Page:EO 14023 Commission Final Report.pdf/113

 # Id.
 * 1)  art. III, § 1 (emphasis added).
 * 2) Article III, Section 1 of the U.S. Constitution provides that: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” The Appointments Clause of Article II, Section 2 provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law … .” Id. § 2. The concern under the “good Behaviour” Clause is that a statute that would have judges sit on the Supreme Court for only brief periods, interspersed with service on the lower federal courts, would significantly change the nature of the office. The concern under the Appointments Clause is that the Clause creates an office of Supreme Court Justice separate and apart from the office of lower federal court judge. These constitutional issues are complex, and scholars disagree over their appropriate resolution. If these rotation reforms were to be pursued via a constitutional amendment, these concerns would not arise.
 * 3) See Lisa T. McElroy & Michael C. Dorf, Coming off the Bench: Legal and Policy Implications of Proposals to Allow Retired Justices to Sit by Designation on the Supreme Court, 61  81, 110 (2011) (“The Court sitting en banc would be the ‘real’ indivisible Supreme Court, while the panels could be understood as lower federal courts.”); see also Tracey E. George & Chris Guthrie, “The Threes”: Re-Imagining Supreme Court Decisionmaking, 61  1825, 1847 n.85 (2008) (providing several justifications for the constitutionality of panel proposals).
 * 4) Some circuits are more numerous than others, and the size of the court might affect how often it might sit en banc to resolve disagreements on the Court: The number currently ranges from six judges on the First Circuit to twenty-nine on the Ninth.
 * 1, at 21–22 (Max Farrand ed., 1911) (emphasis added) [hereinafter ]; see Ross E. Davies, A Certain Mongrel Court: Congress’s Past Power and Present Potential to Reinforce the Supreme Court, 90 678, 684 (2006) (noting that this proposal was “[t]he ninth ‘Resolve’ in the ‘Virginia Plan’ presented at the opening of the Philadelphia convention in late May 1787”).
 * 1, supra note 154, at 95 (emphasis added).
 * 1) The only change was the capitalization. See 2, supra note 154, at 186 (showing that the draft from the Committee of Detail on August 6 provided that “[t]he Judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as shall, when necessary, from time to time, be constituted by the Legislature of the United States.” (emphasis added)); Id.id. [sic] at 600 (showing that the draft from the Committee of Style in mid-September provided that “[t]he judicial power of the United States, both in law and equity, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish… .” (emphasis added)); Id.id. [sic] at 660 (showing the final text adopted on September 17, 1787, which provided for “one supreme Court”).
 * 2) See, e.g., James E. Pfander, Jurisdiction-Stripping and the Supreme Court’s Power to Supervise Inferior Tribunals, 78  1433, 1452–53 (2000) (“In providing for one supreme court and ruling out the possibility of multiple supreme courts, the Framers appear to have contemplated that the Supreme Court was to play a distinctive role as the hierarchical leader of the judicial department.”). But see David E. Engdahl, What’s in a Name? The Constitutionality of Multiple “Supreme” Courts, 66  457, 465 (1991) (disputing this understanding of the “wording change”).
 * 3) See 2, supra note 154, at 44–45; Id.id. [sic] at 45 (statement of James Madison) (“The increase of business will be provided for by an increase of the number who are to do it.”).
 * 4) Id. (statement of Gouverneur Morris); see Davies, supra note 154, at 685–86 (“In other words, [Morris was asserting that,] because the work of the Supreme Court could not be divided up among the members of the Court, adding Justices would only add to the number of people involved in each decision and every other piece of Court business.”).