By Daniel Epps. Full Text.
Prior to his election to the Presidency, Joe Biden promised to create a bipartisan commission that would consider and evaluate reforms to the Supreme Court of the United States. Shortly after his inauguration, he did just that, announcing a thirty-six-member Commission on the Supreme Court. Made up of distinguished scholars and lawyers, the Commission was charged with drafting a report that would describe and analyze historical and current debates about reforming the Court. The eventual report seemed to make few observers happy. It reached few firm conclusions on the legality of any reform proposals and even fewer conclusions on any reform’s merits.
It was hard to imagine that any commission could deliver recommendations that would persuade political actors of both parties of the need for major reforms. But was the idea behind the Biden Commission wrong-headed? That is, is the very notion of nonpartisan Supreme Court reform mistaken? This Essay tries to answer this question. Building on my testimony before the Commission, I try to develop a plausible nonpartisan argument for reforming the Supreme Court: an argument why one could conclude that the current structure of the Court is flawed and needs to be changed, without regard to the current partisan balance of power on the Court. I briefly categorize and describe possible responses to that problem. I then discuss the Commission’s efforts—and failures—to build bipartisan support for Supreme Court reform. Finally, I use the Commission as a springboard for discussing the difficult obstacles for nonpartisan structural reform of the Court in our polarized system.