The View From LL2

A while back, I noted a recent series on the Volokh Conspiracy that proposed some radical reforms to the Supreme Court.  One of the proposed reforms involved reinstating “circuit-riding,” the practice of having Justices sit on a certain number of federal trials in District Courts throughout the country.  Today, I’d like to propose an even more radical approach:  abolishing Supreme Court justices and implementing a “reverse circuit-riding” system.

As we’ve heard more and more lately (particularly after Citizens United), the Supreme Court has increasingly been seen as a political institution controlled by the whims of nine individuals.  The incredible power held by those lucky enough to land in a seat has created a number of unfortunate problems:  absurdly confrontational confirmation hearings for Supreme Court justices, the perception that the government is (at least partially) controlled by an elitist enclave, etc.  So how do we avoid the problems that come with placing such strength in the hands of so few?

I propose eliminating all nine positions of “Supreme Court Justice.”  Justices Ginsburg, Alito, Roberts, and the rest of the gang would all head off into a happy retirement (or could take demotions to the Courts of Appeals).  But, because we do need to have a “highest court in the land,” we wouldn’t abolish the institution entirely.  Instead, we would decide Supreme Court cases by assembling panels of nine randomly selected Courts of Appeals judges.

Under the existing system, there are now 179 federal appellate judges.  Under my proposed system, those 179 folks would be responsible for hearing the cases that make up the Supreme Court docket, which amounts to about 70 cases on the merits each year.  Running the numbers, that amounts to each appellate judge hearing about 3.5 cases each year.  (That doesn’t include senior appellate judges.)  Three and a half cases would certainly seem manageable, and that individual caseload assumes that Congress would not put in a few more judge slots to account for the new responsibilities of appellate judges.

This system would be kind of like an entire court “sitting by designation.”  Cases would be assigned at random, though judges could not hear appeals from their own cases (or maybe even their own circuits).  Upon designation as a Justice in a particular case, the judges would have all the powers of the former Justices:  they would hear oral arguments, confer on a result, and draft an opinion reflecting the new law of the land.

But how would this system be any better?  First, it would disaggregate the power of the highest court.  Supreme Court confirmation hearings would cease to exist.  Second, opinions would reflect a broader consensus, if for no other reason than the number of people who would be involved in the decision-making process.  Third, the temporary Justices drafting Supreme Court opinions would have a better understanding of how their decisions would play in the courts below, because they would have to return home and carry them out.  In sitting by designation, Circuit court judges would also understand what their cases look like from above.

Consistency would of course be an issue, as one could imagine cases where a strange number of liberals or conservatives decides to swing the law in a crazy new direction.  I suppose one solution would be allowing for ”super-en banc,” that is, review by all the judges of the Courts of Appeals, but that seem unreasonable.  Frankly, the consistency problem is one of the biggest problems facing the Circuit-judge-only model. 

Another problem would be handling petitions for certiorari.  Would petitions go to all the Circuit judges, everywhere?  Or would a pre-assembled panel be randomly assigned to each cert. petition?  That would suddenly create a fair amount of extra work — and that burden could be insurmountable.

So, while an “all-Circuit-judge” system would be fun to see, perhaps a more modest (and reasonable) use of Circuit judges is more appropriate.  The more modest approach would allow Supreme Court justices to keep their jobs, but implement a system of “Justice, sitting by designation.”  Circuit-level voices would thus be heard in many cases, but the administration problems of the destruction of the Supreme Court could be avoided.  The statute could read as follows:

By a form of random selection determined by the Chief Justice, the Court shall select at least one member and no more than three members of the Courts of Appeals to sit upon the Court in each case wherein certiorari is granted.  These designees shall take the place of a Justice (or Justices) to be determined by random selection.  Such selections shall be in conformity with the rules or orders of the Court.

There are probably too many problems to count in these proposed reforms, but it’s still an interesting thought experiment.

-Michael