The American political left has been quite unhappy with the US Supreme Court for several years. Progressives have been furious in the wake of rulings such as the 2022 Dobbs decision overturning Roe v. Wade or the more recently Loper Bright decision rolling back the authority of federal regulators.
In response, on July 29, President Joe Biden proposed three reforms to the Supreme Court. These so-called “reforms” have sparked significant controversy because they essentially seek to limit the Supreme Court’s power as a co-equal branch of government. The White House’s reforms, with vocal support from members of Congress, raise significant concerns about the future of judicial independence in the United States.
As Northwestern Law professor Steven Lubet wrote in a 1997 Hofstra Law Review article, “It is the independent judge, loyal only to the rule of law, who protects our constitutional liberties, ensures fairness, and stands guard against the excesses of those in power.”
An independent judiciary that is unwaveringly loyal to the rule of law and immune to the whims of political power is a cornerstone of the American republic. President Biden’s proposals threaten to undermine this fundamental principle.
The first proposed reform from the White House involves imposing term limits on Supreme Court justices. While proponents argue that term limits could bring fresh perspectives to the bench, the real risk lies in politicizing the judiciary — even more than it already is.
Judges will feel pressured to make decisions that align with prevailing political currents to secure future appointments or favorable public opinion. This political sway undermines the judiciary’s role as a neutral arbiter and guardian of constitutional liberties, as justices could become unduly influenced by the political landscape instead of feeling secure in the current appointment construct.
The second reform suggests expanding the number of justices on the Supreme Court, a measure often called “court-packing.” Historically, attempts to alter the court’s composition for political gain have been viewed as assaults on judicial independence.
Presidents have tried this before. Most famously, in 1937, President Franklin D. Roosevelt proposed the Judicial Procedures Reform Bill, commonly known as the “court-packing plan,” which sought to add more justices to the US Supreme Court. Frustrated by the Court’s resistance to New Deal legislation, Roosevelt suggested appointing an additional justice for every sitting justice over 70, up to a maximum of six new justices.
This move was intended to shift the court’s ideological balance in favor of his policies. However, the plan faced fierce opposition from Congress and the public, who viewed it as an overreach of executive power and a threat to judicial independence. Critics argued it would undermine the judiciary’s role as an impartial arbiter and set a dangerous precedent for future administrations. Ultimately, the bill failed to pass, and the controversy surrounding it damaged Roosevelt’s political capital, demonstrating the deep-seated value Americans place on an independent judiciary.
Expanding the court risks eroding public trust in its impartiality, transforming it into a mere extension of the politically elected branches. Biden’s proposal could lead to a retaliatory cycle where each party, upon gaining power, alters the court’s composition to align with its ideological preferences, thus erasing the stability and continuity essential to the judiciary’s role.
The final proposal from President Biden is the introduction of a binding code of conduct for Supreme Court justices. And while it seems innocent enough, it poses a significant threat to judicial independence by potentially subjecting justices to politically motivated scrutiny and manipulation.
While transparency and ethical standards are crucial, the imposition of such a code by Congress risks turning ethical oversight into a tool for political witch hunts. If you have followed politics for any time, you know that members of Congress cannot resist some investigation or hearing, and a code of conduct imposed by Congress will only throw gasoline on the flames of a legislative institution that is increasingly unserious and uninterested in legislating — its constitutional role.
This code of conduct could enable Congress members to initiate investigations or push for recusals of justices based on partisan interests rather than genuine ethical concerns. Such actions could undermine the public’s confidence in the judiciary’s impartiality, as justices might be pressured to align their decisions with the preferences of those who could enforce the code.
This politicization threatens the foundational principle of an independent judiciary, which is essential for fair and unbiased interpretation of the law. By potentially exposing justices to constant scrutiny and accusations, the reform could erode the Court’s authority and independence, transforming ethical oversight into a mechanism for political leverage.
These reforms collectively pose a severe threat to the independence of the judiciary. An independent judiciary serves as a check against the abuse of power, ensuring that no branch of government can infringe upon the rights and liberties guaranteed by the Constitution. Diluting this independence through term limits, court-packing, and a judicial review council risks transforming the judiciary into a political instrument rather than a neutral arbiter of justice.
Congress can already check the judicial branch’s power, and if something is wrong with a justice, they should be impeached. Otherwise, the wheels of justice should not halt on the whim of a congressional investigation.
As Professor Lubet rightly noted, an independent judge is essential for protecting our constitutional liberties and ensuring fairness. These proposals from the White House challenge the very foundation of judicial independence, threatening to compromise the integrity of the Supreme Court and, by extension, the balance of powers that underpins our republic.