The Seventh Rule of Court Packing Is To Rule Out Term Limits for Supreme Court Justices

Biden: "It's a lifetime appointment. I'm not going to attempt to change that at all... But I have made no judgment, my word."

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The first rule of Court packing is you do not talk about Court packing.

The second rule of Court packing is you do not talk about Court packing.

The third rule of Court packing is you only talk about Court packing after the election.

The fourth rule of Court packing is accuse the Republicans of Court packing.

The fifth rule of Court packing depends how Republicans handle it.

The sixth rule of Court packing is appoint a commission to recommend court packing.

The seventh rule of Court packing is to rule out term limits for Supreme Court Justices.

Today Vice President was asked if he would be open to a recommendation from the Garland Commission for term limits. Biden emphatically rejected that position, but then insisted that he had not yet made a judgment.

"No. No. No. No. There is a question about whether or not–It's a lifetime appointment. I'm not going to attempt to change that at all. There's some literature among constitutional scholars about the possibility of going from one court to another court, not just always staying the whole time on the Supreme Court. But I have made no judgment, my word. My word is I have made no judgment. There is just a group of serious constitutional scholars who have a number of ideas how we should proceed from this point on. That's what we are going to be doing. We are going give them 180 days, G-d willing if I am elected, from the time I am sworn in, to be able to make such a recommendation."

First, I think Biden was about to say there is a question whether term limits could be imposed by statute. But he stopped himself. I agree. Among the various proposals, adding term limits by statute is subject to the strongest constitutional challenge.

Second, Biden is sending the marching order pretty clearly. He doesn't want term limits. The benefits of term limits would only pay dividends in 18 years. No politician would ever rely on such a long time horizon. He wants the ability to rotate Supreme Court Justice to the lower courts and promote certain Circuit Justices to the Supreme Court. And of course, Biden will pick progressive jurists for that role.

Third, Biden seems to suggest this group of scholars has already been selected. Who are they? Identify yourselves! How many of the people who criticized my Garland commission post are already on the short list of the Garland commission?

Fourth, the conclusion is foregone. The members of the commission will just be going through the motions. Once, I was a member of an organization that asked me to sit on a committee to make a recommendation. It turned out that my recommendation would serve no purpose. The leadership had already made its decision. My work would be meaningless. At that point, I refused to participate in the meaningless process. And my abstention deprived the committee of a quorum. As a result, the committee could not make any recommendation, and the entire process was held up. I was able to hold out, and persuade the full organization to modify the rules of proceeding. Now, it was clear that the leadership, and not the committee, was actually making the recommendation. In that fashion, accountability was clearly laid at the feet of leadership. Ultimately, I agreed with leadership's decision, and was proud that the process was meaningful.

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  1. Having a position for/against term limits has no hold on a position for/against court packing, I don’t see the conflation here Blackman.

    1. I kind of lost the thread after the second rule.

    2. Here’s how the logic works.

      1. Appoint a “commission” on judicial reform measures. This way the “commission” can recommend the choice you want to make. It’ll look neutral and apolitical that way.
      2. But apriori rule out all the potential reform measures except the pre-existing decision that you wanted to make anyway.

      1. Sorry whoever I accidentally flagged on my phone.

    3. The fundamental question of court packing is never “should we put more justices on the court”, but always “how do we fill the court with people who agree with us”. Most of the rules are then derived from concerns about how to do that without losing the election that you think will enable the measures you want to take.

  2. Volokh specializes in interesting first amendment cases on this blog.

    Soymin does immigration.

    Mr. Blackman does political bs. This form of content is kinda getting annoying. You have interesting legal stuff to say, why not say that? 4 months ago you complained endlessly of “blue june” and how the conservatism legal movement is dead and now apparently there is another thing and another … very few people still care about this political back and forth at this point. Or at least those who do should really get another hobby.

    1. You don’t have to respond. Blackman does plenty of other pieces.

      1. Blackman does plenty of other pieces.

        Yes, that’s the problem.

