Sub-constitutionally repairing the United States Supreme Court

In December 2021, the Biden Commission — constituted in response to the politics and partisanship surrounding the Supreme Court — released its report analysing proposals for Supreme Court reform. The commission found most reform proposals unrealistic due to the ‘nearly impossible-to-amend American constitution’ or the proposals creating new problems. Given the rigidity of the American constitution, any realistic reform must be implemented through sub-constitutional means. In contemporary discourse, investigations into sub-constitutional reforms have been limited. In most cases, proposals for sub-constitutional reform are merely creative strategies to bypass a constitutional amendment. This only opens a pandora's box of new problems and hinders these proposals’ effective realisation. Sub-constitutional reform must be explored on its own merits in light of the legal landscape. Consequently, this article demonstrates how meaningful reforms can be achieved sub-constitutionally. Through sub-constitutional means, this article's reform proposal seeks to try and ensure that consensus candidates are nominated/appointed to the Supreme Court. This, it contends, can address many problems facing the court today. In propounding its reform proposal, this article hopes to illuminate the broader debate on the reform of apex courts and provide takeaways for jurisdictions facing predicaments similar to America.


Introduction
Today, the American Supreme Court is far more conservative than the median citizen. 1 In advancing a conservative-leaning agenda, it has not shied away from overturning long-standing precedents. 2 A significant contributor to this trend was President Trump's appointment of three justices to the Court during their presidential term.These appointments resulted in six out of the nine justices on the Court, which decides cases by a simple majority, being appointed by Republican presidents.The appointments of all three justices were controversial, contested, and dominated the media landscape.The first appointment came following the Republican Party playing 'hardball' 3 and blocking President Obama's nomination for a vacancy during the final year of their tenure.The second appointment came after an incumbent justice's strategic retirement to ensure their successor would be appointed by their preferred political party.The third appointment violated the 'very same norm' cited by the Republic Party in blocking the confirmation of President Obama's appointee.Additionally, all three appointees were accused of being highly partisan.
The contested and controversial confirmation hearings, the disproportionate appointment of highly partisan judges belonging to one side of the political aisle, and the Supreme Court's significant divergence from majoritarian values are undesirable facets for an institution charged with resolving legal disputes and checking the elected branches' democratic excesses. 4It also puts the Supreme Court's legitimacy under significant strain. 5Americans are 'increasingly perceiving' 6 the Supreme Court as 'just another political institution'. 7Recent Gallup polls from 2022 show that the approval ratings of the Supreme Court have fallen to 40%, a historic low. 8hese numbers are unprecedented for an institution that enjoyed overall approval ratings of 62% at the start of the new millennium. 9At a general level, trust in the federal judiciaryheaded by the Supreme Courthas fallen to 47%, also a record low. 10 This starkly contrasts trust levels as high as 80% in 1999-2000. 11 Low and declining approval ratings are highly problematic for an institution without the power of the purse or sword and that draws its strength from popular support. 12n the last couple of years, the politics and partisanship surrounding the Supreme Court have reached or are at least approaching its nadir.Nevertheless, this has been a mounting problem for years, with mainstream political parties and the justices themselves to blame.The Supreme Court's role in political life and its institutional design have contributed equally to this upheaval.Whilst arguably not as aggressive in its decision-making as its comparative counterparts, 13 the Supreme Court has a sizeable role in American politics. 14Supreme Court justices (and the rest of the federal judiciary) serve for life or until they voluntarily retire. 15To be appointed, they must be nominated by the president and confirmed by the majority of the Senate. 16In practice, this means that if a party can appoint a plurality of judges, it can judicially influence the political agenda for decades to follow.Because of the considerable upshot entailed in doing so, both major political parties are ready to play hardball over the Court. 17Insofar as the justices are aligned with political parties, they can also aid their preferred party by strategically retiring or postponing their retirement.
In light of the aforementioned, the Supreme Court became one of the major talking points in the 2021 presidential election. 18Some Democrats argued that if their candidate were elected, then they should expand the Court and 'pack' it with additional judges to balance the conservative majority. 19Curiously, while court reform today is a progressive agenda, until the early 2000s, conservatives were the ones pushing for it. 20For their part, Joseph Biden refused to answer whether he would expand the Court. 21Instead, upon being elected, he appointed a bipartisan committee of experts to analyse the arguments in contemporary debate for and against the Supreme Court reform. 22his bipartisan committee, colloquially known as the Biden Commission, released its report in December 2021. 23Many perceived the Commission's report to be underwhelming. 24owever, this was not entirely the Commission's fault.Most proposals in the contemporary debate on how to fix or improve the Court require a constitutional amendment, which would be virtually impossible to pass in the modern American context. 25Even otherwise, many of these proposals do not necessarily achieve the goal of their proponents.They either do not significantly improve the status quo or create new problems.
Given the rigidity of the American constitution, any realistic reform must be implemented through 'sub-constitutional' 26 means such as statutes, regulations, executive orders and administrative practices that are permitted under the existing constitutional framework.Although numerous Court reform proposals have been suggested in contemporary discourse, few attempts have been made to investigate sub-constitutional tools to reform the Supreme Court.Other than the 'nuclear option' of court-packing, which can be achieved statutorily (as the size of the Court is set by the Judiciary Act of 1869), most sub-constitutional reform proposals that the Biden Commission studied were merely creative approaches to avoid a constitutional amendment.These sub-constitutional proposals were seen as not being constitutionally permissible or, like many proposals, requiring a constitutional amendment, causing different challenges, or not being substantial upgrades.
Sub-constitutional reform must be explored on its own merits by taking into account the legal landscape.Beyond the practical pragmatics, reforming the Supreme Court using subconstitutional tools provides extra advantages over constitutional reform.It is impossible to fully foresee how tweaking the over 200-year-old institution would turn out.In contrast to a constitutional amendment, which in the US would be tantamount to an edict set in stone, subconstitutional reform allows for flexibility and permits incremental modifications as necessary.
