The Senate votes Monday to place Judge Amy Coney Bennett on the Supreme Court in a decision that will resonate for decades. The railroading of her nomination through the confirmation process has sparked a broader discussion about Democrats’ “packing the court” with new justices. But it’s a discussion that kicks off from a set of wrong assumptions.
Progressive Democrats argue that adding new seats is a necessity after Republicans blocked a vote on Judge Merrick Garland’s nomination in 2016, in contrast with their warp-speed coronation of Barrett. Even as big names like Julián Castro, Sen. Ed Markey and Rep. Alexandria Ocasio-Cortez have come out in favor of this rebalancing, the party’s standard-bearer avoided weighing in. After weeks of dodging, saying he didn’t want his answer to become a distraction, former Vice President Joe Biden said on CBS News’ “60 Minutes” that he’d appoint a bipartisan commission to look into the question.
Should Biden win and his commission assemble, it would have a host of possible reforms to study, including potential alterations to the structure of lower courts and methods to increase access to justice for low-income and minority people. It could well advise adding more seats to the court. But more likely, it would wind up promoting what President Franklin Delano Roosevelt wanted from the “court packing” imbroglio he kicked off — limits on how long the nine justices can stay on the court.
At the start of his second term, Roosevelt issued his threat via the Judicial Procedures Reform Bill of 1937. Under its terms, the president would be able to add a new justice to the court for every member over age 70 who had served more than 10 years — that could have led to as many as six new justices if the bill had passed and the Senate confirmed the justices. As the political legend goes, Roosevelt was sick and tired of the more conservative justices’ striking down parts of the New Deal and wanted to appoint more favorable arbiters. Even as backlash to the proposal kept him from following through, in this telling, the cowed justices began upholding the New Deal’s programs in legal challenges.
But in a 2019 Politico Magazine article, Judge Glock laid out that rather than being about expanding the court forever, Roosevelt’s maneuvering was taking aim at justices who he’d felt had stayed on the court for too long, depriving him of the ability to nominate new justices. If they had just retired as Roosevelt felt they should, no new justices would have been added to the court, keeping the number at nine. A major factor in the judiciary’s reluctance wasn’t ideological, Glock argued, but simply because at the time, the pensions justices received after retiring were about half of their salaries if they stayed in office. Roosevelt accordingly tied his threat of adding seats to a proposal that would have raised former justices’ pensions.
The term “court packing” itself was always intended to kneecap Roosevelt’s plans, reportedly having been coined by a controversial businessman and former newspaper publisher named Edward Rumely. After having served as an economic adviser to FDR, Rumely had become disillusioned with the New Deal by the mid-1930s, seeing it as too anti-business. He teamed up with the publishing giant Frank Gannett, and their National Committee to Uphold Constitutional Government bombarded the public with anti-court-packing propaganda. The framing worked — according to Gallup’s archives, a month after the proposal was introduced, 53 percent of Americans were against it. (It’s worth noting how partisan the divide was — 70 percent of Democrats backed Roosevelt, while 92 percent of Republicans were opposed.)
Fast-forward to today: The pension hike FDR sought is in place, but as Glock points out, the money is subject to congressional whim — it can always be slashed by a vengeful legislature, unlike the salaries of justices still serving. As it stands, according to the advocacy group Fix the Court, even with a fully funded pension guaranteed, justices are overstaying their welcome, clinging to their seats for an average of 28 years.
Some of that longevity, like that we saw from Justice Ruth Bader Ginsberg, has coincided with a rise in partisanship on the courts, a reflection of the other branches of government’s seeking more ideological purity from their parties’ picks. In that environment, it makes sense that justices cling to seats to prevent an opposing-party president from filling vacancies.
Meanwhile, the average age of nominees is dropping, as the possibility of three decades or more on the court is understandably tantalizing for the parties. A 2014 article in the Arizona State Law Journal found — even before accounting for President Donald Trump’s nominees, Brett Kavanaugh (53), Neil Gorsuch (50) and Barrett (48) — that the average age of Republican nominees to the high court had been trending lower than for nominees from Democratic administrations since the 1970s. That’s even truer in the lower courts, where the ages of Trump’s nominees for federal judgeships have recently plunged into the 30s and 40s.
