Supreme Court Justice Byron White said in 1984, “Each of the courts of appeals . . . is for all practical purposes the final expositor of the federal law within its geographical jurisdiction.”1 More recently, a law professor wrote, “In large measure, it is the circuit courts that create U.S. law. They represent the true iceberg, of which the Supreme Court is but the most visible tip. The circuit courts play by far the greatest legal policymaking role in the United States judicial system.”2

When Congress established them in 1891, the U.S. circuit courts of appeals (as they were known then3) did not occupy such a lofty position in the federal judiciary. Created as a level of intermediate courts, their job consisted almost entirely of correcting errors made by the trial courts to relieve caseload pressure on the Supreme Court of the United States.4 Since that time, however, the U.S. courts of appeals have undergone significant change. As caseloads continued to rise during the early twentieth century, the Supreme Court lobbied for and was granted more discretion over its docket. A growing number of federal appeals became final in the courts of appeals unless the Supreme Court elected to hear them. With the courts of appeals as the last point of appellate review for the vast majority of federal cases, they expanded upon their initial—but still crucial—function of error correction and became instrumental in expounding the law as well.

The evolution of the courts of appeals and the increasing importance of their role are important themes permeating the broad historical overview of the courts provided here. This feature is divided into ten sections: 1) The Creation of the U.S. Courts of Appeals; 2) The Judges’ Bill of 1925; 3) Changing Dockets; 4) Differences Between Circuits; 5) Law of the Circuit; 6) En Banc Review; 7) Circuit Splits; 8) Implementation of Remedies; 9) Cases; and 10) Judges.

This feature is intended to expand upon the following existing resources from the FJC’s History of the Federal Judiciary website:

An overview page provides a brief history of the courts of appeals and links to more specific information about the appellate court in each judicial circuit. A page on the Evarts Act of 1891 summarizes the statute that created the courts of appeals and gives the full text of the law. An essay on the appellate jurisdiction of the federal courts details the kinds of cases the appellate courts have heard throughout their history. Finally, Volume II of Debates on the Federal Judiciary: A Documentary History covers legislative debates concerning the establishment of the courts of appeals.5

• 1. Donald R. Songer, et al., Continuity and Change on the U.S. Courts of Appeals (Ann Arbor: University of Michigan Press, 2000), 132.
• 2. Frank B. Cross, Decision Making in the U.S. Courts of Appeals (Stanford: Stanford University Press, 2007), 2.
• 3. In 1948, Congress removed the word “circuit” from the names of the appellate courts, giving them their current form as the U.S. courts of appeals. Judicial Code of 1948, Pub. L. No. 80-773, 62 Stat. 869, 870 (1948) (codified at 28 U.S.C. § 43(a) (2018)).
• 4. From 1891 until 1911, the U.S. circuit courts of appeals coexisted with the U.S. circuit courts, which had been the main trial courts of the federal judiciary since 1789. In 1911, Congress abolished the U.S. circuit courts and transferred their jurisdiction to the U.S. district courts. In modern times, scholars, lawyers, judges, and others have sometimes referred to the U.S. courts of appeals as “circuit courts.” To prevent confusion between the U.S. courts of appeals and the U.S. circuit courts of 1789-1911, this feature does not use that term other than as part of a quotation.
• 5. Daniel S. Holt, Debates on the Federal Judiciary: A Documentary History, Volume II (Washington, D.C.: Federal Judicial Center, 2013), 55–67.

After Reconstruction, the Supreme Court was faced with a mushrooming workload. The main causes were two federal statutes: the Habeas Corpus Act of 1867,6 which permitted prisoners in state custody to seek the writ from a federal court, and the Jurisdiction and Removal Act of 1875,7 which provided the federal courts with federal question jurisdiction and expanded parties’ ability to remove diversity of citizenship cases from state to federal court. These measures greatly extended the federal courts’ reach. However, the larger caseload was not accompanied by structural reforms that would better enable the courts to shoulder the burden. The Supreme Court was hit particularly hard. Lacking the discretion over its docket that it would later obtain, the Court was required to hear most appeals from the U.S. circuit and district courts, causing its workload to spiral out of control. Supreme Court decisions regarding corporate citizenship contributed further to the crisis.8 In Louisville, Cincinnati, and Charleston Rail-road Co. v. Letson (1844), for example, the Court held that corporations were citizens of their states of incorporation for purposes of federal diversity jurisdiction.9 This and later decisions facilitated corporations’ removal of lawsuits from state to federal court, eventually flooding the federal courts with railroad cases.

As the court system struggled with its workload and Supreme Court justices petitioned for relief, Congress debated possible solutions for years. In 1891, it passed the Circuit Courts of Appeals Act, commonly known as the Evarts Act after its primary sponsor, Senator William Evarts of New York.10 The act stripped the U.S. circuit courts of their appellate jurisdiction, created nine intermediate appellate courts in the judicial circuits, and authorized the appointment of an additional judge for each circuit (adding to the one judge per circuit authorized in 1869).11 The creation of a new layer of courts was a remedy that had been considered at various times since before the Civil War.

The Evarts Act responded effectively to the caseload crisis by reducing the number of cases that reached the Supreme Court while simultaneously reducing the percentage of those cases the Court would be required to hear.12 The act limited the cases that could be taken to the Supreme Court as a matter of right. Prior to the act, parties could take a wide variety of cases from a U.S. circuit or district court to the Supreme Court by appeal or writ of error. The Court was required to hear appeals from the U.S. circuit courts in all civil actions, equity suits, and admiralty and maritime cases where the matter in dispute exceeded $2,000,13 and any civil or criminal case in which the judges of a circuit court certified their disagreement with one another.14 Prize cases from the circuit and district courts in which the matter in dispute exceeded $2,000 or where the judge certified that the case was of general importance were also within the Court’s mandatory jurisdiction.15 The Evarts Act narrowed the Court’s mandatory docket significantly by making several categories of cases final in the courts of appeals unless the Supreme Court elected to grant a writ of certiorari.16 Such cases included those based on diversity of citizenship as well as those arising under patent, revenue, admiralty, and criminal laws.17 In cases involving particularly important questions of federal law, such as those involving the construction or application of the Constitution, the constitutionality of a federal statute or treaty, or the constitutionality of a state constitution or law, the right of a direct appeal from a U.S. circuit or district court to the Supreme Court was preserved.18 By making many cases final in the lower courts, the act began the Supreme Court’s transformation into an institution primarily dedicated to resolving significant questions of constitutional and statutory interpretation.

• 6. Habeas Corpus Act of 1867, 14 Stat. 385 (1867).
• 7. Jurisdiction and Removal Act of 1875, 18 Stat. 470 (1875).
• 8. Justin Crowe, Building the Judiciary: Law, Courts, and the Politics of Institutional Development (Princeton: Princeton University Press, 2012), 173–175; Wyatt G. Sassman, “How Circuits Can Fix their Splits,” Marquette Law Review 103, no. 4 (Summer 2020), 1414–1415.
• 9. 43 U.S. 497 (1844).
• 10. Circuit Courts of Appeals Act (Evarts Act) of 1891, 26 Stat. 826 (1891).
• 11. The system of numbered judicial circuits was first established by the Judiciary Act of 1801 (2 Stat 89 (1801)). When the Evarts Act was passed, there were nine circuits, which had been the case since the establishment of the Eighth and Ninth Circuits in 1837 (5 Stat. 176 (1837)). While Congress frequently changed the organization of the circuits in the early-to-mid nineteenth century, it made no such changes after 1869 beyond the creation of new circuits and the addition of new states to existing circuits. Congress split the Eighth Circuit in 1929 when it created the Tenth (Pub. L. No. 70-840, 45 Stat. 1346, 1347 (1929)) and split the Fifth in 1980 when it created the Eleventh (Fifth Circuit Court of Appeals Reorganization Act of 1980, Pub. L. No. 96-452, 94 Stat. 1994 (1980)). Congress declared the District of Columbia to be one of the then eleven judicial circuits in 1948 (Judicial Code of 1948, 62 Stat. at 870) and established the jurisdictionally defined Federal Circuit in 1982 (Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, 96 Stat. 25 (1982)). (Statutes regarding the number and composition of judicial circuits are codified at 28 U.S.C. § 41 (2018).)
• 12. Crowe, supra note 8, at 185.
• 13. Rev. Stat. §§ 691–692 (1878). Patent and copyright cases, actions by the United States to enforce the revenue laws, civil actions against revenue officers, cases brought on account of the deprivation of Constitutional rights, and cases brought under the Civil Rights Act of 1866 (14 Stat. 27 (1866)) were exempt from the amount in controversy requirement. Rev. Stat. § 699 (1878).
• 14. Rev. Stat. §§ 693, 697 (1878).
• 15. Rev. Stat. §§ 695–696 (1878). Prize cases are proceedings in which courts determine the distribution of proceeds after a foreign ship and its cargo are seized during hostilities and certain legal conditions have been met.
• 16. The Evarts Act also provided that the courts of appeals could, in any case, certify questions of law to the Supreme Court, which could issue binding instructions on those questions or have the entire case sent up for its review and decision. Evarts Act § 6, 26 Stat. at 828.
• 17. Id.
• 18. Evarts Act § 5, 26 Stat. at 828; Crowe, supra note 8, at 183.

