A constitutional obstacle to court packing would be tremendously valuable, but it might have downsides as well.
Antonin Scalia famously said of the independent counsel statute that it did not resemble most government initiatives to change the balance of power. They were usually wolves in sheep clothing, hiding their efforts under a veil of obfuscation. But of that statute, he observed: “this wolf comes a wolf!” So it is with President Joe Biden’s Supreme Court Commission. Its genesis, design, and membership all mark it as an effort not to provide dispassionate analysis of the judicial branch, but to generate ideas for kneecapping the current originalist-leaning Court.
The Commission’s Maculate Conception
The Commission fulfills a Biden campaign promise, which sought to solve a serious problem that threatened his chances of victory. Progressives, enraged by the three justices Trump appointed, wanted to pack the Court. Biden recognized that endorsing such a proposal would repel moderate voters. Yet simply rejecting it would depress leftist turnout. Hence, he promised a Commission on changing the Court, which held out the possibility of packing, while keeping his distance from any immediate change. Once he was elected, Biden continued his balancing act by establishing the Commission, which has the useful secondary objective of sending a message to the Court that he is searching for effective methods of retaliation, should its rulings upset his coalition.
Consistent with the objective of finding solutions to Biden’s political difficulties, the membership of the commission leans strongly to the left. The co-chairs make a contrast, for instance, to those of President Obama’s Commission on Electoral Administration, which had both a leading Democratic lawyer, Bob Bauer, and a leading Republican lawyer, Ben Ginsberg, at the helm. Here Bob Bauer is again a co-chair, but he is paired with Christina Rodriguez, a left-liberal Yale law professor. Of its 36 members, I would count about six or seven as Republicans—enough to allow the Commission to be labeled bipartisan by the mainstream media, but not enough to have very substantial force in its deliberation. And the Republicans are generally, perhaps entirely, from the small Never Trump wing of the party. It is a commission maculate in its conception and composition, if the objective were analysis free from partisan considerations.
I say this even while respecting many of the left-leaning members of the commission. Indeed, I would express a similar concern about a commission that was stacked with right-leaning members in a similar political context. As Madison reminds us, men (and women) are not angels. The best way to get objective analysis from elites on inherently political issues is to have political balance. While I support some proposals for reforming the Court, like the creation of rules to govern the disposal of the Justices’ official papers, even such sensible ideas would be much more likely to gain consensus support in our polarized times if they came from a politically balanced commission.
Consistent with Biden’s political objectives, the executive order establishing the Commission does not limit its jurisdiction to court-packing proposals. For the foreseeable future, court packing cannot help the President politically. Indeed, any court-packing plan could not currently get through the Democrat-controlled House, let alone surmount a Republican filibuster in the Senate. Pushing that proposal would just provide Republicans a talking point about Democratic overreach to sway swing voters.
Thus, the remit of the Commission is broader than court packing, comporting with Biden’s interest in finding proposals that are more likely to thread the political needle between the left and more moderate Democrats. The executive order makes this a roving Commission, permitting it to provide “an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.” It is true that the order does not directly tell the Commission to make recommendations, but making a case on the merits can be tantamount to a recommendation.
The most important consideration in predicting the trajectory of the Commission’s merit proposals is, therefore, to consider which ones are likely to advance Biden’s political objectives. As a result, the Commission is much more likely to focus on term limits than court packing, because term limits do not have the obvious partisan valence of court packing. Yet, if done retrospectively by statute, they can assuage the left’s anger by holding out the prospect of rapidly changing the Court’s composition. Perhaps even more importantly, term limits for any government official generally poll well with the moderate public, as on the surface they appear to decrease the accumulation of governmental power.
Term Limits on the Merits
As an abstract matter, term limits have some plausible arguments in their favor. Life tenure looks different today than when the Framers included the requirement in the Constitution. Our longer life expectancies mean that judges may serve now for 30, even 40 years, increasing the distance from their democratically ratified appointment. Some of these aging justices may lose the mental acuity necessary to shoulder their important responsibilities. Life tenure also allows justices to time their retirement—often strategically and never with regularity that would guarantee Presidents equal opportunities for appointments.
No other advanced industrial nation has life tenure, presumably for some of these reasons. Even conservatives, like my colleague Steven Calabresi, have worried that this provision is outdated and have proposed a constitutional amendment to establish Supreme Court justices with 18-year terms together with structural guarantees that would enable every President during his term to appoint two justices.
