President Biden has proposed effectively packing the Supreme Court, to give it a Democratic majority within a few years. Legal scholar Adam White thinks that is a bad idea, even though he is a critic of Donald Trump appointed by Biden to a presidential commission. Writing in The Dispatch, White observes that Biden’s proposals amount to “court-packing” in all but name:
In 2020, just days before his election, President Joe Biden rebuffed calls to radically change the Supreme Court by packing it with additional justices. But four years later, Biden is calling for legislation to strip current justices of their duties and appoint new justices. After rightly criticizing court-packing throughout his career, pursuing it now would be a terrible mistake.
I have studied these issues for two decades, most recently as a member of the Presidential Commission on the Supreme Court of the United States, to which the president appointed me in 2021….Outright court-packing—adding extra justices simply to dilute the current justices’ votes—has been an infamy since 1937, when Congress rejected President Franklin Roosevelt’s attempt to pack the court into obeisance. In 2005, then-Sen. Biden remarked that FDR’s war on the court exemplified the adage, “Power corrupts, and absolute power corrupts absolutely.”
But now…some want court-packing by another name: a new framework to strip current justices of their constitutional responsibilities and transfer those powers to successors, one justice at a time, beginning with Justice Clarence Thomas…Any legislation purporting to strip individual justices of their duties would be unconstitutional. The Constitution guarantees that all justices and federal judges “shall hold their Offices during good Behaviour.” Once appointed by the president with the Senate’s confirmation, a justice holds office until he or she retires, dies, or is removed by the Constitution’s impeachment process. From the start, this has been recognized as life tenure—“permanent tenure of judicial offices,” Alexander Hamilton called it, to ensure “the faithful performance of so arduous a duty.”….And indeed, that is the point of each justice’s life tenure: judicial independence.
But now the court’s critics would negate judicial life tenure with judicial “term limits,” trying to remove inconvenient justices without the strict standards and procedures of outright impeachment….One approach would impose term limits that would nominally leave a justice on the court but strip him or her of the core constitutional role of hearing appeals from the lower federal courts and state courts—with the title of “senior justice,” no longer an “active justice.”…The name gives it away, of course. They call it “term limits,” not “active-status limits,” precisely because the point is to end the justice’s term as a real “justice” as the office as been understood for more than two centuries.
And it is just court-packing by another name. If anything, the new proposals for disempowering “senior” justices are even more aggressive than the original version of court-packing: FDR tried to add new justices, but he never even attempted to nullify current justices.
