Remaking the United States Supreme Court in the courts' of appeals image

Duke Law Journal

Volumn 58, Issue 7, 2009, Pages 1439-1475

  George, Tracey E ^a   Guthrie, Chris ^a  

^a VANDERBILT UNIVERSITY   (United States)

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EID: 68149162748     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (187)

1. Kenneth W. Starr, The Supreme Court and Its Shrinking Docket: The Ghost of William Howard Taft, 90 Minn. L. Rev. 1363, 1368 (2006).
2. David R. Stras, The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 Tex. L. Rev. 947, 965-66 (2007) (book review).
3. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 337 (2005) (statement of John G. Roberts Jr.).
4. See, e.g., Richard Brust, Supreme Court 2.0, A.B.A. J., Oct. 2008, at 38, 39 (quoting Professor Paul Carrington stating that current Supreme Court Justices "don't have to do too much work" and that the job of a Justice is "no sweat")
5. Philip D. Oliver, Increasing the Size of the Court as a Partial but Clearly Constitutional Alternative, in Reforming the Court: Term Limits for Supreme Court Justices 405, 411, 412 (Roger C. Cramton & Paul D. Carrington eds., 2006) (observing that "the job of justice seems much easier than in the recent past" and describing the position as "cushy").
6. See Max Weber, the Protestant Ethic and the Spirit of Capitalism (Talcott Parsons trans., Dover Publ'ns 2003) (1904).
7. See Thorstein Veblen, the Theory of the Leisure Class 29 (Modern Library 2001) (1899) (describing "conspicuous leisure" as the "abstention from productive work")
8. See J. SUP. CT. U.S., Oct. Term 1947, at I; J. SUP. CT. U.S., Oct. Term 1967, at II; J. SUP. CT. U.S., Oct. Term 1987, at II.
9. We use the term "case" in the conventional sense to mean issued decisions, treating each opinion of the Court as one case. In its own statistics, the Court treats opinions that resolve multiple docket numbers as that number of cases. See Statistics as of June 27, 2008, J. SUP. CT. U.S., Oct. Term 2007, at II, available at http:www.supremecourtus.gov/orders/journal/jnl07.pdf (reporting that 1,614 paid petitions and 6,627 in forma pauperis petitions were filed during the October 2007 Term, that it heard argument in seventy-five separate docketnumbered cases, and issued sixty-seven written opinions).
10. See Kermit Hall, the Oxford Companion to the Supreme Court of the United States 185 (2d ed. 2005).
11. See, e.g., Jonathan Turley, Unpacking the Court: The Case for the Expansion of the United States Supreme Court in the Twenty-First Century, 33 PERSP. ON POL. SCI. 155, 155-56 (2004)
12. see also Oliver, supra note 4, at 408 (identifying Court expansion as an option if it is impossible to impose term limits on Justices)
13. This figure is the median number of judges, a more representative statistic than the mean in this instance. The mean is skewed by the Ninth Circuit which has twenty-nine judges, twelve more than the next largest circuit. To underscore its unique size among the thirteen circuits, the Ninth continues to grow while the others have not: Congress transferred one judgeship in 2008 from the D.C. Circuit to the Ninth Circuit. Court Security Improvement Act of 2007, Pub. L. No. 110-177, § 509, 121 Stat. 2534, 2543 (2008) (codified at 28 U.S.C. § 44 note (2006)) (transferring a 2008 vacancy on the D.C. Circuit to the Ninth Circuit where it would be available on January 21, 2009). None of the other circuits has added a judge since 1990. Judicial Improvements Act of 1990 § 202, 28 U.S.C. § 44 (2006).
14. Tracey E. George & Chris Guthrie, "The Threes": Re-imagining Supreme Court Decisionmaking, 61 Vand. L. Rev. 1825 (2008).
