Unpack the Court!

A different approach to reforming the Supreme Court

Jul 18, 2021

Last November I wrote about possible ways to reform the Federal courts: “I have my own, slightly radical proposal”, I wrote. “Reduce the Supreme Court to its original six Justices while increasing the number of Appeals Court judges to a more substantial number, perhaps 260.” To accomplish this downsizing immediately, “the three most-recently appointed [Justices] (Gorsuch, Kavanaugh, and Barrett) would be reassigned as Appeals Court judges”. Given the SCOTUS decisions this recent term (including the further weakening of the 1965 Voting Rights Act in the Brnovich v. Democratic National Committee case), I am revisiting this proposal.

Article III of the Constitution provided for the creation of the Federal judiciary, but did not specify the precise make-up of the Federal courts, 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 and stipulated that the Supreme Court be comprised of six Justices. It established a system of circuit courts that had both trial court and appellate jurisdiction. The number of Supreme Court Justices has been changed 7 times in the Court’s history but has remained at the current nine since 1869.

Let’s dig into the structure of the Federal court system to understand how the proposal would work as a reform. There are 3 levels of Federal courts- District Courts, Appellate Courts (also called Circuit Courts), and the Supreme Court. Only District Courts function as trial courts. Appeals of District Court decisions are made to the Circuit Courts. In turn, the decision of the Circuit Courts may be appealed to the Supreme Court. The Supreme Court hears two types of cases- the aforementioned appeals from the circuit courts and cases of original jurisdiction, which are cases involving disputes between states or between a state and the federal government. SCOTUS receives between 7,000 and 8,000 writs of certiorari (requests to have an appeal heard by the Court) each year; approximately 100 of these are granted. The Court itself chooses which cases it will hear*, meaning the potential exists for cases to be chosen based on ideological or political considerations.

Given this history, what I am arguing for is a return to the Supreme Court as it was originally constituted. Granted that a Court with an even number of Justices opens the possibility of 3-3 ties, requiring one side to persuade at least one other Justice to concur in its conclusion in order to render a decision. This is not an issue as undecided cases would revert to the respective Appeals Court decision. 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; increasing the number of circuit court judges would make these courts more effective in rendering decisions in an expedient manner. And the current practice of attorneys crafting cases with the express purpose of getting them before the Supreme Court in order to get a preferred decision on a law’s constitutionality would likely be less prevalent.

Another addition I would make to my original idea is to incorporate parts of a proposal from Jack Balkin, Yale law professor. He proposes an appointment system be created to allow each President to make two appointments per term, in their first and third years. With every President guaranteed two appointments per term, the political shenanigans like those engaged in by Mitch McConnell in the Garland and Coney Barrett cases would be useless. In practice, with every new Justice that is added, the longest-serving Justice would move to “senior” status. Initially, this reduced Court would continue to hear both cases of original jurisdiction and appellate jurisdiction. By applying an appointment system such as Balkin recommended, with each President making two appointments per term, eventually enough senior justices would be created so original jurisdiction cases are heard before the entire Court en banc, while only the six most recently-appointed Justices continue to hear the appellate cases.

Pursuing reform of the courts is necessary to rebuild public trust in the judicial system. The multi-decade project of conservative forces to remake the courts in an ideological manner, led by groups like The Federalist Society, has led to skepticism of the judiciary’s independence. When a decision is handed down by a Federal judge, we are too quick to inquire if she is a Republican or Democratic appointee. It is time Congress reaffirms the independence of the Federal Judiciary. The perception that the courts have become politicized is poisonous to democracy.

*4 of the 9 Justices must vote to hear a case.

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