The present and future of the Supreme Court

Some thoughts on 303 Creative v. Elenis, judicial appointments, and Congress’ power to change things

When I started watching the Supreme Court in 2004, one thing was clear: Late June would seldom be fun. The Rehnquist Court had sat together for a decade, so you guess how the term would end: When the big cases came down, my team lost them all, and Justice Scalia would serve up a flight of grumpy dissents—not, if I’m being honest, usually his best.

After 2006, as President Bush’s replacement of Justice O’Connor with Justice Alito bit, we saw progress. District of Columbia v. Heller, Leegin v. PSKS, and New Process Steel v. NLRB belong to this era. But so do Kennedy v. Louisiana, National Federation v. Sebelius, and my bête noire, Massachusetts v. EPA. (It was also the beginning of the “John Roberts two-step,” with 2009’s NAMUDNO v. Holder presaging 2013’s Shelby County v. Holder.) All told, if you were a betting man in those days, you’d bet on a narrow win or an abject loss.

Things change. Rolling into June nowadays, it’s anyone’s guess how big cases will come down—who had a unanimous reversal in Groff on their bingo card?—and they often come out okay. For progressives, accustomed to winning since Owen Roberts’ “Switch in Time,” competing on an even playing field must feel like the apocalypse. Left-leaning critics think they face a 6-3 supermajority, but as David French and Sarah Isgur have noted on their Advisory Opinions podcast, the court’s now split three ways or more. The Alito-Thomas and Kagan-Sotomayor-Jackson (was Breyer) blocs bookend a Roberts-Kavanaugh bloc, with Gorsuch as a wildcard and Barrett—well, too soon to tell.¹

You might ask: What does ‘the right way’ mean? It means that the right litigant prevails for the right reasons. A litigant is the “right” victor because they are properly the immediate beneficiary of a rule of decision that would be applied in all other materially alike cases, “reasons that in their generality and their neutrality transcend any immediate result that is involved.” Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L Rev. 1, 19 (1959). That is, we decide this case in this way because it is “an instance of a more inclusive class of cases ... [and] it is held to be proper to treat cases of its type in a certain manner.” Golding, Principled Decision-Making and the Supreme Court, 63 Colum. L. Rev. 35, 40 (1963). By contrast, a case comes out the wrong way whether the right litigant prevails for the wrong reason or the wrong litigant prevails for the wrong reason. As Scalia said years ago, “to get the reasons wrong is to get it all wrong….”²

When you lose, it’s tempting to scrutinize every inch of game footage looking for the moment where one player’s foot was one inch over the line for one second, invalidating the entire quarter and with it that pesky game-winning field-goal. It doesn’t count! This term, the case getting that treatment is 303 Creative v. Elenis. Not satisfied with overstating the case’s holding and then feigning shock when the wrong people believe them, critics claim that it shouldn’t count. That is for either of two reasons: Either because it was a pre enforcement challenge (which progressives never, ever do), or because a factual allegation in the pleadings isn’t true and the Supreme Court should therefore have ignored the parties and the court below, pierced the pleadings, and DIG’d the case.

I could write at tedious length ventilating my annoyance regarding the disingenuous attacks on 303 Creative. So I will; it’s my newsletter. Tough noogies.

303 Creative is about whether providers of “expressive services” (not my phrase, but a good phrase for it, I think) can decline commissions that would express messages with which those providers disagree. Such services are “speech,” the court says, and government regulations that would compel performance of that speech do so athwart the First Amendment. That is not at all the same thing as declining commissions proffered by members of a class protected under public accommodations laws. The plaintiff didn’t object to serving gay patrons (actually, the parties explicitly stipulated in the district court that she would do so) but rather to an in terrorem compulsion to communicate gay-friendly messages. No one can rely on 303 Creative to discriminate against a patron, and a straight would-be-patron seeking a creative service for a gay wedding (a best man, maid of honor, or wedding planner, to give only the most obvious examples) would present an identical case. So this line of attack just falls flat, it seems to me.

