"The Threes": Re-Imagining Supreme Court Decisionmaking

Article III authorizes Supreme but it says virtually nothing about the Court's institutional design. Consistent with this Constitutional silence, the Court's size, docket, and courtroom practices have changed dramatically. For example, the Court has had as many as ten and as few as six members, and for nearly four decades, the Court delegated decisionmaking in the summer to one Justice! In this Essay, the first in a series of essays designed to re-imagine the Supreme Court, we argue that the Court should alter its decisionmaking processes in what might seem to be a radical way but, in fact, is not. We argue that the Court, like the United States Courts of Appeals and several foreign high courts, should adopt panel decisionmaking. Based on a theoretical and empirical analysis of the costs and benefits of a panel system, we contend that if the Court were to embrace panel decisionmaking, it would be better able to fulfill its Constitutional role as the leader of an ostensibly coequal branch of government. INTRODUCTION Article III is odd. In contrast to Articles I2 and II,3 which specify in some detail how the legislative and executive branches are to be assembled, Article III says virtually nothing about the institutional design of the Supreme Court.4 Consistent with this Constitutional silence, the Court's look, shape, and behavior have adapted to changed circumstances.5 For example, the Court's membership has changed substantially.6 Initially, six Justices sat on the Court; in time, the Court grew to ten and shrank to seven. Only in 1869 did it settle at nine.7 Likewise, the Court's jurisdiction has changed, first expanding, then contracting, and then shifting.8 The Court's caseload, which is now almost entirely discretionary, was once almost entirely mandatory.9 And the Court has altered its courtroom practices in a variety of ways; for instance, the Court once allowed advocates, who rarely submitted briefs, to present oral arguments that lasted for days!10 These examples tell us something important about the past, present, and future of the Supreme Court. The current Court may consist of nine members who decide a small number of discretionary appeals en banc, but this was not always so, nor need it be so in the future. So, in light of the many important roles the Court plays in our constitutional democracy, how should it conduct its affairs? In this Essay-the first in a series of essays designed to reimagine the Supreme Court-we argue that Congress should authorize the Court to adopt, in whole or part, panel decisionmaking.11 We recognize, of course, that this proposal is likely to elicit a visceral reaction. If your politics skew left, you might tremble at the thought of Justices Scalia, Kennedy, and Thomas deciding Grutter,12 or Justices White and Rehnquist deciding for a divided panel that a woman does not have the right to choose.13 If your politics skew right, you might fear a world in which the inconvenient truth is not an Academy Award-winning documentary,14 but rather a decision by Justices Stevens, Souter, and Ginsburg to send Al Gore to the White House.15 Whatever counterfactual you find troubling, your visceral reaction probably reflects two presumed costs associated with a move to a panel system: the prospect of different outcomes and the prospect of lower-quality decisions. With respect to the prospect of different Court outcomes, we demonstrate empirically in this Essay that the vast majority of cases decided during the late twentieth and early twenty-first centuries-including Grutter, Roe, and Bush v. Gore16-would have come out the same way if the Court had decided them in panels rather than as a full Court.17 Indeed, if the Supreme Court had implemented threeJustice panels plus an en banc procedure similar to the one used by the United States Courts of Appeals,18 we think you could count on one, two, or maybe a few hands the number of cases that would have come out differently. …