Presidential Commission on the Supreme Court of the United States
be affiliated with each of the two major political parties. One version of this idea would expand the Court to fifteen seats, with five Justices “affiliated with the Democratic Party” and “five with the Republican Party.”[148] These initial ten Justices would then choose five additional judges from the courts of appeals to serve for a short-term period.[149]
In assessing these reforms, we begin by assessing the constitutional questions they raise. This analysis entails consideration of past efforts in U.S. history to implement similar reforms. We then proceed to consider the potential benefits of these different calls to alter the Court’s structure. We ultimately find that these reforms may present more serious constitutional questions than basic Court expansion, but that they are not all clearly foreclosed by the Constitution. They may, however, offer uncertain practical benefits.
A. Legality
1. Rotation and Panel Systems and the Requirement of “one supreme Court”
The first two reforms—rotation and panel systems—raise similar legal questions. Both proposals, if enacted through statute, face a potential constitutional obstacle in the Constitution’s command in Article III, Section 1, that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”[150] The rotation proposals, because they would alter the duties currently performed by the Justices of the Supreme Court, also could give rise to distinct constitutional concerns, both under the “good Behaviour” Clause of Article III, Section 1, and the Appointments Clause of Article II, Section 2.[151] Because some of the proposals for term limits raise similar concerns, we address these particular constitutional issues in Chapter 3. We focus here on the meaning of “one supreme Court.”
As a textual and structural matter, the “one supreme Court” provision requires an apex juridical body that operates in some meaningful sense as a single court and not merely as a scattering of individual jurists occasionally called upon to resolve questions of federal law. The Constitution thus would almost certainly not permit treating all Article III judges sitting at any given time as “the” Supreme Court of the United States and either polling that entire mass or randomly sampling individual judges’ votes in order to emerge with a single result, without mutual consultation or collaboration (and with no true opinion of the whole Court) in each case.
The Commission is not prepared, however, to conclude that rotation and panel systems are clearly unconstitutional simply on the ground that each would entail having less than the
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