Two recent end-of-year reports suggest that justice systems in India and Pakistan remain completely overwhelmed. In Pakistan, the docket of the apex court has more than doubled in five years, to more than 40,000 pending cases this year. This is unfortunately reminiscent of the terrible backlogs that India also continues to experience in its courts.
Part of the problem has to do with human resources: one report notes that India has fewer than 20 judges per million people, as compared to 51 judges per million people in the UK, and 107 judges per million people in the US. But it is also not appropriate to blame the docket crisis solely on not having enough judges. The court system needs to think more creatively–and frankly, work harder and smarter–about resolving cases efficiently.
Previous entries on India’s docket crisis can be found here, here, here, and here.
Earlier this week, the Supreme Court denied certiorari in Gee v. Planned Parenthood, a case involving the ability of Medicare recipients to challenge a Louisiana law regulating payments to providers of certain services. While not specifically about abortion, the case certainly was determined in the shadow of the national abortion debate.
At least four Justices are needed for the Supreme Court to take up a case, but here only three of nine wanted to take it: Thomas, Alito, and Gorsuch. In an uncommon turn, Justice Thomas penned a dissent from the denial of certiorari, critiquing his colleagues for shirking their responsibility to decide cases that are or may be politically controversial.
Many people have weighed in on the Court’s decision and Justice Thomas’s dissent, but my colleague Lawrence Friedman has a particularly thoughtful and sensible take. Read the whole thing.
I have previously documented recent threats to the proper functioning of the court systems of India and Kenya. In India, appalling delays and overflowing dockets, combined with strife at the highest levels of the judiciary, have undermined with the effectiveness of the system and overall public confidence. Now, unfortunately, related news has been announced: the country’s lower courts face almost 6,000 judicial vacancies. Even for a country of more than one billion people, that number is shocking.
Kenya has faced a different set of challenges in recent months, after its Supreme Court invalidated a presidential election and was subjected to ongoing threats and attacks. This week’s news is of a less violent sort, but one that is perhaps even more problematic for the judiciary: more than 50,000 cases in the court system have been pending for a decade or more. And the total case backlog stands at more than 315,000.
These stories keenly illustrate the idea of judicial interdependence: courts must operate fairly and efficiently to earn public confidence, and they need adequate resources to be able to do so. When courts are properly resourced and properly run, they earn confidence and more resources–a virtuous circle. But when they are poorly run or under attack, they become inefficient and lose both resources and legitimacy–a vicious circle. The Kenyan and Indian judiciaries are locked into the vicious circle right now.
From Mark Brnovich and Ilya Shapiro in the Wall Street Journal (may require subscription). Key grafs:
The Ninth Circuit has an astonishing backlog, accounting for nearly a third of all pending federal appeals. It takes an average of 13 months to decide a case, the longest of any circuit and almost five months more than the national median. Judge Richard Tallman, a Clinton appointee on the Ninth Circuit who favors a split, told the Senate last summer that a legal brief in a pending appeal “is frequently years old and contains stale case law, by the time we can get to it.”
A second problem is the court’s unpredictability. Federal appeals courts hear cases in three-judge panels. But the Ninth Circuit has 29 judgeships, meaning there are more than 3,600 combinations of three. Judges can go years before hearing cases with some of their colleagues.
The composition of the Ninth Circuit is, of course, as much a political question as a legal and organizational one. But it’s worth considering–as Brnovich and Shapiro remind us–that the question is not purely political. The circuit’s sheer size has a dramatic impact on its efficiency, predictability, and workload. Splitting it may well be the right thing to do.
From Scottish Legal News:
Less than a month after a warning by Lord Thomas of Cwmgiedd, the Lord Chief Justice of England and Wales, that the English legal system was facing a ‘ticking time bomb’ in its failure to recruit judges, Scottish Legal News can reveal that Scotland too is facing such a crisis with top quality candidates spurning elevation to the bench.
Our enquiries among leading QCs found that most had no appetite to become judges citing hostile media coverage, lack of respect for the judiciary, relatively modest pay and pension packages, a backlog of distressing child sex abuse cases and concerns over judicial independence as well as the isolation and strenuous work load.
When incentives to enter a profession drop, the number of people seeking that profession drop as well.
The Luzerne County, Pennsylvania courts will not be scheduling criminal jury trials during the summer months, prompting concern from local officials about a potentially burgeoning prison population.
Scheduling criminal trials during the summer has become increasingly difficult because parties involved often have planned vacations, including attorneys, witnesses, experts who must provide testimony, and prospective jurors, Shucosky said.
Instead of being forced to continue proceedings due to scheduling conflicts, court officials opted to shift the focus and concentrate primarily on non-jury trials, guilty pleas and negotiated plea bargains during the two months, he said.
Court officials expect a large number of cases will be resolved through this effort, allowing some inmates to get out of prison or start serving sentences instead of awaiting adjudication. Many minor cases result in guilty pleas with a sentence of time already served, Shucosky noted.
El Paso County, Texas will convert one of its existing civil courts into a family court in 2019, in order to combat a significant backlog of family cases. The county is currently operating with 1.5 fewer full time family court judges than the number recommended by the state court administrator. It receives about 16,000 family court filings each year.
This is an excellent example of an interdependent court system engaging in proactive planning to combat resource deficiencies. The county knows that it is likely to receive many more family court cases than civil cases in the coming years, and cannot reasonably expect to receive more help in the form of full-time judges. The change both promotes efficient and effective administration of justice, and signals to the resource providers in the state legislature the need for more judgeships.