Taking the Politics Out of Court Appointments
Imagine if Supreme Court appointments didn’t dominate presidential elections. Imagine if no single retirement or death could shift the ideological balance of the Court for a generation. Imagine if Americans couldn’t predict how every major case would be decided based on which president appointed which justice.
That’s the promise of rotating judicial panels—one of the most innovative and potentially transformative Supreme Court reform proposals.
The idea is elegant: instead of nine permanent justices deciding every case, the Supreme Court would hear cases in panels of nine randomly selected from a larger pool of federal judges. No more lifetime appointments determining decades of legal doctrine. No more single vacancies triggering political warfare.
But would it work? Is it constitutional? And could it actually reduce the Court’s partisan capture?
How Rotating Panels Would Work
There are several versions of the rotating panels proposal, but the core concept is consistent: expand the pool of Supreme Court justices and use random selection to determine which justices hear which cases.
The Supreme Court Lottery
The most comprehensive version, often called the “Supreme Court Lottery,” would work like this:
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All federal appeals court judges become Associate Justices - All 179 judges on the federal courts of appeals would be appointed as associate justices of the Supreme Court (along with the existing nine, for a total of 188 justices)
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Random selection for each case - For each case the Court agrees to hear, nine justices would be randomly selected from the full pool to form a panel
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Two-week rotations - One proposal involves rotating panels serving for just two weeks, after which a new panel of nine would be randomly selected
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Partisan balance requirements - No more than five justices on a nine-justice panel could be appointed by presidents of one political party, preventing ideologically stacked panels
Modified Proposal: Adding Four Rotating Judges
A less dramatic version would add four randomly assigned circuit court judges per term to the existing nine permanent justices. This creates a 13-member pool, with panels still consisting of nine justices.
This approach:
- Preserves the current nine justices
- Dilutes the power of any single appointment
- Introduces randomness without completely overhauling the system
- Creates less disruption than the full lottery model
The Model Already Exists: Federal Appeals Courts
Rotating panels aren’t a radical untested idea. They’re already how federal appeals courts work.
Three-Judge Panels
Cases in United States courts of appeals are typically heard by three-judge panels, randomly chosen from the sitting appeals court judges of that circuit. A circuit might have 15 or 20 active judges, but each case is decided by just three.
The Ninth Circuit has 29 active judges, but cases are heard by randomly selected three-judge panels. The same is true for every other federal circuit.
En Banc Panels for Large Circuits
For important cases, circuits can hear cases “en banc”—with more judges participating. But even here, large circuits use random selection.
The Ninth Circuit’s en banc panels consist of the Chief Judge plus 10 additional active judges selected at random (rather than all 29 judges participating). The Fifth Circuit adopted a similar procedure in 1986.
Federal law explicitly authorizes this: for courts with more than 15 judges, an en banc hearing may consist of “such number of members as may be prescribed by rule of the court.”
The Precedent Is Clear
If federal appeals courts can use randomly selected panels—and they do, every single day—why can’t the Supreme Court?
The rotating panel proposal simply applies a well-established judicial practice to the nation’s highest court.
Why Rotating Panels Could Transform the Court
The partisan capture of the Supreme Court didn’t happen by accident. It’s the inevitable result of lifetime appointments combined with strategic retirement timing and raw political power.
Rotating panels address multiple problems simultaneously:
1. De-Politicizes Supreme Court Appointments
When there are nearly 200 potential justices who might sit on any particular case, individual appointments matter far less.
A president appointing a new circuit court judge would still be important, but it wouldn’t shift the Supreme Court’s ideological balance overnight. No single appointment would dominate the Court for 30+ years.
The proposal would “de-politicize the appointments process” and diminish the significance of Supreme Court appointments in presidential elections.
2. Prevents Minority Rule
Right now, six conservative justices—appointed by presidents who lost the popular vote and confirmed by senators representing a minority of Americans—control the Court.
With rotating panels and partisan balance requirements, no single ideological bloc could dominate every case. The composition would vary, making extreme partisan outcomes less likely.
3. Eliminates Strategic Retirements
Under the current system, justices time their retirements to ensure a president from their preferred party appoints their replacement. This turns life tenure into a political calculation.
With rotating panels, when a judge retires or dies, they’re replaced in the larger pool but don’t fundamentally alter the Court’s composition. Strategic retirement becomes pointless.
4. Reduces the Stakes of Each Case
When nine permanent justices decide every case, research shows that assigning three Democrats to a court of appeals panel, compared to three Republicans, more than quintupled the chances that the Supreme Court would overturn that decision.
Random assignment creates uncertainty about which panel will hear which case, reducing the ability to predict outcomes based purely on partisan composition.
5. Brings Fresh Perspectives
Federal circuit judges have deep expertise in specific areas of law based on the cases their circuits handle. Rotating these judges onto the Supreme Court would bring specialized knowledge and diverse perspectives to high-stakes cases.
Rather than the same nine justices developing entrenched positions over decades, the Court would benefit from regular infusions of different judicial perspectives.
The Constitutional Question
Critics argue that rotating panels violate the Constitution’s requirement that there be “one Supreme Court.” But this argument doesn’t hold up.
Congress Already Controls Court Structure
Congress has broad authority to set or change the size of the Supreme Court through ordinary legislation. The Court has been as small as five justices and as large as ten. If Congress can set the number at nine, it can set it at 188.
The Constitution doesn’t specify how many justices constitute the Supreme Court, how they’re selected for cases, or whether all justices must participate in every case.
The Court Has Already Used Panels
Throughout its history, the Supreme Court has operated with fewer than all justices participating in cases—through recusals, vacancies, and illness. The Court has issued binding decisions with as few as six justices participating.
