Political News and Conservative Analysis About Congress, the President, and the Federal Government
At issue are multiple media reports that Biden plans to propose a package of “reforms” related to the high court. Just about every report says one of the main reforms would be “legislation” to impose term limits on justices. The problem isn’t necessarily with the idea of some sort of term limit. The problem is that no term limit can be imposed on federal judges through ordinary legislation.
This isn’t even debatable. This is not a matter of opinion or interpretation. There is no remotely legitimate or defensible interpretation of the Constitution that would allow term limits unless the Constitution itself is amended. The second sentence of Article 3 of the Constitution begins thusly: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” By “good behavior,” it means they absolutely cannot be involuntarily replaced unless they commit a transgression serious enough to earn impeachment from the House and removal by a two-thirds vote of the Senate.
The point is to insulate judges from transitory politics. That insulation should not be, and is not, removable through the sort of transitory politics that ordinary legislation represents.to make an end run around the Constitution by a complicated sleight of hand. They would create more than nine slots on the Supreme Court and then allow only the nine most recently appointed justices to rule on all but an extremely narrow subset of cases defined by a different constitutional clause.
On the other hand, if Biden wants to argue for a constitutional amendment for court term limits, there may be some good arguments in favor. He should not, however, pretend that Congress and the president have the power to enforce term limits without recourse to the people’s will, acting through legislatures in our respective states. No amount of hocus pocus can give Congress authority to do something the Constitution clearly forbids.
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