Given the preceding context, this article outlines the broad contours of a sub-constitutional regime comprising a statute and a complimentary executive order that would try to ensure that consensus candidates are generally nominated/appointed to the Supreme Court.It will argue how this sub-constitutional regime can help alleviate many of the Supreme Court's current problems and aid in reviving public confidence in the Court.As discussed later, this subconstitutional regime is possible without resorting to highly creative interpretation of existing rules or diminishing/tweaking the powers of the Supreme Court, which frequently leads to new and more complex problems.Though carried out somewhat differently, ensuring consensus candidates are appointed was precisely the route Germanywhose apex court is now considered one of the most powerful worldwideadopted when faced with challenges of partisan appointments and deadlocks in appointments. 27n propounding its reform proposal, this article also hopes to illuminate the broader debate on the reform of apex courts reform and/or provide takeaways for jurisdictions facing predicaments similar to America.This not only extends to embracing more readily sub-constitutional tools to reform apex courts but also regarding the substance of reform proposals.In the broader comparative contextincluding common law countries such as India, Malaysia, Bangladesh, Pakistan, Israel, Canada and the United Kingdommany of the reform proposals discussed in the American context have been proposed or actually carried out (often without much success or with negative implications) 28 in response to courts exercising heightened powers and/or incumbents appointing highly partisan judges.Apex court reform in response to its heightened powers is currently the subject of ongoing nationwide protests in Israel.As of April 2023, restrictions on the jurisdictional scope of the Pakistani Supreme Court to curtail its 'judicial activism' have resulted in a standoff between the government and the Supreme Court. 29Hence, even outside America it might be worth keeping in mind that (1) certain popular reform solutions might not achieve their desired goals and (2) if 'conducive' 30 to a jurisdiction's legal and political context, adopting a mechanism that facilitates appointing specific types of candidates as judges (whatever they may be in a given context) might be worth considering to address particular types of apex court problems.
The rest of this article is structured as follows.The second section overviews some notable sub-constitutional proposals for reforming the Supreme Court and highlights their shortcomings.The third section details this article's sub-constitutional proposal for reforming the Supreme.The fourth section addresses potential criticisms of the proposal and concerns.The fifth section concludes.
Major sub-constitutional reform proposals: What they are and why are they not sufficient This section briefly overviews four major sub-constitutional reform proposals and their shortcomings. 31Before proceeding to those proposals, two clarifications should be noted.First, no mainstream non-statutory sub-constitutional reform proposal has been suggested.Hence, all the proposals discussed in this section are statutory reform proposals.Second, this section 27.In Germany, appointments are the sole prerogative of the legislature.Thus, in Germany, the various parties in the legislature adopted party quotas for nominating judges and coupled them with supermajority approval requirements.This has ensured that the court has a partisan balance and that individual judges are consensus candidates.28.See the text body accompanying footnote 56 for the outcomes of such proposals.29.Staff Report, 'SC Rules Against Implementation of Judicial Reforms Bill' (Pakistan Today, 13 April 2023) < https:// www.pakistantoday.com.pk/2023/04/13/sc-to-examine-constitutionality-of-bill-curbing-authority-of-chief-justice/> accessed 15 April 2023.30.In advocating any broader comparative lessons, it must be acknowledged that judicial reform is highly contextspecific.While certain templates might have value across systems, whether they work or not in a given jurisdiction would heavily come down to the jurisdiction's legal and political realities.31.Due to word limit constraints, this section only briefly overviews these proposals.For a more detailed critique of individual proposals, see generally PCSCOTUS (n 23).
does not deal with reform proposals that would clearly require a constitutional amendment(s).However, this serves only to completely exclude Secretary Buttigieg's proposal for fixing the partisan composition of the Supreme Court. 32With respect to other major reform proposals, arguably, they can all, 'in some form', be implemented via sub-constitutional means (even though, as will be seen in this section, the cases for their constitutionality in most cases are extremely weak).In discussing the possibilities of specific reforms, this section touches upon those reforms in general.

Term limits
Commentators across the political spectrum have opined that implementing term limits could mitigate most of the problems plaguing the Supreme Court discussed in the introduction.As McConnell argues, at a minimum, term limits could ensure that 'the political balance of the Court would reflect the opinions of the people over time as expressed in their choice of presidents and senators, rather than the happenstance of health or accident or the strategic timing of the justices'. 33Although several proposals involving implementing term limits have been advanced, the most common is the one proposed by Calabresi and Lindgren. 34Their proposal requires setting an 18-year term limit. 35Furthermore, Calabresi and Lindgren argue that the retirement of justices should be staggered so that in every term, a president gets to appoint one justice in both their first and third years. 36iven that justices are guaranteed life tenure by the constitution, implementing term limits would require an 'impossible constitutional amendment'.Some proposals, however, are based on a workaround involving a highly creative reading of the Constitution. 37Bills have been tabled to that extent in both houses of Congress. 38Under these proposals, by statute, a justice would be designated a 'senior justice' instead of being forced to retire after an 18-year term. 39Senior justices would keep their title and compensation, but they would not hear cases unless called upon in the case of recusal, impeachment or unexpected vacancy. 40Senior justices could also opt to serve on lower courts. 41hough such a solution would most likely be stretching the definition of 'life tenures' too much, nevertheless, even if constitutional and an improvement upon the status quo, this solution would not, in isolation, resolve a critical mass of the Court's current problems for the following reasons.1. Were the court to remain a nine-member body, there would always be one party whose president has appointed five justices.2. If to resolve the problem in (1) the Court's strength was increased to an even number (such as 10), this then opens up the possibility of deadlock, particularly in contested cases.Though this might be countered with the fact that globally, 42 apex courts have operated with an even number of judges without a problem.Nevertheless, if the Court became an odd-numbered body, it would still face the problems discussed below.3.There is the possibility that the presidency does not change parties over three or more terms (or a party holds the presidency in three out of five successive terms), which would result in a president from the same party having appointed at least six justices.4. The death, impeachment or voluntary retirement of a justice (if such a justice were appointed by a president not belonging to the party of the sitting president) would give a particular president the chance to disproportionately affect the composition of the Courteven if the replacement justice was appointed only for the remainder of the term of the vacant seat. 5. Eighteen years, while shortening the potential length of service, is still a substantially long period for judges to serve on the Court and impact constitutional politics. 43The global median for term lengths is only 10 years.In the absence of other changes, an 18-year term would not reduce the intense partisanship, disagreement, deadlocks, and nationwide divides that have come to be associated with confirmation hearings. 446. Court appointments could become even greater talking points in presidential elections than they already are, as presidents would be guaranteed appointments. 45This would also make justices more closely associated with political parties, which would not be conducive to improving the Court's public perception. 46

