The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On the Biden/Harris Court "Reforms"
So much for constitutional norms
New from me in The Dispatch is a breakdown of the administration's newly announced "reforms" for the U.S. Supreme Court. The announcement is remarkably light on details, and there are better and worse directions that the Democrats could go with this. So far the Biden/Harris team has declined to endorse the progressives' most favored proposal of expanding the size of the Supreme Court, but even this is a big shift to the left by the White House as we head into the 2024 elections and a clear signal that radical attacks on the Court will be on the agenda if the Democrats manage to claim both Congress and the White House.
Yet another reminder that for those who care about constitutional government, there are no good choices on the ballot this year.
From the piece:
As a matter of constitutional norms, a statutory term of service under current circumstances would in fact be a serious challenge to judicial independence. The current White House is not shying away from saying that it wants to shuffle justices off the court because it is unhappy with the substance of its decisions. Perhaps there could be a neutral rationale for setting a mandatory retirement age to avoid the problem of infirm judges—but there is nothing politically neutral about current proposals. They recall how a leader of the Jeffersonian senators once told John Quincy Adams that Federalist judges needed to be impeached because, "we want your offices, for the purposes of giving them to men who will fill them better."
