Monday, February 16, 2009

The Proposed Judiciary Act of 2009

In two posts last fall (here and here) I described the latest paper by Duke law professor Paul Carrington and my colleague and former Cornell Law Dean Roger Cramton urging reform of the structure of the Supreme Court. More recently, C&C have addressed their proposal to the Obama administration and Congress in the form of draft legislation (which I have posted here). The latest proposal comes in four parts, and in order to maximize support, C&C have permitted individual academics to endorse the parts separately. In addition to publicizing the proposal, I thought I'd take the opportunity here to explain why, even though I'm generally sympathetic to the proposal as a whole, I only ended up endorsing one of the four parts.

Part 1 would authorize the President to make a new appointment to the Court every 2 years, cap the active roster of Supreme Court Justices at 9, and (after a transitional period for Justices currently sitting), relegate Justices who had served 18 years to a reserve bench of "Senior Justices" from which they would be drawn to substitute in cases of recusal, while more generally retaining the more minor powers of an active Justice (such as the ability to serve on lower federal courts).

Part 2 would establish procedures for the involuntary removal of Justices deemed no longer able to perform their duties.

Part 3 would make the office of Chief Justice a 7-year term, thus ensuring that the substantial administrative duties that currently fall on the Chief are shared. (After serving as Chief, a Justice would return to his or her duties as an Associate Justice.)

Part 4 would assign much of the responsibility for deciding what cases to hear to a newly created "certiorari division" of the Court, staffed by judges of the lower federal courts.

There is much to recommend these proposals, as the draft legislation itself argues. Nonetheless, I end up only supporting Part 3.

I believe that Part 1 would, if constitutional, improve the functioning of the Supreme Court. I also believe that there are sound arguments for its constitutionality. However, I also worry that it bears an uncomfortable resemblance to the Judiciary Act of 1802, in which Jefferson and his party eliminated judgeships filled by Federalists because they disagreed with the likely decisions the Federalist judges were expected to render. To be fair to Jefferson and the Republicans of the time, though, the provisions of the Judiciary Act of 1801 that created "midnight judges," and which the 1802 Act attacked, were themselves highly problematic as a form of court-packing.

But speaking of court-packing, Part 1 also suggests Roosevelt's Court-packing plan. My worry is not that C&C are attempting to achieve substantive outcomes via organizational changes to the judiciary. I have no doubt of the purity of their motives. Rather, my concern is that adoption of this proposal by other than constitutional amendment would make easier the enactment of all manner of proposals for "jurisdictional gerrymandering" that would threaten judicial independence. Over the years, proposals to strip the Supreme Court (and the lower federal courts) of jurisdiction to hear cases involving busing, school prayer, abortion, and most recently, habeas corpus, have been justified on the ground that Congress retains substantial authority over the organization of the federal courts. On prudential grounds, I therefore come to the reluctant conclusion that I do not favor Part 1.

If Part 1 were adopted, I would have no difficulty with Part 2. However, without Part 1, I believe that there is too great a risk that Justices will (at least unconsciously) see advantage to be gained by seeking the ouster of colleagues based on illness when the President who would appoint a successor is in ideological sympathy with the Justice reporting the disability of a colleague. With appointments scheduled at regular 2-year intervals, this problem would not arise, but because I do not favor Part 1, I cannot support Part 2 either.

Part 3 strikes me as sensible. I think my first choice might be to reduce the administrative responsibilities that have been given to the Chief Justice in recent decades, but I also see the advantage of having the Chief supervise the administration of federal court business. C&C are clearly right that the same person need not do this for many many years, and 7 years seems about right for a term.

As I noted in my earlier post, I disagree with what is now offered as Part 4, as I think the Court's certiorari process functions reasonably well. It may well be true that the Court could decide more "unimportant" cases, but because I believe that our Supreme Court should be understood as something like a constitutional court in the European sense, I have no difficulty with its time spent mostly on important matters. And even under the current system, the Supremes decide a fair number of "boring" cases.

In any event, despite my signing on to only one of the four proposals, I think Carrington & Cramton deserve enormous credit for re-thinking fundamentals that are so often taken for granted.

Posted by Mike Dorf