Jurisdiction stripping
As the Biden Commission asserted, there is no clear path forward on jurisdiction stripping, and most ideas concerning this approach are not fully worked out. 47However, the fundamental aspect of this proposal is to reduce or limit the Supreme Court's powers. 48Proponents of this view believe that reducing the Court's power would diminish its role in national politics.As such, this type of proposal has appeal as a simple fix to many problems.Supporters of this approach, such as Moyn, Doerfler, and Sprigman, argue that such a reform would also be more democratic as it would shift the burden of resolving disputes to the political branches. 49onsidering the 2nd-century-long practice of judicial supremacy in America, achieving the maximum extent of jurisdiction stripping would definitely require a constitutional amendmentsuch as a shift to a system of parliamentary supremacy prevalent in jurisdictions like Canada, the United Kingdom, and New Zealand. 50However, scholars like Pfander have tried to make a case that there is the 'possibility' of engaging in jurisdiction stripping statutorily.This is based on a specific reading of Article III (1) of the US Constitution that provides, 'The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish' and Article III ( 2) that provides, that other than those cases over which the Supreme Court has original jurisdiction, it shall 'have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations, as the Congress shall make'.Per Pfander's proposal, Congress could, by statute, vest the authority over certain matters to other lower federal courts (such as the federal circuit courts), leaving the Supreme Court with only the capacity to correct clear lower court errors. 51f the aforementioned innovative proposal were applied to a narrow set of contentious political disputes, such as religious or electoral disputes, it would barely resolve the Court's disproportionate impact on national politics.This is because even if the Supreme Court's jurisdiction were removed from certain disputes, it could still arguably find alternative means to comment on those issues, given how intertwined legal issues are.Eliminating this would almost be a legislative impossibility.More importantly, the benefit in terms of legitimacy would probably not be too great, given that the range of cases that can irk the public (or at least a substantial section of the public) is far too broad to be statutorily removed.
Alternatively, the Court's jurisdiction could be stripped from all over which it lacks original jurisdiction.However, this approach would diminish the capacity of the Court to ensure uniformity in constitutional outcomes across lower federal courts. 52This could result in a federal statute being held constitutional by one circuit court and unconstitutional by another, with no apex court to resolve the circuit split. 53Scholars like Delaney have highlighted how resolving such dissension among the lower courts is one of the core purposes of the modern Court. 54Precisely for this reason, even the Biden Commission opined that such a reform proposal would be untenable. 55dditionally, given the judicial architecture in place, the Supreme Court itself would undoubtedly chafe at reducing its power and hold any potential jurisdiction-stripping proposal 49.Ibid unconstitutional.Precedent exists both in America and in countries such as Malaysia, India, Bangladesh, and Pakistan for courts not rolling over when facing curtailment of jurisdiction. 56

Supermajority voting requirement
Per legal tradition, the Supreme Court invalidates laws by a simple majority.However, scholars such as McGinnis, Rappaport, and Shugerman contend that changing to a supermajority voting requirement would make it more difficult for the Court to invalidate laws. 57This would ultimately serve goals similar to those advanced by jurisdiction stripping.Proponents believe this reform is possible via statute, considering that the Constitution does not explicitly mandate the Court to decide cases by simple majority.Whether this proposal could be passed statutorily would ultimately come down to whether the Supreme Court would deem it a violation of the separation of powers 58a highly probable outcome if comparative evidence is anything to go by. 59owever, additional concerns potentially render this proposal potentially untenable.First, there is no certainty that supermajority voting would work as intended.The Court's majority could avoid the supermajority requirement by narrowly interpreting laws rather than finding them unconstitutional.In countries such as Japan that have a supermajority voting requirementeven when exercised in the backdrop of a highly deferential judicial tradition, which is certainly not the case in Americamajorities on the courts are able to wield influence under the guise of statutory interpretation. 60et us assume the aforesaid is not the case and that supermajority voting requirements work as intended.In that alternative, political parties might be even more incentivised to play hardball to ensure they have seated six judges on the bench.On the other hand, when a side does not have a supermajority on the court, while the Court may find it hard to invalidate extremely contentious laws or limit their application, its regular operation could be impacted.As with the aforementioned proposal of jurisdiction stripping, the Court would find it harder to resolve circuit court splits.Perhaps the most significant impact would be on issues relating to federalism, as it would become harder for the Supreme Court to prevent the federal government from encroaching on states' rights. 61Conversely, it would also make it tougher for the court to supervise states' violations of federal law. 62cholars have contended that empowered courts are essential for the successful operation of federalism. 63The only way disempowering proposals like supermajority voting rules or jurisdiction stripping could work would be by overhauling the federal structure, which would require several constitutional amendments. 64he biggest concern regarding these disempowering solutions, like supermajority voting requirements or jurisdiction stripping, is the assumption that an empowered Supreme Court is intrinsically undesirable; opponents argue that disempowering proposals undermine the judicial capacity to protect rights. 65Although the likes of Waldron have reasoned that the elected branches can protect rights better than courts, others like Fallon oppose that view. 66Without taking a stance on which side is correct, we would simply be shooting arrows in the dark without substantial empirical evidence in the affirmative. 67

Deciding cases by panel
This approach comes in two alternatives.The first is to have justices sit on smaller randomly assigned panels to hear cases (with panels either based on subject matter or simply being randomly assigned), 68 and the second is to structure the Supreme Court as a rotating set of nine (or more) justices drawn from among a larger set of lower federal circuit and district court judges.Depending on the proposal, the composition of the Supreme Court could change from as often as every 2 weeks to as long as every year. 69Under either version of this proposal, the Court could sit en banc (all justices together) to review the panels' decisions as needed.The idea here is to ensure that there is no fixed partisan leaning within the Supreme Court and that the Supreme Court cannot be used strategically in a given time and space to push political agendas.
