There is an interesting "dialogue" happening on National Review Online (NRO) having to do with the size and workload of the federal judiciary.
On November 15, Steven Calabresi and Shams Hirji published "Republicans Should Expand the Federal Courts: Judges face a 'crisis in volume' — and Trump would appoint the new ones". As the title suggests, the authors believe that the courts are in such disarray through overwork and overcrowded dockets that something must be done to relieve the burden, and the something, specifically, is to expand the number of federal district and appellate courts.
The authors suggest that the tax bill now being formulated and debated might be a good vehicle to achieve this aim.
I myself am not persuaded about use of the income tax bill for such a purpose, but that has more to do with my doubt that it will come to fruition any more than the health care bill did — or, for that matter, dozens of other worthy bills that have been corked up in one or both chambers of Congress for a long time.
As to expansion of the courts, they may be on to something — certainly I believe that it's true in some instances, for example with particular reference to the overweening, aggressively progressive activists in the Ninth Circuit Court of Appeals, which ought to be split into two or three appellate circuits. (See here, here, and here, for example.)
Reacting to this article, Josh Blackman (a law professor, as is Calabresi) accused the two of concocting a "court packing" scheme that must at all costs be resisted for the sake of preserving an impartial judiciary. He compares Calabresi's and Hirji's plan with the attempt by Franklin Roosevelt to change the composition of the Supreme Court (and therefore dilute its decisions) by increasing its size.
It was an inevitable and invidious comparison. But is it accurate? What happens when "court packing" has already occurred in the context of the preexisting presidential nomination process, and activist judges at both the district and appellate courts seem to be going off the rails, departing from both judicial impartiality and longstanding precedents to propound novel theories in justifying decisions that just happen to fit their off-the-bench philosophies?
Certainly we have seen that again and again in recent years where the immigration system is concerned. People who assert that aliens seem to have more rights than citizens aren't entirely missing the mark, where the courts are involved. Aliens and their allies almost always are deemed to have "standing", and yet time and again, individual citizens or their allies are found not to have standing to sue when they oppose one or another of the open-door policies propounded in recent years, such as the spate of "executive actions" undertaken by the Obama administration.
Needless to say, Calabresi and Hirji have now responded to Blackman's op-ed piece with a rejoinder of their own. They make the same assertion of preexisting court packing that I just made a moment ago. And, like me, they point to the notoriety of the Ninth Circuit as prima facie evidence of exactly the kind of liberal activist bias that percolates through the courts.
But in examining this issue, in which I lean at least somewhat toward the views of Calabresi and Hijri, I took a different tack — one involving immigration, since that is the focus of the Center I write for, and about which I'm most competent to speak.
My approach was simple enough: I went to the website of the Administrative Office of the United States Courts to see what kinds of cases make up the caseloads of the district and appellate courts. What I found did not surprise, but did disturb, me.
In the U.S. courts of Appeals in 2017:
Administrative agency appeals fell 6 percent to 6,463, mostly due to a 5 percent drop in appeals of decisions by the Board of Immigration Appeals (BIA) ... [notwithstanding which] ...
BIA appeals accounted for 82 percent of administrative agency appeals and constituted the largest category of administrative agency appeals filed in every circuit except the DC Circuit. (Emphasis added.)
Matters aren't too much better in the U.S. district courts: "Habeas corpus filings involving alien detainees rose 42 percent (up 404 cases)."
Perhaps it's time for Congress, if it is interested in or concerned about federal court caseloads, to give careful thought to exactly how much access to the federal courts that they should be providing to aliens via statute.
It's not as if aliens are not given exhaustive opportunities to be heard within the administrative process, so how much further beyond that — and on what occasions — should they be permitted to so infringe on the courts that the litigation matters of ordinary Americans are put on hold or endlessly delayed because of the glut of immigration cases at the district and appellate court levels?
If ever there was proof positive that aliens have more due process rights than citizens, the figures are right there before your eyes. You only have to go looking.