Add another Supreme Court?

[Sage Rat]

This thread in GQ (http://boards.straightdope.com/sdmb/showthread.php?t=560746), particularly Elendil's Heir's comment that the justices are phenomenally busy made me think. With an ever-growing body of law and an ever-growing population count, it's conceivable that at some point 9 justices simply can't handle the quantity of cases that they should. A lot of work can be passed on to clerks and aids so that the Justice himself is only peripherally involved. Lower courts can be increased so that it takes a greater number of appeals to make it to the top. The former of these two options has its limit to how far it can go, and the latter is just silly.

Personally, I would say that if the Justices are too busy to be able to argue the cases amongst themselves, then we have reached the point where we have too few courtrooms for the needs of our nation. I don't see any particular downside to splitting the workload between two courts each with nine Justices.

The only question is how to appoint the new batch for the first time. The party that wasn't holding the Executive branch would think it unfair to let half of the Court be appointed by their opponents. But I think it would be fair enough to say that, for example, each Justice suggest one or two replacements for himself and then the Legislature approves it for just the first time. After the new Court had been established and filled, Presidential appointment would resume as Justices retired.

[Randy Seltzer]

Not constitutional under the current scheme. You'd need an amendment: The judicial Power of the United States, shall be vested in one supreme Court...

[Sage Rat]

Not constitutional under the current scheme. You'd need an amendment:
Yes, that was implicit.

[LawMonkey]

While they're certainly busy, they've been busier in the past. I can't find figures right now, but the caseload has been on a fairly steady decline since at least the 80s; it's at or near a historic low right now. Back in the 1800s, they used to ride circuit, too!

Cert petitions are another thing--again, no figures, but I don't doubt that the number has increased and will continue to. I expect that there's a significant percentage that are either clearly lacking in merit, or else just don't present a question that falls into one of the several limited categories that the Supreme Court is interested in (Federal constitutional law, or major questions of federal statutory law). Besides that, my somewhat rusty understanding is that the clerks handle most of the gruntwork with the cert pool.

That they don't hash out the cases over the table isn't particularly surprising. It's not as if they're not debating them--they're just doing it through draft opinions and notes back and forth. Given the complexity of the issues that a Supreme Court case may raise, passing incredibly long, dense notes is probably better suited than talking it out in person, really.

[brickbacon]

This thread in GQ (http://boards.straightdope.com/sdmb/showthread.php?t=560746), particularly Elendil's Heir's comment that the justices are phenomenally busy made me think.

I'm sure they are busy, but they take fewer (http://www.thefreelibrary.com/The+shrinking+docket-a018341048) cases today, and have more clerks to help. If anything, they don't work hard enough, IMO. How many really difficult jobs are regularly done by octogenarians?

[Der Trihs]

The only question is how to appoint the new batch for the first time. The party that wasn't holding the Executive branch would think it unfair to let half of the Court be appointed by their opponents. But I think it would be fair enough to say that, for example, each Justice suggest one or two replacements for himself and then the Legislature approves it for just the first time. After the new Court had been established and filled, Presidential appointment would resume as Justices retired.It might also be a good idea for 4-5 of the new SC to be members of the old. That would ensure that neither court is fully composed of newly appointed Justices, and psychologically speaking would help transfer some of the prestige of the old to the new as well.

[hansel]

Doesn't this recreate the problem that the Supreme Court was supposed to solve, namely having a single authoritative court? What if there was a point of law disputed between the two? Then you'd need a court above them to settle it, at which point all you've done is add a layer beneath the Supreme Court, in effect.

[Sage Rat]

Doesn't this recreate the problem that the Supreme Court was supposed to solve, namely having a single authoritative court? What if there was a point of law disputed between the two? Then you'd need a court above them to settle it, at which point all you've done is add a layer beneath the Supreme Court, in effect.
For that to happen, you'd have to have two cases occur at essentially the same moment. Otherwise, it's no different from the modern court dealing with an issue that conflicts with a ruling from a previous court. And if that did occur, I think it would be easy enough for the two courts to foresee this and see to it that both cases end up getting taken by the same court.

