The Case Against Biden’s Supreme Court Proposal

Even more dangerous than the politics of Biden’s Supreme Court–reform proposal is the escalating attack on American institutions that it represents.

First, here are four new stories from The Atlantic:

Cautionary Notes

Many progressives are cheering Joe Biden’s proposal to reform the Supreme Court. But perhaps they should pause for a moment and ask themselves: How would they feel if it was Donald Trump, as part of his 2025 agenda, who was proposing a dramatic change to the composition and independence of the Supreme Court? What if it was Trump—and not Biden—who announced that he had a plan to effectively prevent the most experienced justices from being able to make decisions of import on the Court, and periodically replace them with new appointees? I think it’s safe to say that the hair of liberal-leaning observers would be on fire, and that reaction would be justified. The danger to the constitutional order and the rule of law would be obvious. So, as Biden and Kamala Harris embrace a new plan to reform the Court, some cautionary notes are in order—on both the substance and the politics of the proposal.

Biden himself has been reluctant to embrace Court reform and, for years, resisted progressive demands that he pack the Court or try to change the justices’ lifetime tenure. But as the Court’s conservative majority has flexed its muscles, overturned precedents, and flouted basic standards of ethics, progressive pressure to do something seems to have forced Biden’s hand.

Biden is now proposing—and Harris has endorsed—a constitutional amendment that would overturn the Court’s grant of sweeping presidential immunity; he is also proposing an enforceable ethics code, and an 18-year term limit on justices. Under this system, “the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court,” Biden wrote in aWashington Post op-ed. Realistically, none of those reforms is likely to pass in Congress, so for the moment at least, the Biden-Harris proposal is merely election-year campaign messaging. But it also reopens a constitutional Pandora’s box.

On the surface, the proposal for term limits seems somewhat anodyne, and polls suggest wide support for the idea. Indeed, if the limits applied only to future appointees, it would be a salutary fix to the judicial gerontocracy we have now. But that is not necessarily how Biden’s proposal would work. Instead, one common interpretation of Biden’s 18-year-term-limit plan—for which Democratic legislation has been pending in Congress since last year—attempts an end run around the Constitution’s grant of lifetime tenure by creating a new status of “senior justice.” Every new president would automatically get to appoint two new justices, and only the nine most recently confirmed justices would be able to hear cases on appeal (which constitute the majority of the Court’s work). The “senior justices” would remain on the Court, but—starting with Clarence Thomas, John Roberts, and Samuel Alito—they would be effectively judicially neutered.

This idea feels too clever by half. Adam White, who was appointed in 2021 to the commission Biden created to study the Supreme Court (and is a friend of mine), explained to me yesterday that, in his view, the senior-justices proposal is simply court-packing by another name. In 1937, Franklin Delano Roosevelt famously tried to pack the conservative Court by expanding its numbers, but he failed to get Congress’s support. (He wasn’t the first president to tinker with the Court. During the Civil War, Congress gave Abraham Lincoln a 10th justice, and the number has fluctuated over time.)

In 2005, Biden—then a senator—forcefully denounced Roosevelt’s ill-fated court-packing scheme as a power grab that brought to mind the warning “Power corrupts, and absolute power corrupts absolutely.” But, White told me, Biden’s proposal is in some ways “even worse, because we are kicking people off the Court.” In an article for The Dispatch earlier this week, White explained that the new system would “strip current justices of their constitutional responsibilities and transfer those powers to successors, one justice at a time.” “If anything,” he argued, “the new proposals for disempowering ‘senior’ justices are even more aggressive than the original version of court-packing: FDR tried to add new justices, but he never even attempted to nullify current justices.”

The proposal also supercharges the politicization of the Court (which is already far along). Guaranteeing that every new president gets to appoint two justices, White argued, “would officially make the court a new kind of presidential election ‘spoils’ system.” Although progressives would regard the defenestration of Clarence Thomas as an answer to their prayers, White writes that it is a dangerous ploy, especially in “our era of retributional politics.” He says there’s nothing to stop reforms to the Supreme Court from turning into an escalatory tit for tat depending on who happens to be in power. “If you add three justices, the next guy adds five,” White warned me.

A MAGA-fied Congress, for example, could simply reverse the Biden reforms by empowering the most senior justices and “stripping power from the newer justices.” Trump and a GOP Congress could theoretically even pass legislation requiring justices who have served 15 years on the Court to take a four-year “sabbatical” from ruling on constitutional appeals. As White puts it: “So long, Justices Sonia Sotomayor and Elena Kagan.” Then the next administration could show up after Trump and take their own revenge—and again, and again, and again.

This proposal is also politically damaging for the Democrats, who have made the protection of institutions, norms, and the rule of law central to their case against Trumpism. They risk losing that high ground by pushing a constitutionally questionable court-packing scheme. The Wall Street Journal editorial board is already denouncing the proposal as “an assault on judicial independence and the constitutional order.” The post-constitutional GOP is using this moment to unironically pose as a protector of the integrity of the Supreme Court.

Even more dangerous than the politics here, though, is the escalating attack on American institutions. If we’ve learned anything at all in recent years, it is that our national norms are fragile things, especially when they seem to be protecting our ideological enemies.

In Robert Bolt’s classic play A Man for All Seasons, when Sir Thomas More is asked by his future son-in-law, William Roper, whether the Devil should have the benefit of law, he responds: “Yes. What would you do? Cut a great road through the law to get after the Devil?”

Roper: “I’d cut down every law in England to do that!”

Sir Thomas More responds: “Oh? And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? … If you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”

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Stephanie Bai contributed to this newsletter.

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