Despite the creation of the U.S. courts of appeals in 1891, the Supreme Court’s docket continued to grow into the early twentieth century. Multiple causes were at play: among the most important were increased economic regulation; the advent of a national income tax (and with it the first prosecutions for tax evasion); and the increased federalization of criminal law, most notably via Prohibition starting in 1920.19 The Court still heard mandatory appeals in several categories of cases: where the question of jurisdiction was at issue (in which case the Court would decide only the issue of jurisdiction); prize cases; capital crimes; cases involving the construction or application of the Constitution or the constitutionality of a federal law; and cases in which a state law was claimed to violate the Constitution.20 Furthermore, the Evarts Act had not affected the Court’s jurisdiction over cases appealed from the highest courts of the states. Congress took some action to ameliorate the crush via the Judiciary Act of 1916, which abolished appeals in certain state court cases as well as cases brought under several federal statutes—the Railroad Safety Appliance Act of 1893, the Bankruptcy Act of 1898, the Hours of Service Act of 1907, and the Federal Employers’ Liability Act of 1908—so that they could be heard only by a discretionary grant of certiorari.21 Nevertheless, by the early 1920s, many considered the Court to have a new caseload crisis on its hands. Chief Justice William H. Taft wanted to give the Court more discretion over its docket, not only to ease its caseload, but to transform it into what Taft and some other justices thought it should be. Rather than a court of last resort for ordinary cases of importance only to the litigants involved, said Taft, the Court should be a forum for deciding major constitutional questions and other issues important to the nation.

Congress cooperated by passing the Judiciary Act of 1925, commonly known as “the Judges’ Bill” because it was drafted by a committee consisting of Justices Willis Van Devanter, James McReynolds, and George Sutherland.22 The act made most federal cases final in the courts of appeals unless the Supreme Court exercised its discretion to review the case by writ of certiorari. The lone exception was a finding by a court of appeals that a state statute was invalid because it contravened the U.S. Constitution, federal law, or a treaty. Similarly, appeals and writs of error from state courts were limited to cases in which a federal law was declared invalid, or a state law was upheld against a challenge that it contradicted the Constitution or federal law. Direct appeals from U.S. district courts to the Supreme Court were eliminated except in cases brought under a handful of federal statutes.23 As scholar Justin Crowe stated, the 1925 act “gave the Court near-complete control over its docket for the first time in history.”24

The 1925 legislation had the effect Taft desired, transforming the Court into an institution mainly devoted to deciding significant constitutional and statutory questions.25 The shrinking of the Court’s docket had far-ranging implications for the courts of appeals.26 Because they were now the last point of appellate review for the vast majority of federal cases, the courts of appeals were no longer limited to correcting the errors of lower courts. While much of their work continued to consist of what may be considered routine cases, the courts of appeals were crucial interpreters of the law as well, developing and implementing legal rules to cover the many instances in which no clearly controlling Supreme Court precedent existed.27 The courts of appeals gained distance from the Supreme Court and acquired a large measure of decisional independence, one consequence of which was the emergence of a new body of federal jurisprudence. As Justice William Rehnquist wrote shortly before his elevation to chief justice in 1986, “The roles of the courts of appeals in 1891 had been necessarily modest because they were new courts and people were not sure how they would turn out. But by 1925, when public confidence in them had been established, they were rightly given much more responsibility and much more finality in their decisions.”28

• 19. Id. at 199.
• 20. Evarts Act § 5, 26 Stat. at 828.
• 21. Judiciary Act of 1916, Pub. L. No. 64-258, 39 Stat. 727 (1916).
• 22. William H. Rehnquist, “The Changing Role of the Supreme Court,” Florida State University Law Review 14, no. 1 (Spring 1986), 8.
• 23. Supreme Court review of cases in the district courts included certain antitrust and criminal cases, suits under the Three-Judge Court Act of 1910 (Pub. L. No. 61-218, 36 Stat. 557 (1910)) for injunctions to restrain state officials from enforcing allegedly unconstitutional state laws, and judgments upholding or affirming the orders of several administrative agencies. Judiciary Act of 1925 § 238, Pub. L. No. 68-415, 43 Stat. 936, 938 (1925).
• 24. Crowe, supra note 8, at 211.
• 25. Congress eliminated nearly all vestiges of the Supreme Court’s mandatory jurisdiction in the Supreme Court Case Selections Act of 1988, Pub. L. No. 100-352, 102 Stat. 662 (1988) (codified at 28 U.S.C. §§ 1254, 1257–1258, 2104 (2018)).
• 26. The size of the Supreme Court’s docket continued on a general downward trend throughout the twentieth century, with a steady decline beginning in the 1980s. At the same time, the dockets of the courts of appeals grew dramatically, from fewer than 3,000 cases terminated in 1932 to more than 55,000 in 2016. Sassman, supra note 8, at 1420.
• 27. Some of the Supreme Court’s decisions disrupt existing bodies of law, giving the judges of the courts of appeals discretion to apply those decisions with varying degrees of breadth. Some scholars have suggested that in these instances, appellate judges “enjoy discretion similar to that of Supreme Court justices.” Emery G. Lee III, “Policy Windows on the U.S. Courts of Appeals,” Justice System Journal 24, no. 3 (2003), 305.
• 28. Rehnquist, supra note 22, at 8.

While the Judges’ Bill of 1925 gave the Supreme Court a great deal of discretion in shaping its docket, the U.S. courts of appeals have never had such discretion and must hear all appeals within their statutory jurisdiction. As a result, the business of the appellate courts has largely reflected that of the federal trial courts.29

Despite their prominent role in interpreting and applying U.S. law, the courts of appeals have not always received the scholarly attention they deserved. The creation in the 1990s of the Courts of Appeals Database—covering roughly 15,000 U.S. court of appeals cases between 1925 and 1988 (with another phase covering 1988–1996 and a later update for 1997–2002)—led to a marked increase in scholarship and a clearer picture of the courts’ business, however.30

Because the Courts of Appeals Database does not contain data on cases before 1925, there is little empirical data on the earliest years of the U.S. courts of appeals. Scholars generally agree, however, that for the first quarter-century of their existence, the courts heard primarily private disputes, such as tort, contract, and property cases. A study of appellate litigation between 1895 and 1975 in the Second, Fifth, and Ninth Circuits found that criminal appeals occupied 5% or less of each circuit’s docket from 1895 to 1910, when the modern trend of federalization of criminal law had not yet begun.31 Real property cases were a significant portion of business for the Fifth and Ninth Circuits (constituting 25% of the Ninth’s caseload) in these early years because the expansiveness of and abundancy of natural resources in those regions gave rise to many land-use disputes regarding railroads, mining, timber, and oil. Conversely, such cases constituted almost none of the docket in the Second Circuit, home to land-scarce New York City and other densely populated urban areas.32 Business cases were also prevalent in these early courts of appeals, constituting 27% of the workload in the Ninth Circuit, 34% in the Second, and 46% in the Fifth. Many of these cases involved shipping contracts, which the federal courts heard pursuant to their admiralty jurisdiction.33 The Ninth Circuit saw a high proportion of immigration cases relative to the other circuits in the late nineteenth and early twentieth centuries because California served as the main point of entry for those coming from Asia (the federal government was not yet restricting immigration from Mexico in the same manner).34 Tort cases involving personal injury and employee injury, the latter on railroads and ships especially, were also an important driver of judicial business in the early courts of appeals.35

