Presidential Commission on the Supreme Court of the United States
life tenure. And rotation might lower the stakes of any single confirmation and thus help to ameliorate the partisan warfare that characterizes the nomination and appointment process.[188]
Each of these potential benefits, however, may well be offset by significant costs. A rotation system could introduce inefficiencies into the Court’s work or otherwise undermine the supervisory and unifying functions it performs within the U.S. legal system.[189] The utility of these proposals would depend in part on the size of the pool from which the Justices would be drawn; a pool that is too small or chosen by partisan actors would produce little advantage over the status quo. But the larger that pool, the more unwieldy and unstable the Supreme Court’s decisionmaking processes would become. A regularly fluctuating Court might also undermine the collegiality and familiarity that enables the Justices to manage contentious cases, including the resolution of hard cases through compromise. A lack of consistency in the Court’s personnel could compromise its ability to provide guidance to lower courts and state courts as the result of more rapid doctrinal change on the Court. Most importantly, a rotation system that does not otherwise address the power of the Court could well heighten the stakes of confirmation processes for appellate judges.
Proponents of rotation contend, however, that Justices under this model would prioritize restraint and narrow decisionmaking for fear that a subsequent collection of Justices might overrule extreme or outlying precedent,[190] which in turn would lower the stakes of Supreme Court judgments and therefore judicial confirmations. But it is not clear that having a larger Court whose personnel churns will lead the Court to accept fewer cases of great import or otherwise exercise the power of judicial review more modestly.
b. Panel Proposals. The need for the Justices to sit on panels could well arise as a consequence of other reform proposals that would lead to significant expansion of the Court’s numbers. If an initial attempt at Court expansion were to prompt future expansions as the result of partisan competition in the political branches, or if the transition to a system of term limits were to temporarily expand the size of the Court, there could be too many Justices to efficiently hear cases in all instances. Size would thus necessitate panels, with a potential en banc procedure for resolving significant disputes or conflicts between panels in order to provide adequate guidance to the lower courts, as discussed in Chapter 3 of this Report.
The question then becomes whether there would be virtues in the first instance in establishing a panel system. It is possible that this model would introduce some inefficiencies into the Court’s decisionmaking. But constitutional and high courts in other jurisdictions function effectively on this model, whether by assigning particular types of cases to different
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