national injunctions in its first year alone. 

Congress should immediately resurrect FDR’s reform. This practice would make it much harder for outlier judges to enjoin national law on the basis of ideology, allow for more consistent decision-making by the lower courts, and speed up appeals to the Supreme Court.

One final reform Congress could take to alleviate strain in the judiciary is to expand the lower courts. They were last expanded in 1990, and before then in 1979, when Congress increased their amount by more than 30 percent to alleviate a serious backlog in federal cases. President Jimmy Carter quickly filled those seats, diversifying the courts with judges from different personal and professional backgrounds. In their last biennial report, the U.S. Judicial Conference recommended an additional 88 permanent lower court judgeships. Expanding the lower courts would alleviate many problems, from backlogs to single-judge division jurisdictions.

The judiciary is the branch of government most insulated from the public vote. If Congress and the president want to increase trust in the judicial system, then it is time to approach court reform from the bottom up.

Max Hermosillo (CC ’25) is a staff writer at CPR and a Political Science major from San Jose, California. His interests include Marvel, Hispanic literature, and constitutional law.