More on Reforming the Supreme Court

David Stras

Like Jack, I am a signatory to one of the four proposals to reform the Supreme Court that have been advanced by Paul Carrington, Roger Cramton, and a distinguished group of other legal academics, practitioners, and former judges. Unlike Jack, I did not agree to support any of the proposals that would have forced senior status on Supreme Court Justices after eighteen years of active service. To be sure, the most recent set of proposals is substantially better than previous attempts as it would at least permit senior Supreme Court Justices to sit when there is a vacancy on the Court or one or more of the Justices is otherwise disqualified from hearing the case. Nonetheless, for many of the reasons I have stated in a prior co-authored article addressing other term limit proposals, see here, I view the current proposal as suffering from serious constitutional problems. In short, any statutory attempt to alter life tenure is, in my view, inconsistent with Article III’s command that federal judges shall hold their office during “good Behaviour.”

I also appreciate that the proposals mention, but do not support, some of the reforms that I have advocated for in the past, such as giving a monetary bonus to Supreme Court Justices who elect to retire in a timely fashion and reinstituting circuit riding, see here and here. Though they are not formally part of the package of reforms that have been sent to congressional leaders and members of the Obama Administration, the proposal mentions them as “alternatives to be considered if the more modest proposal we advance is thought to raise a problem under Article III.” Paul was also very kind to include me in some of the early discussions of these reform measures even though we could not eventually agree on language that would have resolved my concerns about the constitutionality of the proposed Judiciary Act of 2009.

I did, however, agree to support proposal four, which would increase the number of cases that the Supreme Court hears each Term. Though I would have gone even further, the proposal states that the Supreme Court shall not hear fewer than 80 cases or more than 100 cases per year. I actually believe that the Court’s optimal docket size is between 100 and 120 plenary cases per year, but I do view this proposal as a step in the right direction. Most significantly, the proposal would create a Certiorari Division (comprised of five members) that includes all available Senior Supreme Court Justices and circuit judges that have served for at least eight years. The circuit judges would be selected to the Certiorari Division on a rotating basis. I am working on a book manuscript that addresses the Supreme Court’s docket and I plan to advance a proposal that contains different elements to achieve a similar goal, but I nonetheless signed on to the Judiciary Act of 2009 because I view it as an incremental improvement over the status quo.

The text of the proposal to reform the Court’s certiorari docket is available after the jump:


TITLE 3. APPELLATE JURISDICTION OF THE SUPREME COURT.

§1. REVIEW OF DECISIONS OF UNITED STATES COURTS OF APPEALS. Any judgment or order of a United States Court of Appeals may be reviewed by writ of certiorari.

§2. REVIEW OF DECISIONS OF HIGHEST STATE COURTS. Final judgments or decrees rendered by the highest court of a State in which a decision may be had may be reviewed by writ of certiorari where a question of federal law is presented.

§3. CASES CERTIFIED BY THE CERTIORARI DIVISION.* Primary authority for granting or denying a petition of any party seeking to invoke the discretionary appellate jurisdiction of the Supreme Court shall be exercised by its Certiorari Division in accord with the Court’s standards promulgated under Section 2 of Title 4. Cases so certified shall then be decided on the merits by a full Supreme Court. The Court may reverse a denial of certiorari by its Certiorari Division or may grant a petition for certiorari prior to its consideration by the Certiorari Division. The Court may also by an order signed and explained by a majority vote reverse an order of the Certiorari Division granting a petition.

§4. TERMS OF COURT. The Supreme Court shall hold at the seat of the government a term of court commencing on the first Monday in October of each year. It shall hear and decide all cases certified in the preceding calendar year pursuant to Section 3 of this Title for its decision on the merits

TITLE 4. JURISDICTION AND ORGANIZATION OF THE CERTIORARI DIVISION

§1. JURISDICTION. The Certiorari Division of the Supreme Court shall consider all pending petitions for writs of certiorari and shall during each calendar year grant not less than eighty nor more than one hundred petitions for cases to be decided on the merits. The Supreme Court may by rule increase the number of petitions that its Certiorari Division shall grant.

§2. STANDARD FOR GRANTING CERTIORARI. The Certiorari Division shall by majority vote grant writs in those pending cases in which a decision on the merits by the Justices would appear to best serve the public interest. The Supreme Court may by published rule provide a more explicit definition of the public interest and establish such other procedures as it deems appropriate for its Certiorari Division including a rule authorizing parties to seek in urgent circumstances immediate consideration of a petition by the Supreme Court.

§3. SESSIONS OF THE DIVISION. The Certiorari Division shall confer at the seat of the government for at least four terms each year at such times as the Supreme Court by rule shall establish. At each session, it shall consider all pending petitions for writs of certiorari and shall grant a number reasonably proportionate to the limits specified in Section1 of this title.

§4. JUDGES OF THE CERTIORARI DIVISION. The judges of the Certiorari Division shall include all available Senior Justices and all United States Circuit Judges who have held office for eight years and are not serving as chief judges of their respective circuits. Five shall be designated by the Judicial Conference of the United States to sit at each session of the division, one of whom shall be designated as chief judge for that session The Judicial Conference shall by rule establish a system of random rotation to assure that this duty is evenly distributed among the eligible Senior Justices and Circuit Judges and that the five-member panels shall not be constant.

§5. PROCEEDINGS OF THE CERTIORARI DIVISION. The Certiorari Division shall conduct no formal hearings. Its judges may attend its sessions by videoconference. It shall publish no opinion of the division, but the votes of the five judges shall be recorded and any member of the conferring panel may publicly dissent from a denial of a writ for the purpose of encouraging the Supreme Court to grant a petition notwithstanding its denial by the Certiorari Division.


Posted 10:17 PM by David Stras [link]