Supreme Court Justices as Inferior Judges

This concludes our posts (here here here and here) summarizing our draft article, Judicial Duty and the Supreme Court’s Cult of Celebrity. Tonight or tomorrow, we’ll post responses to a few of the comments.

In the Judiciary Act of 1789, Congress included service on lower federal courts among the original duties of Supreme Court Justices. This was known as “circuit riding” because they had to ride around the country on horses or in carriages to sit as circuit judges. Notwithstanding the burden it placed on the Justices, circuit riding was not formally eliminated by Congress until the early twentieth century, and the time is ripe to bring it back.

Supreme Court Justices nearly escaped the burden of circuit riding as soon as it was placed on their shoulders. The Judiciary Act of 1801, pushed through by the outgoing Federalist Congress, eliminated the practice. Within a year, the Republicans repealed the 1801 act, in part as an act of partisanship, but also in part for a reason that would echo throughout the following decades: without circuit riding, it was said, Supreme Court Justices would be cut off from the political, cultural and, most importantly, legal life of the rest of the nation.

As the nation grew, and the federal judiciary’s docket swelled, the position of Supreme Court Justice soon became, in the words of Justice McKinley, “the most onerous and laborious of any in the United States.” Many Justices had to travel over one thousand miles each year—even before the advent of railroads—in addition to their responsibilities on the Supreme Court. Bills to curtail circuit riding arose practically every decade in the nineteenth century, only to be defeated again and again.

One nineteenth century Senator remarked that if relieved from circuit riding responsibilities, Supreme Court Justices would be “completely cloistered within the city of Washington, and their decisions, instead of emanating from enlarged and liberal minds, will assume a severe and local character.” Another worried that the Justices, insulated in the capital, would be subjected to “dangerous influences and strong temptations that might bias their minds and pollute the streams of national justice.” Both Senators—William Smith and Abner Lacock—deserve a place alongside Cassandra in the pantheon of vindicated prophets.

By the late nineteenth century, however, there were 1,800 cases on the Supreme Court’s docket and matters were languishing for years without resolution. After years of complaints from impatient litigants and the Justices themselves, the Evarts Act of 1891 created the modern courts of appeals (with new judgeships) and effectively eliminated circuit riding as a duty of Supreme Court Justices. The formal end came in 1911.

From a twenty-first century perspective, the significance of circuit riding during the first half of the republic’s existence is difficult to appreciate. Circuit riding made up a large part of the work of the Supreme Court well into the nineteenth century, and it remained a salient feature of the Justices’ role in the federal government even when circuit riding responsibilities waned in the post-Civil War years. Supreme Court Justices charged grand juries in New Hampshire, sentenced murderers in Louisiana, determined land claims in Kentucky, and enforced extradition orders in New York. By so doing, they remained connected to the lives of ordinary Americans, and saw first hand how the law operated in practice at the lowest levels of the federal system.

The nineteenth century practice of circuit riding was both a curse and a blessing for the Supreme Court and the American public it serves. Justices lost a lot of valuable time roaming the American countryside dispensing federal justice on a local, retail basis. Having been spared this obligation, however, the Court has become ever more isolated from the operations of the lower federal courts. The bottom line is that too much circuit riding can hamper the work of the Court and too little (or none) has tended to create an undesirable chasm between the mere mortals of the ordinary federal judiciary on one hand and Supreme Court Justices on the other.

Mindful of these competing concerns, we propose a modest restoration of circuit riding. Every year, the Justices of the Supreme Court would select by lot one of the 105 Article III jurisdictions (93 district courts plus 12 courts of appeals). Once a jurisdiction has been selected, it would be removed from the pool until all other jurisdictions have been selected. Over the course of the term, each Justice would coordinate with the Chief Judge of the chosen court to ensure that he performs no less than 5% of the average annual workload of a judge in that jurisdiction.

Some cases would carry over beyond a calendar year, and Justices would continue responsibility until the case’s completion. In all likelihood, then, the total circuit riding responsibilities of each Justice would exceed 5% of the workload of a typical district court or circuit judge. Even assuming it is double that, we should recall that Justices are now free to frolic around the world for three months of the year. Assigning them to work for half of that time would hardly constitute an intolerable burden.

Given technological developments, circuit riding would be far easier today than it was in centuries past. In fact, the Federal Court of Claims already exercises a national jurisdiction, and judges of that court frequently, and without substantial hardship, hold trials and settlement negotiations throughout the country. Adding circuit riding to the responsibilities of a Supreme Court Justice may give them fewer chances to conduct seminars abroad, but it would give them new opportunities to hold trials in Tuscaloosa and sit on panels in Topeka.

They would thus be forced to cope with many of the bread-and-butter issues that other federal judges confront daily. They would have the experience of being reversed on appeal, and of being out-voted on appellate panels by the same inferior judges who must usually obey their every command. Surely a salutary check on the hubris that naturally develops in people who are otherwise Supreme.

In addition, the Justices would be forced to internalize, at least to some small extent, the cost of ambiguous and airy Supreme Court decisions. No longer would Justices be completely free to announce a ruling and leave others to worry about how it works. It would be their problem, too, because they would sometimes have to act as judges obligated to apply the law in cases they are assigned to hear. The experience would do them good.