by First Liberty Institute • 6 min read
President Biden’s Commission on the U.S. Supreme Court presented a final draft of its findings this week, including the dangerous possibility of packing the nation’s highest court.
Though much attention has been given to court-packing—arguably the most dangerous proposal—the Commission is also considering other alarming “reforms.” To be clear, this doesn’t mean that court-packing has been taken off the table. The fact is, stacking the Court with a slew of liberal judges remains a very real threat.
Understanding the destruction court-packing would have on our country, Americans made their voice heard. A vast majority—sixty-five percent (65%)—oppose packing the Court. It appears this overwhelming rejection caused the Commission to shift gears to focus attention on imposing term limits.
Term limits—as opposed to our current system of lifetime tenure—seem like a modest change at first glance. However, Americans mustn’t be deceived. Below are three reasons why limiting tenure is a constitutionally suspect “reform” that could destroy America’s revered system of justice.
1. Term Limits Would Make the Supreme Court More Political
One of the Commission’s proposals calls for eighteen-year terms for Supreme Court Justices. Under this system, each President would have two regular appointments in a single presidential term and a total of four, if reelected for a second term.
But what works in legislative races does not work so well when applied to federal judges.
Instead of reducing the politicization of our judicial process, this would only worsen the issue. With two seats guaranteed to open every four years, presidential candidates might have greater incentive to make promises about who they would appoint.
It would only reinforce the erroneous message that appointments to the Supreme Court are the spoils of politics and the property of the President or party in power.
2. Term Limits Threaten Judicial Independence
Term limits would destroy one of the hallmark features created by America’s Founders. Life tenure for Supreme Court Justices has worked well for over 230 years and is an essential component to ensure judiciary independence.
In Federalist No. 78, Alexander Hamilton explained that judicial independence “can certainly not be expected from judges who hold their offices by a temporary commission.”
Life tenure protects judges’ independence to decide cases not according to the temper of the times or political expediency, but by applying centuries-old legal traditions, relying on precedent, facts, and the intent and text of the law and the Constitution.
3. Term Limits Could Destabilize the Supreme Court
More turnover could lead to more frequent shifts in the interpretation of the law, or even short cycles in which major precedents are discarded only to be reinstated later. Judicial instability is harmful because it reduces the stature of the Court.
No longer would the Court be regarded as a bulwark protecting the rights and freedoms of Americans. Instead, it would become another element subject to the whims of those who wield political power.
Additionally, getting rid of life tenure could reduce the wisdom judges obtain through age and experience. Think of some of the most influential justices in American history—such as Chief Justice Marshall—who impacted the rule of law in our country, because they served on the Court for decades.
Imposing a system of term limits would make it very difficult—or even impossible—to produce judges who have longstanding, distinguished careers and thereby, less opportunity for them to positively impact the law in the long-term.
Looming Threat: Pending Legislation to Rig the Court in Favor of the Party in Power
Even as President Biden’s Judicial Commission presented its findings including term limits as a possible “reform,” the party in power already has several plans in motion to rig the Court for its benefit.
Earlier this year, House Democrats introduced legislation to create eighteen-year term limits for Supreme Court justices. The bill would also give presidents the ability to nominate a new justice every two years and require the Senate to act on each nomination within 120 days before the nominee is automatically seated.
This isn’t the only bill aimed at “reforming” the Court, however. Recall that Democrats introduced a bill to increase the size of the Court from nine (9) to thirteen (13) members, followed by another court-packing bill to add more than 200 federal district court judgeships.
Make no mistake: If court-packing, term limits or any other radical judicial changes are implemented, the result would be catastrophic for our country. Indeed, the so-called court “reform” scheme could be the gateway to tyranny, the beginning of an America where religious liberty and all other freedom are granted not by God, but are decided by the heavy hand of government.
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