Also unavailing is the objection that 303 Creative is illegitimate because of a supposed factual defect in the case. This objection requires that we wade into the weeds. 303 Creative makes websites. Its owner, Smith, wants to offer wedding websites. But Colorado’s Anti-Discrimination Act contains provisions that Smith feared would oblige her under pain of legal penalties, were she to offer wedding websites, to accept commissions for same-sex weddings, to which Smith objects. Not only can the state file charges, private citizens can: “Any person claiming to be aggrieved by a discriminatory or unfair practice.” Colorado Rev. Stat. § 24-34-306(1). Both the Tenth Circuit and the Supreme Court found that there was a credible threat of enforcement. And why not? If this all sounds familiar, that’s because it wasn’t so long ago when it was Texas rather than Colorado authorizing private citizens to instigate legal proceedings, and the objects of those proceedings would have been abortion providers rather than homophobes. And then, it was the very people who now decry 303 Creative who were incandescent about the chilling effect that such a provision had on its targets, and who were rushing to courthouses to file preenforcement actions. See Whole Woman’s Health v. Jackson, 142 S.Ct. 522 (slip op. at 2) (2021). What a difference two years makes.

Aha!, say the critics, pouncing. Gotcha! During the litigation, an example was given of a man who had requested from Smith service that she would wish to deny, thereby setting in train the parade of enforcement actions that she fears. That man, Stewart, seems not to exist—or, rather, if he exists, he didn’t seek Smith’s services. The striker was offside and the goal is disallowed! We win! We win! We win!

But what, you might ask, has Stewart to do with the litigation? Nothing. Not a goddam thing. The majority neither mentions him nor predicates its analysis on the existence of a specific example of a would-be patron.

Nor, for all its angry bluster, does the dissent rely on such. Nor did the courts below. The Tenth Circuit decided that Smith’s proposed course of action was sincere and subject to a credible threat of enforcement action by Colorado under § 306(1)(b), and that was enough to proceed.³ To the extent that I would criticize that, it’s only to underscore an a fortiori reason why Smith’s proposed course of action incurred risk: The private enforcement action under § 306(1)(a). It is hard enough to believe a state actor when they foreswear enforcement of a provision that they actively defend. Cf. Parents Involved v. Seattle School District, 551 U.S. 701, 719 (2007). It is impossible when they purport to do so on behalf of literally any person at any time in the future.

And—nor do the critics. The critics would be no happier with the rule for which 303 Creative will now stand if it had been handed down in another case or later in a different procedural posture. Their objections are smoke and mirrors to enshroud a holding they dislike in a fog of doubt. That’s all. (It’s one thing being lectured about standing by standing hawks, but I will not hear that lecture from the same people who thrilled to Massachusetts v. EPA, my objections to which were rehearsed here.)

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When we lost big cases, I don’t recall people on the right saying that the court’s structure had to be changed. Maybe some did. Certainly, the right had been working to change the court’s personnel since the 1960s. Certainly, people in my orbit advocated liquidating the Ninth Circuit, which is the same idea; if a court’s not yielding the right results and you see no meaningful chance of change, structural reform can look like a silver bullet. Beholding what looks like a permanent 6-3 minority, Democrats are looking to change the game.

All of which brings us to Leeja Miller’s video Why the US Supreme Court Will Never Be Reformed:

Leeja is a left-leaning Youtuber whose channel I enjoy; this video appeared last summer. That was a traumatic time for the left because the Supreme Court had in Dobbs v. Jackson WHO overruled Roe v. Wade, a controversial 1973 case interposing a federal constitutional right to abortion into America’s debate on the legal status of abortion. See generally Ely, On Constitutional Ground 281 ff. (1996). But the video is evergreen; me and its energy vibe like that because, as my introduction above should make clear, it was the energy that I used to have in July: Anger given way to a sort of weary, frustrated sadness.

