Dakota Beacon

President Joe Biden, displeased by recent Supreme Court decisions, is proposing several changes to the court. This vexation with the court is reminiscent of Erwin Chemerinsky, Dean of the University of California’s Berkeley Law School, when he said that changing the court was “the only way to keep there from being a very conservative court for the next 10-20 years.” These calls for change are for the most part simply born of political dissatisfaction. Nevertheless, proposals and assertions about the need for court change deserve to be addressed.

One of them, an idea that President Biden embraces, is an “18-year term limit” for Supreme Court Justices. Simply put, when a justice has reached 18 years of service, he or she can no longer serve on the country’s highest court. Let’s leave aside how new appointments would be made to positions vacated by the term-limit requirement. (It seems, though it is unclear, that the Biden proposal would call for the then existing president to make two appointments per presidential term to fill any openings.)

Is a term limit a good idea for the high court? Let’s first look at just how many justices including chief justices have actually served 18 years or more on the court over its 235-year history. To date, the court has had a total of 116 justices, including chief justices. Of those, 52 have served 18 years or more. In other words, a surprising 45% of all Supreme Court Justices would have had to step down if the “Biden Plan” had been initiated from the court’s beginning. If producing certainty and predictability are desirable features of Constitutional law, Biden’s plan would inject an unnecessary volatility into its proceedings.

Nevertheless, let’s explore the consequences of the plan by simply applying it to the existing court, which may very well be the primary intention of the president. Chief Justice John Roberts would have to go under the “18 years-and-out” rule. He has served almost 19 years. Justice Clarence Thomas, who has served almost 33 years, would be shown the door. Justice Samuel Alito is also beyond the 18-year cut-off. It is well worth noting that two of the more liberal members of the court, Justices Sonia Sotomayor and Elena Kagan, will reach the 18-year mark within the next three or four years. When that happens, out they would go.

Let’s leave the present and look back through the history of the court. Just who would have been “excused” from the high court bench early under the Biden Plan? Several Justices from the liberal side of the spectrum: William O. Douglas (served over 36 years), William J. Brennan, Jr. (served over 33 years), Stephen Breyer (served over 27 years), Harry Blackmun, author of Roe v. Wade (served over 24 years), and Thurgood Marshall, the first black justice (served over 23 years) and Ruth Bader Ginsburg (served over 27 years). Of course, at the same time, various noteworthy conservative justices would have had their careers cut short besides those already mentioned on the current Court: William Rehnquist (served over 33 years) and Antonin Scalia over 29 years.

What would the truncating of their terms mean to their judicial output, interrupted in many cases in their prime. Taking Justice Ginsburg as an example, the 18 year-and-out rule would have eliminated approximately 50 majority opinions which she penned. Instead of leaving the bench in 2020, she would have been ushered out in 2011. On the other side of the spectrum Justice Scalia, served 29 years until his death in 2016. If he had instead been dismissed from service under the Biden Plan in 2004, lost would be at least 50 majority opinions that he crafted.

Going back even further such a system of 18-year term limits would have significantly shorted the judicial careers of some the key and most respected jurists in American judicial history: Chief Justice John Marshall is the most obvious choice. He served 34 years but under Biden’s plan, Marshall would have been removed from the court before his famous decisions in McCulloch v. Maryland and Gibbons v. Ogden. Other well-respected American jurists would have had their careers and contributions cut short under the Biden Plan. A sampling of their years of service is instructive: Stephen J. Field (over 34 years), Joseph Story (over 33 years), Oliver Wendell Holmes (over 29 years), Felix Frankfurter (over 23 years), Louis Brandeis (over 22 years).

President Biden further implies that under our current system there is unfairness for presidents who might not have a chance to nominate a Supreme Court candidate during a presidential term. Therefore, his proposal calls for guaranteeing two choices per four-year term. However, the facts show that the current system of Supreme Court appointments actually yields a relatively even distribution of opportunities to appoint justices. Virtually every president serving a full term, Jimmy Carter being the only exception, has had the opportunity to appoint at least one justice. Remarkably, the average number of appointments by each of our 46 Presidents is approximately 2.6 appointees. Historically, one-term and certainly two-term presidents will have an opportunity to influence the court by making appointments. So, the concern about presidential opportunities to appoint is ill-founded.

The liberal Brennan Center’s director of the Judiciary Program, Alicia Bannon, explains the fundamental aim of the term limits proposal for the Supreme Court. Term limits would “strengthen the democratic link between the court and the public.” Bannon and Biden refuse to recognize that the Founders specifically did not want all three branches to be “democratic.” The House certainly was to be more beholden to “the people” with frequent elections. Even there the structure of the House is a representative system not a direct democracy. The Senate is certainly not democratic—the smallest state in terms of population, Wyoming, has the same number of Senators—two--as the largest state, California. Finally, Supreme Court Justices are not voted on directly by the people but must be nominated by a president who himself was not directly elected but triumphed under the electoral college system. The nominee must be approved by the Senate. Moreover, the term of the justices is “life.” In a very real sense the court is not to have a “direct link to the public” precisely so that it can protect citizens, dare it be said, against what Madison called an “overbearing majority.”

—Dr. John A. Sparks is the retired Dean of Arts & Letters, Grove City College and a Fellow in the Institute for Faith and Freedom.  He is a member of the state bar of Pennsylvania and a graduate of Grove City College and the University of Michigan Law School.  Sparks writes regularly for the Institute on Supreme Court developments.