"The Threes": Re-imagining supreme court decisionmaking

Vanderbilt Law Review

Volumn 61, Issue 6, 2008, Pages 1825-1860

  George, Tracey E ^a   Guthrie, Chris ^b  

^a Department of Law ^*

^b VANDERBILT UNIVERSITY   (United States)

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EID: 58149376276     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (160)

1. U.S. CONST, art. I, § 2 (providing that "[t]he House of Representatives shall be composed of members chosen every second year" and setting forth the qualifications for a Representative); id. § 3 (providing that "[t]he Senate of the United States shall be composed of two Senators from each state ⋯ for six years; and each Senator shall have one vote" and setting forth the qualifications for a Senator);
2. id. § 5 (setting "a majority of each [House]" as "a quorum to do business" and allowing that "a small number may adjourn from day to day, and may be authorized to compel the attendance of absent members").
3. Id. art. II, § 1 (detailing the method of election of and the qualifications for the President).
4. Id. art. III, § 1 (vesting "[t]he judicial Power of the United States ⋯ in one supreme Court," but making no provision as to qualifications or number of judges for this Court and offering no guidance as to the Court's internal organization or procedures).
5. Both Congress and the Court have changed the institutional design of the Court. For example, Congress gradually diminished the Court's mandatory docket to only a handful of cases, granting the Court discretion over its docket through the writ of certiorari. See infra note 9. But Congress was silent as to how the Justices should select cases for review.
6. See statutes cited infra note 9. The Justices have adopted their own internal practices including the Rule of Four, by which any four Justices may vote to grant review to a petition.
7. See, e.g., John Paul Stevens, The Life Span of a Judge-Made Rule, 58 N.Y.U. l. REV. 1, 10-14 & nn.48-61 (1983) (recounting the history of the Rule of Four and the Justices' process for reviewing writs of certiorari).
8. In addition to the adjustments in number discussed in the text, the qualifications and characteristics of the Justices have changed dramatically since the first appointments in 1789. Article III, for example, lists no qualifications and, as recently as 1941, a Justice, Robert Jackson, took the bench without an undergraduate or law degree. LEE EPSTEIN, JEFFREY A. SEGAL, HAROLD J. SPAETH & THOMAS G. WALKER, THE SUPREME COURT COMPENDIUM: DATA, DECISIONS, & DEVELOPMENTS tbl. 4-4 (4th ed. 2006) (listing each justice's educational background and legal training). The list of other significant changes is long and includes demographic characteristics (age, country of origin, race, religion, and sex) as well as professional ones (educational, judicial, and political experience). For biographical information on all Justices, see Federal Judicial Center, Federal Judges Biographical Database, www.fjc.gov/public/home.nsf/hisj (last visited Sept. 3, 2008).
9. See Judiciary Act of 1789, ch. 20, §1,1 Stat. 73, 73 (six Justices); Judiciary Act of 1807, ch. 16, § 5, 2 Stat. 420, 421 (seven); Judiciary Act of 1837, ch. 34, § 1, 5 Stat. 176, 176 (nine); Judiciary Act of 1863, ch. 100, § 1, 12 Stat. 794, 794 (ten); Judiciary Act of 1866, ch. 210, § 1, 14 Stat. 209, 209 (seven); Judiciary Act of 1869, ch. 22, § 1, 16 Stat. 44, 44 (nine). As part of major reorganization of the federal courts in 1801, Congress decreased the Court's size to five Justices (four Associate Justices and the Chief Justice). Judiciary Act of 1801, ch. 4, 2 Stat. 89. As the Court had six justices protected by life tenure at the time of the legislation, the smaller Court size would not take effect until the next Court vacancy; however, the Act was repealed in 1802 before a vacancy had occurred. Repeal of the Judiciary Act of 1801, 2 Stat. 132.
10. See generally RICHARD H. FALLON, DANIEL J. MELTZER & DAVID l. SHAPIRO, HART & WECHLSER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 28-41, 268-73, 1552-56 (5th ed. 2003) (describing the history of the Court's original and appellate jurisdiction).
11. See Circuit Courts of Appeals Act of 1891, ch. 517, § 6, 26 Stat. 826, 828 (requiring parties in certain cases that previously were appealed to the Court by right, to petition for the right to be heard); Judges' Bill of 1925, ch. 229, sec. 1, §§ 237, 240, 43 Stat. 936, 937-39 (extending certiorari to the vast majority of cases within the Court's appellate jurisdiction). For a detailed treatment of the history of discretion on the Supreme Court, see Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges' Bill, 100 colum. L. REV. 1643, 1649-1713 (2000).
12. See Margaret Meriwether Cordray & Richard Cordray, The Calendar of the Justices: How the Supreme Court's Timing Affects Its Decisionmaking, 36 ARIZ. ST. L.J. 183, 189-90 (2004) (describing the absence of a time restriction on oral arguments during the Marshall Court and how one case was argued for "a full ten days"). For a general discussion of the evolution of oral argument including the current thirty-minute limit,
13. see generally JOAN BISKUPIC & ELDER WITT, CONGRESSIONAL QUARTERLY'S GUIDE TO THE U.S. SUPREME COURT 792-97 (3d ed. 1997). The most recent innovation is the same-day release of recordings of important oral arguments.
14. See John Bacon, Gun Control Arguments to Be Released Day of Hearing, USA today, Mar. 5, 2008, at9A.
15. Congress has the authority to "make all Laws which shall be necessary and proper for carrying into Execution" the powers vested in it by the Constitution. U.S. CONST, art. I, § 8. This authority has been recognized as extending to setting the Supreme Court's procedural rules. See supra text accompanying notes 7-9. Rather than directing the Court to follow specific procedures, Congress typically has authorized the Court to take certain actions under specified circumstances.
