Details Remain Scant on Joe Biden’s Supreme Court Overhaul
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On Monday, President Joe Biden and Vice President Kamala Harris called for dramatically restructuring the U.S. Supreme Court but provided almost no details about how they would implement the proposal. Several senators told The Dispatch this week that they were not sure exactly what the president and vice president had in mind.
“I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court,” Biden wrote in a Washington Post op-ed. “President Biden and I are calling on Congress to pass important reforms—from imposing term limits for Justices’ active service, to requiring Justices to comply with binding ethics rules just like every other federal judge,” Harris said in a statement.
Most scholars have argued that term limits may only be imposed on Supreme Court justices via constitutional amendment because the Constitution states that all justices and federal judges “shall hold their Offices during good Behaviour”—meaning that Supreme Court justices must serve until death or resignation if they aren’t removed by the impeachment process. Spokesmen for the Biden White House and the Harris presidential campaign, however, did not respond to requests for comment from The Dispatch about whether they are proposing Supreme Court term-limits via amendment or statute.
Their statements implicitly suggest they’re open to the latter. Biden in his op-ed explicitly called for a constitutional amendment to address the Supreme Court’s ruling on presidential immunity, but included no such caveat on his term-limit proposal. Harris’ statement similarly treats the immunity question as separate from her call for “Congress to pass important reforms” on term-limits and ethics and recusal legislation.
And how would their proposal of 18-year-term limits affect sitting Supreme Court justices? Biden’s op-ed, Harris’s statement, and a White House fact sheet do not say, and Biden and Harris spokesman again did not respond to requests for comment from The Dispatch.
Three sitting justices—Clarence Thomas, John Roberts, and Samuel Alito—already have 18 years of service or more under their belts, but the term-limit bill that already has the backing of eight Senate Democrats and a panoply of progressive groups wouldn’t immediately deem those justices retired. The “Supreme Court Biennial Appointments and Term Limits Act” was introduced in 2023 by Rhode Island Sen. Sheldon Whitehouse, chair of the Judiciary Subcommittee on Federal Courts, and three other Democratic senators on the Judiciary Committee. It would allow presidents to appoint, by and with the advice and consent of the Senate, a new Supreme Court justice in the first and third years of a presidential term. Only the nine most recently appointed justices would be allowed to vote in almost all important cases—those under appellate jurisdiction—while all justices would vote in the few cases where the Supreme Court has original jurisdiction. In other words, if the bill were enacted tomorrow, the winner of the presidential election would be able to effectively replace Justice Clarence Thomas in 2025 and Chief Justice John Roberts in 2027.
The bill as written would take effect after an intervening presidential election, so a President Harris and Democratic Senate wouldn’t immediately get to replace justices if the bill were enacted in 2025. But there’s no guarantee from the Harris campaign or Senate Democrats to keep that provision.
“A lot of these details for me are open to negotiation,” New Jersey Sen. Cory Booker, an original sponsor of the bill, told The Dispatch on Tuesday. “We’re trying to make this a bipartisan bill. Right now, it’s not.”
“We were actually excited to see them draw from the work that me, [California Sen. Alex] Padilla, Whitehouse, and [Connecticut Sen. Richard] Blumenthal have done,” Booker said. While the White House kept Judiciary Committee Chairman Dick Durbin and top House Judiciary Committee Democrats in the dark about its proposal, Whitehouse told the Washington Examiner last week that he was “in touch” with the Biden White House.
The legislation has no chance of passing Congress with a Republican House, and the term-limit proposal would need to overcome some skepticism even in a unified Democratic Congress. “I think it has to be a constitutional change. The Constitution says they should serve [during] ‘good behaviour,’” Maine Sen. Angus King, an independent who caucuses with the Democrats, told The Dispatch. Delaware Democratic Sen. Chris Coons, meanwhile, was more circumspect. “My superficial response is that term limits would require a constitutional amendment, but I don’t know that,” he told The Dispatch. “And as a lawyer, one of the things I’ve learned is don’t answer if you don’t really know, so please mark me down as looking into it.” Democratic Sens. Bob Casey of Pennsylvania, Jeanne Shaheen of New Hampshire, and Catherine Cortez Masto of Nevada all said they were undecided. “We’re going to look at all of them,” Senate Majority Leader Chuck Schumer said of Biden’s proposals in an interview with Politico on Wednesday. “We’re going to look at all the various proposals.”
Advocates of the bill contend it is constitutional because the Constitution states that “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
“We don’t need a constitutional amendment for that because we can by law set the various criteria for the Supreme Court,” Hawaii Democratic Sen. Mazie Hirono, an original cosponsor of the term-limit bill, told The Dispatch.
In December 2021, the Biden-convened Presidential Commission on the Supreme Court noted in its final report (see pages 137 and 138) that critics of an “original/appellate jurisdiction” term-limit proposal contend that “Congress’s statutes must comport with the Good Behavior Clause and the Appointments Clause” and that “everyone who holds the office of ‘Judge of the supreme Court’ must be able to participate in substantially all of the Court’s final decisions.” The report notes that critics argue that the regulations clause “allows Congress to decide what appeals the Court can hear, but not who hears the appeals.” While the Constitution states that “[t]he judicial Power of the United States, shall be vested in one supreme Court,” critics contend the appellate/original jurisdiction scheme effectively creates two Supreme Courts. Furthermore, as legal scholar Adam White, a member of the commission, wrote at The Dispatch earlier this week, if Congress has the power to strip senior justices of their ability to decide important cases, Congress could play a number of games to strip disfavored justices of their power.
Supreme Court term-limit legislation has already drawn fire from moderate GOP senators. Amid news reports last week that Biden was set to release various “reforms” of the Supreme Court, Utah Sen. Mitt Romney told the Washington Examiner: “It’s a separate branch. Keep the nose of Congress and the administration out of it.”
“Term limits politicize the court and compromise its independence,” Maine Sen. Susan Collins told The Dispatch on Tuesday. “It treats judges as if they were members of the Senate or some other legislative body. That’s not their job.”
