The arguments against setting term limits for Supreme Court justices

Transcript

A MARTÍNEZ, HOST:

President Joe Biden unveiled a plan last week to reform the country's highest court. His proposal seeks binding ethics rules and term limits for the nine justices who sit on the Supreme Court. But House Speaker Mike Johnson immediately warned the reforms were, quote, "dead on arrival." Early in his presidency, Biden formed a presidential commission on the Supreme Court to weigh potential reforms. Adam White was a member of that panel. He's with the Conservative American Enterprise Institute, and I asked him what he took away from that experience.

ADAM WHITE: We studied a few issues, everything from adding new justices to the court to imposing judicial term limits on the current justices to changing procedures at the court. And it did give me a distinct sense of some of the real challenges and frankly, dangers of some of the proposed reforms to the court.

MARTÍNEZ: Like what? What were some of the dangers you thought?

WHITE: Well, when I joined the commission, I was already on the record as being a critic of expanding the court, or as I would often call it court packing. I thought that there were real problems with that. But another issue putting term limits on justices, I was actually fairly open to when I joined the Commission. There's a number of good reasons to consider judicial term limits, but the more time I spent studying the issue, the more I became a critic of the proposal.

MARTÍNEZ: You said you were open to it at the start. So what made you open to it?

WHITE: When the Constitution gave life tenure to judges and Supreme Court justices at the very beginning of our country, Life tenure meant maybe ten years, 20 years, maybe 30 years. Now, thanks to the wonders of modern medicine, technology, and nutrition, of course, somebody could be appointed to the court at age 50 and serve for 40 or 50 years. It has ratcheted up the stakes around each nomination. It's kind of the luck of the draw right now, whether a president gets to nominate one justice in four years or three justices in four years, or like President Jimmy Carter, zero justices in four years. I always felt from the start with the downside of judicial term limits is that we have life tenure for some very, very important reasons. We don't want the justices looking over their shoulder at what their next job is going to be.

MARTÍNEZ: What would you say would be some of the possible worst outcomes if term limits went ahead?

WHITE: First of all, trying to change it by statute would create an enormous political fight. I think it would invite retaliation from one administration to the next. Having more warfare back and forth, each administration, each Congress, trying to gerrymander the courts justices around who the politicians want to hear cases for the next two or four years, I think is a very, very dangerous game. It's one of the reasons why I'm against court expansion, court packing, too is that once we start that fight, it never ends. And each successive administration will want to get some payback. And so if you add two justices to the court, the next president's gonna want to add three more justices to the court, and it becomes an even worse political situation than we currently have.

MARTÍNEZ: Now, this plan that President Biden's unveiled, it's toward the end of his presidency. Where do you see all this heading if Vice President Harris becomes President Harris?

WHITE: Well, so much, of course, hinges on who not only wins the White House, but also the House and the Senate, what the future of the filibuster would be in the Senate.

MARTÍNEZ: If Donald Trump becomes president again, it is, as Mike Johnson said, dead on arrival for sure.

WHITE: Dead on arrival, but I think current advocates for this proposal ought to think carefully about how it might arise elsewhere. Let me just give you a quick example. In some ways, the second most important court in the country is the U.S. Court of Appeals for the DC Circuit. It's a federal court. I clerked on it a long time ago. It leans, I'd say, non-textualist. Most of its judges were appointed by Democratic presidents. They would be very, very skeptical, I think, of some of a future Trump administration's policy changes. I think if there actually was a real debate over packing courts, expanding courts, you could see a future Republican president and future Republican Congress, arguing that we need to expand the D.C. Circuit, basically pack that with new Trump-appointed D.C. circuit judges. These arguments about the shape of courts, how we treat them politically, can have real ripple effects beyond the Supreme Court.

MARTÍNEZ: Now, the other key piece of all this is the binding code of conduct for justice. What are your main concerns there?

WHITE: My main concerns are mostly about separation of powers. Obviously, because judges are appointed for life, judicial ethics are incredibly important, and every judge needs to take that seriously. When you try to implement that, both when you're imposing a code - say, Congress would be writing a code for the Supreme Court, that raises real questions about whether that coequal branch of government, Congress can regulate directly its coequal branch over in the Supreme Court.

MARTÍNEZ: That's Adam White, senior fellow at the American Enterprise Institute, Adam. Thanks.

WHITE: Thank you. Transcript provided by NPR, Copyright NPR.