by Matt Barr

Decentralize the Court

There is a problem with constitutional jurisprudence that's only getting worse: coalitions of five life-tenured, unaccountable justices amending the constitution the easy way instead of the actual way the constitution says it should be amended. There have been various suggestions on how to solve this: election of judges, term limits, even, perhaps most radically, following the text of the constitution. Each has its problems (such as, in the case of the latter, that there's no way to mandate or enforce it).

The concept of "laboratories" on the state and circuit level is a good one in theory: We want creative chaos, with differences in the ways different subdivisions run things, because we can empirically observe which ways are best. Rather than speculating about consequences, we can observe them. But when you have a body whose only job is essentially to settle differences, the "experiments" don't have a chance to play out.

Now, I know that the Supreme Court's caseload is tremendous, that it hears only a tiny fraction of cases it's asked to, and that it is motivated by and involved in many more things than settling differences. But it doesn't need to be so. The Supreme Court's original jurisdiction is reserved only for "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." It has appellate jurisdiction in any other case where the judicial power of the United States extends per Article III Section 2, but as we know it may decline to hear an appeal. The Court is only constitutionally necessary in a very limited number of cases.

I propose making the Justices of the Supreme Court too busy to hear many appeals.

The 13 Chief Justices of the federal circuit courts of appeals would comprise the Supreme Court. They would continue to have the duties and responsibilities the circuit chiefs have now, but meeting together would exercise the Supreme Court's original jurisdiction and appellate jurisdiction where necessary. They would be based in Chicago, San Francisco, New Orleans; in other words, where the circuit courts are now located.

The Circuits would continue to settle the law in their territories. Appeals to the Supreme Court would be limited by logistics, time and resources. The most urgent inconsistencies between circuits could be settled by the Supreme Court, but more often Congress would have to pass a law settling them the way Congress believes they should be settled. Sometimes -- God forbid -- the constitution might have to be amended.

Circuit splits would also occur less frequently, for two reasons. One is that splits are not a favorable situation, and there would be pressure that doesn't exist today, when the Supreme Court is likely to step in and take care of it, to consider comity and ecumenism in circuit decisions. Two is that the Chief Justices, caucusing with their fellows on the Supreme Court, would bring back to their circuits a sense of the Court's likely disposition. To the extent circuit splits occur less frequently, of course, the appellate jurisdiction of the Supreme Court will be that much less necessary to exercise.

Practically, this would be accomplished at the outset by bumping nine (or eight or seven, if there are retirements that were already planned, or retirements that occur because the Justice doesn't want to relocate) current circuit chiefs and replacing them with the current Justices of the Supreme Court. You would need to negotiate which circuit chiefs remain, considering probably their political dispositions, and how to garner a filibuster-proof coalition to accomplish this. In English, you'd probably need to leave a few liberal chiefs in place.

Think about it. I will, too, and will probably post more.

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