State and Federal Supreme Courts should be able to conduct judicial review with no underlying case

As I understand it, the 15 week Mississippi abortion law is currently not enforced awaiting a Supreme Court case where most observers think the decision will be to put the law into effect. The big question seems to be whether the Supremes will craft a narrow decision that just allows for Mississippi’s specific law, or if they will completely throw all abortion regulation to the states. So if they did what you are saying, greater abortion restriction in Mississippi, and maybe many other states, would likely have come sooner. Is that what you want?

They would have quickly thrown out the six week Texas vigilante law if they had wanted to. There just weren’t enough pro-Roe Supreme Court votes to do it.

This is also because the Supremes don’t have the time to take on enough cases.

My wonky side says that the Supreme Court should be expanded — not to change the partisan composition, but to allow them to hear lots of cases before sub-panels. If cases were never en banc, controversial partisan decisions would be quickly reversed, and, to avoid this, I doubt they would be made in the first place.

Obviously I want the outcomes that benefit my political views, even if they come from a bad process. If abortion rights are guaranteed to get weaker due to the abortion ruling we’re about to get or some other ones down the pipeline, I’d rather bloat and inefficiency delay that result for a year or more, but that doesn’t mean that the bloat and inefficiency are inherently good.

BTW, I do think that absent all the partisan baggage, the court should be expanded.

And how does the Court know that? All laws, anywhere in the country? Federal laws? state laws? municipal laws?

And does the Court just convene a hearing with no parties or counsel and declare the law invalid, all on its own motion?

And what if only some judges want to have the matter heard?

That truly is a super-legislature.

Well if the court doesn’t know that the “Immunity for people who kick puppies law” is problematic, they do nothing and it goes through the process we have now.

My main point is that the SCOTUS already is a super-legislature on issues like abortion. We just make the lower court process clunky for those cases by pretending it’s not.

How would this be much different from the current Circuit Courts?

Keyword final. The Supreme Court looked at the case before the first election it was in effect for (2016), one day after being asked to, and actually reversed the Ninth Circuit’s stay. The District Court ruled in Arizona’s favor in May of 2018, then the 9th Cir. panel affirmed in September, both in time for the 2018 election. It wasn’t until January 2020 that the Ninth Circuit reversed en banc, but with the appeal to the Supreme Court pending they put their decision on hold for the 2020 elections.


Quick answer is – you are correct, the differences are subtle.

I don’t think it’s a certainty that the initial stay decision from the courts would automatically be in line with the final ruling, even in cases that aren’t as much of a mess as election cases.

This is why we need preclearance. Honestly preclearance nationwide was probably a good idea regardless of Shelby.

I get the feeling that you want courts to step in when the legislature fails. I can’t agree with you there, that’s not the way.


Actually no, preclearance was a non-judicial way for congress to assert it’s 15th amendment powers to protect voting rights. It was extremely effective when it was around and didn’t force courts to have to step in during controversial election disputes.

An obvious difference, depending on how they might implement it: Supreme Court decisions are nationwide in scope. Circuit Court decisions apply only in that geographic circuit. Multiple Circuit Courts might hear very similar cases and come to different decisions, thus causing “the law” to be different in different places. These situations are ripe for the Supreme Court to take up, to settle the conflicts nationwide.

If we do @PhillyGuy 's plan to have sub-panels of the Supreme Court, would their decisions apply only to local areas, or would their decisions be nationwide? Would their decisions be appeal-able to the entire Supreme Court en banc?

Yeah, I think if you have the SCOTUS split into sections it creates a weird situation where you could court-shop for specific parts of the court that lean in your direction. And I think someone would ultimately have to set the law of the land everywhere, it’s kind of untenable if federal law doesn’t apply to certain jurisdictions.

Maybe I’m wrong but I feel like just having the SCOTUS have 13 or 15 members but otherwise work as normal would allow somethings to run more smoothly. A lot of their work is individual members looking at cases that they could be putting on the docket right?

I agree with this often-made claim from the Harvard Business Review:

Nationwide with no appeal other than going through the whole rigmarole again.

Random assignment for each case.

Judges don’t like being overruled, so I don’t think there would be much risk of a different decision every year.

This goes against nothing in the Constitution. Congress could in theory try it as an experiment.

Under the proposal may a different panel overrule an earlier panel or otherwise reach a different result? What would stop hot button issues like abortion from just having leapfrogging rulings back and forth each time a new case is filed?

I’d say concern with their reputation, except that the Texas abortion rulings don’t give much recent confidence there.

Maybe they would like smaller group discussion, and not always having the same coalitions. That would be a motive to behave.

If they did leapfrog, I’d hope that Congress would undo the experiment.

The only way wonky proposals like this would get traction if public opinion got a lot more anti-polarization than at present. So the same opinion-driven forces that could, in a couple decades, make this kind of reform a reality would make it likely to last for a while. Nothing is forever.

Not my idea, but in some countries the highest court uses small panels except for constitutional issues.

I’m just trying to understand your proposal. Let’s say it was in effect in 2010 when SSM was the big legal question out there.

They way I understand your proposal is that the very first case gets assigned to a 3 judge panel. By luck of the draw, the makeup of that panel will decide the question one way or another. You say that if a second three judge panel in a subsequent case came to a different conclusion, then that would damage the judiciary’s “reputation.”

So, if I understand then the law would be like a lottery where the luckiest litigant wins, always and forever. Could Brown have overruled Plessy by one of these three judge panels?

Optimal size for group decision making is 4 - 7. But that’s a detail.

Nothing good is always and forever. Congress can change the rules the next year.

If the psychological effect on the justices is what I hypothesize, a sub-panel would have waited a few years later for the national mood to have been more congruent with Brown before ruling that way. But consider that many school districts in the Deep South didn’t comply with the 1954 Brown decision until 1970 — five years or so after private southern universities like Vanderbilt and Duke had desegregated without judicial pressure. So I wonder whether Brown really speeded up desegregation outside Topeka.

If we do find a way to make the Supreme Court more cautious, it can make it more cautious in ways progressives will like, and in ways they won’t like.

While Brown arguably was a practical failure, in terms of pushing the country in a more progressive direction, Obergefell v. Hodges has been, by the same criteria, a tremendous success. I think that situation is unlikely to be repeated, but what will be the next Obergefell could be discussed.

An alternative approach is the Supreme Court of India, which has 34 judges, to deal with all the litigation that over 1 billion people can generate.

They sit in division benches of 2 or 3, but at least 5 for constitutional matters. If a case comes up where a party is seeking to have the Court overrule one of its own precedents, the Court will sit a bench with two more judges than the division which set the precedent in issue, so overruling takes more attention. The largest division panel so far has been 13 judges.