Court-packing is a menace, no matter how it comes dressed. The Senate Judiciary Committee warned that Franklin D. Roosevelt’s 1937 proposal to change the structure of the Supreme Court in order to alter its decisions “should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”
Let us remember that in response to Joe Biden’s latest attack on our system of independent, life-tenured federal courts. The guardians of our Constitution have been guarding it too well lately, and progressives are furious. They have spent years now assailing the public reputation of the Court and trying to intimidate its members. Some Democrats in Congress have openly proposed Court-packing. A desperate and cornered Biden, fighting just to keep his party’s nomination, is finally caving to demands to dismantle the Court as an obstacle to progressive goals.
In Justice Antonin Scalia’s words, this wolf comes as a wolf. Over the weekend, Biden reportedly told the Congressional Progressive Caucus that he was about to unveil “a major initiative on limiting the Court.” Limiting is perhaps an unintentionally revealing word choice. It is said that Biden is advised by retired Harvard professor Laurence Tribe, who has counseled him in prior violations of the Constitution that the Court had to stop, and whose public commentary these days marinates in conspiratorial hyperbole. While the details are as yet undisclosed, the plan is said to include “legislation to establish term limits for the justices and an enforceable ethics code.”
The aim of both of these proposals is to accomplish the goal of Court-packing by other means — change the composition of the current Court by changing the system to force current justices off the bench. Nobody has the slightest illusion that these proposals emanate from anything other than the fact that there’s a conservative majority on the Court. Progressives want Biden to curtail that majority so that the president can expand his unilateral powers and burst the constitutional restraints on his office while installing activists on the Court who will invent unwritten “rights” that spring only from judicial power.
The constitutionality of either proposal is dubious. The Supreme Court is created by the Constitution, not by Congress, and the chief justice holds a constitutional office with its own title and duties. Article III, Section 1 provides that “the judicial Power . . . shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”
“Good Behaviour” has always been understood to mean that the justices have life tenure subject only to impeachment by Congress, and that is how the justices have served since 1789.
The term-limits concept floated by some progressives is a work-around to keep from having to amend Article III. The idea is that justices would be transferred to a lower court after 18 or so years, retaining the same compensation. (If an 18-year limit were applied retroactively, as it would be in the leading Democratic bill on the subject, it would force Justices Clarence Thomas and Samuel Alito and Chief Justice John Roberts off the Court immediately.) The theory is that they have not thereby lost their “Offices,” but Article III itself refers to judges of the “supreme and inferior Courts” as distinct “Offices” (so does Article II, in discussing the appointment of justices), and they surely have distinct powers and duties.
As for an ethics code, the Court as a matter of inter-branch comity would likely adopt and follow any code enacted by Congress, just as it has incorporated within its own ethics code the recusal statute passed by Congress. But any mechanism for a body outside the Court to punish or remove the justices except by impeachment would be incompatible with where the Constitution vests both the judicial power and the impeachment power.
In Orwellian terms, the press calls this proposal “judicial reform,” while it paints in lurid terms more modest conservative proposals to make more executive-branch jobs subject to removal by the president (which, by the way, was how the whole executive branch worked for the nation’s first century). Biden’s proposal is the one that menaces liberty and law.
As Alexander Hamilton wrote in Federalist No. 78, “the complete independence of the courts of justice is peculiarly essential in a limited Constitution” in order to leave the justices secure to enforce “inflexible and uniform adherence to the rights of the Constitution.” Hamilton observed, “This consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” Moreover, “a further and a weightier reason for the permanency of the judicial offices” was that the job of the justices requires great expertise, and life tenure would help recruit the best lawyers to the Court as well as allow them to deepen their knowledge over a long tenure.
So it has been since the nation’s earliest days. Sixteen justices appointed before 1865 served at least 20 years, and seven of them served at least 30. John Marshall, appointed by John Adams, served as chief justice for 34 years.
Biden once knew better, railing in the 1980s at how FDR’s Court-packing plan showed that he was “corrupted by power.” Throughout his Senate tenure, Biden postured as a defender of the Court and the institutional norms surrounding it. After criticizing Court-packing proposals during the 2020 primaries, he waffled and refused to take a stand during the general election, then appointed a commission to kick the can down the road awhile. But leading progressives have backed Biden in his bid to avoid being replaced on the ballot, and the bill has come due in concessions, including this proposal.
While we applaud the Court’s current majority, we don’t think it got everything right in its latest annual term. It never has, and it never will. Its job is a hard one, and its members are fallible, while getting the right answer is harder when bad precedents are entrenched or when the lawyers in the case haven’t made the best arguments. But the Court has never in living memory taken the Constitution so seriously.
Through the decades that the Court handed down one victory after another to progressives at the expense of constitutional fidelity, conservatives kept up the patient work of changing the Court within the system. Even when there were grassroots groups erecting “Impeach Earl Warren” billboards or academics questioning judicial review, nobody serious on the Republican side ever proposed a sitting president radically restructure the Court. It would send an ominous message only now, after all those decades of work, to insist that the rules must be changed because the wrong people won.
Biden’s proposal would be the most dramatic assault on our legal system since 1937. It should meet a similar fate and stand similarly as a cautionary tale for all time about the corruption of power.