On Monday, President Joe Biden proposed a series of reforms for the Supreme Court. These proposals track those advocated by progressives over the last couple of years. They continue a misguided, partisan effort to undermine the constitutional structure and power of one branch of our national government.
Biden’s reforms would include an 18-year term limit for justices. This would create a regular shift on the court, with every president eventually allotted at least two new nominations. Yet we should not pursue such regularity at the cost of other, more important goods. We want justices on the bench who decide cases rightly. They do so by skillfully interpreting and applying the laws, whether constitutional or statutory, to the case before them. Together, right decision based on skillful interpretation and application comprise the essence of the judicial power.
If we have a justice carrying out this role well, then we should be thankful he or she continues to do so. That is true whether the justice has served for five weeks or 45 years. Justices could stay and have stayed after their capacities began to fade. But informal mechanisms of private persuasion have addressed that issue historically. Other methods, up to and including impeachment, could work in instances where all other avenues have failed.
Beyond the good of keeping justices as long as they continue to do their work well, we also are bound to this system by the Constitution itself. Contrary to some claims, lifetime tenure for federal judges is not based on “tradition.” Instead, it comes from the clear text of the Constitution in Article 3. Judges hold their positions during good behavior. The fact that some could claim this text ambiguous on length of term betrays more partisan wish-casting than serious engagement with the words on the page.
The second proposed reform concerns ethics reform for the court. The justices placed rules on themselves recently to clarify expected rules of conduct. But progressives are not happy with this code, thinking it leaves too much discretion to the justices regarding instances of recusal. They have been particularly frustrated by stories regarding Justices Clarence Thomas and Samuel Alito regarding their reception of benefits from private parties.
However, the justices addressed the main element lacking in the past, which was a thorough disclosure of financial and other relationships that might create a conflict of interests in particular cases. Recusal has always been a matter both of intricacy and delicacy. While some instances might be clear, others are not. Reducing recusal to a formula or giving that decision to some external person or group will cause as many or more problems than it solves.
Third, Biden called for a constitutional amendment to overturn the court’s recent decision in Trump v. United States. This reform also contains significant partisanship, as it clearly reacts in frustration to the court’s curbing of lawfare attacks on political opponents.
At the same time, one can object to the court’s decision here on nonpartisan grounds. The expansive nature of presidential immunity the court seemed to give presents troubling questions for the relationship of future presidents to our core commitment to the rule of law. The court sought to shore up the president’s ability to execute the laws faithfully, a point itself important and under threat if the decision had gone the other way. Thus, to paint the decision as a pure covering for former President Donald Trump or as something clearly in error is a mistake of partisan blindness, too.
The better way to work these legitimate legal concerns out is not a constitutional amendment. It is through new appointments to the court, new cases to clarify or moderate this decision, and the careful selection of presidents who hopefully never test the limits of this newly articulated immunity.
In the end, these reform proposals really serve as campaign fodder. They likely will go nowhere. The public should focus more on what makes a good justice to the Supreme Court and who should win the presidential election in November. Both invite us to do more than partisan fighting. They call on us to renew our consideration of the meaning of the Constitution, the country, and our citizenship under both.
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Adam Carrington is an associate professor of politics at Hillsdale College.