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.
