Is Packing the Supreme Court the Answer — Or Is there Something More Popular We Could Try Instead?
Regardless of her politics, there’s an argument to be made that Amy Coney Barrett is simply not qualified to be on the Supreme Court. With only three years as a judge, I personally have to question whether she has seen and handled enough variety of cases.
And that is aside from the hypocrisy of “We can’t seat a justice in an election year, but can do it right in the middle of an election.” With a 6–3 conservative majority there is (and should not be) fear for the rights of thousands of Americans. American conservatism has become a monster.
The kneejerk reaction from the left has been to “pack” the Supreme Court. This would involve increasing the size of the court by 2 or 4 justices (the court needs to have an odd number to reduce the number of ties). But I was in an interesting conversation on Facebook that suggested a different strategy.
Look to the Lower Courts
A lot of people don’t think about the court system until they get embroiled in it.
The U.S. federal court system has, basically, a three tier system. (This is, of course, ignoring the state court system for simplicity). Cases go to the district court, then the circuit court, then the Supreme Court (maybe).
The districts are the same as those for U.S. Attorneys, and each district court (there are currently 94) has at least one United States District Judge, who is a Presidential appointee. Those judges may delegate simpler cases to federal magistrate judges, who are appointed by the judges.
The country is then divided into twelve circuits, each of which contains several states. When a case is appealed up, it goes to the appropriate Circuit Court, which is, yup, also manned by judges appointed by the President.
Cases can then be appealed up to the Supreme Court. The vast majority of cases never make it that far; in fact, the vast majority are decided in the district court. There are limits on appealing (for example, because of double jeopardy, the government cannot appeal an acquittal in a criminal case).
The Supreme Court takes only a fraction of the cases appealed up to it. If they refuse to take a case, the Circuit Court ruling holds.
So, what’s going on with these courts and how can progressives potentially leverage this.
It’s quite simple: Our court system has a problem. And fixing that problem would be popular if we can make people understand what it is.
What is Wrong With our Lower Courts?
Particularly in civil cases, the court system has a huge backlog. New Jersey has it particularly bad. At the end of 2019, the U.S. District Court in New Jersey had a backlog of 39,000 cases.
So, why is this happening? For the simplest of reasons: There just aren’t enough judges to hear them.
The White House is arguing that this is because home state senators won’t sign off on appointees. This doesn’t hold water because there are, in fact, only 66 vacancies. Most of these are at the District Court level, which has 55 vacancies and 33 pending nominees. The US Court of Appeals has two vacancies, and as yet no nominees pending.
The very first thing a new administration should do is fill those lower court vacancies.
Fill them with the best people we can find, competent judges who can be trusted to uphold the law.
Then, we need to take a very real look at the lower courts.
Case Numbers and Coverage
In addition to the empty seats, the number of judges seated has simply not kept up with growth in population and an even faster growth in case numbers. This has resulted in, for example (again in New Jersey), an 89 year old judge who would very much like to retire still doing a full case load.
We need to not just fill those vacancies, but increase the number of judges overall so that they are no longer drowning in backlogs.
This would improve justice for everyone; shorter waits and judges having more time to consider each case. It would make things better for everyone on all sides of the political question, including large Republican donors.
But Would This Stop the Supreme Court?
The Supreme Court has both original and appellate jurisdiction. However, the original jurisdiction of the court is hugely limited. Basically, the only times the Supreme Court hears a case as the original court is when states are suing each other, when states sue the federal government, or when the case involves really high-ranking people. Needless to say, this doesn’t happen very often. Usually, there are one to five of these cases a year.
The vast majority of cases that come before the Supreme Court are appealed up from Circuit Courts (or sometimes state Supreme Courts) with a Writ of Certiorari.
Such a writ can be put forward by any party with standing in a case. Over 7,000 writs are put forward every year.
The Supreme Court hears no more than 150.
The rule is that four of the nine Justices must accept the case (five if it involves a stay of execution).
If the Supreme Court refuses to hear a case, the lower court ruling stands. The court will only hear a case if it has national significance and if they see indications in review that the lower court may have made a mistake (usually this means that the lower courts aren’t in agreement). Rarely, the court may determine it does not have jurisdiction.
So, one way to convince the Supreme Court not to hear a case is to, yup, make sure that the Circuit and District Courts do their job as well as possible. That way there will be fewer people petitioning the Supreme Court because more people will be satisfied with the justice they have received.
Having more judges at these levels makes that much more likely. As much as the Supreme Court might like to overturn Roe v. Wade, they have to have a case before them, and that case has to fall within the rules. (Now, there is already a case, in which Mississippi is trying to defend a 15-week abortion ban).
By strengthening the lower courts, we can potentially reduce the role of the Supreme Court.
Of course, the same population and case load argument can be made in favor of expanding the Supreme Court itself…but packing the Supreme Court is politically unpopular.
Improving the lower courts could be sold as a boon to anyone who might get entangled in the system.
Which is, potentially, all of us.