Throughout our country people are talking about the United States Supreme Court (SCOTUS).
There are few alive today who have experienced a more conservative Supreme Court.
And there are few objective observers who would deny that on today’s court that legal principle is often subordinated to fundamentalist religious views, libertarian biases against the Federal government, or hazy notions of “natural law”.
Many of the conversation about SCOTUS ask whether we ought to expand the number of justices (pejoratively called “court packing”) or impose some sort of term or age limits on the justices (which would probably require a Constitutional amendment that would be a practical impossibility in today’s political climate.)
But there is another matter.
It is an important matter. It is overlooked. It is a matter that is fully within the power of Congress (with the President’s signature). And it is a matter that requires no Constitutional amendment.
Our Supreme Court is overworked.
The growth of our government, our regulatory agencies, and the ever ramifying complexity of our lives, economy, and technology have increased the work demanded of the court.
SCOTUS does not have the resources to do a proper job.
This article argues that we ought to reshape our Supreme Court so that it can better deal with the workload.
This article proposes nothing radical. Rather the proposal here builds upon long established practices of US courts, most particularly the United States courts of appeal.
Our Supreme Court describes itself on its website:
Article III of the Constitution establishes the federal judiciary. Article III, Section I states that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Although the Constitution establishes the Supreme Court, it permits Congress to decide how to organize it. Congress first exercised this power in the Judiciary Act of 1789. This Act created a Supreme Court with six justices. It also established the lower federal court system.
Notice that it is Congress that decides how the Supreme Court shall be organized.
(It is also worthwhile noting that Congress both establishes and organizes the subordinate Federal courts. For instance see Do We Need Rubber Rooms for Federal Judges? Two Plans To Reduce The Long Tailed Impact of Trump Judicial Appointees.)
In 1925 Congress, at the instigation of the then presiding Chief Justice, enacted legislation to operate more efficiently by, among other things, giving SCOTUS control over much of its workload. For more background see Judiciary Act of 1925
What was done by Congress in 1925 can be revisited and changed to meet today’s conditions.
Under law created by Congress today’s SCOTUS has nine justices. Most of the significant acts of the court involve all nine justices. All nine listen to the arguments in each case, all nine read the briefs, all nine make (hopefully) independent decisions on the matter. (The work of writing opinions is often shared or delegated.)
Two broad classes of cases arrive on SCOTUS' doorstep: Cases that it must hear (such as cases between states) and cases that it has to choice to hear or not (such as most appeals from a decision of a lower Federal court.)
(There are concerns that the court’s use of that discretion to select cases has lead to creation of law via a “shadow docket”; that matter is important but is not discussed here.)
We could deal with the increasing workload by adding more justices.
This is not necessarily a good way to get more work done. The rather famous book The Mythical Man-Month: Essays on Software Engineering persuasively argues that blindly adding more people does not always increase an organization’s ability to perform work, and that sometimes such an increase actually decreases the organization’s productivity.
To get more work, and better quality work, out of our Supreme Court we need to do more than simply adding more justices.
(Our Federal US judicial system is divided into courts established per Article III of the US Constitution and other, often highly specialized or administrative courts. This note deals only with SCOTUS and the Article III Federal courts of appeal.)
Let’s look at a system that is used today in our Federal courts of appeal.
Our Federal courts of appeal handle a massive workload far larger than that of the Supreme Court. The courts of appeal do not have the power of SCOTUS to pick and chose the cases they will hear.
There are several of these courts. Most cover a “circuit”, a geographic region. Another court of appeals handles specialized cases. (See Federal Court Role and Structure
Wikipedia has background materials that show the geographic range of these courts and the number of justices on each.
That number of justices on these courts ranges from six to 29. All but one of these courts has more justices than SCOTUS.
So how do these appellate courts organize their workload?
Basically Federal courts of appeal operate with two layers, an intake layer that uses a three judge panel to hear and decide all valid incoming appeals, and a discretionary internal review layer that uses an “en banc” procedure with a larger panel of judges that may re-examine the initial three-judge decision.
In other words, our Federal Courts of appeal use a small panel of randomly selected judges to handle the incoming work. Then, after a decision has been reached, if a larger number of judges on the court chose to do so, an “en banc” panel of randomly selected judges may re-evaluate that initial decision.
This system has been in effect for a long time and it works.
I propose that we use a similar system to improve the workflow of our US Supreme Court.
I am going to make a specific proposal with specific numbers. However, far more important than the specific arithmetic of the number of justices is the general two-layer approach.
I propose that the United States Supreme Court be expanded to 15 justices.
Each incoming case, whether of original jurisdiction, by writ of certiorari, or otherwise, would be heard and decided by a panel of 7 justices, randomly selected for that case. In other words, each incoming case would be heard (and decided by) a different set of 7 randomly selected justices.
Seven is indeed fewer than the present nine. However, in the past SCOTUS has operated well with seven justices hearing the cases.
The random selection of the intake panels of judges would reduce the ability of parties to a case to play procedural and posturing games based on who they anticipate will hear their case.
While this will result in some “luck of the draw” decisions, that effect is mitigated by the ability of the court to take up the case for review by all or a significant portion of the full court.
En Banc Layer
The en bank layer is a discretionary rehearing of a case by a larger panel of randomly selected judges (or by a panel composed of all of the justices on the court.)
Today each of the Federal courts of appeal has adopted its own procedures to decide when to activate an en banc process for a particular case. There is no reason to change this.
This note takes no position on how the en banc panel should operate or whether the justices who heard the case at the intake layer should be part of the en banc panel.
The en banc panel should contain at least as many fresh justices as the original intake layer panel. In other words if the intake layer uses 7 justices then the en banc review panel should include at least 7 fresh justices in addition to any justices from the original intake panel.
This note does not attempt to choose among the various methods of forming en banc panels. Congress and the Supreme Court are well positioned to adopt a method with which they would be comfortable.
The overall number of justices proposed here is 15. That number allows for 7 justices on each intake layer panels to hear the incoming cases. That number allows for 7 (or more) fresh justices for any en banc proceeding.
Because much often depends on whether SCOTUS accepts certiorari or not, the en banc process should be available to reconsider acceptances or rejections by the intake panel. This could help reduce some of the current concern about the integrity of the court’s “Shadow Docket”.
Congress reformed SCOTUS' workflow in 1925. Congress ought to do so again.
Once enacted, the President and Congress will have the task of nominating and approving the needed additional justices. These new justices will have to sit in the wings for a while. During this interval SCOTUS will have time to develop a deployment plan and obtain necessary resources (such as office space and additional courtrooms.)
Once a sufficient number of new justices have been nominated and accepted by the US Senate SCOTUS can quickly put the new procedures into effect for all cases that have not yet been heard.
The salary for a Supreme Court justice is somewhat below $300,000 a year. If we account for clerks and support staff, office space, and other expenses, each additional justice will probably cost taxpayers less than $10 million a year. In other words, adding six new justices will cost less than one F35 jet fighter (of which the US is planing to buy 2,500.)
There will, of course, be additional expenses for offices and courtrooms. With our predilection for monumental architecture around the DC mall, we can anticipate that this will be the largest expense.
All-in-all the costs would be but a drop in the bucket of the Federal Budget.
The Call To Action
This is a matter that is squarely in Congress' bailiwick. As citizens we should urge our Congressional Representatives and Senators to consider these issues, to form committees to study the proposals and issues in detail and draft enabling legislation.
The issue of Supreme Court workload and efficiency is not a partisan issue. (Although we can expect that some will characterize it in that way for political advantage.)