give the Supreme Court the discretion to review certain classes of cases via writs of certiorari. A version of this proposal was ultimately enacted as the Judiciary Act of 1891.[171]
During the debates over this 1891 measure, several members of the Senate Judiciary Committee proposed that the Court hear cases in panels. Under the proposal, the Court would hear most appeals in three-Justice panels, but the full Court would resolve federal constitutional questions and (at its discretion) other cases of “unusual difficulty or importance.”[172] Observing that such panel systems existed in some states and other countries, the Senators asserted that the Supreme Court could likewise “dispose speedily of all causes that may be upon its calendar … by acting in separate divisions of three or more [J]ustices,” all hearing cases “at the same time.”[173]
The Senators argued that Congress could enact the proposal as part of its power to make exceptions and regulations to the Supreme Court’s appellate jurisdiction.[174] Much like their predecessors in 1869, they pointed out that Congress had long exercised the power to declare how many Justices constituted a quorum and, thus, how many Justices were required to speak for the Court as a whole. Congress could, by extension, direct the Court to decide cases in panels.[175] Nor, according to the proponents, was such an arrangement at odds with the constitutional requirement for “one supreme Court.” The Justices would “proceed at the same time to hear arguments and pronounce decisions, not as three separate Supreme Courts, but as one Supreme Court, exercising its appellate jurisdiction in a twofold or threefold manner at the same time.”[176] The Senators added that, if a panel was presented with “a question of extraordinary difficulty or high consideration, … provision should be, and can be, made for the matter being heard before all.”[177]
Other lawmakers were skeptical of the reform. Some insisted that a panel system would violate the constitutional requirement for one Supreme Court. “The power of Congress [to regulate the Court’s appellate jurisdiction] can not be held to extend to legislation which would break up the Supreme Court into fragments and substitute several courts with power to hear and finally determine causes for the one Supreme Court provided by the Constitution.”[178] Some lawmakers also worried that a decision rendered by less than the full Court would lack legitimacy with the public.[179] Ultimately, the proposal was rejected by the Senate.[180]
Congress does not appear to have debated the validity or legality of rotation or panel systems after these various efforts at reform. But on several occasions, when Congress has considered reforms to deal with the Supreme Court’s capacity constraints, individual Justices have noted—and expressed concerns about—the possibility of splitting the Court into subsets.
