President William Howard Taft famously stated, “Presidents may come and go, but the Supreme Court will remain forever.”
However, Joe Biden’s proposed reforms could potentially change that. Biden’s plan to impose an 18-year term limit on Supreme Court justices, targeting the most senior conservative members, could alter the court as we know it.
Despite facing opposition and likely failure in his final months as president, Biden’s actions may pave the way for future attempts to reshape the court under a Harris administration.
While Biden had previously resisted calls for court reforms, his recent proposal marks a significant shift in his stance. Rather than court packing, the move towards term limits reflects a more politically acceptable compromise.
Public opinion seems to favour the idea of term limits for justices, with most Americans supporting the proposal. However, the sudden push for reforms only emerged after conservatives gained a solid majority on the court.
The targeted conservative justices, including Clarence Thomas, Chief Justice John Roberts, and Justice Samuel Alito, would be the first to be affected by the proposed term limits. This raises concerns about the potential loss of landmark decisions if such limits were in place.
The debate over court reforms underscores the delicate balance between tradition and change in the judicial system.
Consider the significant decisions that would have been lost if term limits were in place. For instance, Liberal Justice William Douglas’ 36-year tenure on the court would have been halved, resulting in his removal in 1957.
His influential opinions, like Griswold v. Connecticut (1965), which overturned bans on contraceptives, would not have been penned — a paradoxical outcome for those advocating for limits following the court’s decision in Dobbs.
Similarly, the tenure of liberal icon Ruth Bader Ginsburg would have concluded in 2011 before she authored her renowned dissent in Shelby County v. Holder (2013), defending voting rights.
Anthony Kennedy’s term would have ended in 2011 instead of 2018, preventing him from writing opinions such as United States v. Windsor, invalidating the Defense of Marriage Act.
While it is possible that other justices could have written opinions in these cases, the fact remains that many justices produced their most significant opinions after serving 18 years on the court.
Furthermore, the framers intended these positions to be lifetime appointments to safeguard against political pressure or influence.
Throughout over two centuries, presidents have grappled with the Supreme Court, yet none (until now) have sought to abolish life tenure.
Presidents have acted as a barrier against the anger and extremism that has periodically swept through the court.
Biden is spearheading the movement to alter this institution for the first time since its establishment.
This reflects what I refer to as “an age of rage” in my recent book. After years of supporting the court when it overturned conservative precedents, liberals are now advocating for changes to the court to eliminate or weaken the majority.
This is unlikely to stop there. Following the removal of Thomas, Roberts, and Alito, many are pushing for further changes, including court-packing. Democratic leaders like Sen. Elizabeth Warren (D-Mass.) have proposed court-packing outright — a suggestion that Vice President Kamala Harris has indicated she may endorse.
While Biden is seen as a political opportunist for belatedly joining this movement.
If she wins the election, Congress is expected to remain closely divided, which could lead to increased pressure to transform the court into an alternative avenue for social and political reform.
Harvard professor Michael Klarman cautioned that all efforts to reshape the nation hinge on court-packing.
Following the 2020 election, he suggested that Democrats might alter the electoral system to ensure that Republicans “will never win another election.”
Should Biden pursue this change through legislation rather than a constitutional amendment, future Congresses could shorten justices’ terms from 18 to eight years or even less.
During his address, Biden expressed his desire for more frequent changes in the court’s membership.
If Congress possesses this power, it could replace court justices more rapidly than occupants of a South Beach timeshare condo.
While this approach contradicts the framers’ intentions, Biden argues that the current circumstances necessitate safeguarding democracy by challenging one of our fundamental stabilizing institutions.
As reported by the Washington Post, the president made this commitment during a Zoom call with the left-leaning Congressional Progressive Caucus, led by Rep. Pramila Jayapal (D-Wash.) and Rep. Ilhan Omar (D-Minn.). However, his proposal failed to revive his candidacy and is unlikely to gain traction in Congress.
What remains is a tragic portrayal reminiscent of King Lear, with a presidency betrayed by close allies and struggling to maintain relevance.
History will remember a pitiful figure who sacrificed the court to retain power, only to lose his candidacy and legacy.
Jonathan Turley, a Fox News Media contributor and the Shapiro professor of public interest law at George Washington University, author of “The Indispensable Right: Free Speech in an Age of Rage.”
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