Tuesday, November 23, 2021
President Biden’s Supreme Court Commission recently offered a public preview of its recommendations for Supreme Court reform, with their final report due next month. The Commission’s early work showed deep division over adding new Justices to the Court, but wider support for judicial term limits—even if the process of enacting such limits remains unclear. The same might be said of Americans more broadly. Recent polling shows little public appetite for appointing additional Justices to the Court, but a more evenly divided opinion on term limits for the Justices.
The Commission’s alignment with public opinion may be welcome news for the Biden administration, even though it was likely unintentional. The Commission is largely comprised of legal scholars with long histories of analyzing and critiquing the Court’s work. The group is at least somewhat ideologically diverse, including members who would apply a more originalist interpretive method to constitutional issues, though such views are in the minority. But few of the Commission’s members have long experience in public policy or legislation. And many have proposed similar term limits in their past academic work, suggesting that the alignment with public opinion is accidental rather than intentional.
The Commission’s preview suggests a path to Supreme Court reform that does not threaten the judiciary’s institutional integrity as much as a court packing plan would. Court packing is a purely partisan game that can be played by members of both parties. Once the floodgates to court packing are open, there is little to stop additional efforts by future administrations of any ideological stripe to alter the makeup of the Court. Even if the public’s opinion of the Court has rapidly soured in recent years, a step as drastic as court packing seems likely to further undermine the Court’s legitimacy. Adding members may even impede the Court’s ability to hear cases in the short term as a shifting (and growing) cast of Justices is added to the bench by administration after administration.
Term limits hold more promise as a subtler method to moderate the Court’s ideological swings without all-out partisan warfare. Once phased in, term limits would allow subsequent administrations a relatively even and predictable number of appointments to the highest court. Term limits have the potential to lower the partisan temperature over the appointments process, simply by precluding political parties or retiring Justices from gaming the appointment process to ensure that new members have a specific ideological view. Much must still be worked out, including how to stagger the terms to allow seats to open regularly during every administration; how to phase the limits in with the existing members of the Court; how to handle unexpected changes in the Court’s membership due to illness or death; and whether changes can be made legislatively or only through constitutional amendment. But term limits at least offer the possibility of a more moderate shift in the way the Court does business.
Term limits might also provide the Biden administration a path to cathartic action on an important topic for many Democratic constituents that is less drastic and divisive in the eyes of the broader public. The administration and the Commission may hope that term limits are perceived as an important and necessary action to rebalance the Court’s ideological skew, but a slow-building one that will only reduce ideological polarization over the course of generations. Would such a plan be enough to mollify the Democratic base? Much might depend upon the outcome of particularly charged cases this term, including the challenge to Roe v. Wade that the Court will hear next month in Dobbs v. Jackson Women’s Health Organization. That outcome may ignite the push for more drastic reform as an immediate response. The alignment between public opinion and the Commission’s views might thus be short-lived. If the administration hopes to act on less-dramatic reforms like term limits, the best time may be now.