15. Id. at 1830-31.
16. Id. at 1837-47.
17. Political scientists may use the term "institution" to refer to institutional design as we describe it here. See, e.g., Elinor Ostrom, Institutional Rational Choice: An Assessment of the Institutional Analysis and Development Framework, in Theories of the Policy Process: Theoretical Lenses on Public Policy 35, 36-37 (Paul A. Sabatier ed., 1999).
18. 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. art. I, § 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); id. art. I, § 5 (setting "a majority of each [House]" as "a quorum to do business" and allowing that "a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members").
19. Id. art. II, § 1 (detailing the method of election of and the qualifications for the President).
20. See id. art. III, §§ 1-3 (assigning the judicial power to a "Supreme Court" but making no provision as to the qualifications or number of judges for this Court and offering no guidance as to the Court's internal organization or procedures).
21. For a description of the Court's changing jurisdiction, see Richard H. Fallon, Daniel J. Meltzer & David L. Shapiro, Hart & Wechsler's the FEDERAL COURTS and the Federal System 29-43, 268-73, 1552-56 (5th ed. 2003).
22. For a discussion of one such change-that is, the evolution of oral argument practice- in the Court, see generally David G. Savage, Guide to the U.S. Supreme Court 848-60 (4th ed. 2004).
23. The Court's membership has ranged from six to ten Justices. See Act of Sept. 24, 1789, ch. 20, § 1, 1 Stat. 73, 73 (six Justices); Act of Feb. 24, 1807, ch. 16, § 5, 2 Stat. 420, 421 (seven); Act of Mar. 3, 1837, ch. 34, § 1, 5 Stat. 176, 176 (nine); Act of Mar. 8, 1863, ch. 100, § 1, 12 Stat. 794, 794 (ten); Judiciary Act of 1866, ch. 210, § 1, 14 Stat. 209, 209 (seven); Act of July 23, 1869, ch. 22, § 1, 16 Stat. 44, 44 (nine). As part of the major reorganization of the federal courts in 1801, Congress decreased the Court's size to five Justices (four Associate Justices and the Chief Justice). Act of Feb. 13, 1801, ch. 4, § 3, 2 Stat. 89, 89. Because 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. Act of Mar. 8, 1802, ch. 8, § 1, 2 Stat. 132, 132.
24. The qualifications and characteristics of the Justices have changed markedly over time, both demographically (for example, age, race, religion, gender) and professionally (for example, educational experience, judicial experience, political experience). Whereas Justices were once all white, Protestant men, the twenty-first-century Court includes Justices who are African American, female, Catholic, and Jewish. For the backgrounds of the Justices, see Lee Epstein et al., the Supreme Court Compendium: Data, Decisions & Developments 263 (4th ed. 2006). At one time, a law degree-any degree-was not a prerequisite for appointment to the Court. But every Justice since 1941 (when President Franklin D. Roosevelt appointed Robert Jackson who had none) has had both undergraduate and law degrees. See id. at 291-302 tbl.4-4. Circuit court experience has become a de facto prerequisite
25. See Tracey E. George, From Judge to Justice: Social Background Theory and the Supreme Court, 86 N.C. L. REV. 1333, 1336-40 (2008) (describing the change in the norm of prior federal judicial experience for Supreme Court Justices).
26. See Reforming The Court, supra note 4 passim
27. See, e.g., Richard A. Epstein, Mandatory Retirement for Supreme Court Justices, in Reforming the Court, supra note 4, at 415, 427-33.
28. See id. at 419.
29. See, e.g., Steven G. Calabresi & David C. Presser, Reintroducing Circuit Riding: A Timely Proposal, 90 MINN. L. REV. 1386, 1388-89 (2006)
30. David R. Stras, Why Supreme Court Justices Should Ride Circuit Again, 91 Minn. L. Rev. 1710, 1712 (2007).
31. See, e.g., Marjorie Cohn, Let the Sun Shine on the Supreme Court, 35 HASTINGS CONST. L.Q. 161, 168 (2008).
32. See, e.g., Terri L. Peretti, Promoting Equity in the Distribution of Supreme Court Appointments, in Reforming the Court, supra note 4, at 435, 436 (advocating a guaranteed Supreme Court appointment in each presidential term).
