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37 Ohio N.U. L. Rev. 23 (2011)
A Panel-Based Supreme Court

handle is hein.journals/onulr37 and id is 25 raw text is: A Panel-Based Supreme Court ADAM H. MORSE AND JULIAN E. YAP* ABSTRACT The United States Supreme Court suffers from serious structural problems-increasing judicial tenures, incentives to hear a greatly diminished number of cases, and the illegitimate concentration of power in single individuals instead of the rule of law. A Panel-Based Supreme Court argues that these problems are best solved through a law implementing changes in the Court's institutional design. This article makes the novel proposal of increasing the size of the Court to roughly fifteen justices, and hearing cases in nine-justice panels. This article also proposes adopting regular appointments of justices, without additional appointments upon the retirement or death of an incumbent justice. This article's proposal would ameliorate or eliminate all of the problems with the Court created by its current structure. This article presents game-theoretic and combinatorial evidence that a panel-based Court would improve the Court's decision- making processes. I. Introduction......................................24 II. Severe Problems Caused by the Current Institutional Design ...........26 A. Length of Tenure....................................26 B. The Underutilization of the Capacity for Supreme Court Review.....31 C. Rule of People not Law ..................... ..........34 III. A Panel Based Solution for Supreme Court Reform .. .............37 IV. Expected Incentives and Effects of a Panel-Based System...........41 A. Increasing the Number of Cases Decided by the Court.................41 B. Ameliorating the Problems Associated with Increased Tenures on the Court............................................42 C. Reducing the Dependence on Individual Justices' Views.............44 D. Reducing Problems Related to Recusal ....................46 E. Ameliorating the Counter-majoritarian Difficulty .. .............47 * Adam H. Morse: Visiting Assistant Professor, Texas Tech School of Law; J.D., 2001, New York University; B.A., 1998, Yale University; Julian E. Yap: LL.M., J.D., 2007, Duke University; M.A., 2001, University of Pennsylvania; B.A., 1998, Yale University. The authors would like to thank Paul Carrington, Chris Schroeder, Shawn Bayern, Stuart Benjamin, Ginger Rodd, Michael Davis-Wilson, Matthew Feigin, Eric Feigin, Matt Lewis, James Stuart, and Anise Strong for their comments, critiques, and advice. 23

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