Packing SCOTUS?

 

Midnight Rider

And I've gone by the point of caring,
Some old bed I'll soon be sharing,
And I've got one more silver dollar,
But I'm not gonna let 'me catch me, no
Not gonna let 'me catch the Midnight Rider.

Should the Supreme Court ride again?

The United States currently has 12 Circuit Courts of Appeal.  So why are they called Circuits?  At the time of the country’s founding, travelling was difficult, and it made more sense for judges to travel to the trial, rather than having the trial come to the judge.  The judges instead would thus "ride" a circuit from trial to trial.

As travel became easier, the practice of riding a circuit was discontinued, but the word remained.  Why does this matter for the Supreme Court?  At the time of the Supreme Court’s founding, each Supreme Court Justice was responsible for a circuit.  There are 12 Circuits of Appeals Courts in the United States, so there must be 12 Justices on the Supreme Court?  Oh, there are currently only 9 Justices?  Then adding three Justices would be returning to normal, not court packing.  The idea that there should be Circuits, is because while there could be an opinion within a Circuit, which is typically several states, it is the opinion of the entire United States that should be the opinion of the Supreme Court.

The Justices of the Supreme Court are individuals, not an absolute.  So how can we ensure that they have the certainty of an absolute?  The answer is in the very jury system overseen by the judiciary.  There are twelve members of a jury in a criminal case.  Those cases are decided by unanimous decisions, i.e. 12-0 of the jury, not by dominate decisions, i.e. 7-5. 

There is a reason for that.  There are 4,096 possible votes of a jury, only two of which are unanimous decisions: Unanimously Guilty; or Unanimously Not Guilty. The certainty of a Unanimous Guilty decision by a jury is thus not 100% but it is 99.98%.  But as could be imagined a lone hold-out juror might extract concessions from the rest of the jury and the decision could then be biased, not certain.  That is why a unanimous decision is not required in a civil case.  The decision is less certain, but also with less of a possibility of a hung jury, or a decision which reflects the lowest common denominator of the entire jury.

A twelve-member court has a mean of 6.5 and a variance of all of their votes of 4.  A 6-6 decision reflects no more than chance, 0% dominance but 77% certainty.  A 7-5 decision  reflects 100% dominance but only a certainty of 80.6%.  A decision that is 9-3, still reflects 100% dominance but its certainty has increased to 94.6%.

For reasons cited in a previous blog post,  https://dbeagan.blogspot.com/2023/05/judicicary.html, which discussed only increasing the size of the Supreme Court’s bench to 10 members, a sixteen-year term, staggered among the Justices, is recommended, but the first terms of the three new Justices could be adjusted such that they have terms that expire, assuming their appointment in 2025, respectively, in 2045, 2047, and 2049.  The sitting Justices’ terms would then begin to expire in 2027 with one term expiring in that year and every subsequent 2 years based on the seniority of the sitting Justices. Thus the last sitting Justice’s term would expire in 2043, assuming that the terms of the three new Justices begin in 2025. Upon the death, or resignation, before the end of that term the President would be expected to nominate and the Senate to confirm the nomination of a Justice to complete the unexpired term.  A president, serving one four-year term could thus nominate only 2 Justices  serving full terms. A president serving two one-year terms, could thus only nominate 4 Justices serving full terms.  Even in the event of a vice president being promted into more than 3 years of the term of his President, and then subsequently beginning elected to two of his own four-year terms would only get to nominate 6 of the 12 Justices serving full terms. That nomination could be of the Justice whose term is expiring.  Yes, that would mean that individual could conceivably  serve 32 years, but life expectancy and interest is expected to cut that short, such that a two term limit for justices seems superfulous.

The number of Supreme Court Justices would then be consistent with the number of Circuit Courts of the United States, even if those Justices would not be required to "ride" those Circuits.  The decisions of the Supreme Court would be required to be 9-3 which represents both the certainty of one standard deviation, the square root of variance, from the mean, AND dominance.