Biden Is Right to Take on the Court

In 1983, an ambitious young lawyer in Ronald Reagan’s Justice Department wrote a memo about a hypothetical constitutional amendment to reform the judiciary. “Setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence,” he wrote. “It would also provide a more regular and greater degree of turnover among the judges.”

That lawyer’s name was John Roberts. He is currently in his 16th year as chief justice of the United States. The past five justices to leave the Supreme Court, whether via death or retirement, each served nearly three decades or longer.

But Roberts’s younger self has found a new and unlikely ally: our nation’s oldest president. Although Joe Biden remains opposed to expanding the number of justices or impeaching them, as some Democrats have called for, the president is reportedly set to endorse major changes to the Supreme Court, most notably term limits and an enforceable code of ethics. Biden cannot make his proposed changes unilaterally. They would need to be passed into law by a majority of the House and 60 senators (or 50 willing to scrap the filibuster), and would face constitutional challenges before the Court itself.

Even so, if Biden lays out a plan for the two elected branches of government to check the judicial one, it may prove to be among his presidency’s most consequential acts.  

[Nicholas Bagley: The big winners of this Supreme Court term]

Ever since 1937, when Franklin D. Roosevelt tried and failed to pack the Supreme Court, presidents seeking to change the Court’s composition have taken a passive approach. They waited for justices they didn’t agree with to retire or die, then nominated their preferred judges to the open seats. They did so with the expectation that the Senate would vote on whether to confirm, regardless of which party controlled the chamber at the time.

In 2016, then–Majority Leader Mitch McConnell broke the Senate’s end of this implicit deal by refusing to let President Barack Obama (for whom I’d worked as a speechwriter) fill a vacant seat. In 2020, after Justice Ruth Bader Ginsburg died, McConnell rushed Amy Coney Barrett’s confirmation through less than two months before a presidential election. This pushed many Democrats to become far more open to reforming the Court. But Biden was not among them. If his party were to pack the Court, he warned during the 2020 primaries, “we’ll live to rue that day.”

Biden was less outspoken about reforms other than Court-packing, but he was no less dismissive of them. Upon taking office, he outsourced the consideration of Supreme Court reform to a bipartisan commission, promised to review its findings, and never seriously addressed them. When asked, before the release of the commission’s report, whether he supported term limits for Supreme Court justices, Biden gave a one-word answer: “No.”

The Court’s right-wing majority responded not with restraint but with impunity. Thanks to the judiciary, many of the most sweeping right-wing policy victories in modern history—on abortion, voting rights, guns, and environmental regulations—came with Democrats in control of the White House and one or both houses of Congress. In 2023, it emerged that Justice Clarence Thomas had received an estimated $4.2 million worth of gifts from wealthy conservative benefactors, some with interests before the Court. Earlier this year, news broke that an upside-down flag associated with the “Stop the Steal” movement had flown at Justice Samuel Alito’s house soon after January 6, 2021. Alito also failed to disclose gifts he had received. Both justices declined to recuse themselves from cases in which they might have had a conflict of interest.  

As the Court has become more politicized, its conservative judges have insisted that checks and balances ought not apply to the judicial branch. Chief Justice Roberts declined an invitation to appear before the Senate Judiciary Committee, citing separation of powers. Alito went further, arguing that Congress doesn’t have the ability to set rules and guidelines for the Court at all. Meanwhile, although no one has formally declared the change, it has become generally accepted that no justices will be confirmed while the Senate and the White House belong to opposite parties, and that justices will not retire while a president of the opposite party is in office. When you combine these two factors, the old method of checking the Court—winning elections and letting time take its toll—has been rendered unworkable.

The Court is thus, to use a phrase popularized by Game of Thrones and embraced by Donald Trump and his movement, demanding that the American people bend the knee. It is asking them to accept that their country will continue to become more conservative for decades, maybe forever, no matter what they want or whom they vote for.

In proposing checks on the Court, Biden is refusing to capitulate to this new arrangement. This is particularly notable given his former opposition to such changes. He is going beyond a single decision or appointment and taking on the structure of the Court itself.

Yet even as he takes an unprecedented step, Biden is providing fellow Democrats with a blueprint to demand Court reform in a politically savvy and responsible way. While expanding the Court is divisive among voters, imposing term limits on justices is a popular idea. It’s supported not just by Democrats and independents but, for now at least, by about half of Republicans.

[Nikolas Bowie and Daphna Renan: The Supreme Court is not supposed to have this much power]

No less important, although Congress has changed the size of the Court before, adding seats now is particularly risky for our republic. It’s not hard to imagine how a cycle of expansion and counter-expansion could protect democracy temporarily only to end it permanently. If a Democratic administration adds four justices, for example, a future MAGA administration could add four of its own—and the new far-right majority could give the president absolute power to overturn elections, toss out valid votes, or order the military to arrest political opponents. The Biden plan, while not without risk, comes with an endgame—one in which neither the right or left gets everything it wants, but each feels essentially comfortable with the new arrangement, not least because the American people support it.

Now that Biden has touched what was once a third rail, the issue should have more staying power. Which means that Americans who care about issues such as abortion rights, gun safety, campaign-finance reform, and political corruption have new hope that the will of the people still matters. The path laid out by President Biden won’t be easy or quick to implement. But it is achievable, it would bolster our democracy, and it would reassert the American belief that ours is a government of, by, and for the people.

In 1948, Harry Truman ran against a do-nothing Congress. Joe Biden—and every Democratic candidate for the foreseeable future—will be running against a do-everything activist Court. Embracing checks and balances is good politics and even better policy. After all, one of the central promises of democracy is that we, the people, can correct our government’s course. This may be our last, best chance to do so.