The biggest impediment to either of these suggestions is Article III(1) of the Constitution, which provides that apex judicial power be vested in 'one supreme court'.Although variant (2) might be in tension with this clause, it is not certain whether variant (1) violates this clause, especially if the Court was given some opportunity to sit en banc to review decisions of smaller panels.While there is no definitive constitutional ruling on (2), it must be stated that in the 1920s, Chief Justice Taft, in testimony before Congress, insisted that Congress could not adopt such a proposal on its own. 70Nonetheless, statutorily created rotating panels (of either variety) were solutions that the Biden Commission refused to completely rule out as unconstitutional due to the lack of clear evidence. 71or argument's sake, let us assume that there is a possibility of such a solution being enacted statutorily.Solution (1), primarily pushed by the likes of Epps and Sitaram, may result in an inconsistent Supreme Court. 72This is not a theoretical concern but one frequently seen in jurisdictions like India with high caseloads and where apex courts sit on small panels. 73Moreover, as the Biden Commission has opined, it might also undermine the 'collegiality and familiarity' that enables the justices to manage contentious cases, including resolving hard cases through compromise. 74A lack of consistency in the Court's personnel could compromise its ability to provide guidance to lower courts and state courts due to accelerated doctrinal change. 75ost importantly, it could heighten the stakes of the confirmation process for lower federal court judges in the same manner it has for Supreme Court justices. 76olution (2) can provide for at least some improvement in the Court.However, it would still likely fail to resolve all of the issues of the Court.Nomination processes might still be as contentious as presently, and depending on the randomly assigned panels, decisions could remain hyperpartisan.Even were that avoided when the Court would sit en banc to review cases of panels, all the current problems of the Supreme Court would emerge again.This is particularly relevant as it is almost certain that most high-stakes decisions would come down to en banc hearings.

Ensuring consensus candidates are appointed to the supreme court
The previous section briefly outlined how the proposed core sub-constitutional reform proposals might not achieve the goal their proponents seek to achieve.Moreover, it is unlikely that most of these proposals would be constitutionally permitted.The reality of the legal landscape in the United States is that the almost unamendable Constitution and decades of legal practice place significant limits on potential reform proposals.Nevertheless, there is some leeway for meaningful reform.In turn, this section discusses how sub-constitutionally reforming the Supreme Court in a consequential way is possible.
The crux of this section's proposal is to ensure that nominations/appointments to the Supreme Court are consensus candidates that are acceptable across the political spectrumeven if begrudgingly.While this section and the article aim more broadly to address the Supreme Court, its suggested proposal could be applied to reform the entire federal judiciary, which also suffers from similar predicaments.However, to manage the scope of this article, the analysis in the remainder of this article is limited to only the Supreme Court.
The starting point for this proposal is the statutory creation of an Office of Federal Judicial Appointments (OFJA) within the Department of Justice (DOJ), an administrative agency.Federal agency creation, abolition and reorganisation must be approved by Congress (though the president can initiate it) by a duly passed legislation. 77This authority and obligation come from the Necessary and Proper Clause of the US Constitution that accords Congress the power to enact laws to assist the president in carrying out their constitutional duties. 78n the proposal of a current or future president (or at least with their consent) 79 and using its powers under this clause, Congress can pass a statute to create the OFJA within the DOJ.Creating this office within the DOJ benefits from an existing setup that already plays a role (albeit minor) in the judicial appointment process.For example, via its Office of Legal Policy, the DOJ has been aiding the White House with detailed vetting and background checks of judicial nominees.
The OFJA's purpose would be to aid the president in nominating Supreme Court justices.This department would be headed by an assistant attorney general (AAG) nominated by the president and confirmed by the Senateas is a practice for many similar offices.The AAG would be in charge of the day-to-day operations of the OFJA, which would operate in accordance with directives issued by the president.In addition to organisational subdepartments that the president might deem necessary (whatever they may be), the OFJA would have a ninemember multi-partisan subdepartment called the Judicial Appointment Committee (JAC), with the AAG serving as the chairperson and setting its agenda.The remaining eight members of the JAC would be appointed by the president without Senate consent and serve at their pleasure. 80This committee would be independently responsible for providing a recommendary ranked list of nominees to the president for vacancies on the Supreme Court.As discussed later, presidents could specify the number of candidates they wish to see on the recommendary ranked list and commit to appointing judges from the said list.
The Appropriations Clause provides that Congress decides how to spend the federal government's revenue. 81It also provides some degree of flexibility to Congress to place limits on executive agencies and offices. 82Under this clause, the organic act of the OFJA would appropriate funding for this department for its operation.Nonetheless, Congress's appropriation of funds to the OFJA would be contingent on the following conditions: 1.The total composition of the JAC is fixed at nine members, including the AAG. 2. The leader of every party represented in the Senate must give consent to appoint a specific number of JAC members in accordance with the formula laid down herein.3.For every 12.5% of seats a party holds in the Senate, the respective party's leader will have the right to give consent to one member of the JAC.For the purpose of this clause and related clauses below, independents will be counted in the parties with which they are caucused.4. If, despite the formula provided for in (3), one or more seats in the JAC are left empty, to fill the remaining seat(s), consent has to be given from the leader of the party (or parties) whose share of uncounted seats is closest to 12.5%.5. If, based on (4), there is a tie between two or more parties and there are not sufficient seats on the JAC for the leaders of such parties to give consent to, the president ought to receive consent from the leader of the party who has consented to the least number of seats on the JAC. 6. If, based on (5), there is still not a clear party leader to give consent for a seat on the JAC, the president has the discretion to resolve such an issue in the manner they deem fit.7. If, during a presidential term, the Senate composition changes, the president needs to ensure that the requirements of ( 3)-( 6) are met.8. Every ranked list prepared by the JAC (with as many candidates as the president might mandate on the list) must be voted upon by at least six members of the JAC.