[Polycarp]

I'm sure they are busy, but they take fewer (http://www.thefreelibrary.com/The+shrinking+docket-a018341048) cases today, and have more clerks to help. If anything, they don't work hard enough, IMO. How many really difficult jobs are regularly done by octogenarians?

Cite?

[alphaboi867]

Not constitutional under the current scheme. You'd need an amendment:

What if instead of creating another Supreme Court we double the number of justices on the current one, but have them sit in panels instead of hearing everything en banc? Most appeals courts work that way. Of course how would we go about assigning cases to the panels. Assign them at random, or have each panel specialize in an area of the the law? There'd need to be some mechanism to deal with panels issuing conflicting opinions. Maybe then the whole court would need to sit en banc (I imagine that could get rather chaotic with 18-20 justices all hearing the same case).

[hansel]

For that to happen, you'd have to have two cases occur at essentially the same moment. Otherwise, it's no different from the modern court dealing with an issue that conflicts with a ruling from a previous court. And if that did occur, I think it would be easy enough for the two courts to foresee this and see to it that both cases end up getting taken by the same court.If that's true, then why have a Supreme Court at all? Why can't the various circuit courts handle things? They already have a mechanism, geography, by which the same courts hear the same cases, and a pseudo appeals procedure where a decision by a panel of three judges can be revisited en banc--by the full nine, IIRC.

[Typo Knig]

IANAL, but I remember hearing a suggestion, I forget where, that a separate court for purely inter-state matters might lower the SCOTUS' workload. But what percentage of the SCOTUS case load is for inter-state matters? Such cases rarely make the general interest news, so I wouldn't have heard of them. Even if a "Court of Interstate Appeals" existed, how many cases would just end up at the SCOTUS anyway?

Another second-hand, non-lawyer observation: the SCOUTS may be taking fewer cases, but how many cases is it leaving alone to let the lower-court ruling stand? If the SCOUTS could take more cases and settle more issues, wouldn't that be a good thing?

[Boyo Jim]

This thread in GQ (http://boards.straightdope.com/sdmb/showthread.php?t=560746), particularly Elendil's Heir's comment that the justices are phenomenally busy made me think. With an ever-growing body of law and an ever-growing population count, it's conceivable that at some point 9 justices simply can't handle the quantity of cases that they should. A lot of work can be passed on to clerks and aids so that the Justice himself is only peripherally involved. Lower courts can be increased so that it takes a greater number of appeals to make it to the top. The former of these two options has its limit to how far it can go, and the latter is just silly....


You have this entirely backward. What is silly is to imagine that the "work" the Justices do can be passed off to clerks and aids. Equally silly is the idea of TWO "Supreme" courts. There is simply no way that eventually their ruling on various cases wouldn't eventually some into conflict with one another. And it is not silly at all to create some higher level of appeals court to make decisions that need not rise as far as the Supreme Court.


For that to happen, you'd have to have two cases occur at essentially the same moment. Otherwise, it's no different from the modern court dealing with an issue that conflicts with a ruling from a previous court. And if that did occur, I think it would be easy enough for the two courts to foresee this and see to it that both cases end up getting taken by the same court.

No, there is no reason why such cases would have to be simultaneous. All it would take is for one group of Justices to decide the earlier group got something wrong. Even now the court occasionally overturns one of its old rulings. Having two courts that can overrule each other is a bad idea. Having two courts that CAN'T overrule each other sounds even worse to me.

I can see the sense of having a larger pool of Justices to hear cases, and not all of them have to participate in every case.

[Sage Rat]

No, there is no reason why such cases would have to be simultaneous. All it would take is for one group of Justices to decide the earlier group got something wrong. Even now the court occasionally overturns one of its old rulings. Having two courts that can overrule each other is a bad idea. Having two courts that CAN'T overrule each other sounds even worse to me.

I can see the sense of having a larger pool of Justices to hear cases, and not all of them have to participate in every case.
I'm not seeing how that makes any practical difference. Two courts duking it out or two (or three) groups of justices duking it out amounts to the same thing.

[brickbacon]

Cite?

For what?

