• Matt Loft

Matt's Opinions: The Supreme Court

Democrats favor the idea of expanding the Supreme Court because they think it will help them politically.

Conservatives, as usual, are just saying "no" like 5-year-olds instead of listening to the issues and giving alternative plans. I want to change that with this post.

The number of Supreme Court seats has a checkered history of political malfeasance from both sides. The latest count of Justices has maintained steady for the last 150+ years. The Senate's unofficial reason to change the count in 1869 from 7 to 9 was to reverse a decision on what the phrase "coin money" meant in the US Constitution. However, the official justification for increasing the seats was that it aligned well with the number of Circuit Court of Appeals Districts that were created in the same year.

Since then, the number of Circuit Court of Appeals Districts has increased from 9 to 13 while the number of Justices on the Supreme Court has remained stable.

It has remained stable because FDR's naked partisan attempt to "pack the court" to ram through his New Deal proposals has tainted any idea of expanding the Court with extreme implications of corruption.

Today, we have a Court that only hears less than 1 out of every 100 cases and is split on political lines on almost every issue.

Instead of denying these problems to take a hard stance on "no new justices ever" just because there is a roughly unified government under Democrat rule, this is the chance for Republicans to become thought leaders and rise above polarized "gotchas" and provide solutions to real problems facing the country.

When our Supreme Court can only hear less than one percent of all cases, its effectiveness as a branch of government is diminished.

The fact that many of the cases regarding the US Election Laws, investigations into Donald Trump's tax returns, and many others took so long to have their petitions answered that they became moot before the Court had a chance to look at them is atrocious.

So what can we do about it? At the current rate, the Court sees 60-80 cases per year, and given an average of 240 working days in a year (52 weeks * 5 days – 20 days for holidays/illness), the Court hears a case on average every 3 days.

Now we all know that the Supreme Court hears a bunch of cases and then releases opinions all at once.

What if there was a way we could double the speed of the Court to release opinions?

My thoughts are that we could add 6 justices over the next 20 years to increase the Court size to 15. This would allow for one Chief Justice, two Chief Panel Justices, and each district would be assigned one justice as they are now.

In this model, each case that comes in would be assigned one of the Chief Panel Justices and 6 of the other justices using a randomized approach.

The Chief Justice would only be in charge of cases where the full Court has been asked for a full-court review and in cases where the Supreme Court has Original Trial jurisdiction and would preside alone like a trial judge.

When someone wants to appeal to the Chief Justice's Trial decision, they will follow the full-court review process outlined below.

For standard appellate cases, each writ would be assigned to a Chief Panel Justice and 6 randomly chosen justices from the pool. When they read the writ of certiorari for a particular case, they have 4 basic options. They can opt to take the case, opt to remand the case back to the lower court for review, opt for the case to be read in front of the full 15-member court, or to pass on the case. Only 3 justices would be required in a 7-justice panel to take the case, while 4 would be necessary to elevate the case to the full court.

If the initial panel passes on the case, the second group of seven would receive the same writ and have 3 options on what to do with the case. They can choose to hear the case by a vote of 3 justices, have the case read before the full 15-member Court by a vote of 4 justices just like before. However, if they cannot reach the 3 or 4 justice thresholds, they would deny the writ completely. The denial opinion and dissents of both panels would be recorded in the denial of cert.

If a party wants to appeal the decision of one of the 7 member panels to the full Court, they can file the appeal, and it will follow a similar process.

It will be assigned a chief panel justice and 6 random members just like before, but there will only be two options for what to do with the case. If 3 members agree to hear the case, the case will be passed to the other 7 members for review.

If 3 members of that panel also agree to hear the case, it will be scheduled for the full Court to hear. If either group of 7 cannot get 3 members to agree to hear the case, the case will be denied review from the Court.

Based on the above model, I expect each 7 member court to take on at least 60-80 cases per year and remand 10-15 cases per year to the full 15 member panel for review. This would effectively more than double the amount of cases the Court could hear every year. 24/34

The system of two randomized panels would ensure that a slim majority of any political faction cannot deny a case writ based solely on political leanings.

The plan models the system used in the circuit courts to make them work at scale.

This system could even be expanded further to a 21-person court with 4 - 5 person panels, a 29-person court with 4, 7-person panels, and so on. There must be an odd number on each panel to prevent ties.

Now that we know how the Court would work let me explain how we get there without "packing the court" on either side.

First, the Court would stay the same until one member could be added by the end of the Presidency in which the law creating the system is passed.

– meaning if we pass this law in the next 3 years, 9 months, then Biden would be able to nominate one person to take the 10th seat on the Supreme Court. The confirmation process in the Senate would remain the same. This is in addition to his responsibility to nominate justices for any seats that are vacated during his term.

Once the new Court takes effect, and the new member is added, the Court would have enough members for two 5 member panels.

One headed by the Chief Justice, and one led by the newly named Chief Panel Justice.

Thereafter, each President would nominate one additional seat per term until the desired number is reached as well as still nominating replacements as needed.

When the Court has an even number of Justices, the Chief Justice's vote will not count in a full panel review. However, he or she would be able to ask questions during the oral hearing of the case and give his or her opinion as the Court is making their decision.

When the Court has an odd number of members, his or her vote would be honored in the full-court review.

The Court would use 5 member panels until there are at least 14 total justices so that each panel would have an odd number and could definitively decide each case, and no justices would serve on both panels.

I would love to know your thoughts on this.

Please feel free to send us an email at publius@marchforthfortheconstitution.com - Matt Loft

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