While contentious, 83 partisan balance requirements (PBRs) on appropriation are a frequent norm in the United States with respect to multi-member committees/agencies.More than half of multi-member committees/agencies in the United States are subject to PBRs of various kinds. 84The most prominent agencies where such PBRs are seen are the Federal Election Commission (FEC), the Federal Trade Commission (FTC) and the Securities and Exchange Commission (SEC).These commissions' organic acts mandate that more than half of commissioners should not be from the same political party.The OFJA organic act provides for PBRs differently than the FEC, FTC and SEC.This is because the latter commission's organic acts provide significant leeway to presidents to appoint ideologically sympathetic members of opposite parties.If this happens, it could negatively impact the effectiveness of the reform proposal.Though the OFJA organic act imposes slightly more stringent constraints on the president's ability to appoint executive branch appointees than is the norm, considering the recommendary nature of the list provided by the JAC and the fact that this proposal does not tweak the Court's own powers, the possibility that a federal 82.See Myers v United States [1926]  court would have major quibbles with the OFJA's PBRs is lowered. 85As independent regulatory agencies, the FEC, FTC and SEC have significantly more powers than the JAC.Were the JAC to have more expansive powers, such as its list binding on the president, there is a high possibility that the OFJA organic act would violate Morrison v. Olson, 86 which held that there is an infringement of the separation of powers if a law increases the power of the legislature at the expense of the executive.
Since the power to nominate judges constitutionally lies with the president, the OFJA's organic legislation cannot bind presidents to specific nominees.Any law that would purport to do so would probably be unconstitutional as it would likely run afoul of Morrison v. Olson.Thus, the JAC's list can only be a recommendary list.Nevertheless, current and future presidents can self-commit to appointing judges from the said list.
Comparative evidence does indicate that it is not only possible but also common for nonbinding norms to be adhered to when there is a mutual interest in doing so.In Western European jurisdictions like Portugal, Spain, Germany and Belgium, informal norms for nominations to apex courts have developed into concrete, constructive norms over time.In these countries, to prevent partisan appointments and deadlocks, the major political parties in the system have agreed to informal party quotas regarding which political party should nominate a judge every time there is a vacancy.Political parties adhere to these informal agreements because they have a mutual interest in upholding them to prevent partisan or non-functional courts.Even across American borders in Canada, there is a long-standing norm for political parties not to nominate extremely partisan judges to its Supreme Courta court described by Albert as the most powerful court in the world, given its role in the Canadian political system. 87This is precisely done to prevent an American-like situation.It might be contended that, unlike most of these comparative examples, America has a severe partisanship problem.Nevertheless, despite the partisanship problem, there is potentially a strong mutual interest for American political parties and their affiliated presidents to implement and adhere to this article's proposal.As to what this mutual interest is, the next section explains it in detail.
Returning to self-commitment by presidents.Here, a simple verbal commitment by presidents that they would appoint judges nominated by the JAC would also suffice, assuming the legislation was detailed enough to facilitate the OFJA's working.However, it is a better approach for the constituting act of the OFJA to be complementedand provide significant room to be complementedby an executive order to secure greater buy-in from the executive branch.It would even allow the president to shape judicial appointments to a larger degree and enable the reform proposal to stay true to the idea of 'judges being appointed by the president 85.This does not mean that the statute is immune to any objections by federal courts.If someone has standing to challenge this statute (which is not a surety given the strict standing requirements in America), a federal court may mandate some changes in the statute.For example, it could require all members of the JAC to be confirmed by the Senate.However, as long as the changes it hypothetically mandates do not entirely eliminate the partisan balance of the JAC, the JAC can potentially fulfil its intended purpose.This could be the case if the President was not to require explicit consent from party leaders and was to consult with the party leaders simply.This could also be the case if the courts mandated that PBRs can only be used by specifying the partisan balance of the commission the way the FEC, FTC and SEC's organic statutes do, though in these cases, there is likelihood that the proposal's efficacy is reduced.86.[1988]  with the advice and consent of the Senate'.Thus, via executive order, the president could address things such as the following: • Number of names to be featured on the list by JAC • Frequency with which they would like the JAC to provide lists.For example, if they wanted lists prepared before a vacancy arose • Commitment to appointing members from the list provided by the JAC at first instance or alternatively opening up the possibility of multiple lists if the president was not satisfied with the original list • Requirements or characteristics such as race, gender, sexual orientation and regional affiliations that they would like to see in potential names on the list • Contours of the day-to-day operations of the OFJA • Subdepartments within the OFJA, such as a research branch • Terms of service for members of the JAC • Manner and form in which the JAC should convey the lists of candidates This is just an illustrative list of issues the president could address by executive order.An executive order could cover several other matters.Moreover, new presidents could issue their own orders to guide the operation of the OFJA and its subdepartmentsunless they choose to adhere to the one passed by their predecessor.However, presidents should be encouraged to issue their own executive orders regarding the operation of the OFJA.This would allow the president to shape judicial appointments, even if in a highly restricted manner when compared to the status quo.
If implemented, this section's proposal could ensure that nominations to the Supreme Court are, to a degree, consensus candidates because of the multi-partisan composition of the JAC and the voting requirement to approve candidates.In the American context, a list of consensus candidates by the JAC would ideally consist of legal and political moderates arranged by what its members (based on the president's input) perceive as most suitable for the vacancy. 88Though agreeing upon consensus candidates might be an arduous task, it is certainly not an impossible one.As long as appropriately qualified nominations are put forward, nominations recommended by the JAC are likely to be acceptable (even if hesitantly) or not harshly opposed to a broad range of political actors. 89.In making this claim, in no way do I imply that the JAC would recommend individuals with a value-neutral and non-biased outlook to judicial decision-making.Judicial decision-making is a complex phenomenon influenced by several legal and non-legal considerations.Under this proposal, electoral success would still provide an advantage but not result in judicial appointments being a zero-sum game.Given that in recent years Senate seats have been split relatively evenly, the proposed scheme would ensure that, in most instances, at no time would a party have more than five members on the JAC.If they did, it would reflect significant electoral victories.Thus, a fine line between representativeness and effectiveness is drawn.The formula for allocating members to the JAC would even provide flexibility in case a new party were to emerge in the future.Though the president can decide how many names they wish to see on a list, mandating a ranked list would also reduce the possibility of members within the committee horse-trading for their preferred candidates or settling on party quotas.