That leaves two options to clear space on the Supreme Court: either stick with what Roosevelt was seeking, an age limit for justices, or choose the seemingly more palatable option: term limits. It’s a proposal that has gotten backing from groups as varied as the liberal Center for American Progress and the libertarian Cato Institute. A 2015 Reuters-Ipsos poll found that at the time, 66 percent of Americans backed some form of term limits for justices. And Chief Justice John Roberts himself has spoken favorably about limiting justices’ length of service.
There are a few variations among the proposals floating around out there, including how long such a term would be and whether it could be renewed. One of the more popular options is for a single term of 18 years — literally a generation, by one definition. The Brennan Center for Justice framed its version of the proposal like this:
First, Supreme Court appointments should be regular. Every president, in the first and third year of each term, would nominate a Justice, subject to Senate confirmation. Second, each new Supreme Court justice would serve a single 18-year term — still “during good behavior.” (This term limit would not apply to current justices.) And if a new justice did not serve a full term due to retirement or death, his or her successor would be nominated only to complete the remainder of the 18-year term. The successor would not get a new 18-year term. Regular appointments work only if accompanied by term limits — which have independent benefits as well. Without a term limit, regular appointments, coupled with increasing longevity, would lead to a court that was huge. Moreover, an 18-year limit fits with a 9-member court. Eventually, two justices will end their 18-year term in each four-year presidential term, just as two new justices are appointed.
The language in Article III, Section 1 of the Constitution, which set up the Supreme Court, is at least a little fuzzy on length of service. It says federal judges “shall hold their Offices during good behavior,” which has been interpreted to mean “for their whole, entire lives unless they’re impeached.” That leaves wiggle room, in theory, for Congress to pass a law putting limits on the Supreme Court, as in a bill several House Democrats introduced in September. Their draft would, per SCOTUSblog, have appointees turn into “senior justices” after their terms end, with the most recently named senior justice “able to temporarily rejoin the court in the event of an unexpected vacancy.”
“Although the current eight justices would be exempted, the two-year appointment cycle would take effect immediately, without waiting for them to retire,” SCOTUSblog reported. Congress’ giving it a shot could provoke a good bit of irony, though: Such a law could then likely be challenged in the courts, potentially allowing the Supreme Court itself to overturn it. (When I asked my fellow MSNBC columnist Joyce White Vance via Twitter DM on Friday just who would actually have standing to bring such a challenge, she let me know that “the standing issue would in practice, be construed quite broadly because of the court’s interest in hearing the challenge.”) That means a change would likely need a constitutional amendment to really stick. The last time one of those was ratified was in 1992 — for an amendment about congressional pay that was proposed back in 1792. Before that, it was setting the voting age nationwide at 18 in 1971. So … it’s been a minute. It’s also worth noting the lack of immediacy of these plans, a major downside for proponents of expanding the court. But that could be corrected if the term limit was made retroactive. As it stands, only two justices stand to be affected by the 18-year range: Stephen Breyer, at 26 years on the court, and Clarence Thomas, who has spent 29 years on the court. Moving forward, the “first and third year” framework could then be put into place for the remaining justices, establishing the pattern moving forward. Biden is due to travel to Georgia for the first time in the campaign cycle Tuesday. He’ll hit up Atlanta, of course, as part of the Democrats’ increasingly less long-shot bid to win over the state next week. But he’ll also stop at Warm Springs — where Roosevelt retreated for rehabilitation when he was struck with paralysis in his late 30s. Biden is likely to speak about the New Deal’s impact on Americans’ lives. And who knows? Maybe the spirit of FDR will inspire him about the Supreme Court, too, during his visit. Hopefully you’re well rested after your weekend. Here are some links to things you should read to help properly shatter that calm. A win, no matter the margin, will embolden Trump to ax anyone he sees as constraining him from enacting desired policies or going after perceived enemies. CORRECTION (Oct. 26, 2020, 10:30 a.m. ET): A previous version of this article misstated the publication date of Judge Glock’s Politico Magazine article. It was published in 2019, not 2015.
Hayes Brown is a writer and editor for MS NOW Daily. 
