Thomas B. Griffith and David F. Levi are former federal judges and served on President Biden’s Commission on the Supreme Court of the United States.
Federal judges are not politicians. They do not identify with political parties or the president who appointed them. Judges are human, though, and some may occasionally fall short of strict political impartiality. But in our experience, the overwhelming majority of judges — who may have different life experiences and different points of view — go to extraordinary lengths to be fair adjudicators.
The impartiality of judges and courts, including the Supreme Court, was evident last year in their handling of the many lawsuits brought by then-President Donald Trump’s campaign after the 2020 election. Judges across the country, including Trump appointees, dismissed or turned away these cases.
Not surprisingly, among the three branches of government, the judiciary is the most trusted by the public. Americans know that many of the rights and liberties they cherish have been safeguarded by the Supreme Court in its sworn duty to support and defend the Constitution. The nation’s courts are admired across the globe — aspiring democracies look to the United States’ independent judiciary as the model for their own courts and as an essential pillar of democracy. They know that the rule of law depends upon an independent judiciary.
It is against this background that the Supreme Court commission was created. Because we and our fellow members examined reforms proposed by the court’s critics, it would be easy for readers of the report to lose sight of the fact that the institution under review is one of the most, if not the most, effective and admired in the nation.
Any proposal to change the role or structure of the court that fails to take into account its historic success in preserving the rule of law falls short of the mark. We are wary of such proposals, especially those assuming that judging is little more than a political act to advance favored interests. Such proposals misapprehend the role of a judge under the Constitution and undermine public confidence in the Supreme Court and the judiciary generally.
It is because of our confidence in the United States’ constitutional framework that we adamantly oppose term limits and court-packing.
Term limits, by providing each president with two Supreme Court appointments in every four-year presidential term, would risk enmeshing the appointments in the presidential election cycle, further politicizing the appointment process.
It seems possible, even likely, that presidential candidates would announce their Supreme Court choices as part of the campaign, turning potential nominations into political fodder. Another drawback: The constant turnover of justices, the spectacle of confirmation hearings every other year and the shorter terms in office would likely reduce the court’s stature and the stability of legal doctrine, while impairing justices’ efforts to remain above the partisan political fray.
In Federalist 78, Alexander Hamilton described permanency in office as an “indispensable ingredient” in the judiciary. It would be rash to surrender this protection of judicial independence in the pursuit of uncertain and limited benefits.
We are even more distrustful of court-packing. Ever since President Franklin D. Roosevelt in 1937 tried but failed to pack the Supreme Court with justices loyal to his agenda, a consensus that such a move is destructive to the judiciary has discouraged further attempts. This is why Americans oppose the idea and why autocrats around the world embrace it.
The impartial judge is the Constitution’s ideal, and from our experiences as federal judges we can happily report that it is also the norm, even if critics of individual decisions might think otherwise. Court-packing would seriously damage that norm. Once the norm is violated, it seems likely that court-packing by one political party would lead inevitably to further court-packing by the other party in an endless round of reprisals. That would spell the end of the Supreme Court as Americans know it.
In this fractious time, it is especially important to take the long view and not irrevocably alter a precious linchpin of democracy by undertaking reforms in the heat of the moment. Democracies may be fragile, but they gain strength and resilience from the rule of law and an independent judiciary.