A President Harris Might Not Get Any Supreme Court Picks
Read the original article, “A President Harris might not get any Supreme Court picks–Biden proposes term limits to make sure all future presidents get two.” This may not be the case for a hypothetical president Kamala Harris. Harris may not be able to fill the vacancy of a departing conservative justice, even if she wins in November and is reelected in 2028. This opportunity has never been denied to a president who was re-elected. In contrast, President Donald Trump was able to appoint three justices in a single term.
This inconsistency is one of the reasons why President Joe Biden’s call for Supreme Court reform, which Vice President Harris supports, should be considered a meaningful attempt to address a relatively new development that has diminished the ability of the people–through their elected representatives in the White House and the Senate–to shape an unelected Supreme Court.
Biden’s reform plan, outlined in an op-ed and a speech at the LBJ Presidential Library in Austin, Texas, includes two major legislative elements: 18-year term limits for justices and a “binding code of conduct” for the Court’s members. The former proposal is particularly relevant for the future makeup of the Court and the presidential election in November.
The Supreme Court’s place in American democracy
While every child in America learns in school of the Supreme Court’s independence, historically the justices have not been walled off from the larger world, issuing decisions while wearing political blinders.
Instead, they have been aligned with the enduring political regimes that dominated much of American history. Consider, for example, Thomas Jefferson’s Democratic-Republican Party and Abraham Lincoln’s Republican Party. Each party won six consecutive presidential elections. Franklin D. Roosevelt’s Democratic Party won 5 consecutive presidential elections. From 1968 to 1992, Republicans won five of six presidential elections.
The Court’s alignment with a dominant regime mattered greatly for American democracy. McCloskey’s book The American Supreme Court was published in 1960. McCloskey concluded that the Court rarely “lagged behind or forged ahead of America.” Rather, it stayed “with the mainstreams” of American life, and never overestimated their own power. In my book A Supreme Court Unlike Any Other, The Deepening Divide between the Justices and People, I argue that these changes have undermined democratic legitimacy of the Court because the electoral connection once existing no longer exists. Seven of the last eight presidential elections have seen Democratic candidates win the popular vote. Yet, six of the nine current justices have been appointed by Republican presidents.
One of the key changes has been the length of time justices serve today. When Chief Justice John Marshall passed away in 1835, his record of service was 34 years and 5 months. This would be only be exceeded by one justice for the next 140-years. Indeed, from 1789 to 1971, justices served just over 16 years on average.
Today, however, presidents of both parties choose young nominees–generally around 50–with the expectation that they will serve several decades. In my book I wrote that if today’s justices continue on their current path, Marshall’s mark would become the norm. Assuming all stay on the Court until their 85th birthday–a few months older than the mean age of the last five justices to depart–they will have served 33 years on average.”
No change for another decade?
Consider that soon after he won his brutal confirmation fight in 1991 at the young age of 43, Clarence Thomas pledged to serve until he was 86. These words, while spoken many years ago, may not have been fulfilled. However, they do highlight a concern about the place of the court in American democracy. This is not an unreasonable assumption. Justices are known to serve on the Court into their 80s. Remember that Ruth Bader Ginsburg died in 2020 at the age of 87. Let’s assume, furthermore, that none of the eight younger justices will die or retire prior to Thomas. That would mean there would not be another Supreme Court vacancy until 2034, when Thomas departs after 43 years–nearly 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 reelected in 2028, she would not have an opportunity to alter the court.
The Court and political change
Enabling change is a centerpiece of democracy. But in choosing the like-minded youthful nominees intended to serve for decades, presidents hope to insulate policy from the ballot box.
Presidents admit as much by often saying that one of the most significant decisions they make in the Oval Office is their selections for the Supreme Court.
Why? The presidents do this because they know that justices are likely to continue to influence American politics and law long after their presidency is over. Only one justice has served under two decades in the past 50 years, David Souter. Now, it’s expected. Now, it’s expected.
Biden’s reform
Biden’s call for an 18-year term limit for the justices seeks to rectify this development, putting the Court back in 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 would know the forthcoming departures and should be informed of the types of high court appointees the presidential candidates have promised to choose.
Finally, voters will no longer have to morbidly sit back and wonder if an aging justice will live past the next election, as liberal voters did with Ginsburg in 2020. The court will become more democratic and in line with American traditions. Nevertheless, it offers 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 Court, I believe it offers an opportunity to provide the Court with a greater sense of democratic legitimacy.
