End lifetime tenure on the high court
Fulfilling a campaign promise, President Joe Biden announced Friday the establishment of a commission on possible reforms to the Supreme Court. Composed of attorneys, legal academics and former judges, the panel includes conservatives as well as progressives; and it will examine “the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices,” according to a White House statement. Though it will analyze, not propose, policy, it is Biden’s initial formal response to those within his party who say that the answer to recent Republican success in appointing a six-member, life-tenured Supreme Court majority should be an expansion of the nine-justice body, with the new positions to be filled by Democratic appointees.
The political likelihood of growing the court, not high to begin with, has shrunk considerably with the emphatic refusal of Sen. Joe Manchin, D-W.VA., to overturn the filibuster — without which court-expansion legislation probably can’t pass the Senate. Still, as a rallying cry on the left, the idea is not going away and thus is still worth scrutinizing. It would essentially respond to Republican politicization of the court with Democratic counter-politicization. That would be understandable, given GOP Senate leader Mitch Mcconnell’s manipulation of the process to thwart consideration of President Barack Obama’s nominee in 2016 — but the court itself could be collateral damage.
One apostle of the latter concern is Justice Stephen Breyer, who urged in a Harvard Law School lecture Tuesday that “those whose initial instincts may favor important structural change . . . such as forms of court-packing, think long and hard before they embody those changes in law.” Speaking for nearly two hours, and drawing on his long experience in the law, including nearly 27 years as a Democratic president’s liberal appointee on the high court, Justice Breyer, 82, noted that the court’s effectiveness hinges on its legitimacy, which hinges on the perception that “the court is guided by legal principle, not politics.” That perception would be eroded if one party changed the court’s long-standing nine-member size to further policy objectives.
The justices’ rulings obviously reflect their ideology and political preference, but not in a simple, deterministic way, Breyer argued. He pointed out several cases in which the current Gop-dominated court had ruled contrary to President Donald Trump’s interests or to policies favored by Republicans generally.
Encouragingly, the broad mandate Biden has assigned the commission allows it to examine what is a valid area for potential Supreme Court reform: replacing life tenure, instituted in 1788, at a time of much shorter life expectancy, with an 18-year term. That would drain some of the intensity from Supreme Court politics by providing both parties with foreseeable, regular opportunities to nominate justices — thus lowering the stakes of each vacancy. It would allow presidents to nominate the most qualified justices, rather than looking for the youngest plausible nominees. Term limits should be high on Biden’s commission’s agenda.
The broad mandate Biden has assigned the commission allows it to examine what is a valid area for potential Supreme Court reform: replacing life tenure, instituted in 1788, at a time of much shorter life expectancy, with an 18-year term.