33. Term limits, for example, would be contrary to Article III's provision of life tenure for judges selected for the Supreme Court and inferior courts created pursuant to Article III. See U.S. CONST. art. III, § 1, cl. 2.
34. The most obvious examples of such proposals are term limits and mandatory retirement ages (separate, but related proposals). Both directly conflict with Article III's promise of life tenure and thus would require a constitutional amendment. See id.
35. See Fallon et al., supra note 19, at 1552-56.
36. See Act of Mar. 3, 1891 (Evarts Act), ch. 517, 26 Stat. 826, 826 (codified as amended at 28 U.S.C. § 1254 (2006)).
37. See Act of Feb. 13, 1925, ch. 229, 43 Stat. 936, 936 (codified as amended at 28 U.S.C. § 1257 (2006)).
38. See Epstein et al., supra note 22, at 72-73 tbl.2-5. The range is one standard deviation above and below the average for the period.
39. Id. at 74-75 tbl.2-6. The caseload numbers are based on the figures reported by the Administrative Office for the U.S. Courts. For 1926-2004, see id. at 72-73 tbl.2-5, 74-75 tbl.2-6. For October Terms 2002-06.
40. see James C. Duff, Admin. Office of the U.S. Courts, Judicial Business of the United States Courts: 2007 Annual Report of the Director 84 tbl.A-1 (2007), available at http://www.uscourts.gov/judbus2007/JudicialBusinespdfversion.pdf.
41. See supra note 3 and accompanying text.
42. See Felix Frankfurter & James M. Landis, the Business of the Supreme Court 120 (1927).
43. SUP. CT. R. 10(a). We of course are not asserting that the Supreme Court's.
44. Nat'l Ctr. for State Courts, Court Statistics Projects: State Court Caseload Statistics 47-50 tbl.17 (2007), available at http://www.ncsconline.org/D_Research/csp/2006_files/StateCourtCaseloadTa bles-Appellate Courts.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)
45. But see 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).
46. 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. 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).
48. See supra note 3 and accompanying text. For a discussion of the Supreme Court's responsibility to maintain uniformity in federal law, see, for example, Breyer, supra note 38, at 92
49. Thomas E. Baker & Douglas D. McFarland, The Need for a New National Court, 100 HARV. L. REV. 1400, 1405-07 (1987).
50. 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 the Court 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 SUPREME CT. 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, Professors George and Solimine defined a circuit split as a case in which any judge on 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. See 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 41, at 192, 193 tbl.2 (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).
53. Stefanie A. Lindquist & 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 percent of circuit cases from 1985-95 included a split)
54. see also Split Circuits, http://splitcircuits.blogspot.com (last visited Feb. 8, 2009) ("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). 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 passim (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 Feb. 8, 2009).
57. See George & Solimine, supra note 41, 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 et al., Justice on Appeal 3 (1976) (explaining that "appellate courts are needed to announce, clarify, and harmonize the rules of decision employed by the legal system in which they serve")
59. Baker & McFarland, supra note 40, at 1407 (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 Intercircuit Panel of the United States Act: Hearing on S. 704 Before the Subcomm. on Courts of the S. Comm. on the Judiciary, 99th Cong. 130 (1985) (noting that Chief Justice Burger first suggested the creation of an Intercircuit Panel); 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 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, for example, 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); Thomas E. Baker, A Generation Spent Studying the United States Courts of Appeals: A Chronology, 34 U.C. Davis L. Rev. 395, 396 (2000) (analyzing a "long line of studies, committees, commissions" which have addressed the problems facing the federal courts and suggesting various solutions).
63. See Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges' Bill, 100 Colum. L. Rev. 1643, 1685, 1698 (2000) (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).
