President Biden’s recently announced attempt to impose term limits and an ethics code on the Supreme Court comes just three years after his “Presidential Commission on the Supreme Court” flirted with a court-packing proposal that was backed by many in his party. These two instances represent the only significant efforts by the executive branch, aside from Franklin Roosevelt’s New Deal court-packing plan, to change the makeup of the Court in response to politically unwanted judicial opinions.

　　After Justice Amy Coney Barrett filled the US Supreme Court position left vacant by the death of Justice Ruth Bader Ginsburg in the run-up to the 2020 presidential election, many Democrats supported a court-packing plan that would have increased the number of justices on the Court, thereby allowing the newly elected President Biden to nominate new justices who could outnumber the conservative voices on the Court.

　　Although no such legislation was passed at that time, a new round of demands for Supreme Court regulation arose in the wake of the Court’s decision last month in Trump v. United States, where the Court granted former presidents immunity from prosecution for any official acts conducted while serving as president. Protesting the decision, the latest proposal calls on Congress to impose term limits on the justices, as well as an ethics code.

　　Under the term limit proposal, the president could appoint one justice every two years for an eighteen-year term on the Supreme Court. Since appointments would be regularized through staggered terms of the justices, each presidential administration would have two, and only two, appointments to the Court. Furthermore, upon conclusion of an eighteen-year term of active service, every justice would automatically assume “senior status.” A senior justice could perform various functions related to the Court, such as sitting by designation to hear cases in the lower federal courts and assisting the chief justice with administration of the federal judiciary, but would not be an active member of the Supreme Court who could participate in deciding cases on the Court’s appellate docket.

　　The impetus for this senior status proposal lies in the system of life tenure for justices created by Article III of the Constitution. According to advocates of the reform proposal, the active/senior justice model serves to retain life tenure but divides that tenure into different phases: an active service of eighteen years, and a senior service covering the rest of the justice’s life term. Critics, however, argue that this senior phase amounts to merely a formalistic effort to keep the individual justice in a much-diminished judicial office, rather than as a functioning justice within the meaning of Article III.

　　In presenting his reform proposal, the president claims that it would restore public trust in a Court that has become extremist and unethical. As with the 2021 attempt to regulate the Supreme Court and alter its institutional independence, the current attempt stems from political dissatisfaction with recent decisions of the Court. This endeavor not only threatens the constitutional separation of powers, but contradicts the widespread belief, prevailing ever since Roosevelt’s failed plan, that political tinkering with the Court as a means of overturning disliked decisions was a tactic no politician should consider. Now this bipartisan opposition to court-manipulation has come under the most serious attack in nearly ninety years.

　　The immediate and obvious threat posed by political attempts to alter the Court to produce certain ideological results involves the time-honored principle of judicial independence from outside manipulation. As Alexander Hamilton recognized in Federalist #78, the weakest of the three branches of government (the judiciary) must be independent from encroachments by the other branches (the executive and legislative branches); consequently, life tenure was needed to provide insulation from such encroachments. As Hamilton argued, the Court must not only protect itself but must also protect and defend the Constitution against violations by the other branches.

　　Perhaps the most prominent and respected early authority on constitutional law, Joseph Story, articulated the necessity for independence of the Supreme Court in interpreting the Constitution. In his Commentaries on the Constitution of the United States, Story explains that the Constitution created the Court, and the Court preserves the Constitution; therefore, if the Court could not be insulated from political encroachment, then it would have to adjust its decisions to the political realities of the age.

　　The principle of judicial independence does not preclude Congress from any legislation on matters relating to the Court. Indeed, throughout the nineteenth century, Congress on numerous occasions altered the size of the Court. However, those regulations responded to workload needs of the Court, not an ideological opposition to the Court’s jurisprudence. The current Court reform effort clearly arose explicitly as a reaction against the Supreme Court’s decisions in such cases as Dobbs v. Jackson Women’s Health Organization, Loper Bright Enterprises v. Raimondo, and Trump v. US. The reform advocates base their proposal on arguments that the Court has lost public confidence and legitimacy through its decisions, that the US needs a Court structure more in line with the rest of the world, that the Court suffers from a structural dysfunction, and that its judicial decision-making would be improved by a greater diversity in its justices. The question arises, of course, of whether all these arguments simply stem from a political desire to affect the ideological direction of the Court. But no matter what, they clearly aim to change the substantive outcomes of the Court’s decisions.

