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10/15/2020

Balkin on Court Packing and Court Regularizing
Mike Rappaport

Jack Balkin has an interesting post advocating a change in the structure of the Supreme Court that he believes could be accomplished by statute.  Under the proposal, justices serve in full capacity for 18 year terms, to be replaced every two years.  After the 18 years, they serve in an extremely limited capacity.  The proposal would apply to existing justices.

Here is his description:

The President appoints a new Justice in every odd-numbered year. Congress creates two en banc courts: The first is an en banc court for deciding cases under the Court's original jurisdiction, consisting of all the active Justices. The second is an en banc court for deciding cases under the Court's appellate jurisdiction, consisting of the nine Justices most junior in service.

The more senior Justices retain life tenure and their salaries, and the Chief Justice remains the administrative head of the Judicial Branch of government. The more senior Justices remain on the Court to hear cases . . . involving the Court's original jurisdiction, to pinch-hit when a junior Justice is recused from the appellate en banc panel, to consider the mountain of petitions for certiorari the Court receives every year, and to hear cases on the federal courts of appeals. The precedent for requiring Justices to "ride circuit"-- to hear cases in the lower federal courts-- goes back to the country's founding. The number of Justices deciding Supreme Court appeals always remains nine, but the composition of the appellate en banc panel changes every two years like clockwork.

What does this mean in practice?

Suppose we begin the new system in 2023. The most senior Justice, Clarence Thomas, would no longer regularly be on the appellate en banc panel as soon as the Senate confirmed the first new appointment. Two years later, in 2025, it would be Justice Stephen Breyer's turn, followed by Chief Justice John Roberts (who would remain administrative head of the federal judiciary), Justice Samuel Alito, Justice Sonia Sototmayor, Justice Elena Kagan, and so on.

In other words, except for very limited exceptions, the most senior justice would be required to stop deciding Supreme Court cases every two years.  In effect, the justices would now be serving 18 year terms.

According to Balkin:

because the proposal simply creates two different en banc panels for original and appellate jurisdiction, and allocates duties of circuit riding, it is completely consistent with the commissions of existing Supreme Court Justices.

My initial reaction to this proposal was that it is obviously unconstitutional.  After all, the Constitution provides that the justices serve during good behavior and that has been traditionally understood to preclude a position based on a term of years.  But Balkin would respond that the justices continue to serve on the Supreme Court in their position of justice.  Thus, Clarence Thomas would continue to be a justice, even though he would no longer be on the appellate en banc panel in 2023.

Balkin’s argument is extremely interesting, even though I disagree with it.  There are so many aspects to it that require discussion and examination.  I wish Balkin had addressed some of them, but his post is pretty short.  Here, I will just discuss one aspect of the argument.

I question whether Justice Thomas would still be a full Supreme Court justice after he is no longer allowed to decide appellate cases.  Instead, he would be a second class justice and would have effectively been forced to retire in contravention of the good behavior provision.

Balkin might respond, as he states in his post, that the Constitution allows the Congress authority as to the appellate jurisdiction of the Supreme Court to make “exceptions” and “regulations.”  And therefore Congress can adopt the regulation that would prevent Thomas from deciding appellate cases except in rare circumstances.  But while Congress can regulate the Supreme Court’s appellate jurisdiction, it cannot use that power to deprive Supreme Court justices of their offices – in whole or in part. 

It is true that the Constitution does not forbid Congress from changing the appellate jurisdiction of the Supreme Court.  Thus, Congress can take cases away from the Court and or add to the Court’s appellate jurisdiction – without impinging on the justices’ offices.  But just because some such changes are constitutional does not mean that all changes are constitutional. 

While this area would benefit from significant research, my tentative view is that the Congress cannot draw distinctions between the different associate justices on the Supreme Court.  In other words, Congress cannot forbid Justice Thomas from sitting on appellate cases but permit Justice Kagan to do so.  The position of associate justice must be the same for both.  Balkin’s proposal does exactly that and therefore would be unconstitutional under this criterion.

This interpretation is consistent with the text – the Constitution speaks of judges of the Supreme Court, suggesting that they all must have same the powers.  It does refer separately to the position of Chief Justice, which suggests that the Chief may have additional administrative responsibilities. 

This interpretation also accords with structure, purpose, and history.  Under Balkin’s view, Congress could exercise tremendous power over the justices.  First, Congress could require that the existing justices stop deciding appellate cases, not merely after 18 years, but after, say 5 years (or fewer), once their replacement is confirmed.  And it could allow replacements to be confirmed every six months.  That would allow a new President and Congress to replace 8 of the 9 justices in the President’s first term.

Second, Congress could also draw distinctions between the justices.  Congress could set up a rule that requires certain justices – say justices who are more than a certain age or whose last names begin with certain letters or whatever – to stop deciding appellate cases.  The independence of the Supreme Court would be at significant risk.

Finally, this interpretation accords with the history in that the associate justices appear to have enjoyed the same powers throughout the Court’s history.

In the end, it would be useful to do more research before evaluating this proposal.  For example, it would be helpful to know whether the equality norm that I have mentioned uniformly applied to judges on courts in the Anglo-American legal system.  (Alas, Balkin has not addressed these issues and I believe that the burden should be on the person proposing this new, quite unusual law.)  But based on my first impression, I seriously doubt the constitutionality of this proposal.