[The Flying Dutchman]

This thread in GQ (http://boards.straightdope.com/sdmb/showthread.php?t=560746), particularly Elendil's Heir's comment that the justices are phenomenally busy made me think. With an ever-growing body of law and an ever-growing population count, it's conceivable that at some point 9 justices simply can't handle the quantity of cases that they should. A lot of work can be passed on to clerks and aids so that the Justice himself is only peripherally involved. Lower courts can be increased so that it takes a greater number of appeals to make it to the top. The former of these two options has its limit to how far it can go, and the latter is just silly.

Personally, I would say that if the Justices are too busy to be able to argue the cases amongst themselves, then we have reached the point where we have too few courtrooms for the needs of our nation. I don't see any particular downside to splitting the workload between two courts each with nine Justices.

The only question is how to appoint the new batch for the first time. The party that wasn't holding the Executive branch would think it unfair to let half of the Court be appointed by their opponents. But I think it would be fair enough to say that, for example, each Justice suggest one or two replacements for himself and then the Legislature approves it for just the first time. After the new Court had been established and filled, Presidential appointment would resume as Justices retired.

Think about it. Canada has a supreme court very similar in makeup to the US.To compare, the US would need at least nine other supreme courts to match our resources for finalizing the national interpretations of our constitutions and legislation.

[hansel]

I'm not seeing how that makes any practical difference. Two courts duking it out or two (or three) groups of justices duking it out amounts to the same thing.If Supreme Court A rules X and Supreme Court B, in another case, rules Y that overturns X, and then another case comes to Supreme Court A involving X, which way should A rule? They ruled X, and in their consideration X holds and Y is wrong. If they overrule Y you have dueling courts, which is exactly what a single Supreme Court is supposed to avoid; if they uphold Y just to avoid overturning a precedent that overturned theirs, then they're not a Supreme Court, are they?

You didn't answer my earlier question either, about why in your opinion the circuit courts are insufficient.

[Northern Piper]

Think about it.

There is one significant difference between the two courts: the SCC sits in panels of less than the full court: 5 or 7 judge panels are fairly common. That does provide a way to even out the workload a bit, by not having the full court sit on all matters.

[Noel Prosequi]

There is peril in having too many intermediate appellate courts in the vertical structure. The first is the absence of finality - litigation drags on for longer. The second is defining the function of the new intermediate courts. Generally, it is a good idea to have one trial, one appeal that is a (relatively) wide ranging review of the merits, and one ultimate appeal for the odd case that throws up something deep, or to resolve differences among appeal courts, etc. You also need an ultimate court of appeal for disputes between the states. Of course there is no reason why the number of appellate courts in the horizontal axis can't be increased - there is no magic in the number 9 as the number of Circuit Courts. There could just as easily be 12.

In America, of course, the position is complicated by the presence of various constitutional arrangements which increases the number of potential appeals, but at least the role of the various intermediate courts - what issues they can look at - is fairly clearly defined.

Just injecting another level of appeals, without indicating what it does that value-adds to the process below it or above it, doesn't really help things.

Having two simultaneous Supreme Courts cannot work. As pointed out above, there will necessarily, and quickly, be differences just as there are among the Circuit Courts. One court of ultimate appeal is a hallmark of national unity. If you have two, then one part of the country is living under different rules than the other, whether the jurisdiction is divided geographically or in some other way. Why not have two presidents on the same principle? Very quickly you wind up like the Eastern and Western Roman Empires.

The Supreme Court has a mechanism for controlling its workload, as do all ultimate courts of appeal. It doesn't have to take all the cases that people want it to hear. It can decide that the point raised is of insufficient importance to warrant Supreme Court review, or use a variety of other devices to refuse a full hearing. It knows how many cases it can effectively handle a year. It applies triage. There are some 10,000 applications a year to the Supreme Court. It hears about 100.

Having said that there needs to be a single ultimate court of appeal, there are countries with an ultimate court for general issues and a purely consitutional ultimate court. This seems to work with goodwill, but it is always possible for such courts to disagree with each other about where the boundary is, to much confusion. On balance, the single court model is (IMV) preferable.

There is something to be said for appointing more justices, or for sitting benches of less than 9 in given cases. Many other parts of the world sit less than the full bench in most cases. Of course, I suspect that some judges fear that the results would be stacked if they didn't sit, but that is a matter of judicial culture. It doesn't seem to bother other countries. The convention is that even if (say) 5 judges are listed from those available for a particular appeal, anyone can "pull up their chair" and join in if it is a matter of particular concern to them.

