But public trust in the courts is already crumbling, mostly because the way Republicans have staged their judicial takeover — by aggressively holding up President Obama’s lower-court appointments, blocking his nominee Merrick Garland, and then watching the man who lost the 2016 popular vote appoint a series of fanatics — is so egregiously in violation of the Constitution’s spirit as to call the whole arrangement into question. Indeed, nothing could be more damaging to the long-term legitimacy of the federal courts than having the next Democratic administration hampered at every turn by an activist court majority that clearly does not represent the majority of Americans.
Many who object both to recent Republican behavior and court packing float an alternative idea: term limits. One popular (and smart) proposal, from a group called Fix the Court, would cap service on the Supreme Court at 18 years and grant each president the right to appoint a justice in the first and third year of each term. And while this is clearly the better way to end the court wars, it also wouldn’t feel much different than tit-for-tat escalation. If the presidency changes hands as frequently as it has over the past generation, partisan control of the court might flip every four or eight years, just as it would under the theoretical runaway retaliation scenario. In fact, the court would probably change hands more frequently under term limits, since escalation requires the aggrieved party to seize unified partisan control of the federal government in order to fully respond in kind.