Vanderbilt Law Review

First Page



Article III is odd. In contrast to Articles 12 and II, which specify in some detail how the legislative and executive branches are to be assembled, Article III says virtually nothing about the institutional design of the Supreme Court.

Consistent with this Constitutional silence, the Court's look, shape, and behavior have adapted to changed circumstances. For example, the Court's membership has changed substantially. Initially, six Justices sat on the Court; in time, the Court grew to ten and shrank to seven. Only in 1869 did it settle at nine. Likewise, the Court's jurisdiction has changed, first expanding, then contracting, and then shifting. The Court's caseload, which is now almost entirely

discretionary, was once almost entirely mandatory. And the Court has altered its courtroom practices in a variety of ways; for instance, the Court once allowed advocates, who rarely submitted briefs, to present oral arguments that lasted for days! These examples tell us something important about the past, present, and future of the Supreme Court. The current Court may consist of nine members who decide a small number of discretionary appeals en banc, but this was not always so, nor need it be so in the future. So, in light of the many important roles the Court plays in our constitutional democracy, how should it conduct its affairs?

In this Essay-the first in a series of essays designed to reimagine the Supreme Court-we argue that Congress should authorize the Court to adopt, in whole or part, panel decisionmaking. We recognize, of course, that this proposal is likely to elicit a visceral reaction. If your politics skew left, you might tremble at the thought of Justices Scalia, Kennedy, and Thomas deciding Grutter, or Justices White and Rehnquist deciding for a divided panel that a woman does not have the right to choose. If your politics skew right, you might fear a world in which the "inconvenient truth" is not an Academy Award-winning documentary, but rather a decision by Justices Stevens, Souter, and Ginsburg to send Al Gore to the White House. Whatever counterfactual you find troubling, your visceral reaction probably reflects two presumed costs associated with a move to a panel system: the prospect of different outcomes and the prospect of lower-quality decisions.