The Duke Law Journal has published a new article by Tracey George (Vanderbilt University Law School and Political Science Department) and Chris Guthrie (Vanderbilt University Law School) entitled, “Remaking the United States Supreme Court in the Courts’ of Appeals Image,” see here. Using the United States Courts of Appeals as a model, the authors propose that the number of Justices on the Supreme Court be increased, that the Justices sit in panels of three, and that the Court implement an “en banc” review procedure for particularly important cases. The authors discuss several advantages to their proposal, including increases in decision-making capacity that could improve the consistency and clarity of the law, improvements in uniformity by by giving the court capacity to resolve more circuit splits, a greater number of “live” certified questions from the Court of Appeals, and an accompanying rise in the ability of the judicial branch to police the other branches of government. The authors settle on fifteen Justices as the optimal size of the Court, permitting five panels of three Justices. The potential costs of their proposal, the authors concede, include decreased legitimacy of the Court, lower decisional quality, and a potential increase in petitions for certiorari as a result of the increased capacity. I commend Professors George and Guthrie on a very interesting article, which I greatly enjoyed. Though I agree with most of their analysis on the problems with the current Court, I ultimately am not convinced by their solution. Indeed, I think the decisionmaking capacity of the Supreme Court can be increased with other less radical solutions that do not carry many of the costs of their proposal. But this is a really good and thought-provoking article.
Barry Friedman (New York University School of Law) and Anna Harvey (New York University Department of Politics) have posted “Ducking Trouble: Congressionally-Induced Selection Bias in the Supreme Court’s Agenda” on SSRN, see here. In this article, the authors address whether the Court is influenced by Congressional preferences, a hypothesis that I have long suspected but that had been dismissed by several empirical studies. Using data from the period from 1987-2001, the authors observe that the Rehnquist Court behaved differently when there was a Democratic Congress rather than a Republican one. Between 1987-1993, the Rehnquist Court reviewed only eight liberal statutes passed during that time span (a .0009 review rate). From 1994-2001, by contrast, the Rehnquist Court reviewed 23 liberal statutes passed during the earlier period, a review rate of .0012. Although the disparity can be explained by other factors, such as the temporal dependence of the rate of review, the authors account for these other potential explanatory variables in their analysis. According to the authors, the bottom line is that “[t]he Court is significantly less likely to review statutes when there are large congressionally-induced deviations between what the Court would like to do, and what is can do in its final rulings.”