Institutional Adaptation

[I]nstitutions create elements of order and predictability. They fashion, enable and constrain political actors as they act within a logic of appropriate action. Institutions are carriers of identities and roles and they are markers of a polity’s character, history and visions. They provide bonds that tie citizens together in spite of the many things that divide them…

Most contemporary theories assume that the mix of rules, routines, norms, and identities that describe institutions change over time in response to historical experience. The changes are neither instantaneous nor reliably desirable in the sense of moving the system closer to some optimum. As a result, assumptions of historical efficiency cannot be sustained.  By “historical efficiency” we mean the idea that institutions become in some sense “better” adapted to their environments and quickly achieve a uniquely optimum solution to the problem of surviving and thriving.  The matching of institutions, behaviors and contexts takes time and have multiple, path-dependent equilibria. Adaptation is less automatic, less continuous, and less precise than assumed by standard equilibrium models and it does not necessarily improve efficiency and survival.

March & Olsen, “Elaborating the ‘New Institutionalism’” 2005

The Institutional Development of the Third Branch

US Federal Courts Map

The U.S. federal court system has evolved over time, often in quite haphazard fashion. Prior to the adoption of the federal Constitution of 1787, the United States operated as a confederal political order under the Articles of Confederation. Under this scheme, each of the former thirteen colonies jealously guarded their newly asserted prerogatives as sovereign states even as they banded together in “a firm league of friendship.” Policy among the several states was the product of consensus among the state governments through their delegations in Congress. All courts in the United States were courts of the individual states, exercising jurisdiction over state law matters and, problematically, over interstate matters as well.[1] The constitution of 1787, drafted for the purpose of achieving a more complete (or “perfect”) union, subordinated the states to a set of truly national institutions. Article I of the Constitution instituted a new national congress with expanded national law making powers and a more direct electoral link to the citizenry. Article II instituted the office of the presidency, a chief executive elected on a national basis. Article III included a new federal court system with a Supreme Court at its summit and any “such inferior Courts as the Congress may from time to time ordain and establish.”[2] Members of the Constitutional Convention discussed the specific contours of the federal court system but little and left the details to be determined by Congress.[3] One of the first major enactments of the first sitting Congress was the Judiciary Act of 1789, which created the basic framework of the federal judiciary.

The framework established by the Judiciary Act of 1789 is still somewhat recognizable today. The Act established the federal judiciary in three parts (See fig. 1):

Figure 1: Early Federal Court Structure

Federal Courts 1789-1891

The Supreme Court, consisting of a six-member panel, was to exercise appellate jurisdiction over circuit courts in civil law cases in which the amount in controversy exceeded $2000, as well as over “state supreme court decisions that invalidated federal statutes or treaties or that declared state statutes constitutional in the face of a claim to the contrary” (Wheeler & Harrison 2005, 4).[4] The two lower federal courts—district and circuit—were organized as follows. The act established 13 district courts to serve as federal trial courts, one for each of the eleven states that had ratified the Constitution, plus one each for Maine and Kentucky, which were still subsumed within Massachusetts and Virginia respectively. Each district, consisting of one judge, “served mainly as courts for admiralty cases, for forfeitures and penalties, for petty federal crimes, and for minor U.S. plaintiff cases” (Id.). The act also established three regional circuits—Eastern, Middle, and Southern—in which each of the district courts were contained (See fig. 3). Circuit courts were to meet only twice a year and were not assigned dedicated judgeships. Rather, when it met, a circuit court was to sit as a three-member panel consisting of two Supreme Court justices and the district judge of the district wherein the panel met. This meant, of course, that the justices would have to travel semiannually to an assigned circuit to perform circuit duties—a practice thought necessary by members of Congress to keep the judiciary in touch with the people and to avoid the expense of additional judicial salaries, but which was quite onerous to the justices themselves (See Marcus 1992, 16-22.).