While the number of private law cases like tort claims and business disputes grew in absolute terms, these cases became a steadily declining proportion of the courts of appeals’ business over the ensuing decades. Broadly speaking, the courts of appeals shifted between 1925 and the late twentieth century from handling mainly private disputes between businesses to become forums primarily for public law cases in which individuals opposed the government in economic, civil rights, civil liberties, and criminal matters.36 Political and legal changes helped to drive this trend. For example, while prior to 1925 most public law matters were patent and tax cases (the latter of which primarily involved customs duties until the creation of the U.S. Court of Customs Appeals in 1909), the New Deal era brought with it a large number of cases involving business and labor regulations.37 These cases increasingly involved questions of statutory interpretation as the courts of appeals helped to define the scope of the rights protected by new laws such as the Wagner Act of 1935, which created the National Labor Relations Board (NLRB).38 The administrative state, which had its origins in the Progressive Era and emerged more fully during the New Deal, was characterized by Congress’ delegation of more authority to regulatory agencies like the NLRB. This development influenced federal appellate dockets as well, as the courts of appeals eventually became the sites of most appeals of administrative agency decisions and orders.39

The Judges’ Bill also contributed to the increase in government cases. As is discussed above, cases involving the construction or application of the Constitution, the constitutionality of a federal law, or the validity of a treaty were directly appealable to the Supreme Court from the U.S. district courts prior to 1925. After passage of the Judges’ Bill, such appeals generally went to the courts of appeals.40

Legal changes (combined with escalating crime rates) also caused a dramatic rise in criminal cases beginning in the 1960s. Such changes included the broadening of federal criminal law, funding for counsel under the Criminal Justice Reform Act of 1964 for indigent criminal defendants (whose lack of legal representation would previously have deterred them from appealing a conviction or sentence), and decisions of the Warren Court expanding due process protections for the accused. Habeas corpus cases, prisoner petitions, and civil rights matters also increased during this period.41  The Supreme Court’s landmark decision in Monroe v. Pape (1961)42 breathed new life into “section 1983”43 by establishing that a state officer could be sued civilly for violating constitutional rights while acting “under color of law” even when their actions violated state law. A few years later, a law professor remarked on the “explosion of actions” brought in federal court “under this newly spread statutory umbrella.”44 Other types of civil rights cases became more prominent in the 1970s and 1980s in large part because women, long subject to discrimination in the workplace, now had a federal remedy in Title VII of the Civil Rights Act of 1964.45 Significantly, several circuits held in the mid-1970s that sexual harassment of an employee violated Title VII, well before the Supreme Court did so in 1986.46 In 1972, Congress authorized the Equal Employment Opportunity Commission to bring suits in federal court, providing for a further increase in discrimination cases reaching the courts of appeals.47

Another major expansion of government regulation occurred in the late 1960s and 1970s. The creation of new agencies such as the Consumer Product Safety Commission, Environmental Protection Agency, National Transportation Safety Board, and Federal Energy Regulatory Commission led to an increase in federal court cases involving consumers, the environment, transportation, and utilities.48 While ordinary business cases continued to grow in real terms, they steadily became a smaller piece of the work of the courts of appeals and were eclipsed by other types of private litigation, such as products liability.49 Most kinds of tort cases kept declining as a proportion of the appellate courts’ dockets.50

As Donald Songer, the scholar responsible for the creation of the Courts of Appeals Database, has written, the period between 1925 and 1988 was “a period of maturation in which the courts evolved from a relatively obscure institution predominantly concerned with error correction in private law contests, to one in which the circuits frequently stand at the center of policy-making in public law disputes.”51 As a result, the appeals of which the U.S. courts of appeals were the final arbiter arguably increased in importance. The decisions of the appellate courts, so often interpreting statutes and administrative regulations in passing on the validity of governmental actions, became more broadly applicable than those regarding the private economic disputes that had once dominated.

• 29. “Our analysis suggests that judicial business in the U.S. Courts of Appeals is related to changes in the social, political, and legal environments, but that the strength of this relationship varies. Over time, the kinds of cases decided by these courts responded to change in society, but more dramatic responses to political and legal factors were evident.” Songer, supra note 1, at 70.
• 30. The Courts of Appeals Database was compiled with cases through 1996 by Professor Donald Songer of the University of South Carolina with support from the National Science Foundation. Professors Ashlyn Kuersten of Western Michigan University and Susan Haire of the University of Georgia compiled the 1997–2002 update. For more information on the database, see Mark S. Hurwitz and Ashlyn Kuersten, “Changes in the Circuits: Exploring the Courts of Appeals Databases and the Federal Appellate Courts,” Judicature 96, no. 1 (July-August 2012), 23–35.
• 31. Lawrence Baum, Sheldon Goldman, and Austin Sarat, “The Evolution of Litigation in the Federal Courts of Appeals, 1895–1975,” Law & Society Review 16, no. 2 (1981), 295.
• 32. Id. at 297.
• 33. Id. at 298–299.
• 34. Id. at 304.
• 35. Id. at 305.
• 36. Songer, supra note 1, at 100.
• 37. Baum, supra note 31, at 301.
• 38. Songer, supra note 1, at 65–66.
• 39. Id. at 51.
• 40. The Judiciary Reform Act of 1937 (Pub. L. No. 75-352, 50 Stat. 751, 752 (1937)), however, provided for an appeal to the Supreme Court from a three-judge district court in cases where the United States or a federal official was a party and a federal law had been ruled unconstitutional. This provision was repealed in 1988. Supreme Court Case Selections Act of 1988, 102 Stat. at 662.
• 41. Baum, supra note 31, at 295–296; Songer, supra note 1, at 56–57.
• 42. 365 U.S. 167 (1961).
• 43. 42 U.S.C. § 1983, referred to as “section 1983” in shorthand, is based on the Ku Klux Klan Act of 1871 (17 Stat. 13 (1871)), a Reconstruction measure that was employed infrequently in the twentieth century prior to Monroe.
• 44. Marshall S. Shapo, “Constitutional Tort: Monroe v. Pape, and the Frontiers Beyond,” Northwestern University Law Review 60, no. 3 (July-August 1965), 278.
• 45. The desegregation cases of earlier decades, despite their prominence, did not make up a significant portion of the courts of appeals’ dockets compared to the employment discrimination cases that became prevalent in the 1970s. Songer, supra note 1, at 61.
• 46. Id.; Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977); Garber v. Saxon Business Products, 552 F.2d 1032 (4th Cir. 1977); Tompkins v. Public Serv. Elec. & Gas Co., 568 F.2d 1044 (3rd Cir. 1977); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
• 47. Songer, supra note 1, at 61.
• 48. Id. at 59. The deregulation trend of the 1980s did not cause a decline in appellate caseloads. The federal courts quickly began to engage in judicial review of deregulation decisions just as they had with respect to decisions to regulate. See, e.g., Harry T. Edwards, “Judicial Review of Deregulation,” Northern Kentucky Law Review 11, no. 2 (1984), 229–283; Merrick B. Garland, “Deregulation and Judicial Review,” Harvard Law Review 98, no. 3 (January 1985), 505–591.
• 49. Songer, supra note 1, at 59.
• 50. Baum, supra note 31, at 305.
• 51. Songer, supra note 1, at 131.