16. See, e.g., supra note 5. For example, Congress has set the Court's quorum at six Justices. 28 U.S.C. § 1 (2000) ("The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum."). In direct appeals from district courts in which a quorum cannot be met, Congress gives the Chief Justice the discretion to assign the case to a special panel of the originating circuit court which will act as the "final and conclusive" court.
17. Id. § 2109. If the Chief Justice does not do so, the lower court decision stands.
18. Id. In this Essay, we assume that any action by Congress would follow this typical pattern of granting the Court the power to sit in three-judge panels under a scheme that it may devise.
19. Grutter v. Bollinger, 539 U.S. 306 (2003). Justice O'Connor wrote the majority opinion upholding the law school's affirmative action plan which was joined by Justices Stevens, Souter, Ginsburg, and Breyer. Chief Justice Rehnquist, and Justices Scalia, Kennedy, and Thomas dissented from the Court's holding.
20. Roe v. Wade, 410 U.S. 113 (1973). Justice Blackmun, joined by Chief Justice Burger, Justices Douglas, Brennan, Stewart, Marshall, and Powell, recognized a woman's right to an abortion. Justices White and Rehnquist dissented.
21. AN INCONVENIENT TRUTH (Paramount Classics 2006).
22. Bush v. Gore, 531 U.S. 98 (2000). Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas in a Per Curiam opinion upheld the 2000 Florida presidential election results, securing victory for George W. Bush. Justices Stevens, Souter, Ginsburg, and Breyer dissented.
23. If these cases had been heard by three-Justice panels rather than the Court as a whole, there is a 59.5% chance that Grutter would have come out the same way, a 91.7% chance that Roe would have come out the same way, and a 59.5% chance that Bush v. Gore would have come out the same way. For an explanation, see infra text accompanying notes 57-59.
24. See infra Part I.B.I.
25. See FED. R. APP. P. 35.
26. See infra Part I.B.2.
27. When state legislatures consider adopting a divisional or panel system, they generally do so in order to expand the docket of the court of last resort. For example, a 1927 advisory commission to the Virginia legislature recommended amending the constitution to allow two divisions of the state's high court, as well as an expansion in its size, to allow the court to hear more cases while continuing to produce "opinions that are worth the writing." REPORT OF THE COMMISSIONERS TO SUGGEST AMENDMENTS TO THE CONSTITUTION TO THE GENERAL ASSEMBLY OF VIRGINIA ix (1927), quoted in Susie M. Sharp, Supreme Courts Sitting in Divisions, 10 N.C. L. REV. 351, 363-64 (1931-1932) (providing a detailed explanation of states where panel sittings were authorized). Yet, the commission counseled the retention of one court "to promote uniformity of decision and keep each of the judges in touch with all of the decisions of the appellate court."
28. Id. at 364. The legislature adopted the recommendations.
29. Id. at 363.
30. For commentary on the ability of states to decide more cases and/or more quickly because of divisional sittings, see Emmett N. Parker, A Supreme Court With Two Divisions, 6 J. AM. JUDICATURE SOC'Y 177, 177-179 (1923) (commenting on Washington);
31. Sharp, supra note 20, at 361 (commenting on Colorado, Florida, Georgia, Iowa, Mississippi, and Oregon).
32. For a consideration of the relative weight of various case-related responsibilities, see Henry M. Hart, Jr., The Supreme Court 1958 Term-Foreword: The Time Chart of the Justices, 73 HARV. L. REV. 84, 94-95 (1959) (comparing time spent on opinion writing to time spent on other tasks).
33. For evidence of the collaborative nature of Supreme Court opinion writing, see, e.g., Pamela C. Corley, Bargaining and Accommodation on the United States Supreme Court, 90 JUDICATURE 157 (2007) (finding in the Blackmun Papers evidence of collaboration and negotiation among Justices over the content of opinions, consistent with studies of other Justices' papers); cf. DEBORAH J. BARROW & THOMAS G. WALKER, A COURT DIVIDED: THE FIFTH CIRCUIT COURT OF APPEALS AND THE POLITICS OF JUDICIAL REFORM 230-32 (1988) (describing how the growth of the Fifth Circuit complicated the en banc procedure, requiring lengthy discussions that did little to expand on an understanding or examination of the issues presented).
34. We intentionally say "could" rather than "would" for two reasons. First, the Court's docket is almost entirely plenary, and the Justices therefore would not be required to hear more cases than they currently hear. The dynamics of the certiorari process would influence the decision. Second, the Court may not be overburdened. Some scholars and Justices have argued that the Court is not capacity constrained. See, e.g., Tidewater Oil Co. v. United States, 409 U.S. 151, 174-78 (1972) (Douglas, J., dissenting) (claiming that "[w]e are vastly underworked" as reflected in "the vast leisure time we presently have");
35. William O. Douglas, The Supreme Court and Its Case Load, 45 CORNELL L.Q. 401 (1960) (arguing that he could decide more cases, and presumably still write books, if the Court granted review to more cases). Of course, far greater numbers have made a contrary assertion.
36. See, e.g., WARREN BURGER, YEAR- END REPORT ON THE JUDICIARY 6 (1984); Note, Of High Designs: A Compendium of Proposals to Reduce the Workload of the Supreme Court, 97 HARV. L. REV. 307, 307 n.5 (1983) (presenting statements from eight of the sitting Justices that the Court was overworked). As we discuss later, panels offer advantages beyond the possibility of resolving larger numbers of cases. That said, we believe expanded capacity is the greatest advantage of our proposal.
