Depoliticizing the Supreme Court: The Panel Solution

An editorial by two law professors has proposed ways to rescue the Supreme Court from the legitimacy crises that it faces in the wake of the Kavanaugh confirmation.

Of all the proposals I’ve read, I like this one the most. Some have proposed term limits for Justices, such as 18 years terms, with each President being guaranteed two nominations per term. But that wouldn’t turn down the political heat on this issue at all. If anything, it would turn it up. The Supreme Court will continue be a campaign issue every 4 years. Also, the Justices that have to step down after 18 years will have to look for work after their term ends. Perhaps they will view their time on the Court as an audition for a political career or lobbying gig, and that could influence their decision making.

The Panel Solution greatly lowers the stakes of any individual Judge being confirmed. Sure, there will still be battles fought over appeals court judges, since they will be amongst the pool of potential Justices. But the costs of confirming or rejecting any individual nominee won’t be so high.

Sounds like a good idea to me, but obviously unconstitutional. Still, if it was put forward as an amendment I would probably tell my legislators to vote for it.

Two weeks doesn’t sound like a long time to hear a complex case. And would an appeals court judge be disqualified from ruling on a case he has already ruled on in appeals court?

Also, get back to me the first time five conservative judges are empaneled and overturn Roe v. Wade.


This pre-supposes that the members of the court of appeals are somehow more diverse? more balanced? What evidence do we have of that? It seems to me that the political process has been very active in nominating / confirming / not-confirming nominees, etc. All this recommendation would do is create an equal level of scrutiny to the greater number of appeals court positions.

Then there would be attention paid to who gets rotated in/out and gaming of the calendar of cases to be considered. Currently, the SCOTUS decides on what cases to consider. Would there be a separate body that makes these decisions and sets the calendar? Who would that be? Who would decide who that would be?

Turtles, all the way down.

This is only a recent problem because of the craziness of the current Republican party.

Consider Ruth Ginsberg–way out liberal? You would expect heavy Republican opposition?

She was confirmed 96 to 3.

It’s plenty of time for oral arguments. The before and after stuff could take as much time as currently.

You raise a good issue. With the composition of the “Court” changing every two weeks, you could get a lot of back and forth on hot button issues. On the other hand, that doesn’t seem to happen with the Courts of Appeal, which basically have the same system.

This seems pretty terrible in terms of consistency.

There does not seem to be any reason why they cannot hear Appeals in benches of 3. With a full Courtn sitting for the occassional Very Important Case. This would also allow them to deal with important but straight forward things. Like yesterday’s case that Kavanaugh sat in.

You may have a point there. I wonder if we’d be seeing Roe reversed and reinstated every two weeks. Maybe shuffle the deck less often. I’d reshuffle every year.

Fascinating proposal. Is it, or anything close to it, in use elsewhere in the world?

But the Courts of Appeal are bound by Supreme Court precedent. They cannot say that Roe v. Wade is a pile of pig doots and overrule it. This rotating Supreme Court could do just that.

Could you imagine a gay couple being married and unmarried in two week intervals?

My impression is that many law professors have an exxagerated belief in a “legitimacy crisis”. I doubt “Supreme Court legitimacy” has even cracked the top 10 things people in this country are concerned about.

My understanding of the typical path a court case takes to SCOTUS is something Ilike this: Appeals Court loser files for cert, some SCOTUS justices review the appeal and give it a thumbs up or down. If it’s a thumbs up (granting cert) everyone scurries around writing briefs and collecting signatures from VIPs for a few months. After filing all that with the Court, the day for oral arguments finally rolls around. They spend a couple of hours arguing and asking questions and then everyone waits while the judges write their opinions and they finally get released.

If we went to a 2-week schedule it would seem that you would likely have justices making cert decisions for a court they won’t be a part of, and listening to oral arguments they didn’t grant cert to, and depending on the schedule, may not be particularly well-informed on.

And on the other end, Antonin Scalia was confirmed with no noticeable controversy and a 98-0 vote.

You also have a continuity issue with their staffs. Would you have a permanent group of law clerks who stayed on as the justices rotated in and out? Let’s face it, these clerks would end up running the court.

The alternative is you switch clerks along with justices every two weeks. But then who does all the research? You’re not going to get any good work done in just a couple of weeks. So you’re going to end up with a lot of under-researched half-assed decisions.

A bunch of Republicans trying to tell me the Supreme Court is no big deal and I shouldn’t worry about it reminds me a little too much of a bunch of guys hanging out on the street corner telling me I don’t need to lock my car doors and leaving my keys in the ignition would be a real time saver for me.

That echos what I was saying. It seems that those proposing the Panel Solution are deeply uninformed (or uninterested) in the actual mechanics of how the SCOTUS operates.

A bunch of Democrats told the public the same thing during the FDR Administration and during the Warren Court years. The public has a short memory.

I’m starting to think that one small part of the solution is that anyone who held a political appointment in government should not be eligible for nomination to be a judge.

So Kavanaugh and Harriet Miers, as White House counsels, would be out. Bork and Kagan, as Solicitors General, would be out.

This wouldn’t solve all the problems, but pushing nominations towards the less politically inclined would be welcome.

At various times over the years the Supreme Court has been heavily weighted in both directions, yet they almost always seem to do a pretty good job. This sounds more like “If the rules favor my side it’s OK, but if they don’t then change them”.