The Left’s Supreme Court ‘Reform’ Is Unconstitutional

The Left is once again beating the drum for “Supreme Court reform.” But regardless of method, changing the Court as a reflexive response to politically undesirable decisions would not only be bad policy, but also unconstitutional.
On July 29, President Joe Biden proposed “structural” changes, such as term limits that would force Supreme Court Justices to retire after 18 years. Vice President Kamala Harris claimed credit for helping develop the ideas. Another proposal to fundamentally alter the Supreme Court, called “court packing,” would add Justices to rebalance the court’s makeup. On July 1, Representative Hank Johnson (D-Ga.) posted on Twitter/X that “we must expand the court.” Senator Elizabeth Warren (D-Mass.) posted the following day, “I’ve said it before and I’ll say it again: it’s time to expand the Court.”
These reactions were largely in response to two 6-3 cases decided in June: Trump v. United States and Loper Bright Enterprises v. Raimondo, the Supreme Court. The decision in the former extended immunity to the president for “official acts,” while the latter sharply curtailed the power of administrative agencies.
As of now, six of the nine Justices—the six who voted in the majority in both of the cases mentioned above—were appointed by Republican presidents. Clarence Thomas was appointed by George H.W. Bush in 1991. John Roberts and Samuel Alito were appointed by George W. Bush in 2005 and 2006, respectively. Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were appointed by Donald Trump. Thus, for the Left, “Supreme Court reform” would mean either forcing current Justices off the Court through term limits, or adding four new appointments to the bench to flip the Court to secure a 7-6 Democratic majority.
Court packing faces an immediate pitfall. It would almost certainly result in an arms race over the nation’s Highest Court, yielding significant legal, political, and cultural strain and insecurity. If, for example, President Biden added four Justices, the next Republican president might add several more to achieve not just a simple majority, but an overwhelming one. Then the next Democratic president might follow suit and, before long, we could have dozens of Justices on the bench.
Term limits are no less problematic. Three of the current Justices, including Chief Justice John Roberts, have been serving 18 years or more. And two more Justices—appointed by President Barack Obama—are set to hit the 18-year mark in 2027 and 2028. There is no good answer for how to transition away from the status quo to term limits, and neither Biden nor Harris has offered one. They have certainly never explained why Supreme Court Justices—who are typically appointed around 50 years old—suddenly stop doing good work right before turning 70.
Perhaps most seriously, changing the composition of the Court could run afoul of the Constitution. Our system of government is based on a framework of checks and balances between three branches: judicial, executive, and legislative. These branches are separated to prevent the concentration of power in one place. Indeed, it is commonly understood that the legislative branch should not tell the judicial branch who the winner is in any given case. For instance, Congress should not enact a law saying that, “In the case of Jones v. Smith, Smith wins.”
There has never been any dispute on this principle. But it would immediately be imperiled if one party placed hired guns on the Court—through either court packing or term limits—to start reversing cases like Trump or Loper Bright. And that’s likely what would happen if a future president were able to appoint multiple Justices to the Court with the goal of attacking existing precedents.
Since the time of the early republic, the Court has held that interpreting the Constitution is first and foremost the task of the judiciary. There is no avoiding this principle simply by forcibly changing the Justices on the Court. Accordingly, making changes to the Court with the intent to reverse decisions raises deep constitutional problems. Imagine, for example, if a future President Harris appointed Elizabeth Warren, who had taken a decisive position on a specific issue or even publicly expressed her desire to see a particular decision overturned. Such an appointment would pose a grave threat to the separation of powers.
For now, President Biden’s proposal appears to be just a lame-duck idea. But someday, if Congress were to change the Court with the aim of flipping specific decisions, the existing nine Justices ought to have no reticence about nullifying any such effort as itself unconstitutional.
William E. Trachman is the General Counsel of Mountain States Legal Foundation and a former Deputy Assistant Secretary for Civil Rights in the U.S. Department of Education.
The views expressed in this article are the writer’s own.