Biden's plan to keep the Supreme Court near the center

America’s history of political cycles includes this present time of tumult and division as the nation struggles to move beyond its polarization. And once again, very much through its own aggressive favoring of one party’s political agenda, the Supreme Court is under attack.

Judges on the nation’s top court are appointed for life and make pronouncements from a marble temple, an enshrinement designed to reinforce their image as being buffered from the politics of the day. Cameras are not permitted at their public sessions and, short of impeachment, the justices are legally impervious to the enforcement of ethics requirements. This cloak of judicial authority was designed to convince the public to accept the court’s rulings, even if the public disliked them. This bulwark from unpopular opinion is especially important in protecting civil liberties and the right to dissent.

Major decisions are often quite controversial but eventually accepted. This was true even for one of the most political cases in modern history, Bush v. Gore, which decided the outcome of the 2000 election. But when the court strays too far from what the majority of the public holds as important and essential, it risks losing its legitimacy. The court’s overturning of Roe v. Wade in 2022, which eliminated the federal right to an abortion that had existed for 50 years, not only is unpopular with a majority of Americans, it has led to growing support for dramatic structural changes to the court.

BIDEN’S TERM LIMITS

The most direct challenge is President Joe Biden’s recent proposal to give each president the power to appoint two justices to 18-year-terms during that president’s four years in office. It’s misguided and dangerous. Beyond that, this convoluted, vague proposal doesn’t have a chance of being enacted. Yet, as has happened in the past, the message it sends could be beneficial.

Several of Franklin D. Roosevelt’s sweeping programs to end the Great Depression were struck down by a five-justice majority which found that governmental regulation of commerce and labor infringed on personal liberties. But it was a ruling rejecting a New York law setting a minimum wage for women and children that outraged the nation, and Roosevelt rode that anger to his landslide reelection bid in 1936. After his inauguration, he threatened to “pack the court,” saying that if a judge did not resign at age 70, he would add another seat.

But Roosevelt never had to follow through. The court, recognizing that it was too far afield of the sentiment of the day, soon approved a Washington state law that mirrored the New York measure the court had declared unconstitutional just a year before.

In expanding the court beyond its current count, Biden’s term limits plan would allow only the most recently confirmed set of nine judges to rule on appeals. Judges with the longest tenures would not be able to vote but would have some undefined senior status. The proposal has been endorsed by Vice President Kamala Harris, the party’s nominee to replace Biden atop the Democratic ticket. The plan is being decried as a way to neuter two of the court’s most ideologically conservative justices, Samuel Alito and Clarence Thomas. The three right-leaning justices appointed by former President Donald Trump, who credits them with overturning Roe, would then be offset by two new, presumably more-liberal justices, resulting in a new five-justice majority that tilts left.

Biden’s court plan, besides being a reckless attack on our constitutional order, is hypocritical. Seeking his party’s nomination in 2020, Biden said, “I would never pack the court.” In 2005, he described Roosevelt’s court-packing proposal as a power grab. His effort also undermines the Democrats’ effort to campaign as protectors of the rule of law.

WORKING THE REF

Biden is plainly “working the ref” and that’s perfectly fine. Defining the 2024 election as a referendum on the Supreme Court is a bright warning that the court is nearing the danger zone of illegitimacy. There are some signs the message is being heard. In the court’s term that ended last month, a majority of justices voted to duck two major abortion decisions, sending them back to lower courts for more work. Still, it’s unclear whether the court intended to lower the heat in an election year or whether a genuine approach toward moderation, led by Chief Justice John G. Roberts and Justice Amy Coney Barrett, is taking shape. It was Roberts who abandoned the conservative majority in 2012 to uphold the popular Affordable Care Act.

Unfortunately, Biden’s proposal to add judges overshadows the plan’s other provisions to help ensure the justices are honest brokers. There is a genuine need for an ethics code delineating when justices should recuse themselves from deciding a particular case. So far, the justices have not voluntarily adopted one, so Congress may need to do so.

The Supreme Court is on the ballot in every presidential election because appointing a justice is one of a president’s most consequential acts. But regardless of whether that president gets an opportunity to fill a vacancy, the campaigns and debates this year matter because the court does not operate outside of politics and public opinion. To keep the balance in our constitutional system, the court does indeed need to follow election returns.