"The Threes": Re-Imagining Supreme Court Decisionmaking

Abstract

In this Essay--the first in a series of essays designed to reimagine the Supreme Court--we argue that Congress should authorize the Court to adopt, in whole or part, panel decisionmaking. We recognize, of course, that this proposal is likely to elicit a visceral reaction. If your politics skew left, you might tremble at the thought of Justices Scalia, Kennedy, and Thomas deciding Grutter, or Justices White and Rehnquist deciding for a divided panel that a woman does not have the right to choose. If your politics skew right, you might fear a world in which the "inconvenient truth" is not an Academy Award-winning documentary, but rather a decision by Justices Stevens, Souter, and Ginsburg to send Al Gore to the White House.' Whatever counterfactual you find troubling, your visceral reaction probably reflects two presumed costs associated with a move to a panel system: the prospect of different outcomes and the prospect of lower-quality decisions. With respect to the prospect of different Court outcomes, we demonstrate empirically in this Essay that the vast majority of cases decided during the late twentieth and early twenty-first centuries including Grutter, Roe, and Bush v. Gore -would have come out the same way if the Court had decided them in panels rather than as a full Court. Indeed, if the Supreme Court had implemented three-Justice panels plus an en banc procedure similar to the one used by the United States Courts of Appeals,' we think you could count on one, two, or maybe a few hands the number of cases that would have come out differently. If past is prologue, we would expect panels to reach outcomes in future cases that are substantially similar to those the Court would reach as a whole.