Op-Ed: Derek Muller: Pass the JUDGES Act to clear up courts’ backlog

Congress has not added judges to the federal judiciary since 1990, and our overworked judicial system is paying a price.

The federal judiciary is significantly short-staffed. Active civil cases have more than tripled in the last 20 years, from 18,000 in 2004 to nearly 82,000 in 2024. It can take more than two years for a typical civil case to get to trial. Criminal cases take longer to resolve, which leaves defendants to remain incarcerated as they await trial.

Congress has not added judges to the federal judiciary since 1990, and our overworked judicial system is paying a price. The judiciary desperately needs more judges. And President Joe Biden announced he would veto legislation that had unanimous backing in the Senate that would expand the federal judiciary.

Mr. Biden suggested exploring the use of “senior status” judges to enhance access to justice. One way to do that would be a one-time buyout for some of the most senior judges in the judiciary. Such an act would permit these judges to hear cases while opening up opportunities for new judicial appointments and easing the federal docket.

The Constitution guarantees that federal judges may hold their offices “during good behaviour,” effectively for life. Congress cannot diminish judges’ pay, a way to ensure judicial independence. If Congress wants to remove a judge, it can do so through the onerous process of impeachment.

In 1869, Congress first created a pension plan for judges as a way to incentivize judges to retire. Judges could retire from their positions while maintaining their salaries. In 1919, Congress created a new option to permit these judges to hear cases if they were willing to do so, but they had the discretion to hear fewer cases.

The rules have changed over the years, but judges may now assume “senior status” if they reach 65 years of age and meet the “Rule of 80.” If their age and years of service add up to 80, they may take senior status. Many take senior status shortly after reaching the Rule of 80. Others stay on and prefer active service in the judiciary.

There are around 100 federal district court and 50 appellate court judges who are currently eligible for senior status. They have not taken senior status for any number of reasons. But if even a fraction of them took senior status and continued to hear some cases, it would redound to the benefit of the federal judiciary. The president could nominate a new active judge who would have a full docket in civil and criminal cases. The senior judge would continue to hear some smaller number of cases. And each new pair of active judge and senior judge would alleviate the docket backlog.

One way to help ease the caseload is the Judicial Understaffing Delays Getting Emergencies Solved Act of 2024, or JUDGES Act. The bill passed the Senate unanimously and recently passed the House, and it would create 66 new judgeships over the next decade — a major and important improvement for access to justice in the United States. But Mr. Biden has said he would veto this legislation for specious reasons, complaining about “hastily adding judges” despite years-long work in the Senate to coordinate this effort.

Mr. Biden instead suggested that “the work of senior status judges” could enhance the judiciary. Congress can rightly encourage senior status-eligible judges to take senior status. There is a simple financial proposal that Congress could enact. Any senior status-eligible judge who takes senior status in the next twelve months is guaranteed an increase in their salaries as a part of their pension — perhaps a thirty percent or fifty percent increase. Investing in our judges can help increase access to justice as much as adding new judges to the courts.

That financial proposal would convince some of these judges to take senior status. Many senior judges would then continue to hear cases. And the president could appoint additional active judges to help ease the strain on the federal judiciary.

A financial proposal like this one likely could avoid a filibuster in the Senate. As, essentially, a spending provision, it could be enacted through budget reconciliation which only requires a simple majority in the Senate. It simply changes the amount that the existing retirement incentive costs because the underlying incentive for judges to retire already exists in the opportunity to take senior status at full pay.

Voluntary buyouts are well-known, whether for an automotive worker on the assembly line or for a college professor teaching at a university. They can be efficient mechanisms to help bring in additional personnel at the right time. And Congress should think about developing just such a buyout for the federal judiciary at this time.

Derek T. Muller is a Professor of Law at Notre Dame Law School.