While the thirteen U.S. courts of appeals can be studied as one tier of a coherent national judicial system, they are nevertheless distinct units. The appellate courts differ from one another not only with respect to the judges on the bench and the decisions they issue but also in terms of the composition of their caseloads. In some instances, a particular circuit became associated with a specific type of case as a result of regional differences. The Second Circuit—which includes New York City, the nation’s business capital—historically heard more commercial, copyright, securities, tax, and antitrust cases than other circuits.52 The Ninth Circuit heard more copyright cases relative to other circuits because of the Los Angeles area’s status as a mecca for film and television production.53 Immigration cases were particularly prevalent in the Ninth Circuit (involving Asian immigrants early on and those from Mexico later), as were admiralty cases in the Fifth Circuit as a consequence of its long coastline along the Gulf of Mexico.54 Since the 1970s, the Ninth Circuit has also heard a substantial number of cases involving Indian fishing rights in the western United States.55

Despite these examples, legal business throughout the judicial circuits generally became more homogenous during the course of the twentieth century. While changes in particular circuits—such as the decline in land cases in the Fifth and Ninth Circuits as settlement increased and ownership disputes diminished—played a role,56 a major cause of convergence was the increased activity of the federal government, especially from the New Deal era onward. As has been addressed elsewhere, a more dynamic government led to the greater prevalence of public law cases involving federal policy. The uniformity of federal regulation meant that the legal issues coming before the courts of appeals were increasingly similar.57 While there continued to be some differences in the composition of circuit dockets, scholars have concluded that, generally speaking, those differences followed no pattern attributable to regional variation.58 The District of Columbia and Federal Circuits, both possessing unique characteristics, were exceptions to the pattern of homogenization.

The District of Columbia Circuit was always unique among the regional judicial circuits. Congress established the Court of Appeals of the District of Columbia in 1893, two years after the Evarts Act created the U.S. courts of appeals. The District of Columbia was initially not considered a judicial circuit and the federal appellate court operated under a unique statutory scheme providing it with local as well as federal jurisdiction until the early 1970s. In 1948, Congress renamed the court the U.S. Court of Appeals for the District of Columbia Circuit and classified it as one of the then eleven judicial circuits.

The D.C. Circuit is often referred to as the second-most powerful court in the United States, largely because of the many important appeals it hears from federal regulatory agencies such as the Securities and Exchange Commission, Federal Communications Commission, and National Labor Relations Board. These agency appeals include a number of significant environmental cases, as the circuit has exclusive jurisdiction over some appeals from the Environmental Protection Agency. The court also hears a steady stream of national security cases, especially since 2001, as the federal government frequently prosecutes cases involving foreign nationals in the U.S. District Court for the District of Columbia. 

Congress created the U.S. Court of Appeals for the Federal Circuit in 1982 by merging the U.S. Court of Claims and the U.S. Court of Customs and Patent Appeals. While based in Washington, D.C., the Federal Circuit has exclusive, nationwide jurisdiction over patent appeals from U.S. district courts. Unlike the regional circuits, the Federal Circuit has jurisdiction defined entirely by subject matter and not limited to any particular geographical area. This jurisdiction includes appeals in cases arising under several federal statutes, appeals from the U.S. Court of International Trade, and appeals from several Article I courts such as the U.S. Court of Federal Claims and the U.S. Court of Appeals for Veterans Claims.  

• 52. Michael E. Solimine, “Judicial Stratification and the Reputations of the United States Courts of Appeals,” Florida State University Law Review 32, no. 4 (Summer 2005), 1354.
• 53. Id. at 1355.
• 54. Id.
• 55. Stephen L. Wasby, “Intercircuit Conflicts in the Courts of Appeals,” Montana Law Review 63, no. 1 (Winter 2002), 128.
• 56. Baum, supra note 31, at 297.
• 57. Id. at 308.
• 58. Songer, supra note 1, at 64–65.

The growth of appellate caseloads led to the expansion of the courts of appeals. The addition of new judges had a direct effect on jurisprudence. As the courts grew, maintaining uniformity in the law naturally became more difficult. To prevent inconsistent decisions, the appellate courts eventually developed a precedential doctrine known as “law of the circuit.”

Each court of appeals began its existence with two judges except for the Second Circuit, which had three. The Evarts Act of 1891 assigned the existing circuit judges to sit on the courts of appeals and added one new judge to each judicial circuit.59 In every circuit but the Second, therefore, there were not enough circuit judges to hold court in the three-judge panels the Evarts Act prescribed. Justices of the Supreme Court and U.S. district judges were authorized to sit on the courts of appeals to constitute the required panels.

By World War II, however, most of the appellate courts had expanded significantly. By the end of the 1940s, the Second, Third, Fifth, and Sixth Circuits had six authorized judgeships, the Eighth and Ninth Circuits had seven, and the District of Columbia Circuit had nine. Further judgeship bills in the 1960s brought the Fourth and Tenth Circuits to seven, the Seventh and Eighth Circuits to eight, the Second, Third, and Sixth Circuits to nine, the Ninth Circuit to thirteen, and the Fifth Circuit to fifteen. (The First Circuit had only three judgeships until 1978.)60

The proliferation of courts of appeals judgeships in the mid-twentieth century created new jurisprudential issues for the courts. No longer did a panel of three judges necessarily represent the views of the court as a whole when deciding a legal issue. As the number of judgeships grew, so did the likelihood that different panels of the same court might issue conflicting decisions and disagree about which legal rules to adopt. Such schisms, often referred to as intracircuit conflicts, could leave the law in a confused state within a particular geographic area, creating uncertainty for litigants.

The potential for intracircuit conflicts became a reality as mid-twentieth-century panels increasingly overruled decisions of prior panels in the same circuit. Courts of appeals judges often treated prior panel decisions the same way they might view a decision from another circuit: as persuasive, but not binding, authority.61 It was not uncommon, therefore, for a panel to be faced with prior circuit decisions containing irreconcilable differences with one another. Even if a panel in such a situation desired to follow circuit precedent, it was not clear what constituted circuit precedent. Especially as courts of appeals grew larger, a particular panel decision could represent views contrary to those of a large majority of the court. The Supreme Court never made a ruling requiring consistency among panel decisions within a circuit, nor did it issue guidance to the circuits on how to handle the issue. As a result, each of the courts of appeals in the mid-twentieth century began to implement the law of the circuit doctrine. Applied in different ways across the circuits, the doctrine had consistency in circuit law as its primary goal.

Law of the circuit (also known as the “prior panel rule”) began to develop informally in the 1950s and 1960s, and rules limiting the discretion of panels faced with prior conflicting precedents began to solidify in the 1970s.62 The Fifth and D.C. Circuits appear to have been the first to adopt the rule explicitly.63 In 1957, a Fifth Circuit panel held, “the rule of stare decisis requires that we adhere to” prior panel decisions, and in 1958, a D.C. Circuit panel proclaimed itself “not free to overrule” a recent circuit decision, stating that only the court sitting en banc could do so.64 Some circuits established the law of the circuit doctrine through court rules or internal operating procedures, while others did so through case law.65 A Sixth Circuit panel, for example, issued a ruling in 1978 that one panel could not overrule another, but ironically, another panel reversed that ruling a year later. Eventually, the court enacted a rule mandating that panels follow circuit precedent.66

All circuits eventually came to embrace a policy that generally barred the overruling of prior panel decisions. In 1963, for example, Judge Charles Edward Clark of the Second Circuit filed a concurring opinion in Belk v. Allied Aviation Service Co., in which the court upheld the dismissal of the plaintiff’s claim against his employer for breach of a collective bargaining agreement. Clark thought the dismissal of the claim—on the ground that the plaintiff was required first to seek redress from the union—was the wrong result, but stated, “the law of the circuit has apparently been determined to the contrary, and so I shall join in my brothers’ disposition of this case.”67 Similarly, in United States v. Fernandez (1974), the Ninth Circuit followed prior circuit precedent on the question of whether a defendant could, without knowledge that his victim was an officer, violate a federal statute penalizing the assault of a federal law enforcement officer. Judge Shirley Hufstedler disagreed with the holding that such knowledge was not a required element of the crime but concurred in the judgment “solely under the compulsion of the law of the circuit.”68