And there is much to be said for a mandatory retirement age - 70 or 75 perhaps. For every legal luminary you sadly lose by that process, you happily lose many more duds who are past it. The age limit preserves the independence of the judiciary yet substantially (but not completely) removes the arbitrariness of juges being able to manipulate which stripe of government will appoint his/her successor by a judicious choice of when to resign.

[Typo Knig]

And there is much to be said for a mandatory retirement age - 70 or 75 perhaps. For every legal luminary you sadly lose by that process, you happily lose many more duds who are past it. The age limit preserves the independence of the judiciary yet substantially (but not completely) removes the arbitrariness of juges being able to manipulate which stripe of government will appoint his/her successor by a judicious choice of when to resign.

You make very good points. But SCOTUS judges being able to somewhat influence their successors by choosing when to retire is, in my not at all humble opinion, crucial to the preservation of liberty. If GWB had chosen Justice Stevens' successor, only the corporations in the Fortune 500 would have rights, and ordinary citizens would have none. I am exaggerating, but not by enough.

[Noel Prosequi]

Regrettably I have to disagree. It is one of the separation of power issues that the executive should appoint the judiciary. The executive is voted in, the judiciary is not, and the exective is answerable politically for its choices. Indeed, in my country there is an affirmative convention that retiring judges should not seek to influence the appointment of their replacement.

Sub rosa manipulation of the system by the justices themselves has the capacity (in theory) to create a self-perpetuating cabal of the like minded of whatever political stripe. You ought not change the rules just because of the (overheated) politics of the hour. You realise the reverse of your argument is true as well - conservative judges could manipulate their own replacements as well. In general, Senate confirmation hearings are not impotent when it comes to preventing the sorts of abuses you fear.

I said in my post that the retirement age thing almost gets rid of this possibility. It doesn't completely do so because judges can retire early if they wish to manipulate the system in the same way. That of course carries with it greater costs to the judge themselves, and so is less attractive than the presently available alternative - holding on past one's use-by date just to make sure one's replacement is appointed by a like-minded executive.

[Boyo Jim]

[Hijack/] So if a Justice lapses into a coma without officially retiring, are we stuck with a comatose Justice until the family decides to cut off life support? I undertand impeachment is technically a possibility, but I can't see the Congrees being able to carry such a thing out for the "crime" of being unconscious. Talk about a political mightmare -- it would make the Terri Schiavo controversy look like a... well, I was gonna say tea party, but never mind.

[Bearflag70]

How about a layer of "Super-Circuit Courts of Appeal"

Super-Circuit 1 hears appeals from Circuits 1 to 5

Super-Circuit 2 hears appeals from Circuits 6 to 9

This would cut down on the number of SCOTUS cases arising out of conflicting circuit opinions.

[BrainGlutton]

I don't see any particular downside to splitting the workload between two courts each with nine Justices.

It's the Supreme Court because it has the final say on federal judicial decisions, which allows for a final definitive resolution on any contested point of law. If there were two of them, and they reached incompatible rulings on some point, which trumps which?

[AK84]

Seriously, it would be a good idea to benchs of 3, 5 or 7 judges hearing cases and in addition rasing the number of Justices to 13 or 15.

[Typo Knig]

Regrettably I have to disagree. It is one of the separation of power issues that the executive should appoint the judiciary. The executive is voted in, the judiciary is not, and the exective is answerable politically for its choices. Indeed, in my country there is an affirmative convention that retiring judges should not seek to influence the appointment of their replacement.

Sub rosa manipulation of the system by the justices themselves has the capacity (in theory) to create a self-perpetuating cabal of the like minded of whatever political stripe. You ought not change the rules just because of the (overheated) politics of the hour. You realise the reverse of your argument is true as well - conservative judges could manipulate their own replacements as well. In general, Senate confirmation hearings are not impotent when it comes to preventing the sorts of abuses you fear.