If consensus judgeswho would most likely, in the American context, be legal and political moderateswere appointed to the Supreme Court, it would decrease the probability and frequency of outright partisan decision-making.This would indirectly fulfil some of the intended purposes of the reform proposals discussed in the previous section.Majorities in the Senate might also be less likely to stall confirmation hearings, and judges might be less likely to retire strategically.Judicial appointments might also become less significant talking points in presidential elections.The stakes of confirmation hearings and contested confirmations could also be reduced.All these factors could aid, to some extent, in the court regaining confidence in the eyes of the public. 90efore moving on to the next section, which tackles potential criticism and concerns regarding this proposal, there are two clarifications on why this section took the said design route as opposed to other potential routes that can achieve similar goalsparticularly sub-constitutional routes that might not even require a statute and can be carried out by an even more modest way.
First, a case could be made that the benefits of this proposal could be achieved were the executive branch to constitute a committee similar to the JAC and commit to appointing judges put forward by such a committee. 91However, in this case, there would be two obstacles: first, without congressional approval, the executive branch would be limited in terms of how expansive and professional the committee could be and the salaries it could pay its membersespecially if this proposal were to apply to the entire federal judiciary.Second, in the absence of a legislative partnership and multi-partisan approval, the success of a completely executive-driven proposal would be uncertain, as future presidents would have lesser obligations to commit to such appointments.The latter would even be the shortcoming with a hypothetical proposal where presidents commit to appointing legal and political moderate judges instead of the partisan judges they are nominating.Furthermore, with such a proposal, considering multi-partisan would be lacking, opposition party Senators have no incentives to approve candidates nominated by the president (even if they are legal and political moderates).This is precisely why the Republican Party blocked President Obama's nomination of the ostensibly moderate Merrick Garland.
Second, a case could be made to revive the filibuster to achieve the goals of this proposal. 92Though this would significantly improve the status quo, without an across-the-board reform of 90.For a list of factors that could impact the Supreme Court's legitimacy, see also footnotes 4, 7 and 12.Moreover, the effects discussed in this paragraph are precisely the types of outcomes that Gibson and Nelson (n 7), 614-15, argue are integral to the legitimacy of the Supreme Court as it reduces its perception as just another political institution.91.Something similar has been done in the past for appointment to lower federal courts.See text body accompanying footnotes 105-107.92.In the US context, the filibuster is used to attempt to delay or block a vote on laws/resolutions/confirmations.Before laws/resolutions/confirmations are put to a vote, three-fifths of the Senate must vote to end the debate.The filibuster, thus, was used as a mechanism by opposition parties to prevent certain laws/resolutions/confirmations from being put to a vote.
the manner of judicial appointments, it would be unlikely that all the benefits of this proposal could be achieved.This is because presidents have no reason to per se nominate consensus candidatesthey did not do so when the filibuster rule was in place for judicial nominations.At best, they might stop nominating hyperpartisan judges to ensure that their nominees are approved by the swing state and/or centrist senators.These nominations would not necessarily be acceptable to actors across the political spectrum.More significantly, reviving the filibuster would involve merely a simple procedural rule change in the Senate.The costs of undoing this reform would be considerably lower than a broader regime proposal that results in major alterations to the status quo.This is precisely why the Democrats easily ended the filibuster for lower federal court nominations, and the Republicans did so for Supreme Court nominations. 93dressing criticisms and concerns The proposal described in the previous section is not immune to criticisms and concerns.This section addresses five obvious objections that might arise.First, why would a political party and/or president whose preferred majority is present on the Court agree to this proposal, especially when nuclear options such as 'court-packing' have gained political traction? 94Under the current climate, if the Supreme Court continues pushing issues from past political disagreements, it will not be long before a political party seriously considers court-packing. 95Chilton and their co-authors contend that once a party packs the Court, this will result in a tit-for-tat game that, all things being equal, might go on for approximately a hundred years. 96Additionally, scholars across the political spectrum argue that such a tit-for-tat game would reduce the Supreme Court's ability to serve as a check on the elected branches. 97It could even have ramifications for the Supreme Court's legitimacy. 98s Braver argues, a tit-for-tat game of Court-packing's distinct danger is that it will lead to a downward packing spiral, ballooning the Court's size so large that its legitimacy pops. 99hus, some reform is essential. 100 parties perceive it as benefiting their interests.Nonetheless, if a party is faced with a choice between playing a tit-for-tat game of court-packing, potentially resulting in a non-workable Court, and having a Court that protects their interests equally, it is likely to choose the latter.
When it comes to this article's suggested proposal, If implemented today, this proposal would allow the Republican party to retain its majority on the court for at least 13 more years if we assume that both Justices Thomas and Alito are able to serve on the court till the age of 85 (the average age of recent retirees).Hence, under this proposal, the Republican Party could even hedge against a future scenario where the Democratic Party obtains a majority on the Court.The same will be the case if such a reform proposal is implemented in a future where the Democratic Party has a majority on the court.Thus, despite the partisanship problem in America, it is in the parties' mutual interests to agree upon this article's suggested proposal and its usage.As to why a president would consent to reduce their existing say and consent to such a proposal, in the US, the president currently belongs to one of the two major parties and generally acts according to their overall policy positions.Consequently, as long as the broader political parties see an interest in this proposal and are on board, a president would most likely be on board.
