Among the highest prizes in presidential electoral politics is having your term or terms of office coincide with the opportunity to make U.S. Supreme Court Justice appointments.
As our U.S. Constitution added to the independence of the judiciary from a sometimes-fickle electorate, with lifetime appointments and tenure, our founders thought that associate justices would focus more on the rule of law and the Constitution itself might be less impacted by the political winds of the day.
However, following three appointments (an unusually high number) by former President Donald J. Trump during one four-year term, many legal scholars, progressives, and partisan Democrats are pretty concerned about what another Trump term might mean for the highest court in the land.
This brings us to the irony of President Joe Biden proposing term limits of 18 years for Supreme Court Justices, the equal of three terms in the U.S. Senate, and ‘out of sync› with modern American presidents' four-year terms (eight years max). Biden was sworn into the U.S. Senate at age 31 and served seven terms there before eight years as vice president.
Until only a few weeks ago, this same president wanted Americans to view his 50-plus years of experience in public life as a plus, and I guess just because “He’s the guy” to trust at 81, that he still has the right stuff.
Whereas 18 years was, for many decades, the average tenure of service on the Supreme Court bench, in more recent decades, presidents in both parties have been selecting younger jurists.
As a result, the average tenure has crept UP to 27 years, and if President Biden were to be successful (unlikely as an amendment to the U.S.
Constitution would be required), it is probably purely coincidental that the three justices who would then be packing would be Justice Clarence Thomas (appointed 1991, George H.W. Bush), Justice Anthony Alito (appointed 2006, George W. Bush), and Chief Justice John Roberts (appointed 2005, George W. Bush).
When President Franklin Delano Roosevelt did not care for Supreme Court decisions that challenged or overturned some of his New Deal initiatives during his four terms in the White House, F.D.R. unsuccessfully championed expanding the Court to 12 members and capping the age of service at 70.
Though unable to garner sufficient support for either measure, Roosevelt was able to appoint eight justices, and elevate one appointed to chief justice while in office.
President Washington and the Constitution originally named six justices to the Supreme Court. Following post-Civil War Constitutional reforms, the court was expanded to its current number of nine in 1869. If term limits were to be seriously considered, I would suggest placing term limits on service in Congress.
First, I will express the unpopular opinion that term limits are a lazy cheat for voters and significantly wipe out critical institutional memory.
Changes to the framework of our government do not always have the desired or intended effect. It is little known or discussed, but it was a Republican majority-appointed court that decided Roe v. Wade by a 7-2 majority. The two dissenters voting against the decision were a young Justice William Rehnquist (nominated by Richard Nixon in 1972, and later Chief Justice) and Justice Byron White (nominated by JFK in 1962, and by the time of his retirement in 1993, the last living Progressive and member of the Warren Court).
Some of the most impactful members of the court in modern times served close to a quarter century or more, including Justice Thurgood Marshall (24 years), Justice Ruth Bader Ginsburg (27 years), Justice Antonin Scalia (30 years) and Justice William Brennan (34 years).
It was also a Republican majority of the Court’s four justices appointed by Abraham Lincoln and buttressed by three U.S. Grant appointees, which upheld numerous state and federal statutes following the adoption of the 13th Amendment to the U.S.
Constitution in 1865, and the soon-after expansion of the number of Supreme Court Justices from six to nine in 1869. Grant’s three associate justice appointments were critical to cementing the freedoms and rights gained by freed slaves following the adoption of the 13th Amendment.
It will remain a popular talking point for an increasingly less popular president, but his evidence is not strong, and this case is not well made. Register and participate in Party Primary elections if voters desire a different outcome. Don’t simply re-elect incumbents because you recognize their names (incumbent re-election rates in the U.S. House and Senate exceed 90 percent).
Case closed.