I said in my post that the retirement age thing almost gets rid of this possibility. It doesn't completely do so because judges can retire early if they wish to manipulate the system in the same way. That of course carries with it greater costs to the judge themselves, and so is less attractive than the presently available alternative - holding on past one's use-by date just to make sure one's replacement is appointed by a like-minded executive.

Yours is a good point, but I was not proposing a change in the current US system. I was pointing out an advantage I see in the current US system. Justices tend to hold on in an attempt to have their replacement appointed by a like-minded executive. That did not work out well for Mr. Justice Marshall. I hope it works out well for Mr. Justice Stevens. I'm sure that the pro-gun-rights Dopers can make a similar argument for the conservative Justices on the court holding on as long as possible.

It's not just the politics of the hour, it's an entire judicial philosophy and approach.

I think that for a lawyer, especially a constitutional scholar, being on the SCOTUS is the best possible job in the universe. These folk are disinclined to leave, even after their use-by dates. I suspect Justice Stevens was ready to retire anyway, but that having a somewhat-like-minded POTUS in place was a nice benefit. After all, Stevens could have retired after the upcoming SCOTUS term, and still had the same administration in place to pick his replacement.

[Typo Knig]

The Supreme Court has a mechanism for controlling its workload, as do all ultimate courts of appeal. It doesn't have to take all the cases that people want it to hear. It can decide that the point raised is of insufficient importance to warrant Supreme Court review, or use a variety of other devices to refuse a full hearing. It knows how many cases it can effectively handle a year. It applies triage. There are some 10,000 applications a year to the Supreme Court. It hears about 100.

The SCOTUS only hears 1% of the cases that come before it? Wow. What can be done to reduce the number of cases that reach that level, and to get the Court to be able to handle more of them. When you're only handling 1% of your workload, you have to both reduce the incoming work and increase your efficiency - you can't just do one thing and dig yourself out of the backlog.

How does this 1% rate look historically? Is it common, or are we demanding so much of the Court that it's an all-time low?

[Squink]

Not constitutional under the current scheme. You'd need an amendment: Originally Posted by Article III, section 1
The judicial Power of the United States, shall be vested in one supreme Court...Seems like switching might provide the answer here. One actual supreme court, several dozen 'supreme courts in waiting'; switch the designated supreme court between em on a weekly basis. -No need to alter the constitution to do it this way.

[AK84]

The SCOTUS only hears 1% of the cases that come before it? Wow. What can be done to reduce the number of cases that reach that level, and to get the Court to be able to handle more of them. When you're only handling 1% of your workload, you have to both reduce the incoming work and increase your efficiency - you can't just do one thing and dig yourself out of the backlog.

How does this 1% rate look historically? Is it common, or are we demanding so much of the Court that it's an all-time low?

You misunderstand. Like almost all Apex courts worldwide, you do not have a right to be heard before the US Supreme Court, you have to first establish that there exists a prima facie case on a major point of law and that it is a matter of public importance. US Lawyers can explain further, but I believe that there is a hearing to determine this before a panel of Justices. Very few applications are granted leave to appeal, an appeal which the full court hears.


Its similar in most other Juridictions, the UK House of Lords refused leave in 7/8 petitions, the Canadian Supreme Court accepted about 100, the High Court of Australia turns down most leave petitions as does the Indian Supreme Court, and in Pakistan, Civil Petitions for Leave to Appeal are often called, "Counsel's Pants Lost with Alarcity", you can imagine how many are granted.


The above comes from a Law School Essay I did a few years ago on Final Appeals and how often they were heard, is probably out of date with respect to numbers but generally true with respect to principle.

[Captain Amazing]

US Lawyers can explain further, but I believe that there is a hearing to determine this before a panel of Justices. Very few applications are granted leave to appeal, an appeal which the full court hears.

The court receives petitions for writ of certiorai, and it takes 4 of the 9 justices to agree to grant the writ.

[Sage Rat]

It's the Supreme Court because it has the final say on federal judicial decisions, which allows for a final definitive resolution on any contested point of law. If there were two of them, and they reached incompatible rulings on some point, which trumps which?
Whichever is the more recent, just the same as it is now.