37. See ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16-23 (2d ed. 1986) (coining the phrase "counter-majoritarian difficulty," which has come to mean the dilemma posed by unelected judges overturning elected policymakers in a democratic regime);
38. see also MARK V. TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 175-76 (1999) (arguing that the Constitution should be taken away from judges and returned to the people to allow for a "populist constitutional law");
39. Steven G. Calabresi, The Congressional Roots of Judicial Activism, 20 J.L. & POL. 577, 588-90 (2004) (advocating for a contraction of Court jurisdiction in order to prevent judicial subrogation of the legislative function);
40. Edwin Meese III & Rhett DeHart, Reining in the Federal Judiciary, 80 JUDICATURE 178, 182 (1997) (arguing that Congress should regulate and/or restrict Court jurisdiction to curb judicial policymaking).
41. See, e.g., Barry Friedman, The History of the Countermajoritarian Difficulty, Part Three: The Lesson o/Lochner, 76 N.Y.U. L. REV. 1383, 1453-55 (2001) (concluding that attacks on the legal legitimacy of the Supreme Court's exercise of judicial review is tied closely to the social legitimacy of its decisions).
42. See FELIX FRANKFURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT 128 (1928).
43. We recognize, of course, that even if the Supreme Court were unnecessary as a practical matter, which it clearly is not, the Constitution requires its existence. See U.S. CONST, art. III, § 1 ("The judicial power of the United States, shall be vested in one supreme Court⋯.").
44. SUP. CT. R. 10(a). We of course are not asserting that the Supreme Court's primary function is as a court of error correction. A single institution, even with panels, could not correct error in the more than 30,000 cases decided on the merits by the federal courts of appeals and the many more issued by state high courts. See ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS 2007, tbl. S-l (2008), available at http://www.uscourts.gov/judbus2007/tables/S01Sep07.pdf (reporting that the U.S. Courts of Appeals terminated 31,717 cases on the merits for the one-year period ending September 2007);
45. NAT'L CTR. FOR STATE COURTS, COURT STATISTICS PROJECTS: STATE COURT CASELOAD STATISTICS, tbl. 17 (2007), available at http://www.ncsconline.org/D-Research/csp/2006-files/ StateCourtCaseloadTables-AppellateCourts.pdf (reporting the total number of dispositions by signed opinion by state for state courts of last resort and, where applicable, state intermediate appellate courts). Instead we are pointing out that the Court does have a responsibility to correct error that undermines the clarity, predictability, and uniformity of national law (as Rule 10 acknowledges);
46. cf. Stephen G. Breyer, Reflections on the Role of Appellate Courts: A View from the Supreme Court, 8 J. APP. PRAC & PROCESS 91, 92 (2006) (arguing that the Supreme Court is not a court of error correction per se).
47. For a discussion of the Supreme Court's responsibility to maintain uniformity in federal law, see, e.g., Thomas E. Baker & Douglas D. McFarland, The Need for a New National Court, 100 HARV. l. REV. 1400, 1405-07 (1987) (describing how the Court took on this responsibility as part of the expansion of the federal docket and the federal judicial system itself);
48. Breyer, supra note 29, at 92 ("[T]he Supreme Court is charged with providing a uniform rule of federal law in areas that require one.").
49. Supreme Court Rule 10 includes as a compelling reason to grant a petition that "a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter" or "that conflicts with a decision by a state court of last resort." SUP. CT. R. 10(a). The Supreme Court appears sensitive to Rule 10's position as reflected in the fact that it is far more likely to grant a petition if the case involves a direct conflict between circuits. See Tracey E. George & Michael E. Solimine, Supreme Court Monitoring of the United States Courts of Appeals En Banc, 9 SUP. CR. ECON. REV. 171, 195 tbl.4 (2001) (reporting the results from a multivariate analysis of the Supreme Court's decision to grant certiorari). For the purposes of that study, George and Solimine defined a circuit split as a case in which any judge on a panel which decided the case below "explicitly stated [in a majority, concurring, or dissenting opinion] that another circuit or circuits had reached a different decision in analogous circumstances," and moreover, the judge described the conflict as direct rather than a matter of mere inconsistency.
50. Id. at 188.
51. See, e.g., Tracey E. George & Albert H. Yoon, Chief Judges: The Limits of Attitudinal Theory and Possible Paradox of Managerial Judging, 61 VAND. L. REV. 1, 48-49 (2008) (detailing the growth in the lower court docket).
52. See George & Solimine, supra note 31, at 195 tbl.4 (reporting, based on a random sample of en banc and panel decisions in circuit courts, that 14 out of 71 en banc cases and 34 out of 213 panel cases involved a direct circuit conflict); Stefanie A. Lindquist &
53. David E. Klein, The Influence of Jurisprudential Considerations on Supreme Court Decisionmaking: A Study of Conflict Cases, 40 LAW & SOC'Y REV. 135, 142 (2006) (estimating, as part of a study of the Supreme Court's treatment of cases involving splits, that at least 16% of circuit cases from 1985-1995 included a split);
54. see also A. Benjamin Spencer, Split Circuits Blog, http://splitcircu.its.blogspot.com (last visited Sept. 1, 2008) ("tracking developments concerning splits among the federal circuit courts" and demonstrating, in a uniquely modern way, the size of the problem).
55. See HAROLD J. SPAETH, THE ORIGINAL UNITED STATES SUPREME COURT JUDICIAL DATABASE, 1953-2005 TERMS (2006) [hereinafter SPAETH DATABASE]. The database begins with the first term of the Warren Court and is continuously updated with a lag to allow for collecting data.