64. SUP. CT. R. 19(1).
65. Circuit Court of Appeals Act, Ch. 517, § 6, 26 Stat. 826 (1891) (providing that the newly minted circuit courts of appeals "in every such subject within its appellate jurisdiction the circuit court of appeals at any time may certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision")
66. see also Act of June 25, 1948, Pub. L. No. 773, ch. 81, § 1254, 62 Stat. 869, 928 (codified at 28 U.S.C. § 1254 (2006)) (delineating that "[c]ases in the courts of appeals may be reviewed by the Supreme Court" by either of two methods-the first being a writ of certiorari from a party and the second being "[b]y certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired").
67. See 17A Charles Alan Wright et al., Federal Practice & Procedure: Jurisdiction § 1438 (3d ed. 2008) ("It is noteworthy that Congress chose to retain the certification jurisdiction even as it was abolishing virtually all of the appeal jurisdiction.")
68. Technically, the Court refuses to entertain these requests for review in different ways: it dismisses certified questions and refuses to grant certiorari petitions. For a discussion of the history of circuit certification.
69. see Hartnett, supra note 48, at 1650-57; Frederick Bernays Wiener, The Supreme Court's New Rules, 68 Harv. L. Rev. 20, 66 (1954).
70. See 17A Wright et al., supra note 51, §§ 1675-76 (reporting that eighty-five certified cases were docketed between 1927 and 1936, but only twenty from 1937 to 1946. Only three certified cases have been docketed in recent years.)
71. Wiener, supra note 52, at 66 ("The certificate, once a fruitful source of cases heard by the Court, has dwindled in importance over the years, and recently there has been, on an average, only one certificate per Term.").
72. See James William Moore & Allan D. Vestal, Present and Potential Role of Certification in Federal Appellate Procedure, 35 VA. L. REV. 1, 2, 26, 46-49 (1949) (including a detailed accounting of every case involving certification).
73. See Hartnett, supra note 48, at 1710-12.
74. see also Moore & Vestal, supra note 54, at 21 (describing certification as "the tool given to the courts of appeals")
75. The Federalist no. 51 (James Madison)
76. 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.").
77. The Federalist no. 78 (Alexander Hamilton).
78. See Library of Cong.: Thomas, View Public Laws for the 109th Congress, http://thomas.loc.gov/bss/d109/d109laws.html (last visited Feb. 8, 2009) (noting that public laws "make up most of the laws passed by Congress"); Library of Cong.: Thomas, Search Multiple Congresses, http://thomas.loc.gov/home/multicongress/multicongress.html (last visited Feb. 8, 2009) (providing access to the public laws passed by the 107th through 110th Congress).
79. See GPO Access, Federal Register: Simple Search, http://www.gpoaccess.gov/fr/search.html (last visited Feb. 12, 2009). 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 2008.
80. See Library of Cong.: Thomas, Treaties, http://thomas.loc.gov/home/treaties/treaties.html (last visited Feb. 8, 2009) (containing treaties that were submitted to the Senate during the 107th through 110th Congress).
81. Nat'l Archives, The Federal Register: Administration of George W. Bush (2001-2009), http://www.archives.gov/federal-register/executive-orders/wbush.html (last visited Feb. 8, 2009).
82. See DUFF, supra note 35, at 84 tbl.A-1; supra Figure 1: All Cases Reviewed.
83. 28 U.S.C. § 1257(a) (2006) (granting the Supreme Court the power to review state high court decisions on federal law).
84. From 1953 through 2006, the Supreme Court decided 1,388 cases appealed from state and territorial courts and reversed more than 70 percent of those lower courts' rulings.
85. See SPAETH, supra note 44 (providing the raw data from which we draw these figures).
86. See Alexander M. 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)
87. see also Mark V. Tushnet, Taking the Constitution Away From the Courts 174-76 (1999) (arguing that the Constitution should be taken away from judges and returned to the people to allow for a "populist constitutional law")
88. 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)
89. 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)
90. See, e.g., Barry Friedman, The History of the Countermajoritarian Difficulty, Part Three: The Lesson of 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 are tied closely to the social legitimacy of its decisions).
