Page:EO 14023 Commission Final Report.pdf/144

 the Justices must participate together in deciding merits cases and may not decide cases in separate panels.

A third objection to the Original/Appellate proposal is that, like all other proposals for Supreme Court panels, it gives Congress too much power to gerrymander the Justices by subject matter to attempt to manipulate the outcome of particular cases. If Congress may divide cases in this way, why not in other ways that would undermine the Court’s integrity and independence? For example, Congress might create a special panel that heard only cases involving abortion or the environment.

Proponents might respond that whether or not a general power to divide the Court into panels poses dangers, the Constitution itself creates a distinction between the Supreme Court’s original and appellate jurisdiction. This provision offers a bright-line rule, which, according to Marbury v. Madison, Congress may not vary. When Congress follows this bright-line rule, there is no danger to judicial independence. Congress cannot expand or contract the Court’s original jurisdiction. Therefore, the proposal does not assume that Congress has a general power to create panels of the Court. It simply argues that this one, which matches distinctions already present in the text of Article III, is constitutionally valid.

The third proposal attempts to respond to the concern that the Junior/Senior Justice proposal effectively removes Justices from their offices. Instead, it proposes that Presidents henceforth only appoint judges from the lower federal courts to sit by designation on the Supreme Court for a non-renewable term of eighteen years. The relevant statute will specify that one of the duties of lower federal court judges (or some statutorily demarcated subset of these judges) is that they may be called upon to serve by designation on the Supreme Court for eighteen years, after which they would return to their original court.

Under this proposal, Presidents would no longer appoint anyone to the office of “Judge[] of the supreme Court.” Instead, Presidents would simply designate lower court judges to serve on the Court temporarily. The statute could provide that the designation is subject to the ordinary advice-and-consent process. If the designation does not amount to appointment to a different office (see the discussion below), advice and consent would not be required by the Constitution, but Congress might nevertheless provide for it.

One main objection to the Designated Justices proposal is a textual argument. As noted previously, the Appointments Clause of Article II contemplates a separate office of “Judge[]