The Supreme Court is producing a large number of unsigned decisions on its “shadow docket” – largely on partisan lines. The Roberts court has chosen to focus public hearings on cases with a clear basis in law that produce unanimous decisions, while the conservatives decide controversial cases in forums that do not require them to produce a judicial opinion.
This is frustrating to those of us that believe the court should safeguard the rights of individual citizens, rather than represent the interests of moneyed elites. However, it also provides a clear rationale for restructuring the court.
The frequency of resort to the shadow docket is evidence that the SCOTUS is overburdened. It should be divided into two nine-justice panels: one court for decisions concerned with commerce and another concerned with personal liberty. The existing slate of justices can choose their bench, and new justices elevated with an 18-year term (with the initial terms staggered according to seniority). Cases that cross over the jurisdictional boundary will be heard in a special joint session.