Leeja’s focus is on the manner in which justices are appointed to the court. Much of her video compares the ways in which other countries handle appointments in order to demonstrate that alternatives are not only imaginable but practicable. (My objections to the use of foreign sources in constitutional interpretation have been rehearsed at length elsewhere. But as Justice Scalia told us long ago, “If I were writing a Constitution, I would of course consult foreign sources.”⁴)

Expanding the court is the most brute-force tool on the Democrats’ belt. I agree with Leeja that it would go down badly. Congress can set the court’s size, but doing it as an end-run around disfavored decisions is an abuse of that power—one that I thought we foreswore in the 1930s. Proponents are quick to argue that Congress has often changed the size of the court, but any abuse of power starts with a predicate that the person or body does in fact have that power. If not, by definition, they aren’t abusing it. If Congress were to appropriate money into cronies’ pockets, it would be no defense to argue that Congress has the power to appropriate money. And As Leeja notes, court-packing has no logical stopping point. You do it to them, then they do it to you, then you do it right back; before long, we end up with dozens of justices. Plus, I would add, one cannot bewail the Trump-era bonfire of norms and then turn around and throw a few more norms on the fire.

Nevertheless, there are legitimate concerns about the court, and Leeja identifies reform of appointments as a legitimate response to those concerns. I am more in agreement with her than not. We’ll get to that, but first I must sound a note of disagreement in her lauding of “apolitical” (or at least non-partisan, or at least multipartisan) procedures for judicial selection.

Britain, Leeja reports, now selects judges of its highest court using “a selection commission … made up of a number of judges and members of parliament.” The commission consults widely and

once a candidate has been chosen, they recommend that candidate to the Prime Minister who then must recommend that candidate to the [monarch] who then makes the official appointment. So the political association … has been taken completely off the table because it’s not a choice given to a politicians, it’s made by a group of unaffiliated judicial appointment board members. (Emphasis in original.)

And Germany, she reports, bifurcates civil and criminal appeals between two distinct eight-member bodies, each appointed by the legislature, but with an unwritten convention that half of the judges on each must come from “left” parties and half from “right.” This concept strikes me as being like “nonpartisan” redistricting commissions. (A subject for another day, I think.) I want to register three objections before moving on.

First. At face value, it sounds easy, doesn’t it: You have a selection body with members from both main parties. But what is a “main” party? How do we decide which parties are “main” or “major” enough to be included? Who sets the threshold? What are parties of the “right” (the subject of a future Idiosyncrat newsletter, I promise). As Leeja’s German example shows, none of this is obvious in a multipolar system, and while American politics remains stubbornly bipolar, is it really a good idea to further entrench the two party system? Also: How in practice is that cooperative model supposed to work as our political tribes ratchet further and further apart and therefore our political parties find it harder and harder to work together?

Second. It is not clear to me why the holders of an inherently powerful office with inherently serious political dimensions should be placed beyond the scrutiny of the people’s representatives. A court is not a legislature, and electing judges (practiced in many states, including mine) is improper. But the Federal Reserve Board isn’t a legislature either; it nevertheless wields significant power and the choices with significant consequences. No one argues for an elected Fed Board, but neither would anyone suggest that it be independent from the citizenry, “accountable” only in the sense that its decisions and reasons are subject to public scrutiny after the fact. A balance is struck. Long terms insulate the Board from the buffets of day-to-day politics while Presidential appointment keeps the Board on the people’s leash. Cf. Chevron v. NRDC, 467 U.S. 837, 865-66 (1984).

Perhaps Leeja would answer that MPs are on the commission, supplying the requisite connexion to the citizenry. But if that is true, then it is to the same degree false that the political part has been squeezed out of the process “because it’s not a choice given to a politicians, it’s made by a group of unaffiliated judicial appointment board members.” Rather, the political part is a little diluted and a lot disguised behind a veneer of professional neutrality.

