Courts

Biden Considers Supreme Court Term Limits Roughly 3 Years Too Late

The Supreme Court is deeply unpopular. The concept of term limits is broadly popular. Joe Biden seems to have figured out that math.

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The U.S. Supreme Court Building

(Photographer: Samuel Corum/Bloomberg)

The Supreme Court was already a busted institution three years ago when Joe Biden came to office. And that’s before they erased half a century of established constitutional rights and we learned that one justice has spent over three decades using the job as a personal piggy bank.

Despite the loud calls for Biden to embrace court reform back in 2021, he instead appointed a commission to spin its wheels and return without saying much of anything beyond “cameras in courtrooms… those are good, right?”

But now the last horse has finally reached the finish line, with the Washington Post reporting that Joe Biden plans to endorse an enforceable Supreme Court ethics package and term limits for Supreme Court service.

An ethics package should be a no-brainer. John Roberts presides over an ethical dumpster fire and has steadfastly refused any effort to bring a scintilla of propriety to his Court. His fig leaf Supreme Court ethics pinky swear barely lasted a month. Based on his prior statements, Roberts plans to ignore any statutory ethics regime citing his vision of constitutional separation of powers — a series of checks and balances where the judiciary has no checks but balances everything else.

Securing adoption will require Biden to commit to a proposal that would zero-fund One First Street beyond the justices’ salaries. No clerks, no air conditioning, indeed no offices at all until the Court complies with the law. It’s a brand of hardball Biden’s never had the stomach for in the past.

Maybe he’s coming around in his old age.

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He’ll have an even tougher bare-knuckled fight pushing a term limits proposal. While the precise details of Biden’s proposal aren’t out yet, the standard model envisions 18-year terms for active duty justices with a new justice appointed every two years. In 2020, Biden said of term limits that he was aware of the constitutional scholarship surrounding the issue but “I have made no judgment.” He seems to have belatedly come around.

Critics who prefer Court expansion are already pushing back.

Except Biden needs to win an election first or none of this matters.

Term limits are broadly popular with Americans supporting the measure nearly 2-to-1. Expanding the Court is not. While there is still a plurality in support of expansion, it’s basically an even split. If Biden wants to make court reform an issue in the election… term limits is the answer.

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But also the Supreme Court would face an uphill climb against a term limits bill. Not that this Court is above just making up law when it suits them, but the case of Thomas v. Biden will present issues the Court will find difficult to shrug off.

Most term limits proposals involve Congress adjusting the Court’s appellate jurisdiction — which is unquestionably legislatively determined — without disturbing the Court’s original jurisdiction under the Constitution. The nine most recently appointed justices are empowered to hear appellate matters, while all the life-tenured justices still hear the only cases that the Constitution explicitly assigns to the Supreme Court. Justices in their first 18 years of service hear almost all the cases we currently consider Supreme Court material, while the rest of them sit back and wait for two states to sue each other over water rights or a couple ambassadors getting into a dispute. Could the Court cobble together a coherent explanation why the Constitution suddenly doesn’t grant Congress control over the scope of appellate jurisdiction? 

Term limits won’t restore Roe or make the president less of a king in the short run, but expansion opens the floodgates to tit-for-tat future expansions that wipe out whatever instant gratification court packing provides. It also fails to resolve the most pernicious institutional cancers afflicting the Court.

We have Supreme Court justices using their unlimited tenure to hoover up luxury vacations from billionaires who know they’re buying influence for life. Expansion doesn’t change that. We’ve got an artificial talent cap with elderly justices holding onto jobs too long and the political pressures of lifetime tenure limiting the population of potential justices to increasingly young nominees, locking excellent jurists in their primes out of consideration. Expansion doesn’t change that either. And to the extent the Supreme Court’s core problem is its arbitrary dead-hand distortion of popular sentiment — a world where two two-term presidents got two nominees each while a one-term president took three — expansion only supercharges this.

That said, expanding the Court must remain on the table for leverage if nothing else. No bid for term limits can succeed if Biden isn’t willing to signal his resolve to add justices if the proposal fails. There’s no question that court packing is constitutional, even if it is a bad idea. But if Biden secures the majorities necessary to pass term limits and the justices won’t acquiesce, they have to understand that they’ll be getting some new coworkers.

Though most importantly, win or lose in November, the precedent will be set. Term limits, long the most popular reform proposal, will now be the floor for any future Democratic nominee. It’s normalized now.

As it should have been three years ago.

Biden set to announce support for major Supreme Court changes [Washington Post]

Earlier: Joe Biden Announces Supreme Court Reform Commission
Supreme Court Term Limits Still The Only Reform That Matters

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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