[hansel]

Whichever is the more recent, just the same as it is now.I raised the problem with this above, and you haven't addressed it. Court A rules X, Court B rules Y that effectively overturns X, and a third case comes to court A regarding X. They hold that X, but the most recent precedent is Y. Do they overturn Y because they hold X? Then you've got dueling courts, where the law depends which court you end up in. How is this not exactly the problem that is supposed to be addressed by having a single Supreme Court?

[AK84]

Quite a few Civil law Countries follow the Austrian model of having more than one Court of last Resort, often a Constitutional Court which as the name suggests hears matters of a Constitutional nature and a regular final Court of Appeals, and occassionally a third court for Administrative matters.

Theoretically, each court has a specific, non overlapping juridiction, in practice since cases, especially cases which reach the apex courts, rarely are single issue, there are certain conflicting judgements.

For instance in France for many years there was a dispute between the Council D Etat and the Court Constutionnal the two highest courts on the applicability of EC law to France.

[Captain Amazing]

Quite a few Civil law Countries follow the Austrian model of having more than one Court of last Resort, often a Constitutional Court which as the name suggests hears matters of a Constitutional nature and a regular final Court of Appeals, and occassionally a third court for Administrative matters.

The states of Texas and Oklahoma each have more than one court of last resort. Both states have a Supreme Court, for civil matters, and the Court of Criminal Appeals, for criminal matters.

[alphaboi867]

...Theoretically, each court has a specific, non overlapping juridiction, in practice since cases, especially cases which reach the apex courts, rarely are single issue, there are certain conflicting judgements...

Germany has multiple "supreme courts". Jurisdictional disputes are settles by a (rarely convened) Joint Senate of the Federal Supreme Courts of Justice (http://en.wikipedia.org/wiki/Joint_Senate_of_the_Supreme_Courts_of_Germany), consisting of the presidents & two members of each of supreme court.

[Northern Piper]

There are some 10,000 applications a year to the Supreme Court. It hears about 100.The SCOTUS only hears 1% of the cases that come before it? Wow. What can be done to reduce the number of cases that reach that level, and to get the Court to be able to handle more of them. When you're only handling 1% of your workload, you have to both reduce the incoming work and increase your efficiency - you can't just do one thing and dig yourself out of the backlog.

Noel Prosequi wasn't saying that the Court has a backlog of 99% of its cases waiting to be decided; rather, it only grants cert. in 1% of the cases where a party tries to appeal.

It's not the job of an ultimate appeals court to hear every appeal that the parties want it to hear. Its job is to hear and decide those cases that raise an issue of sufficient public importance to be decided by the final court.

As a general rule, parties only have a right to appeal one level, to the intermediate courts of appeal. If they want to go past that to the ultimate court of appeal, they have to show that their case is special in some way, warranting the attention of the highest court.

[Noel Prosequi]

Northern Piper has it. There is no backlog. The vast majority of cases they reject are rejected on the basis that no sufficiently important point emerges from them. They are disposed of on the papers (in the US). Other countries have brief hearings to give the parties a chance to persuade the court that it should take the matter on, but the principle is the same. By deciding not to hear the point, the court is rejecting the appeal.

The point is made that some countries have several ultimate courts of appeal for different purposes, and there has been criticism of this upthread (including by me).
Captain Amazing observes that there is often a separation between appellate courts hearing criminal as opposed to civil matters. That is not a problem because the distinction between the two is tolerably easy to define by reference to the procedural methods by which the case came to be tried in the first place.

It is a deeper problem to decide whether Miranda (for example) is a criminal case or a constitutional case. It clearly is both, and the distinction is vastly more difficult to draw. And that is a trivial example of the complexity of drawing the boundaries in cases which could conceptually go to either a constitutional ultimate court or a general ultimate court.

Uncertainty about where to go then arises. This encourages people to file in both courts to preserve their position. But what if both courts claim jurisdiction? What if neither does?

It is important to understand procedurally just what appeals are. They are (generally) not merely rehearings of the whole case on the merits, as if it was a trial all over again. By whatever formulation is used in various jurisdictions, intermediate courts of appeal pay great deference to the decision of the jury (or factfinder) who has had the benefit of actually seeing the witnesses. This is considered to be a particular advantage in determining who among the witnesses is telling the truth, and so appellate courts are loathe to intervene in those sorts of determinations.

