The federal courts need fixing, and the Biden administration has created a panel to study how the US Supreme Court ought to be reformed, including the question of whether to “pack” it with more justices.
But while changes to the high court are warranted — term limits for justices would be a great start — the real urgency in the federal court system lies below, in the trial and appellate courts that have been understaffed and under-resourced for decades. The number of case filings has soared by more than a third since 1990, the last time there was a major increase in the number of federal judges, according to data from the Administrative Office of the US Courts.
It’s an issue on which Republicans and Democrats agree: We need more federal district and appellate court judges, and the Biden administration and lawmakers on Capitol Hill would be better served by keeping their focus on that.
The problem is, members of each party only seem to support expanding lower courts when their party is in the position to make appointments. But a simple solution would be to pass a bill that would stagger the creation of new federal judgeships over time, likely avoiding the kind of one-party expansion that would come with the risk of further eroding trust in the judiciary.
Perhaps one of the biggest, if indirectly related, political obstacles to such a common-sense measure is the focus by some Democrats, including Senator Ed Markey of Massachusetts, on expanding the US Supreme Court by four justices.
The lawmakers, in a press conference last week, did not cite any data related to rising caseloads at the high court, long waits for decisions, or heavy work burdens on the justices or their staffs as reasons for the push — perhaps because they are not a problem the Supreme Court faces, as lower courts do.
The lawmakers based their call entirely on politics. Former GOP majority leader Mitch McConnell, they argued, stole seats from Democrats by denying Obama nominee Merrick Garland a vote, paving the way for President Trump to make three appointments to the bench and solidify its conservative bent for generations. It’s time, Markey reasoned, for payback.
“Senate Republicans have politicized the Supreme Court, undermined its legitimacy, and threatened the rights of millions of Americans, especially people of color, women, and our immigrant communities,” Markey said in an April 15 press conference.
Even if what Markey says is true, the far greater threat to the principles he cites is the lack of sufficient judges at the district and federal levels, where the vast majority of challenges involving voting rights, LGBTQ protections, and other civil rights end. The Supreme Court accepts fewer than 150 of the more than 7,000 cases it is asked to review every year.
And unlike Supreme Court term limits, which a majority of Americans support, adding more justices to the highest court’s bench is an unpopular proposal. An Ipsos poll for Reuters found that only 38 percent of Americans support adding four more justices to the court, while 42 percent oppose it and the rest are unsure. Not to mention the fact that Republicans have already signaled that any attempt by President Biden or Democrats to expand the high court will end in a political grudge match.
Meanwhile, the federal judiciary itself has repeatedly urged Congress to add more judgeships at every level except the Supreme Court.
Even the latest request from the Judicial Conference of the United States — for 79 new judgeships — probably isn’t enough, said Christopher Kang, cofounder and chief counsel of Demand Justice, a progressive group advocating for judicial reforms.
“Even the Judicial Conference statistics, which I think do show that there should be a greater number of judges than what the conference is currently requesting, even those statistics really don’t paint the full picture of the crisis of the courts and whether they are administrating justice,” Kang said.
That’s because, Kang said, the numbers reflecting the increase in caseloads at federal courts fails to take into account other priorities, like adding greater demographic and geographic diversity, but also diversity in professional backgrounds.
In 2018, bipartisan legislation to expand the number of lower court judges in a depoliticized way — by delaying any newly created judgeships until 2021, after the election of a new president — failed to advance. While that was a good idea, a similar plan being floated on Capitol Hill to try the same approach by delaying any expansion of the court until 2025 would be too little, too late.
“Our courts have been in crisis for decades. Why would you wait another four years to address them?” Kang said.
Staggering the appointments would make such a delay unnecessary by ensuring that the new seats are filled over the course of several administrations. It’s an approach that enjoys broad support from an ideologically broad array of organizations, from Demand Justice to the Brennan Center to the Cato Institute.
Biden should urge lawmakers to put their energy — and more judges — where they can be most useful.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.