Which brings us to my third point, which digs into what I just called, glibly, “the political part.” The idea there is a neutral and purely professional stance on who should be a judge is misguided. Return to the Fed Board analogy. Economists lack a common foundation of shared dogma as relates to their enterprise. “Economics” is more akin to Christendom than to the Catholic Church—and I hate to break it to you, but the idea of the Catholic Church as a unified, integrated community sharing in the same dogma is a pious mirage. There are many mansions on the economics campus, and many rooms in each. If, therefore, you were to suggest that the selection of the Fed Board should be done purely on professional merit, by a committee of Fed governors and Congressmen, and the President must nominate their choice, and this was okay because any political taint “has been taken completely off the table” because the nominee was selected not by a politician but by a group of professional economists and Congressional experts, you’d be laughed out of the room.

The idea of “draining the politics” out of nominations and instead picking nominees on professional merit is a technocratic fantasy. It presumes a professional monoculture. That might work in civil engineering; it surely won’t in art. The legal world is no less divided than the economics world. It was not true that everyone agreed about what exactly judges ought to be doing in the relatively uniform world when Hart & Sacks collated The Legal Process, it was not true when Calabresi et al founded the Federalist Society, and certainly it is not true today.

It is true that proponents of non-textualism have felt obliged to preface non-textualism with declarations that “we are all textualists now,” and proponents of non-originalism have felt obliged to preface non-originalism with declarations that “we are all originalists now.” It is also true that textualism can be indeterminate, originalism can be underdeterminate, and precedent can make things complicated. Nervermind: We all know that two would-be judges are not identical simply because they got the same grades at the same school and have won all the same professional plaudits. Jurists are divided by not only the outcomes of particular cases but methodologies. Should (and can) judges discern a law’s “intent,” and to what extent does it control over the ordinary meaning of the text? How does the level of generality at which intents and purposes can be framed intersect with those questions? Just how much latitude do judges have in perceiving and effectuating the “purpose” of a law? What if the law is obscure—hard to understand, or old, such that its words may no longer have the same meaning today as they did when adopted? What should a court do confronted with a law that unmistakably says x when courts have for decades or even centuries interpreted it to say y? What should judges do confronted with a law that is obviously wrong, stupid, obscure, or outdated, or which produces a manifestly unjust result in this particular case? Can and in what cases should a judge embrace the “Posner manifesto”: What should the law be, and does any controlling precedent forbid that result?

These arguments in Chancel and Transept echo into the Nave. In the lay-dominated partisan space, they twist into forms that are eldritch, distorted, and morphing constantly, but still recognizable. I understand that partisan divides are a different animal from the informed, reasoned differences of the academy. And I understand that politics is icky; every time I heard some idiot say that we “need strict constructionists like Scalia” (Scalia having expressly disavowed strict construction), I cringed. But a layman’s incomprehension of the detail and nuance of legal issues doesn’t preclude them having valid concerns about what, coarsely-speaking, courts do. I assume that Leeja takes no issue with the idea that if Democrats feels that the court has become too instrumentalist, they (Democrats) might want to do something about that. Would it be different if the justices were concededly following a methodology, and the public disagreed not with the outcomes but with that methodology per se? Suppose the six “Republican” members of the court were all textualists to a fault, and Democratic party dogma echoed progressive legal academics in declaring that textualism was methodologically the wrong way to interpret the law. Would mass embrace of this position (necessarily by people who lack the sophistication to really understand the position they’re taking) make it an illegitimate basis for mass political action to push the court away from textualism? I don’t see how.

§

These disagreements don’t mean that I’m hostile to Leeja’s desire to reform the court. If anything, I am more optimistic than she that reform is possible.

The reforms to which Leeja gestures with approval are not especially novel: A mandatory Code of Ethics, and justices serving single, non-renewable, eighteen-year terms (as distinct from imposing a retirement age, problematic for reasons that Leeja discusses). They are of a piece with a more elaborate panegyric from the Brennan Center, which argues that Congress can and should provide that the “Office” of a justice has a non-renewable eighteen-year term, and that Justices should thereafter transition to something akin to Senior Status.