91. See infra notes 105-07 and accompanying text.
92. Sonya Brown, International Court of Justice, in 2 Legal Systems of the World: A Political, Social, and Cultural Encyclopedia 720, 722 (Herbert Kritzer ed., 2002).
93. Jayanth K. Krishnan, India, in 2 LEGAL Systems of the World, supra note 68, at 696 ("The Supreme Court of India is made up of the chief justice and no more than twenty-five other judges appointed by the president.").
94. See supra note 21.
95. See Ross E. Davies, The Other Supreme Court, 31 J. Supreme Ct. Hist. 221, 221 (2006).
96. See, e.g., 10 CONG. REC. 528 (1880) (reflecting Representative Manning's introduction of H.R. No. 3843, 46th Cong. (2d Sess. 1880), to expand the Court and allow for divisional sittings)
97. CONG. Globe, 41st Cong., 3d Sess. 214 (1870) (statement of Sen. Trumbull) (noting Edmunds' proposal that the number of Justices be doubled, as an alternative to adding circuit judgeships); CONG. Globe, 40th Cong., 3d Sess. 1484 (1869) (statement of the Chief Clerk) (recording Drake's motion to amend a judiciary bill by increasing the number of Associate Justices from eight to fourteen)
98. see also Charles G. Geyh, Judicial Independence, Judicial Accountability, and the Role of Constitutional Norms in Constitutional Regulation of the Courts, 78 IND. L.J. 153, 186 (2003) (discussing proposals to divide the size of the Court).
99. Following his landslide reelection in 1936, President Franklin D. Roosevelt proposed a plan to allow him to appoint six additional Justices-one for each Justice over the age of seventy-to the Court. See Gregory A. Caldeira, Public Opinion and the U.S. Supreme Court: FDR's Court-Packing Plan, 81 AM. POL. SCI. REV. 1139, 1141 (1987) (noting that President Roosevelt veiled his proposal to add six Justices to the Court with a "smokescreen" argument to improve the efficiency of the judicial system).
100. By statute, six Justices constitute a quorum. 28 U.S.C. § 1 (2006)
101. see also SUP. CT. R. 4(2) ("Six Members of the Court constitute a quorum."). 75. These calculations are based on an analysis of decisions in the Spaeth Supreme Court Database. (Focusing only on observations in which ANALU=1 and DEC_TYPE=1, 6, or 7, we computed the number of observations in which the vote totaled less than nine.) See Harold J. Spaeth, The Original United States Supreme Court Judicial Database, http://www.cas.sc.edu/poli/juri/sctdata.htm (last visited Feb. 8, 2009).
102. See U.S. CONST. art. I, § 2 (establishing the size of the House of Representatives); id. art. I, § 3 (establishing the size of the Senate).
103. See supra Part I.
104. See supra text accompanying note 74.
105. The D.C. Circuit was still the Court of Appeals of the District of Columbia in 1929. Five years later, Congress reorganized the court as the Court of Appeals for the D.C. Circuit and the "justices" of the Court of Appeals of the District of Columbia became circuit judges. Act of June 7, 1934, ch. 426, 48 Stat. 926, 926.
106. See Annual Report of the Attorney General of the United States for the Fiscal Year 1929, at 8 (1929).
107. See DUFF, supra note 35, at 113-16 tbl.B-5.
108. See Act of June 10, 1930, 46 Stat. 538
109. see also Fed. Judicial Ctr., The U.S. Courts of Appeals and the Federal Judiciary, http://www.fjc.gov/history/home.nsf/autoframe?openform&top=/history/ home.nsf/page/courtssitecontent&nav=/history/home.nsf/page/ca_nav &page=/history/home.nsf/page/ca_bdy (last visited Mar. 8, 2009) (follow the hyperlink for each circuit to determine the number of active judgeships in 1930).
110. See Admin. Office of the U.S. Courts, U.S. Courts of Appeals: Additional Authorized Judgeships, http://www.uscourts.gov/history/appealsauth.pdf (last visited Feb. 13, 2008).
