Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The death of Justice Ruth Bader Ginsburg in 2020 and Justice Antonin Scalia in 2016 show how arbitrary our system for appointing Justices to the Supreme Court has become, how much control of the Court depends on luck, and how much our current system encourages brute exercises of political power. There is a much better way to appoint our Justices. It does not require either court packing or ending life tenure, and it does not require a constitutional amendment. It can be implemented through ordinary legislation at any time.
My proposal builds on earlierproposals that a wide range of constitutional scholars have offered and supported. The basic idea is this: The President appoints a new Justice in every odd-numbered year. Congress creates two en banc courts: The first is an en banc court for deciding cases under the Court's original jurisdiction, consisting of all the active Justices. The second is an en banc court for deciding cases under the Court's appellate jurisdiction, consisting of the nine Justices most junior in service.
The more senior Justices retain life tenure and their salaries, and the Chief Justice remains the administrative head of the Judicial Branch of government. The more senior Justices remain on the Court to hear cases Justices involving the Court's original jurisdiction, to pinch-hit when a junior Justice is recused from the appellate en banc panel, to consider the mountain of petitions for certiorari the Court receives every year, and to hear cases on the federal courts of appeals. The precedent for requiring Justices to "ride circuit"-- to hear cases in the lower federal courts-- goes back to the country's founding. The number of Justices deciding Supreme Court appeals always remains nine, but the composition of the appellate en banc panel changes every two years like clockwork.
Note that because the proposal simply creates two different en banc
panels for original and appellate jurisdiction, and allocates duties of
circuit riding, it is completely consistent with the commissions of
existing Supreme Court Justices. Thus, it can be applied to existing Justices as well as to new ones. One might insist that this proposal does "pack" the court with respect to original jurisdiction, but for the most important cases, involving appellate jurisdiction, the number of Justices does not increase.
What does this approach mean in practice? Suppose we begin the new system in 2023. The most senior Justice, Clarence Thomas, would no longer regularly be on the appellate en banc panel as soon as the Senate confirmed the first new appointment. Two years later, in 2025, it would be Justice Stephen Breyer's turn, followed by Chief Justice John Roberts (who would remain administrative head of the federal judiciary), Justice Samuel Alito, Justice Sonia Sototmayor, Justice Elena Kagan, and so on.
There are no surprises. The date when a Justice leaves the appellate panel is fully predictable. There are always nine Justices to decide every appeal, and the Court is never short-handed as it was for a year after Justice Scalia's death. If a Justice dies or retires in the interim, we stock the vacancy from the pool of senior Justices, in reverse order of seniority, until the next regular appointment is made. There would be nothing that politicians could do to game the system, as Senator Mitch McConnell did in 2016.
In the new system, politicians no longer have incentives to nominate very young judges, because Justices' most important decisions will occur in their first 18 years of service. So if politicians want to influence the composition of the Court, the best way is to keep winning presidential elections. Each president gets two appointments, no more and no less. No president is shut out like Jimmy Carter. No president gets a windfall, like Warren Harding or Donald Trump.
The point of this system is to lower the stakes of judicial appointments, and to take egregious forms of constitutional hardball off the table. Politicians can still fight hard for judicial appointments. But the new rules would make it less likely that they will engage in constitutional hardball that will undermine confidence in our system of justice. If politicians of both parties understand that they are guaranteed two appointments every time their party wins the White House, and that the other party cannot gain any greater advantage, they are more likely to accept a system that promises stability and predictability.
All the reforms I've proposed here-- defining the two en banc panels, requiring senior Justices to ride circuit, and instituting regular appointments-- can be achieved through ordinary legislation. It's up to us to decide whether we want to elect politicians who will put these sensible reforms into effect.