The Biden-Harris Supreme Court plan attacks the most fundamental basis of the American system.
The Biden-Harris Supreme Court plan attacks the most fundamental basis of the American system.
W ith today’s rollout of a Court-packing-lite scheme to force the three most senior conservative justices off the Supreme Court, Joe Biden and Kamala Harris are proposing their own January 6 for the court system. It’s the most dangerous policy proposal by an American president since the Second World War. Harris is pledging her campaign to it, so the question will be squarely on the ballot this fall. Anyone who repeats the partisan propaganda of calling this “court reform” should resign his job as a journalist. David Garner of the Daily Beast actually gets the headline right: “Kamala Harris Goes to War on Supreme Court and Backs Term Limits.”
This isn’t “saving democracy” but destroying it. If we saw this in any other country in the world — a president frustrated with rulings of his country’s top court trying to remove the judges — we’d call it the authoritarian coup that it is. Remember the massive protests, covered lovingly by the American press, when Benjamin Netanyahu tried to rein in the power of the Israeli Supreme Court? And that was responding to a court that has no constitutional powers to overrule its parliament. Biden and Harris are proposing a far more dramatic break with American history and law than anything Netanyahu did.
A Nation of Rules
The American system is unique. We’re the world’s first nation to be democratic (the people rule), republican (no kings or hereditary aristocracy), liberal (the people have individual rights), and constitutional (the rules are written down and bind the government). Our system separates the power to make rules from the power to enforce them, and it is also federalist (power is divided between the nation and states and localities) and deliberative (the division of power makes it cumbersome for government to act hastily, which promotes consensus). Ours is fundamentally a system of rules: The rule of law means that everybody agrees to play by the rules written in advance, rather than just throw them out when they lose.
Why was Donald Trump’s course of conduct after the 2020 election such a grave political offense that he should have been removed from office by the Senate and barred from seeking it again? Because the basic deal in a system of rules is that you hold an election, the winner takes office, and the loser accepts defeat. There are rules-based mechanisms for challenging an election’s conduct, but when those are exhausted, neither the vice president nor mobs in the street are empowered to overturn it.
Since 1789, we’ve also had a rules-based system for controlling who sits on the Supreme Court: You win presidential elections, and you get to nominate justices; you win Senate elections, and you get to confirm them; and they serve for life. Since 1869, when we stopped adding to the size of the Court to accommodate the nation’s westward territorial expansion, that system of rules has also included the understanding that the size of the Court is fixed at nine justices.
Now, Biden and Harris want to break that bargain in precisely the same way that Trump did in January 2021: refusing to accept that the current Court was built through the same legitimate democratic system that both parties and all ideological factions have played by since 1869. It may look more decorous because it involves a policy paper rather than a mob — although Democrats and their allies have done their best to sic mobs on the justices, incite protests at their homes, and publish photos of their vacation houses, and even ended up with an armed assassin showing up at Justice Brett Kavanaugh’s house. But make no mistake: Just like Trump’s constant drumbeat of a stolen election building the crescendo to January 6, this is a calculated multifront effort to destroy the legitimacy of the rules-based outcomes of our democracy, in order to overturn those outcomes.
Why We Have Life Tenure
Article III could not be clearer that justices have life tenure. As our recent editorial elaborated:
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.
Moreover, Alexander Hamilton emphasized why it was essential in order to preserve the courts as bulwarks of individual rights:
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.
Limits on the judiciary come not from political accountability but from judicial fidelity to written rules. Hamilton again: “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”
The Biden-Harris Plot
The White House fact sheet on Biden’s proposal claims, in language repeated in a Biden op-ed in the Washington Post:
Congress approved term limits for the Presidency over 75 years ago, and President Biden believes they should do the same for the Supreme Court. The United States is the only major constitutional democracy that gives lifetime seats to its high court Justices. Term limits would help ensure that the Court’s membership changes with some regularity; make timing for Court nominations more predictable and less arbitrary; and reduce the chance that any single Presidency imposes undue influence for generations to come. President Biden supports a system in which the President would appoint a Justice every two years to spend eighteen years in active service on the Supreme Court.
First of all, it’s misleading to say that Congress limited presidential terms; it passed a proposed amendment to the Constitution (requiring a two-thirds majority in both Houses), which was ratified by three-fourths of the state legislatures. It’s also tendentious to compare this to the 22nd Amendment, which restored a norm of two-term presidencies that dated back to George Washington and had just been violated by Franklin D. Roosevelt immediately before the amendment was proposed.
Biden throws in, for good measure, the ridiculous claim that some of the justices are compromised by “conflicts of interest connected with Jan. 6 insurrectionists.” I’ve detailed previously quite how absurd this conspiracy theory is.
This plan should likewise require a constitutional amendment, and nobody should let Biden and Harris pretend otherwise. Article III refers to judges of the “supreme and inferior Courts” as distinct “Offices” (so does Article II, in discussing the appointment of justices), so removing the powers of the justices by any means short of impeachment (such as rotating them to lower courts) amounts to stripping them of their offices. That’s particularly the case for the chief justice, who holds a unique constitutional office.
The fig-leaf theory of bills such as the one introduced last fall by Sheldon Whitehouse — apparently serving as a model for the Biden-Harris plan — is that the more senior justices would technically stay on the Court, but would not get to sit on any but a tiny and insignificant few of its cases:
Only the 9 most recently appointed justices of the Supreme Court of the United States who are not unavailable due to a temporary absence shall preside over appellate jurisdiction cases. . . . All justices of the Supreme Court of the United States shall preside over original jurisdiction cases, and may, subject to any procedures established by the Supreme Court, continue to exercise all other official powers, duties, or responsibilities of a justice of the Supreme Court required by law.
Biden notes that “the United States is the only major constitutional democracy that gives lifetime seats to its high court Justices.” That’s a good thing. We’re America. Our system is the best. Our Constitution has lasted longer than any of the others. Why would we want to imitate the constitutional histories of Germany or France?
There’s nothing in this proposal to suggest that it be prospective only, so the 18-year limit would immediately cause the replacement of Justice Clarence Thomas (confirmed in 1991) and Chief Justice John Roberts (2005), followed by Justice Samuel Alito (January 2006), while giving three more years after that before coming for Justice Sonia Sotomayor (2009). That’s not a coincidence; it’s the whole point, and none of the Democrats are even bothering to conceal that this is aimed directly at changing the Court’s personnel in order to change its rulings. Elizabeth Warren gave the game away, telling CNN, “It can be term limits. It could be adding the number of justices. . . . We have got a Supreme Court that is actively undermining our democracy.” Translation: The method doesn’t matter, only the goal of changing who has the majority.
They played by the rules, they lost, and now they want to overturn the table. Even Trump isn’t running on a proposal to do another January 6. But that’s now the centerpiece of the Kamala Harris campaign.