Not all of the circuits have administered the law of the circuit doctrine in precisely the same way. Some circuits have allowed a prior decision to be reexamined if it has been undermined by the reasoning in a new case, while others have not permitted overruling except by an en banc circuit ruling or a Supreme Court opinion. In the Seventh Circuit, a departure from precedent is permissible if the new opinion is circulated to and approved by the other members of the court.69 In the Eighth Circuit, a panel facing conflicting precedents may choose which one to follow, while in the Ninth Circuit, a panel in such a situation is obligated to call for en banc review to resolve it.70 Not all panel decisions necessarily constitute precedent, however. As the appellate courts’ dockets became more crowded over the years, they increased their resort to unpublished opinions.71 It is normally up to the panel deciding a case whether to designate a decision for publication or not, and unpublished decisions are typically given little, if any, precedential weight.72

• 59. The Circuit Judges Act of 1869 (16 Stat. 44 (1869)) authorized one judgeship per circuit for the U.S. circuit courts. The Second Circuit gained a second judgeship in 1887 (24 Stat. 492 (1887)), so the Evarts Act increased the number of Second Circuit judges to three.
• 60. One product of the growth in courts of appeals judgeships was the emergence of “state representation” on those courts, which entitled each state within a circuit to have at least one resident serving on the court. This became possible for every circuit when the First Circuit—which, along with Puerto Rico, includes the states of Maine, New Hampshire, Massachusetts, and Rhode Island—received its fourth judgeship in 1978 (Pub. L. No. 95-486, 92 Stat. 1629 (1978)). State representation was merely a custom until Congress codified the practice in 1997 (Pub. L. No. 105-119 § 307, 111 Stat. 2440, 2493 (1997) (requiring “at least one circuit judge in regular active service appointed from the residents of each state in that circuit”) (codified at 28 U.S.C. 44(c) (2018)). While no statute requires the president to nominate a judge from a particular state to any particular seat on a court of appeals, vacancies are typically filled with a judge from the same state as the departing judge, even in cases where a state is represented by more than one judge. While changes in the state affiliation of seats have occurred periodically, they have become much less common since the 1960s. R. Sam Garrett, “‘State Representation’ in Appointments to Federal Circuit Courts,” Congressional Research Service, RS22510 (2011), Summary and Table 1.
• 61. Sassman, supra note 8, at 1428.
• 62. Joseph W. Mead, “Stare Decisis in the Inferior Courts of the United States,” Nevada Law Journal 12, no. 3 (Summer 2012), 795 n.58, 796.
• 63. Id. at 796 n.63
• 64. Woolley v. Eastern Air Lines, Inc., 250 F.2d 86, 91 (5th Cir. 1957), cert. denied, 356 U.S. 931 (1958); Davis v. Peerless Ins. Co., 255 F.2d 534, 536 (D.C. Cir. 1958).
• 65. Mead, supra note 62, at 799.
• 66. Id. at 800; Timmreck v. United States, 577 F.2d 372, 376 n.15 (6th Cir. 1978), rev’d on other grounds, 441 U.S. 780 (1979); Spiegner v. Jago, 603 F.2d 1208, 1212 n.4 (6th Cir. 1979), cert. denied, 444 U.S. 1076 (1980).
• 67. 315 F.2d 513, 518 (2nd Cir.) (Clark, J., concurring), cert. denied, 375 U.S. 847 (1963).
• 68. 497 F.2d 730, 740 (9th Cir. 1974) (Hufstedler, J., concurring), cert. denied, 420 U.S. 990 (1975).
• 69. Mead, supra note 62, at 794 n.54.
• 70. Michael Duvall, “Resolving Intra-Circuit Splits in the Federal Courts of Appeal,” Federal Courts Law Review 3, no. 1 (2009), 20; Kosteltec v. State Farm Fire & Casualty Co., 64 F.3d 1220, 1228 n.8 (8th Cir. 1995); Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1479 (9th Cir. 1987) (en banc).
• 71. Less than half of opinions in the U.S. courts of appeals were being published by the 1980s and by 1997 only a quarter of them were published. John Szmer, et al., “The Efficiency of Federal Appellate Decisions: An Examination of Published and Unpublished Opinions,” Justice System Journal 33, no. 3 (2012), 319. Federal Rule of Appellate Procedure 32.1, added in 2006, prohibits federal courts from disallowing the citation of unpublished opinions. A note to the rule, however, indicates that it “says nothing about what effect a court must give to one of its unpublished opinions or to the unpublished opinions of another court.”
• 72. Mead, supra note 62, at 799.

Closely related to the law of the circuit doctrine is the practice of en banc review. In certain circumstances, the courts of appeals hear cases before all active judges of the court rather than by a three-judge panel. Some circuits allow judges on senior status to participate in en banc hearings as well. A majority of the court must vote to hear a case en banc, either on the motion of a party or on its own initiative and may do so before or after a panel decision is rendered. The vast majority of en banc hearings are conducted to reconsider cases already decided by a panel.

Courts of appeals have heard cases en banc for three primary reasons: to maintain consistency in the law of the circuit, to correct panel error, and to address issues of particular importance. En banc review is granted only in a very small percentage of cases, and judges have expressed differing views regarding its use. A main point of disagreement is whether or not the en banc procedure is meant to ensure that panel decisions reflect the views of a majority of the court.73 Some believe that a three-judge panel acts only as an agent of the court, so that the full court remains responsible for ensuring that the case is decided correctly. In contrast, others see the panel, for purposes of a particular case, as the court itself, so that the court’s other judges should intervene only on an issue of exceptional significance.74 As the Supreme Court’s docket has shrunk over the years, it can no longer be assumed that the Court will hear all important federal law issues, adding importance to en banc hearings.75

The courts’ authority to sit en banc was initially uncertain. In 1938, the Ninth Circuit held in Lang’s Estate v. Commissioner of Internal Revenue that because the Evarts Act prescribed three-judge panels for the courts of appeals, “there is no method of hearing or rehearing by a larger number.”76 Two years later, however, the Third Circuit came to a different conclusion in Commissioner of Internal Revenue v. Textile Mills Security Corp. (1940).77 The Supreme Court granted certiorari in the latter case to resolve the conflict and sustained the Third Circuit’s position in 1941. The Court inferred that Congress, having provided for more than three judges in some circuits, must have intended that all of the judges in each circuit constitute the court of appeals. Bolstering this conclusion was a 1912 statute providing that “the circuit judges in each circuit shall be judges of the circuit court of appeals of that circuit, and it shall be the duty of each circuit judge in each circuit to sit as one of the judges of the circuit court of appeals in that circuit from time to time according to law.”78 The Court further concluded that because no statute prohibited all of the judges from sitting together, an interpretation of the law allowing en banc hearings created greater harmony with the rest of the statutory scheme, which provided for various functions to be carried out by “the court.” This result, the Court asserted, “makes for more effective judicial administration. Conflicts within a circuit will be avoided. Finality of decision in the circuit courts of appeal will be promoted.”79 Congress ratified the Court’s Textile Mills decision in 1948, providing explicit statutory authorization for en banc review.80 The Court held in Western Pacific Ry. Corp. v. Western Pacific Ry. Co. (1953) that litigants should be permitted to suggest that a case was appropriate for en banc review.81 Provisions for a petition for en banc review by a party were written into the Federal Rules of Appellate Procedure in 1979.82

• 73. Arthur D. Hellman, “Law of the Circuit Revisited: What Role for Majority Rule?” Southern Illinois University Law Journal 32, no. 3 (Spring 2008), 626.
• 74. Douglas H. Ginsburg and Donald Falk, “The Court En Banc: 1981-1990,” George Washington Law Review 59, no. 5 (1990-1991), 1012.
• 75. Hellman, Law of the Circuit, supra note 73, at 625.
• 76. 97 F. 2d 867, 869 (9th Cir. 1938).
• 77. 117 F.2d 62 (3rd Cir. 1940), aff’d, 314 U.S. 326 (1941).
• 78. 314 U.S. at 330 (quoting Pub. L. No. 62-56, 37 Stat. 52, 53 (1912)).
• 79. 314 U.S. at 334–335. The U.S. Court of Appeals for the District of Columbia, operating under a different statutory scheme than the other courts of appeals, heard all of its cases en banc after its fourth and fifth judges were appointed in 1931 and did not regularly employ three-judge panels until 1938. Ginsburg, supra note 74, at 1011.
• 80. Judicial Code of 1948, 62 Stat. at 871.
• 81. 345 U.S. 347 (1953).
• 82. Fed. R. App. P. 35.