56. See generally Harold J. Spaeth & Jeffrey A. Segal, The U.S. Supreme Court Data Base: Providing New Insights into the Court, 83 JUDICATURE 228 (2000) (offering a highly accessible explanation of and guide to the database as part of an issue devoted to publicly available data on the courts). The University of South Carolina Judicial Research Initiative maintains a website from which researchers may download datasets of court cases including the Spaeth Database. Judicial Research Initiative, U.S. Supreme Court Databases, http://www.cas.sc.edu/poli/juri/sctdata.htm (last visited on September 18, 2008).
57. See George & Solimine, supra note 31, at 193 tbl.2 (finding that the Court granted certiorari to less than half of the petitions in their study that demonstrated a direct conflict between circuits and further finding that this included en banc cases which presumably involve issues of greater importance).
58. See PAUL D. CARRINGTON, DANIEL J. MEADOR & MAURICE ROSENBERG, JUSTICE ON APPEAL (1976) (describing "[t]he institutional functions of appellate review" as "declaring and harmonizing general principles");
59. Baker & McFarland, supra note 30, at 1407-08 (explaining how "discrepancies created by (lack of Supreme Court action] attract strategic and inefficient litigation");
60. Arthur D. Hellman, Jumboism and Jurisprudence: The Theory and Practice of Precedent in the Large Appellate Court, 56 U. CHI. L. REV. 541, 544 (1989) (explaining why "a high degree of consistency and predictability in the law is necessary to the successful operation of the legal system").
61. See Hearings on S. 704 Before the Subcomm. on Courts of the S. Comm. on the Judiciary, 99th Cong. 1st Sess. (1985) (hearings before the Senate Judiciary Committee on the creation of an Intercircuit Panel, suggested by Chief Justice Burger); COMM'N ON REVISION OF THE FED. COURT APPELLATE SYS., STRUCTURE AND INTERNAL PROCEDURES, RECOMMENDATIONS FOR CHANGE: A PRELIMINARY REPORT 3-4, 8 (1975) (noting that Congress was considering restricting access to the federal courts in order to alleviate stress on the judicial system and proposing in the alternative the creation of a new National Court of Appeals to resolve intercircuit conflicts, subject to the review of the Supreme Court). For comparative evaluations of various proposals,
62. see, e.g., FED. JUDICIAL CTR., STRUCTURAL AND OTHER ALTERNATIVES FOR THE FEDERAL COURTS OF APPEALS: REPORT TO THE UNITED STATES CONGRESS AND THE JUDICIAL CONFERENCE OF THE UNITED STATES 75-83 (1993) (examining proposals to create a national court of appeals or an intercircuit tribunal);
63. Thomas e. Baker, A Generation Spent Studying the United States Courts of Appeals: A Chronology, 34 U.C. DAVIS L. REV. 395 (2000) (collecting and synthesizing prior proposals to address intercircuit conflict).
64. See Hartnett, supra note 9 at 1685, 1698 (recounting the testimony of Justices Taft and Van Devanter to Congress on how the expansion of the Court's discretion over its jurisdiction would increase uniformity of the law).
65. See Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633, 641 (1995) (arguing that in a common-law system the reasons given for a court's decision for or against a particular party matter more than the decision itself).
66. THE FEDERALIST NO. 51 (James Madison); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.").
67. THE FEDERALIST NO. 78 (Alexander Hamilton).
68. See The Library of Congress, THOMAS, http://thomas.loc.gov/bbs/ dll0/dll01aws.html (noting that public laws "make up most of the laws passed by Congress" and providing access to the public laws passed by the 107th through 110th Congress).
69. See U.S. Government Printing Office, GPO Access, The Federal Register: Mainpage, http://www.gpoaccess.gov/fr/index.html (last visited Sept. 18, 2008). This site is a searchable database of the Federal Register that includes an index from which we calculated the total number of pages published annually from 2001 through August 2008.
70. See The Library of Congress, THOMAS, http://thomas.loc.gov/home/ treaties/treaties.html (containing ninety-six treaties that were submitted to the Senate during the 107th through 110th Congress).
71. The National Archives, The Federal Register: Administration of George W. Bush (2001-Present), http://www.archives.gov/federal-register/executive-orders/ wbush.html.
72. Cf. Erwin N. Griswold, Rationing Justice-The Supreme Court's Caseload and What the Court Does Not Do, 60 CORNELL L. REV. 335, 343-44 (1975) (describing, based on his prior experience as Solicitor General, how the Court effectively defers to that office in deciding which government petitions to review).
73. 28 U.S.C. § 1257(a) (2000) (granting the Supreme Court the power to review state high court decisions on federal law).
74. From 1953 through 2006, the Supreme Court decided 1388 cases appealed from state and territorial courts and reversed more than 70% of those lower courts' rulings. See spaeth database, supra note 34 (providing the raw data from which we draw these figures).
75. The Court is more likely to use the capacity in order to review decisions with which it disagrees. See Charles M. Cameron, Jeffrey A. Segal & Donald Songer, Strategic Auditing in a Political Hierarchy: An Informational Model of the Supreme Court's Certiorari Decisions, 94 AM. POL. SCI. REV. 1O1, 102-14 (2000) (developing a model of Supreme Court auditing of lower courts based on likely agreement with lower court decisions and finding empirical support for the conclusion that the Court grants certiorari to review decisions with which it disagrees).
76. See Donald Songer, Jeffrey A. Segal & Charles M. Cameron, The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions, 38 AM. J. POL. SCI. 673, 681-89 (1994) (finding that courts of appeals are responsive to Supreme Court doctrinal changes but will look for opportunities to further their own preferences);
77. see also Jeffrey R. Lax, Certiorari and Compliance in the Judicial Hierarchy: Discretion, Reputation and the Rule of Four, 15 J. THEORETICAL POL. 61, 62-67 (2003) (offering a formal model of Supreme Court auditing of lower courts).
