The central argument for the Original/Appellate proposal is that it can be linked to a specific textual provision in the Constitution. Article III, Section 2 of the Constitution gives Congress the power to regulate the Court’s appellate jurisdiction: “[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”[80] In Marbury v. Madison,[81] the Court held that the Exceptions and Regulations Clause applied only to the Court’s appellate jurisdiction and that Congress could not alter the Court’s original jurisdiction.[82] The proposal argues, accordingly, that although Congress must allow all Justices to hear all cases arising out of original jurisdiction, it may provide, as a regulation of appellate jurisdiction, that only Junior Justices hear appeals.
Although this proposal invokes a different congressional power, it raises some of the same constitutional issues discussed above. No matter which enumerated power Congress is exercising, Congress’s statutes must comport with the Good Behavior Clause and the Appointments Clause. If critics are correct that everyone who holds the office of “Judge[] of the supreme Court” must be able to participate in substantially all of the Court’s final decisions, or must remain eligible to participate in an equal share of the Court’s work, then the Original/Appellate proposal would be vulnerable to the same objections as the Junior/Senior Justice proposal.
Critics may raise several additional objections. First, critics will argue that the Exceptions and Regulations Clause gives Congress the power to change the scope of the Supreme Court’s appellate jurisdiction, but not the personnel who decide appeals. Put another way, the Clause allows Congress to decide what appeals the Court can hear, but not who hears the appeals.
Proponents, in turn, will argue this does not attend to the distinction between “exceptions” to and “regulations” of appellate jurisdiction that appears in the text of Article III. “Exceptions” to appellate jurisdiction involve limiting what cases the Court may hear. But “regulations” of appellate jurisdiction may also include deciding how the Court hears appeals and who hears them. The Supreme Court has never addressed this precise issue.
A second objection is that the Original/Appellate proposal creates two panels. One panel, consisting of all of the Justices, hears original jurisdiction cases. The other, consisting only of the nine Justices most junior in service, hears appellate cases. As we discuss in Chapter 2 at greater length, there is an argument that this aspect of the proposal would violate the provision in Article III, Section 1 that “[t]he judicial Power of the United States, shall be vested in one supreme Court.”[83] From a textual point of view, if there is “one” Supreme Court, then perhaps
