Intermediate appellate courts situated just below the Supreme Court in the judicial hierarchy. They are the appellate workhorses, hearing the majority of appeals from the federal trial courts and federal regulatory commissions.

In the late 1700’s the Supreme Court was overburdened with cases, so Congress took steps to ease its burden. With the Judiciary Act of 1789Judiciary Act of 1789, Congress created two lower courts, the circuit courts of appeals and the federal district courts. Initially, Supreme Court justices presided over the courts of appeals, riding from city to city to hear cases and sitting on circuit court panels with one district court judge. Because of the strain this placed on the Supreme Court justices as well as a general dissatisfaction with the way these courts were functioning, Congress passed the Judiciary Act of 1801Judiciary Acts of 1801-1925, which eliminated the circuit ridingCircuit riding practice. However, a year later, the practice was restored; it lasted until the 1840’s, when it fell into disuse. The 1891 Judiciary Act assigned all appellate functions to the circuit courts of appeals, separating these courts from the old circuit courts, which retained jurisdiction over capital cases, tax cases, and some diversity cases until they were abolished at the end of 1911. In 1948 the circuit courts of appealsCircuit courts of appeals were renamed as the courts of appeal.

The twelve circuit courts of appeals serve specific geographical areas. The District of Columbia has its own circuit, which is somewhat different in nature from the others because of the district’s wealth of appeals from the decisions of administrative agencies and its lack of cases arising from the states.

The courts of appeals have mandatory jurisdiction, which means that, unlike the Supreme Court, they cannot choose the cases they hear but must hear every appeal that comes to them. This makes for a very large docket, and many legal experts worry about the judges’ increasing workload. Although the Supreme Court’s decisions are reviewable only by constitutional amendment in constitutional cases and congressional enactment in others, the courts of appeals are subject to overruling by the Supreme Court.

Because the Court tends to reverse the cases it takes, some experts think there is some incentive for the judges on these courts to decide in accordance with the clearest Supreme Court pronouncement on the subject in order to avoid reversal. However, others argue that because the Court very seldom reviews the decisions of these courts, any compliance on the part of the courts of appeals with the Court occurs for other reasons. Lower court judges may simply deem it their duty to comply with the Court because it holds moral authority over them. Lower court judges may comply with the Court because they perceive their role to be one of subordination and obedience or because it is easier to simply cite the Court precedent rather than developing their own sound legal reasoning. They may also be looking to maintain a good reputation so that they might one day be elevated to the Court or to another high post within the government, such as attorney general. Whatever the reason, increasingly, it appears that the decision making in these lower courts is in some ways dependent on the decision making in the Court. Therefore, to understand decision making in the courts of appeals, it is necessary to comprehend the relationship between the courts of appeals and the Supreme Court.

The courts of appeals hear many types of cases and disputes that the Supreme Court deems too inconsequential to consider, and therefore their rulings on those cases are relatively more final. The Court trusts that these lower courts will decide cases as it would if it were able to hear all disputes arising in the United States. However, this is not necessarily the case. Therefore, these lower courts exert some level of influence on the Court because they enact some policies basically on their own.

The courts of appeals are also monitored internally. Generally, the circuits split the workload among three-judge panels, the membership of which is under the control of the chief judge of the circuit. Sometimes, because of a shortage of judges, district court judges, senior or retired circuit and district court judges, or retired Supreme Court justices sit on these panels as well. However, in rare instances, the entire circuit is asked to sit on an appeal, reviewing the decision of one of the three-judge panels. This means that, in some circuits, there will be twenty-eight judges hearing oral arguments in a given case. These reviews are called en banc (full-court) hearings. The judges hear arguments, write opinions, and perform an error-correction function. However, on the lower courts, in both regular hearings and en banc hearings, separate opinions (concurrences and dissents) are far less frequent than they are on the Supreme Court. In addition, at least on some circuits, the assignment of the majority opinion is random, while on the Supreme Court, it usually is deliberate. This makes for some substantive differences between the two federal appellate courts that manifest themselves in differences in decision making.

• Carp, Robert A., and Ronald Stidham. The Federal Courts. 3d ed. Washington, D.C.: Congressional Quarterly,1998.
• Epstein, Lee, ed. Contemplating Courts. Washington, D.C.: Congressional Quarterly, 1995.
• Howard, J. Woodford, Jr. Courts of Appeals in the Federal Judicial System. Princeton, N.J.: Princeton University Press, 1981.

Appellate jurisdiction

Circuit courts of appeals

Concurring opinions

Dissents

Judiciary Act of 1789

Judiciary Acts of 1801-1925

Lower federal courts

Opinions, writing of

Workload