111. Id. (reporting the number of judges per circuit and noting that the mean is 14 and the median is 12.5).
112. See 28 U.S.C. § 46(c) (2006) (allowing circuit courts to sit en banc and providing that the en banc court must consist of all active judges unless the circuit exceeds fifteen judges (as set in a separate statute)). The Ninth Circuit has fully implemented this system. 9TH CIR. R. 35-3.
113. Professor Turley suggests a Court of nineteen, but he does not offer any reason for that specific number. See Turley, supra note 10, at 158-59.
114. See Caldeira, supra note 73, at 1140-42.
115. As Professor Bradley Joondeph has argued, the system for appointing justices is flawed in that it "allocate[s] opportunities to influence the policy direction of the Court serendipitously, and this irregularity undermines the Court's legitimacy." See Bradley W. Joondeph, Law, Politics, and the Appointments Process, 46 SANTA CLARA L. REV. 737, 763 (2006) (book review).
116. Our proposal is similar to one made by Professor Terri Peretti, who has proposed granting every president at least one but no more than two appointments per presidential term. See Peretti, supra note 28, at 435, 449.
117. 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 Commission to Suggest Amendments to the Constitution to the General Assembly of Virginia, H.R. DOC. NO. 2, at ix (1927). 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."Id.
118. see also Susie M. Sharp, Supreme Courts Sitting in Divisions, 10 N.C. L. REV. 351, 363-64 (1932) (providing a detailed explanation of states where panel sittings were authorized and noting that in this instance the legislature adopted the advisory commission's recommendations).
119. We propose three-Justice panels for two reasons: (1) a three-judge panel constitutes the smallest odd-numbered, multi-judge panel possible; and (2) the federal judiciary has had great success with three-judge panels on courts of appeals of all sizes and for resolution of special issues by three-judge district courts. We do not propose any change in the selection of cases for review; thus all Justices would vote on certiorari as they currently do. Presumably, the Court would change its Rule of Four to some larger number. Cf. John Paul Stevens, The Lifespan of a Judge-Made Rule, 58 N.Y.U. L. REV. 1, 10 (1983) (hypothesizing about the source of the unwritten norm).
120. 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).
121. For evidence of the collaborative nature of Supreme Court opinion writing, see, for example, Pamela C. Corley, Bargaining and Accommodation on the United States Supreme Court, 90 Judicature 157 (2007). For a discussion of the inefficiencies of en banc panels
122. see Deborah J. Barrow & Thomas G. Walker, A Court Divided: the Fifth Circuit Court of Appeals and the Politics of Judicial Reform 230-32 (1988).
123. 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")
124. William O. Douglas, The Supreme Court and Its Case Load, 45 Cornell L.Q. 401, 402-04 (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
125. See, e.g., Warren Burger, Year-end Report on the Judiciary 8 (1984).
126. 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.
127. See Cong. Globe, 41st Cong., 1st Sess. 208-13 (1869) (recording discussion of Senator 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. Id. at 210 (statement of Sen. Thurman) ("[A] court divided into sections, if our Constitution permitted it, would be the very best system...."). The next record of congressional consideration of panels appears in 1876 when Senator Knott suggests "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).
128. See 10 CONG. REC. 528 (1880) (reflecting Representative Manning's introduction of H.R. 3843, 46th Cong. (2d Sess. 1880))
129. 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).
130. See 13 Cong. Rec. 157 (1881) (reflecting Representative Manning's introduction of H.R. 865, 47th Cong. (1st Sess. 1881)).
131. see also Remedy for the Delays Incident to the Determination of Suits in the Highest Courts of the United States, 5 ANN. REP. A.B.A. 363, 373 (1882), 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) [hereinafter Remedy for the Delays] (explaining the facets of Manning's Bill).
132. 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. See Frankfurter, supra note 96, at 77. The ABA committee split along the same lines as the Senate Judiciary Committee. See Remedy for the Delays, supra note 97, 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 (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, 44 ANN. REP. A.B.A. 384, 391 (1921), quoted in Hartnett, supra note 48, at 1668.
