Unburdened by what has been, President Joe Biden used the time freed up from having to campaign to unveil his Supreme Court “reform.” This proposal comes in three parts: (1) term limits, (2) a new ethics code, and (3) reversing the end-of-term ruling that grants presidents immunity from criminal prosecution for official acts. At a time when public confidence in the high court has dropped a bit, the outgoing president figures he can make this plan part of his legacy, as well as help his anointed successor, Vice President Kamala Harris, beat former President Donald Trump in November.
It’s not a terrible political calculation, although the decrease in public confidence in the court is almost entirely a result of a steep decline among Democrats. The court’s overall job approval is still higher than all other governmental institutions save the military and police — and much higher than that of the media whence so much criticism originates. Indeed, so much of the “debate” over the Supreme Court is disingenuous, driven by people who don’t like its conservative shift and so (1) wring their hands and cry crocodile tears about the court’s “legitimacy” before (2) calling for “reforms” to “restore” that legitimacy by hobbling the court. Online, this is known as “concern trolling.”
Republicans have generally been the ones to use judicial nominations and Supreme Court politics to their electoral benefit, most notably with swing voters in key states in 2016 who sent Trump to the White House, but Democrats think this year will be different. They should be careful because anything that hints at “court-packing,” or changing judicial structure for ideological reasons, will likely foment a backlash of the same sort that hurt Biden’s hero Franklin D. Roosevelt.
After significant churn in the court’s personnel in the decade leading up to Roosevelt’s election in 1932, the new president was stymied by the “Nine Old Men” who kept rejecting his New Deal ambitions. Frustrated at not being able to get any new blood onto the court in his first term, the landslide-reelected Roosevelt sent to Congress on Feb. 5, 1937, a plan for a massive “reorganization” of the judiciary that would allow the president to appoint an additional federal judge for each one who didn’t retire within six months after turning 70.
This plan met heavy bipartisan opposition from Congress — it didn’t get a vote despite Democratic supermajorities — plus public opposition by the justices and Roosevelt’s own vice president. It led to huge losses for the Democrats in the 1938 election, with Republicans gaining 81 seats in the House and eight in the Senate.
Biden’s term limits idea appears less brazen on the surface, having the advantage of creating predictable vacancies instead of the current randomness. With staggered 18-year terms, we would have vacancies every two years and each presidential term appointing two justices. That sounds pretty good, but it would take a constitutional amendment to accomplish because justices serve during “good behavior,” meaning unless they’re impeached, and maintaining their salaries while downgrading their role doesn’t pass constitutional muster. And there are transition concerns: Would the current justices be grandfathered in, thus increasing the size of the court temporarily? Or is this court-packing by a different name, forcing the three longest-serving justices, who happen to be Clarence Thomas, John Roberts, and Samuel Alito, off the court in the next five years?
Moreover, 18-year term limits are unlikely to have substantially changed the ideological balance of the court over the last half a century. It may not even decrease the justices’ average age because people in their 60s would start being considered again. In other words, even if term limits are popular — that they’d increase public confidence in the institution is the strongest argument for them — they wouldn’t change how the court operates, unless they’re meant to be backdoor court-packing in the short term, and there’s no lawful way to enact them without amending the Constitution.
The other parts of Biden’s proposal are similarly halfbaked. Ethics reform sounds good, but that’s a cynical solution in search of a problem. The justices have voluntarily complied with conflict and disclosure rules that apply to lower-court judges and, earlier this year, unanimously promulgated a new ethics code anyway. The media have spun a tale of smoke and mirrors regarding Thomas’s gifts and Alito’s (wife’s) flags, but there’s no credible allegation of quid pro quo corruption. (The biggest conflict of interest is Justice Sonia Sotomayor’s nonrecusal from a case involving her book publisher.) And it would again be unconstitutional to have lower-court judges or congressional committees policing the justices or mandating recusals.
As for the court’s recent presidential immunity decision, it wasn’t so groundbreaking to justify either Trump supporters’ crowing or his opponents’ wailing. The devil will always be in the details, and the judiciary is fully capable of engaging in the fact-intensive legal determinations demanded by Roberts’s broadly delineated majority opinion. Put in Justice Amy Coney Barrett’s more technical terms, it would be unconstitutional to prosecute a president for using drones to eliminate terrorists abroad, while no president could shoot someone on Fifth Avenue without facing legal jeopardy. No constitutional amendment is needed to draw that line or could possibly clarify the vast grey area in between.
Indeed, I’m not sure any of these or other formalistic changes would do anything to fix whatever people complain about with respect to the Supreme Court. It’s not justices’ overstaying their welcome or abusing their offices that caused the toxic atmosphere surrounding One First Street. The court has simply been enveloped in the same cloud that afflicts all of our public affairs. We’ve seen the culmination of several trends whereby divergent theories of constitutional interpretation map onto partisan preference at a time when the parties are more ideologically sorted than at least the Civil War.
It’s a modern phenomenon that justices appointed by presidents of different parties have such different approaches to their craft, but that’s why there’s so much acrimony any time there’s a vacancy in one of nine powerful judicial seats. It’s understandable that Democrats are upset that Trump, rather than Hillary Clinton, got to name three justices. Decisions on affirmative action, guns, Chevron deference, and, of course, abortion would’ve come out differently with a left-leaning court. But, as former President Barack Obama liked to say, elections have consequences.
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Politics has always been part of debates over judicial nominations and machinations, and Biden’s “reform” proposal is no exception. But each time Democrats have broken norms here, whether in the 1930s or in the last two decades, from blanket filibusters of judicial nominations under President George W. Bush to nuking that filibuster under Obama to forcing Sen. Mitch McConnell (R-KY) to end Supreme Court filibusters under Trump, it was unwise and redounded to their detriment. This time will be no different, not least because it shows how a weakened president was pressured by left-wing activists to propose radical change.
Biden would be better off learning a different lesson from Roosevelt: By mid-1941, just four years after court-packing failed, only two justices remained whom Roosevelt hadn’t appointed — and one of those, Harlan Stone, he had elevated to chief justice. In a very real sense, then, Roosevelt packed the court the old-fashioned way, by maintaining control of the White House and Senate and waiting for natural attrition.
Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and the author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. He also writes the Shapiro’s Gavel newsletter on Substack.