More than 50 years ago, when President Joe Biden first entered the Senate, he said the Supreme Court went “too far” when it legalized abortion in its Roe v. Wade case. As The New York Times reported, he said a woman should not have the “sole right to say what should happen to her body.”
Today, of course, he has a much different opinion, as he decries the court’s decision to turn abortion rights back to the states.
However, this back and forth is one of the strongest arguments against one of Biden’s latest proposals, which is to establish staggered 18-year term limits for justices of the Supreme Court. Political winds and popular opinion shift over time, but the court should be concerned only with the law.
The heart of Biden’s proposal is his belief, repeated often after recent rulings, that he disagrees with the court’s conservative majority. Too bad. Political disagreements with the nation’s high court are not new. But the nation’s founders designed the judiciary to be independent and as free from political pressures as possible.
That is why justices serve for life. Their concern must be for the law, not political fashion or personalities.
Under Biden’s plan, each presidential term would be guaranteed two Supreme Court appointments. A nomination system that today is rife with politics, protests and posturing would be no less contentious under this system. If the Senate and White House were controlled by opposite parties, the court may have to operate with eight or fewer justices for prolonged periods of time. Ideological majorities could swing back and forth frequently.
As Suzanna Sherry and Christopher Sundby wrote several years ago for Vanderbilt Law School Faculty Publications, the nation needs stability in its judicial decisions. “A Supreme Court that welcomes a new justice every two years, and turns over entirely over the course of every 18 years, could wreak havoc on doctrinal stability,” they said.
Imagine a court that hands down a major policy decision one year, then rescinds it the next. Every sector of the economy from private commerce to government would be unable to make long-term plans under such a scenario.
The United States should cherish the independence of its top court, regardless of which way its justices lean in interpreting law. This is a defining bedrock of liberty. Dictators and tyrants exercise control over their courts in order to silence critics and protect friends. Freedom allows equal protection.
In the United States, justices feel free to follow the law, even if it puts them in league with other justices who typically occupy opposite ideological views. Justice Amy Coney Barrett, a Trump appointee, has done this recently. Chief Justice John G. Roberts, a Republican appointment, chose to uphold Obamacare.
Ultimately, however, the term limit proposal’s biggest drawback may be its built-in irony. President Biden, after 51 years as an elected public servant, now wants to limit justices to 18.
Biden announced two other reform proposals. One is to amend the Constitution to make it clear that presidents have no immunity for crimes committed while in office. This is in response to another recent Supreme Court decision.
That decision, as we said earlier, is a bit of a mess. However, the president, like so many others, fails to address its careful, if troublesome, nuances. The court rejected the notion that a former president cannot be prosecuted at all.
And it’s hard to ignore Roberts’ fears of “an executive branch that cannibalizes itself, with each successive president free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”
Finally, Biden would impose an “enforceable” code of ethics on the Supreme Court. In a Washington Post op-ed, the president said such a code should be binding.
That isn’t likely to be found constitutional by the court upon which he intends to impose it. It’s unlikely one branch of government could bind another by rules of conduct. Justice Samuel Alito told the Wall Street Journal as much, adding, “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
Biden’s proposals have obvious public appeal, given how recent polls have shown broad public disagreement with some recent Supreme Court rulings. They make sense in an election context. However, they are unlikely to become law in today’s political climate.
That’s a good thing. Neither the executive nor the legislative branches should do anything to weaken the independence of the nation’s high court.