If appeals were rehearings from scratch, there would be no point in having the primary court in the first place. You may as well just start the process with the court of appeal.

Thus, there are practical restrictions on what an intermediate court of appeal can consider. They tend to have a broad remit, but in practice cases before them tend to resolve to technical questions about the trial judge's directions to the jury, about whether defences were properly described in the directions to the jury, whether evidence was properly admitted or excluded, and so forth. In some cases, the court will consider whether there really was sufficient evidence for any jury to convict (or find for the successful party), but (again generally) there is constitutional role for the jury and an appellate court does not merely substitute its judgment for that of the jury because it feels like it.

The next level of appeal (to the ultimate court of appeal) is generally only about major issues of law of sufficient public importance to justify intervention. An assertion that an accused is innocent is not nearly sufficient to get the attention of an ultimate court of appeal other than in wholly exceptional circumstances.

In the US, there are various habeas corpus proceedings invented historically so that dubious decisions in what were once thought to be dodgy "Roy Bean" state courts could be reviewed in a federal court and there are appellate structures with the capacity to get constitutional points cranked up in a variety of ways, but it is not at all clear what a whole new level of courts (as has been suggested) would add.

There is no point to injecting a new level of court into the hierarchy just to reduce workload. To do that, you appoint more judges at the overworked level. What would a new level do that was different from the one above or below it? Until that is defined clearly, there is simply no point to a new level if it just has the same remit as the one below it. Once again, why bother with the one below it? You may as well cut out the middle man.

[Sage Rat]

I raised the problem with this above, and you haven't addressed it. Court A rules X, Court B rules Y that effectively overturns X, and a third case comes to court A regarding X. They hold that X, but the most recent precedent is Y. Do they overturn Y because they hold X? Then you've got dueling courts, where the law depends which court you end up in. How is this not exactly the problem that is supposed to be addressed by having a single Supreme Court?
Because they're adults and can figure out that they're not solving anything. You're presuming two courts filled with 10 year olds.

I think that the chance of such an issue arising is already small enough without presuming that the two courts will then go into a pissing match over it. Judges like precedent to stand for exactly this reason, and I don't imagine that this would vanish because the span between the judges was a year or two rather than a decade or two.

[Piker]

Because they're adults and can figure out that they're not solving anything. You're presuming two courts filled with 10 year olds.


What does that even mean? If you have Supreme Court A that wants X and Supreme Court B that wants ~X, who decides? You don't see how that's a problem?

[clairobscur]

For instance in France for many years there was a dispute between the Council D Etat and the Court Constutionnal the two highest courts on the applicability of EC law to France.

Nitpick : It was between the "conseil d'etat" (State Council, heading the admnistrative courts where cases involving public authorities are involved) and the "cour de cassation" (heading the "regular" courts in charge of civil and criminal cases). The constitutional council wasn't involved.

There was in fact no real conflict since both courts didn't hear the same types of cases. Still it was weird that the same principles weren't applied. Ultimately the council of state followed the lead of the "court de cassation".

For the record , the issue was whether or not a treaty had precedence over a law voted by the parliamen t (It is stated in the constitution, but courts had refused to "void" a law on the basis that it contradicted a treaty until the development of the EU and its huge amount of legislation made this position untenable).

[Northern Piper]

I agree generally with Noel Prosequi's points above, with one quibble and one qualification.

The quibble is with this statement:

By deciding not to hear the point, the court is rejecting the appeal.I think it's better to say that the Court is not deciding the issue and lets the lower court decision stand. My understanding of the cert. practice in the SCOTUS and the leave to appeal practice in the Supreme Court of Canada is that when the Courts refuse to take an appeal, that decision is not an affirmation of the lower court decision, and does not have any precedential value. (That is, lower courts do not treat the denial as a precedent on that point from the Supreme Court.) The Court simply doesn't want to take that particular appeal.