Second, relatedly, it might be argued that this article's suggested proposal relies heavily on bipartisan consent and mutual tolerance by political parties and presidentsboth seriously lacking in the current heavily polarised American system.Akin to how the Republican party stonewalled a 'moderate' nominee of President Obama, if, in the future, either party and their affiliated presidents decide to play hardball, this proposal will fail.This concern gains even more relevance given the recommendary nature of the JAC's lists and the discretion of presidents to choose a nomination from a said list.This is undoubtedly true, and it can be argued that this system does hang by a thread.
However, to start with, it is questionable whether there is any solution that does not hang by a thread.For example, in the case of staggered term limits, there is no guarantee that a party in the majority in the Senate would not stall the appointment of justices by a rival party's president.Scholars and judges alike have already raised this possibility. 101Even a more watertight reform proposal implemented through a constitutional amendmentwhich itself would require far more than bipartisan support and mutual tolerancehas the potential to be abused by those who want to abuse it.The current wave of subversion of democracy globally through legal means has shown that even the best-designed systems provide no guarantee of self-enforcement if those in power are ready to abandon the rules. 102Likewise, proposals such as jurisdiction stripping, supermajority voting requirements, and deciding by smaller panels all require a degree of restraint on the part of judges, and this presents its own problems and unlikelihood.Perhaps we should not let the perfect be the enemy of the good and accept some risks not only with this article's proposal but any other similar proposal.
In the case of this article's suggested proposal, an initial cross-party agreement to implement this article's proposal is undoubtedly needed.Nevertheless, this agreement and abiding by it are not contingent on eliminating the partisanship problem in America.As stated in the previous point, it is based on a mutual interest in not engaging in a century-long tit-for-tat game over control of the court.The necessity of the initial agreement and its sustained future usage is grounded in the fact that bipartisanship and mutual tolerance do not exist in the current American political system.Were the parties and their affiliated presidents not to agree to a solution such as the one proposed in this article, issues surrounding the Supreme Court would potentially deteriorate for both of them equally.
Third, critics might fear that this article's proposal depends too much on political parties.They might prefer to have the nomination list prepared by a committee with a plurality of members being independents and/or not aligned with political parties. 103Such non-partisan committees exist in some American states for state judiciary appointments. 104Non-partisan committees are also used for Supreme Court appointments in advanced common law countries like the United Kingdom and Ireland.Such a suggestion, however, has several problems.First, it requires politicians to considerably give up their say in judicial appointments.An example from American politics shows this is unlikely: President Carter, during their presidency, in an act of self-discipline, instituted independent technocratic commissions for appointments to federal circuit courts. 105He had committed to agree to the nominations put forward by such commissions. 106In the US, there is a long-standing tradition wherein either of the two state senators can block a federal judicial nominee at the district level by raising an objection via a 'blue slip' given to the chair of the Senate Judiciary Committee. 107Carter could not convince senators to give up their say in federal appointments at the district level. 108The same recalcitrance to change might likely be seen if a proposal for a less political system was implementedespecially considering the stakes are far higher with the Supreme Court than for district courts.
Furthermore, as noble as such a suggestion would seem, it comes at an uncertain price.In lower state courts where such independent committees handle appointments, the stakes are lesser; hence, non-political appointments raise fewer problems.Likewise, apex courts in the UK and Ireland arguably do not occupy the same exalted place in their political system as the American Supreme Court.A powerful court with a marginal connection with the elected branches can see issues manifest differently.For example, in India, where judicial appointments have been completely removed from politicsat least formally, judges have been routinely criticised for their hyperelite and tone-deaf decision-making. 109dditionally, nominations through non-partisan means do not necessarily guarantee the neutrality or independence of judges. 110Although party politics may influence judges less, they still might get captured by other interested parties, such as lawyer associations or any other body/ interest group that starts exercising a significant say in such appointments. 111Even evidence from lower court appointments in America carried out via non-partisan committees demonstrates this facet. 112Furthermore, the separation between judges and elected officials being further decreased could impact the court's political legitimacy, 113 in which case there could be a higher likelihood of the elected branches refusing to enforce the decisions of such a court.
A fourth concern is that almost all consensus judges appointed via this proposal would be legal and political moderates, given the composition of the JAC and the two-thirds voting requirement.Depending on how one sees the Court's role, this could be a boon or a bane.At least two of the four major reform proposalsjurisdiction stripping and supermajority voting requirementsaimed at moderating the effect of the court.Similarly, proposals for constitutional reform, such as Secretary Buttigieg's proposal, also serve comparable aims.Thus, this article's proposal is certainly not proposing anything radical relative to other proposals; it is in line with mainstream ideas.Indeed, it might be possible that the resulting Supreme Court composed of legal and political moderates would be unwilling to perform the expansive roles that comparative scholars think are required of apex courts. 114Nevertheless, in the American system, a degree of reticence on the part of courts might be a virtueand an expansive role unacceptable. 115In the US, the 'countermajoritarian difficulty' is quite prominent both on the left and the right. 116Few stakeholders would be accepting of the Supreme Court playing expansive roles in a manner similar to its counterparts in global south countries like South Africa, India, and Colombia.Though the Supreme Court exercises far more restraint than many activist apex courts worldwide, it is still repeatedly accused of judicial activism. 117Despite exercising comparative restraint, the Supreme Court's significant say in national politics is one of the main reasons we have reached the point of having discussions like the one in this article.Thus, this article's proposal might result in a Supreme Court reluctant to undertake expansive roles.Nevertheless, unlike proposals like supermajority voting or jurisdiction stripping, this article's proposal does not reduce the Court's powers, thus leaving it with the needed ammunition to use when necessaryor, at a bare minimum, to provide finality to issues.
Lastly, building on a facet mentioned in the first criticism/concern, one might object that the proposal results in extremely slow reform.If the oldest judges on the court retire in line with the last few retirements, it would be at least 10-15 years before any shift in the Court's composition is seen, and it might be over three decades before the entire composition of the Supreme Court is acceptable across the political spectrum.I concede this to be true.Nevertheless, apart from court-packing, any sub-constitutional reform proposal (or even constitutional reform proposal) that does not impact the decision-making process of the Supreme Court would face this problem.Even the proposal for staggered term limits would require a similar transition period before the proposal realised its full scope of benefits.Additionally, in the case of the transition period with respect to staggered term limits, until all judges with 18-year term limits are appointed (in roughly 2050), the Supreme Court would have a composition varying between 9 and 12. 118 The current composition of the Supreme Court is tilted towards one end of the political spectrum (and might always be as long as it has nine judges), a reality that must be countenanced.