　　Attempts to alter the structure of the Court to influence its decisions pose a serious assault on the fundamental principle of separation of powers engrained in the Constitution. As Senator Morris of New York explained in 1802, “the Constitution has given us … an independent judiciary,” which should be “preserved … in its vigor, and in great controversies where the passions of the multitude are aroused.”

　　As the impact of the New Deal constitutional revolution reveals, even the attempt at court-alteration can have radical effects on the substance of constitutional law.

　　The United States Constitution creates a government with three separate branches, each vested with different powers and each responsible for different functions. This system of separated powers stands at the core of constitutional structure. It forms the essence of American government, as fundamental as the vote or representative government. Each branch must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. The Court has often taken this approach, for instance, in addressing separation-of-powers cases: judging whether an act by one branch touches on the “essential function” of another. Court reform proposals explicitly aimed at changing the substantive outcomes of cases are, by their own terms, attempts to infringe on the function of the Supreme Court.

　　The Court’s duty of judicial review—examining the constitutionality of laws passed by Congress—requires a Court free of and protected from pressure by the political branches. Judicial review was established in the Court’s 1803 landmark decision of Marbury v. Madison, which marked the first time the Supreme Court declared unconstitutional an act of Congress. Contrary to the desires of Thomas Jefferson and his new Democratic-Republican Party, Chief Justice John Marshall wrote that the Court possessed an independent power to overrule legislative acts that violated the Constitution. However, this role of judicial review cannot retain its independence if Congress is allowed to ideologically influence the Court.

　　The most notorious, though unsuccessful, court-altering attempt in American history occurred during the New Deal, when President Roosevelt announced his plan to expand the size of the Supreme Court with liberal sympathizers who would uphold his New Deal legislation. This court-packing plan arose because the Supreme Court had already struck down numerous New Deal enactments on the grounds that those programs unconstitutionally expanded the power of the federal executive branch.

　　Roosevelt’s proposal not only outraged the public and the Republican Party, but it also met with much opposition within the Democratic Party, with even Vice-President Garner opposed to it. As the historian William Leuchtenburg observed, “In attempting to alter the Court, Roosevelt had attacked one of the symbols which many believed the nation needed for its sense of unity as a body politic.”

　　Given the widespread opposition to Roosevelt’s court-packing plan, it was doomed to fail, which it did. Nonetheless, despite its legislative defeat, the plan exerted a powerful influence on the Court. Shortly after President Franklin Roosevelt’s court-packing plan was introduced, the Court began to essentially rubber stamp all New Deal legislation. Termed “the New Deal constitutional revolution,” the Supreme Court wiped away nearly a century and a half of constitutional jurisprudence on such fundamental principles as limited government, separation of powers, and federalism.

　　As the impact of the New Deal constitutional revolution reveals, even the attempt at court-alteration can have radical effects on the substance of constitutional law. But such efforts also carry significant political dangers. The most dramatic of these is the instigation of an unending series of political interferences in the make-up of the Court.

　　Political attempts to alter the institutional makeup and ideology of the Court may also escalate the growing movement to politicize the Court in general. Reflecting this movement, the confirmation process for nominated justices has become increasingly bitter, shoving the Court into partisan conflict every time a new justice is nominated.

　　Given the dangers that the 1937 court-packing plan posed to the independence of the Supreme Court and the legitimacy of constitutional law, it is no surprise that no other serious effort to pack the Court occurred over the next eight decades. That two such efforts have now occurred within the past three years poses a troubling threat to the central constitutional tenet of separation of powers.