The Supreme Court was on President Joe Biden’s mind Wednesday night as he delivered historic remarks from the Oval Office about his decision not to run for re-election. He mentioned the court among both his past accomplishments and in his vision for the future, citing his appointment of Justice Ketanji Brown Jackson and telling the nation that he’s going to call for reforms.
Both the past and future aspects highlight the crucial role that the composition of the court plays in November’s presidential election — as it has in every election, whether people have realized it or not.
Indeed, one of Donald Trump’s most lasting presidential legacies may be his appointment of three justices in a single term: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Unless a surprise vacancy arises before he leaves office, Biden will have appointed one justice: Jackson.
To be sure, the number of justices a president appoints can be more a matter of chance than skill, especially when it comes to variables like a justice’s health. That unpredictability alone underscores the importance of each election, as Republican appointees Clarence Thomas and Samuel Alito are in their mid-70s and Democratic appointee Sonia Sotomayor is 70. It’s hard to imagine a Republican-appointed justice stepping down voluntarily during a Democratic administration, and vice versa. Of course, that political reality hasn’t played out equally across party lines, leading to today’s 6-3 Republican supermajority that has delivered significant wins for the Republican Party.
The gamesmanship inherent in the current process highlights the benefit of one of the Supreme Court reforms that Biden could adopt: term limits. Knowing how long a justice would serve ahead of time could remove some of the unnecessary chaos that governs the nation’s top court and, in turn, the nation. Alternatively, adding seats to the court could more immediately balance it out, but that doesn’t appear among the changes that Biden is reportedly considering (not that any reforms are likely to pass this Congress).
There’s also the question of whether this Supreme Court would strike down reforms reportedly backed by Biden like term limits and an enforceable ethics code. Perhaps paradoxically, expanding the court is the most legally straightforward measure (it’s been done before throughout the court’s history), even if it’s politically the least likely. At any rate, the dim prospects of any imminent reforms shouldn’t stop Biden from centering the court in the national conversation. Ultimately, whether one wants court reform or the appointment of favored justices in the meantime, the court — and the Congress involved in any reform legislation and the judicial appointments process — is on the ballot in November. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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