Earlier this week, President Biden called for Congress to impose 18-year term limits on Supreme Court justices. While he was vague about the details, current Democratic proposals would retroactively apply to sitting justices. Those decapitated by the plan conveniently would be clearly two Republican appointees, Justices Clarence Thomas and Samuel Alito, and perhaps another—Chief Justice John Roberts, whose position, constitutionally, might present more complexities for such a scheme. The president also proposed a binding code of judicial ethics. Again, he was light on specifics, but recently proposed legislation would permit lower court judges to sit in judgment on the recusal of the justices.
Biden’s proposals are the third significant presidential attack on the Supreme Court’s integrity. The first two, by Thomas Jefferson and Franklin Roosevelt, failed. This latest attempt is more politically potent because “term limits” and “ethics” poll well in the abstract. Moreover, the plan would be especially damaging to conservatives. In the two earlier eras, our intellectual culture was not so dominated by left liberalism as it is today. The Supreme Court is now the most powerful reasoning institution not controlled by the Left.
The president made his recommendation while criticizing various recent rulings, removing any ambiguity that these proposals are motivated by anything other than hostility to the current Court. They are also unconstitutional. Justices enjoy their offices during “good behavior,” long interpreted as giving them life tenure, unless impeached. The term-limits bill tries to address this protection by allowing the term-limited justices to retain the title of justice and sit on original jurisdiction cases, such as those that adjudicate water rights between the states.
This shifting of duties is a transparent evasion. The justices were commissioned as justices with full authority and cannot be made into junior varsity justices against their will. The minor duties left to them would demonstrate that they had been effectively removed. The Office of Legal Counsel at the Department of Justice has traditionally held that Congress cannot strip core duties even from executive branch officials, because doing so represents an end-run around impeachment.
Besides its unconstitutionality, the bill would invite retaliation, if ever implemented. Republicans could make terms even shorter to knock off Democratic-appointed justices if that helped their political objectives. And they could restore the justices who had been demoted to full status.
The ethics code proposal is also unsound as a matter of law. The Supreme Court is supreme over courts labelled “inferior” by the Constitution. Congress cannot allow these judges to change the Court’s composition in a way that may determine case outcomes. True, Congress enjoys the power to “make exceptions” to appellate jurisdiction, but those exceptions must respect the structure of the Constitution, including the judicial hierarchy outlined therein.
The proposal would also encourage a rash of recusal motions attempting to affect the composition of the Court. Lower court justices often sharply reversed by the Court are not likely to be the most impartial arbiters of their superiors’ behavior.
Some might take heart from the failures of Biden’s Court-challenging predecessors. Jefferson encouraged his Democratic-Republican partisans to impeach Samuel Chase. If they had succeeded, the next target would have been the great Chief Justice John Marshall himself. But the Senate refused to convict, with substantial numbers of Democratic-Republicans demurring. This precedent is thought to have established the principle that mere legal disagreement does not suffice for removal. But impeachment would have proved in any event a “scarecrow,” as Jefferson complained. The two-thirds requirement for conviction in the Senate is an almost insuperable obstacle because parties almost never control two-thirds of its members.
In 1937, Frankin Roosevelt proposed a plan to increase the size of the Court, allowing the appointment of a new justice whenever a justice on the Court turned 75, until it was enlarged to 15 justices. Roosevelt claimed that his measure would improve efficiency, but his real motives were obvious: he did not like the Court’s decisions on some of his economic policies. Roosevelt’s marketing problem was that no one, not even members of his party, could make the case that his plan would do what he claimed it would do. And thus, even the Democratic-controlled Congress rejected the proposal.
What makes Biden’s plans more seductive is that sensible arguments can be made in the abstract for term limits. Justices do live far longer than when the Constitution was enacted, and terms of more than 30 years or even longer likely stretch before us. (Thomas has been on the Court for 33 years.) Moreover, some justices do become mentally less agile as they age and yet may nevertheless stay on to retain prestige or until they can return the seat to the party that appointed them. And term limits are popular with the public, who see them as way of preventing an entrenched insider culture.
The seductive promises of legal progressives, buttressed by calls to abolish the filibuster, could culminate in the passage of both term limits and the president’s judicial recusal plan. These measures would be mutually reinforcing, with lower court justices potentially barring justices who would now be term-limited from helping to decide the term-limits case. It would take a bold Supreme Court to rule both bills unconstitutional simultaneously. Passage of these proposals would create the greatest constitutional crisis of our time.
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