Origins of the Federal Judiciary

The circuit courts were primarily trial courts with complementary jurisdiction to that of district courts, but also served as courts of appeals “for some of the larger civil and admiralty cases in the district courts” (Wheeler & Harrison 2005, 4). Thus, although Article III of the Constitution provided for federal court jurisdiction which could “extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority,” Congress, in the first Judiciary Act, circumscribed federal court jurisdiction in such a way that most federal questions could only be filed in state courts—a restriction meant to allay concerns that the federal courts would displace state courts.[5]

Figure 2: Federal Court Map, 1789[6]

Court Map 1789

Three things are important to note about the establishment of the federal judiciary that are crucial to understanding its subsequent institutional development. First, the convention delegates’ lack of “craftsmanship” (McDonald 1985, 253) with respect to the structure of the federal courts essentially left the structural and functional contours of the court unspecified. Second, the dearth of constitutional specification ensured that the courts would be dependent on the other branches for further development which undermined the status of the courts as a true third branch. The institutional development of the courts would follow a path dictated by other political actors in pursuit of various goals. Congress’ first act of institutional development demonstrates the point poignantly. Though initially conceived as a nationalizing institution, the first statutory enactment pertaining to the federal courts greatly circumscribed its jurisdiction, leaving most matters of federal law to be settled by state courts.[7] The reason lay partly in concerns about the expense of maintaining a fully vested system of federal courts over an extended geographic area—burdensome to a young nation still debt-laden and reeling from war—and partly to allay the suspicion of the states toward centralized power, as these political entities were still zealous for their hard-won independence (See Marcus 1992, 13-30.). As is often the case in institutional development, this early retreat toward localism exerts a powerful influence on the subsequent development of the courts long after the causes which gave rise to it pass into history.

Novus Ordo Seclorum

Third, the establishment of a system of national courts was an unprecedented foray into institutional design. The complexities of the task must have seemed daunting to convention delegates who had already set themselves the task of devising “a novus ordo seclorum” or “a new form of government unprecedented under the sun” (McDonald 1985, 287, 276, respectively). In so doing, the delegates “had rendered all previous political vocabulary obsolete as it pertained to the government of the United States” (Id. at 287). On the other hand, kicking the institution-building can down the road to the first Congress may have helped but little. Justin Crowe tells us that:

Article III gives Congress, an institution charged with a fair number of functions, the primary authority to build the federal judiciary but offers little guidance about which tools to use or what type of structure to erect. Building a judiciary of this sort—a complex one with multiple tiers of judges, varying grants of jurisdiction, and both trial and appellate functions—was an unprecedented task, one that few members of Congress understood intuitively (Crowe 2012, 81).

Therefore, the federal courts, as a complex system, was neither destined to take any distinct form nor was the path taken prescribed by some grand scheme. Rather, the history of the courts has been one of ongoing piecemeal reform in the crucible of American politics.

Building the Judiciary

The federal courts would eventually develop into a full-fledged third branch of American government, but would do so through the strategic action of political principals in pursuit of various goals. “In other words,” says Crowe, “politicians have engaged in institution building consciously and tactically, empowering the judiciary because they saw it in their—and often in their constituents’—interests to do so” (Id. at 274). These interests can be summarized under three broad headings: political goals (e.g., partisan entrenchment), policy goals (e.g., economic expansion, protection of minority rights), and performance goals (e.g., expanding court capacity to handle burgeoning caseloads) (See Crowe 2012, Ch. 8).