Those who support this article's proposal might contend that it could be accompanied by an expansion of the size of the Supreme Court by three or four judges (chosen in the same manner as recommended in the proposal).This would ensure that even upon implementation of this proposal, no party would have its appointed judges comprising the majority.Such a proposal is not one I am opposed to at all in principle.In the comparative context, apex courts operate with more than nine members with a reasonable degree of success.However, I am mildly hesitant to endorse simultaneous expansion because it would likely decrease the probability that the party and president, with their preferred majority on the Supreme Court, would agree to this article's proposal.They might like their odds that the opposition party will not pack the courtleaving this issue for resolution on another day.It would also set a bad precedent for the future in cases where parties and presidents are unhappy with the side the Court is leaning towards in practice.Nonetheless, considering the size of the bench is set by statute, if the party with their preferred majority on the Supreme Court is open (or advocates) to simultaneous court expansion, there are few convincing reasons not to go ahead with it.

Conclusion
Not only in America but also elsewhere, many reform proposals to address the problems of apex courts fail because they are often too ambitious or unrealistic.Scholars and commentators frequently focus on large-picture ideas.Even when promising, these ideas face considerable obstacles from hard-to-amend constitutions, a more ubiquitous reality than many would hope.As this article demonstrates, this might require attention to be directed towards sub-constitutional solutionsexploring these options on their own merits and in light of a jurisdiction's legal landscape.More importantly, when it comes to reform proposals (constitutional or sub-constitutional), the emphasis of proposals is frequently on the powers, capabilities, and operation of the courts.Concerning these, we often deal with many unknowns.Such solutions might not necessarily change the status quo or, worse, result in potential negative implications.Courts are also not the biggest fans of being told by the elected branches how to operate and often retaliate, creating undesirable intra-branch conflicts.Instead, if suitable in a specific legal and political context, tailoring the appointment process to facilitate the selection of a particular type of judge(s)whatever they may be in a given contextcan be a more effective way to reform courts.
Consequently, concerning the American context, this article advanced a sub-constitutional reform proposal comprising a statute and a complimentary executive order that would try to ensure that consensus candidates are generally nominated/appointed to the Supreme Court.
22. See Executive Order 14023 on the Establishment of the Presidential Commission on the Supreme Court of the <https://news.bloomberglaw.com/us-law-week/the-biden-scotus-commission-ends-up-disappointing-everyone>accessed 15 April 2023.25.See PCSCOTUS (n 23),18.26.In this article, I use sub-constitutional to refer to non-amendment tools such as statutes, regulations, executive orders, and administrative practices that are permitted under the existing constitutional framework.
See e.g. Lee Epstein and Jack Knight, The Choices Justices Make (CQ Press, 1998); Harold Spaeth and Jeffrey Segal, The Supreme Court and the Attitudinal Model Revisited (Cambridge University Press, 2002).My claim is that individuals featured in the JAC's list of potential nominees would likely tend to be less partisan and activist than those appointed to the Supreme Court in the past few decades.89.Qualifications and Ideological distance are key factors that impact Senate votes on Supreme Court nominations.See Spaeth and Segal (n 88), 178-222.Under the proposed regime, given that any qualified potential nominee would likely be a legal and political moderate, they would have a lesser ideological distance from many (if not all) senatorsespecially compared to today's partisan nominees.As a result, senators across the board would be less likely to oppose potential nominations put forward by the JAC, irrespective of the president's party affiliation.This facet and the broader political parties' incentives to uphold this article's proposal, as described in Section 4, would potentially result in many (if not all) JAC nominees getting confirmed by the Senate.For how political parties' larger priorities impact individual senators votes on Supreme Court nominees, see Scott Basinger and Maxwell Mak, 'Forecasting the Senate vote on the Supreme Court vacancy' (2016) 3(3) Research and Politics 1, 1-8.
However, a reform proposal will only succeed if the existing 93.Bumm (n 17).94.See Kermit Roosevelt III, 'I Spent 7 Months Studying Supreme Court Reform.We Need to Pack the Court' (Time, 10 December 2021) <https://time.com/6127193/supreme-court-reform-expansion/>accessed 15 April 2023.95.A court expansion bill is currently already tabled in each house of Congress.See Judiciary Act of 2021, House of Representatives Bill No 2584, 117th Congress (2021-2022) and Judiciary Act of 2021, Senate Bill No 1141, 117th Congress (2021-2022).96.See Adam Chilton and others, 'The Endgame of Court-Packing' (SSRN, Work In Progress) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3835502> accessed 15 April 2023.97.See e.g.Feldman (n 65), 8; McConnell, (n 33) 1; PCSCOTUS, Written Testimony of Vicki Jackson (White House, 2021) 20-21 <https://www.whitehouse.gov/wp-content/uploads/2021/07/Jackson-Testimony.pdf>accessed 15 April 2023.98.See generally ibid.It is widely believed that a tit-for-tat game of court packing done in a partisan way will have ramifications for the Court's legitimacy.However, it must be acknowledged that some studies claim that the actual impact (in isolation) might not be as substantially significant as believed.See Stephen Feldman, 'Court-Packing Time?Supreme Court Legitimacy and Positivity Theory', (2020) 68 Buffalo Law Review 1519.Nonetheless, this article's proposal acceptance is independent of the legitimacy question and rests more on the costs political parties would incur in engaging in a long-standing game of court packing.99.Joshua Braver, 'Court-Packing: An American Tradition?' (2020) 61(8) Boston College Law Review 2747, 2750-51.100.Though perhaps the Supreme Court would self-moderate and concede enough to both parties to prevent significant reform.For why this is undesirable, see Section 5.