panels or to different courts (constitutional vs. statutory cases, or criminal vs. civil cases, for example).[191] The Commission heard persuasive testimony suggesting that some apex courts in other nations manage to function with panels or layers, suggesting that complaints about the inherent infeasibility or inoperability of such systems are overdrawn.[192]
A Court structured in this way would have to be sensitive to the need for the clear development of doctrine so as to provide adequate supervision of the lower courts. The often fractured decisionmaking of the U.S. Supreme Court underscores that even the current composition can produce inefficiencies, however; such challenges might simply be an unavoidable aspect of any system in which a set of individuals who hold different theories of interpretation and of the Constitution’s meaning is tasked with deciding complex and novel cases. A panel system that accompanied an increase in the number of Justices on the Court would certainly expand perspectives and representation on the Court, as discussed in Part III.A, though the extent of these benefits would be limited by the need to keep the overall size of the Court reasonable and manageable. Structuring panels along substantive lines might also produce specialization benefits, which might be especially useful when the Court deals with technical matters whose resolution would benefit from particularized expertise. And yet, the current Court’s non-specialized character is itself a virtue; at least in theory, it facilitates fresh and open judgment about cases. More importantly, substantive areas of the law intersect and are deeply interrelated; it would be difficult, for example, to bifurcate constitutional and statutory analysis, since constitutional presumptions frequently inform how courts evaluate statutes.
2. Proposals to Distribute Partisan or Ideological Influence
As the Commission heard from numerous witnesses, and as we discuss throughout this Report, calls for reform have been motivated in significant part by the perceived mismatch between the ideological composition of the Court and the views of the public as reflected in election outcomes at particular points in time.[193] The fact that the Court’s membership is often determined by the contingencies of the Justices’ retirement or death exacerbates this concern and raises the stakes of the nomination and confirmation processes. It is not surprising, then, that some reform proposals would attempt to ameliorate this problem by distributing appointments more predictably and by trying to ensure rough alignment between the Court and electoral majorities.
One such proposal, closely related to the term limits proposal and discussed in Chapter 3, would give each President two nominations per term.[194] This proposal could reduce the