133. Roscoe Pound, Organization of Courts 165 (1940); United Kingdom, in 4 Legal Systems of the World: A Political, Social, and Cultural Encyclopedia 1695, 1698-99 (Herbert Kritzer ed., 2002).
134. The state high courts that use a subset of judges to decide at least some cases include (with relevant website if available) Alabama, Connecticut (http://www.jud.ct.gov/ystday/org court.html), Delaware (http://courts.delaware.gov/rules/?supremerules.pdf) Massachusetts (http://www.mass.gov/courts/sjc/about-the-court.html), Mississippi (http://www.mssc.state.ms.us/rules/msrulesofcourt/rules_of_appellate_pro cedure.pdf), Montana (http://courts.mt.gov/supreme/rules/inter_oper.asp), Nebraska, Nevada (http://www.nvsupremecourt.us/info/about/), and Virginia (http://www.courts.state.va.us/scov/cover.htm). Information on Alabama's and Nebraska's practices was obtained by telephone interview with the courts' staffs. Telephone Interview with Celeste W. Sabel, Senior Staff Att'y, Ala. Supreme Court (2007); Telephone Interview with Janice Culver, Deputy Clerk, Neb. Supreme Court (2007). General information on state high courts' structure can be found on the National Center for State Courts interactive website. Nat'l Ctr. for State Courts, Court Statistics Project, http://www.ncsconline.org/D_Research/Ct_Struct/Index.html (last visited Mar. 8, 2009).
135. DEL. SUP. CT. R. 1(e).
136. MISS. R. APP. P. 24.
137. Roe v. Wade, 410 U.S. 113 (1973).
138. Bush v. Gore, 531 U.S. 98 (2000).
139. See SPAETH, supra note 44 (presenting the data from which we calculate these numbers)
140. See infra Table 1: U.S. Supreme Court Cases, October Terms 1953-2006.
141. The Court decided 3,042 cases with no or one dissent, or 49.6 percent of all decisions. Id.
142. If two Justices dissent, then the probability that three-Justice panels will change the outcome is: Pr(d) = C7,1 / 84 = 7/84 or 8.33 percent. The formula reflects that both dissenting Justices would have to be on a three-Justice panel for it to reach a different outcome than the one reached by the en banc Court. Those two Justices could serve on a three-Justice panel with any one of the seven Justices in the majority. Hence, there are 7 panels, out of the 84 possible panels, that would produce a different outcome.
143. If three Justices dissent, then the probability that a three-Justice panel will change the outcome is: Pr(d) = ((C3,2) * (C6,1) + (C3,3)) / 84 = 19/84 = 22.62%. The formula reflects that a three-Justice panel will support a different outcome if it has two dissenting Justices and one majority Justice or all three dissenting Justices. The possible combinations of two dissent and one majority is the number of combinations of two dissenters out of a pool of three {(C3,2) = 3} times the number of majority Justices {(C6,1) = 6}, or 18 possible panels with two dissenters and one majority Justice. In addition, a panel would change the outcome if all three dissenters were on the panel. Thus, there are 19 panels that would reach a different outcome while 65 would reach the same outcome.
144. 5,1)) / C9,3 = ((4 *1) + (6 * 5)) /84 = 34/84 = 17/42 = 40.48%.
145. See supra note 108.
146. 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.
147. The composition of the Court's docket might have changed under a panel system. To the extent that 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 Robert L. Boucher, Jr. & Jeffrey A. Segal, Supreme Court Justices as Strategic Decision Makers: Aggressive Grants and Defensive Denials on the Vinson Court, 57 J. POL. 824, 829-36 (1995) ("While most justices appeared to grant certiorari when they disagreed with the lower court, the extent to which the predicted level of support they would receive on the merits mattered was dependent on whether they would affirm if the case were decided on the merits.").