The law of the circuit doctrine and the practice of en banc review both operate to keep federal law consistent within each circuit. The emphasis on intracircuit uniformity does not ensure, however, that the law will be consistent from one circuit to another. Intercircuit conflicts, also known as circuit splits, occur with regularity in the U.S. courts of appeals. They have frequently been the subject of study by those interested in the federal courts and are a crucial factor in shaping the docket of the Supreme Court.

When justices of the Supreme Court rode circuit to preside over the U.S. circuit courts, they were often reluctant to decide cases differently than their colleagues had decided them in other circuits. In the early years of the U.S. courts of appeals, however, it was not clear how circuits would treat each other’s precedent. From their inception, the courts of appeals operated independently, without a mandate from the nation’s highest court to adhere to one another’s case law. In Mast, Foos & Co. v. Stover Mfg. Co. (1900), the Supreme Court affirmed a decision of the Seventh Circuit in a patent case over the objections of the plaintiff, who argued that the court of appeals had erred by not following a precedent from the Eighth Circuit. The principle of comity, the Court explained, “persuades, but it does not command. . . . It recognizes the fact that the primary duty of every court is to dispose of cases according to the law and the facts; in a word, to decide them right. In doing so, the judge is bound to determine them according to his own convictions.”83 For some time, most circuits nevertheless showed some degree of deference to the decisions of other courts of appeals. That deference eventually weakened, however, and by the mid-twentieth century, disagreements between circuits over legal rules became more prevalent.

Most of the circuits, at one time or another, professed to subscribe to what one scholar has termed the “controlling decision doctrine”: a flexible rule requiring a court to follow an earlier decision by another court of appeals unless that decision was clearly erroneous.84 In Beach v. Hobbs (1899), for example, the First Circuit announced, “as a general rule, and especially in patent cases, we should follow the decision of the circuit court of appeals of another circuit . . . if based upon substantially the same state of facts, unless it should clearly appear that there was manifest error.”85 Similarly, the Third Circuit proclaimed in a 1905 tax case that “in suits of this character uniformity in the judgments of the several Courts of Appeals is especially important, and should be maintained wherever, as in the present instance there has been no decision of the Supreme Court which precludes it.”86 The Second Circuit embraced the controlling decision doctrine as well, following decisions of other circuits in 1910 and 1911. In 1929, however, it rejected prior decisions of the Eighth and Ninth Circuits, explaining, “Much as we respect the considered decisions of other circuits, we conceive that our duty requires us to form an independent judgment in cases of first impression in our own court, and forbids us blindly to follow other circuits, when our minds are not persuaded by the arguments advanced.”87 Not every circuit announced an intent to follow the controlling decision doctrine. In its first explicit statement on the issue, the Fourth Circuit explained that other circuits’ precedents might be persuasive but that it would “not be bound by the findings of another court however similar the circumstances may be.”88 Likewise, the Sixth Circuit in 1948 described a Fifth Circuit precedent as “advisory . . . rather than controlling.”89

Adherence to the controlling decision doctrine, even in circuits that embraced it strongly at first, had weakened by the mid-twentieth century. As one scholar noted, the solidification of the law of the circuit doctrine, which emerged at mid-century as the courts of appeals added more judges, was “a departure from a flexible approach to prior decisions that predominated in the circuit courts and courts of appeals through most of their history.”90 In 1964, the First Circuit accepted the argument of the IRS in contradiction to the decisions of two other circuits in tax cases presenting the same issue, and in 1970, it stated explicitly that a decision of another circuit was not controlling authority. In 1967, the Second Circuit refused to follow what appeared to be a controlling decision from the D.C. Circuit.91 The Fifth Circuit, which had never adhered to the doctrine, rejected holdings from other circuits on several occasions during the 1950s and 1960s.92 Significantly, the law of the circuit doctrine prioritized consistency in circuit law over uniformity in national law.93 In 1970, the Fifth Circuit remarked that it was “bound” by prior intracircuit precedents and therefore was precluded from following a contrary decision from the District of Columbia Circuit the appellant had cited.94

The Supreme Court revised its rules after the Judges’ Bill of 1925 made its docket primarily discretionary. Rule 35(5)(b) (later changed to Rule 10(a)), adopted that year, set forth the factors the Court would consider when deciding whether to issue a writ of certiorari to a U.S. court of appeals. The Court would be more likely to grant the writ, the rule provided, “where a circuit court of appeals has rendered a decision in conflict with the decision of another circuit court of appeals on the same matter.” Circuit splits became, and have continued to be, among the most prevalent sources of cases that come before the Court. In this way, courts of appeals decisions, even when they do not become the law of the land, can play a significant role in influencing which legal issues the Court will select for review. To cite one notable example, the Ninth Circuit upheld the constitutionality of the Gun Free School Zones Act under the Commerce Clause in United States v. Edwards (1993).95 In doing so, the court created a conflict with the Fifth Circuit’s 1993 decision in United States v. Lopez. The Supreme Court granted certiorari in Lopez to resolve the issue, upheld the Fifth Circuit’s position, and then vacated the Ninth Circuit’s judgment in Edwards.96

Despite the erosion of the controlling decision doctrine, judges of the courts of appeals have generally subscribed to the norm that circuit conflicts should be avoided when possible. Courts of appeals have frequently followed the decisions of other circuits (especially when those decisions all go the same way) even when a conflicting decision could reasonably be justified.97 At times, courts of appeals have addressed perceived circuit conflicts by asserting that there is no actual conflict, explaining a discrepancy in decisions by distinguishing the potentially conflicting case on its facts.98 Still, appellate judges often acknowledge that their decision has created an intercircuit conflict and in doing so typically explain their disagreement with the decisions of other circuits.99 In such cases judges may support their reasoning by reference to a dissenting opinion from the circuit with which they are in conflict.100 The issue of intercircuit conflict is also frequently raised in discussion among members of the court after an opinion is filed, as the existence of a conflict may motivate non-panel judges to request that the panel reconsider its decision or call for a rehearing of the case en banc.101

In the late 1960s, the Supreme Court’s capacity to handle a growing caseload once more became a matter of public concern. One consequence of an increase in denials of petitions for certiorari was that more circuit splits remained unresolved. In 1975, the Commission on Revision of the Federal Appellate System (better known as the Hruska Commission for its chair, Senator Roman Hruska of Nebraska) recommended the creation of a national court of appeals to help resolve circuit splits and ease demands on the Supreme Court. Hruska introduced bills based on the proposal in 1975 and 1976, but they failed to pass. In 1990, circuit splits were one of several problems examined by the Federal Courts Study Committee, a fifteen-member committee of judges, lawyers, and members of Congress appointed by the Chief Justice to study problems facing the federal courts. The committee did not revive the proposal for a national court of appeals but did recommend that the Federal Judicial Center conduct a study of circuit splits to determine how many “intolerable” conflicts were left unresolved by the Supreme Court. The committee was particularly concerned about four potential consequences of a lack of uniformity between the circuits: non-acquiescence by federal agencies, harm to multicircuit actors, forum shopping, and unfairness to litigants. The Federal Judicial Center contracted University of Pittsburgh law professor Arthur D. Hellman to undertake the study.102

In reporting the results of the study, Hellman observed that the Supreme Court “no longer stands alone as a source of precedential guidance; rather, it shares its lawmaking power with the courts of appeals for the thirteen judicial circuits.”103 Although he acknowledged that circuit splits were contradictory to the idea of national law, Hellman concluded that they “do not constitute a problem of serious magnitude in the federal judicial system.” His research revealed that the vast majority of circuit splits lacked the characteristics that would make them “intolerable” as defined by the Federal Courts Study Committee’s criteria.104

