Add another Supreme Court?

Great Debates
21

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.

22

[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.

23

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.

24

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?

25

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.

26

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.

27

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?

28

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.

29

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.

30

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

31

Whichever is the more recent, just the same as it is now.

32

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?

33

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.

34

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.

35

Germany has multiple “supreme courts”. Jurisdictional disputes are settles by a (rarely convened) Joint Senate of the Federal Supreme Courts of Justice, consisting of the presidents & two members of each of supreme court.

36

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.

37

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.

38

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.

39

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?

40

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).