        1. About a variety of subjects.

          Personally, I find the concept of destroying the independence of the SCOTUS, and merely turning it into a rubber stamp for Congress a horrible idea, that will undermine individual rights throughout the country. But that’s just me.

          1. It also so happens that the “don’t be a rubber stamp” will only apply to Democratic policy initiatives.

            1. Oh, that’s just naive…

              Court Packing turns the court into a rubber stamp for whoever has control of Congress.

          2. You don’t like Court enlargement?

            Let’s see how long your opinion is relevant in Congress and the White House.

  3. The first rule of Neverending and Relentless Bad Faith is that you assume that everyone else is also acting in bad faith at all times.

  4. “The benefits of term limits would only pay dividends in 18 years. No politician would ever rely on such a long time horizon.”

    This makes one wonder if Professor Blackman has bothered to do the minimal due diligence of reading Calabresi’s proposal on SCOTUS term limits, since that proposal randomly assigns existing justices terms of between two and sixteen years.

    1. Still too long and chancy for Biden. Biden’s got 2, maybe 4 years. He needs immediate dividends.

      1. I’m not trying to argue for or against the merits of the proposal in this case, just pointing out that it’s one of the most talked-about implementations of Supreme Court term limits and Josh doesn’t seem to have bothered to have read it before forming an opinion on the matter.

    2. “randomly”

      The worst way. You could get old man Breyer with the 18 and Amy or Kagan with the two years.

  5. In a previous post, where Blackman provided incorrect information on Associate Justice John Blair’s date of death, I predicted he would post more court-packing pieces. I am constantly impressed with how prescient my writing is (pat on my back).

    Told you so.

    1. I predicted this morning that I would eat dinner this evening. Darn I am good.

  6. Funny how only the democrats(jews) go bonkers when they don’t get their way. RBG was put on SCOTUS by Clinton because Judith Kaye of NY declined, the country lived with RBG well beyond her usefulness, what is the big deal with replacing the jew with a Catholic? Will the country be better under Talmud law or Church law….not that the Constitution matters anymore.

    1. Funny how only bigots find Jews to be unwelcome unsavory characters.

      What else do you hate? People minding their own business? Choice? Sanity?

      I suppose if hating Jews was my primary activity all day, I’d hate myself too, because I’d be convinced that only Jews could be as despicable as I am.

    2. There is no prouder nationality than Jewish. Read up on it sometime.

  7. Second, Biden is sending the marching order pretty clearly.

    In a rambly statement in a random interview that most people aren’t going to notice?

    That’s a grotesque version of “clearly” you got there.

    1. Well, it’s that or another of Blackman’s fawning posts over ACB.

      These are tiring, but those ones are just gross.

      1. Fair point—the floor vote started almost 20 minutes ago, and yet it’s crickets. Hope Prof. Blackman didn’t have an accident or take ill.

      2. Yeah let’s have the tidal wave of fawning over RGB instead!

      3. “Well, it’s that or another of Blackman’s fawning posts over ACB.”

        Legal commentators are entitled to “fawn” over whoever suits their fancy, be it Amy Coney Barrett or Masha Gessen.

        1. Everyone is entitled to say whatever they want, whether or not they are a legal commentator. And everyone is also entitled to make fun of someone for excessive fawning.

          1. You’re tellin’ me?

        2. Entitled? Sure.

          Still gross the way Blackman does it.

  8. I’m not going to do what I can’t do. Wow what a sacrifice!

  9. There’s only one rule. It goes like this:

    Republicans appoint judges who will generally (not always) support their policy goals. So do Democrats.

    Republicans like the current SCOTUS because it is very likely to support their policy goals. That’s why Democrats dislike it.

    Republicans have done everything constitutionally in their power to get to a 6-3 majority on the Court because they believe that doing so will further their policy goals. Democrats are perfectly entitled to do everything constitutionally in their power to gain a majority of Democratic appointees on the Court in order to further their policy goals.

    Period. The end. The rest is, if not noise, surely hypocrisy.

    1. Republicans put on the bench young hard-right conservatives.

      Democrats put on the bench older center-left moderates.

      There are not two sides to this.