78. See James R. Rogers, Information and Judicial Review: A Signaling Game of Legislative-Judicial Interaction, 45 AM. J. POL. SCI. 84, 84, 97-98 (2001) (concluding, based on a formal model of court-legislature interaction, that "[t]he possibility of informative judicial review affects the quantity and informational quality of legislation enacted by the Legislature relative to legislation that would be enacted in the absence of judicial review");
79. see also Andrew D. Martin, Congressional Decision Making and the Separation of Powers, 95 AM. POL. SCI. REV. 361, 361, 370, 373-76 (2001) (finding, based on empirical evidence, that the Supreme Court "profoundly constrain[s] House members and senators when casting roll call votes").
80. See, e.g., Hart, supra note 22, at 123, 124 (arguing that the real difficulty posed by the Court's workload is that the Justices lack sufficient time for reflection and consideration of the cases presented, and attributing the politicization of the Court to this problem).
81. See Lewis A. Kornhauser & Lawrence G. Sager, The One and the Many: Adjudication in Collegial Courts, 81 CAL. L. REV. 1, 4-5 (1993) (defining collegial enterprises as "team enterprises in that each participant must consider and respond to her colleagues as she performs her tasks," and noting that "the objective of collegial enterprise often reaches beyond accuracy to other measures of quality").
82. Unfortunately, there is no reliable way to revise the estimates to include strategic votes because of the number of unknowns: in which cases was a Justice's vote in fact affected, and how would other majority Justices have made the same concessions if on a panel with that Justice.
83. See SPAETH DATABASE, supra note 34 (presenting the data from which we calculate these numbers).
84. The Court decided 3,042 cases with none or one dissent, or 49.6% of all decisions. Id.
85. We assume random assignment of Justices to panels, meaning that each possible panel has an equal likelihood of being assigned to a given case. We further assume that panel membership rotates, meaning Justices do not serve on a fixed three-Justice panel for the entire term.
86. Detailed explanations of these and other calculations are available in the Appendix. We note the probability of different outcomes if one or more Justices did not participate, and thus were not available for the panel. We also delineate the probability of different outcomes for other odd-number panel sizes.
87. We are only calculating the possibility of a different outcome. We recognize that the opinion-and perhaps even the reasons given for the outcome-may change even if the treatment of the lower court is the same. We weigh the significance of this possibility when we consider the benefit resulting from more offerings of reasons (i.e., more decisions). See supra note 58.
88. This result is consistent across Chief Justices as well. The probability of the same outcome for the Warren Court is 88.9%, for the Burger Court, 86.9%, for the Rehnquist Court, 86.6%, and for the Roberts Court (through June 2007), 88.2%. High-consensus cases (i.e., no dissent or one dissent) comprised 51.7% of the Warren Court's caseload, 48.1% of the Burger Court's, 49.2% of the Rehnquist Court's, and 58.5% of the Roberts Court's. See SPAETH DATABASE, supra note 34 (presenting the data from which we calculate these numbers).
89. The foregoing results are not uniformly true across all issue areas because some areas are more likely than others to produce dissent. Still, even in highly divisive areas, such as criminal procedure or the First Amendment, three-Justice panels would have produced the same outcome in more than eight out of ten Supreme Court cases.
90. The composition of the Court's docket might have changed under a panel system. To the extent Justices consider the likely outcome if they vote to grant certiorari, the panel system changes a Justice's estimates. For a discussion of the role of such strategic calculations in the certiorari process, see generally Jeffrey A. Segal & Robert Boucher, Supreme Court Justices as Strategic Decision Makers: Aggressive Grants and Defensive Denials on the Vinson Court, 57 J. POL. 824 (1995).
91. Justices' papers reveal instances of a Justice threatening to defect from the majority if the opinion is not revised to accommodate her position. See generally LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE (1998);
92. FORREST MALTZMAN, JAMES F. SPRIGGS II & PAUL J. WAHLBECK, CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME (2000). In such a case, the reported vote does not reflect what the vote might have been if the composition of the group were different. Instead, it overstates the level of consensus.
93. An alternative explanation is institutional: a Justice changes her vote to protect the Court's legitimacy or status. As to non-legal, institutional goals, Brown v. Board of Education, 347 U.S. 483 (1954), is the case cited as an example of such negotiation. But, it also is generally the only case cited. We all recognize how unusual that case is. There are many other cases that put the Court in the middle of politically divisive and emotionally charged issues-including Bush v. Gore, 531 U.S. 98 (2000)-yet the Court majority was minimum-winning.
94. Negotiation and accommodation generally take place among Justices who favor the same outcome; thus, strategic voting (as opposed to signing) is a relatively uncommon, though important, phenomenon. See generally JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 86-110 (2002) (finding that a sincere voting model captures the large majority of Justices' votes).
95. Most of the research in this area has relied on the papers of the Justices to study the negotiation and accommodation among the Justices. In addition, the papers often reveal the development of the collection's author's views. Interestingly, scholars have reported limited instances of a Justice's own position on outcome changing between conference and final vote. See generally EPSTEIN & kNIGHT, supra note 63;
96. MALTZMAN, SPRIGGS & WAHLBECK, supra note 63, at 132-37 ("[A JJustice will be more likely to agree with the opinion, and thus join it, if he or she voted with the majority coalition at conference.").
