A little over a week after President Joe Biden withdrew his re-election bid, the White House held a news conference during which the President announced his plan to reform the U.S. Supreme Court. Although theoretically this conference had no direct connection with the election campaign led by Kamala Harris, we should look at this issue from the perspective of the last few years, when the majority of the Supreme Court remains in the hands of judges nominated by Republican presidents. Additionally, in recent years the American legal system has experienced several “earthquakes” due to controversial decisions by the Supreme Court. The announcement of the Court reform plan so soon after Kamala Harris began her campaign can hardly be considered a coincidence.
Supreme Court – constitutional foundations
Although the American political system assumes a separation of powers and mutual checks and balances between the individual branches of government, a cursory reading of the United States Constitution does not indicate at all that the individual branches of government maintain such a balance. Article 1 of the Constitution (the most extensive of the first three) is devoted to the legislative power, Article 2 on the executive power is much shorter, but the shortest is Article 3 on the judicial power. Only the first section of this article is de facto devoted to the Supreme Court, and not in full, but in the context of other federal courts.
The aforementioned Article 3 of the Constitution in its Section 1 contains the following statements: first, "The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time establish and appoint." The second sentence (clause) of the same section sets out general principles for the appointment of judges. The Framers of the Constitution indicated there that "judges, both of the supreme court and of lower courts, should remain in office when they demonstrate good conduct." This seemingly general formulation means that as long as it cannot be demonstrated that judges have acted improperly, they can remain in office. The reference to ‘good behaviour’ is therefore a constitutional recognition of the lifetime tenure of federal judges.
To the surprise of many, subsequent sections of Article 3 formulate the scope of jurisdiction of the federal courts. They therefore no longer relate directly to the organisation of the work of the Supreme Court of the United States. More specific issues concerning the operation of the Court were defined in 1789 through the Judiciary Act 1789, other specific legislation issued over the following decades and through unwritten customs and the development of constitutional mechanisms (the so-called Unwritten Constitution of the United States).
Joe Biden's Reform Proposal
The changes that Joe Biden is proposing with his administration are, as the President makes no secret of, a direct consequence of the Supreme Court's decision in Trump v. United States (No 23-939) on 1 June this year. In accordance with this decision, the President of the United States is entitled to unlimited immunity (in terms of criminal liability) for actions taken in the exercise of constitutional powers As American researchers of constitutional law point out, this type of definition raises serious doubts and raises questions about the impact of the Supreme Court's decision on the impeachment procedure.
According to Joe Biden, this type of decision was possible thanks to the predominance of Republican judges on the Supreme Court. Following this, the President proposed three levels of reform – (1) putting to a vote an amendment to the Constitution, the content of which would express the belief that no one is above the law, including the President, (2) introducing a term of office for Supreme Court judges and (3) developing a code of ethics binding on judges.
From the perspective of the law and political system of the United States, the most significant proposal seems to be the introduction of term limits for judges. In a prepared statement published in the Washington Post for this occasion, the President wrote: "For almost 75 years, we have had a limit on the number of presidential terms. We should have the same solution for Supreme Court judges. The United States is the only major constitutional democracy that grants lifetime tenure to its highest court. Term limits would help ensure regular changes to the court's composition. This would make court appointments more predictable and less arbitrary. This would reduce the chance that one presidency would radically change the balance of power in the court for generations to come. I support a system in which the president appoints judges every two years to serve 18 years on the Supreme Court" (Washington Post article).
The proposed changes put forward by Joe Biden appear to be a fundamental overhaul of the US Supreme Court and its operation. Reading "between the lines", one can learn that each president (serving a four-year term) should appoint two judges to the Supreme Court. These judges would serve on the Supreme Court for 18 years and then – most likely – would retire.
Is this the first time?
Although the reform proposal seems to be a gigantic change, in reality it is nothing new. The lifetime nature of the office of a Supreme Court judge has been subjected to criticism, including academic criticism, on a number of occasions. It is impossible to list here all the reform proposals relating to the issue in question, but a few of the most important ones, particularly in recent years, are worth mentioning.
The first words of criticism regarding the lack of tenure of office for Supreme Court justices were formulated by Thomas Jefferson over two hundred years ago. The issue returned in the 19th century, but it was only the end of the 20th and the beginning of the 21st century that brought a "rainfall" of proposals for changes (for example, Phillip D. Oliver presented his vision of the tenure of judges in 1986, Henry Paul Monagham in 1988, Steven G. Calabresi and James Lindgren in 2006, and Akhil Reed Amar has referred to this issue several times over the last dozen or so years). It should be noted that discussions on the term of office of judges have also been held in recent months. The American Academy of Arts and Sciences published a working group report entitled A Case for Supreme Court Term Limits in 2023.
