President Joe Biden’s recent endorsement of US Supreme Court justice term limits signals a potential shift in the historical approach of the court’s structure. This proposal comes amidst growing progressive discontent with the Supreme Court and follows a series of ethical controversies and the Court’s opinion on presidential immunity for official acts. Biden’s proposal aims to “restore trust and accountability” by instituting 18-year term limits for justices, ensuring that each president would appoint two justices during their tenure.
This move could lead to more predictable and less arbitrary nominations, reducing the potential for any single presidency to drastically alter the court’s composition. Term limits would also lessen the strategic litigation of ideologically-charged cases that take longer than a presidential term to resolve. For example, under this new scheme, the plaintiff’s success in the Loper Bright case might have been less likely, or even a non-starter, under different judicial appointments.
However, the plan does not address the complications of the Senate confirmation process. Historical precedents, such as the Senate’s handling of Merrick Garland’s nomination, underscore the potential for repeated impasses in confirming justices. A presidential commission report on court reform emphasizes the need for a pragmatic mechanism to resolve such deadlocks, while cautioning against transferring excessive power to the executive branch.
In essence, Biden’s proposal can be interpreted as an effort to shift some power from the judiciary to the presidency, effectively making Supreme Court composition contingent on electoral outcomes, which may heighten the politicization of the judiciary. Despite its constitutional hurdles, requiring likely amendments to enact, Biden’s proposal is strategically designed to spark public discourse and place institutional pressure on the court.
Historical parallels can be drawn to Franklin Roosevelt’s attempt to “pack” the court following opposition to his New Deal, which ultimately influenced judicial behavior. Should Vice President Kamala Harris win the upcoming election, similar pressure on the court by the executive branch is anticipated, aiming for a shift towards more progressive judicial outcomes.
For further details on Biden’s strategic use of the bully pulpit and its implications on the judiciary, the original article can be found on Bloomberg Law.