The Reformation, Federal Judiciary Version
Can Rationality be brought to the Federal bench?
The confirmation of Amy Coney Barrett to the Supreme Court, creating a 6-3 majority of Republican-appointed Justices, left the Democrats facing the prospect of several decades of a conservative majority on the nation’s highest court. Various remedies the Democrats might apply to bring ideological balance back to the Court have been suggested but, even with Joe Biden as President, it will be necessary to wrest control of the Senate from the Republicans for the Democrats to have any chance at making changes to the Court’s composition. With the result of the recent elections giving the GOP a 50-48 margin, control now depends on the outcome of the run-off election for Georgia’s two Senators in January.
For discussion purposes, assume the Democrats prevail in those contests and the Senate at 50-50 would be in their control with Vice-President Kamala Harris as the tie-breaking vote. What actions to reform the Federal judiciary would be available to them? Note the Constitution does not specify the precise make-up of the Federal Judiciary, stating only that there be a Supreme Court and “such inferior Courts as the Congress may from time to time ordain and establish”. It requires only a statute passed by Congress and signed into law by the President to make changes to the Federal court system. It has, in fact, been done many times in the nation’s history.
The original court was established by the Judiciary Act of 1789. The Act stipulated that the Supreme Court be comprised of six Justices and created a system of circuit courts which had both trial court and appellate jurisdiction. The number of SCOTUS Justices changed seven times in the nation’s history, but has remained at nine since 1869. While some of the changes in the number of Justices were done for political purposes, the need for increasing the number of Justices was due in part to the growth of the nation geographically and in population. Justices served on both the Supreme Court and the circuit courts and were required to “ride the circuit” to hear appeals. The Judiciary Act of 1891 created what is now called the United States Courts of Appeals, divided into regional circuits and staffed by appointed appellate judges. In transferring appellate jurisdiction to these new courts, the Act discontinued the requirement that SCOTUS Justices ride the circuit. The original circuit courts continued to have trial jurisdiction until the Judicial Code of 1911 abolished them and transferred trial jurisdiction to the district courts. Like Supreme Court Justices, Federal Appellate judges are appointed for lifetime terms.
Based on the 2010 Census, this is the current make-up of the Federal Courts of Appeals:
District Courts are the trial courts of the Federal Judiciary. Currently, there is a total of 94 Districts for the 50 states and for US Territories with 678 District judges authorized by Congress. District judges serve 10-year terms.
As for reform ing the Supreme Court, we hear frequent references to “packing the court”, meaning increasing the number of Justices to the point Democratic-appointed Justices outnumber their Republican counterparts. Given the current 6-3 conservative majority, that means adding four more seats to the SCOTUS bench. This is possibly a double-edged sword since, once back in power, the Republicans could increase the number again. Where would this end? Making the Court a political football would not only provoke a political backlash, but damage it as an independent institution. Of course, in blocking Barack Obama’s nominee Merrick Garland in 2016, The Nation’s justice correspondent Elie Mystal asserts that Senate Majority Leader “Mitch McConnell has already changed the number of justices on the Supreme Court… If [he} can do it, then the Democrats can do it”. Mystal goes further, saying that expanding SCOTUS to 29 Justices would put it on par with the largest Federal Appeals Court, the 9th Circuit. And he makes the point that, with a greater number of Justices, replacing one due to a death or a retirement would be less politically fraught.
A completely different approach has been proposed by Jack Balkin, Yale law professor. It is based on the two types of cases for which the Court has jurisdiction. The first is known as original jurisdiction, cases involving disputes between states, or between a state and the Federal government. The second, comprising the large majority of cases that come before the Court, are appeals from Federal circuit courts. Balkin’s proposal goes beyond the simple addition of Justices:
(En banc means the entire Court renders a decision, rather than a smaller panel of the court.)
This system does several different things: Every two years, a new Justice is added to the appellate section of the Court, and the longest-serving appellate Justice is promoted to senior status. Junior and senior Justices sit en banc on cases of original jurisdiction. Since there are relatively few of these, senior Justices would also have other duties including “riding the circuit” and hearing cases in Federal Appeals courts. The other positive is that every President would be guaranteed two SCOTUS nominations per term. While it would increase the total number of Justices, the panel hearing the bulk of the Court’s cases would be the nine most recently-appointed Justices. Every two years, one of these would be move to senior status as they are replaced by a new appointment.
Other reforms that have been put forward and bear serious consideration include: Creating a Constitutional Court to hear cases involving interpretation of the Constitution. This would alleviate the case load on the Supreme Court by limiting it to matters of statute or regulation. The new Court would be filled with judges appointed from other Federal Courts who would serve for limited terms before returning to their original Court. Appointments made at staggered intervals would guarantee every President has several opportunities to appoint Justices.
A more esoteric reform would be to relieve the Supreme Court of the ability to choose the cases it will hear. Under the current system, SCOTUS considers the appeals presented to it and decides which to hear, typically 2% of the 7,000 to 8,000 petitions presented. Instead, the proposal gives the power to select the SCOTUS docket to a randomly-selected panel of appellate judges. This would act as a constraint on the Court’s recent penchant for steering specific cases to itself. When the Court has an ideological bent -as the current one does- it presents an opportunity for plaintiffs to pursue cases with the express intent of getting them before a favorable SCOTUS majority. A related proposal is for Congress to limit the jurisdiction of the Court, as it has done several times in the past, by imposing limits on the types of cases that can brought before it.
Some proposals are problematic. Term limits for Justices require a Constitutional Amendment, a heavy lift in these times of political division. As pointed out earlier, packing the Court would invite retaliation. As with most political actions, reform of the Judiciary is linked to what can be done gather popular support or be achieved in Congress.
I have my own, slightly radical proposal: Reduce the Supreme Court to its original six Justices while increasing the number of Appeals Court judges to a more substantial number, perhaps 260. Of the current SCOTUS Justices, the three most-recently appointed (Gorsuch, Kavanaugh, and Barrett) would be reassigned as Appeals Court judges. Initially, this reduced Court would continue to hear both cases of original jurisdiction and appellate jurisdiction. Applying an appointment system such as Balkin recommended, with each President making two appointments per term, would eventually create enough senior justices so original jurisdiction cases are heard before the entire Court en bank, while only the six most recently-appointed Justices continue to hear the appellate cases.
Having six Justices obviously increases the possibilities of 3-3 deadlocks. In and of itself, this is not an issue as undecided cases would revert to the respective Appeals Court decision. In order to break a tie, one side would need to persuade at least one other Justice to concur in its conclusion.
An alternative to Congress increasing the number of Appeals Court judges sitting on the current circuits would be to create more circuits. Considering that the Supreme Court accepts a very small percentage of the cases presented to it, it is the Appeals Courts which make the final decision in most Federal cases. Strengthening this level of the Federal Judiciary should ensure that only the most significant cases progress to the Supreme Court.
For those who may see no reason for reform, they should be reminded that the unwritten norms which have guided the actions of the Court and maintained its independence from the political branches, have eroded in this time of political divisiveness. In creating an independent Judicial Branch with judges appointed and confirmed by the other two branches, the Founders aimed to keep the institution untarnished by the politics of elections. As with most human endeavors, politics has intruded into the workings of our highest court, putting public trust in the institution at risk. The Federal Judiciary has been altered by Congress many times in our history, with the goal of ensuring that trust as well as promoting efficient functioning of the justice system. It is time to add reform to the Congressional docket.
Great read, we need to set aside some time to talk about all this craziness.