Most readers will not be lawyers, so “Senior Status” requires explanation. 28 USC § 44 creates thirteen Federal Courts of Appeals (“FCA”) and authorizes a number of judgeships for each. (For the Seventh Circuit, the best circuit, it’s eleven.) In the normal course of events, FCAs hear cases in panels of three judges. 28 USC § 294 authorizes retired justices to sit ad hoc on those panels, and 28 USC § 371 authorizes FCA judges who don’t want to retire to instead quasi-retire into “Senior Status.” In this status, they can sit on panels. Neither of these groups—justices sitting by designation under § 294 nor judges who have taken senior status under § 371—are “members” of the FCA they’re subbing. (They’re designated “competent to sit as judges of” that court. 28 USC § 43(b).) And so a judge taking senior status will ordinarily create an opening for an appointment to the now-vacant authorized judgeship.

Of course, judges can simply retire. Retired judges don’t participate in the FCA’s work. So: Let’s imagine a minor terminology change, saying that a Justice can retire, in which case they no longer hear cases, or they take Senior Status, which is just a new label for the status quo under § 294. In fact, let’s go further. Let’s imagine an “Court Reform Act of 2023,” of which this re-labelling will be an uncontroversial Section One. More controversial would be Section Two: The Supreme Court will comprise the Chief Justice and eight Associate Justices, who each continue in active service for a period of eighteen years, which may not be renewed, after which a justice may retire or take senior status, in which status they will not participate in the judicial work of the Court. And then, Section Three: Where needed in particular cases, Senior Justices may sit by designation of the Chief Judge on FCA panels, and, by designation of the Chief Justice on the Supreme Court.

This Act would enact what Leeja and the Brennan Center want. And it preempts the recusal problems that will likely follow from the Code of Ethics they want. (“Even one unnecessary recusal impairs the functioning of the Court.” 1993 SCOTUS Statement on Recusal; accord Cheney v. U.S. District Court, 541 U.S. 913 (2004) (Scalia, J., mem.).) Leeja is surely actuated by her disagreement with decisions handed down by this court, but that doesn’t mean she’s wrong, and this newsletter comes to her video not with Dobbs foremost in mind, but rather, scandals involving Justices Clarence Thomas and Sam Alito.

It is true that Thomas and Alito have coalesced into the bloc that is furthest from Leeja’s view of the law. But it is also true that Thomas and Alito have recently been caught in howlingly boneheaded behavior regarding gifts. I doubt that those lapses rise to the seriousness of impeachment. Stipulate that they do: No one can discuss impeachment with adequate detachment because no one can escape the reality that Thomas and Alito are members of an inherently powerful court and their removal would have serious implications for the way in which that court will decide cases for years to come. It’s always easy to pretend about such concerns when it’s the other side, but I’m sure Leeja would be candid enough to admit that in a hypothetical where Thomas and Alito retired and were replaced by two Biden appointees, providing a 5-4 margin for Leeja’s view of the law, and if there were then an unseemly but not very weighty scandal involving Justice Sotomayor during a DeSantis administration, Leeja would hesitate to demand Sotomayor’s scalp.

We can’t remove the stakes, but they are amplified by the way the court is constituted and reconstituted through time—and that, we can do something about. As Leeja and the Brennan Center note, Justices serve at their own pleasure. Sometimes long after their prime; Justice Marshall told his clerks to prop up his corpse and keep casting the right votes, Justice Douglas’ end was pathetic, and Justice Ginsburg’s refusal to retire during Obama’s Presidency led directly and quickly to the overruling of Roe, a case that Ginsburg, Obama, and their admirers assuredly did not want to be overruled.⁵ When terms are not fixed, appointments become chaotic and capricious, amplifying their political valence.