97. In fact, under the median voter theory, the opinion will match the preferences of the Court median, rather than the majority median. Thus, changing sides should not affect the content of the opinion. Scholars have begun to question this relatively long-standing position, but generally they do so by treating a Justice's decision on which way to vote (i.e., to affirm or reverse) from her decision as to the reasons to give for that vote. See Cliff Carrubba, Barry Friedman, Andrew Martin & Georg Vanberg, Does the Median Justice Control the Content of Supreme Court Opinions? 1 (2007) (unpublished paper, on file with the Vanderbilt Law Review), available at http://adm.wustl.edu/media/working/mjtl-5.pdf ("[I]f [Jjustices do not switch their vote on the outcome in exchange for concessions in rationale, the median [J]ustice typically does not determine the content of Supreme Court decisions." (alteration in original)).
98. See Lee Epstein & Jeff Segal, Measuring Issue Salience, 44 AM. J. POL. SCI. 66, 72-77 (2000) (describing their methodology, and subjecting it to extensive validity tests).
99. They found that 914 of the 6114 cases in their study were salient, or an average of about 15 cases per term from October Term 1946 to 1995. Id. Epstein and Segal sought to create an issue salience measure that could be used across institutions and measured contemporary, rather than retrospective, relevance.
100. Id. at 79, 80 fig.3 (reporting that 10.4% of unanimous cases, 13.5% of one-dissent cases, 17.2% cases with two or three dissents, and 22.1% of one-vote margin cases were the lead subject of a front-page N. Y. Times story the day after the decision was announced). Another widely cited and respected list of important rulings was originally created by Elder Witt based on scholarly evaluation of the cases. See BLSKUPIC & WOT, supra note 10 at 1114-59. In the civil rights and liberties dominated Congressional Quarterly list, "major" cases were more likely to be decided with two or three dissents than were cases not on the list.
101. See, e.g., MARVIN E. SHAW, GROUP
102. John M. Levine & Richard L. Moreland, Small Groups, in 2 THE HANDBOOK OF SOCIAL PSYCHOLOGY 415, 422 (Daniel t. Gilbert, Susan t. Fiske & Gardner Lindzey eds., 1998) ("As a group grows larger, it has access to more resources (e.g., the time, energy, and exercise of its members), so its performance ought to improve.");
103. Richard l. Moreland, John M. Levine & Melissa L. Wingert, Creating the Ideal Group: Composition Effects at Work, in UNDERSTANDING SMALL GROUP BEHAVIOR: SMALL GROUP PROCESSES AND INTERPERSONAL RELATIONS 11, 13 (E.H. Witte & J.H. Davis eds., 1996) (observing that larger groups "often perform better because they have access to more resources, including time, energy, money, and expertise").
104. Based on a meta-analysis of jury size studies, Michael Saks and Mollie Weighner Marti found that "[t]welve-person juries spend more time in deliberation" than six-person juries. Michael J. Saks & Mollie Weighner Marti, A Meta-Analysis of the Effects of Jury Size, 21 LAW & HUM. BEHAV. 451, 465 (1997).
105. DONALD C. PENNINGTON, THE SOCIAL PSYCHOLOGY OF BEHAVIOUR IN SMALL GROUPS 79 (2002).
106. William M. Kephart, A Quantitative Analysis of Intragroup Relations, 55 AM J. SOC. 544, 544-49 (1950) (illustrating this proposition mathematically).
107. Id. at 548.
108. Id.
109. See, e.g., Levine & Moreland, supra note 71, at 422 (observing that "in larger groups, coordination losses are also more likely");
110. Moreland, Levine & Wingert, supra note 71, at 13 (observing that larger groups "often experience coordination problems that can interfere with their performance").
111. See, e.g., Axel Franzen, Group Size Effects in Social Dilemmas: A Review of the Experimental Literature and Some New Results for One-Shot N-PD Games, in SOCIAL DILEMMAS AND COOPERATION 117, 117, 132 (Ulrich Schulz, Wulf Albers & Ulrich Mueller eds., 1994) (observing that it is "common knowledge in the social sciences that large groups show less cooperative behavior than small groups," but finding, based on prisoner's dilemma experiments, that this is true in repeat play games only);
112. Moreland, Levine & Wingert, supra note 71, at 14 ("There is more conflict among the members of larger groups, who are less likely to cooperate with one another." (citations omitted)).
113. See, e.g., PENNINGTON, supra note 73, at 79 ("Larger groups, of say seven or more, do have a tendency to break down into smaller subgroups.").
114. See, e.g, id. at 56-68 (observing that social loafing is more likely to be a problem as group size increases);
115. Steven J. Karau & Kipling D. Williams, Social Loafing: A Meta-Analytic Review and Theoretical Integration, 65 J. PERS. & SOC. PSYCHOL. 681, 700-02 (1993) (finding, using meta-analytic techniques, a positive correlation between group size and social loafing and noting various factors that can dampen it);
116. Levine & Moreland, supra note 71, at 422 (noting that "motivation losses due to social loafing, free riding, and efforts to avoid exploitation" are more likely in larger groups).
117. See, e.g., PENNINGTON, supra note 73, at 79 ("Research shows that smaller groups, of between three and eight, are faster at completing tasks than are larger groups of 12 or more members.").
118. See id.
119. See, e.g., SHAW, supra note 71, at 173-74 (identifying the resource advantages of large groups and the process advantages of small groups and concluding that "whether the [group] performance will become more or less effective as size increases will depend upon the degree to which added resources can be utilized and the degree to which group processes exert negative influence on group output");
120. Glenn E. Littlepage, Effects of Group Size and Task Characteristics on Group Performance: A Test of Steiner's Model, 17 PERS. & SOC. PSYCHOL. BULL. 449, 449 (1991) ("The relationship between group size and group performance shows substantial variability across studies.").
