Sub-constitutionally repairing the United States Supreme Court

Abstract

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.