So, go back to my “Court Reform Act of 2023” and you can see how it responds to this problem. If we adopted Sections One and Two, such that justices served non-renewable eighteen-year terms, appointments would become even out into a mostly-predictable average. (Life and health can throw curve-balls.) Each President would appoint ~two justices, lowering the stakes in Presidential elections and eliminating any criticism of “packing” the court. (Another delegitimizing slight that Democrats are already hurling at the three Trump appointees—including, I regret, Leeja, in this very video.) People like me are apt to say that it shouldn’t matter, because if all judges were faithful adherents of the textualist school, it wouldn’t matter who appointed them, especially with Roe finally dead and gone. But other schools exist, so it does matter. And even if they didn’t, textualists don’t always agree (that’s too long a discursion for this newsletter), so, again, it does matter.

It’s utterly conventional to remark that the U.S. Constitution provides life tenure, and that good behavior really does mean life. I’ll pass over all that, taking it as read. Blah blah blah, see citation. It’s also utterly conventional to say that moving the justices from unlimited life tenure to fixed times in office would require a constitutional amendment. Ain’t happenin’, bub. Absent such an amendment, the argument goes, my “Court Reform Act of 2023” would be challenged as violating Article III.

Leeja assumes that the Supreme Court itself would ultimately decide whether such a statute were Constitutional, insinuating that the answer would therefore be, obviously, no. As to the first part: Maybe, and if an appropriate case were presented (I can’t quite imagine how that would look—a motion for rehearing, perhaps?) the rule of necessity would let the court hear it. See Atkins v. United States, 214 Ct. Cl. 186 (1977); United States v. Will, 449 U.S. 200 (1980). As to the second: Cynicism aside, consider Textile Mills Securities v. Commissioner of Internal Review, 314 U.S. 326 (1941). Five judges of the court below had divided on the merits of the case, but all five of them agreed that all five of them could hear the case. On the other hand, consider Marbury v. Madison: The whole magic trick of Marbury is an act of self-abnegation.

More interesting to me than prognosticating about what the Court might do is what it should do. Assume the right litigants. Is striking down “Court Reform Act of 2023” the right result? I am less sure about that than I would have been. Or, to put it more critically, I find the Brennan Center’s arguments more persuasive than I expected. (Now there’s a sentence that I never expected to type.)

The text in question says, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour….” I will stipulate that anyone (me included) could write a persuasive essay making the originalist case for why that means what everyone thinks. I do not intend to dissuade. But I will, for the sake of argument, dispute.

Section One of my fictitious act is obviously constitutional. It changes the labels on the status quo in a way that harmonizes the language in which we talk about justices and FCA judges in their twilight years. Sections Two and Three are the troublemakers. Those are, just to remind you, respectively, the specification of an eighteen year period of active service followed by either retirement or continued tenure in Senior Status, and the authority to assign a justice on senior status to hear cases on not only the FCAs but the Supreme Court.

We need to first talk about terminology. As my discussion of senior status above (way above—I’ve gone on too long) shows, the terms “judge,” “justice,” “judgeship,” and “court” can be slippery. Article III applies symmetrically to “[t]he Judges[] both of the supreme and inferior courts.” No one thinks that its protections don’t apply to the Supreme Court because we label its judicial officers “justices” rather than “Judges”; the words are interchangeable. For convenience and clarity I’ll use “judicial officer” to refer to both. (I’ll also refer to “nine justices” rather than “eight justices and one Chief Justice,” because life is short and there are objects requiring my discernment as to whether or not they are cake.) Thus, the core protection of Article III is, The judicial officers of the supreme and inferior Courts shall hold their Offices during good behavior.

Now consider: Suppose Judge Alice was nominated and confirmed to the 22nd Circuit. What exactly is Alice’s office? In one sense, obviously it is a “judgeship” “on” a particular FCA. But that’s nettlesome, because the FCAs have limited numbers of authorized judgeships, and if Alice now takes Senior Status, she is no longer a member of that court and the President will fill a vacant authorized judgeship on that court. (“May her judgeship be filled by another,” cf. Acts 1:20.) But Alice continues to hear cases. Obviously, she remains a judicial officer for purposes of Article III. She retains its protections even though, in one sense, she no longer holds the office or judgeship that she held while in active service. Thus, the “Office” protected by Article III must transcend the particular authorized judgeship to which Alice was nominated and confirmed; it must be—at risk of getting a bit too far up one’s own arse about it—the metaphysical status of being what I'll label as an “Article III Judicial Officer.”

