Presidential Commission on the Supreme Court of the United States
Morris responded that such an approach might work for the inferior federal courts but not for the Supreme Court, because “[a]ll the business of a certain description whether more or less must be done in that single tribunal.”[159]
In the nineteenth century, Congress on a few occasions considered a rotation or a panel system for the Supreme Court. Each time, some lawmakers supported the scheme in question and others cast doubt on its constitutionality. In 1869, for example, when Congress increased the size of the Supreme Court from seven to nine members, it also considered expanding the size of the lower federal judiciary.[160] But one lawmaker suggested an alternative: Congress could add sufficient personnel to the federal judiciary by greatly expanding the Supreme Court (whose members were still at the time expected to serve in part as lower circuit court judges). Under the proposed system, the Court would consist of eighteen members; nine members would serve on the Supreme Court at any given time, while the other nine would serve as circuit court judges (“riding circuit”).[161] That is, the judges would rotate between the Supreme Court and the circuit courts.
Several lawmakers objected that this rotation system would be inconsistent with the constitutional requirement for “one supreme Court.”[162] “The Constitution establishes the Supreme Court. … [Y]ou have no right to say that half of those judges shall take no part in the adjudications of that court.”[163] Opponents also worried that this system might lead to instability in the law: “[A] court that was varying every year could never have stable decisions upon which the people of the country could rely. …”[164] Supporters of the measure countered that Congress had the power to say how many Justices could speak for the Court as a whole; after all, Congress had long established a quorum for the Supreme Court.[165] Moreover, supporters argued, past precedents had not proven unstable simply because they were decided by less than the full Court (but still a quorum).[166] Opponents countered that establishing a quorum—permitting fewer than the full number to issue a decision—was very different from prohibiting some number of Justices from serving on the Supreme Court at any given time, if they so chose.[167] Ultimately, the proposal for an eighteen-member Court died in Congress.[168]
A few decades later, Congress considered a proposal for a panel system. The issue arose as lawmakers sought to address a caseload crisis at the Supreme Court. The Court’s appellate jurisdiction was still largely defined by the Judiciary Act of 1789, which required it to review every case properly before it on appeal.[169] By 1890, the Court’s mandatory appellate docket had swelled to over 1,800 cases, only four or five hundred of which it could dispose of in a given year.[170] To address this caseload crisis, Congress considered a number of options. Senator William Evarts proposed a plan to create a scheme of federal appellate courts and to
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