If the Court can function with six justices due to recusals, it can function with nine justices selected from a larger pool.
Federal Law Authorizes Panel Selection
Federal statute already authorizes circuit courts to create panels through rules—including random selection for en banc panels in large circuits. Congress’ passage of the Judiciary Acts indicates its power to control the structure of the federal courts.
If Congress can authorize the Ninth Circuit to use 11 randomly selected judges for en banc review rather than all 29, it can authorize the Supreme Court to use nine randomly selected justices from a larger pool.
The Challenges and Trade-offs
No reform is perfect, and rotating panels come with real challenges that need to be addressed.
Challenge 1: The Random Luck Problem
The biggest concern: randomness could create panels “stacked in favor of judges nominated by one side” deciding extremely important cases.
Imagine a case about abortion rights randomly drawing eight conservative justices and one liberal. Or a gun rights case drawing eight liberals and one conservative.
The Solution: Partisan balance requirements. By limiting panels to no more than five justices appointed by presidents of one party, the most extreme outcomes become impossible. Every panel would have at least four justices from each partisan bloc.
Challenge 2: Lack of Consistency
With different panels deciding different cases, there’s a risk of inconsistent interpretations of the same legal principles.
The Reality: This already happens. Circuit courts reach different conclusions on the same legal questions all the time—that’s why the Supreme Court takes cases “to resolve circuit splits.”
And the current Court isn’t exactly a model of consistency—it routinely overrules its own precedents when the composition changes.
Challenge 3: Implementation Complexity
Creating a pool of 188 Supreme Court justices, managing random selection, and coordinating schedules would require significant administrative changes.
The Response: Federal courts already manage this complexity for circuit courts. The mechanisms exist; they’d just need to be scaled up.
Challenge 4: Public Understanding
Americans are used to thinking of “the Supreme Court” as nine specific justices. A rotating system would be harder to explain and understand.
The Counter: Public understanding of the current system is already terrible. Most Americans can’t name more than two or three justices. What matters is whether the system produces fair, legitimate outcomes—not whether it’s simple to explain.
Comparing Rotating Panels to Other Reforms
Rotating panels aren’t the only proposed reform. How do they compare?
vs. Term Limits
Term limits (like 18-year terms) would regularize appointments and reduce the power of individual justices over time. But they wouldn’t address partisan capture—they’d just make it more predictable.
Rotating panels address both longevity and partisanship by making individual appointments less consequential.
vs. Court Expansion
Court expansion (adding more justices) could rebalance the Court in the short term but invites tit-for-tat escalation where each party adds justices when in power.
Rotating panels make the Court’s composition less dependent on which party controls government at any given moment.
vs. Jurisdiction Stripping
Jurisdiction stripping would remove certain categories of cases from the Court’s power but leaves the fundamental structure unchanged.
Rotating panels reform how the Court operates while preserving its jurisdiction.
The Best Combination
The most effective reform package might combine rotating panels with term limits: all circuit judges serve as associate justices with 18-year terms, and cases are heard by randomly selected nine-member panels with partisan balance requirements.
This addresses appointment politics, partisan capture, and lifetime tenure simultaneously.
Evidence from State Courts
Research on state supreme courts found that judicial selection reforms changing from partisan to merit-based systems produced judges that provided higher-quality work than their pre-reform colleagues.
When judicial selection becomes less partisan, judicial quality improves. Rotating panels with random assignment would push federal courts in this direction.
What Would Change (and What Wouldn’t)
What Would Change
- Individual appointments matter less: No single judge could dominate the Court for decades
- Partisan warfare over vacancies decreases: With 188 justices, each appointment has diluted impact
- Outcomes become less predictable: Random selection means you can’t know the panel composition in advance
- Fresh perspectives regularly: Circuit judges rotate through, bringing specialized expertise
What Wouldn’t Change
- The Court’s fundamental role: It would still be the final arbiter of constitutional questions
- Precedent and stare decisis: The Court would still follow and build on prior decisions
- Quality of judicial reasoning: Cases would still be decided by experienced federal judges
- Public access and transparency: Oral arguments, written opinions, and public proceedings would continue
The Path Forward
Implementing rotating panels would require:
- Congressional legislation expanding the number of Supreme Court justices and establishing the selection mechanism
- Rules for panel selection including random assignment procedures and partisan balance requirements
- Administrative systems to manage scheduling and case assignment
- Clear criteria for which justices are eligible for the pool (active judges only? Senior status judges?)
- Transition plan from the current nine-justice system to the new model
The proposal doesn’t require a constitutional amendment—Congress has clear authority to structure the federal courts.
Conclusion: An Idea Whose Time Has Come
Rotating judicial panels offer something rare in Supreme Court reform debates: a structural solution that addresses root causes rather than symptoms.
The current system—nine lifetime appointees deciding every major constitutional question—concentrates too much power in too few hands for too long. It invites partisan warfare over appointments, rewards strategic retirement timing, and makes the Court’s ideological composition dependent on which justices happen to die or retire during which presidencies.
Rotating panels would:
- De-politicize appointments by making individual justices less consequential
- Prevent partisan capture through random selection and balance requirements
- Bring fresh perspectives from experienced circuit judges
- Reduce the stakes of any single case or retirement
- Apply a proven model from circuit courts to the Supreme Court
The challenges are real but solvable. The constitutional authority exists. And the need for reform has never been clearer.
As the Court’s approval ratings crater and partisan decisions erode public trust, Americans are ready for transformative change. Rotating panels offer a path to a Supreme Court that’s less political, more balanced, and more legitimate.
The question isn’t whether we can reform the Court this way. It’s whether we have the political will to try.