Court-Packing or Term Limits? Why Any SCOTUS Reform Is Highly Unlikely
© AP Photo / Jose Luis Magana
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The upcoming conclusions of The Presidential Commission on the Supreme Court of the United States will not translate into actual reform, given ongoing partisanship in the US Congress, say legal observers discussing the rationale behind "court-packing" and SCOTUS justice term limits.
Bill Clinton-appointed Supreme Court Justice Stephen Breyer warned against "court-packing" and the lamented politicisation of the US Supreme Court (SCOTUS) in a 12 September interview on Fox News.
Court-packing has been actively circulated by Democrats after former US President Donald Trump appointed three conservative judges to the US Supreme Court's nine-member bench. Left-leaning politicians and pundits advocate increasing the number of justices to neutralise what some suggest is a "conservative" bias.
In April 2021, US President Joe Biden created a presidential commission tasked with weighing the pros and cons of SCOTUS reform, including an expansion of the bench. However, Breyer believes that if one party is able to "pack" a court, the other will attempt to do the same. However, 18-year term limits instead of life terms on the bench "would make life easier" for everyone, according to the 83-year old justice.
Term Limits vs Court Packing
Justice Breyer's suggestion of term limits appears reasonable, believes David Levine, professor of law at the University of California, Hastings College of Law.
"Term limits would seem less political than having one party add some justices and then having the other party add more justices at a later date," Levine says. "If there were a regular turnover of the justices (for example, if they all had 18-year terms, spaced so that one had to step down every two years), then the political games around the timing of nominations would be eliminated."
In addition to that, term limits "might lead to selecting judges with more experience," the professor points out. He explains that with life tenure, there is a temptation to select very young nominees who can serve for a long time. To illustrate his point he refers to Justice Amy Coney Barrett, 49. "If there were term limits, youth would matter less as a criterion for selection," Levine remarks.
Amy Coney Barrett argues Supreme Court isn't driven by politics, after being introduced by Mitch McConnell at at event celebrating the anniversary of the McConnell Center. https://t.co/mVIhqPY5iE
— Greg Stohr (@GregStohr) September 13, 2021
The Constitution provides for life tenure for a good reason, argues Robert A. Sedler, a law professor at Wayne State University Law School. In particular, this prevents politicisation of the court, according to him. Sedler opposes any major changes to the Supreme Court, including court-packing, even though he identifies politically as a liberal.
"My views about the Court are shaped by my long experience as a constitutional scholar and an active litigator in cases involving individual rights, most often as a lawyer for the American Civil Liberties Union (ACLU)," he says. "These views are conservative in the sense that I am not in favor of significantly changing the court."
Any new reforms are unlikely to "remove politics from the assessment of SCOTUS," deems Charles Anthony Smith, professor of political science and Law at the University of California Irvine. US politicians will continue to play political bias cards if a court decision goes contrary to their agenda, he explains.
When it comes to term limits, it mostly depends on its length, Smith believes. If long terms were adopted, say 25 or 35 years, it wouldn't be very different from lifetime appointments, in the eyes of the public. If these terms were reduced to four or six years "the public would begin to see the justices as little more than politicians," according to the political scientist.
"Stephen Breyer warned...increasing the size of the Supreme Court risked damaging trust in the court and said progressives packing with the bench with likeminded judges would simply push conservatives to do the same."https://t.co/NAgmcoeJR1
— The Article III Project (A3P) (@Article3Project) September 13, 2021
Nothing Will Change for US Supreme Court
The Presidential Commission on the Supreme Court of the United States is due to fulfill its bipartisan analysis in October 2021. Any possible reforms to the court, however, would have to be approved in the US Congress. SCOTUS reforms do not seem likely, given an increasingly divisive atmosphere in both congressional chambers, legal observers say.
"Any such change would require a vote of Congress for a new statute or a vote of Congress plus ratification by three thirds of the state legislatures for any new constitutional amendment," explains David Levine. "I think it is extremely unlikely that either of these things would happen in the present climate."
It's highly probable that nothing will change following the publication of the commission report, believes Sedler, but from a liberal viewpoint that's not a bad thing, according to the academic.
He notes that liberals are concerned about the possibility that the US Supreme Court would upend the constitutional protection of individual rights, such as a woman's reproductive freedom. These particular concerns were fanned by a recent SCOTUS refusal to block a new Republican abortion ban in Texas, labeled the Heartbeat Act. The law prohibits abortions as early as six weeks after conception, and encourages private citizens to surveil, report and sue those who violate the legislation.
Justice Breyer agrees that court packing is dangerous.
— Rep. Ken Buck (@RepKenBuck) September 13, 2021
Democrats should listen to his warning and stop trying to pack the court.https://t.co/dum8trRSFF
The latest SCOTUS decision almost nullifies Roe v Wade, a landmark 1973 ruling qualifying abortion as a woman's constitutional right. SCOTUS earlier already overturned a White House eviction moratorium, and rejected Biden's effort to reverse Trump's 'Remain in Mexico' policy. These moves are only the beginning, warned Steve Benen, a producer for "The Rachel Maddow Show," in a recent op-ed for NBC News.
According to Sedler, the fears are exaggerated, as in cases of constitutional rights, "the court has not overruled any prior decisions."
"The Court will continue to render narrow decisions, which will be criticised by liberals," Sedler says. "But the court will not overrule Roe v. Wade or any other major decisions protecting individual rights, such as the right of same-sex couples to marry. There will be a lot of noise, but nothing will change. The Supreme Court will continue to play its role in the American constitutional system.
