Make SCOTUS Judge Again: A Proposal to Revive Mandatory Appellate Jurisdiction Over Constitutionally Significant Questions

Abstract

Every term, the Supreme Court decides fewer cases. The lower overall number of decided cases has focused public attention (and opposition) more intensely around the relative handful of high-profile cases that remain, and shut state court litigants seeking review out of the Supreme Court almost entirely. Discretionary grants of certiorari have also allowed the Court to pass on resolving divergent opinions among lower federal and state courts, leading to an unfortunate reality in which federal law is applied inconsistently across the country. Furthermore, the lighter workload has made continued service on the Court manageable for Justices who in an earlier era might have already retired, reducing the number of vacancies and raising the political stakes for each new appointment. Reviving the Court’s mandatory appellate jurisdiction as it existed in the middle of the twentieth century would accomplish multiple goals at once: giving more state court litigants a shot at federal appellate review, promoting greater uniformity of federal law on important constitutional questions, and encouraging a higher rate of turnover on the Court that could potentially reduce the tension surrounding confirmations.