Most of the statutory changes to the federal court system over the next century involved an expansion in the number of circuits to keep pace with U.S. westward expansion, population growth, and the admission of new states to the Union. By the late 1860’s, there were nine circuits, each with dedicated judgeships, and nine justices on the Supreme Court, each of whom were only required to perform circuit duties biennially. The early 19th century expansion, though driven by the performance-oriented goal of growing the courts to keep pace with the nation it served, the particular path that growth would take was unwittingly set by the Judiciary Act of 1807. Crowe explains:

As the first instance in which a new circuit and a new justice were added simultaneously, the Judiciary Act of 1807 not only integrated the Western states into the circuit system and expanded the Supreme Court beyond its original 1789 size but also established a model for future institution building. This model had two crucial features. The first was the connection between the circuit system and the Supreme Court—or, more precisely, between the number of circuits and the number of Supreme Court justices. Such a connection was not unprecedented, but neither was it clearly established by constitutional text or political practice…The second feature, prompted by the explicit statement [in the Act] that the newly created vacancy on the court be filled by an individual that would reside in the seventh circuit, required the president to heed concerns about geographical representation when choosing new justices (Id. at 89-90).

These two connections not only served to reinforce regionalism in the national courts, but also tethered a performance-oriented goal such as court capacity to politically-oriented goals such as partisan entrenchment and state aggrandizement. For the six decades following the Judiciary Act of 1807, expansion of the federal courts to meet the demands of a growing nation would be constrained by political parties seeking to ensure that their president would be the one to appoint the new seat on the Supreme Court (as it expanded in line with additional circuits) and by states viewing circuit organizational boundaries as either furthering or diminishing their prestige as states and region (through representation on the Supreme Court).

During the Civil War Reconstruction period, court building was largely policy-oriented (See Crowe 2012, 132-170.). Congress enacted the Jurisdiction and Removal Act of 1875 which expanded circuit court jurisdiction to include “any suit of a civil nature, at law or in equity, now pending or hereafter brought in any State court…and arising under the Constitution or laws of the United States” (federal question jurisdiction), “or in which there shall be a controversy between citizens of different States” (diversity jurisdiction), provided that the amount in controversy exceeded $500 (Judiciary Act of 1875). This act expanded federal court jurisdiction to the full extent permitted by Article III—with explosive potential for federal court workload—but still permitted state courts to exercise concurrent jurisdiction, giving litigants a choice of venue in many instances. Wheeler and Harrison comment on the dual goals reflected in this shift:

It was adopted two days following the 1875 Civil Rights Act, and, as one observer has said, the two statutes together “may be seen as an ultimate expression of Republican reconstruction policies. One recognized a national obligation to confer and guarantee first-class citizenship to the freedman. The other marked an expression of the party’s nationalizing impulse and complementary concern for the national market” (Wheeler & Harrison 2005, 12).

Although hindered at the framing by anti-federalist fears of an over-bearing federal court superstructure, the eventual expansion of federal court jurisdiction appears to have been motivated in part by concerns about fair and impartial justice to litigants and the uniformity in federal law required to sustain a growing national market. On the latter score, one legislator justified the push for a strong national court system by insisting that “Capital…will not be risked in the perils of sectional bitterness, narrow prejudices, or local indifference to integrity and honor” (Id. at 18).

The first major structural change to the federal courts since the Judiciary Act of 1789 came in the form of the Circuit Court of Appeals Act of 1891. Congress, in response to ballooning federal caseloads and a multi-year backlog at the Supreme Court, created a new Court of Appeals within each regional circuit which could hear appeals directly from the district courts. The old circuit courts were stripped of the little appellate jurisdiction they had and, until officially abolished in 1911, served simply as separate federal trial courts.[8] The Act authorized a total of two judgeships for the appellate court of each circuit. Each court of appeals was to sit as a three-member panel consisting of the two circuit judges with a district judge from the circuit or with a Supreme Court justice. As Wheeler and Harrison explain,

The Act provided a right of direct Supreme Court review from the district courts in some categories of cases and from the circuit courts of appeals in others. It routed all other district court cases—notably criminal, diversity, admiralty, and revenue and patent cases—to the courts of appeals for final disposition. The appellate court could certify questions to the Supreme Court, or the Supreme Court could grant review by certiorari. The Act’s effect on the Supreme Court was immediate—filings decreased from 623 in 1890 to 379 in 1891 and 275 in 1892 (Id. at 18).

