This article is republished from The Conversation with a Creative Commons license. Read the original article, “A President Harris May Get No Supreme Court Picks—Biden Proposes Term Limits to Ensure All Future Presidents Have Two.”
With Kevin J. McMahon
To emphasize the importance of the election, presidential candidates often predict that the next president they will have the opportunity to fill one or two vacancies on the Supreme Court.
But in the case of a hypothetical President Kamala Harris, that may not be true. Even if Harris were to win in November and then win re-election in 2028, she may not have the chance to reshape the Court by filling the seat of a departing justice, especially a conservative one.
Jimmy Carter was the only one-term president who did not fill a Supreme Court vacancy. No president who won re-election has denied this opportunity. Instead, President Donald Trump succeeded appoint three judges in a single term.
This inconsistency is one of the reasons why President Joe Biden’s call for Supreme Court reform, supported by Vice President Harrisshould be seen as a substantial attempt to address a relatively recent development that has diminished the ability of the people—through their elected representatives in the White House and Senate—to shape an unelected Supreme Court.
Biden’s reform plan, outlined in an article and a speech at the LBJ Presidential Library in Austin, Texas, includes two key pieces of legislation: 18-year term limits for judges and ‘binding code of conduct’ for the members of the Court. The previous proposal is particularly important for the future composition of the Court and the presidential elections in November.
The place of the Supreme Court in American democracy
While every child in America he learns in school about the independence of the Supreme Courthistorically judges have not walled themselves off from the wider world, issuing decisions wearing political blinders.
Instead, they have aligned themselves with the enduring political regimes that have dominated much of American history. Consider, for example, Thomas Jefferson’s Democratic-Republican Party and Abraham Lincoln’s Republican Party. Each party won six presidential elections in a row. Franklin D. Roosevelt’s Democratic Party won five consecutive presidential elections. From 1968 to 1992, Republicans won five of the six presidential elections.
Aligning the Court with a sovereign regime was of great importance to American democracy. It was the main reason political scientist Robert McCloskey concluded in his widely read book, The Supreme Court of Americafirst published in 1960, that the justices rarely “lagged far behind or forged far ahead of America.” Instead, McCloskey concluded, the Court had typically remained in line “with the dominant currents of American life and rarely overestimated its own resources of power.”
Much has changed in the six-plus decades since McCloskey wrote those words. As I argue in my recently published book, A Supreme Court Like No Other: The Deepest Divide Between Judges and the Peoplethese changes have undermined the Court’s democratic legitimacy because the electoral bond that once existed no longer exists. Democratic candidates have won the popular vote in seven of the last eight presidential elections. However, six of the current nine justices have been appointed by Republican presidents.
One of the key changes was the the time the judges are serving today. Consider that when Chief Justice John Marshall died in 1835, he had set a record of service—34 years and five months—that would be surpassed by only one justice in the next 140 years. Actually, from 1789 to 1971judges served just over 16 years on average.
Today, however, presidents of both parties select new candidates– generally around 50 –with the expectation that they will serve for several decades. As I write in my book, “if today’s judges continue on their current course, Marshall’s sign will become commonplace. Assuming they all stay on the Court until their 85th birthdays—a few months older than the average age of the last five judges to leave—they will have served an average of 33 years.”
No change for another decade?
Think about it right after won the brutal confirmation race in 1991 at the young age of 43, Clarence Thomas he promised to serve until he was 86. While these words were spoken a long time ago and may not be fulfilled, they highlight a central concern about the court’s place in American democracy today.
To help explain, let’s take Thomas at his word and assume for a moment that he is able and does fulfill this promise he made long ago.
This would mean that at 76, Thomas-at this time the oldest justice— would stay on the Court for another decade. As noted above, this is not a crazy case, as Justices typically stay on the Court into their 80s. Remember that Ruth Bader Ginsburg he was 87 when he died in 2020. John Paul Stevens he was 90 when he retired in 2010.
Assume further that none of the other eight younger justices die or retire before Thomas. That would mean there wouldn’t be another vacancy on the Supreme Court until 2034, when Thomas retires after 43 years—almost seven years longer than the current record, held by William O. Douglas.
It would also mean that if Harris were elected to the presidency in November and re-elected in 2028, she would have no chance to change the court.
The Court and political change
Enabling change is central to democracy. But by selecting like-minded young candidates destined to serve for decades, presidents hope to insulate politics from the ballot box.
Presidents admit as much, often saying that one of the most important decisions they make in the Oval Office is their Supreme Court picks.
Why? It’s because these presidents understand that judges will continue to influence American law and politics long after their presidencies are over and long after the elections they won have faded from our collective memories.
For much of American history, judges served about a decade and a half, on average. However, only one judge has been appointed in the last 50 years—David Souter—has served less than two decades.
So while the lifetime service rules have always been in place, today’s judges have changed the terms of the deal. It was rare for three decades to do justice. Now, it’s to be expected.
Biden’s reform
Biden appeals for 18-year term limit because justice seeks to correct this development, returning the Court to its historical routine.
With two vacancies every two years, voters will understand the potential impact of their presidential vote on the makeup of the court. They will be aware of the impending departures and should be informed about the types of Supreme Court appointees that the presidential candidates have promised to select.
Finally, voters will no longer have to sit morbidly wondering whether an aging justice will live past the next election, as liberal voters did with Ginsburg in 2020. The result will be a court more in line with the nation’s democratic traditions.
Given it lame regime of the president and Republican control of the Housethe term limit proposal will not pass this year. Still, it gives voters something serious to consider as they make their decisions about the candidates.
And, as a scholar who studies the American presidency and the Supreme CourtI believe it offers an opportunity to provide the Court with a greater sense of democratic legitimacy.