Hellman based his conclusion on several findings. One was that many conflicts simply disappeared without being resolved by the Supreme Court. Some were mooted by a change in a federal law or administrative regulations while in other instances a court of appeals overruled its own precedent that had caused the conflict. Other conflicts for which the Supreme Court initially denied certiorari were brought to the Supreme Court successfully by a subsequent petitioner. Many issues where one side of a circuit split clearly predominated ceased to generate litigation.105

Of issues that continued to generate litigation, many apparent conflicts did not result in divergent outcomes. Divergent precedent was sometimes not applied because a case was distinguishable on its facts, while in other instances the point of divergence was not outcome-determinative (for example, a differing standard of proof in two circuits may not produce different outcomes if the standard is satisfied in both cases). In many cases, Hellman found ambiguity as to whether differing legal rules had resulted in disparate treatment of litigants. If such ambiguity persisted, Hellman judged those conflicts to be “tolerable.” Noting that the resolution of cases was so often dependent on the particular facts at hand, Hellman concluded that “it would not be surprising if instances of disparate treatment attributable to unresolved intercircuit conflicts prove to be few and far between.”106 Moreover, some members of the legal community point to “percolation,” i.e., the development of an issue through multiple judicial decisions over time, as a potential benefit of circuit splits. When an issue has time to percolate, the reasoning goes, the Supreme Court has more thinking on which to draw before coming to an ultimate resolution.107

While the Supreme Court has generally prioritized resolving circuit splits, it can resolve only a small percentage of them, and not all legal scholars have agreed with Hellman that splits do not pose serious problems. In 2012, Professor Wayne Logan of Florida State University College of Law published an empirical study of then-existing Fourth Amendment circuit splits and reached “opposite conclusions” to those of Hellman and other scholars.108 Previous research, Logan asserted, had focused too much on statutory law and not enough on the constitutional rights of criminal defendants. This disparity resulted in part from one of the main criteria that had been used to address the tolerability of circuit splits: harm to “multicircuit actors” generally did not occur in the criminal context.109

Logan’s study identified thirty-seven existing circuit splits across three areas of Fourth Amendment jurisprudence—search and seizure practices, exclusionary rule reach and applicability, and appellate review. He highlighted what he considered to be several serious problems with the variation he discovered, including that the scope of “‘the right of the people to be secure in their persons, houses, papers, and effects’ is allowed to hinge on geographical happenstance, resulting in varied protection against infringements on individuals’ privacy and physical liberty.”110 To address these issues, he and other scholars recommended that Congress make it mandatory for the Supreme Court to accept certified questions of constitutional law on which the circuits have split.111 Such a remedy, Logan concluded, “would allow for the accelerated, authoritative resolution of splits . . . and allow the Court to fulfill its institutional promise to ensure constitutional uniformity.”112

• 83. 177 U.S. 485, 488 (1900).
• 84. Allan D. Vestal, “Relitigation by Federal Agencies: Conflict, Concurrence, and Synthesis of Judicial Policies,” North Carolina Law Review 55, no. 1 (September 1976), 141–160 (citing cases from each circuit regarding that circuit’s application of the controlling decision doctrine).
• 85. 92 F. 146, 147 (1st Cir. 1899), aff’d, 180 U.S. 383 (1901).
• 86. McCoach v. Philadelphia Trust, Safe Deposit & Ins. Co., 142 F. 120, 121 (3rd Cir. 1905), cert. denied, 205 U.S. 539 (1907).
• 87. Haberle Crystal Springs Brewing Co. v. Clarke, 30 F.2d 219, 222 (2nd Cir. 1929), rev’d, 280 U.S. 384 (1930).
• 88. Pilot Life Ins. Co. v. Ayers, 163 F.2d 860, 863 (4th Cir. 1947).
• 89. Reo Motors, Inc. v. Commissioner of Internal Revenue, 170 F.2d 1001, 1004 (6th Cir. 1948), aff’d, 388 U.S. 442 (1950).
• 90. Sassman, supra note 8, at 1428.
• 91. Pan American World Airways, Inc. v. CAB, 380 F.2d 770 (2nd Cir. 1967), aff’d by an equally divided Court sub nom. World Airways, Inc. v. Pan American World Airways, Inc., 391 U.S. 461 (1968).
• 92. Vestal, supra note 84, at 149–150.
• 93. Sassman, supra note 8, at 1438.
• 94. Whatley v. United States, 428 F.2d 806, 807 (5th Cir. 1970).
• 95. 13 F.3d 291 (9th Cir. 1993), vacated, 514 U.S. 1093 (1995).
• 96. 2 F.3d 1342 (5th Cir. 1993), aff’d, 514 U.S. 549 (1995).
• 97. Wasby, supra note 55, at 146-147.
• 98. Id. at 150.
• 99. Id. at 162.
• 100. Id. at 164.
• 101. Id. at. 179–180.
• 102. Arthur D. Hellman, “By Precedent Unbound: The Nature and Extent of Intercircuit Conflicts,” University of Pittsburgh Law Review 56, no. 4 (Summer 1995), 696, 794.
• 103. Id. at 699.
• 104. Id. at 796–797.
• 105. Id. at 779–785.
• 106. Id.  at 786–787, 791–794.
• 107. Id. at 700.
• 108. Wayne A. Logan, “Constitutional Cacophony: Federal Circuit Splits and the Fourth Amendment,” Vanderbilt Law Review 65, no. 5 (October 2012), 1139.
• 109. Id. at 1147.
• 110. Id. at 1151.
• 111. Id. at 1188–1189.
• 112. Id. at 1190.

The preceding sections have dealt mainly with the core function of the U.S. courts of appeals—deciding cases by applying, and sometimes extending, legal rules to particular circumstances. The appellate courts have another important role, however—to supervise the implementation of equitable (i.e., non-monetary) remedies. In many cases before the U.S. district courts, plaintiffs have sought injunctions to prohibit defendants from taking certain actions or decrees that defendants must take action to stop or repair harm for which they are responsible. District courts have sometimes crafted and enforced remedies to address unlawful practices. On some occasions, district courts have instructed defendants to submit proposed remedies for court approval. Cases involving equitable relief have come before the U.S. court of appeals when the plaintiffs or the defendants have appealed a district court’s remedial order. The courts of appeals have reviewed such orders to ensure that they are fair and equitable and that they comply with applicable circuit and Supreme Court precedent. In some instances, the appellate courts have ordered that remedial decrees be modified in specific ways.

The most significant historical context in which the U.S. courts of appeals have supervised the implementation of remedies arose from the Supreme Court’s mandate in Brown v. Board of Education II (1955) that states with segregated public schools desegregate them “with all deliberate speed.”113 The result of Brown II was a proliferation of lawsuits filed by African American families across the South (and later in some northern cities) seeking to have the federal courts order local school boards to desegregate the schools. District court orders in such cases were frequently subject to review in the courts of appeals. Until Green v. New Kent County School Board (1968),114 the Supreme Court declined to review most of these injunctive relief cases. Then-law professor and later Fourth Circuit judge J. Harvie Wilkinson III asserted in 1978, “Where during this time, one might ask, was the United States Supreme Court? And the answer, not much exaggerated, is that from 1955 to 1968 the Court abandoned the field of public school desegregation.”115 The courts of appeals in this period—in the southern Fourth and Fifth Circuits especially—were therefore the final arbiters of whether or not a desegregation remedy was appropriate. A trio of significant desegregation cases involving equitable relief from 1956–1957—Carson v. Warlick,116 Atkins v. School Board of Newport News,117 and Bush v. Orleans Parish School Board118—illustrates the point. The Supreme Court denied certiorari in all three cases, leaving the decisions of the Fourth and Fifth Circuits as the last word in each of them.

