Changes needed in the Supreme Court

In his court packing plan FDR had a part that should be put into place today.

requiring special three-judge panels, rather than outlier district judges, to hear cases seeking to throw out state or federal rules. Roosevelt warned about courts becoming a “third house of the national legislature.”

the growing polarization of the federal judiciary all but ensures that dissatisfied litigants in some states (including the states themselves) will seek, rightly or wrongly, to persuade a nearby district judge to thwart the domestic agenda of a president of the other party.

This pattern also happened during Roosevelt’s first term, leading him to complain that the government was sometimes brought to a complete stop by court orders “issued almost automatically,” such that no important statute could take effect “against any individual or organization with the means to employ lawyers” and to force laws to go through “the whole hierarchy of the courts.” In 1937, after failing to persuade Congress to add more seats to the federal courts (not just the Supreme Court), he successfully convinced Congress to pass a bill that limited the powers of individual district judges and sped up appeals to the Supreme Court.

That legislation required that any suit seeking an injunction against a federal statute or policy be heard by a special three-judge district court panel including at least one judge from the Court of Appeals. Any decision by that panel could be automatically and immediately appealed to the Supreme Court to allow the merits of the dispute to reach the justices quickly (by combining the function of the two levels of lower federal courts) but on a full record.

The goal was to reduce the volume of outlier lower-court rulings and to hasten review of cases that went through these three-judge panels. Returning to this practice would reduce the cherry-picking of outlier judges because it’s harder to find three (or two) such judges than one. And with three-judge panels, we could also expect more consistent decision making and a more efficient path to full merits review by the Supreme Court.

Congress repealed these statutes in 1976, both because federal dockets had exploded during (and as a result of) the civil rights era and because of a widespread perception that individual judges could be trusted to handle the same cases.