The advent of a new Supreme Court term has prompted The Washington Post’s Editorial Board to weigh in on one of its favorite topics: deciding on the most prudent method of maybe, possibly slowing down the justices’ efforts to excise civil rights from the Constitution like they’re crossing lines off a 250-year-old grocery list.
In the wake of a term during which the Court, among other things, overruled Roe v. Wade and conjured up a sacrosanct individual right to carry a gun in public, trust in the Court has reached historic lows. Under these conditions, the Board writes, “there is danger that drastic measures—even as extreme as packing the Court—will fall on more receptive ears.” But such an intervention, it warns, would be shortsighted and disastrous: By initiating “a cycle of partisan retribution that would see the court repeatedly packed,” expansion would exacerbate “the same partisan hardball that brought the Court to its current state of politicization.”
Term limits for justices, the Board argues, are a better way to go: 18-year terms with regular appointments at two-year intervals would lower the stakes of each confirmation fight and better align the Court’s composition with election results. “Court-packing is appealing to some because the results would be immediate,” it concludes. “But reformers must avoid doing more harm than good.”
The Board is correct that term limits are a good idea. But its treatment of term limits and Court expansion as mutually exclusive betrays a fundamental failure to understand the problem the Board is purporting to solve. As you read this sentence, the Court is controlled by an empowered conservative supermajority that is willing and able to enshrine into law as much of its reactionary agenda as it pleases. It has repeatedly demonstrated its hostility to bodily autonomy, functioning government, and representative democracy, and its cheerful willingness to act on an accelerated timeline. Right now, backing term limits without also backing Court expansion is like scheduling an oil change and a tire rotation for the car you just totaled.
Even if the Democratic Party were to catch every electoral break for the foreseeable future, retaining control of the White House and its razor-thin majority in the Senate, it could be years before biennial appointments would correct for this Court’s once-a-century ideological imbalance. (Do the math: If a bill passes tomorrow but a Republican takes the White House in 2024, their two appointments could shift the Court even further to the right.) Given this Court’s mounting skepticism of democracy in general and the right of non-Republicans to win elections in particular, I would not bet on Democratic candidates running the table anytime soon. For anyone who cares about preventing the country’s inexorable transformation into a Federalist Society-flavored juristocracy, time is a luxury unavailable at this moment.
Again, this is the best-case scenario. In practice, the timeline for effective implementation of term limits might be even longer. Unlike Court expansion, which requires only an act of Congress and a president willing to sign it, judicial term limits would be subject to immediate challenge based on Article III’s guarantee of tenure during periods of “good Behaviour.” Existing proposals also take different approaches to the treatment of sitting justices, who would likely have the strongest case for getting grandfathered in under the old, pre-term limits rules. What this means is that if the Court were to consider the constitutionality of a term limits bill in, say, Pelosi v. Roberts, Sam Alito could still be sitting in the same seat he occupies now. I have a pretty good idea about which way he’d vote.
The Post’s editorial does not meaningfully grapple with these shortcomings of its recommended course of action, noting only that term limits “would take a long time to work.” Viability at some undefined but distant point in the future is, generally speaking, not a feature I value when it comes to emergency response.
If this argument sounds familiar, it is because the Norms Appreciators who sit on the Board have been making it for a long time now. In December, the Board called the prospect of Court expansion a “historic mistake” that would “sap the Court’s legitimacy for no long-term benefit,” and opined that term limits “make sense” as an alternative. That same month, deputy editorial page editor Ruth Marcus labeled Court expansion a cure “worse than the disease,” and warned that it “would be like destroying the village in an effort to save it.” In defense of the status quo, Marcus pointed out that “a six-justice conservative majority is not necessarily a permanent condition,” which is roughly analogous to explaining the concept of dry land to a drowning person.
Even in September 2020, shortly after the death of Justice Ruth Bader Ginsburg kicked off the GOP’s frantic race to replace her before Election Day, the Board was sounding a preemptive alarm about “dissolving the norm” of a nine-justice Court. It framed term limits as a perhaps-appealing path forward not only for indignant Democratic lawmakers, but also for “Republicans who are troubled by the hypocrisy their leaders urge them to embrace.” Credit to the Board, at least, for conceding that it was writing for a constituency that does not exist.
The Board’s argument fails over and over because of the cramped view it takes of the goal of Supreme Court reform: as this most recent editorial puts it, “to build institutional legitimacy and public trust.” Marcus echoed this language in December; if the Court were to balloon in size, she argued, its “independence and its legitimacy, the fundamental sources of its power, would be irrevocably eroded.”
This analysis has the problem backwards. The Supreme Court is not entitled to institutional legitimacy, and whatever moral authority it possesses does not flow from its size. Like any locus of political power within any branch of government, its members—however many there may be—must earn institutional legitimacy by doing things that merit the public trust. Changing the composition of a revanchist Court that is wildly out of step with the people whose lives it controls would give the Court a meaningful opportunity to earn that trust. Unfortunately, the only immediate consequence of passing a standalone term limits bill would be forcing the Post’s Editorial Board to come up with something else to write about.