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Opinion: The size of the Supreme Court is only part of the problem

October 14, 2020. Summarized by summa-bot.

Judith Resnik writes that by focusing only on the number of Supreme Court justices, Americans miss the systemic issues essential to a fair judiciary. To decide what needs to be changed, they must know how these judges are selected, how long they stay in power and how the Supreme Court gets its cases.

Tens of hundreds of judges in lower courts — both with and without life tenure — decide the vast bulk of the country's cases.

To decide what needs to be changed, it is essential to know how these judges are selected, how long they stay in power and how the Supreme Court gets its cases.

The federal courts are usually depicted as a three-tiered pyramid of life-tenured judges at the district, appellate and Supreme Court.

Magistrate judges, selected by life-tenured district court judges, have eight-year renewable terms.

Too few people — many life-tenured judges — hold too much power for too long.

I learned from delving into the early days of the US that from 1789 to 1809, 63 life-tenured judges sat on all the federal courts across the (much smaller) United States.

On average, Supreme Court justices held that office for 14 years, and lower court judges served for 16 years.

Retired Supreme Court justices occasionally sit on appellate courts — for example, Justice David Souter on the First Circuit — and lower court judges regularly sit "by designation" on appellate courts or move from one district because help is needed to staff the cases.

Justices who cycle off the high court would still be life-tenured, and they would move to sit on lower federal courts.

An alternative exists, as suggested by a group of law professors some years ago: Congress can create or the Supreme Court could delegate to a rotating body of lower court judges the primary role in selecting the cases to be heard by the high court and thereby lower the risk of politicization in case selection.

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