And there is more. Judge Alice’s colleague Judge Bob sits with her on the 22nd Circuit, but he was confirmed to the 15th Circuit. How can that be? Well, Congress giveth and Congress taketh away. Congress creates inferior courts, and it has in the past abolished inferior courts—yes, Article III courts, real ones, with benches full of Article III judges. The judges of those courts were not stripped of their robes and gavels and returned to the laity. They continued to be Article III Judicial Officers, and as such were assigned to other courts. For example, a case cited above, Atkins, was decided by the Court of Claims in 1977. The Court of Claims was an Article III Court. See Glidden v. Zdanok, 370 U.S. 530 (1962). Congress abolished it in 1982. “The judges of the United States Court of Claims … [who are] in regular active service,” Congress said, “shall continue in office as judges of the United States Court of Appeals for the Federal Circuit.” 96 Stat. 25, 50 (1982). Around the same time, Congress divided the Fifth Circuit, splitting Alabama, Georgia, and Florida into a new Eleventh Circuit. “Each circuit judge in regular active service of the former fifth circuit whose official station on the day before the effective date of this Act [Oct. 1, 1981] … is in Alabama, Florida, or Georgia,” Congress said, “is assigned as a circuit judge of the eleventh circuit.” 94 Stat. 1994, 1995 (1980).

The upshot is that status as an “Article III Judicial Officer” is not connected to service on a particular court (still less to any particular panel), nor to hearing any particular fraction of any particular court’s cases. Thus, it isn’t a slam-dunk that Section Two of my “Court Reform Act of 2023” violates Article III. Confirmed to the Supreme Court, Justice Alice while in active service is an Article III Judicial Officer. At the end of her eighteen years, if she retires (under Section One, retirement meaning what it does for FCA judges, not what it currently means for Supreme Court justices) she is no longer an Article III Judicial Officer. But if she does nothing, she moves into Senior Status, in which capacity—and this is key—she will remain an Article III Judicial Officer, able to hear cases by designation, just as FCA judges and willing Supreme Court retirees do today.

Finally, then, let’s turn to Section Three. Historically, Congress has not merely decreed into being federal inferior appellate courts, it has specified numbers of judgeships, set rules for which of those judges shall be Chief Judge, and provided for Article III Judicial Officers who are not members of that court to sit as if they were members of that Court. Congress has decreed that those courts may operate in panels or en banc, and it has set the places where and the dates on which courts convene. If time allowed, we could continue at immense length in service of a simple point: Congress has broad power to regulate the mechanics of federal courts. If Congress can decree the size of an FCA and authorize it to sit in panels, and if Congress can decree the size of the Supreme Court, then it seem like not much of a stretch to suppose Congress could at least authorize the Supreme Court to sit in panels. If Congress did that, what provision of the Constitution would that violate? (And if the Court accepted the invitation, what provision of the Constitution would that violate?)

If Congress can decree all that, the camel’s nose is already in the tent. (Its head and neck, too. Bear with me, this paragraph gets a little weird, but it’ll make sense in the end—promise.) If Congress can extend what it’s already done in the FCA, authorizing the existing Supreme Court to hear cases in panels of three, then why not a panel of nine? I mean—duh, right? That’s just a suspiciously specific way of describing how the court already works. It’s otiose; there are only nine justices. But if Congress can decree all this, then it seems like not much of a stretch for Congress to decree that if the Supreme Court contains more than nine duly nominated and confirmed Article III Judicial Officers in total, nine in active service plus however many have taken Senior Status, then “the court” that does the regular judicial work of the court means the nine justices in regular service. Check. And now, Mate: If Congress can decree all that, why can’t it decree that if one or more of the active justices should recuse themselves from a particular case, then the court may by some procedure designate a commensurate number of senior justices to sit on the case?

