With the federal judiciary facing significant challenges due to a longstanding shortage of judges and an expected surge in litigation due to recent Supreme Court decisions, comprehensive legislative action and proactive efforts will be needed to address this impending judicial overload
Earlier this summer, the U.S. Supreme Court’s term ended with an explosive slate of decisions that virtually guarantee significant practical consequences that are likely to overshadow their holdings and substantively impact the nation’s judiciary.
Fundamentally, the Supreme Court’s decisions in four major cases — Loper Bright, SEC v. Jarkesy, Ohio v. EPA, and Corner Post — together shift review of decision-making from administrative and regulatory forums into federal courts. Now the judicial system, already overtaxed and plagued by delays, faces an unavoidable deluge of litigation in areas requiring subject-matter expertise with no increase in capacity or resources — a certain recipe for complications.
An administrative law revolution across 4 cases
Although the reasoning of these Supreme Court decisions varied, each case assumed that the core review and approval of regulatory authority belonged to actors outside the administrative state. Loper Bright indicates that the Court does not merely take issue with the role of agency as arbiter, rather the Court interprets the Administrative Procedure Act (APA) to require independent judicial interpretation of ambiguous authorizing statutes over deference to agency interpretation.
After Corner Post, those challenges to agency regulations need not be constrained to the first few years of their promulgation, but rather may be raised many years later after a plaintiff suffers alleged harm. And as Jarkesy makes clear, the Court now favors juries to render judgment on claims that, for nearly 50 years without challenge, were resolved in agency tribunals. Even when an agency does engage in rulemaking or promulgates a policy, Ohio v. EPA dictates that such exercise of power will be heavily scrutinized under arbitrary and capricious review.
The judicial system, already overtaxed and plagued by delays, faces an unavoidable deluge of litigation in areas requiring subject-matter expertise with no increase in capacity or resources — a certain recipe for complications.
The Court’s antagonism toward administrative agencies is hardly new, and it has steadfastly remained silent as to the practical implications of these recent decisions. While last citing Chevron in 2016, the Court has in recent years eschewed deference to agency expertise in favor of judicial review. In Loper Bright, the Court found that agencies have no special expertise in interpreting Congressional mandates, which will likely herald an onslaught of Loper Bright challenges to agency rulings.
Even more so, Corner Post’s expansion of standing exacerbates Loper Bright’s impact on the courts. Corner Post empowers aggrieved parties to bring suit whenever injury may be found, even if a regulation’s meaning previously appeared to be fixed to a limited jurisdiction. Simply put, this will directly inspire a new set of challenges to regulations headed to the D.C. Circuit Court and to Article III courts (the 94 federal district courts and 13 appellate courts) nation-wide.
Jarkesy ensures that regulators seeking aggressive enforcement will increasingly be forced to defend those efforts in Article III courts. Despite earlier judicial warning signs in cases such as Lucia v. SEC in 2018 in which the Supreme Court questioned the U.S. Securities and Exchange Commission’s use of administrative law judges, the Jarkesy decision ushers in a new world for administrative bodies. These agencies will be forced to either forego actions traditionally brought in their own administrative forums or ramp up litigation efforts in Article III courts. Given their public mandates and ambitions, it is difficult to imagine any downsizing of effort. Instead, what is nearly certain is an increase in Article III litigation.
What’s most obvious is that each of these rulings and corresponding transfer of authority to the courts promises to open the floodgates of litigation.
Ohio v. EPA joins this cluster of cases, encouraging early challenges prior to enforcement and incentivizing protracted rulemaking. Loper Bright’s return to Skidmore deference instills greater persuasive power to agency decisions that are more thoroughly considered and more consistent with historical interpretations. Should an agency fail to exercise seemingly the most exacting review during rulemaking, then Ohio v. EPA indicates that an arbitrary and capricious challenge is likely to succeed.
Challenges in expanding judicial oversight
Without legislative intervention, Article III courts will almost certainly be overwhelmed by the influx of cases stemming from the Supreme Court’s administrative law decisions this term. A major part of the problem is a shortage of judges.
Congress has failed to pass any comprehensive legislation addressing the capacity of our federal district courts since 1990. For more than 30 years, no new judgeships have been authorized in the federal court of appeals. Since 2003, there have been no new judgeships in federal district courts. Some jurisdictions have not had a new judge since 1978.
The static number of judicial posts in recent decades — at odds with the commensurate growth in population and litigation — has burdened the judiciary with increasingly large caseloads. Filings per judge have increased by around 20% in federal appeals and district courts. Critics have pointed out that with so few federal judges, concerns are mounting as the judiciary struggles to balance the burdens of delay against the danger of rushed judgments.
Congress has failed to pass any comprehensive legislation addressing the capacity of our federal district courts since 1990.
Recent efforts are underway at the margins to remedy these shortages. In 2022, the Judicial Conference of the United States identified 30 courts with more than 500 weighted filings, a metric assessing the relative complexity of each case and assigning a value to it. (To understand the weighting protocol better, where a loan default may count as a fraction of a weighted case, an antitrust case may count as more than three weighted cases.)
The Conference has established a threshold of 430 weighted filings as a signal that additional judicial positions are needed. In assessing the current caseloads, the Conference identified eight courts with weighted caseloads in excess of 600 and three in excess of 700. In March 2023, the Conference recommended creating an additional 66 permanent district court judgeships and converting various temporary judgeships into permanent positions.
In response to these recommendations, bipartisan leadership proposed the JUDGES Act of 2024 in the Senate, seeking to address the compounding problem by largely adopting the Judicial Conference’s recommendations over the course of 12 years. The proposed legislation passed the Senate by unanimous consent in August and the House of Representatives has taken the bill under consideration.
However, the relief promised by the potential passage of the JUDGES Act is undermined by the recent Supreme Court decisions. While passing the JUDGES Act would grant long overdue relief to overworked courts, it was drafted prior to the recent Supreme Court decisions. As a result, the judicial expansion contemplated under the Act does not take into account the potentially dramatic increase in litigation likely to come out from Loper Bright and similar cases.
In light of these recent rulings, the Conference should consider revising their proposed expansion of the federal judiciary to address an anticipated increase in litigation — and the legislature should then revise the JUDGES Act accordingly. Additionally, Congress should provide clearer delegation to agencies or address the impact of the procedural changes by legislation. Ultimately, these efforts will require a time-intensive, proactive effort across agencies and the legislature to head off areas of contention and backlog.
The much more likely scenario, in both the short and long term, is a dramatically increased workload for Article III courts. Passing the JUDGES Act will provide momentary relief, but absent further action, the longstanding challenges of overworked and understaffed federal courts are almost certain to be dramatically exacerbated by the Supreme Court’s transfer of responsibility from the administrative state to the judiciary.
You can find out more about recent Supreme Court decisions here.
