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When it comes to court packing, questions of "should" and "can" are inextricably intertwined. The conventional wisdom has long been that federal court packing is something the President and Congress simply cannot do. Even though the Constitution's text does not directly prohibit expanding or contracting the size of courts for political gain, many have argued that there is a longstanding norm against doing so, stemming from a commitment to judicial independence and separation of powers. And so (the argument goes), even though the political branches might otherwise be tempted to add or subtract seats to change the Court's ideological makeup, for reasons related to the Constitution and history they should not, meaning for reasons related to politics they cannot. But even the strongest norms are susceptible to pressure, and recent moves by scholars and politicians are calling the conventional wisdom about court packing into question. Based largely on the claim that the majority Republican Senate "unpacked" the Supreme Court by refusing to hold hearings upon the nomination of Judge Merrick Garland in 2016, some have begun to argue that court packing can be done because it recently has been done (by the political right), and now should be done (by the political left). Missing in the debate over the positive question--whether court packing has recently occurred--is that it has unquestionably happened in the past several years in state courts across the country. Specifically, in the last decade, there have been legislative attempts in at least ten states to alter the size of their courts of last resort, with two being "successful."Moreover, these figures represent an increase from the number of attempts in decades past. This symposium Article makes a gentle intervention in the larger debate about court packing and the consideration of courts more generally in these politically charged times. Specifically, it provides a descriptive account of recent incidents of court packing and unpacking in state supreme courts. It then examines potential commonalities among the states in which such measures have been attempted and then those in which they succeeded. The Article finally considers whether there are lessons to be drawn for those interested in shifting--or keeping static--the size of the U.S. Supreme Court, including members of the Court itself. [ABSTRACT FROM AUTHOR]

It is common knowledge that the federal courts of appeals typically hear cases in panels of three judges and that the composition of the panel can have significant consequences for case outcomes and for legal doctrine more generally. Yet neither legal scholars nor social scientists have focused on the question of how judges are selected for their panels. Instead, a substantial body of scholarship simply assumes that panel assignment is random. This Article provides what, up until this point, has been a missing account of panel assignment. Drawing on a multiyear qualitative study of five circuit courts, including in-depth interviews with thirty-five judges and senior administrators, I show that strictly random selection is a myth, and an improbable one at that--in many instances, it would have been impossible as a practical matter for the courts studied here to create their panels by random draw. Although the courts generally tried to "mix up" the judges, the chief judges and clerks responsible for setting the calendar also took into account various other factors, from collegiality to efficiency-based considerations. Notably, those factors differed from one court to the next; no two courts approached the challenge of panel assignment in precisely the same way. These findings pose an important challenge to the widespread assumption of panel randomness and reveal key nor literature. Although randomness is regarded as the default selection method across much of judicial administration, there is little exposition of why it is valuable. What, exactly, is desirable about having judges brought together randomly in the first place? What, if anything, is problematic about nonrandom methods of selection? This Article sets out to clarify both the costs and benefits of randomness, arguing that there can be valid reasons to depart from it. As such, it provides a framework for assessing different panel assignment practices and the myriad other court practices that rely, to some extent, on randomness. [ABSTRACT FROM AUTHOR]

A fundamental academic assumption about the federal courts of appeals is that the three-judge panels that hear cases have been randomly configured. Scores of scholarly articles have noted this "fact," and it has been relied on heavily by empirical researchers. Even though there are practical reasons to doubt that judges would always be randomly assigned to panels--such as courts might well want to take into account the scheduling needs of their judges--this assumption has never been tested. This Article is the first to do so, and it calls the assumption into question. To determine whether the circuit courts utilize random assignment, we have created what we believe to be the largest dataset of panel assignments of those courts constructed to date. Using this dataset, we tested whether panel assignments are, in fact, random by comparing the actual assignments to truly random panels generated by code that we have created to simulate the panel generation process. Our results provide evidence of nonrandomness in the federal courts of appeals. To be sure, the analysis here is descriptive, not explanatory or normative. We do not ourselves mean to suggest that strict randomness is a desirable goal and indeed note that there are many good reasons for departing from it. Our aim is to test an existing scholarly assumption, and we believe our findings will have implications for the courts, court scholars, and empirical researchers. [ABSTRACT FROM AUTHOR]