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I share Leeja’s cynicism that reform is likely. Constitutional amendments are unlikely in this climate—by design. But I’m less sure that Congress lacks power to make meaningful reforms by statute. And, it’s not clear to me that the partisan hellscape of American politics forecloses the possibility. Suppose we add a Section Four: The provisions of the “Court Reform Act of 2023” shall apply to any Justice confirmed to the court after its enactment, and both existing and retired justices may take senior status. Suppose Justice Thomas is unwell; he doesn’t want to resign, but, given the option, he takes Senior Status. So too does Justice Souter (who remains active hearing cases by designation on the First Circuit) did likewise. Which party benefits from that in the relatively predictable short term, to say nothing of the relatively unpredictable long term?

To be sure, the question of how senior justices would be assigned to cases would prove vexed. In the scenario just mentioned, the Court would be back to a 5-4 split in some cases, and if any justice were to recuse, the choice between Souter or Thomas as pinch-hitter could prove decisive. Nor could that choice be made behind a veil of ignorance. No matter how cases come to the court, they don’t appear out of thin air and the justices don’t live in a bubble. Even if Statements of Parties prefaced Petitions for Cert (an impractical though practicable thing), there will be decisions below, written by judges known to the justices, who can in turn scarcely help but form initial impressions. The justices can work out whether they are impartial as to the litigants, but “avoiding judicial preconceptions on legal issues is neither possible nor desirable….” Republican Party of Minnesota v. White, 536 U.S. 765, 775-778 (2002).

Nevertheless, if these practical problems could be resolved (and there are ways to do so), senior justices could be a way to kill two birds with one stone. They would square the circle of the public wanting a more robust Code of Ethics and the Court wanting a full bench on every case, and they would lower the stakes (and thus might lower the heat) in judicial nominations. It is counterintuitive but at least arguable that Congress has the power to do it, and, moreover, that both parties have incentives to back it. It is a serious idea that merits serious consideration.

1. Examples include United States v. Hansen (written by Barrett for everyone except Sotomayor and Jackson), Berger v. North Carolina State Conference (Gorsuch for everyone except Sotomayor), Nance v. Ward (Kagan for everyone except Thomas, Alito, Gorsuch, and Barrett), Moore v. Harper (Roberts for everyone but Thomas, Alito, and Gorsuch), Oklahoma v. Castro-Huerta (Kavanaugh for everyone except Breyer, Sotomayor, Kagan, and Gorsuch), Abitron v. Hetronic (Alito for everyone except Sotomayor, Roberts, Kagan, and Barrett), and my personal favorite, Mallory v. Norfolk Southern RR. Co. (Gorsuch himself, Thomas, Sotomayor, and partially Alito and Jackson, over a Barrett dissent joined by Roberts, Kagan, and Kavanaugh).

2. Scalia, The Nineteenth Annual Lecture: Dissenting Opinions, 1994 J. Sup. Ct. Hist. 33, reprinted in Scalia Speaks 271-72 (C. Scalia & Whelan, eds. 2017). For a convenient example of the court reaching the right result for the wrong reason, I’d point to NLRB v. Noel Canning.

3. Preenforcement challenges seeking prospective relief are proper when a plaintiff alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979); see Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014); Dinerstein v. Google, 7th Cir., July 11, 2023 (slip op. at 10).

4. The direct quote is from my memory of the Scalia-Breyer cage match on foreign law at American University in 2005. Accord Scalia Speaks, supra, at 254; Printz v. United States, 521 U.S. 898, 921 (1997).

5. See Zelden, Thurgood Marshall: Race, Rights, and the Struggle for a More Perfect Union 169 (2013); Woodward & Armstrong, The Brethren 445 ff. (1979); Schaffer, 'Extraordinarily Self-Centered,' Politico, 6/10/22.