121. To be sure, we do not want to overstate the import of this research for the question we are exploring here. As noted above, none of this research is based on Supreme Court Justices or judges generally, nor does any of it ask experimental subjects to perform the tasks that appellate judges perform-i.e., review a record, digest legal briefs, preside over oral arguments, analyze and synthesize the information, reach a decision, and produce an opinion. Moreover, this research compares groups of varying sizes, often very small groups to quite large groups; only occasionally do researchers compare three-person groups to nine-person groups.
122. We do not consider in this paper whether Article III's dictate of "one supreme Court" requires that all Justices participate in all decisions. We instead assume that it is constitutional in light of the following: (1) Congress's repeated consideration of the idea; (2) the American Bar Association's examination of panel proposals in the early and mid-twentieth century; (3) the Court's delegation of some decisions to a single Justice; and (4) the lack of sufficient contrary record relating to Article III. See infra text accompanying notes 97-100. Even on a literal reading, divisions do not produce multiple courts.
123. But see Ross E. Davies, A Certain Mongrel Court: Congress's Past Power and Present Potential to Reinforce the Supreme Court, 90 MINN. L. REV. 678, 678-87 (2006) (arguing that the language should be read as "one [indivisible] supreme Court").
124. Some might wonder whether if the Court acted only in panels, it would have difficulty furthering the justice system's interest in finality. A litigant dissatisfied with the outcome on one panel might be inclined to relitigate her case, hoping that she would draw a different panel the second time around. Such opportunistic behavior was a concern on the circuits prior to the recognition of en banc rehearing. However, it seems less of a concern on the Supreme Court where the Justices may weed out such petitions in the certiorari process.
125. Other countries' high courts act entirely through divisions or panels without an apparent loss in legitimacy. In the United Kingdom, for example, both the Privy Council and the House of Lords hear cases in panels, although panel size may grow in very important cases. United Kingdom, in 4 LEGAL SYSTEMS OF THE WORLD: A POLITICAL, SOCIAL, AND CULTURAL ENCYCLOPEDIA 1697-1700 (Herbert Kritzer ed., 2002).
126. Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 495 (1954).
127. Bush v. Gore, 531 U.S. 98, 110-11 (2000).
128. Furman v. Georgia, 408 U.S. 238, 239-40 (1972).
129. Textile Mills Sec. Corp. v. Comm'r of Internal Revenue, 314 U.S. 326, 333 (1941) (recognizing the power of circuits to sit en banc).
130. See FED. R. APP. P. 35(a): A majority of the circuit judges who ⋯ are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (2) the proceeding involves a question of exceptional importance.
131. Other countries' high courts have singled out such cases for special treatment. For example, Australia's court of last resort, which generally uses panels, usually sits en banc for cases involving the interpretation of the Constitution. High Court of Australia, About the Court: Operation of the Court, http://www.hcourt.gov.au/about-03.html (last visited Aug. 30, 2008): Cases which involve interpretation of the Constitution, or where the Court may be invited to depart from one of its previous decisions, or where the Court considers the principle of law involved to be one of major public importance, are normally determined by a full bench comprising all seven Justices if they are available to sit.
132. Congress has ordered the courts of appeals to sit en banc when hearing challenges to the constitutionality of certain statutes. See, e.g., Federal Election Campaign Act, 2 U.S.C. § 437 (2000).
133. See Arthur D. Hellman, By Precedent Unbound: The Nature and Extent of Unresolved Intercircuit Conflicts, 56 U. PITT. L. REV. 693, 699 n.20 (1995) (explaining that all courts of appeals follow a rule that panel rulings bind later panels unless overruled by the en banc circuit or the Supreme Court although a few have an en banc bypass procedure).
134. This estimate is likely too high. If a panel system had been used in those earlier cases, the Justices on the panel might have been those who disagreed with the Court majority's decision to overturn precedent. Thus, the panel would not have favored overruling and would not have automatically triggered full Court review. That review would have to wait for a later day when a panel of Justices in favor of such a change controlled the decision.
135. This is certainly what has been found on the courts of appeals. See Tracey E. George, The Dynamics and Determinants of the Decision to Grant En Banc Review, 74 WASH. L. REV. 213, 267-68, 273 (1999) (observing that courts of appeals are more likely to grant en banc review when a panel reaches a decision contrary to the policy preferences of the circuit's majority and less likely to grant en banc review when the panel affirms a lower court's ruling and when the panel is unanimous);
136. Micheal Giles, Thomas Walker & Christopher Zorn, Setting a Judicial Agenda: The Decision to Grant En Banc Review on U.S. Courts of Appeals, 68 J. POL. 852, 865 (2006) (finding that courts of appeals are less likely to grant en banc review when the state of the law is certain and consistent).
137. See, e.g., United States v. Watts, 519 U.S. 148, 170 (1997) (Kennedy, J., dissenting) (questioning the Ninth Circuit's failure to grant an en banc rehearing of the panel's "departure from the rule followed in all other circuits");
138. United States v. Shabani, 513 U.S. 10, 11-12 (1994) (unanimous) (explaining that the Supreme Court granted certiorari to resolve a conflict between the Ninth Circuit and the other eleven circuits and questioning why the Ninth Circuit did not, as a member of the panel majority had requested, reconsider circuit precedent en banc);
139. Groves v. Ring Screw Works, 498 U.S. 168, 172 n.8 (1990) (unanimous) ("Given the panel's expressed doubt about the correctness of the Circuit precedent that it was following, together with the fact that there was a square conflict in the Circuits, it might have been appropriate for the panel to request a rehearing en banc"). Justice Sandra Day O'Connor expressed the view, in remarks to the Ninth Circuit Judicial Conference in 1996, that the circuit should increase the number of en banc rehearings in order to review decisions in conflict with other circuits because the Court could not resolve all such splits. Ninth Circuit Court of Appeals Reorganization Act of 2001: Hearing on H.R. 1203 Before the Subcomm. on Courts, the Internet, and Intellectual Property of the H. Comm. on the Judiciary, 107th Cong. 63 (2002) (statement of Sidney R. Thomas, Judge, U.S. Court of Appeals for the Ninth Circuit), available at commdocs.house.gov/committees/iudiciary/ hju80880.000/hiu80880-0.HTM.
