Why Expand the Supreme Court When We Can Partition It?
With the Amy Coney Barrett confirmation vote looming and looking to be a certainty, there is more and more talk about adding seats to the United States Supreme Court. That idea certainly has appeal, but it occurred to me today that we might have an alternative. Now, this is very much a half-baked idea for me in the sense that I have not done any research to see if legal scholars have written articles analyzing this plan, but I figure I will toss it out for discussion anyways. What if we split the Supreme Court into a civil division and a criminal division?
How would we do that? We could allocate four associate justices to the civil division and four associate justices to the criminal division. The chief justice would sit on both divisions, providing a fifth vote. How would this help the Democrats? Well, Congress could put the seats currently occupied by Justices Breyer, Kagan, Sotomayor, and Alito on the civil division and the seats occupied by Justices Gorsuch, Kavanaugh, Thomas, and Ginsburg (formerly) on the criminal division. That would give the liberal justices a 3–2 advantage on the civil side.
Why would that help us? Congress could make jurisdiction for the two divisions exclusive. Then, Congress could narrowly define the cases that the criminal division will hear. Basically, any civil lawsuit or constitutional challenge to a statute or provision of a state constitution would go to the civil division. The criminal division would receive appeals from convictions and habeas cases, as long as they do not attack the constitutionality of a statute or state constitutional provision. This would be similar to how Texas and Oklahoma handle their appeals. It would also be similar to a plan proposed in Florida back in 2011.
Is this constitutional? Well, I cannot say with total certainty that it is. Article III, Section 1 of the United States Constitution holds:
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, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Basically, the potential challenge here would be under the language of “one Supreme Court.” Is a Supreme Court with two divisions really a single court? Well, I think there is a strong argument that it is. For example, the United States Attorney’s Office for the Southern District of New York has a criminal division and a civil division, yet nobody would seriously argue that there is more than one United States Attorney’s Office in the Southern District of New York because of that structure.
Keep in mind that Congress has the power to expand and contract the Supreme Court. It also has the power to limit the Court’s jurisdiction, within reason. Why wouldn’t it have the power to reorganize the Court? No justice is being removed. Litigants are not being denied constitutional review. Essentially, once you resolve the “one Supreme Court” question, I do not see a limitation in Article III that would stop Congress from being able to do this.
Additionally, there is one more potential landmine I must mention. As noted earlier, Congress would need to be very precise in defining what goes into the criminal division and what goes into the civil division. These divisions would need to have exclusive jurisdiction. Because if an overlap occurs, it could result in one division ruling one way and the other division ruling another. As an example, imagine a Second Amendment case where a gun group challenges the statute civilly and a criminal defendant challenges the statute after being convicted of violating it. If the issue went before both divisions, we could very easily have conflicting opinions. You could say we could resolve that by having the ability for the Supreme Court to go en banc when the two divisions are in conflict, but that would only lead to gamesmanship from the ideological majority and undermine our point in doing this. Consequently, I would include in the statute a prohibition on the Court sitting en banc. And while this is not particularly important for the purposes of the current discussion, I would include in the statute a means for temporarily filling vacancies. Basically, if a justice on the criminal division died, in each case, a different justice on the civil division would fill that vacancy (by random selection) until the President and Senate filled the seat.
That is a brief outline of my half-baked idea. As I said, it is quite possible that somebody has already analyzed this idea in an article, but I figured I would throw it out there as an alternative to expanding the Supreme Court. Feel free to let me know what you think. I am interested to hear whether people think this is constitutional and whether it could be a superior idea to expanding the Court.
