Daniel Epps, Washington University in St. Louis School of Law, and Marin K. Levy, Duke University School of Law, have posted Judicial Reform from the Inside Out, which they prepared for the Notre Dame Law Review’s Spring 2025 Federal Courts Symposium on the 100th Anniversary of the Judiciary Act of 1925 and is forthcoming in the Notre Dame Law Review:
The Judiciary Act of 1925, the subject of this Symposium, is known as “The Judges Bill” for a reason. The Justices of the Supreme Court, and Chief Justice Taft in particular, produced the Act and persuaded Congress to enact it. To modern eyes, such efforts seem indecorous; perhaps even scandalous. But in fact, Supreme Court Justices and other federal judges have been extensively involved in judicial reform throughout American history. This Essay examines participation by federal judges in judicial reform efforts—what we call judicial reform from the inside out.
We survey examples of judges participating in reform debates from across different historical eras and different levels of the federal judiciary. We then use our descriptive account as a platform for theoretical and normative analysis. We begin by drawing some general lessons from the historical narrative. We then identify the overarching costs and benefits of judicial participation in reform, as well as the many factors for which one must account in normatively assessing any one instance of inside-out judicial reform. Relying on that framework, we offer some tentative recommendations for how inside-out judicial reform can be appropriately channeled.
Studying judicial reform from the inside out can help us understand court administration, the judicial role, and the relationship between the judiciary and the political branches—as well as shedding light on the current debate over reform of the Supreme Court.
--Dan Ernst
