After President Joe Biden unveiled his unconstitutional attacks on the Supreme Court in the form of a “reform plan,” the American Cornerstone Institute is working to spread the word on why each of the three prongs of that plan is blatantly unconstitutional. This Common Sense Solutions Paper will highlight the second piece of President Biden’s proposal—imposing term limits on Supreme Court Justices by statute—and explain why this part of the plan is unconstitutional. Unlike the first piece of Biden’s proposal, which suggests a constitutional amendment in direct reaction to the Supreme Court’s July 1, 2024 decision in Trump v. United States, this piece of the proposal is not linked to a specific, recent decision. Instead, it seems to be motivated by a partisan desire to push the Court in a new, liberal direction by removing conservative Justices and replacing them with liberal appointees.
The plan itself is vague—vaguer even than the proposed constitutional amendment regarding Presidential immunity. Regarding term limits for Supreme Court Justices, President Biden says only the following:
Second, we have had term limits for presidents for nearly 75 years. We should have the same for Supreme Court justices. The United States is the only major democracy that gives lifetime seats to its high court. Term limits would help ensure that the court’s membership changes with some regularity. That would make timing for court nominations more predictable and less arbitrary. It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come. I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.
A simple reading demonstrates that this plan has little substance, but a few noteworthy points stand out.
First, unlike his plan regarding Presidential immunity, Biden does not explicitly suggest a constitutional amendment in this instance. This noteworthy omission implies that Biden does not believe such an amendment is necessary to enact his “plan.” If Biden truly believes Congress could impose term limits on the Supreme Court without a constitutional amendment, he is terribly mistaken. As ACI readers know, the Framers created three co-equal branches of the federal government. The Constitution no more gives Congress the power to set term limits for the Supreme Court than it gives the Supreme Court the power to set term limits for Congress. Article III clearly reads, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior…” with no other limit on the length of their service. If Biden were serious about this plan, he would have started by making the case for a constitutional amendment in the same manner that the Twenty-Second Amendment to the Constitution was proposed and ultimately ratified by three-quarters of the states in 1951. Instead, he implicitly acts as if Congress itself could impose these limits, which, if attempted, would create a major constitutional crisis.
Second, Biden does not state whether he believes these new term limits should be applied going forward, or whether the limits should be applied retroactively to the sitting Supreme Court Justices. By not explicitly stating that this plan would be applied going forward, Biden essentially implies that he would like to pack the court with new Justices, much like President Roosevelt’s ill-fated court-packing plan from the 1930s. Biden seems to think he could succeed in, at the very least, strong-arming the current Court into cowing to his often-unconstitutional legislative suggestions, much as President Roosevelt cowed the then-Supreme Court into submission in the late 1930s. To further clarify this point, the Twenty-Second Amendment itself, ratified during President Truman’s term, applied only to Presidents after President Truman. The amendment’s authors did not believe it proper to attempt to apply a new amendment retroactively, even when that constitutional amendment was drafted and ratified according to the Constitution. Yet somehow, Biden thinks he and Congress can do by statute what the authors of the presidential term limit amendment did not believe they could do by constitutional amendment.
President Biden’s plan to impose term limits on the Supreme Court is an unconstitutional power grab, not a serious attempt at reform. By implying that Congress could impose term limits, and not taking retroactivity off the table, the plan makes clear that it is ultimately about quenching the thirst of liberal activists to take over the Court. If this proposal were to be pushed forward, it would create a constitutional crisis unseen in the modern era. Let’s hope this unserious plan ends up in the trash, where it belongs.