But there are valid criticisms of these arguments as well, even if term limits were imposed through a constitutional amendment. The distance between confirmation and judicial-decision making might be seen as a feature, not a bug of life tenure. The mix of issues before the Supreme Court generally changes over time, and the important cases the President had in mind when nominating and the Senate had in confirming a Supreme Court justice often fade, making justices less politically predictable and thus more independent of electoral politics. For instance, Franklin Delano Roosevelt appointed justices who would be deferential to exercises of national power. His justices did follow that party line, but then the issues changed to questions of rights where they held very different views.
Today, justices are unlikely to continue to work when they are unfit. There are no such instances of mental incapacity in the last quarter-century. The increased scrutiny of justices makes it very hard to hide decline. When Justice John Paul Stevens muffed a single oral announcement of an opinion (his dissent in Citizens United), he resigned at the end of the term.
And most importantly, 18-year terms have a substantial downside. They will likely increase instability in the law, as the Court will swing this way and that depending on elections. Such judicial mobility is in tension with one of the core purposes of a Constitution—that is, to serve as a ballast, ensuring the polity has a stable foundation. Indeed, one might worry that term-limited justices will change their behavior to exacerbate this instability particularly at the end of their tenure, because having gained the celebrity that comes with being a full justice, they will consider their next job and curry favor with those who will give it to them. One advantage of life tenure is that it makes the justices’ day-to-day interests align better with the long-term interests of the Supreme Court as an institution.
Statutory Term Limits in Service of the Left
In any event, a constitutional amendment to create a term-limited Supreme Court will not satisfy the left’s goals. A constitutional amendment would take a long time to enact, and the left is in a hurry to retaliate against Trump’s appointments. It would require Republican support and that in turn would necessitate an enactment date long in the future so as not do to disturb the present composition of the Court.
Thus, it is predictable that the Commission’s focus will likely be term limits by statute permitting immediate implementation. As Commission Member Jack Balkin notes in his own proposal for statutory term limits on the essential powers of a justice, a statutory 18-year term limit could begin in 2023 with a justice giving up his full powers every two years and being replaced by a new appointee. Note that this process would begin by effectively term limiting Clarence Thomas, the justice that the left most dislikes both because of his originalism and their view that he is a traitor to his racial identity. That result alone would delight progressives. It is true that Breyer would be the next justice to be term limited, but he is very likely to leave the court anyway during Biden’s term. After imposing effective term limits on Roberts within six years, Democrat-appointed justices would likely soon be in the majority, another plus for progressives.
Balkin’s plan achieves these ends by ousting any justice, including sitting ones, from judging appellate cases after serving on the Court for 18 years. But while this plan is effective in advancing the progressive goal of changing the balance of power on the Court, it is ineffective in advancing the public-interest goals of terms limits. It is also unconstitutional.
First, recall that one of the main purposes of term limits is to give each President a nomination every two years, ensuring that Presidents have an equal share of influence on the Court. The problem, however, is that the Senate may be of a different party and not disposed to confirm the nominee. Balkin believes he can fix this problem by a statutory provision requiring the Senate to vote on nominees within relatively short deadlines. But he is wrong. The Constitution expressly gives each house the authority to make its own rules. Thus, one house cannot limit another house’s discretion through legislation. Whatever Balkin’s statute provides, the Senate majority could just change the rules and not hold any vote, as it did with the Merrick Garland nomination. Only a constitutional amendment could create a structure to effectively guarantee two appointees every presidential term.
The proposal is also likely unconstitutional, as it abrogates life tenure. It is true that Balkin would allow justices whom the statute would remove from appellate cases to continue to sit on original jurisdiction cases, which are essentially cases between states on land disputes, and participate in the decision on whether to hear cases on the appellate docket. Thus, Balkin argues he is not actually removing justices from the Court, just changing their duties.
But his proposal would nevertheless deprive justices of the most central aspect of their job—deciding appellate cases on the merits. Crucially, when they were commissioned as justices, that is what the job entailed. Changing it retrospectively would rip out the essence of what they signed up to do. Deploying the same principles that animate Balkin’s legislation, Congress could relegate all sitting federal judges to make sentencing decisions and then stock the judiciary anew to decide all cases of importance. Accepting this form of term limits would mark the end of judicial independence from congressional whim.
Permitting such ripper legislation would also have implications outside the judiciary. When Congress wanted to get rid of a government official, it would not have to impeach him, it could just change the job description to be a shadow of what it once was. Congress could retain the name for a sitting Secretary of State, but relegate him to the job of overseeing the U.N. Ambassador.
Unfortunately, these points against statutory term limits are subtle, two-step arguments, and in politics, a two-step argument is often one step too many. Look for many on the Commission to push statutory term limits and for many Democrats in Congress to praise them as a good government reform. Not only is the commission a wolf, but it may beget more of them.