The qualification is with this statement:

The point is made that some countries have several ultimate courts of appeal for different purposes, and there has been criticism of this upthread (including by me).
Captain Amazing observes that there is often a separation between appellate courts hearing criminal as opposed to civil matters. That is not a problem because the distinction between the two is tolerably easy to define by reference to the procedural methods by which the case came to be tried in the first place. I think that there is a major difference on this point between the common law systems and the civil law systems. In the common law systems, derived from the English courts, the model is for courts of general jurisdiction, or at least very broad jurisdictions. Thus, the major trial courts generally have jurisdiction over all matters, and the ultimate appellate courts in most common law jurisdictions are courts of general appeal, which can hear appeals on any question of law. (The SCOTUS is an exception to this general characteristic of the common law countries.) If you look at a chart of the court systems in common law jurisdictions, they tend to be pyramidal, with a number of lower courts (usually divided by territorial jurisdictions) all feeding up into a series of intermediate appellate courts, with one court at the apex.

However, my understanding is that in the civil law system, there is a much greater willingness to split up legal issues by subject matter and to have parallel court systems: a criminal court system, an administrative law courts system, a civil law court system, a commerical law court system, a family law court system, and so on - each with their own ultimate court (e.g. - the French Conseil d'État and the Cour de cassation referred to by clairobscur - they are both the ultimate appellate court for their part of the court system.)

Constitutional courts are often "to the side", so to speak - they often do not have original jurisdiction, but receive cases from the other courts, who refer them for a decision on a constitutional issue. Once the constitutional court has decided the constitutional issue, it refers the case back to the original court for further proceedings.

Now, to me as a common lawyer, that seems a weird system, and our system of courts of general jurisdiction is so ingrained in me that I don't know how the civilians make it work without turf wars between the courts, as happened between the four superior courts in England, prior to unification. However, the civilians do make it work. I don't think that model would transpose well into a common law system (although South Africa has adopted the idea of a separate constitutional court, I believe), but given the civilian experience I don't think we can say outright that it can't work. I just don't think it would work well in a common law system.

Northern Piper has it.

No quibbles or qualifications here. :p

[Elendil's Heir]

There were actually several proposals for a National Court of Appeals in the late Seventies and early Eighties; then-Chief Justice Warren Burger was very much in favor of it. But nothing came of it, because (a) one President would get to appoint all of the judges to it, and (b) Congress wasn't convinced that the Supreme Court was all that swamped. As was noted above, SCOTUS is even less busy now, so the likelihood of it happening - or of the court being "split" somehow - is very, very small.

[Rumor_Watkins]

Because they're adults and can figure out that they're not solving anything. You're presuming two courts filled with 10 year olds.

I think that the chance of such an issue arising is already small enough without presuming that the two courts will then go into a pissing match over it. Judges like precedent to stand for exactly this reason, and I don't imagine that this would vanish because the span between the judges was a year or two rather than a decade or two.

Obviously you aren't acquainted with "circuit splits" then ;)


Look, the entire point of our legal system is that many non black-and-white legal issues teeter on a pinhead, and falling to either side of the issue will still be a reasonable outcome. if you have two separate judges/groups of judges, they can both reach completely learned, reasonable opinions that are diametrically opposed to one another - you need the artificiality of the "last court" to handle this inconsistency.

[Elendil's Heir]

As the great Justice Oliver Wendell Holmes Jr. is said to have remarked, "We are not final because we are infallible; we are infallible because we are final."

[Elendil's Heir]

Some justices would like the court to be doing even more: http://www.politicsdaily.com/2010/04/29/supreme-courts-right-wing-wants-more-cases/

[AK84]

I agree with the observations made by my learned friends, Northern Piper and Noel Prosequi, but some comments

1) Northern Piper mentioned that in common law systems courts are general courts, I would say that is true of Appeals courts more than First Instance courts, for instance England and Wales, original civil; (depending on pecuniary limit, currently 50,000 pounds) County or High Courts, original Criminal, Magistrates or Crown Courts, depending on the offence. But yes our appeals courts are usually general purpose, though note that the Court of Appeal has a Criminal and Civil division.

2) Once again I must humbly disagree with my learned friends Northern Piper with respect to the US Supreme Court being different from other courts becasuse of the limits of the nature of appeals it hears. I would say that it is very much in line with other Apex Courts, the grounds of appeal are not only difficult to get admitted for hearing, they are also limited in scope, Constitutional issue are some of the easier ones to get.