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 For example, in the 1920s, Chief Justice Taft insisted that Congress “could not adopt” the panel approach that existed in some states, “because our Constitution provides that there shall be one Supreme Court, and it is doubtful whether you could constitutionally divide the court into two parts.” Likewise, in responding to President Roosevelt’s 1937 Court-packing plan, Chief Justice Hughes expressed doubts about the wisdom and the constitutionality of a panel system. He argued that the proposed expansion would “impair [the Court’s] efficiency so long as the Court acts as a unit” but noted that a decision by less than the full Supreme Court may not be seen as legitimate or consistent with Article III. In the 1970s and 1980s, Congress debated reforms that eventually led to the Judiciary Act of 1988, which granted the Supreme Court the discretion to decide whether to review virtually every appeal. During the debates, Chief Justice Burger asserted that a panel system was not a viable alternative: “Such a change would appear to alter the basic concept of ‘one supreme Court’ under Article III.”

It is arguably of some significance that individual lawmakers and Justices in the past have questioned the legality of structural reforms such as rotation and panel systems; these views underscore that the claims should be taken seriously. But lawmakers have reached different conclusions, and the statements of the Justices made outside of the context of judicial opinions, and in favor of preserving the existing structure, are not authoritative in establishing the meaning of Article III. Ultimately, we cannot conclude that the Constitution precludes rotation and panel reforms, at least as long as processes exist to ensure that a juridical body operates in some meaningful sense as a single “Court.”

Reforms designed to secure partisan or ideological balance on the Court present at least two potential constitutional difficulties. First, such reforms may be in some tension with core First Amendment freedoms of political speech, association, and thought, as they may be seen as locking the major parties as they exist today into control over Court appointments. Second, proposals that would have the Justices select part of the Court’s membership would seem to be on a collision course with the Constitution’s clear specification in Article II, Section 2, of how “Judges of the supreme Court” are to be selected—namely, by presidential nomination and Senate confirmation. Article II does not permit “Judges of the supreme Court” to be selected by other members of that Court.

The rotation and panel proposals might enhance the Court’s operations by injecting vitality and diversity of various kinds into the Court or better enabling the Court to hear greater