Although the number of proposed changes is long, in practice the academic discourse has led to the crystallisation of several proposals that are beginning to characterise the position of the reform's proponents. In most cases, it is indicated that the term of office of judges should be set at eighteen years (assuming that nine judges remain on the Court). This is the resultant of four and a half presidential terms, which would ensure, according to the promoters of change, for a diversity of choices, also in terms of political and ideological perspectives. During each full presidential term, two judges would leave office and two new judges would have to be appointed. Various visions are formulated with regard to the position of retiring judges.
One of the proposals – particularly strongly emphasised by Akhil Reed Amar, Professor of Constitutional Law at Yale University – is to give judges other tasks – administrative, representative, etc. – at the end of their 18-year term. The position of the Chief Justice – i.e. the President of the Supreme Court is another important thread. The President himself may designate the current President of the Supreme Court. The reformers' assumptions are dominated by the belief that the position of the President of the Supreme Court could be rotational or could be the culmination of the career of each judge sitting on the Supreme Court (e.g. during the last two years of the term of office, each judge would serve as the President).
What are the real chances of successfully implementing the reform?
Carrying out such a major reform would require time and logistical coordination. The authors of the report prepared for the American Academy of Sciences and Arts calculated that if the process of replacing judges began in 2023 (by adding an additional tenth judge – the first term judge – to the current composition), the full replacement of judges and the assumption of office by 9 term judges would not be completed until 2047.
According to some commentators on the proposed changes, it would be necessary to first change the Constitution by adopting a new amendment. Experience to date has shown that implementing this type of change in America's polarised society ruled by two political options would be extremely difficult.
It must be admitted, however, that according to others, introducing an amendment to the Constitution would not be necessary, since judges would still remain so after the end of their eighteen-year term of office, but would only obtain a different status and be entrusted with a different task. This is the de facto state of affairs at present. Indeed, the position of the so-called retired judges is now known (there are currently three such judges - David Souter (since 2009), Anthony Kennedy (since 2018) and Stephen Breyer (since 2022). Previously a very active judge, retired Justice Sandra Day O'Connor, from 2006 until her death in 2023, was involved in promoting the administration of justice, representing the Supreme Court at various events, and even occasionally sitting on lower federal courts to support judges there.
Elections 2024
Do the above plans to reform the activities of the Supreme Court of the United States have a direct impact on the current election campaign in the United States? Kamala Harris commented on the reform plans immediately after their announcement. She supported the proposed changes, pointing out, among other things, that "there is an obvious crisis of confidence facing the Supreme Court, as its integrity has been called into question following numerous ethics scandals and decision after decision has led to the rejection of long-standing precedents" (quote from an article in the Financial Times). Donald Trump has not commented on the reform proposals in any way.
However, the fact that the topic of the Supreme Court appeared in the context of the ongoing presidential campaign is significant. It resonates with social sentiment. While statements by the Democratic candidate about the danger of rejecting a significant amount of precedent should be considered exaggerated, especially since the essence of federal jurisprudence is to build a line of jurisprudence based on precedents (which sometimes need to be changed by rejecting earlier decisions), dissatisfaction with the Court's activity has actually been observed for some time.
The judicial selection process has become significantly politicised over the last 30 years or so. Although judicial nominations have always been dictated by the political sympathies of the presidents putting forward the candidates, it is only in recent decades that such a large-scale analysis of the political connections of judges has been observed. At the same time, questions are rightly raised about the ideological motivations of some judges when issuing their opinions.
The attitudes of some judges and the ethics of their behaviour also raise doubts. There has been a lot of talk recently about Justice Samuel Alito and Clarence Thomas. A few years ago, the politicised statements of Ruth Bader Ginsburg, who died in 2020 and was considered a great figure in the judicial community, were also assessed negatively.
Others raise questions about the dangers of profound destabilisation of the previously relatively stable balance of power in the Supreme Court. Currently, six justices (Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) have been nominated by Republican presidents. Only three justices have been nominated by presidents representing the Democratic Party (Sotomayor, Kagan, Brown Jackson).
All of these and many other issues are raised in relation to the situation involving the Supreme Court of the United States. No doubt the next president and their administration will have to deal with at least some of these challenges.
Text: Dr hab. Łukasz Jan Korporowicz, Associate Professor at the University of Lodz
Centre for Anglo-American Legal Tradition / Department of Roman Law
ORCID: 0000-0002-5725-5018
The article is a part of the ConLaw24 series, in which the Centre for Anglo-American Legal Tradition takes a closer look at the intricacies of the American legal and political system. We will publish new texts every Tuesday until election day.