148. 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, supra note 99, at 1697-700.
149. Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954).
150. Bush v. Gore, 531 U.S. 98, 110-11 (2000).
151. Furman v. Georgia, 408 U.S. 238, 239-40 (1972).
152. See supra note 114.
153. Textile Mills Sec. Corp. v. Comm'r, 314 U.S. 326, 333 (1941) (recognizing the power of circuits to sit en banc).
154. 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 Feb. 8, 2009). 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. Id.
155. 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 (2006).
156. 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).
157. 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's majority 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.
158. The Court is more likely to use the capacity in order to review decisions with which it disagrees. See Charles M. Cameron et al., Strategic Auditing in a Political Hierarchy: An Informational Model of the Supreme Court's Certiorari Decisions, 94 AM. POL. SCI. REV. 101, 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).
159. See Donald R. 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)
160. 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).
161. 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)
162. 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").
163. U.S. CONST. art. III, § 2, cl. 2; see also 28 U.S.C. §1251(b) (2006) ("The Supreme Court shall have original but not exclusive jurisdiction of: (1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties; (2) All controversies between the United States and a State; (3) All actions or proceedings by a State against the citizens of another State or against aliens.").
164. U.S.C. § 1251(a).
165. See SUP. CT. R. 19 (outlining the procedure for original actions). Neither the statute nor the Court's rules require appointing a special master for hearing evidence in original jurisdiction disputes. But the Court appears to have adopted that practice as reflected in the special master reports filed in every recent original jurisdiction case.
166. See, e.g., Supreme Court of the U.S., Special Master Reports, http://www.supremecourtus.gov/SpecMastRpt/SpecMastRpt.html (last visited Mar. 8, 2009).
167. See, e.g., Marvin E. Shaw, Group Dynamics: the Psychology of Small Group Behavior 173-74 (3d ed. 1981) (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")
168. 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.").
169. See, e.g., SHAW, supra note 130, at 173 (observing that "the added resources that are available in larger groups (abilities, knowledge, range of opinions, etc.) contribute to effective group performance" and that larger groups "tend to be more diverse")
170. John M. Levine & Richard L. Moreland, Small Groups, in 2 the Handbook of Social Psychology 415, 422 (Daniel T. Gilbert et al. eds., 1998) ("As a group grows larger, it has access to more resources (e.g., the time, energy, and expertise of its members), so its performance ought to improve.")
171. Richard L. Moreland et al., 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").
172. 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).
173. Donald C. Pennington, the Social Psychology of Behaviour in Small Groups 79 (2002).
174. See supra note 130.
175. William M. Kephart, A Quantitative Analysis of Intragroup Relationships, 55 AM. J. SOC. 544, 544-49 (1950) (illustrating this proposition mathematically).
176. See, e.g., Levine & Moreland, supra note 131, at 422 (observing that "in larger groups, coordination losses are also more likely")
177. Moreland et al., supra note 131, at 13 (observing that larger groups "often experience coordination problems that can interfere with their performance").
178. Dilemmas and Cooperation 117, 117, 132 (Ulrich Schulz et al. 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)
179. Moreland et al., supra note 131, at 14 ("There is more conflict among the members of larger groups, who are less likely to cooperate with one another." (citations omitted)).
180. See, e.g., Pennington, supra note 133, at 79 ("Larger groups, of say seven or more, do have a tendency to break down into smaller subgroups.").
181. See, e.g., id. at 56-68 (observing that social loafing is more likely to be a problem as group size increases)
182. 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)
183. Levine & Moreland, supra note 131, at 422 (noting that "motivation losses due to social loafing, free riding, and efforts to avoid exploitation" are more likely in larger groups)
184. See, e.g., Pennington, supra note 133, 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.").
185. To be sure, we do not want to overstate the import of this research for the question we are exploring here. 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-that is, 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.
186. For an analysis of induced litigation more generally, see Tracey E. George & Chris Guthrie, Induced Litigation, 98 Nw. U. L. Rev. 545 (2004).