On April 9, 2021, President Joseph R. Biden, Jr. issued Executive Order 14023 establishing this Commission, to consist of “individuals having experience with and knowledge of the Federal judiciary and the Supreme Court of the United States.” 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.” 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.” 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,” and should be informed by “a broad spectrum of ideas.”
The Report begins by explaining the genesis of today’s Court reform debate, including by identifying developments that gave rise to President Biden’s decision to issue the April 2021 Executive Order, particularly the debates surrounding the most recent nominations. This Introduction emphasizes that the Court’s composition and jurisprudence long have been subjects of public controversy and debate in the nation’s civic life: The Court serves as a crucial guardian of the rule of law and also plays a central role in major social and political conflicts. Its decisions have profound effects on the life of the nation. Though conflict surrounding the processes by which the President nominates and the Senate confirms Justices is not new, it has become more intensely partisan in recent years.
The Introduction also articulates three common and interrelated ideas frequently invoked in reform debates and throughout the Chapters of the Report: the importance of protecting or enhancing the Court’s legitimacy; the role of judicial independence in our system of government; and the value of democracy and its relationship to the Supreme Court’s decisionmaking. These important ideas can mean different things to different people. The Introduction discusses the range of meanings ascribed to these terms, with the aim of clarifying how they are deployed in arguments for and against reform.
Law | Supreme Court of the United States
Center for Constitutional Governance
Michelle Adams, Kate Andrias, Jack Balkin, William Baude, Bob Bauer, Elise Boddie, Guy-Uriel E. Charles, Andrew M. Crespo, Walter Dellinger, Justin Driver, Richard Fallon Jr., Caroline Fredrickson, Heather Gerken, Nancy Gertner, Thomas B. Griffith, Tara L. Grove, Bert I. Huang, Sherrilyn Ifill, Olatunde C. Johnson, Michael S. Kang, Alison L. LaCroix, Margaret H. Lemos, David F. Levi, Trevor W. Morrison, Richard H. Pildes, Michael D. Ramsey, Cristina M. Rodríguez, Kermit Roosevelt, Bertrall Ross, David A. Strauss, Laurence H. Tribe, Michael Waldman, Adam White & Keith E. Whittington,
Presidential Commission on the Supreme Court of the United States Final Report,
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3779