Thus, some cases were appealed directly from the two trial courts to the Supreme Court while others followed the now-familiar route from trial court to intermediate court of appeals to the Supreme Court.

Figure 3: Federal Courts Structure, 1891:

Federal Courts 1891-1911

The statutory changes to the federal judiciary over the twentieth century basically accomplished three things: they limited mandatory review by the Supreme Court, created specialty courts, and added additional circuits and judgeships to the federal system. These changes resulted from the need to cope with burgeoning caseloads from an expanding economy and growing population extending over a vast geographic area. Figure 4 depicts the growth in case volume in the circuits courts of appeals since their inception.

Figure 4: Caseload Growth Over Time

Federal Caseload Chart 1892-2012

Earlier regionalization persisted, however. Although the full scope of federal jurisdiction permitted under the Constitution was now available to the courts, and Supreme Court justices no longer presided over circuits,[9] the expectation that the circuits would each embody a distinct legal culture and maintain independence from sister circuits remained. Indeed, “the current structure treats the circuits as autonomous units within the intermediate tier. Moreover, the courts of appeals have developed doctrines such as the ‘law of the circuit’ that emphasize their regional focus” (Dragich 1996, 36-37). These appellate courts often render conflicting interpretations of federal law, which means different national law in effect in different regions of the country. While the Supreme Court prioritizes review of these intercircuit conflicts, it lacks the capacity and inclination to hear them all. Many scholars now believe the federal court system is poorly organized for the cultivation of a coherent and uniform body of national law (Carrington & Orchard 2010).

Figure 5: Federal Courts Structure, 1911:

Federal Courts 1911-1952



[1] But, as Crowe 2012, 25-26 notes: “Congress did establish one standing court—the Court of Appeals in Prize Cases, regarded by some as the first ‘federal’ court in America,” which existed for six years and whose rulings “some states simply refused to obey.”

[2] Const. Art. III

[3] McDonald 1985, 253: “The delegates devoted less time to forming the judiciary—and less attention to careful craftsmanship—than they have expended on the legislative and executive branches. In part the judiciary received minimal consideration because it was regarded as the least powerful and least active branch of government.” See also Crowe 2012, 26, 30: “Beyond a general consensus that the new republic would have a federal court system…there was not sustained deliberation about the structure of that system…In essence, the First Congress did in the Judiciary Act precisely what the Convention had declined to do in the Constitution—namely, invent a federal judicial system.”

[4] Not many cases in this period would have met the $2000 jurisdictional threshold.

[5] This restriction on federal jurisdiction was also meant to contain costs in the new federal courts. Marcus 1992, 16-22. Crowe (2012, 42) informs us that “much of the federal jurisdiction granted was, except in admiralty and maritime cases, concurrent with state jurisdiction…”

[6] Wheeler & Harrison 2005, 5.

[7] “Although a few observers believed that the Constitution itself vested federal jurisdiction and that Congress was powerless to alter it, most of those in Congress acted on the assumption that the Constitution merely set the outer limits of their power.” Marcus 1992, 16.

[8] Indeed, “the continued existence of the original circuit courts meant that the federal judiciary included ‘two courts of substantially concurrent jurisdiction, with no little uncertainty and confusion in determining the few instances in which their jurisdiction was not concurrent’” (Crowe 2012, 189) Ironically, “the work of these two overlapping trial courts—each with its own clerks and own records—was increasingly performed by one set of judges” (id.).

[9] Each Supreme Court Justice is still assigned as “circuit justice” over one or more circuits. Since 1911, when circuit riding was no longer required, circuit justice duties have primarily involved receiving and ruling on emergency motions from the circuit and ruling on applications for extensions of filing deadlines. See 28 USC 42 and Rule 22 of the Supreme Court’s Rules. In addition, 28 USC 43 stipulates that circuit justices “shall be competent to sit as judges of the court,” so technically circuit justices can exercise all powers of a circuit judge, though they rarely do in practice.