Page:EO 14023 Commission Final Report.pdf/92

 full set of sitting Justices making initial decisions in individual cases for the Court as a whole. One could reasonably read the text of Article III to suggest that the Supreme Court must be a unitary apex court whose members sit together in every case the Court takes up on the merits. But the text is also arguably consistent with having a large apex body that is nonetheless organized into panels, at least as long as a mechanism exists to enable en banc hearings, or some other form of review that would ensure that the Court produces a single, authoritative answer to whatever questions of fact or law the “Judges of the supreme Court” are charged with resolving. Such a structure could plausibly be considered “one supreme Court.” The operation of the thirteen United States Courts of Appeals supports this understanding. They are understood to constitute thirteen unitary courts even though each of them typically sits in panels of three, treating each panel’s decision as binding on all future panels of the same circuit unless and until the full circuit court, sitting en banc, reverses that opinion. In contrast, a system under which groups of Justices were drawn, on a bi-weekly or other constantly rotating basis, from among all federal judges would raise more serious constitutional concerns, because it would be difficult to identify any single complement of Justices, sitting en banc or otherwise, to provide review as “one supreme Court.”

The history of the “one supreme Court” language at the Founding and its interpretation over subsequent centuries supports the view that the Court must operate in some meaningful sense as a single court. But nothing in the history the Commission has reviewed surrounding the drafting or adoption of this “one supreme Court” provision reveals the thinking that underlay the creation of one Supreme Court or resolves the question whether the Court could sit in smaller panels or rotating groups, subject to a potential en banc review process.

During the Constitutional Convention of 1787, James Madison initially proposed “that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour; and to receive punctually at stated times fixed compensation for their services. …” But a few days later, the Convention opted for a “national judiciary … to consist of One supreme tribunal, and of one or more inferior tribunals.” Subsequent versions of the constitutional text then consistently referred to “one supreme Court.” Historians debate the significance of this textual change.{ref|157}} There is evidence that at least some Framers anticipated that the Supreme Court could divide into panels to complete its work more efficiently, while others anticipated that the Court would only hear cases as a single unit. For example, later in the Convention, when the participants debated how Congress could address workload concerns in the judiciary, Madison argued that Congress could simply add more judges. Gouverneur