President Joe Biden is a patient man with an abiding, almost reverential, respect for the American political institution.
In the three and a half years since he took office, President Biden has carefully avoided confrontation with the Supreme Court.come forwardI strongly support court reform, including proposed Supreme Court term limits.
It’s a great idea, but it’s not enough.
The Supreme Court’s right-wing majority cares little about its own precedents; Voting Rights, gun Control, Reproductive Rights and Regulation protection of environmentBiden has refrained from embracing reforms, essentially shelving his report. Presidential Commission Regarding court reform.
But on the final day of the just-ended term, the six conservative justices ruled that former presidents, particularly former President Donald Trump, had been largely Completely immune They are immune from prosecution for crimes committed while in office.
The decision, which has no basis in the Constitution and is shocking in its implications, has spurred Biden to act, whose proposals include term limits, a constitutional amendment to eliminate presidential immunity and a binding code of conduct for the Supreme Court.
As others have said pointed OutsideIn the current political climate, none of these reforms are likely to be adopted. But even if they began to be implemented tomorrow, Biden’s proposals would likely do little or nothing in the short term to blunt the impulses of the Supreme Court’s conservative majority, half of whom were appointed by Trump and whose jurisprudence all happens to align with Republican positions.
It remains to be seen how much damage the current majority will do in the years before Supreme Court term limits take effect. The Court has already signaled its intention to cripple federal health and safety agencies. That is why expanding the Supreme Court is the most important and effective reform.
Unlike the introduction of term limits, Might be Or maybe not. I need Through constitutional amendment, expansion of the court can be accomplished by law. The Constitution explicitly gives Congress the power to determine the size of the Supreme Court. Diverse The number of justices has varied over the years between five and ten. The current number, established in 1869, is traditional but not set in stone.
Opponents of court expansion scornfully call it “court proliferation.” Constitutional normsIn fact, the current Supreme Court is already full, thanks to then-Senate Majority Leader Mitch McConnell (R-Ky.)’s botched nominations.
McConnell First Blocked McConnell refused to even set a committee hearing for Judge Merrick Garland, President Obama’s nominee following the death of Justice Antonin Scalia, and then he rushed to confirm Judge Amy Coney Barrett, Trump’s nominee following the death of Justice Ruth Bader Ginsburg, even though voting had already begun in the 2020 election that Trump was likely to lose.
Without those two seats flipped, we would not have a Republican majority on the Supreme Court today, which is reason enough to justify expanding the court under a Democratic president. (Disclosure: my daughter is the president.)Get your coat backAdvocate for expansion of the courts.
The derogatory term “court expansion” comes from President Franklin D. Roosevelt’s plan to expand the Supreme Court in 1937. Invalidation He was the author of a number of key New Deal policies. was suggested One invoice The bill would expand the Supreme Court to a maximum of 15 judges, adding one seat for each justice over the age of 70.
A few weeks after Roosevelt’s proposal, a court historianput itIn 1940, “the Supreme Court began to change course on New Deal legislation.” The famous “quick change of course that saved the nine” ultimately “deflated the court expansion balloon,” and Roosevelt’s legislation was defeated by Congress.
Though historically it has not been a great success, Roosevelt’s plan was actually quite sensible: it addressed the problems of an aging and antiquated judiciary by adding one seat at a time, rather than forcing sitting justices to retire through age or term limits.
Of course, Roosevelt’s political motivations were clear, but the long-term impact of this bill would have been bipartisan: everyone gets older, after all, and both Democratic and Republican presidents could have added seats to the Supreme Court.
Of the nine justices appointed by President Roosevelt, five, including one Chief Justice, served past age 70. Three of the additional nominations were to be made by Republican President Dwight Eisenhower.
In less polarized times, a Roosevelt-style expansion plan would appeal to both Republicans and Democrats, but that’s not the time we live in. Republicans don’t want to risk giving up their entrenched judicial advantage. House Speaker Mike Johnson (R-Louisiana) called Biden’s proposal “a scam.”Dead on arrival“I said this,” he said, before even looking at the bill.
Given Republican stubbornness, reshaping the Supreme Court will require a long-term strategy. In that light, pursuing only half-measures like term limits makes little sense. Any plan for effective court reform requires expanding the court, and now is the time to start laying the groundwork.
Steven Lubet is Williams Memorial Professor Emeritus at Northwestern University Pritzker School of Law.
