President Joe Biden is a patient man, with an abiding respect, bordering on reverence, for American political institutions.
For the first three-and-a-half years of his presidency, Biden cautiously avoided confronting the Supreme Court. Only recently has he come forward strongly in support of court reform, including a proposal for Supreme Court term limits.
It is an excellent idea, but it doesn’t go far enough.
Even as the court’s right-wing super-majority, with scant concern for its own precedents, ran roughshod over voting rights, gun control, reproductive rights and regulatory protection of the environment, Biden refrained from embracing reforms, essentially shelving the report of his own presidential commission on court reform.
On the last day of the just-concluded term, however, the six conservative justices delivered an opinion declaring former presidents, and specifically former President Donald Trump, almost totally immune from prosecution for criminal acts committed while in office.
That decision, which was ungrounded in the Constitution’s text and staggering in its implications, spurred Biden to action. In addition to term limits, Biden’s proposals include a constitutional amendment eliminating presidential immunity, and a binding code of conduct for the Supreme Court.
As others have pointed out, none of these reforms will be adopted in the current political climate. But even if implementation were to begin tomorrow, the Biden proposals would do little or nothing in the short term to blunt the impulses of the court’s conservative majority, half of whom were appointed by Trump, and all of whose jurisprudence just happens to align with the positions of the Republican Party.
There is no telling how much damage the current Supreme Court majority could do in the years it would take for term limits to become effective. The court has already signaled an intention to neuter the federal administrative agencies in charge of health and safety. That is why court expansion is the most important and effective possible reform.
Unlike the imposition of term limits — which might or might not require a constitutional amendment — court expansion could be accomplished by statute. The Constitution unambiguously gives Congress authority to determine the size of the Supreme Court, which has varied between five and 10 justices over the years. The current number, set in 1869, is traditional but not immutable.
Opponents of court expansion derisively call it “court-packing,” arguing that it would violate constitutional norms. In fact, the current court has already been packed, thanks to then-Senate majority leader Mitch McConnell’s (R-Ky.) norm-defying manipulation of two nominations.
McConnell first blockaded President Obama’s nomination of Merrick Garland, following the death of Justice Antonin Scalia, declining even to set it for a committee hearing. McConnell then rushed through Trump’s nomination of Justice Amy Coney Barrett after the death of Justice Ruth Bader Ginsburg, even though voting had already begun in the 2020 election that Trump was about to lose.
Without those two stolen seats, there would be no Republican majority on the Supreme Court today, which is reason enough to justify court expansion under a Democratic president. (Disclosure: My daughter is president Take Back the Court, which advocates court expansion.)
The pejorative term “court-packing” dates back to President Franklin D. Roosevelt’s 1937 plan to expand the Supreme Court. Frustrated by the court’s invalidation of crucial New Deal programs, he proposed a bill that would have expanded the court to a maximum of 15 by adding one seat for every justice over the age of 70.
Within weeks of Roosevelt’s proposal, as one court historian put it, “the Supreme Court began to change course” on New Deal legislation. The famous “switch in time that saved nine” eventually “took the air out of the court-packing balloon,” and Roosevelt’s legislation was defeated in Congress.
Although it has not fared well in historical memory, Roosevelt’s plan was actually quite thoughtful. It addressed the problem of an aging and out-of-step judiciary by adding seats one at a time, without imposing retirement on the sitting justices due to age or term limits.
Roosevelt’s political motivation was obvious, of course, but the legislation’s long-run effect would have been nonpartisan. Everyone gets older, after all, and both Democratic and Republican presidents would have been able to add seats to the court.
Of the nine justices appointed by Roosevelt, including one chief justice, five served beyond the age of 70. Three of the additional nominations would have been made by Republican President Dwight Eisenhower.
In less polarized times, a Roosevelt-style expansion plan ought to attract both Republicans and Democrats, but that is not the age we live in. Republicans are loath to risk giving up what they see as a locked-in judicial advantage. Speaker of the House Mike Johnson (R-La.) called Biden’s proposals “dead on arrival,” before he had even seen the legislative package.
Given Republican intransigence, the quest for Supreme Court restructuring will require a long-range strategy. With that in mind, it makes less sense to pursue only half-measures such as term limits. Effective court reform demands court expansion, however designed, and the time to begin laying the groundwork is now.
Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law.