There are many reasons why President Franklin Roosevelt’s infamous, 1937 “court-packing plan” went down in flames the year after he won a landslide reelection, and even though his Democrat Party controlled both Houses of Congress. High among the reasons for FDR’s humiliating legislative defeat was the correct perception both in Congress and among the population generally that the plan was nothing other than a blatant move to politicize the Supreme Court.
Now, nearly nine decades later, another Democrat President is trying the same gambit; this time by proposing to discard the lifetime tenure enjoyed by Supreme Court justices since the adoption of our Constitution in 1790, and instead limit them to a single, 18-year term on the High Court.
As with FDR’s ill-fated ploy to jimmy with the nation’s highest judicial body, President Biden’s term-limiting proposal, announced on July 29th as a “Bold Plan to Reform the Supreme Court,” should never become law.
Despite the Administration characterization to the contrary, Biden’s plan is nothing more than political sour apples; motivated by dislike of recent decisions by the current Supreme Court majority that are not in accord with either the President’s or his Party’s ideological views on abortion and the scope of presidential immunity for former President Donald Trump.
Biden’s plan also is contrary to his vow as a candidate in 2019 to oppose “court-packing.” The handwriting for Biden’s flip-flop on this issue, however, was evidenced by an Executive Order he signed in April 2021 setting up a “presidential commission” to study “reforms” to the Supreme Court.
Whether it be the mallet employed by FDR in 1937 or the lighter hammer wielded by Biden last month, both proposals are contrary to the idea of a Supreme Court as free as possible from political pressures from the presidency or the Congress; a principle enunciated clearly and at length in the Federalist Papers. Most notably, as Alexander Hamilton explained in Federalist No. 78, “permanent tenure of judicial officers” was essential if the nation in the future was to enjoy “liberty” under a government of “limited” powers.
Although the structure of a federal judicial system when Hamilton penned those words in 1788 was as yet untested, he and his Federalist co-authors (James Madison and John Jay) recognized even then that its judges must have the protection of permanent tenure -- in the language of the time, during “good behavior” -- in order to withstand inevitable pressures to serve the interests of the other two branches of the newly organized government
Every student of contemporary American government of course knows that the size, scope, and power of the federal government has grown far, far beyond anything that could have been imagined by Hamilton and our other Founders. Uncle Sam’s behemoth does not even faintly resemble that of “limited and enumerated powers” as they proposed and for which they so eloquently argued in 1787 and 1788.
Still, the disdain for those ideals, and the disingenuous manner by which today’s politicians, exemplified by Biden’s recent effort to change the make-up of the Supreme Court by mandating temporary tenure for its justices, should be deeply troubling to Democrats as well and Republicans, and to liberals as well as Conservatives. His proposal erodes and cheapens one of the true hallmarks of our system of checks and balances between branches of the federal government.
Just as importantly, however, distinguishing federal judges who are appointed by the president and subject to confirmation by the United States Senate, from their state system counterparts who are elected popularly and serve limited terms, provides another important and unique manner by which important, even life-saving civil and criminal matters are considered according to sometimes differing interests by the several states and the federal government.
Cavalierly toying with this carefully crafted and magnificently balanced judicial system has served America well for more than 234 years, even with all the political slings and arrows directed at it (some with good cause). Whether changes to that system are proposed by a popular and powerful president such as FDR in his second term, or a weak, lame-duck President Joe Biden in his final months in office, such moves should be quickly shown the exit door on Capitol Hill regardless of which Party is in power.
Bob Barr currently serves as President of the National Rifle Association. He represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.
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