Eight years ago, I worked for U.S. District Court judge Susan Richard Nelson in St. Paul, Minnesota. My first project involved a procedural issue, in which the judge had to decide whether to grant a motion to move a case to Wisconsin. One of the most persuasive arguments for Judge Nelson was the fact that Minnesota’s District Court judges were already stretched thin, handling 113 trials per year, while the Western District of Wisconsin right across the river handled just 26 trials per year. There were other reasons as well, but the dramatic difference in workload weighed heavily in favor of handing off the case to our colleagues next door.
My experience working in the chambers of an overworked judge was not unique. It has been 30 years since Congress approved a significant number of permanent District Court and Appellate Court judgeships. Yet during that time the number of cases filed in the U.S. District Courts has grown from 269,132 cases per year in 1997 to 390,555 in 2019, an increase of nearly 50%.
The Judicial Conference of the United States (JCUS), the national policy-making body for the federal judiciary, has set a goal that the weighted average number of filings per judge in each District Court should be no more than 430. As of 2019, the actual number of cases being handled per judge on average across all District Courts was 521 and three District Courts in New York, New Jersey, and Delaware are responsible for more than 1,000 cases per judge. In other words, most judges are overworked, and some are handling more than double the recommended number of cases.
Nowhere is this problem better illustrated than California. Over the past 30 years, California’s population has grown by 33% and its GDP has more than doubled, resulting in a significant rise in court filings. Yet, there have been no permanent judgeships created, resulting in an increase in the number of cases per judge from 492 to 568 in the Northern District, which covers San Jose and Silicon Valley. It’s even worse in California’s other three District Courts, where judges are all handling 200+ cases more than is recommended by the JCUS.
This burden has real consequences for Americans. One of the most pressing examples is the demise of the writ of habeas corpus. A writ of habeas corpus (or habeas petition) is a post-conviction mechanism by which a person convicted of a crime can attempt to prove their innocence. Alexander Hamilton called the writ of habeas corpus the “bulwark” of the Constitution, and the U.S. Supreme Court has called it “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”
Unfortunately, in the past 30 years, the writ of habeas corpus has been sidelined. In 1984, 3.4 percent of habeas petitions resulted in some form of relief for the prisoner. By 2019, that number has dropped to just 0.4 percent. At a time when an unconscionable number of Americans are in prison (particularly Black and brown Americans), the Constitutional tool designed to help them prove their innocence is being closed off.
Courts simply do not have the personnel to keep up with the tens of thousands of petitions they receive each year. The result is that reviewers err on the side of rejecting appeals simply to keep the process moving. I experienced a similar phenomenon when I was working for the ACLU in Minnesota in 2012. I was tasked with reviewing letters from prisoners. In the course of my work, I reviewed almost 800 letters. Of those, I found perhaps 40 that I felt warranted serious attention from the staff attorneys. Of those 40, only 1 was investigated.
The ACLU has limited resources and they cannot be blamed for allocating it to focus on those most egregious cases. But when courts do that it leaves all the innocent people whose rights were violated in more mundane ways with no recourse. If we cannot ensure that “the fundamental instrument for protecting individual freedom” is being adequately protected, then something is very wrong.
We need to expand the federal judiciary, and soon. At a minimum, the JCUS believes that we need 73 new District Court judgeships and 5 Appellate Court judgeships immediately in order to bring the average number of filings down to a manageable number. However, given my personal experience, I believe far more are needed. Every American should be able to expect full access to our judicial system and to have their rights fully and fairly adjudicated. We should add as many judges as we need to meet that most basic promise of the American legal system.
Michael Vargas is a business and securities lawyer and a part-time professor at Santa Clara University Law School. Vargas also chairs the American Bar Association’s committee on Business Law Education and serves on the executive board of the Santa Clara County Democratic Party, and on the boards of BAYMEC and the Rainbow Chamber of Commerce.