Seated from left are Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito and Elena Kagan.
Standing from left are Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, and Ketanji Brown Jackson.
Credit: Fred Schilling, Collection of the Supreme Court of the United States
This past week President Biden recommended three proposals that would drastically change the United States Supreme Court. He recommended that justices, who now have lifetime appointments, be limited to a single 18-year term; the adoption of a codified set of ethical standards that would mirror ethical standards that currently exist for federal district and appellate court judges; and a proposed constitutional amendment that would overturn the Supreme Court’s ruling in Trump vs The United States that grants virtually unlimited immunity to the president.
This is not the first time that a president proposed changes to the high court. In 1937, President Franklin D. Roosevelt, in the wake of his overwhelming re-election victory in 1936, proposed the Judicial Reform Act of 1937. The bill, which would come to be known as the “court-packing bill,” sought to add one additional justice to the Supreme Court for every justice over the age of 70 with a limit of 15 justices. While FDR publicly framed the proposed changes on the premise that the justices were overworked and needed help, he had an ulterior motive.
The real reason for FDR’s attempt to add members to the Supreme Court was his frustration with the court over a series of rulings that struck down major portions of his New Deal legislation. During his first term, FDR did not have an opportunity to appoint a single justice to the high court. So his thinking was that if he could appoint additional justices, their thinking would be more in line with his New Deal programs and their votes would neutralized the votes of the conservative justices.
But FDR’s proposal was pretty much dead in the water from its inception. He failed to get widespread support from his own party who controlled both the House and the Senate. And when Chief Justice Charles Evans Hughes, in a complete departure from the tradition of the court being impartial on pending legislation, advised Congress that the court was not overworked or behind in its docket, all chances of passage of the bill went down the tubes. Historians see FDR’s “court-packing bill” as one of his major defeats.
But seemingly, the Supreme Court recognized the mood of the country that was generally supportive of the New Deal. FDR had carried 46 of the 48 states in the last election. Suddenly, the court started to look more favorably on New Deal legislation that sought to safeguard the rights of workers and things like child labor laws and minimum wages and look less favorably on captains of industry who sought to limit the rights of the working classes. Historians refer to it as the “switch in time, that saved nine.”
In addition, Congress had reinstated the full pension for Supreme Court Justices that had been reduced by half several years earlier. Within a year, elderly justices, with their pensions restored, started to step down. Their departure allowed FDR to nominate new justices, eventually naming nine members of the Supreme Court over the course of his presidency.
By way of background, it is not unusual to change the number of judges on the Supreme Court. The number of justices has fluctuated over the years. The Supreme Court started with six justices in 1789, with a high of ten in 1863. However, in 1869, Congress passed legislation setting the number at nine and the court remained at nine since that time.
The authority of the Supreme Court stems from Article III Section I of the Constitution, which says that “The Judges, both of the supreme and inferior courts, shall hold their office during good behavior.” That language has always be interpreted as meaning a lifetime appointment, making America the only modern democracy that grants lifetime tenure to its highest court.
In the opinion of many legal scholars, this section means that justice can only be removed by impeachment. And there has only been one impeachment of a Supreme Court Justice. In 1804 Justice Samuel Chase — not to be confused with Ohio’s Salmon P. Chase — was impeached by the House. But in 1805, the Senate acquitted him.
While there are some legal scholars that argue that tenure for the justices can be changed by statute, this is a minority view. Eminent constitutional scholar Erwin Chemerinsky, dean of the University of California at Berkeley Law School, opined in the July 24, 2024 New York Times that there must be a constitutional amendment to impose term limits on the court. Since any term limits imposed by statute would alter the provision of the Constitution that says that judges serve “on good behavior,” it seems logical that a constitutional amendment would be necessary to alter that provision.
The problem is that the Constitution is not easily amended. In the history of the nation, it has only been amended 27 times. The process for amending the Constitution requires a vote of 2/3 vote of both houses of Congress and then the amendment must be approved by the legislatures of 3/4 of the states. Considering the conservative makeup of state legislatures around the nation, it is unlikely that Republican controlled legislatures would vote to change the status quo.
As to the adoption of a code of ethics for Supreme Court justices that would require disclosure of gifts and outside income, the problem is enforcement. Congress can pass an act, but Congress and the Supreme Court are independent branches of government. Congress would have no enforcement powers, short of impeachment, if the court chose to thumb its nose at the proposed code of ethical conduct. Ideally, the court would adopt its own set of ethical standards — a move that would greatly enhance the court’s image.
Senate Majority Leader Chuck Schumer recently announced a proposed bill regarding presidential immunity. Labeled the “No King Act,” it is in response to the Supreme Court’s ruling in Trump v. United that held that the nature of presidential power requires that a former Ppresident have some immunity from criminal prosecution for official acts during his tenure in office. However, even if the bill passes the Senate, it will face an uphill climb in the Republican-controlled House. And once again, the only sure way of overturning the decision in Trump v. The United States is the passage of a constitutional amendment; otherwise, any action brought under Schumer’s new law could be overturned by the Supreme Court.
President Biden’s proposed changes to the Supreme Court are well thought out and would enhance public opinion of the court and in many respects bring the Supreme Court into the 21st century. If justices had a specific term of office, eventually each president would have an opportunity to appoint justices to the court, making the composition of the court more reflective of the electorate.
Even though the proposals face uphill battles, they have a positive effect. President Biden recognizes that there is a problem and has put the matter out there for discussion for the good of the country. People are talking about it. That is a good thing. Change takes time. But Biden has at least started the discussion.
While legal scholars debate the pros and cons of the proposals, Democrats and other alarmed citizens concerned about the direction of the court have a bigger task at hand. They must stay laser focused on the November election. That is the first hurdle. If Trump is re-elected in November, Biden’s proposals are an historical footnote to his presidency. And Trump’s facilitator in the Mar-A-Logo documents case, Judge Aileen Cannon, will have her eyes on a seat on the United States Supreme Court.
The fate of the Supreme Court lies in the hands of the voters. Elections have consequences and the consequences of the next presidential election will determine not only who sits in the Oval Office but the makeup of the United States Supreme Court for the remainder of the 21st Century. This election will determine if America remains a democracy and whether you even have the right to vote in the next election — assuming there is one.
Voting in November is just that important!
C. Ellen Connally is a retired judge of the Cleveland Municipal Court. From 2010 to 2014 she served as the President of the Cuyahoga County Council. An avid reader and student of American history, she is a former member of the Board of the Ohio History Connection, and past president of the Cleveland Civil War Round Table, and is currently vice president of the Cuyahoga County Soldiers and Sailors Monument Commission. She holds degrees from BGSU, CSU and is all but dissertation for a PhD from the University of Akron.
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