      1. The worst part is that they do this with district court nominations. Kathryn Mizelle has only been a lawyer for 8 years, has spent half of that time clerking and is obviously getting the gig in part due to political connections with the White House. And now she’s supposed to be interacting with litigants and parties on a day-to-day basis and sentencing people. I’d rather they put her on acircuit court where she can write self-indulgent concurrences instead of interacting with litigants. I think Justin Walker showed he had no business being a trial court judge in his two high profile cases. Trial court judges need to be experienced, thoughtful, and practical. They don’t need to be ideologically pure one way or the other. The higher courts will deal with the politically important cases how they see fit no matter what the district court does. So putting these types of people there is really a waste of everyone’s time.

        1. Tell me about Alison Nathan next

          1. She shouldn’t have been given a district court spot until she had a few more years of legal experience. What do you expect me to say?

            1. Nothing about how she “just got the gig due to her political connections”?

              Tell me about Jesse Furman next.

              1. Here’s another good story…

                The Democrats lost the Senate in the November elections in 2014.

                They then proceeded to ram through over 25 district court nominees in the lame duck period in November 2014 and December 2014, before the GOP would take the Senate…

                1. Okay. What’s your point?

                  1. Don’t bitch too much if Team R rams through ~40 judges, post election. I think that is the point.

      2. So, my favorite chart is that liberal/conservative drift on the SCOTUS bit they put out…

        And you see Kagan and Sotomayor drift substantially more liberal, while Kav and Gor are….fairly moderate.

        Then you realize Kagan was nominated at right around 50 years of age…

  10. Judge Barrett just became Justice Barrett. She will be a fine justice.

    1. Who will in part be remembered as someone who profited immensely off of the lies, hypocrisy, and bad faith dealing of others while casting herself into a martyr. Off to a great start.

      1. She may be remembered as the precipitate for Democrats politically bombing Republicans back to the Stone Age, all but eliminating the system’s structural amplification of yahoo votes.

  11. *cough*hack*cough*

  12. What exactly is the reform of SCOTUS supposed to address? What is the issue(s) of contention? For decades SCOTUS was left of center, and there was never a problem. That means ideological balance is not the issue.

    1. It’s a response to Cocaine Mitch’s dishonesty/hypocrisy re: Garland and ACB.

    2. iowantwo : What exactly is the reform of SCOTUS supposed to address?

      It’s pretty simple : Barrett after Garland requires a response from the Democratic Party. Everyone knew that, particularly the GOP. They knew it well before they rammed Barrett’s nomination thru just days before an election.

      All the Right-type commenters here mewling about court expansion knew it as well. They were well aware of the potential consequences of the hypocrisy & power politics they applauded. They didn’t have to cheer; McConnell could have waited a few more days. They made their choices and should be prepared to live with the result.

  13. Josh, you can keep sitting by that phone waiting for the Dems to call and ask for you to set their agenda as long as you’d like. I assume your ego demands it. But you will not be setting any democratic agenda pertaining to the USSC, or anything else.

  14. TO continue to dishonestly maintain that a legitimate legislative prerogative is ‘wrong’ because it conflicts with your political views is nakedly transparent

    and unconvincing

    The ways to stop Biden from increasing the size of the court and ending the tyranny of the minority

    Win the Senate
    Win the Presidency

    Or the way it was solved the last time it came up:

    One or more of the sitting [conservative] justices resigns, dies, or has a drastic change in outlook

    Radical right wingers out of step with the long term wishes of the people populate the court.
    This is not tenable long term

    court packing may save the reputation of the court

    the next step, statehood for PR, and the expansion of the house to better reflect the population of the country and prevent another loser like trumpski from being elected

  15. Have you considered the possibility that Biden wants the commission for the exact opposite reason? He is generally a big institutionalist but also a highly responsive to the political winds. Opposing court packing would cost him substantial Dem support.

    He has to know that new president’s only usually get a few chances to make big changes and that kicking it to a committee will let him avoid spending his political capital here while still lettinf him put some pressure on the court not to strike down his big changes.

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