President Biden’s recent actions, including endorsing the packing of the U.S. Supreme Court in an op-ed and speech on July 29th, have raised concerns about the independence of the federal judiciary. His proposal, supported by Vice President Kamala Harris, suggests imposing an 18-year term limit on Supreme Court justices’ voting rights in cases before the Court, which many view as unconstitutional. This plan, disguised as a term limits law, could potentially lead to the removal of conservative justices and the appointment of new progressive justices, ultimately increasing the number of justices on the Court. The implications of such a plan, if enacted, could have a significant impact on the Supreme Court and its independence. It is crucial for GOP Senate candidates in key states to address this issue in the upcoming elections. The proposed law by President Harris would transform the Supreme Court’s voting membership from a 6 to 3 Republican-appointed majority to a 6 to 3 Progressive Democratic-appointed majority, with three Republican-appointed members Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito having no vote on cases. The law, if applied retroactively, would give Democrats a voting majority on the Supreme Court until 2042.
A separate prospective law would add three new 18-year term limited justices, resulting in a tied 6 to 6 Supreme Court. Both laws, whether retroactive or prospective, are considered court packing rather than term limits. The constitutionality of these proposals is questioned, as altering the term of office of Supreme Court justices is deemed unconstitutional under Article III, Section 1 of the Constitution.
The Constitution grants Congress power to make laws necessary for the functioning of the government, but this power is limited by the principle of judicial independence. Retroactively requiring courts to reverse decisions or altering the tenure of justices would violate this principle. The proposal under consideration by the Biden Supreme Court Reform Commission does not empower Congress to diminish Supreme Court Justices’ life tenure by restricting their voting rights after 18 years, simply because they are dissatisfied with their decisions. Some legal scholars have argued that this proposal is not an attack on life tenure, as Justices historically held two federal judicial roles. However, the abolition of circuit riding and the elimination of certain federal judgeships in the past were constitutional because they did not redefine the tenure of Supreme Court Justices. The Constitution explicitly creates the office of Supreme Court Justice, and Congress cannot alter this constitutionally established office or its powers. Any changes to the tenure or powers of Supreme Court Justices would require a constitutional amendment, as was the case with limiting presidential terms. Just as Congress cannot alter the term of office or powers of the President, Vice President, Senators, or Representatives by statute, it also cannot change the tenure or voting rights of Supreme Court Justices without amending the Constitution. No one anticipated that Franklin D. Roosevelt would hold the title of President but lack the powers of the presidency during his third term in 1941. The Biden-Harris plan is deemed unconstitutional and flawed public policy for several reasons.
Firstly, it would compromise judicial independence, leading to a politicized Court that could easily be influenced by the current administration. This would set a dangerous precedent for future administrations to manipulate the Supreme Court for their own agenda.
Secondly, the plan would result in frequent changes in the Supreme Court’s composition, potentially causing major shifts in constitutional caselaw. This instability could undermine the rule of law and the integrity of the Constitution.
Thirdly, the term limit of 18 years proposed by Biden and Harris would prematurely end the tenures of esteemed Justices who have made significant contributions to the Court. This could disrupt the continuity and experience needed for effective decision-making.
Additionally, historical examples show that when one party has complete control over the presidency, Congress, and the Supreme Court, abuses of power can occur with devastating consequences. This highlights the dangers of consolidating power within one political party.
Lastly, the argument for an 18-year term limit overlooks the unique characteristics of the United States as a beacon of freedom and prosperity. Judicial life tenure has played a crucial role in upholding our freedoms, while the stability of U.S. law has contributed to our economic success. These factors set the U.S. apart from other democracies and should be preserved. Unfortunately, in countries like Canada, Germany, France, Brazil, and India, Salman Rushdie’s book may be banned. Unlike in the United States, where Elon Musk can confidently start SpaceX without fear of nationalization, many other constitutional democracies do not provide the same level of protection for private enterprise.
The Supreme Court in the United States, with its life tenured judges, has been instrumental in upholding liberty and prosperity, as evidenced by the country’s high GDP per capita compared to other G-20 nations. Extensive research presented in my recently published book series, “The History and Growth of Judicial Review,” demonstrates the importance of judicial independence in maintaining a thriving economy.
While some advocate for term limits for Supreme Court justices, it is essential to recognize that many other countries with such limits grant their judicial bodies more power than the U.S. Constitution grants the Supreme Court. This difference in authority necessitates additional checks and balances in those countries, which is not the case in the United States.
The process of selecting Supreme Court justices in the U.S., through presidential nomination and senatorial confirmation, ensures a level of accountability and transparency that is lacking in other countries where judges may select their successors. This democratic approach helps mitigate the potential for judicial overreach and maintains the integrity of the judiciary.
Implementing court packing or term limits would jeopardize the independence of the judiciary in the United States. It is not only unconstitutional but also poor policy. It is crucial for Senators from both parties to oppose such measures to protect the integrity of the judicial system.
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