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Biden’s Thorny Options for Changing the Supreme Court

Sunlight illuminates the doors of the U.S. Supreme Court building during the Senate Judiciary Committee hearing for Amy Coney Barrett in Washington, D.C., U.S., on Wednesday, Oct. 14, 2020. Senate Democrats entered a second day of questioning Barrett having made few inroads in their fight to keep her off the Supreme Court and elicited few clues about how she would rule on key cases. Photographer: Stefani Reynolds/Bloomberg
Sunlight illuminates the doors of the U.S. Supreme Court building during the Senate Judiciary Committee hearing for Amy Coney Barrett in Washington, D.C., U.S., on Wednesday, Oct. 14, 2020. Senate Democrats entered a second day of questioning Barrett having made few inroads in their fight to keep her off the Supreme Court and elicited few clues about how she would rule on key cases. Photographer: Stefani Reynolds/Bloomberg (Bloomberg)
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By overturning the abortion-rights decision Roe v. Wade, the Supreme Court’s conservative majority has added fuel to calls among some Democrats to change the court itself. Some want President Joe Biden to pursue the idea of expanding, or “packing,” the court beyond its current nine seats. Others would replace the life tenure of Supreme Court justices with fixed terms to guarantee each president has equal opportunity to shape its makeup. In December, a commission appointed by Biden reported back on these ideas, among others. By all indications, Biden seems unenthusiastic about pursuing such radical steps. 

1. Why is this being debated?

Frustration among Democrats has risen since 2016, when the death of Justice Antonin Scalia, a conservative, gave Democratic President Barack Obama the opportunity to move the court to the left. But Senate Majority Leader Mitch McConnell, a Republican, refused to consider Obama’s nomination of Merrick Garland, on the grounds that a vacancy shouldn’t be filled during a presidential election year. So it was Republican Donald Trump, rather than Obama, who wound up filling the vacancy, with Neil Gorsuch. Fast forward to 2020. A seat opened up just six weeks before Election Day with the death of Ruth Bader Ginsburg, one of the court’s leading liberal voices. In that case, Republicans rushed to confirm Justice Amy Coney Barrett, bolstering the court’s conservative majority. Ultimately, Trump’s nominees supplied the votes needed to overturn Roe v. Wade.

2. What has Biden done?

He appointed a commission to study possible changes to the court, including term limits and more seats. Its report, released in December 2021, detailed the arguments for and against several suggested changes, including term limits and adding more seats to the court, but stopped short of making any recommendations for what Biden should do. In 2020, while a candidate for president, he ruled out term limits for justices, saying, “It’s a lifetime appointment. I’m not going to attempt to change that at all.” He also said he’s “not a fan” of court-packing, which years ago he dismissed as “a bonehead idea.” To Americans angry about the Supreme Court’s composition and rulings, Biden’s response has been that they should elect more Democrats to Congress.

3. Isn’t the court’s size and justices’ tenure set in stone? 

The Constitution’s command that justices “hold their Offices during good Behaviour” has been interpreted to mean justices, like other federal judges, enjoy life tenure. That’s why many legal scholars, including some that support structural changes, say term limits would require passing an amendment to the Constitution, a difficult and rare feat. The number of seats, by contrast, has changed through the years. The Judiciary Act of 1789 created a six-member court. President John Adams tried but failed to shrink the court to five. For a time, the number of justices rose with the number of circuit courts, rising to a high of 10 in 1863. Congress reduced the number to seven in 1866, to deprive President Andrew Johnson of appointments, then raised the number in 1869 to nine, where it’s held ever since. 

4. When did ‘court packing’ become an issue?

In 1937, President Franklin D. Roosevelt, a Democrat, proposed expanding the size of the court due to resistance to his policies by a conservative majority. He faced opposition within his own party, and the push to add seats lost steam after the Roosevelt administration landed on the winning side of three court decisions. The shift of one conservative justice in those cases went down in history as the “switch in time that saved nine” -- meaning, it saved the nine-member size of the court -- though whether that was his motivation has long been debated. 

5. What would it take to expand the court?

Because the Constitution is silent on the court’s size, expanding it could be done through the regular legislative process by which all laws are made. But that means Democrats would need a supermajority of 60 votes in the Senate (where they control just 50 votes currently) or would have to do away with the filibuster, the unwritten Senate practice that requires 60 votes to pass major legislation. On the question of killing the filibuster, Democrats are not united.

6. How would term limits for justices work?

Term limit proposals have been around since at least the 1970s, but they’ve gotten new currency over the last five or 10 years due to people “becoming dissatisfied with the court,” said Suzanna Sherry, a law professor at Vanderbilt University who studies constitutional law. There are a number of possible ways to structure term limits. The leading proposal would create staggered, 18-year terms, which would mean that every president would get to nominate two new justices each four-year term. Even if enacted, term limits would take decades to take full effect, since they wouldn’t apply to justices sitting at the time the change was implemented. 

7. What would term limits accomplish?

Proponents argue that term limits would lessen the stakes of any given nomination, make the selection process more predictable by ensuring that each president gets approximately the same number of nominations during the course of a term, and ensure the selection process isn’t a product of happenstance caused by a justice’s death or retirement. Term limits also could reduce the incentive a president might have to appoint younger justices, prevent justices serving into their older years, and make the court more democratic, said Daniel Epps, a law professor at Washington University in St. Louis, who co-authored a paper on how term limits might be designed. 

8. What’s the case against term limits?

That they would undermine the independence of the justices, the bedrock of the American judicial system. The purpose of life appointment is to remove external and political pressures on the justices so that they can make the correct, though not necessarily the most popular, decisions. Some scholars say constant changes could also lead new justices to overturn the court’s precedents on hot-button issues like abortion. Term limits “would lead to instability and unpredictability in the law,” said Sherry, who co-authored a paper exploring how having term limits for justices would have impacted the court’s Roe decision over the years. 

9. What would it take to impose term limits on justices?

At least some scholars see a possible way to get around the very high bar of trying to amend the Constitution. In this view, term limits could be implemented by traditional legislation so long as it gives justices the right to take “senior status” once their term is up, meaning they wouldn’t continue to hear high court cases, but could still hear cases on lower federal courts or assist the judiciary in other ways. That is a distinct minority view among legal experts who have weighed in on the issue, Epps said.

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