Oddly enough, Joe Biden managed to form this opinion all on his own without forming a “presidential commission.” That’s a cheery change of pace from the man who served as Senate Judiciary chair for eight years and on the committee itself for decades. Forty-seven years inside the Beltway finally pays off!
This one has bounced around social media, but it means far less than it seems. For one thing, Biden would be running for the wrong office if he wanted to impose term limits on the Supreme Court. One might even think that someone who served on the Judiciary Committee for that long could even have pointed this out to the media, but alas:
WATCH: "It's a lifetime appointment. I'm not going to attempt to change that at all."
— PBS NewsHour (@NewsHour) October 26, 2020
Democratic presidential nominee Joe Biden said Monday he opposes term limits for Supreme Court justices amid the controversy over Amy Coney Barrett’s nomination.
“No. There is a question about whether or not — it’s a lifetime appointment. I’m not going to try to change that at all,” Biden told reporters during a brief campaign stop in Chester, Pa., near his home in Wilmington, Del.
But some Democrats are eager to see court reforms as President Trump prepares to have his third nominee to the Supreme Court confirmed.
Rep. Ro Khanna (D-Calif.) recently unveiled a bill to cap tenures for justices at 18 years.
Why won’t Biden support SCOTUS term limits? Because he can’t do anything about it — even with a presidential commission. Presidents can’t change the lifetime-appointment status for federal judges, nor can Congress, at least not by statute. It would take a constitutional amendment to change Article III, Section 1, which establishes that judges “shall hold their Offices during good Behaviour,” which means lifetime appointments unless impeached and removed by Congress. Congress can pass a proposal to amend the Constitution (Article V) and send it to the states, but 38 states would have to ratify it — and the president plays no formal role in any of that process.
The Khanna bill Biden references here would attempt an end run around Article III Section 1. Khanna wants to set up rotating 18-year terms for the Supreme Court, at the end of which the justices will get assigned to a lower-level federal court and the current president could then appoint a new justice. That would eliminate the need for an amendment, at least theoretically, by leaving those justices with lifetime appointments in the judiciary generally. Even if that passed, however, it’s likely to get challenged by either the states or one or more federal judges, challenges which will focus on the clear phrase “their Offices” — ie, the specific office to which they were appointed. Something tells me that federal judges might be very flexible on standing in such a challenge, and it would be the Supreme Court which would end up settling the matter.
Take a look at the current court, with four originalists and at least two center-right institutionalists, and maybe even one or more of its liberal wing. Try to guess how well Khanna’s end run around Article V and the role of states in restructuring one of the co-equal branches of government will fare. A 6-3 loss would be the best Khanna could expect, and I’d say it has a fair shot at a 9-0 trouncing.
That’s why court packing is actually easier to accomplish than term limits, legally speaking if not so much politically speaking. Congress could push it through by statute, which then puts the president on the spot. Not too many would veto an opportunity to appoint four Supreme Court justices, or however many Congress sees fit to add. Biden knows this, too, which is why he’s answering the pointless term limits question rather than deal with the court-packing issue that his own party keeps raising. It’s an easy way to look reasonable without committing to anything at all.
The best way to lower the heat on Supreme Court appointments is to dial down their ability to legislate from the bench. Ironically, appointing originalists would accomplish that, as that discipline produces the most modest approach to application of the Constitution and statute (called “textualism” in statutory matters) in judicial review. It sticks to the plain text of both as understood at the time of their passage or ratification rather than deal with intent, changing definitions, or emanations and penumbras. That forces Congress and the states to either amend the Constitution properly when necessary or to deal with issues outside of the statutes and Constitution in other ways, rather than simply dictate outcomes from the bench. That would almost entirely eliminate the partisan rancor around the judiciary. Amy Coney Barrett is actually a step in the right direction.
Or perhaps we could revisit the entire idea of judicial review, starting with the court’s biggest super-precedent. Jonathan Fischbach argued yesterday that we need to jettison Marbury v Madison and return control back to the legislature:
Every American history student learns that Marbury v. Madison established the Supreme Court’s authority to invalidate a law it deems incompatible with the Constitution, a power referred to as judicial review. The textbooks tend to present Marbury as a morality play where Chief Justice John Marshall is the hero, Congress is the villain, and the judiciary emerges as the avatar of the Founding Fathers, fiercely defending the Constitution against incursions by legislative barbarians attempting to dismantle the architecture of American democracy.
This depiction of Marbury lionizes a power grab that has enabled the Supreme Court to function as the oracle of the Constitution for over 200 years. In recent decades the Supreme Court has wielded its authority as the ultimate decider of constitutionality with troubling frequency, dictating the federal government’s approach to a wide array of social policy issues like abortion and gay marriage that fuel the country’s partisan divides.
The only thing more extraordinary than Marbury’s durability over more than two centuries is its status as holy writ. Nothing in the Constitution gives the Supreme Court the power of judicial review or implies that the Court should be the ultimate decider of which laws are constitutional. The Founders who advocated judicial view famously perceived the judiciary as the “least dangerous” branch of government; they believed it could do little to influence executive or legislative activity and would channel the will of the people more faithfully than the other two branches. This vision of the Supreme Court differs so dramatically from the modern reality that the original case for judicial review — crystallized by Alexander Hamilton in Federalist No. 78 — actually undercuts the rationale for judicial review today.
But the debate over Marbury shouldn’t be waged on historical grounds. Our recent history suggests that the Supreme Court’s primacy on constitutional questions isn’t just a byproduct of Congress’s disorganization—it contributes to the deterioration of the legislative process and the erosion of norms and restraints in the executive branch. If so, the prevailing consensus is backwards—the Supreme Court isn’t too powerful because Congress is too ineffective; Congress is ineffective in part because the Supreme Court is too powerful.
I tend to agree with Fischbach on his description of the status quo, but perhaps not so much on his prescriptions on how to solve the problem. Appointing activist jurists is the key problem, justices and judges who think their role is to solve people’s problems rather than apply the law. That is a relatively recent development, as Fischbach notes, not necessarily an inherent flaw in Marbury’s impact. Frankly, it’s difficult to trust Congress in keeping its own constitutional check on its excesses, especially after the passage of the 17th Amendment, in which the Senate became another expression of popular will rather than a mechanism for the states to check the power of Washington and populist passions.
If we could pass two amendments — one proscribing judicial review and the other repealing the 17th Amendment — that might be a deal with which we could fix all of those issues. Fischbach’s argument is well worth the read, however.