Earlier this week, the Washington Post reported that President Joe Biden is preparing to announce his support for “major” Supreme Court reform proposals, including term limits for the justices and an “enforceable ethics code.” As it turns out, all it took to get the White House to take Court reform seriously was confronting the possibility of a diminished Biden losing the 2024 election to former President Donald Trump, thus subjecting America to quasi-authoritarian rule for the next four years and/or forever.
Strictly as a matter of politics, I get it. A Supreme Court that has (among many other things) overturned Roe v. Wade and struck down student debt relief and granted Trump sweeping immunity for his attempts to overthrow the government is a pretty obvious villain. Just 38 percent of voters approve of the Court’s job performance, per Fox News polling, which is down 3 points from last year and 20 points from March 2017. Overall, 78 percent of Americans support 18-year term limits for Supreme Court justices, and three-quarters, including 72 percent of Republicans, think they should be subject to binding ethics rules, too.
For an elected official whose poll numbers are, to put it politely, suboptimal right now, endorsing popular proposals that would rein in a historically unpopular institution is a no-brainer. As frustrating as it is for Biden to suddenly discover his enthusiasm for Supreme Court reform after a lifetime of loudly pooh-poohing it, better late than never, I guess.
As a substantive matter, however, term limits are what they have always been: a good and correct idea that is, in the context of the six-justice conservative supermajority that will control the Court for the foreseeable future, nowhere near sufficient. Until Democrats like Biden are willing to pair their support for term limits with adding justices to the Court, the benefits of Court reform will be limited to future generations. The hundreds of millions of people whose rights are on the chopping block every June will remain (to use a legal term of art) shit out of luck.
Term limits are unquestionably more sensible than the status quo, a de facto system of life tenure in which control of the highest level of the federal judiciary depends on which party controls which branch(es) of government when an octogenarian lawyer leaves this mortal coil. If we were writing the Constitution from scratch, setting an upper limit on judicial service beyond periods of continued “good Behaviour” would probably not be controversial.
The challenge, of course, is that we are not writing a Constitution from scratch. Whether Congress can institute term limits by passing legislation is, at best, an open question in constitutional law, and one that could be ultimately answered by the Supreme Court. Even if the justices were to uphold such a law, it might not apply to sitting justices, thus preserving Brett Kavanaugh’s ability to churn out bootlicking concurrences for as long as he feels like working. It is hard to imagine Republican lawmakers backing a law that would limit the tenures of reactionary justices they already confirmed. It is even harder to imagine, say, Chief Justice John Roberts interpreting that law in such a way that he’d effectively fire himself.
The basic limitation of term limits is that they do nothing to address the problem that normal people have in mind when discussing the Supreme Court as a broken institution that requires urgent reform: It is controlled by six Republicans who spend each June issuing decisions that normal people hate. Telling Clarence Thomas that his future, yet-to-be-named colleagues will be limited to 18 years of service is not going to change the fact that he controls one-ninth of its voting power. Requiring Sam Alito to fill out more disclosure paperwork is not going to make him any less enthusiastic about the reactionary policy agenda, or less likely to use his position to implement it. The only way to solve the problem of a Court controlled by a conservative supermajority is to add justices to it. Backing term limits without also backing Court expansion is like explaining the concept of a life preserver to a person who is actively drowning.
Again, strategically speaking, supporting term limits is a prudent choice for Biden. Public support for expansion is higher than it’s been in recent years—54 percent last fall, for example—but has not yet earned the broad consensus that has emerged around term limits and ethics rules. And as conservative as this Court already is, a second Trump presidency could push it even further to the right, to say nothing of the other myriad ways that a second Trump presidency would erode what remains of representative democracy. If the goal is to keep the fascism enthusiast out of the White House, rolling out support for a less-than-overwhelmingly-popular reform proposal probably should not be at the tippy-top of the Biden campaign’s priority list.
At some point, however, risk-averse Democrats are going to have to do the work they’ve long put off: persuading voters of the merits of expansion, rather than basing their positions solely on how expansion is polling at any given moment. This is going to take longer than a single election cycle. But the increased interest in reform proposals over the past few years shows the potential payoff of taking a stronger, less reactive stance here: Voters clearly understand the dangers that the Supreme Court poses to the things they care about. What they need is a politician willing to make a clear, compelling case for rebalancing it.
Maybe that won’t be Joe Biden. But it should be whoever comes next.
