Add another Supreme Court?

This thread in GQ, 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.

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

Yes, that was implicit.

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.

I’m sure they are busy, but they take fewer 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?

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.

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.

Cite?

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).

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.

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?

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.

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.

For what?

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.

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.

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.

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.

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.