One appellate judge in particular made a substantial difference when it came to shaping desegregation remedies. As Wilkinson put it, Judge John Minor Wisdom of the Fifth Circuit “transformed the face of school desegregation law” between 1965 and 1966.119 Wisdom’s belief that school boards had an obligation to integrate their schools served as a counterpoint to the philosophy of Fourth Circuit judge John J. Parker, who believed that Brown II required only the removal of legal barriers to integration and not action by state and local officials to ensure that schools actually became racially integrated.120 The most significant case in which Wisdom brought his views to bear was U.S. v. Jefferson County Board of Education (1966).121 In deciding the federal government’s consolidated appeals of suits against seven different boards of education, Wisdom entered a far-ranging and detailed remedial decree outlining positive actions the defendants would be required to undertake. The order, attached as a seven-page appendix to the opinion, was a template for district judges to use in cases throughout the Fifth Circuit, then encompassing six southern states.122 As Wilkinson noted, Jefferson had a revolutionizing effect on the federal courts, turning them into “bold architects of school desegregation policy.”123 In 1968, in Green v. New Kent County School Board, the Supreme Court adopted Wisdom’s formulation of an affirmative duty on the part of school boards to achieve integration. Green firmly rejected the longstanding argument that “freedom of choice” was in and of itself sufficient to satisfy the mandate of Brown II. 124

The school desegregation cases helped to usher in institutional reform litigation as a new legal paradigm involving equitable remedies. Litigation involving state and local institutions alleged to be violating constitutional rights on a large scale created a new context in which the U.S. courts of appeals had supervisory authority over the implementation of such remedies. Law professor Owen Fiss noted in 1977:

Brown was accepted into the legal popular culture as legitimate, so much so that it began to function as an axiom. In the lower courts it yielded arguments of this nature: “This use of injunctive power is analogous to that of Brown, and therefore it is permissible.” As a consequence federal court access was assumed for administrative decrees reaching state prisons and mental hospitals, public housing projects, and local police departments.125

Prior to the 1960s, federal courts had enjoined public institutions from engaging in certain actions but generally had not prescribed actions they must take. Since the 1960s, in some institutional cases, a trial verdict for the plaintiffs resulted in the district judge issuing an injunction ordering the defendants to make specific structural changes to the institution to remedy the rights violations at issue.126 Increasingly over the past few decades, parties have resolved institutional reform cases with negotiated settlements—known as consent decrees—outlining the remedial steps the defendants would take.127 These cases have reached the courts of appeals in several ways. A plaintiff or defendant can appeal a judgment, a party to a consent decree can appeal a district court’s decision to revise or decline to revise the decree, or a non-party affected by a consent decree can—under certain circumstances—initiate a collateral attack on the decree.

Three cases—Inmates of Suffolk Prison v. Kearney (1978),128 Newman v. Alabama (1977),129 and New York State Assoc. for Retarded Children v. Carey (1983)130—illustrate different ways the courts of appeals have dealt with remedial orders and consent decrees in institutional litigation. In Kearney, the district court ordered Boston’s Charles Street Jail closed because of unacceptable conditions. The First Circuit affirmed the order but held that the closure date could be postponed if the city submitted an acceptable plan to renovate the jail or, if the trial court rejected that plan, the city provided a plan to build a new facility. The court of appeals outlined in detail the elements a new facility plan would have to include. Newman was another prison case in which Alabama’s conditions of incarceration were allegedly so harsh as to constitute cruel and unusual punishment. The district court issued an order mandating improvements and appointing a committee authorized to take “any action” to ensure the state’s compliance. The Fifth Circuit held that the district court had overstepped its bounds and that the committee would unduly interfere with prison operations. Instead, the appellate court ordered the appointment of a monitor for each prison that would be empowered solely to observe and report on conditions. Lastly, Carey involved a consent decree that residents of New York’s Willowbrook school for children with special needs be transferred to small group homes because of poor conditions at the school. State officials, having difficulty meeting this requirement, asked that the acceptable size of residences be increased. After the district court refused, the Second Circuit pointed out that the officials had presented substantial evidence that the change was necessary to accomplish the ultimate goal of the decree. Instead of reversing the district court, the court of appeals remanded the case for further consideration in light of new case law—setting out a standard of greater deference to the judgments of experts—that had not been available when the district court issued its denial.

While cases involving equitable relief do not constitute a large portion of the courts of appeals’ workload, their emergence in the mid-twentieth century represents another stage in the evolution of those courts. These cases require appellate judges to closely scrutinize district court decisions based on complicated factual records and expert opinions, and to make decisions about the appropriateness of (and sometimes assist in crafting) specific forms of relief.

• 113. 349 U.S. 294, 301 (1955).
• 114. 391 U.S. 430, 439 (1968).
• 115. J. Harvie Wilkinson III, “The Supreme Court and Southern School Desegregation, 1955–1970: A History and Analysis,” Virginia Law Review 64, no. 4 (May 1978), 468.
• 116. 238 F.2d 724 (4th Cir. 1956), cert. denied, 353 U.S. 910 (1957).
• 117. 246 F.2d 325 (4th Cir.), cert. denied, 355 U.S. 855 (1957).
• 118. 242 F.2d 156 (5th Cir.), cert. denied, 354 U.S. 921 (1957).
• 119. Wilkinson, supra note 115, at 541–542.
• 120. In Briggs v. Elliott, one of the cases that made up Brown, Parker wrote the opinion for the three-judge district court to which the case was remanded. In what became known as the “Briggs dictum,” Parker wrote that the Supreme Court had decided nothing more in Brown II than that “a state may not deny to any person on account of race the right to attend any school that it maintains. . . . The Constitution, in other words, does not require integration. It merely forbids discrimination.” 132 F. Supp. 776, 777 (E.D.S.C. 1955). In Singleton v. Jackson Municipal Separate School District, Wisdom criticized the Briggs dictum as an incorrect interpretation of the Brown decisions. Brown II, he wrote, “clearly imposes on public school authorities the duty to provide an integrated school system.” 348 F.2d 729, 730 n.5 (5th Cir. 1965).
• 121. 372 F.2d 836 (5th Cir. 1966), cert. denied, 389 U.S. 840 (1967).
• 122. 372 F.2d at 896–902.
• 123. Wilkinson, supra note 115, at 545.
• 124. 391 U.S. at 440.
• 125. Owen M. Fiss, “Dombrowski,” Yale Law Journal 86, no. 6 (May 1977), 1149.
• 126. Donald L. Horowitz, “Decreeing Organizational Change: Judicial Supervision of Public Institutions,” Duke Law Journal 1983, no. 6 (December 1983), 1266.
• 127. Emily Chiang, “Reviving the Declaratory Judgment: A New Path to Structural Reform,” Buffalo Law Review 63, no. 3 (May 2015), 567 (“The drive for injunctive relief no longer shapes the litigation, which is brought to provide the leverage needed to get defendants to the bargaining table. The goal of litigation is not an injunction, per se, but relief, typically procured in the form of negotiated change.”).
• 128. 573 F.2d 98 (1st Cir. 1978).
• 129. 559 F.2d 283, 288-290 (5th Cir. 1977), rev’d in part on other grounds sub nom. Alabama v. Pugh, 438 U.S. 781 (1978).
• 130. 706 F.2d 956, 969-972 (2nd Cir.), cert. denied, 464 U.S. 915 (1983).

The following is a small sample of landmark cases the U.S. courts of appeals have decided without Supreme Court review. While this list represents a miniscule fraction of the cases that could have been included, it is intended to illustrate the federal appellate courts’ frequent role as the last point of review for many cases of social and legal importance.

More than 800 judges have served on the U.S. courts of appeals since their inception in 1891. The FJC’s Biographical Directory of Article III Judges contains information about these judges as well as those who held Article III judgeships on other federal courts. While the roster of federal appellate judges appears small when one considers the courts’ 130-year history, it would be difficult to profile more than a handful here. Below is a small sample of those U.S. courts of appeals judges whom scholars have recognized as especially influential. Several others might have been included. These judges are remembered for important decisions they rendered, for moral stances they took, and for their intellect, legal reasoning, and judicial philosophies. Excluded from this sample are judges who also served on the Supreme Court of the United States, about whom information is abundant, as well as living judges.