140. The Court decided 151 circuit-split cases 5-to-4 and two cases 4-to-3. These cases constitute 15.9% of all circuit-split cases and 2.5% of all cases.
141. For a different view, see William Brennan, State Court Decisions and the Supreme Court, 31 PA. BAR ASS'N Q. 393. 406 (1960) (taking the position that because the Constitution states that "the judicial power⋯ shall be vested in one Supreme Court," the Constitution "does not permit Supreme Court action by committees, panels, or sections").
142. Ross E. Davies, The Other Supreme Court, 31 J. SUP. CR. HIST. 221, 221 (2006).
143. By statute, six Justices constitute a quorum. 28 U.S.C. § 1 (2000); see also SUP. CT. R. 4 (2) (providing that "[s]ix Members of the Court constitute a quorum").
144. See 15 U.S.C. § 29 (1946) (recodified at 28 U.S.C. § 2109 (2000)) (allowing the Chief Justice to grant the circuit court the power to act as a court of last resort in suits typically involving a district court case striking a law as unconstitutional).
145. See CONG. GLOBE, 41st Cong., 1st Sess. 208-13 (1869) (recording discussion of Sen. George Henry Williams's proposal that Congress increase the number of Justices to eighteen and then divide the Court into two nine-Justice divisions). While other senators expressed support for the idea, at least one supporter doubted that it would be constitutional.
146. Id. at 210 (reflecting Sen. Alan Thurman's statements that "a court divided into sections, if our Constitution permitted it, would be the very best system"). The next record of congressional consideration of panels appeared in 1876 when Sen. Knott suggested "divid[ing] the Supreme Court into divisions of three and giv[ing] each division exclusive jurisdiction over a particular class of cases." 4 CONG. REC. 1126 (1876).
147. See 10 CONG. REC. 528 (1880) (reflecting Rep. Manning's introduction of H.R. 3843, 46th Cong. (2nd Sess. 1880));
148. see also Felix Frankfurter, The Business of the Supreme Court of the United States - A Study in the Federal Judicial System, 39 HARV. L. REV. 35, 60 n.113, 61 n.124 (1925).
149. See 13 CONG. REC 157 (1881) (reflecting Rep. Manning's introduction of H.R. 865, 47th Cong. (1st Sess. 1881));
150. see also Remedy for the Delays Incident to the Determination of Suits in the Highest Courts of the United States, 5 A.B.A. REP. 363, 373 (1882) (explaining the facets of Manning's Bill) [hereinafter Remedy for the Delays], reprinted in MAKING OF MODERN LAW, MAJORITY AND MINORITY REPORTS OF A SPECIAL COMMITTEE OF NINE ON THE REMEDY FOR THE DELAYS INCIDENT TO THE DETERMINATION OF SUITS IN THE HIGHEST COURTS OF THE UNITED STATES 11 (Thomson Gale 2004) (1882).
151. See 21 CONG. REC. 10,219-32 (1890). A leading proponent of Manning's Bill was William M. Evarts, the Chairman of the Judiciary Committee, who fought for the division of the Supreme Court in front of an American Bar Association committee formed specifically to consider the restructuring proposals then under consideration by Congress.
152. See Frankfurter, supra note 105, at 77. The ABA committee split along the same lines as the Senate Judiciary Committee. See Remedy for the Delays, supra note 106, at 23, 45. The American Law Review, a prominent legal quarterly of the time, came out in support of the panel proposal. The Supreme Court, 9 AM. L. REV. 668, 675 (1874-1875). In 1921, when Congress again was considering ways to alleviate the Court's workload, the ABA Committee on Jurisprudence and Law Reform recommended increasing the Court's size to twelve Justices and allowing it to act with as few as six Justices. Everett P. Wheeler, Report of the Committee on Jurisprudence and Law Reform, 46 A.B.A. REP. 384, 391 (1921), quoted in Hartnett, supra note 9, at 1668.
153. ROSCOE POUND, ORGANIZATION OF COURTS 165 (1940); United Kingdom, supra note 87.
154. The states are Alabama, Connecticut, Delaware, Massachusetts, Mississippi, Montana, Nebraska, Nevada, and Virginia.
155. DEL. SUP. CT. R. 1(e), available at http://courts.delaware.gov/rules/?supremerules.pdf.
156. MISS. R. APP. P. 24, available at http://www.mssc.state.ms.us/rules/msrulesofcourt/rules-of-appellate-procedure. pdf.
157. See POUND, supra note 108, at 108.
158. See generally MORRIS H. DEGROOT & MARK J. SCHERVISH, PROBABILITY AND STATISTICS ch. 1 (3d ed. 2002);
159. MARSHALL HALL, JR., COMBINATORIAL THEORY 1-6 (2d ed. 1983) (explaining the mathematics behind determining the probability of outcomes based on different combinations of events).
160. The factorial of a number (n!) is equal to the product of all positive, non-zero integers less than or equal to the number. Thus, n! = n * n-1 * n-2 *⋯. *n-(n-l). The factorial of 0 is 1. For discussion, see KENNETH P. BOGART, INTRODUCTORY COMBINATORICS 3-6 (3d ed. 2000).