Introduction: The Genesis of the Reform Debate and the Commission’s Mission
On April 9, 2021, President Joseph R. Biden, Jr. issued an executive order establishing this Commission. The Order charged the Commission with producing a Report for the President that addresses three sets of questions. First, the Report should include “[a]n account of the contemporary commentary and debate about the role and operation of the Supreme Court in our constitutional system and about the functioning of the constitutional process by which the President nominates and, by and with the advice and consent of the Senate, appoints Justices to the Supreme Court.”[1] Second, the Report should consider the “historical background of other periods in the Nation’s history when the Supreme Court’s role and the nominations and advice-and-consent process were subject to critical assessment and prompted proposals for reform.”[2] Third, the Report should provide an analysis of the principal arguments for and against particular proposals to reform the Supreme Court, “including an appraisal of [their] merits and legality.”[3]
This Commission is the most recent of various committees and commissions established over the last fifty years to explore judicial reform. These have addressed a wide range of issues, such as caseload management and capacity, judicial disciplinary codes and administration, and the organization of the lower federal courts. Consistent with this history, President Biden’s Order charged this Commission to enlist experts, as well as the public, to “ensure that its work is informed by a broad spectrum of ideas” on the question of Supreme Court reform.[4]
In October of 2020, then-presidential candidate Biden stated his intention, if elected, to create a bipartisan Commission to examine Supreme Court reform. In response to a question about whether he supported proposals to expand the number of Justices on the Court, Biden responded that “it’s not about court packing” and observed that constitutional scholars have debated a range of Court reform proposals.[5]
The President’s comments and the Commission’s subsequent creation underscore that the nation has been engaged for some time in an intense and ongoing debate about the Court’s composition, the direction of its jurisprudence, and whether one political party or the other has breached norms that guide the process of confirming new Justices. Political actors, lawmakers,
