Term Limits and Embracing a Political Supreme Court

By Guha Krishnamurthi. Full Text.

In the run up to the 2020 Presidential election, then-candidate Joseph R. Biden, Jr. lamented the increasing dysfunction of the United States Supreme Court and campaigned on rectifying the august institution. This was indeed part of Biden’s general message: a return to norms, normalcy, and mutual respect.

The problems with the Court and its public legitimacy did not result from a singular episode, it had arisen from a series of politically volatile and fractious moments. Each side had its grievances. For a non-exhaustive list of these moments, emphasizing the events often stressed in current discourse: the failed nomination of Robert Bork, the contentious confirmation of Justice Clarence Thomas, the failure to hold a vote on then-Judge Merrick Garland’s nomination and subsequent nomination and confirmation of Justice Gorsuch to that seat, the contentious confirmation of Justice Brett Kavanaugh, and the confirmation of Justice Amy Coney Barrett under circumstances that directly contradicted the purported justification for denying Merrick Garland a vote. In the background, the Court was issuing increasingly controversial decisions that appeared to be overturning or presaging the demise of fixtures of the constitutional order. This includes Abood, the Voting Rights Act, Roe v. Wade and Casey v. Planned Parenthood, and Obergefell v. Hodges. In light of all this, fixing the Court would be no simple task.

So, what was to be done? Create a committee of course! Shortly after his inauguration, now-President Biden signed Executive Order No. 14,023, forming the Presidential Commission on the Supreme Court of the United States. The Commission, chaired by Professor Bob Bauer and Professor Christina Rodriguez, was constructed to be bipartisan, made up of legal scholars, judges, and practitioners.

The Commission’s operations were not wholly smooth. There were premature departures of conservative members. Some questioned the ability of such a constructed Commission to come to any worthwhile, practicable conclusions on reform. Still others, including members of the Commission, questioned its charge: what was the Commission even supposed to report on?

Notwithstanding these unanswered concerns, in late 2021, the Commission released a substantial report offering its observations about the Court’s operation and its evaluation of the plausible recommendations for reform. To the chagrin of some, the Commission did not outright provide its own recommendations. But with 34 members representing a multitude of political and ideological viewpoints, it was unlikely the Commission would arrive at the requisite consensus for recommendations of reform. Still, some commentary following the Commission’s Report suggests the possibility of a consensus position on term limits for Justices as a viable and impactful reform. Indeed, the Commission devoted particular attention to what would be the best way to accomplish the reform—whether by statute or by constitutional amendment.

In this Essay, I argue that the Commission’s analysis of term limits is unduly focused on the desire to reduce politicization of the Supreme Court and its Justices, which consequently impedes our ability to genuinely reform the Court. Instead, the Commission should have forthrightly acknowledged that the Supreme Court is a political entity, subject to ordinary partisanship, and tying its makeup closely to electoral politics will enhance that. Nevertheless, the politicization of the Court needn’t be a death knell for the proposal of term limits or the continuing relevance of the Court. Drawing from the work of Professor Jack Balkin and Professor Sandy Levinson, it is evident that a political Supreme Court can serve two important functions that further the democratic character of the nation: first, Justices can engage in and deliberate over longer-term projects on foundational issues, insulated from a capricious populace; and second, Justices, as political actors, can serve as a backstop to political upheavals, thereby ensuring that substantial changes to our polity are triggered by political will sustained over time.

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